Opinion
No. C 04-1418 CRB (PR).
July 26, 2005
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Contra Costa of five counts of attempted murder, along with gang and firearms use enhancements. On or about June 21, 2001, he was sentenced to 37 years to life in state prison.
The California Court of Appeal struck a three-year enhancement imposed under California Penal Code § 186.22, but otherwise affirmed the judgment of the trial court, and the Supreme Court of California denied review. The Supreme Court of California also denied petitioner's final petition for state habeas relief on November 19, 2003.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on August 16, 2004, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
On the morning of November 18, 1999, five young people were hanging out at the corner of Willard and Filbert Streets in North Richmond. A station wagon pulled up. There were at least three men in the station wagon. One, identified by the victims as appellant, had a gun, which he fired at the group, wounding four persons. There was evidence that appellant and the other men in the car were members of the "Gates," a splinter of a larger group known as the "Project Trojans." The Gates were involved in the sale of marijuana, and were engaged in a kind of turf war with a second group, identified as the Sanford group. The Sanford group and the Gates apparently had entered into a kind of agreement under which members of the Sanford group could continue to sell drugs but were required to pay a "tax" to the Gates. At some point, however, some of the younger people in the Sanford group stopped paying this tax. A member of the Sanford group had been killed, and appellant's brother, a member of the Gates, had been charged with that homicide. A number of other shootings had taken place, one of which was done with the same weapon used in the present case. One of the victims in this case was the niece of the Sanford group's leader. An expert witness for the prosecution, after explaining the history of the turf war, opined that appellant shot the victims as a warning to the Sanford group.People v. Payne, No. A095439, slip op. at 2-3 (Cal.Ct.App. Dec. 6, 2002) (Resp't Ex. 7).
DISCUSSION
A. Standard Of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(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).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises three cognizable claims for relief under § 2254: (1) the prosecutor improperly used peremptory challenges at trial; (2) the prosecutor's misconduct at trial violated petitioner's constitutional rights; and (3) the jury's "finding" of a witness's identification of petitioner was contrary to the evidence presented at trial.
1. Peremptory Challenges
Petitioner claims that the trial court erred in finding that the prosecutor had legitimate, non-discriminatory reasons for exercising peremptory challenges as to an African-American juror and an allegedly gay juror. He argues that the discriminatory use of peremptory challenges against these two prospective jurors deprived him of his right to equal protection under Batson v. Kentucky, 476 U.S. 79 (1986).
The Equal Protection Clause forbids the exclusion of jurors by peremptory challenge solely on account of their race, or other group bias. Batson, 476 U.S. at 89; accord People v. Wheeler, 22 Cal. 3d 258, 280 (1978) (a party who believes his opponent is using his peremptory challenges to strike jurors on grounds of group bias alone may raise the point by way of a timely motion). Batson permits prompt rulings on objections to peremptory challenges under a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Id. at 96-97. That is, the defendant must demonstrate that the facts and the circumstances of the case "raise an inference" that the prosecution has excluded members from the jury on account of their race. Id. at 96. If the defendant makes this showing, the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97. Finally, the court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98. To fulfill its duty, the court must evaluate the prosecutor's proffered reasons and determine whether there was intentional discrimination. Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir. 2003).
The rationale of Batson has been extended to challenges solely based on gender, see J.E.B. v. Alabama ex re. T.B., 511 U.S. 127, 130-43 (1994), and, under California law, to challenges solely based on sexual orientation, see People v. Garcia, 77 Cal. App. 4th 1269, 1281 (2000).
Garcia is not clearly established United States Supreme Court precedent. But for purposes of analysis, this order assumes that gay people constitute a cognizable class for purposes of a "Batson/Wheeler" motion. Cf. Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996) (finding it unnecessary to decide whether to extend Batson to peremptory challenge based on sexual orientation).
Here, petitioner made a "Batson/Wheeler" motion after the prosecutor exercised two peremptory challenges as to a prospective juror whom petitioner contended was excused because he was gay, and as to a prospective African-American juror. The trial court found that petitioner had made a prima facie case of discrimination and called upon the prosecution to offer an explanation for the exercise of the challenges. After the prosecutor stated his reasons, the court denied petitioner's motions on the ground that the prosecutor's justifications were not based on the jurors being members of a protected group, and not pretextual or insincere.
