593 F.3d 810 (9th Cir. 2010), 08-15894, Cook v. LaMarque

Docket Nº:08-15894.
Citation:593 F.3d 810
Opinion Judge:TALLMAN, Circuit Judge.
Party Name:Matthew Loren COOK, Petitioner-Appellant, v. Anthony LAMARQUE, Respondent-Appellee.
Attorney:Allison Claire (argued), Federal Public Defender's Office, Sacramento, CA, for petitioner-appellant Matthew L. Cook. Ward A. Campbell (argued), Eric L. Christoffersen, Office of the California Attorney General, Sacramento, CA, for respondent-appellee Anthony LaMarque.
Judge Panel:Before: PROCTER HUG, JR., MICHAEL DALY HAWKINS, and RICHARD C. TALLMAN, Circuit Judges. HAWKINS, Circuit Judge, Concurring in part and Dissenting in part:
Case Date:January 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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593 F.3d 810 (9th Cir. 2010)

Matthew Loren COOK, Petitioner-Appellant,


Anthony LAMARQUE, Respondent-Appellee.

No. 08-15894.

United States Court of Appeals, Ninth Circuit.

January 7, 2010

Argued and Submitted May 4, 2009.

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[Copyrighted Material Omitted]

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Allison Claire (argued), Federal Public Defender's Office, Sacramento, CA, for petitioner-appellant Matthew L. Cook.

Ward A. Campbell (argued), Eric L. Christoffersen, Office of the California Attorney General, Sacramento, CA, for respondent-appellee Anthony LaMarque.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. No. 2:02-CV-02240-LKK-GGH.


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TALLMAN, Circuit Judge.

Matthew Cook was convicted by a Sacramento County, California, jury of murder, attempted murder, conspiracy to commit assault with a firearm, and burglary. In his petition for a writ of habeas corpus, he argues the prosecutor's use of peremptory challenges to strike African American jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. He also alleges prejudice based on jury misconduct in violation of the Sixth Amendment. The district court denied the petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.


On October 16, 1995, Cook and three accomplices broke into the apartment of Jimmie Fonseca and Carl Kato. They had plotted revenge after Fonseca " pistol-whipped" Cook in an earlier incident, and for other offenses against Cook and his friends. Cook and his accomplices entered the apartment wearing ski masks and carrying handguns and shot Fonseca and Kato. Fonseca died and Kato was seriously wounded. Cook was charged on a four-count information and tried together with co-defendants Lozo and Gains.

The Sacramento County Superior Court jury pool consisted of 195 people. During the selection process, the assistant district attorney used twenty-five of his forty permitted peremptory challenges. Seven of these challenges struck African American prospective jurors: Watkins, Reynolds, Singleton, Parker, Tillman, Livingston-Blanks, and Maxey. Three African Americans remained and the prosecutor explicitly noted his preference that two of these people serve. The defense used peremptory challenges to strike these two. One African American was ultimately seated on the jury.

The defendants challenged the prosecutor's seven strikes against African Americans and moved for mistrial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its California analog, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The trial judge held a hearing and discussed the factors bearing on his analysis, including the prosecutor's credibility. The judge concluded the prosecutor had " used reasonable, acceptable criteria. They are not pretext, and they are not systematic." The case proceeded to trial and Cook was convicted on all counts.

Cook raised his Batson challenge again on direct appeal. The California Court of Appeal considered the jurors individually. It noted the reasons given to justify each challenge, and concluded the given reasons were race-neutral, but did not provide any discussion or reasoning for why it credited the prosecutor's justifications. It did not engage in comparative juror analysis because, at the time, California law prohibited an appellate court from performing such analysis for the first time on appeal. See Ali v. Hickman, 584 F.3d 1174, 1179 (9th Cir.2009). The California Supreme Court denied review.

Cook filed a federal habeas petition and the matter was initially referred to a magistrate judge. The magistrate engaged in an extensive analysis, including comparative juror analysis. Though he considered the strikes against Jurors Parker, Tillman, and Watkins to be " close cases," he found no Batson violation and recommended denial of the petition. The district court adopted the magistrate's findings, but, drawing on precedent from other circuits, employed a mixed-motives approach to resolving the Batson claim. The district court concluded the prosecutor was motivated by both legitimate and illegitimate

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reasons in challenging Juror Watkins, and explicitly noted that without the mixed-motives analysis, it would have granted the petition. It concluded the other six strikes were valid even without mixed-motives analysis. Cook timely appeals.



A Batson challenge has three steps: first, " the defendant must make a prima facie showing that a challenge was based on race; " second, the prosecution must offer a race-neutral basis for the challenge; and third, the court must determine whether the defendant has shown " purposeful discrimination." Ali, 584 F.3d at 1180; see Batson, 476 U.S. at 96-8, 106 S.Ct. 1712. The only dispute here is whether the state courts reasonably applied Batson 's third step. To make this determination, we must consider the " totality of the relevant facts" to decide " whether counsel's race-neutral explanation for a peremptory challenge should be believed." Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc) (quoting Hernandez v. New York, 500 U.S. 352, 363, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

We review de novo a district court's denial of a habeas corpus petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir.2005) (en banc).


We first consider whether to adopt the mixed-motives approach employed by the district court. Under mixed-motives analysis, the court's inquiry does not end with the evaluation of the prosecutor's motives at Batson 's third step.

[W]here both race-based and race-neutral reasons have motivated a challenged decision, a supplementary analysis applies. In these situations, the Court allows those accused of unlawful discrimination to prevail, despite clear evidence of racially discriminatory motivation, if they can show that the challenged decision would have been made even absent the impermissible motivation, or, put another way, that the discriminatory motivation was not a " but for" cause of the challenged decision.

Kesser, 465 F.3d at 372 (Wardlaw, J., concurring).

The district court grudgingly adopted the mixed-motives approach " based on the weight of existing federal precedent." See Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir.2002); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir.1996) (per curiam); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir.1995); United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir.1995); Howard v. Senkowski, 986 F.2d 24, 27-30 (2d Cir.1993). However, we decline to follow our sister circuits. Though the mixed-motives approach has obvious utility, adopting it here would be contrary to the weight of Ninth Circuit and Supreme Court precedent.

In Kesser, our en banc panel declined to adopt the mixed-motives approach, despite an extensive concurring opinion advocating its adoption. 465 F.3d at 371. Shortly after we decided Kesser, the Supreme Court revisited its Batson jurisprudence in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The Court in Snyder followed its existing approach, declining to adopt mixed-motives analysis for Batson cases:

In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this

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factor was not determinative. See Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.

Id. at 1212, 552 U.S. 472 (emphasis added). The Court also alluded to the difficulty of determining on collateral review which of the prosecutor's motives were " but for" causes. Id. (" Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner's trial." ).

Though adopting the mixed-motives approach would set us in the company of five sister circuits, we and the Supreme Court have declined to do so. Therefore, we reject the district court's mixed-motives analysis, and limit our inquiry to whether the prosecutor was " motivated in substantial part by discriminatory intent." Id.


To determine whether race was a substantial motivating factor-that is, whether the defendant has shown " purposeful discrimination" at Batson 's third step-the trier of fact must evaluate " the persuasiveness of the justification[s]" offered by the prosecutor. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). " In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson, 476 U.S. at 93, 106 S.Ct. 1712 (internal quotation marks and citation omitted). This inquiry includes " side-by-side comparisons" of the African American panelists who were struck and white panelists who were allowed to serve. " If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is...

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