Boyd v. Newland

• Decision Date: 29 December 2004
• Docket Number: No. 03-17098.,03-17098.
• Citation: 393 F.3d 1008
• Parties: Mobassa BOYD, Petitioner-Appellant, v. Anthony C. NEWLAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

393 F.3d 1008

Mobassa BOYD, Petitioner-Appellant, v. Anthony C. NEWLAND, Warden, Respondent-Appellee.

No. 03-17098.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2004.

Filed December 29, 2004.

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Mark E. Eibert, Half Moon Bay, CA, for the petitioner-appellant.

Glenn R. Pruden, Deputy Attorney General, State of California, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-00-21287-RMW.

Before: CUDAHY,^* GRABER, and FISHER, Circuit Judges.

GRABER, Circuit Judge:

In this case, the California courts denied Petitioner's Batson¹ motion; denied his request for a free transcript of the entire voir dire for use on appeal; and enhanced his sentence because of a nonjury juvenile adjudication. We must ask whether any of those rulings was contrary to, or unreasonably applied, clearly established federal law as determined by the Supreme Court. Because we answer "no," we affirm the district court's denial of habeas corpus relief.

FACTUAL AND PROCEDURAL HISTORY

Petitioner, Mobassa Boyd, is African-American. He was charged in California with unlawfully possessing a firearm after having previously suffered a juvenile adjudication for a felony, Cal.Penal Code § 12021(e), and with unlawfully possessing a sawed-off shotgun, id. § 12020(a)(1).

During voir dire, the prosecutor used a peremptory strike to excuse an African-American prospective juror. Petitioner's counsel made a Batson motion, asserting that the strike was race-based.² Counsel said only this: "There was nothing that I could glean in the responses [of the potential juror to voir dire questions] which would lead me to believe that there was sort have [sic] any tangible reasons whereby someone might excuse her as being a potentially partial juror." At the time of the disputed peremptory challenge, another African-American potential juror had been stricken for cause; two other African-Americans remained as potential jurors; and the prosecutor had used two other peremptory challenges on non-African-American jurors. The trial court denied the motion, finding that Petitioner's "showing falls short of showing a prima facie case" of racial bias in the prosecutor's use of the peremptory challenge.

The jury that eventually was empaneled convicted Petitioner. Petitioner waived his right to have a jury determine the truth of his prior juvenile adjudication. The trial court found the juvenile adjudication to be true and, accordingly, increased Petitioner's sentence from three to six years. Cal.Penal Code §§ 667(d)(3), 1170.12(b)(3).

Petitioner filed three requests to supplement the record to include the entire voir dire transcript. The California Court of Appeal granted Petitioner's requests in part and required that he be provided the voir dire of the excused African-American juror plus his counsel's argument under Batson. But the Court of Appeal denied Petitioner's requests for the entire voir dire transcript because he did not comply with a California local rule that requires a defendant to "establish with some certainty how the requested materials may be useful on appeal." Cal. Ct.App., First App. Dist. Local Rule 6(d) (2003). The court also relied on controlling California precedent, which does not require a court to provide a defendant with an entire voir dire transcript free of charge. See People v. Landry, 49 Cal.App.4th 785, 56 Cal.Rptr.2d 824, 828 (Ct.App.1996) (holding that when the purpose of the request is to compare the testimony of jurors, but no such comparison was made at the trial level, a court need not provide a free voir dire transcript).

On direct appeal to the California Court of Appeal, Petitioner challenged the denial of his Batson motion. The Court of Appeal affirmed Petitioner's conviction, and the California Supreme Court denied his petition for review without comment.³ After exhausting state-court post-conviction procedures without success, Petitioner petitioned for a writ of habeas corpus in federal district court. The district court denied his petition. Petitioner now appeals to us.

STANDARD OF REVIEW

We review de novo a denial of a petition for habeas corpus. Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000) (en banc).

