Steven Martell Collins v. Bertram Rice Attorney General of the State of California

*1099CYNTHIA HOLCOMB HALL, Circuit

Judge, dissenting:

The state trial court determined that the prosecutor’s proffered race-neutral justifications for striking Juror 016 were credible. This conclusion is entitled to “great deference,” Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), and may not be disturbed on appeal unless clearly erroneous. Id. at 369, 111 S.Ct. 1859; see also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (reasoning that because an appellate court has access only to the trial transcript, it is “not as well positioned as the trial court is to make credibility determinations.”). Applying this deferential standard, the California Court of Appeal found that the trial court did not err. Because this case is governed by AEDPA, we must defer to the California Court of Appeal’s conclusion unless contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or premised on an unreasonable factual finding. 28 U.S.C. § 2254(d).

The majority does not defer to the California Court of Appeal. According to the majority, deference is unwarranted because the Court of Appeal’s decision rests upon the “unreasonable factual determination” that “there was ‘nothing in the present record’ to indicate that the trial court did not conduct a searching inquiry in giving the prosecutor the benefit of the doubt or should have questioned the prosecutor’s credibility.” In point of fact, the Court of Appeal held only that the trial court’s ultimate decision to credit the prosecutor was not clearly erroneous, thereby adhering to the well-established principle that “where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Hernandez, 500 U.S. at 369, 111 S.Ct. 1859.

Having manufactured a reason to disregard the California Court of Appeal’s decision, the majority essentially reviews the issue of the prosecutor’s credibility de novo, concluding that the writ should issue because, under the majority’s view, “the record belies” the conclusion that the trial court assessed evidence which ostensibly undermined the prosecutor’s credibility. In doing do, the majority disregards the canonical rule that evaluation of a prosecutor’s credibility “lies peculiarly within a trial judge’s province,” and is entitled to “great deference.” Id. at 366, 111 S.Ct. 1859.1

Viewing the record in its entirety, I am firmly convinced that the California Court of Appeal’s decision was reasonable. I respectfully dissent.

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The majority identifies four considerations potentially relevant to the prosecutor’s credibility. In order to reject the California Court of Appeal’s decision, we would have to conclude that the Court of Appeal unreasonably determined that, given these four considerations, the trial court did not clearly err by crediting the prosecutor’s race-neutral explanation. As the following discussion illustrates, the majority falls far short of making this requisite demonstration.

The majority argues that the trial court should have questioned the prosecutor’s credibility because she referred to another *1100prospective juror, Juror 019, as “young” even though Juror 019 was a grandmother of five. As the majority suggests, the prosecutor may have either been entirely incapable of judging a person’s age or may have intentionally misrepresented Juror 019’s age to the court. A far more plausible explanation, on the other hand, is that the reference to Juror 019 as “young” was purely accidental. The statement at issue occurred during a discussion about Juror 016, Juror 019, and Juror 006, a young, single white male against whom the prosecutor also exercised a peremptory strike. Because Jurors 016 and 019 were the subject of the Batson challenge, both jurors were repeatedly referred to in tandem. Similarly, Jurors 016 and 006 were referred to together several times by the prosecutor, who argued that the two young, single jurors were similarly situated. In this context, it is not surprising that the prosecutor would, on one occasion, flip the designations “006” and “019.” Indeed, defense counsel also seemed confused about the numerical designations, once mistakenly referring to Juror 016 as “Ms. 019.”2 Both the trial judge and defense counsel clearly indicated that they understood the prosecutor’s justification for striking Juror 019 to be her daughter’s drug problem, and the prosecutor’s justification for striking Juror 016 to be that, like Juror 006, she was young, single, and potentially tolerant.3 Under these circumstances, the majority’s focus on the prosecutor’s misstatement,4 an issue that was not briefed by the parties, is nothing short of absurd.

The majority also argues that the trial judge should have questioned the prosecutor’s credibility because the prosecutor cited a desire to have “more male-female balance” in the jury as a race-neutral basis for excluding Juror 016. The majority places undue emphasis on the prosecutor’s arguably improper reference to gender. The prosecutor cited a variety of other race-neutral justifications, including Juror 016’s demeanor, youth, marital status, and possible tolerance. There is no indication in Supreme Court precedent, or in cases from our circuit for that matter, that a trial judge’s decision to reject one of the prosecutor’s race-neutral justifications compels the trial judge to reject all of the other race-neutral justifications offered by that prosecutor.5 In the instant case, the *1101trial judge rejected the prosecutor’s gender-balance justification, but nonetheless chose to credit the prosecutor’s other race-neutral justifications for the challenge. The majority highlights nothing in the record to indicate that the California Court of Appeal should have deemed this decision clearly erroneous.

The third credibility issue raised by the majority also relates to Juror 019 rather than Juror 016. Making an argument not presented by Collins either before this court or before the California Court of Appeal, the majority contends that the prosecution’s explanation that Juror 019 had a daughter recently treated for cocaine addiction was pretextual because a white juror passed by the prosecution, Juror 030, also had a child with a cocaine problem. There are several fundamental problems with the majority’s analysis of this issue. The issue was not briefed by the parties or discussed at oral argument, and the record itself certainly does not contain clear and convincing evidence that Juror 019 and Juror 030 were, as the majority terms them, “indistinguishably similar.”6 Moreover, even if one accepts the majority’s shaky premise that Jurors 019 and 030 were “indistinguishably similar,” there is no Supreme Court precedent indicating that a race-neutral justification is necessarily pretextual merely because it applies to another member of the venire. Similarly, there is a complete dearth of Supreme Court precedent indicating that a trial judge may not credit a prosecutor’s race-neutral justification if there is reason to believe that the race-neutral justification given for another juror was pretextual. For these reasons, the prosecutor’s conduct vis-a-vis Juror 019 lends very little, if any, support to the majority’s conclusion that the trial judge should have questioned the prosecutor’s explanation for striking Juror 016.

