Love v. Scribner

GRABER, Circuit Judge,

dissenting:

In this case we owe not only the usual high amount of AEDPA deference to a state court’s findings, 28 U.S.C. § 2254(d)(2); Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), but also an extra measure of deference for a Batson-related evaluation of credibility, Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Applying those standards of review, on de novo review (which I agree is required here) I would affirm the decision of the district court and, therefore, respectfully dissent.

Of the 20 jurors who were struck using peremptory challenges, 11 were struck by the prosecutor. Of those 11, one was black and 10 were not. Three of the 11, including the only black potential juror *719who remained in the jury pool after potential jurors had been excused for hardship, were either “eligibility workers” or worked at a social security office. No juror on the final jury worked as an eligibility worker, social worker, or social security worker.

Accordingly, the prosecutor’s relevant explanation — that he did not want social workers or eligibility workers to sit on the jury (presumably because of their expected work-related attitudes) — is fully borne out by a comparative juror analysis. The prosecutor’s additional reference to teachers was beside the point, because the excused black juror was not a teacher. The fact that the prosecutor was inconsistent about teachers, none of whom was black, to me does not cast doubt on the prosecutor’s explanation about social workers and eligibility workers, all of whom were struck.

In view of the fact that the comparative factors already exist in the record, and in view of the extreme likelihood that an evidentiary hearing will yield no further information about the prosecutor’s state of mind some five years after jury selection in this brief trial occurred, I think that an evidentiary hearing is unwarranted under the standards established in Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir.1999) (citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). And in the circumstances I am unable to conclude that the state trial court made an unreasonable determination of the facts in light of the evidence, Rice, 546 U.S. at 338, 126 S.Ct. 969.