Johnson v. Finn

• Decision Date: 08 December 2011
• Docket Number: No. 10–15641.,10–15641.
• Citation: 11 Cal. Daily Op. Serv. 14777,665 F.3d 1063,2011 Daily Journal D.A.R. 17663
• Parties: Alonzo Deon JOHNSON; Darryl Thompson, Petitioners–Appellants, v. Claude E. FINN, Warden; Attorney General for the State of California; Tom L. Carey, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 14,777
2011 Daily Journal D.A.R. 17,663
665 F.3d 1063

Alonzo Deon JOHNSON; Darryl Thompson, Petitioners–Appellants,
v.
Claude E. FINN, Warden; Attorney General for the State of California; Tom L. Carey, Respondents–Appellees.

No. 10–15641.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 2011.Filed Dec. 8, 2011.

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Daniel J. Broderick, Federal Defender; David M. Porter (argued), Assistant Federal Defender, Sacramento, CA; for the petitioners-appellants.

Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; Catherine Chatman, Supervising Deputy Attorney General; R. Todd Marshall (argued), Deputy Attorney General, Sacramento, CA; for the respondents-appellees.

Appeal from the United States District Court for the Eastern District of California, John A. Mendez, District Judge, Presiding. D.C. Nos. 2:03–cv–02063–JAM–JFM, 2:04–cv–02208–JAM–JFM.Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and A. WALLACE TASHIMA, Circuit Judges.OPINION REINHARDT, Circuit Judge:

Alonzo Deon Johnson and Darrell Thompson, California state prisoners, challenge the prosecution's use of peremptory strikes to exclude black jurors in their trial. A magistrate judge, after holding an evidentiary hearing at which the prosecutor testified, found that he had purposefully discriminated on the basis of race in exercising a peremptory strike against one of the black jurors. The district judge, without holding a new evidentiary hearing, rejected the magistrate judge's finding as to the prosecutor's lack of credibility in asserting race-neutral reasons for having

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stricken the juror. In doing so, the district judge denied Johnson and Thompson the process that they were constitutionally due.

We hold that the rule of United States v. Ridgway, 300 F.3d 1153 (9th Cir.2002), extends to determinations by a magistrate judge as to the credibility of a prosecutor's testimony at the second and third steps of the inquiry required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Ridgway, we held that the Due Process Clause required “that a district court ... conduct its own evidentiary hearing before rejecting a magistrate judge's credibility findings made after a hearing on a motion to suppress.” 300 F.3d at 1154. As in Ridgway, an in-person evaluation of a witness's demeanor—here, that of the prosecutor—is essential to the kind of determination that the district judge was required to make: “In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.” Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The district judge erred by declining the opportunity to observe the trial prosecutor's demeanor before rejecting the magistrate judge's adverse credibility finding.

We therefore vacate the district court's denial of the writ of habeas corpus and remand for the district judge either to accept the magistrate judge's credibility finding or to conduct a new evidentiary hearing. We retain jurisdiction over any appeal from the district court's judgment.

I

In 2000, Johnson and Thompson were tried together for murder and other charges in the death of Rafael Palacios. They were acquitted of murder but convicted of shooting at an occupied motor vehicle and, in Thompson's case, of willfully participating in a street gang and being a felon in possession of a firearm. Several sentence enhancements were found to apply in each case.

During the jury selection phase of their trial, Johnson and Thompson raised objections under Batson and its state-law cognate, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), to the prosecution's use of peremptory challenges against three black jurors: W.J., E.G., and W.T. The trial court found in each case that Johnson and Thompson “had failed to make a prima facie showing that the prosecutor had an invidious basis for the peremptory challenge.”

After exhausting his remedies in state court, including an appeal before the intermediate state appellate court and a petition for review that the state supreme court declined to hear, Johnson filed a timely petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of California. Thompson did the same in the Northern District of California. Thompson's case was transferred to the Eastern District, the state filed answers to both petitions, and the district court deemed the cases related.

