Ali v. Hickman

• Citation: 584 F.3d 1174
• Decision Date: 07 July 2009
• Docket Number: No. 07-16731.,07-16731.
• Parties: Mohammed Haroon ALI, Petitioner-Appellant, v. Roderick Q. HICKMAN, Director California Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

584 F.3d 1174

Mohammed Haroon ALI, Petitioner-Appellant, v. Roderick Q. HICKMAN, Director California Department of Corrections, Respondent-Appellee.

No. 07-16731.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2008.

Filed July 7, 2009.

Amended October 23, 2009.

Albert Joel Kutchins, Berkeley, CA, for the petitioner-appellant.

Michele Swanson, Office of the California Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-05-05243-PJH.

Before: A. WALLACE TASHIMA and MARSHA S. BERZON, Circuit Judges, and ROBERT J. TIMLIN,^* District Judge.

ORDER

The opinion filed on July 7, 2009, and published at 571 F.3d 902, is hereby amended as follows:

1. , Replace "reasonable" and demonstrated that the peremptory challenges had not been motivated by the juror's race.> with "reasonable.">

2. , Replace the trial court's conclusion> with

With these amendments, the panel has unanimously voted to deny the petition for panel rehearing. Judge Berzon has voted to deny the petition for rehearing en banc, and Judges Tashima and Timlin recommend denial.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc are DENIED.

No further petitions for rehearing or rehearing en banc may be filed.

OPINION

BERZON, Circuit Judge:

In 2001, a California state court jury convicted Petitioner-Appellant Mohammed Ali of the first-degree murder of his girlfriend, Tracey Biletnikoff. During jury selection, the prosecutor, Stephen Wagstaffe, peremptorily struck the only two African-American members of the jury pool. Ali maintains that these strikes were racially-motivated and therefore violated his rights under the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We hold that a comparative juror analysis, in combination with other facts in the record, demonstrates that the prosecutor's purported race-neutral reasons for striking at least one of the jurors were pretexts for racial discrimination. We further hold that the California Court of Appeal's contrary conclusion was not only incorrect, but unreasonably so. Accordingly, we reverse the district court's denial of Ali's petition for writ of habeas corpus and grant the writ.¹

I. Background

A. Jury Selection

On November 8, 1999, the State of California charged Mohammed Ali with the first-degree murder of his girlfriend, Tracey Biletnikoff. Ali entered a plea of not guilty, and stood trial.

During the jury selection process, the state prosecutor used two of his peremptory challenges to strike the only African-Americans in the jury pool, first striking M.C.² and then Darrell Jefferson. Ali's trial counsel challenged both these strikes in turn under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) (California's equivalent of Batson), requesting an evidentiary hearing on the issue of the prosecutor's motive. After the prosecutor struck Jefferson, the trial judge granted the request.

At the ensuing hearing the prosecutor provided the following explanation for his strike of M.C.:

M.C.—yesterday, I exercised my challenge there for the following reasons: We had an out-of-the-presence-of-the-jurors discussion with her about private matters wherein she talked about family members and the discussion with those involving the molestation of one child by another child, the involvement in the system. The way she described that, she ultimately told the Court she thought that that would not play a role, would not affect her judgment. Her words were that she doesn't think it will affect her judgment in this case. She did not say it won't. She said she doesn't think on that. It did involve family members within the system. That was, level one, a concern that I had. I have exercised challenges to other jurors for that same reason.

No. 2, she was very emphatic that— about—to Mr. Morales, and then to me later, about her concerns about attorneys and the way they conducted themselves in the courtroom; that if it was anything less than professional and respectfully done that that would affect her.

THE COURT: Would that be an unreasonable expectation?