Finally, the majority contends that the prosecutor’s explanation that Juror 016 was a youthful single person, and therefore potentially too tolerant, was not credible. Noting that Juror 016 “believed possession of crack cocaine should be illegal,” *1102the majority concludes that the prosecutor’s concern that Juror 016 might be too tolerant for this three strikes case was “patently frivolous.” The majority’s conclusion is simply untenable — the theory that young persons, even those who believe crack cocaine should be illegal and don’t expressly indicate any heightened tolerance for drug offenders, may be less willing to impose harsh sentences for drug possession than their older counterparts in the venire can hardly be considered unreasonable, much less “implausible or fantastic.”

Indeed, the majority’s own analysis demonstrates precisely why the Court of Appeal properly deferred to the trial court’s judgment. The majority strains to find that the credibility issues discussed above constitute “clear and convincing” evidence which not only undermines the prosecutor’s credibility, but makes clear that the prosecutor’s articulated rationales for her peremptories were “wholly implausible.” Viewing the majority’s credibility argument generously, however, their conclusion is merely that the trial court had several potential reasons to question the prosecutor’s credibility. Presumably, the trial court also had a variety of potential reasons to believe that the prosecutor was credible, including the prosecutor’s ostensibly truthful comparison between Juror 016 and Juror 006. Significantly, the trial judge also had the ability to observe the prosecutor’s demeanor to determine whether she appeared to be telling the truth, evidence which would not be evident in the record. Both the majority opinion and the record are devoid of any basis for concluding that the prosecutor’s statements and demeanor left the trial judge with no permissible alternative but to reject the prosecutor’s race-neutral justifications. See Hernandez, 500 U.S. at 369, 111 S.Ct. 1859 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”). See also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (stating that Section 2254 “demands that state court decisions be given the benefit of the doubt”).

For the foregoing reasons, I would affirm.

. Contrary to the majority's view, the state appellate court has no duty to make its own purposeful discrimination determination. Indeed, this would be beyond the scope of the state appellate court's review. In the Batson context, a state appellate court’s duty is limited to determining whether the trial court’s purposeful discrimination finding was clearly erroneous. E.g., Hernandez, 500 U.S. at 366-67, 111 S.Ct. 1859.

. After noting that one of the prosecutor’s justifications for striking Juror 016 was a lack of information, defense counsel argued, "if [the prosecutor] wanted more information, she could have asked the court to ask more questions of Ms. 019."

. Summarizing the prosecution’s argument, defense counsel stated: "[The prosecutor] has compared Ms. 016 to Mr. 006, which she excused by saying they were both young.... And Ms. 019, certainly, indeed, said that she had ... one daughter which she said had a cocaine problem and that she had been involved with treatment for the daughter.”

. Indeed, the prosecutor's "incorrect factual statement” is the majority's lead argument in support of its conclusion that the trial court clearly erred in considering the prosecutor to be credible.

.The majority quotes this court's decision in Johnson v. Vasquez, 3 F.3d 1327 (9th Cir.1993), for the proposition that " '[w]hen there is reason to believe that there is a racial motivation for the challenge,' we are not ‘bound to accept at face value a list of neutral reasons that are either unsupported in the record or refuted by it.”’ Id. at 1331. This reference is misleading, however. First of all, the Johnson court was confronted with a case in which the prosecutor’s own statements "strongly suggested] that [he] responded to defense counsel’s alleged exclusions of other minority venire members by excluding a member of defendant's race.” Id. at 1330. Hence, this court's admonition that "when there is reason to believe that there is a racial motivation for the challenge ... we are not bound” was a direct reference to the prosecutor's tacit admission that he was excluding members of the venire based on their ethnici*1101ty, an integral element of the Johnson decision which is not present in the instant case.

Second, the majority omits crucial language from the Johnson decision which bears on its relevance to the case at bar. Specifically, we noted that "neither the trial courts nor we are bound to accept” the prosecutor’s ostensibly neutral rationales at face value. Id. at 1331 (emphasis added). Viewed in context, the language from our Johnson decision clarifies the majority's fundamental mistake in this case. Once the trial court decides to "accept at face value” a "list of neutral reasons” proffered by the prosecutor, we are bound by precedent to grant that decision "great deference.” Hernandez, 500 U.S. at 366, 111 S.Ct. 1859.

Finally, even if the language from Johnson were pertinent to the instant case, it nonetheless fails to dispute the point that, even if a trial or appellate court chose not to accept one (or more) of the prosecutor’s articulated justifications, they would not thereby be compelled to reject all of the proffered rationales.

. For example, Juror 019’s daughter’s cocaine problem were more recent (two years) than was Juror 030’s son’s problem (six years). There may also have been significant differences in the demeanor of each prospective juror that are not evident from the trial transcript.

By way of contrast, compare the majority’s conclusion that Jurors 019 and 030 are indistinguishable to its own discussion of the dissimilarity of Jurors 006 and 016, which is relegated to a footnote. In support of its claim that the prosecutor's alleged rationales for dismissing Juror 016 (her marital status and lack of community ties) were pretextual, even though Juror 006 was also dismissed on the same grounds, the majority summarily concludes that "[t]he record reveals ... that Jurors 006 and 016 had very different backgrounds and thus did not possess 'comparable characteristics,' ” even though Jurors 006 and 016 “were both single, no ties.”