Simon v. Asuncion

• Decision Date: 19 December 2017
• Docket Number: CASE NO. CV 17-3361 SS
• Court: U.S. District Court — Central District of California
• Parties: HERBERT LEE SIMON, SR., Petitioner, v. DEBBIE ASUNCION, Warden, Respondent.

HERBERT LEE SIMON, SR., Petitioner, v. DEBBIE ASUNCION, Warden, Respondent.

CASE NO. CV 17-3361 SS

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

December 19, 2017

MEMORANDUM DECISION AND ORDER

I.INTRODUCTION

Effective April 24, 2017, Herbert Lee Simon, Sr. ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition").¹ (Dkt. No. 1). On August 3, 2017, Respondent filed an Answer to the Petition withan accompanying Memorandum of Points and Authorities ("Mem."). (Dkt. No. 12). Respondent also lodged documents from Petitioner's state proceedings, including the Clerk's Transcript ("CT"), Reporter's Transcript ("RT") and Augmented Reporter's Transcript ("ART"). (Dkt. No. 13). Petitioner filed a Reply on September 5, 2017. (Dkt. No. 16).

The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 2, 14-15). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED WITH PREJUDICE.

II.PRIOR PROCEEDINGS

On July 28, 2014, a Los Angeles County Superior Court jury convicted Petitioner of attempting to dissuade a witness in violation of California Penal Code ("P.C.") § 136.1(a)(2) and inflicting corporal injury on a spouse or cohabitant in violation of P.C. § 273.5(a).² (CT 300-01, 308-09; RT 3008-13). As to the latter offense, the jury found true allegations that Petitioner personally inflicted great bodily injury within the meaning of P.C. § 12022.7(e) and personally used a knife within the meaning of P.C. § 12022(b)(1). (CT 301, 309; RT 3010-11). On August 4, 2014, Petitioner admitted he had suffered a prior "strike" conviction under California's Three Strikes Law, P.C. §§ 667(b)-(i),1170.12(a)-(d), and two prior serious felony convictions within the meaning of P.C. § 667(a)(1). (CT 332-33; RT 3316-17). That same day, the trial court sentenced Petitioner to 19 years and 4 months in state prison. (CT 332-36; RT 3319-22).

Petitioner appealed his convictions and sentence to the California Court of Appeal (2d App. Dist., Div. 1), which affirmed the judgment in an unpublished decision filed January 29, 2016. (Lodgments 4-7). On March 3, 2016, Petitioner filed a petition for review in the California Supreme Court, which denied the petition on April 13, 2016. (Lodgments 8-9).

III.FACTUAL BACKGROUND

The following facts, taken from the California Court of Appeal's unpublished decision on direct review, have not been rebutted with clear and convincing evidence and are therefore presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

On October 15, 2013, [Petitioner] stabbed his girlfriend with a knife. The police officers who detained him observed him to behave erratically, and he told a nurse at the police station that he had taken PCP and cocaine before the incident. As the case neared trial, jail officials recorded phone calls in which [Petitioner] told his girlfriend not to come to court totestify, and that if she did come to court, she should testify that she could not remember what happened or who stabbed her.

(Lodgment 7 at 2).

IV.PETITIONER'S CLAIM

Petitioner's only ground for habeas corpus relief is that the trial court erred when it denied the two Batson/Wheeler³ motions Petitioner made during jury selection. (Petition at 4-9).

V.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or was based uponan unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C. § 2254(d)). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted).

Petitioner raised his claim in his petition for review to the California Supreme Court, which denied the petition without comment or citation to authority. (Lodgments 8-9). The Court "looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) ("[W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision - whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013). Therefore, the Court will consider the California Court of Appeal's reasoned opinion denying Petitioner's claim. Berghuis v. Thompkins, 560 U.S. 370, 380 (2010).

VI.DISCUSSION

Petitioner argues that the trial court violated his constitutional rights when it denied his two Batson motions. (Petition at 4-9).

A. Legal Standard Governing Batson Claims

A prosecutor's discriminatory use of peremptory challenges on the basis of race violates the Equal Protection Clause of the United States Constitution. Miller-El v. Dretke ("Miller-El II"), 545 U.S. 231, 237-40 (2005); Batson v. Kentucky, 476 U.S. 79, 89 (1986); see also United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000) ("Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race."). Indeed, "[t]he 'Constitution forbids striking even a single prospective juror for a discriminatory purpose.'" Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).

"Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race." Snyder, 552 U.S. at 472; Batson, 476 U.S. at 96-98. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race." Rice v. Collins, 546U.S. 333, 338 (2006); Batson, 476 U.S. at 96-97. "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170 (2005).

"Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes." Johnson, 545 U.S. at 168 (quoting Batson, 476 U.S. at 94); Snyder, 552 U.S. at 476-77. "Although the prosecutor must present a comprehensible reason, '[t]he second step of this process does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices." Collins, 546 U.S. at 338 (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per curiam)).

"Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" Johnson, 545 U.S. at 168 (quoting Elem, 514 U.S. at 767); Batson, 476 U.S. at 98. "This final step involves evaluating 'the persuasiveness of the justification' proffered by the prosecutor, but 'the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.'" Collins, 546 U.S. at 338 (quoting Elem, 514 U.S. at 768); see also Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) ("The opponent of the strike bears the burden of persuasion regarding racial motivation[.]").The same test applies whether or not the defendant and the excluded jurors are of the same race. Powers v. Ohio, 499 U.S. 400, 415 (1991); Paulino v. Castro, 371 F.3d 1083, 1090-91 n.6 (9th Cir. 2004).

B. The Voir Dire Proceedings

The California Court of Appeal found the following facts underlying Petitioner's Batson claim:

During jury selection, the prosecution used peremptory challenges to remove two African-American men from the jury pool. In each case, [Petitioner] objected, contending that the prosecutor's action constituted purposeful discrimination on the basis of race. [Petitioner] himself is African-American. In each case, the trial court found that [Petitioner] had established a prima facie case of racial discrimination, but that the peremptory challenge could stand because the prosecution had articulated a race-neutral explanation for the challenge.

A. Prospective Juror No. 9

Prospective Juror No. 9 was an African-American man from Gardena who was married with four children, and had retired from a job at California State University at Long Beach. He had previously served on four juries, all ofwhich reached verdicts. During voir dire, he stated, "I don't think mental illness should be a pass for someone committing a crime." He also stated that if there were an insanity plea at issue in a case, he would hope to have prior medical documentation of the defendant's mental condition. Prospective Juror No. 9 stated that he had once been falsely accused of domestic violence, but believed that there were real instances of domestic violence. He also stated that nothing in his history would prevent him from voting to convict a defendant of a domestic violence offense if the prosecution proved its case.

[Peti

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