Crittenden v. Chappell, 13–17327.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation804 F.3d 998
Docket NumberNo. 13–17327.,13–17327.
PartiesSteven Edward CRITTENDEN, Petitioner–Appellee, v. Kevin CHAPPELL, Warden, Respondent–Appellant.
Decision Date26 October 2015

804 F.3d 998

Steven Edward CRITTENDEN, Petitioner–Appellee
Kevin CHAPPELL, Warden, Respondent–Appellant.

No. 13–17327.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 16, 2014.
Filed Oct. 26, 2015.

804 F.3d 1001

Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; Stephanie A. Mitchell, Deputy Attorney General, Eric Christoffersen (argued), Supervising Deputy Attorney General, Sacramento, CA, for Respondent–Appellant.

Mark Goldrosen (argued), Law Office of Mark Goldrosen, San Francisco, CA; Michael L. Spiegel (argued), Law Office of Michael Spiegel, New York, N.Y., for Petitioner–Appellee.

Appeal from the United States District Court for the Eastern District of California, Kimberly J. Mueller, District Judge, Presiding. D.C. Nos. 2:97–cv–00602–KJM–GGH, 2:95–cv–01957–KJM–GGH.

804 F.3d 1002


Opinion by Judge FISHER ; Dissent by Judge McKEOWN.


FISHER, Circuit Judge:

In 1989, a California jury convicted Steven Crittenden of two murders and sentenced him to death. Crittenden, who is African–American, filed a federal habeas petition, arguing the prosecutor excluded an African–American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court initially denied Crittenden's petition. The court found, although race played a significant part in the peremptory challenge, the prosecutor would have made the challenge even if race had played no role, because of the prospective juror's opposition to the death penalty. We remanded in light of Cook v. LaMarque, 593 F.3d 810 (9th Cir.2010), which clarified that a peremptory challenge violates the Equal Protection Clause if it is “motivated in substantial part” by race, id. at 815, “regardless of whether the strike would have issued if race had played no role.” Crittenden v. Ayers, 624 F.3d 943, 958–59 (9th Cir.2010) (Crittenden I ) (emphasis added).1 On remand, the district court found the prosecutor was substantially motivated by race, and granted Crittenden's petition.

The state presents several challenges on appeal: (1) under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the district court was prohibited from retroactively applying the standard articulated in Cook; (2) the district court failed to apply deference to decisions by the California Supreme Court and the state trial court, as required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); (3) the district court improperly rejected the magistrate judge's credibility determination without conducting its own evidentiary hearing; and (4) the district court clearly erred by finding the prosecutor was substantially motivated by race.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. First, Cook merely clarified the standard of proof for Batson claims; it did not set forth a new rule for purposes of Teague. Second, as we held in Crittenden I, the California Supreme Court's decision is not owed deference under AEDPA, because it was contrary to clearly established federal law, and the presumption of correctness afforded to the state trial court's factual findings is rebutted by clear and convincing evidence. Third, the district court was not required to conduct its own evidentiary hearing, because it did not reject the magistrate judge's credibility determination. Finally, the district court's finding that the prosecutor was substantially motivated by race was not clearly erroneous.

The Supreme Court has eloquently explained a jury selected without regard to race is a critical constitutional right:

The jury acts as a vital check against the wrongful exercise of power by the State and its prosecutors. The intrusion of racial discrimination into the jury selection process damages both the fact
804 F.3d 1003
and the perception of this guarantee. Jury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, or predisposition about the defendant's culpability. Active discrimination by a prosecutor during this process condones violations of the United States Constitution within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury's neutrality and its obligation to adhere to the law.

Powers v. Ohio, 499 U.S. 400, 411–12, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (citations and internal quotation marks omitted). Accordingly, it is well established that a Batson violation is structural error. See Williams v. Woodford, 396 F.3d 1059, 1069 (9th Cir.2005).

Given the district court's careful analysis of the record and its consequent findings, Crittenden is entitled under Batson to a new trial before a properly selected jury. The district court's judgment granting Crittenden's habeas petition is affirmed.


Jury selection in the state trial court took place between November 1988 and February 1989.2 Initially, a pool of over 60 prospective jurors completed questionnaires asking them about their backgrounds and beliefs. Question 56 asked about their feelings regarding the death penalty. Manzanita Casey was the only African–American prospective juror. In answer to question 56, she wrote, “I don't like to see anyone put to death.” She also wrote that she could set aside her personal feelings regarding what the law should be and follow the law as the court explained it.

After filling out the questionnaires, the prospective jurors appeared one-by-one for voir dire. During her voir dire, Casey reiterated her opposition to the death penalty. She also said, however, that her opposition would not prohibit her from voting for a first-degree murder conviction or the death penalty. At the conclusion of Casey's voir dire, the prosecutor challenged her for cause, “based upon her answer that she doesn't believe in the death penalty.” The court denied the for-cause challenge.

After each prospective juror completed voir dire and passed for-cause challenges, the prosecutor wrote a rating on his copy of that juror's questionnaire. He gave favorable jurors one to four “?s,” four being the most favorable, and gave unfavorable jurors one to four “X”s, four being the most unfavorable. The prosecutor rated Casey XXXX, the most unfavorable rating possible, and a rating he gave to only one other prospective juror of the over 50 who went through voir dire. The prosecutor later testified that, although he did not remember the basis for individual ratings, his general practice was to rate prospective jurors primarily based on their position regarding the death penalty— “Xs were ... I would say, to a person, you were opposed to the death penalty and strongly stated it.... Checkmarks were people who either were for the death penalty or medium ground that I thought to some degree I would be able to tolerate having on the jury.” He testified he also considered “people's backgrounds, whether they're employed, homeowners, what they had to lose. I wanted people who had something to lose in society, who might be victims of crime, solid citizens, preferably well educated.”

804 F.3d 1004

A pool of over 40 prospective jurors who had gone through voir dire—including Casey—returned in February 1989 for the exercise of peremptory challenges. The court seated an initial group of 12 jurors. The prosecution and defense were allowed 26 peremptory challenges each. When a prospective juror was challenged, the court would seat another prospective juror who had gone through voir dire. The prosecutor based his challenges primarily on his ratings. He challenged all jurors who received one or more Xs.

Casey was seated after the prosecution's 13th challenge. The prosecutor used his 14th challenge against a juror who had received one ?. He then used his 15th challenge against Casey. At the time Casey was challenged, only one other seated juror had received an unfavorable rating (i.e., one or more Xs). After Casey was challenged, Crittenden immediately moved for a mistrial under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), arguing the peremptory challenge was motivated by race. Wheeler is the California procedural equivalent of Batson, and serves as an implicit Batson objection for purposes of preserving a Batson claim. See Crittenden I, 624 F.3d at 951 n. 2. A Batson/Wheeler claim 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.’ ” Cook, 593 F.3d at 814 (quoting Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir.2009) ).

In moving for a mistrial, Crittenden argued he had made a prima facie showing because:...

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