Opinion
Argued and Submitted on December 2, 2002.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding.
Before D.W. NELSON and T.G. NELSON, Circuit Judges, and SCHWARZER, Senior District Judge.
The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The State appeals the conditional grant of habeas corpus to petitioner Shelton Daniels, whose retrial has been stayed during the pendency of this appeal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 and affirm.
During jury selection in Daniels's state court trial for transportation of a controlled substance, the State exercised a peremptory challenge to excuse an African-American juror, Juror M. Daniels's counsel then moved for a mistrial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Following considerable colloquy, the trial judge denied Daniels's motion on the ground that Batson and Wheeler require a pattern of systematic exclusion and a pattern requires the use of more than one peremptory challenge.
The California Court of Appeal found the trial court had erred as a matter of law by ruling that a defendant cannot make a prima facie case based on only one peremptory challenge. People v. Montiel, 5 Cal.4th 877, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (1993). It nevertheless affirmed the trial court, holding first that a prima facie case under Wheeler requires defendant to "show a strong likelihood that the persons being challenged are being challenged because of their group association." It then determined, after an independent review of the record on voir dire, that Daniels had failed to make a prima facie case because "overt religiousness" was a ground fact-specific to Juror M, distinct from race or religious affiliation and, hence, an acceptable ground on which the prosecutor might reasonably have challenged Juror M.
In Wade v. Terhune, 202 F.3d 1190 (9th Cir.2000), we held that California courts following the "strong likelihood" language of Wheeler are not applying the correct legal standard for a prima facie case under Batson. Wade, 202 F.3d at 1197. By applying the "strong likelihood" standard of Wheeler, the Court of Appeal impermissibly required Daniels to meet a more stringent burden than the "inference" of racial discrimination standard under Batson. Its decision thus involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1). Where a state court applies the incorrect legal standard, we do not defer to its determination that a defendant has failed to establish a prima facie case of bias. Our review of the Batson claim is therefore de novo. Wade, 202 F.3d at 1195, 1197.
The California Supreme Court has since clarified in People v. Box, 23 Cal.4th 1153, 99 Cal.Rptr.2d 69, 5 P.3d 130 (2000), cert. denied, 532 U.S. 963, 121 S.Ct. 1497, 149 L.Ed.2d 383 (2001), "a 'strong likelihood' means a 'reasonable inference.' " Id. at 1188, 99 Cal.Rptr.2d 69, 5 P.3d 130 (citing Wade, 202 F.3d at 1196, and applying the "strong likelihood or reasonable inference" test).
The Court of Appeal reasoned that overt or hyper-religiousness could translate into the juror being unwilling to sit in judgment of another person. The record, which shows that Juror M had previously sat on a jury that convicted a defendant of murder, refutes this rationale. Moreover, Juror M testified on voir dire that he would have no trouble evaluating the credibility of law enforcement officers and applying the presumption of innocence, that he was regularly employed by a bank, and that the extent of his religious activity was teaching bible school on Wednesday nights, for which he prepared lesson plans. Furthermore Juror M's religious characteristics were comparable to Juror L's, who worked in a church bookstore, was not an African-American, but was not challenged. The Batson prima facie case requirement "is not onerous." Wade,
Page 478.
202 F.3d at 1197. We think this evidence was sufficient to raise a reasonable inference that Juror M was struck on account of his race and that the Court of Appeal's decision was thus based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Having found that Daniels had failed to make a prima facie case, the Court of Appeal never reached the second and third steps in the Batson analysis, whether the prosecutor had articulated a facially race-neutral explanation for the challenge, and whether defendant had established purposeful discrimination. Batson, 476 U.S. 94, 97-98, 106 S.Ct. 1712. Those issues therefore are not before us.
AFFIRMED.