Gonzalez v. Brown

• Decision Date: 30 October 2009
• Docket Number: No. 07-56107.,07-56107.
• Citation: 585 F.3d 1202
• Parties: Erick Raymundo GONZALEZ, Petitioner-Appellant, v. Edmund G. BROWN, Attorney General; State of California; John Marshall, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

585 F.3d 1202

Erick Raymundo GONZALEZ, Petitioner-Appellant, v. Edmund G. BROWN, Attorney General; State of California; John Marshall, Warden, Respondents-Appellees.

No. 07-56107.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 31, 2009.

Filed October 30, 2009.

Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas, NV, for appellant, Erick Raymundo Gonzalez.

David F. Glassman, Office of the Attorney General of California, Los Angeles, CA, for appellees, Edmund G. Brown, John Marshall and State of California.

Appeal from the United States District Court for the Central District of California, Dale S. Fischer, District Judge, Presiding. D.C. No. CV-03-04067-DSF.

Before: RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges, and OWEN M. PANNER, District Judge.^*

GOULD, Circuit Judge:

We consider the significance of a prosecutor's stated inability to recall the reason for exercising a peremptory strike to remove an African-American potential-juror, pursuant to the second step of the Batson inquiry. We hold that in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, we cannot say that the California Court of Appeal's denial of Gonzalez's Batson claim was contrary to Supreme Court precedent or an objectively unreasonable application of such precedents. Therefore, the district court properly denied habeas corpus relief in this case governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and we affirm.

I

Gonzalez was charged with possession of cocaine base for sale under California Health & Safety Code Section 11351.5. He was tried to a jury in Los Angeles County Superior Court. Jury selection began on Thursday afternoon and ended on Friday morning. During jury selection, the prosecution exercised four of its ten peremptory strikes. Three of these strikes excused African-American jurors. After the third African-American juror was excused, Gonzalez—who is also African-American—made a Wheeler motion,¹ alleging that the strikes were motivated by Gonzalez's race.

The sequence was as follows: the prosecution's first peremptory strike excused an African-American juror. Gonzalez then exercised his first peremptory strike, at which point the prosecution accepted the panel. Gonzalez next exercised his second peremptory strike, and the prosecution exercised its second peremptory strike to excuse a Caucasian juror. Gonzalez exercised his third strike, and the prosecution again accepted the panel. The trial court recessed for the day.

The next morning, the jury box contained seven additional prospective jurors. The prosecution exercised its third peremptory strike to excuse an African-American juror. Gonzalez accepted the panel. The prosecution then exercised its fourth peremptory strike to excuse another African-American juror, and Gonzalez made his Wheeler motion. The state trial court agreed with Gonzalez that the strikes created a "classical" inference of racial bias, and asked that the prosecution explain its reasoning.

The prosecution justified excusing the second African-American juror on the grounds that "yesterday[the juror] had been very evasive when [the trial court] asked her specifically about the suspension, the license suspension." In addition, the prosecution observed that the juror had been accepted as part of the panel several times on Thursday, but that the composition of the jury had changed overnight.

The prosecution justified excusing the third African-American juror on the grounds that "[the trial court] asked [the juror] several times [on Friday] about would [he] require the People to prove it beyond all doubt? And even though [the trial court] kept explaining it to [the juror], he kept answering he expects the People to prove it beyond all doubt, was his repetitive answer."

The prosecution could not recall its reason for excusing the first African-American juror.

The trial judge stated that in light of the prosecution's explanation for excusing two of the jurors on Friday and the fact that the prosecution accepted the panel twice on Thursday, the court was satisfied that no racial prejudice was involved. Defense counsel objected that the prosecutor had not provided an explanation for striking the first juror. The trial court again stated that it was satisfied with the prosecution's overall explanation, noting that two African-American jurors were currently sitting on the panel, a third was a prospective panelist, and there were "at least three or four Hispanic jurors in the panel[,][s]o I think that we're safe here."

Gonzalez was convicted of possession of cocaine base, and he appealed. The California Court of Appeal affirmed the conviction, giving deference to the trial court's determination that the prosecutor had a "bona fide" reason for exercising her peremptory challenges. The Court of Appeal concluded that Gonzalez had not met his ultimate burden of persuasion to prove purposeful discrimination with respect to the first juror.² Gonzalez sought discretionary review in the California Supreme Court without success.

After failing to gain relief in the state courts, Gonzalez filed his petition for a writ of habeas corpus in the United States District Court for the Central District of California. The district court denied the petition, and a Ninth Circuit panel granted Gonzalez a certificate of appealability on the Batson issue. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

II

We review a district court's denial of a petition for habeas corpus de novo. Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir.2009). Gonzalez filed his petition after the effective date of the AEDPA. Thus, we apply AEDPA deference to any state court decision on the merits. The federal district court was required to deny a habeas petition unless the state court's adjudication of the claims resulted in a decision (1) contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). To qualify as clearly established federal law, the Supreme Court need not apply a rule to a fact pattern precisely identical to this case. Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). Moreover, Ninth Circuit cases may provide persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent. Mendez, 556 F.3d at 767.

III

So important is the need to avoid intentional racial discrimination in the selection of a jury, and so important is the need for procedures conducive to the forming of a jury that can be expected—so far as is feasible—to act without racial bias, that a prosecutor cannot use a single peremptory strike to excuse a juror on the basis of an impermissible motive such as race. Batson v. Kentucky, 476 U.S. 79, 95-96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A single peremptory strike, if purposely discriminative, will be enough to upset a jury conviction. Batson was clearly established law in 2001, when the California Court of Appeal decided Gonzalez's appeal. Since then, the Supreme Court has further discussed what Batson clearly established when it reviewed the case of Miller-El v. Dretke on a writ of habeas corpus. 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (considering a Batson challenge on AEDPA review and determining that the application of Batson by the Texas Court of Appeals in 1992 was unreasonable).³

In Miller-El, the Court stated that "[w]hen the government's choice of jurors is tainted with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial .... The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature ...." 545 U.S. at 238, 125 S.Ct. 2317 (internal quotation marks and citations omitted). The Court then discussed how in Batson "we accordingly held that a defendant could make out a prima facie case of discriminatory jury selection by `the totality of the relevant facts' about a prosecutor's conduct during the defendant's own trial." Id. at 239, 125 S.Ct. 2317 (citing Batson, 476 U.S. at 94, 96, 106 S.Ct. 1712). "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging jurors within an arguably targeted class." Id. (internal quotation marks omitted) (quoting Batson, 476 U.S. at 97, 106 S.Ct. 1712). "[T]he prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e]." Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712 (internal quotation marks omitted). "The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Id. at 98. "[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives." Miller-El, 545 U.S. at 251-52, 125 S.Ct. 2317 (internal citations omitted).

If the prosecutor does not meet his or her burden at...