McDaniels v. Kirkland

• Decision Date: 24 December 2015
• Docket Number: 11–15030.,Nos. 09–17339,s. 09–17339
• Citation: 813 F.3d 770
• Parties: Robert McDANIELS, Petitioner–Appellant, v. Richard J. KIRKLAND, Warden, Respondent–Appellee. Keelon T. Jenkins, Petitioner–Appellant, v. Michael S. Evans, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

813 F.3d 770

Robert McDANIELS, Petitioner–Appellant,

v.Richard J. KIRKLAND, Warden, Respondent–Appellee.

Keelon T. Jenkins, Petitioner–Appellant,

v.Michael S. Evans, Warden, Respondent–Appellee.

Nos. 09–17339

11–15030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 16, 2015.

Filed Dec. 24, 2015.

Jovita P. Tamorand Richard A. Tamor, Tamor & Tamor, Oakland, California, for Petitioner–Appellant Robert McDaniels.

Albert Joel Kutchins(argued), Berkeley, CA, for Petitioner–Appellant Keelon T. Jenkins.

Arthur P. Beever (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Office of the Attorney General, San Francisco, CA, for Respondent–Appellee Richard Kirkland, Warden.

Arthur P. Beever (argued), Deputy Attorney General; Pamela K. Critchfield, Deputy Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Office of the Attorney General, San Francisco, CA, for Respondent–Appellee Michael Evans, Warden.

Joy G. Kimand David J. Berger, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA; Allison Elgartand Eva Paterson, Equal Justice Society, Oakland, CA, for Amici Curiae Civil Rights Organizations.

Before: SIDNEY R. THOMAS, Chief Judge and HARRY PREGERSON, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, MARSHA S. BERZON, RICHARD C. TALLMAN, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, MORGAN CHRISTEN, ANDREW D. HURWITZand MICHELLE T. FRIEDLAND, Circuit Judges.

Opinion by Judge FRIEDLAND; Concurrence by Judge IKUTA.

OPINION

FRIEDLAND, Circuit Judge:

After a jury in California Superior Court convicted them each of murder, Robert McDaniels and Keelon Jenkins challenged their convictions in the California Court of Appeal. McDaniels and Jenkins argued that the prosecution had made racially motivated peremptory strikes during pre-trial jury selection. They did not, however, move to place the entire record of voir dire before the California Court of Appeal, nor did they ask that court to perform a comprehensive comparative juror analysis. The California Court of Appeal affirmed their convictions. McDaniels and Jenkins then filed federal petitions for writs of habeas corpus, which were denied by the district court.

We took their appeals en banc to clarify the scope of the record that federal courts may consider in habeas cases in which certain evidence was presented to the state trial court but not to any state appellate court. We conclude that, in such cases, federal courts may consider the entire state-court record, including evidence that was presented only to the trial court. We also consider and reject Petitioners' arguments that the California Court of Appeal's approach to evaluating Petitioners' challenges to the prosecution's peremptory strikes violated clearly established law. Having done so, we return the case to the original three-judge panel to evaluate whether, in light of the whole state-court record, the California Court of Appeal's rejection of Petitioners' challenges to the strikes was based on an unreasonable determination of the facts.

I.

McDaniels and Jenkins were tried together for murder in California Superior Court. During voir dire, the prosecution used peremptory challenges to strike seven of ten African–American prospective jurors from the venire. McDaniels and Jenkins objected, arguing that the prosecution's peremptory challenges were racially motivated in violation of People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Wheeler is "the California procedural equivalent of" Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which prohibits the use of racially motivated peremptory challenges as a matter of federal law. Crittenden v. Ayers, 624 F.3d 943, 951 n. 2 (9th Cir.2010). "[A] Wheeler motion serves as an implicit Batson objection." Id.

Batson requires trial courts to follow three steps in adjudicating claims of racial discrimination during voir dire:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015).

