Tolbert v. Page

• Decision Date: 28 June 1999
• Docket Number: PETITIONER-APPELLANT,RESPONDENTS-APPELLEES,No. 97-55004,97-55004
• Citation: 182 F.3d 677
• Parties: (9th Cir. 1999) DARRYL TOLBERT,, v. GLENDA PAGE, PAROLE OFFICER, INTERSTATE PAROLE UNIT, CALIFORNIA DEPARTMENT OF CORRECTIONS; JAMES NIELSEN, CHAIRMAN, CALIFORNIA BOARD OF PRISON TERMS; THOMAS GIAQUINTO, THOMAS BORDONARO, JOHN GILLIS, MANUEL ORTEGA, DEAN SHELTON, ARTHUR VAN <A HREF="#fr1-1" name="fn1-1">1 MEMBERS, CALIFORNIA BOARD OF PRISON TERMS; CAL TERHUNE, <A HREF="#fr1-2" name="fn1-2">2 DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, U.S. Court of Appeals, Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 677

182 F.3d 677 (9th Cir. 1999)

DARRYL TOLBERT, PETITIONER-APPELLANT, v. GLENDA PAGE, PAROLE OFFICER, INTERSTATE PAROLE UNIT, CALIFORNIA DEPARTMENT OF CORRECTIONS; JAMES NIELSEN, CHAIRMAN, CALIFORNIA BOARD OF PRISON TERMS; THOMAS GIAQUINTO, THOMAS BORDONARO, JOHN GILLIS, MANUEL ORTEGA, DEAN SHELTON, ARTHUR VAN

COURT AND ED WILLIAMS,¹ MEMBERS, CALIFORNIA BOARD OF PRISON TERMS; CAL TERHUNE,² DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES.

No. 97-55004

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted February 18, 1999

Decided June 28, 1999

Michael B. Dashjian (argued), Solvang, California, for the petitioner-appellant.

Stephen M. Kaufman (argued), Deputy Attorney General, Los Angeles, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding D.C. No. CV-95-05666-GHK

Before: Procter Hug, Jr., Chief Judge, and James R. Browning, Harry Pregerson, Alex Kozinski, Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, Thomas G. Nelson, Michael Daly Hawkins, Susan P. Graber, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge

We must decide the standard by which we review a trial court's determination of whether there was unconstitutional prosecutorial discrimination in exercising a peremptory challenge of a juror in a criminal case.

I.

California state prisoner Darryl Tolbert appeals the district court's denial of his habeas petition challenging his California state court conviction for first-degree robbery. Tolbert contends his conviction should be set aside because the prosecution impermissibly used a peremptory challenge to strike a black man from the petit jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). At trial, defense counsel objected to the prosecution's peremptory challenge of a juror under People v. Wheeler, 22 Cal. 3d 258 (1978), the California equivalent of Batson. The state trial court Judge denied the defense motion, finding that Tolbert had failed to make a prima facie showing of discrimination. Tolbert's conviction was affirmed in the state appellate court and his petition for review was denied by the state supreme court.

Tolbert then filed a petition for writ of habeas corpus in federal district court, alleging a violation of his constitutional rights under Batson.³ The district court dismissed his petition and Tolbert timely appealed.

A three-Judge panel of this court, to which the appeal was assigned, discovered an irreconcilable conflict in this circuit's case law regarding the standard of review for rulings on the prosecution's use of peremptory challenges. We took this case en banc to resolve the conflict.

II.

In Swain v. Alabama, 380 U.S. 202, 203-04 (1965), the United States Supreme Court held that the purposeful exclusion of blacks from jury service violates the Equal Protection Clause. The Court sought to accommodate both the prosecutor's privilege of peremptorily challenging jurors and the newly promulgated constitutional prohibition against exclusion of jurors because of race. See id. at 219-24. Swain required the defendant to present a prima facie case that the peremptory challenge system was being used for a discriminatory purpose. See id. at 224. This requirement was a high hurdle for the defense, because the defendant had to show that the prosecutors had a practice of discriminatory use of peremptory challenges in "case after case." Id. at 223. In Swain, for example, even though the prosecutor struck six black jurors, the Court held that the evidence failed to show a prima facie case of discrimination. See id. at 224. The Court reasoned that "[t]he record is absolutely silent as to those instances in which the prosecution participated in striking Negroes, except for the indication that the prosecutor struck the Negroes in this case.... There is no evidence, however, of what the prosecution did or did not do on its own account in any cases other than the one at bar." Id. at 224-25. Thus, absent proof beyond the facts of a defendant's own case that the prosecutor was responsible for striking black jurors on account of race, a defendant could not maintain a Swain challenge.