As he unsuccessfully did on appeal, petitioner now challenges the prosecutor's exercise of peremptory challenges.
a. Gay Juror
The prosecutor explained that he exercised a peremptory challenge as to the allegedly gay juror, Mr. Guevara, because of Mr. Guevara's work experience and appearance. The prosecutor stated that he was concerned that the juror's somewhat "flamboyant" appearance (pierced lip, pierced ears, sleeveless shirt) might not sit well with the other jurors, and twice stated that the main reason for the challenge was the juror's involvement in social work. The prosecutor explained:
I had a chance to speak with the potential juror's sister [who worked for the district attorney's office] over lunch hour, and after looking at his questionnaire, he did have very much of a social worker outlook, it appeared. He's been involved in the Shanti Project. . . . He's done quite a bit of counseling, and the counseling he's done has been in the AIDS area, and I suspect it's been with the young males. From my look at the situation, it appears that the juror could be sympathetic to the defendants in that both defendants are approximately 20 years old, they may come from an underprivileged background.People v. Payne, No. A095439, slip op. at 7-8 (Cal.Ct.App. Dec. 6, 2002).
The trial court found that the prosecutor established nondiscriminatory reasons for challenging the juror in question after defense counsel made a prima facie showing of group bias. The California Court of Appeal agreed with the trial court's determination, finding that the prosecutor "offered an acceptable, nondiscriminatory, reason for his challenge." Id. at 8.
It is well-established that work in social services is a valid, neutral basis for the exercise of a peremptory challenge. See, e.g., United States v. Smith, 223 F.3d 554, 569 (7th Cir. 2002) (accepting as valid and race-neutral challenge based on juror being "social worker type" thought to be too sympathetic to defendants). But petitioner's main claim it that the prosecutor's statements reflected a stereotyping of gay men, and that the challenge should be regarded as a challenge against persons fitting that stereotype. In support of his claim, petitioner cites United States v. Bishop, 959 F.2d 820 (9th Cir. 1992). InBishop, the prosecutor challenged an African-American juror, not because of her race but because of her residence — in a predominantly African-American area — explaining that people who lived in such a community were likely to be accustomed to violence and to think that police used excessive force. The Ninth Circuit found that the prosecutor had in fact used residence as a surrogate for racial stereotype because the reasons stated referred to collective experiences and feelings that could just as easily be attributed to large portions of the African-American community. Bishop, 959 F.2d at 826. The court noted that in such circumstances, the prosecutor had to articulate an additional, neutral, reason for the peremptory challenge. Id. at 825-27.
The California Court of Appeal found that, unlike the prosecutor in Bishop, the prosecutor here stated a neutral reason for the challenge. It found that Mr. Guevara's occupation and experience as a counselor was an adequate reason. The court explained that the "prosecutor's stated reasons for excusing the juror would not have extended to any gay man who did not work in a social services field," and, because "there is no reason to assume that the vast majority of gay men work in social services," the trial court was justified in holding that "the challenge based on work experience was not a surrogate of a challenge based on sexual orientation." People v. Payne, No. A095439, slip op. at 9-10 (Cal.Ct.App. Dec. 6, 2002)
The California Court of Appeal's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). It is undisputed that a prosecutor does not violate the defendant's constitutional rights by challenging a prospective juror because he/she works in the social service or health care field and the prosecution thinks that the juror's work in that field would be unsympathetic to the prosecution's case. And, importantly, the state trial court's finding that the prosecutor established nondiscriminatory reasons for the challenge, rather than his sexual orientation, is entitled to a presumption of correctness that petitioner does not overcome. See Purkett v. Elem, 514 U.S. 765, 769 (1995) (trial court's findings on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review). Petitioner's assertion that the prosecution used Mr. Guevara's work experience and appearance as a surrogate for sexual orientation does not compel a different result. See 28 U.S.C. § 2254(e)(1) (petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness). At a minimum, the state courts' determination that the prosecutor's peremptory challenge was not based upon his sexual orientation is reasonable, which means that it must stand. See Early v. Packer, 123 S. Ct. 362, 366 (2000).
b. African-American Juror
In challenging an African-American juror, the prosecutor explained that "red flags" were raised when the juror, Ms. Seymore, stated that she did not know anything about gangs other than what she had read. People v. Payne, No. A095439, slip op. at 10-11 (Cal.Ct.App. Dec. 6, 2002). The prosecutor explained that Ms. Seymore lived in North Richmond, had children aged 15 and 19, and had had her car vandalized when she worked in Oakland. In addition, another juror from the same area had expressed fear that someone would come after him if he participated in the trial. The prosecutor suggested that because Ms. Seymore had children who were about the same age as the defendants, she might have felt pressured to make statements she did not believe to be true. The trial court found that the challenge was not based on racial bias and the court of appeal agreed.
Petitioner again cites Bishop, arguing that a peremptory challenge based on residence was a proxy for race and, therefore, violated petitioner's rights. Yet, the present situation is distinguishable from that in Bishop because, unlike the situation there, the prosecutor challenged the juror in question because her views were not like those of her community. Thus, according to the prosecution, the juror was dismissed because she differed from members of her community, not because she was like them.