Proceeding in accordance with this framework, the state trial court first found that the defendants had made a prima facie showing that the prosecution had made peremptory challenges on the basis of race. The prosecutor then offered justifications for the four peremptory challenges, arguing that his reasons for striking the jurors were all race-neutral. After hearing the prosecutor's proffered justifications, the state trial court rejected the defendants' Batson/Wheeler challenges. The trial court found the prosecutor's reasons for the peremptory strikes to be race-neutral, and concluded that "[i]t didn't appear here to be any type of racism going on."

The trial proceeded, and the jury found McDaniels and Jenkins guilty of murder. McDaniels and Jenkins renewed their Batson/Wheeler claims on appeal to the California Court of Appeal, which affirmed their convictions. See People v. Jenkins, No. A095527, 2003 WL 22881662 (Cal.Ct.App. Nov. 25, 2003)(unpublished).

Responding to the defendants' argument that, generally, "only African–American potential jurors were asked whether they could convict even if they felt sympathetic toward the defendants," the California Court of Appeal observed that "Jenkins identifies no less than six other jurors who were queried on this point." Id. at *4. Additionally, the court stated that "[e]vidence supporting such 'comparative juror analysis' is properly considered on appeal only if it was presented to the trial court," and noted that "neither [Jenkins] nor McDaniels made this argument below." Id. The California Court of Appeal did not otherwise discuss comparative juror analysis, and it appears that neither McDaniels nor Jenkins requested that it do so.

The California Court of Appeal actually could not have conducted a comprehensive comparative juror analysis using the portions of the record in its direct possession because those portions did not include the entire record of voir dire. The trial judge had asked each prospective juror to complete a written questionnaire, but the portions of the record the parties presented to the California Court of Appeal did not include those questionnaires. The court also lacked a transcript of the first day of voir dire. There is no indication, however, that anything prevented McDaniels and Jenkins from adding this missing evidence to the record or that the California Court of Appeal was unable to exercise its discretion to do so sua sponte. See Cal. R. Ct. 12(2002) (providing a procedure for "[a]ugmenting and correcting the record" on appeal "on motion of a party or [the reviewing court's] own motion").¹ On the contrary, McDaniels and Jenkins successfully augmented the record on appeal with other materials at least once.

McDaniels and Jenkins sought review in the California Supreme Court, which was denied. After unsuccessfully seeking state post-conviction review, they both then filed federal habeas petitions reasserting their Batson claims. The habeas petitions were assigned to different judges of the U.S. District Court for the Northern District of California. The evidence before the federal district court included the juror questionnaires for the seated and alternate jurors and the transcript from the first day of voir dire, which had not been presented to the California Court of Appeal.² The district court denied habeas relief in each case. Petitioners appealed, and their appeals were consolidated.

The three-judge panel that initially heard this appeal held that it could not consider the juror questionnaires or the transcript of the first day of voir dire—even though those materials were before the state trial court—because they were not presented to the California Court of Appeal. McDaniels v. Kirkland, 760 F.3d 933, 941–42 (9th Cir.2014). We had previously held in an unrelated case, however, that a federal habeas court may consider evidence that was before the state trial court, whether or not that evidence was subsequently presented to a state appellate court. Jamerson v. Runnels, 713 F.3d 1218, 1226–27 (9th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 1285, 188 L.Ed.2d 314 (2014). Faced with this tension, we granted rehearing en banc. McDaniels v. Kirkland, 778 F.3d 1100, 1101 (9th Cir.2015).

II.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat. 1214,sharply limits the availability of federal habeas relief. We may not grant habeas relief to "a person in custody pursuant to the judgment of a State court ... with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A Batson challenge may implicate either or both prongs of § 2254(d).

III.

We first consider whether the California Court of Appeal's decision was "contrary to" or "an unreasonable application of" clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d)(1). We conclude that it was not.

A.

Petitioners argue that the California Court of Appeal should have augmented the appellate record sua sponte to conduct comparative juror analysis based on the...