In Batson, the Supreme Court sought to alleviate the defendant's "crippling burden of proof" under Swain, because the burden had rendered "prosecutors' peremptory challenges... largely immune from constitutional scrutiny." Batson, 476 U.S. at 92-93. Batson dramatically liberalized Swain's requirement that a defendant show that the prosecution pursued a practice of discriminatory use of peremptory challenges by reference to other cases. Under Batson, "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Id. at 96.

Batson promulgated a three-step test for evaluating the propriety of a peremptory challenge. First, the movant must make a prima facie showing that the prosecution has engaged in the discriminatory use of a peremptory challenge by demonstrating that the circumstances raise "an inference that the prosecutor used [the challenge] to exclude veniremen from the petit jury on account of their race."⁴ Id. Second, if the trial court determines a prima facie case has been established, the burden shifts to the prosecution to articulate a race-neutral explanation for challenging the juror in question. See id. at 97. Third, if the prosecution provides such an explanation, the trial court must then rule whether the movant has carried his or her burden of proving the existence of purposeful discrimination. See id. at 98.⁵

How we should review a trial court's decision that an inference of discrimination has or has not been raised at the prima facie step is unsettled. Indeed, we have directly conflicting precedents within our circuit. In United States v. VasquezLopez, 22 F.3d 900, 901 (9th Cir. 1994), and Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), we held that we review for clear error, while in Turner v. Marshall, 63 F.3d 807, 814 n.4 (9th Cir. 1995), we reviewed the trial Judge's prima facie case determination de novo.⁶

III.

Because it falls "somewhere between a pristine legal standard and a simple historical fact," whether a prima facie case determination is reviewed de novo or deferentially depends upon what are essentially practical considerations. See Miller v. Fenton, 474 U.S. 104, 114 (1985). This court has noted that, "in each case, the pivotal question is do the concerns of judicial administration favor the district court or do they favor the appellate court." United States v. McConney, 728 F.2d 1195, 1202 (9th Cir. 1984) (en banc); see also Miller, 474 U.S. at 114 ("[I]n those instances... in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of sound administration of Justice, one judicial actor is better positioned than another to decide the issue in question."); Koirala v. Thai Airways Int'l, Ltd., 126 F.3d 1205, 1210 (9th Cir. 1997) (holding that the existence of wilful misconduct under the Warsaw convention is a mixed question of fact and law and, "[a]s such, it may be subject either to clear error or de novo review, depending upon `the concerns of judicial administration.' " (citation omitted)). While "the concerns of judicial administration will generally favor the appellate court" and de novo review, particularly in cases implicating constitutional rights, McConney, 728 F.2d at 1202, "[t]here are... some types of mixed questions that are exceptions to this general predominance," id. at 1203. The McConney court explained that:

"If application of the rule of law to the facts requires an inquiry that is essentially factual--one that is founded on the application of the fact-finding tribunal's experience with the mainsprings of human conduct--the concerns of judicial administration will favor the district court, and the district court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo."

Id. at 1202 (internal quotation marks and citations omitted);⁷ see also United States v. Marbella, 73 F.3d 1508, 1515 (9th Cir. 1996) ("`When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate.' " (citation omitted)). Thus, if the Batson prima facie analysis "is essentially a factual inquiry," it generally will be "better suited for district court examination." Koirala, 126 F.3d at 1210. This is so even though the Batson inquiry implicates a defendant's constitutional rights. See Miller, 474 U.S. at 113 ("[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question.").

At the Batson prima facie showing step, the concerns of judicial administration tip in favor of the trial court and, therefore, a deferential standard of review prevails. Our Conclusion is based on the language of Batson itself, which describes the prima facie analysis as a "factual inquiry," Batson, 476 U.S. at 95, and makes clear that the trial court is to be the primary adjudicator of that analysis: "We have confidence that trial Judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges create[ ]...