Love v. Scribner

• Decision Date: 18 February 2010
• Docket Number: Case No. 06cv640-WQH-RBB.
• Citation: 691 F. Supp.2d 1215
• Court: U.S. District Court — Southern District of California
• Parties: Alfredrick LOVE, Petitioner, v. L.E. SCRIBNER, Warden, Respondent.

691 F. Supp.2d 1215

Alfredrick LOVE, Petitioner, v. L.E. SCRIBNER, Warden, Respondent.

Case No. 06cv640-WQH-RBB.

United States District Court, S.D. California.

February 18, 2010.

James Fife, Federal Defenders of San Diego, San Diego, CA, for Petitioner.

ORDER

HAYES, District Judge:

The matter before the Court is the Report and Recommendation (Doc. # 55) of Magistrate Judge Ruben B. Brooks, filed on November 30, 2009, recommending that the Court grant Petitioner Alfredrick Love's Petition for Writ of Habeas Corpus (Doc. # 1), unless Love is retried within a reasonable period of time.

BACKGROUND

In July of 2003, Love, an African-American, was tried and convicted in state court of battery on a non-confined person by a prisoner. During jury selection, after consideration of hardships, only one remaining venire-member was African-American, Gloria McGee. During the second day of jury selection, July 21, 2003, Assistant District Attorney Eric Baker exercised a peremptory challenge to excuse McGee from the jury panel.

Love made a timely objection to the prosecution's excusing McGee, arguing that the prosecution's peremptory challenge was racially motivated. The prosecution stated that McGee was excused because:

she's a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal—my personal jury selection. Teachers and social workers don't sit on the jury. I referred to Chris Kowalski's notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution.

(Jt. Mot. to File Copy of Trans. at 371-72, Doc. # 45).¹ Love responded by saying that,

From my notes, she's not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem—conventionally she would be leaning toward the District Attorney. The only thing I can see that you would possibly dismiss her for is that she's African/American.

Id. at 372.²

The state trial court denied Love's challenge to the prosecution's use of its peremptory challenge on the grounds that Love did not make out a prima facie case of purposeful discrimination because Love was unable to show a "pattern" of racially motivated peremptory strikes. Id. Alternatively, the trial court denied Love's challenge on the grounds that the prosecution stated a reasonable race-neutral explanation for excusing the lone remaining African-American member of the jury pool. Id. at 372-73.

On June 16, 2004, Love filed an appeal, arguing that he was entitled to a new trial based upon the prosecution's racially motivated use of a peremptory challenge. On February 2, 2005, the California Court of Appeal affirmed the conviction.

On March 22, 2006, Love filed a Petition for Writ of Habeas Corpus in this Court. (Doc. # 1). On September 7, 2006, the Magistrate Judge issued a report and recommendation recommending that Love's Petition be denied. (Doc. # 11). On January 19, 2007, 2007 WL 173895, this Court adopted the report and recommendation and ordered judgment to be entered. (Doc. # 15).

On March 19, 2008, 278 Fed.Appx. 714, the Ninth Circuit reversed the judgment. (Doc. # 25). The Ninth Circuit stated:

Because the California Court of Appeal `unreasonably applied ... clearly established Federal Law,' 28 U.S.C. § 2254(d)(1), with respect to the comparative analysis, the inquiry into whether the prosecutor's reason for rejecting the black juror was pretextual must be determined de novo on federal habeas.

The dissent maintains that we can determine on the current record that there was no pretext, because the prosecutor did strike all the social workers, although not all the teachers. This analysis repeats the error of the California Court of Appeal. The prosecutor's stated reason applied to both teachers and social workers.... Where, as here, the prosecutor's stated reason does not hold up, `its retextual significance does not fade,' Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), because an appellate judge, looking at the record, can construct a different rationale, here an antipathy toward social workers but not teachers.

The record, as it stands, does not provide an adequate basis for determining de novo whether the real reason the prosecutor struck Ms. M. was her race. The state trial court did not allow Love to examine the prosecutor's actual reasons for keeping teaching-connected individuals, while striking Ms. M. from the jury....

Under the circumstances, the appropriate remedy is a remand for an evidentiary hearing.

We therefore reverse and remand for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race. If, on remand, the district court finds discrimination, the petition shall be granted. If, however, the district court finds no discrimination, the judgment denying the petition shall be reinstated.

