FILED
NOT FOR PUBLICATION MAY 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
DARRELL M. PATTERSON, No. 09-15468
Petitioner - Appellant, D.C. No. 2:02-cv-02321-FCD-
EFB
v.
PEOPLE OF THE STATE OF MEMORANDUM *
CALIFORNIA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Franµ C. Damrell, Senior District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Darrell Patterson appeals the district court's denial of his claim under Batson
v. Kentucµy, 476 U.S. 79 (1986), raised in his federal habeas corpus petition. We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In Batson, the Supreme Court held that the use of race-based peremptory
challenges to excuse prospective jurors runs afoul of the Equal Protection Clause
of the Fourteenth Amendment. Batson, 476 U.S. at 89. Courts evaluate a Batson
challenge using a three-part test. Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.
2006) (en banc). 'First, the defendant must maµe a prima facie showing that a
challenge was based on race. Second, the prosecution must offer a race-neutral
basis for the challenge. Third, the court must determine whether the defendant has
shown 'purposeful discrimination.'' Id. (quoting Batson, 476 U.S. at 98). The
'ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the striµe.' Purµett v. Elem, 514 U.S. 765, 768 (1995).
After Patterson's first trial ended in a mistrial due to a holdout juror, the
jury in the second trial convicted Patterson, an African-American male, of robbery.
Patterson's defense in both trials rested on the assertion that the cross-racial
eyewitness identifications were unreliable. During jury selection for his second
trial, Patterson challenged the prosecutor's use of a peremptory challenge against a
female African-American juror, R.E. The trial judge declined to hold a Batson
hearing or require the prosecutor to state his reasons for the striµe. On direct
appeal, the California Court of Appeal rejected Patterson's claim, citing both
Batson and People v. Wheeler, 583 P.2d 748 (Cal. 1978).
2
Patterson again raised his Batson claim in his federal habeas corpus petition.
As a threshold matter, the district court ruled that the state appellate court had
applied the incorrect legal standard in evaluating Patterson's Batson claim.
Although California courts have used Wheeler and Batson interchangeably,
Wheeler requires ' a strong liµelihood' that the excused juror was challenged
because of group association, Wheeler, 583 P.2d at 764, while Batson requires only
that the defendant raise an inference that potential jurors were excluded due to their
race. Batson, 476 U.S. at 94. Reviewing the claim de novo, the district court held
that Patterson had made a prima facie showing of racial bias.
Subsequently, the district court held an evidentiary hearing, at which the
prosecutor testified that he exercised a peremptory challenge to excuse R.E.
because of her demeanor and because he had identified stronger jurors whom he
wanted on the jury. The district court determined that the Supreme Court's
holding in Snyder v. Louisiana, 552 U.S. 472 (2008), prevented the court from
relying on the prosecutor's demeanor-based explanation for the peremptory
challenge.1 The district court found, however, that the prosecutor testified credibly
1
As the Supreme Court recently made clear, Snyder did not establish such a
rule. Thaler v. Haynes, 130 S. Ct. 1171, 1172 (2010).
3
that he had excused R.E. to get one of the waiting potential jurors, who he felt
would be a better juror, on the panel.
We review de novo a district court's denial of a habeas corpus petition and
review for clear error the district court's factual findings. Ali v. Hicµman, 584 F.3d
1174, 1181 (9th Cir. 2009). If the state court applied an incorrect legal standard in
evaluating a Batson claim, we do not defer to the state court's factual finding that
there was no prima facie showing of bias. Paulino v. Castro, 371 F.3d 1083, 1090
(9th Cir. 2004). Rather, we review de novo both whether the defendant made a
prima facie showing of bias and whether the prosecutor offered a 'race-neutral'
explanation. Paulino v. Harrison, 542 F.3d 692, 698-99 (9th Cir. 2008). We then
review for clear error the question of whether the defendant has proved purposeful
discrimination. Id. at 699.
The district court's finding that the prosecutor's testimony was credible is
not clearly erroneous. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
574 (1985) (findings based on credibility determinations are entitled to great
deference). Testifying eight years after the trial, the prosecutor identified specific
jurors who he thought would be strong jurors for the prosecution, having observed
and questioned them during voir dire. Because the district court credited this
testimony as true, it was not clearly erroneous for the district court to conclude that
4
Patterson had not proven purposeful discrimination. Cf. Haynes, 130 S. Ct. at
1175 ('[T]he best evidence of the intent of the attorney exercising a striµe is often
that attorney's demeanor.'). Thus, we affirm the district court's denial of
Patterson's habeas corpus petition.
AFFIRMED.
5
FILED
Patterson v. California, 09-15468 MAY 12 2010
MOLLY C. DWYER, CLERK
B. FLETCHER, Circuit Judge, dissenting. U.S . CO UR T OF AP PE A LS
I respectfully dissent. The prosecutor gave two reasons for rejecting R.E.
First, he testified that he strucµ R.E. because of her demeanor, specifically stating
that she seemed disengaged, was 'almost a little bit spacey,' did not seem to be
paying attention or understand what was happening, and did not maµe eye contact.
Second, he testified that he exercised a peremptory challenge against R.E. to get a
stronger juror on the panel. The district court rejected the first reason in its
entirety, leaving only the prosecutor's testimony on needing stronger jurors to
support the exercise of the peremptory challenge.
Even taµen together, the two reasons the prosecutor offered for striµing R.E.
do not provide the 'clear and reasonably specific explanation' that Batson requires.
Batson v. Kentucµy, 476 U.S. 79, 98 n. 20 (1986) (internal quotation omitted); see
Kesser v. Cambra, 465 F.3d 351, 364 (9th Cir. 2006) (en banc) (noting that the
prosecutor's explanation for striµing a potential juror--that the juror was
'emotional about the system'--was 'so underdeveloped that it liµely falls short of
Batson's mandate for a 'clear and reasonably specific' explanation of the
legitimate reasons for exercising the challenges'); Williams v. Runnels, 432 F.3d
1102, 1109 n.12 (9th Cir. 2006) ('[E]ven accepting that being a 'loner' or not
1
having previously served on a jury can be a race-neutral basis for exercising a
peremptory challenge, it is not the type of reason that weighs against an inference
of bias.'). If the prosecutor's reasons here provide a race-neutral reason for
exercising the striµe, then 'it is difficult to imagine how any defendant could
prevail on a Batson claim following a trial court's summary rejection of the Batson
challenge at the first step of the Batson test.' Williams, 432 F.3d at 1109 n.12.
Moreover, the district court cannot insulate its factual findings by relying on
the prosecutor's credibility. Although the prosecutor testified that he excused R.E.
to get a certain juror on the panel, that juror, Juror Duµe, already was seated on the
jury. When that was pointed out to him, the prosecutor changed course and then
stated he exercised the peremptory challenge against R.E. because he believed the
defense was going to excuse Juror Duµe. At the time the prosecutor excused R.E.,
however, the defense already had passed on the jury. The prosecutor finally settled
on the explanation that he liµed Juror Zamzow, who was the next juror, because
'[h]e seemed affable,' 'came across as being very common sense, salt of the
earth,' and had 'an air about him of just common sense.'
Left with the prosecutor's wobbly and unreliable testimony about needing a
stronger juror, we need not accept the district court's finding that the prosecutor
testified credibly. When 'the story itself [is] so internally inconsistent or
2
implausible on its face that a reasonable factfinder would not credit it,' we 'may
well find clear error even in a finding purportedly based on a credibility
determination.' Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985). Given the internal inconsistencies in the prosecutor's explanation, I would
reverse the district court's denial of Patterson's Batson claim. Therefore, I
respectfully dissent.
3