The California Court of Appeal noted that "the prosecutor was concerned that the juror's statements were inconsistent with what the prosecutor believed was the experience of the community where the juror resided, and what the prosecutor intended to prove to be the experience of that community." Id. at 11. Consequently, "the trial court was entitled to conclude that the challenge was based not on impermissable group bias, but on a belief that the juror was not particularly observant, that she was feeling pressured to make statements she did not believe to be true, or simply that her personal observations were inconsistent with the prosecution's case and would affect her ability to decide the case on the evidence." Id. at 11-12.
The California Court of Appeal's rejection of Petitioner'sBatson claim as to Ms. Seymore was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The reasons offered by the prosecutor for challenging this juror were legitimate bases for the exercise of a peremptory challenge. See Purkett v. Elem, 514 U.S. 765, 769 (1995) ("a legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection"); see also Stubbs v. Gomez, 189 F.3d 1099, 1105 (1999) (where presecutor's primary reason for challenging a juror was the prosecutor's belief that juror was lying about being a crime victim, reason was race-neutral); McCain v. Gramley, 96 F.3d 288, 293 (7th Cir. 1996) (race neutral: prosecutor who challenged a juror who lived in a high crime area because he thought the juror was lying about never being a crime victim); Kelly v. Withrow, 25 F.3d 363, 366-67 (6th Cir. 1994) (no racial discrimination where prosecutor struck juror who prosecutor did not believe answered questions truthfully). And, importantly, the state trial court's finding that the prosecutor's challenge was not based upon Ms. Seymore's race, but on other race-neutral considerations, is entitled to a presumption of correctness petitioner does not overcome. See 28 U.S.C. § 2254(e)(2);Purkett, 514 U.S. at 769. After considering the race-neutral reasons given by the prosecutor for challenging Ms. Seymore, the state trial court reasonably determined that the prosecutor was being truthful and that there was no discriminatory intent. Petitioner is not entitled to federal habeas relief on hisBatson claim as to Ms. Seymore. The state courts' determination that the prosecutor's peremptory challenge was not based on Ms. Seymore's race is reasonable and therefore must stand. See Early, 123 S. Ct. at 366.
2. Prosecutorial Misconduct
Petitioner claims that the prosecutor's comments during opening argument constituted misconduct which violated his constitutional right to due process.
The appropriate standard of review for prosecutorial misconduct is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Claims of prosecutorial misconduct are reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted). In addition, federal habeas relief is available only if the error had a substantial or injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
The California Court of Appeal described the prosecutor's alleged misconduct:
The complained-of-remarks followed a comment made by a prospective juror during voir dire. The juror, who had indicated some personal connection with a legal action, asked the judge if he could question the prosecutor about reasonable doubt. He explained that when the prosecutor was telling the jury the definition of reasonable doubt, he had his back to the judge and made a gesture indicating that there was very little reasonable doubt. `We haven't even heard it yet and he's already going through the body language.' The juror stated that he was not so upset by the prosecutor's conduct that it would affect his ability to act as a juror, but he wanted to bring the matter to everyone's attention. The juror subsequently was excused on the prosecutor's challenge.
Later, during opening argument, the prosecutor was explaining his beliefs about the conflicts between the Sanford group and the Gates, and how this conflict had led to a number of violent incidents in North Richmond. He mentioned a potential witness who would be identified as a member of the Sanford group, asserting that this individual had an agenda. The prosecutor then segued into a discussion of the excused juror, stating: `We had a juror come in with an agenda yesterday, a guy who hit the stand up here, and he said that I had given some sort of body language indicating reasonable doubt. With everything that's going on here and all the agendas that are taking place in North Richmond. . . ."
Defense counsel objected. The court did not rule on the objection, but reminded the jury that the prosecutor's statements were not evidence. The prosecutor then stated: `I really don't have time to give hand signals as to reasonable doubt, but we had a juror who obviously. . . .'
Defense counsel again objected. The court noted the objection but did not rule on it.
The prosecutor continued: `. . . was going to be dishonest. He obviously had some hard feelings about his own case which had taken place and decided that he was going to use this as an arena to get even.
`And I glared at him out in the hallway when I walked by him, and I let my feelings get the best of me, and some of you may have seen that, and I apologize for that. I shouldn't have done that. But you're going to see more dirty looks from me with witnesses, . . . because this is serious stuff.
`The other jurors came in and said, I do have bad feelings about this or that, and they went one way or other and they admitted them. But I'm going to be glaring at other witnesses here, and I may say other things during the trial that I'll wish that I hadn't said, and I'm going to apologize in advance because this is very serious stuff that we're talking about. We're talking about a little girl spending a month in intensive care with five bullet wounds thinking that somebody's gonna come and kill her.