We may not disturb a state court's determination unless it "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.), cert. denied, 540 U.S. 968, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003). AEDPA imposes a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

DISCUSSION

A. Batson Claim

To succeed on his charge of racial bias, Petitioner first must establish a prima facie case of purposeful discrimination. Batson, 476 U.S. at 93-94, 106 S.Ct. 1712; Tolbert v. Page, 182 F.3d 677, 680 (9th Cir.1999) (en banc). He must show that (1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race. Batson, 476 U.S. at 96, 106 S.Ct. 1712; Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir.2001). If he failed to establish a prima facie case, then the motion properly was denied; the prosecutor need not have provided a race-neutral explanation for the strike. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Cooperwood, 245 F.3d at 1046.

The first and second elements of the test are met, because the prospective juror is African-American, and the prosecutor used a peremptory strike to remove the juror. Only the third element of the prima facie case is at issue, that is, whether the state court erred in failing to recognize an inference of racial motivation.

Petitioner first argues that the California Court of Appeal's decision was "contrary to" federal law, 28 U.S.C. § 2254(d)(1), because the court used an incorrect legal standard in determining whether he had made out a prima facie case. If he were correct, we would not defer to the state court. See Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir.2000) (holding that when the state court uses the wrong legal standard, the rule of deference does not apply). But we read the state court's decision differently.

In affirming the trial court's ruling on the peremptory strike, the California Court of Appeal wrote that Petitioner had not shown a "strong likelihood" that the prosecutor's challenge had been motivated by racial considerations. The "strong likelihood" wording originates from Wheeler, the California equivalent of Batson, and the Wheeler standard places on the defendant a more onerous burden of proof than that required by the "raise an inference" standard of Batson. See Wade, 202 F.3d at 1192 ("We hold that the Wheeler standard, as currently interpreted by the California courts, does not satisfy the constitutional requirement laid down in Batson.").

But the California court did not stop there. It also held that Petitioner "clearly did not establish a prima facie case of group discrimination, even under federal precedent." In other words, the Court of Appeal did not rely only on the Wheeler standard, instead holding that Petitioner had failed to establish a prima facie case under either state or federal law. Because the Court of Appeal recognized the difference between the two standards, and affirmed the trial court under both, its determination deserves deference. See Tolbert, 182 F.3d at 682-83 (describing deference owed to state court's prima facie determination under Batson).

Petitioner also argues that the California courts were wrong to conclude that he had failed to establish a prima facie case under Batson. We are not persuaded that the Court of Appeal applied Batson unreasonably.

The disputed peremptory strike was the prosecutor's third, but the first used to dismiss an African-American prospective juror. Additionally, two African-Americans remained in the pool after the use of this strike. Although "the Constitution forbids striking even a single prospective juror for a discriminatory purpose," the fact that an African-American potential juror was stricken does not, by itself, suggest racial bias. United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994); Wade, 202 F.3d at 1198. Even the use of two peremptory strikes against members of a cognizable minority group does not necessarily suffice to constitute a prima facie showing of bias. Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir.2002); United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989).

On appeal, Petitioner repeats the claim he made at trial — that no nonracial reason existed for the peremptory challenge. To the contrary, the Court of Appeal listed several race-neutral grounds that appeared in the juror's responses on voir dire. For example, the juror expressed ambivalence about the justice system, saying "it's fair in some cases; depends on the case." As another example, the juror "sound[ed] a little hesitant" when asked whether missing work would distract her. Evidence in the record of objective reasons to strike a juror implies that racial bias did not motivate the prosecutor. See Paulino v. Castro, 371 F.3d 1083, 1091-92 (9th Cir.2004) ("While we may consider whether the record contains entirely plausible reasons, independent of race, why a prosecutor may have exercised peremptories, such reasons have usually helped persuade us that defendant made no prima facie showing where defendant challenged the excusal of just one juror." (emphasis added) (citation and internal quotation marks omitted)); Wade, 202 F.3d at 1198 (noting that "entirely plausible reasons, independent of race,"...