Jones v. Gomez

• Citation: 66 F.3d 199
• Decision Date: 15 September 1995
• Docket Number: No. 94-16265,94-16265
• Parties: 95 Cal. Daily Op. Serv. 7283, 95 Daily Journal D.A.R. 12,425 Calvin JONES, Petitioner-Appellant, v. A.A. GOMEZ, Warden, and John K. Van De Kamp, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 199

66 F.3d 199

95 Cal. Daily Op. Serv. 7283, 95 Daily Journal

D.A.R. 12,425

Calvin JONES, Petitioner-Appellant, v. A.A. GOMEZ, Warden, and John K. Van De Kamp, Respondents-Appellees.

No. 94-16265.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 1995.

Decided Sept. 15, 1995.

Ann C. McClintock, Assistant Federal Public Defender, Sacramento, CA, for petitioner-appellant.

Arnold O. Overoye, Assistant Attorney General, Sacramento, CA, for respondents-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before HALL, WIGGINS, and LEAVY, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Calvin Jones appeals the district court's denial of his petition for a writ of habeas corpus. In this court, Jones presses three issues he argues entitle him to habeas relief: (1) racial discrimination in the prosecutor's exercise of peremptory challenges; (2) failure of the prosecution to disclose Brady material; and (3) ineffective assistance of trial counsel. We review the district court's denial of habeas relief de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). We affirm.

FACTS

In 1983, Jones was convicted in California state court of the 1973 first degree murder of Jones's business partner, Anthony Virgilio. Jones was charged together with a codefendant, Rosalio Estrada. When the trial began, both Jones and Estrada were still in the case; some time after jury selection was completed, however, the state dismissed the charges against Estrada.

The most difficult issue involved in this appeal concerns events that took place during jury selection. Jones is African American and Estrada is Hispanic. Estrada objected to the prosecution's exercise of peremptory challenges against one African American venireperson and three Hispanic venirepersons. Jones joined in the motion, which was brought under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), California's precursor to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The state trial court heard extensive argument on the Wheeler motion and later issued a written opinion. Although the prosecution proferred several facially race-neutral reasons for each of the peremptory challenges at issue, the trial judge was clearly troubled by the prosecutor's apparently racial motivations. Nevertheless, the trial court declined to "totally disregard" the prosecutor's race-neutral explanations for the strikes, and ultimately denied the motion. The California Court of Appeal, in a written disposition, found substantial evidence to support the Jones's conviction became final when the United States Supreme Court denied his petition for a writ of certiorari, on October 6, 1986. The present habeas corpus action was commenced in the district court in December 1990. The district court denied the petition and Jones appeals.

trial court's finding that the peremptory challenges were not solely race-based. The California Supreme Court denied direct review.

DISCUSSION

1. Racial discrimination during jury selection.

Jones contends that his conviction must be set aside because the prosecutor exercised peremptory strikes against potential jurors, including one African American and three Hispanics, in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Batson held that an African American defendant stated an Equal Protection claim based on allegations that the prosecutor at his trial had exercised peremptory strikes in a manner allegedly intended to prevent any African Americans from serving on the petit jury. 476 U.S. at 96-98, 106 S.Ct. at 1722-24. Five years later, Powers held that a Batson-based Equal Protection claim did not require racial identity between the defendant and the venirepersons allegedly discriminated against by the prosecutor's used of peremptory challenges. 499 U.S. at 406, 111 S.Ct. at 1368.

(a) African American venireperson

Jones, who is African American, can challenge the removal of the African American venireperson under Batson itself, which involved same-race challenges. Batson was decided by the Supreme Court on April 30, 1986, approximately five months before Jones's conviction became final on direct appeal. We therefore apply Batson retroactively on collateral review to Jones's claim regarding the African American potential juror. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) (plurality opinion).

Under Batson and its progeny, courts apply a three-step analysis to claims of racial discrimination in the exercise of peremptory challenges:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991) (plurality opinion) (citations omitted). The Supreme Court's recent decision in Purkett v. Elem, --- U.S. ----, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), is particularly instructive because the Court made clear that the prosecution is not required to put forth race-neutral reasons that are "persuasive, or even plausible." Id. at ----, 115 S.Ct. at 1771. Instead, the explanations must simply be nondiscriminatory. Id. Elem also confirmed that the trial court's finding at the third step of the Batson analysis, the ultimate determination of whether the prosecutor acted with discriminatory intent, is a question of fact "which turn[s] primarily on an assessment of credibility." Id. at ----, 115 S.Ct. at 1772.

With respect to the one African American venireperson at issue in the present case, the district court properly applied the presumption of correctness of state court factual findings, 28 U.S.C. Sec. 2254(d), and found the state trial court's ultimate finding of no racial discrimination against this potential juror to be amply supported by the record. The prosecutor explained at the Wheeler hearing in the trial court that he had exercised the strike against this potential juror because she had expressed reluctance to serve, had a son-in-law who had committed murder, and had two children employed by the California Department of Corrections, for whose safety she feared should she vote to convict Jones. As the trial court and California Court of Appeal noted, these reasons may have been enough to support a challenge for cause.

We note that the trial court, while finding the issue to be a close one, answered the ultimate question of discriminatory intent in the negative, after a comprehensive hearing and full written findings. The California Court of Appeal affirmed. The district court agreed. Based upon our review of the record, and in light of the concordance of these three other courts, we decline to upset the trial court's findings.

(b) Hispanic venirepersons

As to the three Hispanic potential jurors, the district court found that Jones's discrimination claim could only be brought under Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which the Supreme Court first applied an Equal Protection analysis to a cross-racial challenge. Powers was decided in 1991, well after Jones's conviction became final on direct appeal. The district court concluded that Powers announced a new rule of law and could not therefore be applied retroactively to Jones's case on collateral review. See, e.g., Teague, 489 U.S. at 310, 109 S.Ct. at 1075 (plurality opinion).

The applicability of Teague's prohibition against retroactive operation of new rules of law on collateral review is a threshold issue which we must address before reaching the merits of a claim. Caspari v. Bohlen, --- U.S. ----, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (citing Graham v. Collins, --- U.S. ----, ----, 113 S.Ct. 892, 894, 122 L.Ed.2d 260 (1993)). We agree with the district court that Powers announced a new rule from which Jones may not benefit on collateral review.

To decide whether a habeas petitioner seeks application of a new rule, we must "[s]urvey[ ] the legal landscape" as it existed when the petitioner's conviction became final on direct appeal. Graham, --- U.S. at ----, 113 S.Ct. at 898. A rule is "new" for Teague purposes if it was not "dictated by precedent existing at the time the defendant's conviction became final." Id. at ----, 113 S.Ct. at 897 (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070). Put another way, the "question is whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Goeke v. Branch, --- U.S. ----, ----, 115 S.Ct. 1275, 1277, 131 L.Ed.2d 152 (1995) (per curiam) (internal quotations and citations omitted).

On the date Jones's conviction became final, October 6, 1986, the most important landmark on the "legal landscape" we must survey was Batson itself. Batson is indisputably consistent with the cross-racial standing rule which Jones seeks to invoke. See Powers, 499 U.S. at 416, 111 S.Ct. at 1373 ("The emphasis in Batson on racial identity between the defendant and the excused prospective juror is not inconsistent with our holding today that race is irrelevant to a defendant's standing to object to the discriminatory use of peremptory challenges."). We cannot say, however, that in 1986 Batson "dictated" or "compelled" the rule later adopted by the Supreme Court in Powers.

The specificity with which the Supreme Court spelled out...