`So, I don't want anybody to get the impression that I'm just soft-pedaling all this stuff. We're going to be going full speed on this.'People v. Payne, No. A095439, slip op. at 12-14 (Cal.Ct.App. Dec. 6, 2002). The California Court of Appeal rejected petitioner's claim on the ground that the remarks by the prosecutor did not rise to the high level necessary to affect the fairness of the trial. Although the prosecutor's comments were "inappropriate," they "were neither deceptive nor reprehensible."Id. at 15-16.
Despite the prosecutor's inappropriate conduct, "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). Here, the prosecutor's comments about the challenged juror and the seriousness of the case were isolated and did not relate to a critical part of the case. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); cf Giglio v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing potential bias of witness especially significant because government's case rested on credibility of that witness). The comments did not relate to petitioner's guilt or innocence. Instead, the comments conveyed that the prosecutor felt strongly about the crimes and the victims, was offended by the removed potential juror's remarks, and might overreact to witness statements like he perhaps overreacted to the juror's remark. Such comments did not "infect the trial with unfairness" so as to render the resulting conviction a denial of due process.Johnson, 63 F.3d at 929.
Furthermore, when the trial court denied the motion for mistrial, it noted that the "jury had been told numerous times that opening remarks are not evidence." People v. Payne, No. A095439, slip op. at 15 (Cal.Ct.App. Dec. 6, 2002). When a curative instruction is issued, a court presumes that the jury has disregarded inadmissible evidence and that no due process violation occurred. See Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987); Darden, 477 U.S. at 182 (the Court condemned egregious, inflammatory comments by the prosecutor but held that the trial was fair since curative actions were taken by the trial judge). Here, although the judge did not rule on the objection, the court did remind the jury that the prosecutor's statements were not evidence, and the court stated its belief that the jury "understood the court's instructions and there was no need to admonish them further." People v. Payne, No. A095439, slip op. at 15 (Cal.Ct.App. Dec. 6, 2002). The trial judge's multiple instructions that jurors were not to consider statements made by the prosecutor as evidence eliminated any risk that the prosecutor's alleged misconduct had infected the trial with unfairness.
Moreover, even if the prosecutor's comments did amount to a constitutional violation, they were not prejudicial. The comments were isolated and unrelated to the critical part of the case and were followed by the court's instructions to the jury that they were not evidence. The prosecutor's comments cannot be said to have had a "substantial and injurious effect on the jury."Brecht v. Abrahamson, 507 U.S. at 637.
The California Court of Appeal's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.
3. Insufficient Evidence
Petitioner claims that the jury's "finding" that witness Galloway's testimony identifying petitioner was "accurate was contrary to the evidence presented at trial." The claim is without merit.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim. See Jackson v. Virginia, 443 U.S. 307, 321 (1979).
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Instead, the federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted.See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.
If confronted by a record that supports conflicting inferences, a federal habeas court "must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. A jury's credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility determinations. See id. (credibility contest between victim alleging sexual molestation and defendant vehemently denying allegations of wrong doing not a basis for revisiting jury's obvious credibility determination); see also People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation based entirely on uncorroborated testimony of victim).
Petitioner argues that Ms. Galloway's testimony was not reliable due to the circumstances under which she witnessed the crime and the suggestive nature of the identification procedure. The California Supreme Court rejected petitioner's claim on collateral review. That ruling was not an unreasonable determination of the facts given witness Galloway's testimony at trial and the jury's findings based on that testimony. See 28 U.S.C. § 2254(d).
Witness Galloway was a victim of the shooting. At trial, Ms. Galloway testified that on the morning of November 18, 1999, she and others were "hanging out" on the corner of Willard and Filbert Streets in North Richmond. RT 291, 293, 299, 327. A station wagon pulled up and stopped at a stop sign about 17 feet away. RT 295-97. She said that petitioner got out of the station wagon and fired multiple gunshots, hitting four people, including herself. RT 296-97, 320, 327-330, 555-556, 661. She also testified that she knew petitioner all her life and had seen him more than once a week for the last ten years, so although he was wearing a scarf around the bottom part of his face, she knew who it was right away. RT 326-28.
The jury found witness Galloway's testimony credible. As noted earlier, a jury's credibility determinations are entitled to near-total deference, absent exceptional circumstances. See Bruce v. Terhune, 376 F.3d at 957. Petitioner sets forth no such extraordinary circumstances. Ms. Galloway described a scenario in which she was in a position to see petitioner commit the crime, and did see him commit the crime. Petitioner is not entitled to federal habeas relief on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The court is satisfied that petitioner is not entitled to federal habeas relief on his federal claims.
To the extent that petitioner brings new claims in his traverse, they are not proper grounds for relief. Cacoperdo v. Demothenes, 37 F.3d 504, 507 (1994) ("[a] traverse is not a proper pleading to raise additional grounds for relief").
The clerk shall enter judgment in favor of respondent and close the file.
IT IS SO ORDERED.