PROSECUTOR: It would not be an unreasonable expectation to say; that it would occur to say it would affect her judgment was unreasonable. That's why Mr. Morales initially dealing on this issue followed up with that with her to say there were times he might cross-examine witnesses in an aggressive fashion and do that, to find out whether that would affect her judgment of him on that. I then followed up with her in my questioning to inquire about the same things. I thought we would act respectfully, but did she think it would affect her. Her demeanor, and the way she responded to that made it very clear to me that something she would—I think all of us would like to have occur, I expect it will occur, but as Mr. Morales has properly pointed out to several jurors, at times there could be an aggressive approach to the case; that sometimes there may not. That gave me cause for concern, more so, of course, is the prior involvement in the prior offense.

No. 3, Your Honor, the question was posed to her and it was posed by the defense about what she felt in terms of sitting in judgment of others. Her response to that was a pause, reflection, and then she said, yes, that could be a problem for her, sitting in judgment of others, because she was thinking of her Christian faith. Mr. Morales then explored that with her and went further into, Well, what we would be talking about here is judging facts and that type of a matter. She thought about it and said, Well, taking that into consideration, I believe that is something I could do without crossing my religious tenets. I thought there was hesitancy in what she said.

Obviously, it is my burden to get twelve jurors who could judge the case. I thought a combination of these factors gave me good reason to be concerned about her ability to fairly and impartially do it, and I exercised a peremptory challenge for that reason and for that reason alone.

The trial court then asked the prosecutor to provide his reasons for striking Darrell Jefferson, to which he responded:

I thought Mr. Jefferson was an excellent juror up until the questioning here, based on what he did—you recall he came in and engaged in some banter with the Court when he was talking about his hardship request; that he—I believe it was a hardship, not publicity, inquiry that was done in chambers. As the Court stated a few minutes ago, when you expressed it, there were two things that caused me to change my mind. One of them was in response to Mr. Morales' question. That question had to do with there was something— where he talked about, we make decisions as we go along. It gave Mr. Morales some concern. It gave me some concern.

Mr. Morales explored it a bit further with him. Well, wait. You can't make the decision. He said, Well, we do it. That's how life works. I know—and he said, We may change them as we go along but we make decisions. I have a phenomenally great concern about the intellectualizing. I thought that would do—it would be an over-intellectualizing of the case.

I want jurors, what I think Mr. Morales was striving for with him, about keeping an open mind until the end and not making decisions. The Court arrived at a conclusion there that that may be a semantical difference or something else, and I respect that conclusion, when you told Mr. Morales [during Jefferson's voir dire] to move on, but it gave me cause for concern there.

But at that point I was still considering the peremptory challenge, became evident to me when in response to a question from me he gave what—and it's personal to me. I respect it may be. I thought he gave me, and I respectfully use these words, a smart-ass answer.

THE COURT: Which [response]?

PROSECUTOR: The one when I commented to him, Is there anything else that you could think of that would cause you not to be fair and impartial, a question I have asked probably of over 50 jurors, 40 jurors in this case and never received other than no or maybe some answer. His was, I haven't done anything yet, immediately provoking a barrel of laughter throughout the courtroom. I was offended by that comment.

By those two things, combined with the fact that he had had some contact, although he said he could lay it aside, and I respect that possibility, with dealing with a public defender and hearing about those cases.

That combination of things caused me to change my mind. Race had nothing to do with either of these things.

Those are my reasons, Your Honor.

THE COURT: What was the reason again about the hardship that you assert, Mr. [prosecutor?]

. . .

PROSECUTOR: My comment was, when [Jefferson] came in and spoke with you in the hardship—I am relaying to the Court my thought process—and the banter he engaged in. I thought it was light-hearted. It was not the hardship itself that concerned me. I thought it was a lighthearted banter, but I thought it reflected—the word I'm looking for is not disrespectful, but I thought it reflected a casualness that was not typical of jurors.

Again, this is a very subjective item and in and of itself would never give cause, but what I noted was the banter he engaged in was very much at ease, and that is not what I'm looking for in a juror; however, again, I would never exercise a challenge on that alone. That is merely factors that go into it. I've given you four factors I believe that went into that decision.

THE COURT: With all due respect, I thought I heard two, one having to do with his banter and, slash, casualness during the...