Love v. Scribner, 278 Fed.Appx. 714, 718 (9th Cir.2008) (citations omitted).

On July 14, 2008, this Court referred the case to the Magistrate Judge following remand from the Ninth Circuit. (Doc. # 28). On March 12, 2009, the Magistrate Judge conducted an evidentiary hearing, at which two witnesses testified: Baker and Love. (Doc. # 43, 44-1).

On November 30, 2009, the Magistrate Judge issued the Report and Recommendation. (Doc. # 55).

A. Report and Recommendation

1. Motion to Strike Petitioner's Exhibit B

Petitioner attached a transcript of a December 2008 interview of Baker as Exhibit B to Petitioner's post-evidentiary-hearing brief. (Doc. # 48). The interview was conducted by Respondent's counsel, and a transcript of the interview was prepared and provided to Petitioner's counsel. At the evidentiary hearing, neither counsel for Petitioner nor counsel for Respondent sought to introduce the interview transcript into evidence, although both referred to the prior interview.

The Magistrate Judge granted Respondent's motion to strike the transcript. (Doc. # 55 at 17-22). The Magistrate Judge stated:

Petitioner was not diligent in seeking to expand the record after the close of evidence. The Baker interview transcript is not the type of post-evidentiary hearing material for which Rule 7 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 is suited. The interview was tape recorded and does not appear to have been given under oath. The transcript is not signed, was not reviewed, and the question-and-answer session took place long after the filing of Love's habeas Petition. The content of the interview is not especially important or probative and does little to `clarify the relevant facts.'

(Doc. # 55 at 22 (quoting Vasquez v. Hillery, 474 U.S. 254, 258, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986))).

2. Batson³ Challenge

In the Report and Recommendation, the Magistrate Judge analyzed Love's Batson challenge at length, and concluded:

Baker's categorical explanation for striking McGee—teachers and social workers don't sit on the jury—was not consistently applied. He challenged McGee but permitted non-African-Americans who were teachers or had a teaching-related occupation to serve on the jury. Alternatively, if being a teacher or social worker was only one of many factors the prosecutor generally considered, Baker was unable to articulate any additional reasons he had for challenging McGee. He did not identify any of his guidelines as the actual reason for challenging her or not challenging others. The prosecutor simply did not recall what he had done five and one-half years earlier. In Love's case, additional reasons did not come from Baker, but from Respondent's counsel. Her speculation is not entitled to any weight. The evidence indicates that the peremptory strike was racially motivated.

On July 21, 2003, Baker struck the only African-American seated on the jury to try this African-American defendant. Love has proven, by a preponderance of the evidence, that the prosecutor did not strike McGee from the jury simply because she was an eligibility worker. The circumstances of that peremptory strike, Baker's inability to articulate a credible explanation for the strike, and a comparative analysis of McGee and jurors who were permitted to serve are sufficient to conclude that Baker used a peremptory challenge to eliminate McGee from the jury because she was African-American. The prosecutor's strike violated the Equal Protection Clause as described in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court recommends that unless Love is retried within a reasonable period to be set by the district court, his Petition for Writ of Habeas Corpus be GRANTED.

(Doc. # 55 at 47-48).

B. Objections to the Report and Recommendation

On December 17, 2009, Respondent filed objections to the Report and Recommendation (Doc. # 57), and on December 18, 2009, Petitioner filed objections to the Report and Recommendation (Doc. # 58). On January 8, 2010, Petitioner filed a reply to Respondent's objections. (Doc. # 59).

1. Respondent's Objections

Respondent summarized his objections as follows:

First, the Magistrate Judge ignored the circumstantial evidence presented regarding the prosecutor's motives. The prosecutor testified to the characteristics he was looking for in Petitioner's jury. He testified regarding the types of jurors he favored and disfavored at the time and stated that he applied those standards and preferences while selecting Petitioner's jury. The Magistrate Judge ignored this testimony and categorized it as the prosecutor's or Respondents counsel's speculation. There is nothing speculative about testifying to one's habit and practices. There is no legal cause for disregarding the prosecutor's testimony regarding the practices he applied during Petitioner's trial.

Additionally, the Magistrate Judge found the state had an obligation to present the prosecutor's actual reasons for retaining each of the teaching-connected jurors that

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