Magistrate Judge John F. Moulds issued an order concluding that the California Court of Appeal had applied an incorrect legal standard in determining whether Johnson and Thompson had established a prima facie case of racial discrimination. The magistrate judge therefore determined that he would evaluate Johnson and Thompson's Batson claim de novo, without affording deference under the Anti–Terrorism and Effective Death Penalty Act

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(AEDPA). The magistrate judge found that Johnson and Thompson had made a prima facie showing of racial discrimination as to each of the three black jurors whose strikes were at issue. Recognizing that under Batson, “the burden shifts to the state to explain the racial exclusion by offering permissible race-neutral justifications for his strikes,” the magistrate judge ordered an evidentiary hearing, as the state had “never been required to present evidence of the prosecutor's actual, non-discriminatory reasons for striking the three black jurors.”

After hearing testimony from the trial prosecutor, the magistrate judge issued a forty-three-page report of findings and recommendations. The finding that concerns us here is the magistrate judge's determination that the prosecutor's asserted race-neutral reasons for striking W.J. were not his genuine reasons for doing so. Upon conducting a thorough comparative juror analysis, the magistrate judge concluded that “[a] comparison between [W.J.] and ... other jurors fatally undermines the credibility of the prosecutor's stated justification for excusing [W.J.] and demonstrates that [W.J.'s] youth, marital status, residence and poor spelling”—all reasons that the prosecutor had given—“could not have genuinely motivated the prosecutor to strike him.” The magistrate judge also found that “the prosecutor's failure to ask follow-up voir dire in an effort to clear up his alleged concerns[ ] suggests he made up nonracial reasons to strike [W.J.].” The magistrate judge therefore found that the prosecutor's “stated reasons for excluding [W.J.] were a pretext for eliminating him from the jury on account of his race”—in other words, that the prosecutor's testimony as to the strike of W.J. was not credible. The magistrate judge found that the prosecutor had not discriminated in striking the other two black jurors, E.G. and W.T.

The district judge, in a four-page order, upheld the magistrate judge's findings and recommendations—including those concerning the inapplicability of AEDPA deference—except for the determination that the prosecutor's asserted reasons for striking W.J. were pretextual. The district judge found that Johnson and Thompson did not show “that the totality of circumstances raises an inference that the strike was motivated by race.” He found that the prosecutor “put forward evidence of legitimate, race-neutral reasons for exercising a peremptory challenge against” W.J. and that Johnson and Thompson failed to “prove purposeful racial discrimination by the prosecutor.” In short, the district judge rejected the magistrate judge's finding as to the prosecutor's lack of credibility. Whereas the magistrate judge found that the prosecutor's asserted reasons were not his actual reasons for striking W.J., the district judge found that the prosecutor struck W.J. for “legitimate, race-neutral reasons.” This appeal followed.

II

Before considering whether the district judge was required to hold a new evidentiary hearing in order to reject the credibility determination of the magistrate judge, we must address two threshold questions as to whether it was necessary to hold an evidentiary hearing in the first instance. The first is whether AEDPA deference applies in this case to the state courts' determination at the first step of the inquiry required by Batson. We answer this question in the negative, which raises a second question: did Johnson and Thompson, on the basis of the state record, make the requisite prima facie showing of discrimination? We answer that question in the affirmative.

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A

Under AEDPA, no federal court may grant a writ of habeas corpus unless the state courts adjudicated the petitioner's claim in a manner that “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). “When a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law,” however, “the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). The question here is whether the state courts' adjudication of Johnson and Thompson's Batson claim was “dependent on an antecedent unreasonable application of federal law,” id.—namely, whether the state courts applied the proper standard in determining whether Johnson and Thompson made a prima facie showing of racial discrimination. In answering that question, “[w]e review the state court's last reasoned decision,” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir.2010), which was in...