FILED
UNITED STATES COURT OF APPEALS JAN 28 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
BRIAN MCAUTHOR MCGEE, No. 10-56111
Petitioner - Appellee, D.C. No. 2:05-cv-05077-PSG-OP
Central District of California,
v. Los Angeles
RICHARD J. KIRKLAND, Warden,
ORDER
Respondent - Appellant.
Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.*
The memorandum filed July 31, 2012 is amended as follows:
On page 2 of the memorandum disposition, replace with .
On page 5 of the memorandum disposition, insert the following sentence
before : .
*
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
On page 5 of the memorandum disposition, replace with
.
With these amendments, the panel has voted unanimously to deny the
petition for panel rehearing. Judges Wardlaw and Berzon have voted to deny the
petition for rehearing en banc, and Judge Whyte has so recommended.
The full court has been advised of the petition for rehearing en banc, and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for panel rehearing and rehearing en banc, filed August 9, 2012,
is DENIED. No further petitions for rehearing will be entertained.
An amended memorandum disposition is filed concurrently with this Order.
FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRIAN MCAUTHOR MCGEE, No. 10-56111
Petitioner - Appellee, D.C. No. 2:05-cv-05077-PSG-OP
v.
AMENDED MEMORANDUM *
RICHARD J. KIRKLAND, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted March 9, 2012
Pasadena, California
Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.**
The district court granted Brian McGee’s habeas corpus petition on the basis
that the prosecutor at McGee’s state court trial impermissibly used peremptory
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for Northern California, sitting by designation.
challenges to remove African-Americans from the jury in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). We reverse and remand for the district court to
reach the merits of Petitioner’s remaining claims.
The California Court of Appeal’s denial of McGee’s Batson claim was not
an “unreasonable determination of the facts in light of the evidence” in the record.
28 U.S.C. § 2254(d)(2). Although comparative juror analysis suggests that the
state courts may have “had reason to question the prosecutor’s credibility,” such
analysis “does not . . . compel the conclusion that the trial court had no permissible
alternative but to reject the prosecutor’s race-neutral justifications.” 1 Rice v.
Collins, 546 U.S. 333, 341 (2006) (emphasis added).
The district court focused in particular on Jurors 4046 and 9744, holding that
their dismissal was impermissibly race-based. It was not unreasonable for the
California courts to credit the prosecutor’s justifications for challenging these
jurors.
1
We reject the state’s contention that comparative juror analysis is useful
only when the comparison is between an excluded African-American prospective
juror and a non-African-American seated juror. Comparative analysis provides the
strongest evidence of discrimination, of course, when the record indicates that an
excluded black prospective juror was the same as a seated juror in all respects
except race. Still, where the prosecutor has offered a justification for striking a
particular juror that applies equally to jurors he has not excluded, regardless of the
race of the jurors who were not stricken, this comparison nevertheless supports the
logical conclusion that the proffered justification was disingenuous.
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The prosecutor provided three reasons for excusing Juror 4046 from the
jury: (1) her lack of jury experience; (2) her job as a “substitute cafeteria helper,”
from which the prosecutor inferred she might lack the education and ability to
understand fully a complex murder trial; and (3) that she “demonstrated . . . that
she was timid, . . . not detail oriented, and potentially unable to contribute to the
jury deliberations.” These justifications are race-neutral and supported by the
record. Although the prosecutor accepted some jurors without previous jury
experience, several others without such experience were stricken. Juror 4046’s
lack of jury experience was connected to the prosecutor’s overarching
concern—that she might not be able to fulfill effectively the obligations of a juror.
It was not unreasonable, therefore, for the California courts to conclude that the
prosecutor challenged Juror 4046 based on this race-neutral concern. See Rice, 546
U.S. at 339.
The California courts’ conclusion that the prosecutor’s challenge of Juror
9744 was not based on race was also reasonable. The prosecutor stated that he
struck Juror 9744 because of “the large number of [her] relatives [who were] in
prison.” This is a permissible, race-neutral reason, substantiated by the record.
See United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987), overruled on
other grounds by Huddleston v. United States, 485 U.S. 681 (1988). Although the
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prosecutor accepted some jurors whose relatives had been convicted of crimes,
prosecutors often attempt to ensure that juries have few, if any, such individuals.
The record indicates that the venire contained a large number of prospective jurors
who themselves had criminal convictions or who had relatives with criminal
convictions. Juror 9744, excused during the selection of alternate jurors, was the
last African-American prospective juror stricken by the prosecutor. It was not
unreasonable of the California courts to accept as race-neutral the prosecutor’s
desire not to add another juror whose relatives had criminal convictions to a jury
that already had several such jurors.
Furthermore, five of the seated jurors were African-American. “The fact
that African-American jurors remained on the panel ‘may be considered indicative
of a nondiscriminatory motive.’” Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th
Cir. 2009) (quoting Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997)). In
addition, the prosecutor twice accepted the jury while it contained some of the
jurors who were eventually excused, further undermining any inference of racial
discrimination. See Yee v. Duncan, 463 F.3d 893, 901 (9th Cir. 2006).
Moreover, although the precise racial composition of the venire is not in the
record, the record strongly suggests that the venire contained a large number of
African-American prospective jurors. Therefore, it is unsurprising that a large
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percentage of the excused jurors were African-American, diminishing any
inference of racial motivation that may ordinarily be drawn from that circumstance.
Because the California Court of Appeal was not unreasonable in rejecting
McGee’s Batson challenge, we must uphold its decision and REVERSE that of the
district court. We remand to the district court for consideration of Petitioner’s
remaining claims.
REVERSED AND REMANDED.
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