Opinion
No. C 00-3910 CRB
May 15, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Raymond Henderson (hereinafter "petitioner") was convicted by a jury in the Superior Court of the State of California in the County of Alameda of residential burglary. Pursuant to California's Three Strikes Law, he was sentenced to 38 years to life in state prison. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California.
Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on January 16, 2001, the Court found that the petition stated three cognizable claims under § 2254 and ordered respondent to show' cause why a writ of habeas corpus should not be granted. The three cognizable claims are: (1) denial of equal protection and due process during jury selection, (2) ineffective assistance of counsel and (3) prosecutorial misconduct. Respondent filed an answer to the order to show cause and petitioner filed a traverse.
FACTUAL BACKGROUND
On June 11, 1995, at about 5:15 p.m., Monica and Stephen Fletcher saw a man later identified as petitioner in the backyard of Dennis Tang and Judy Tran's home on Vallecito Street in Oakland. Petitioner was carrying a white plastic bag. Stephen Fletcher saw petitioner walk up a flight of stairs to the back of the house, knock on the back door and wait. Petitioner then looked around, pulled a white sock out of his bag and put it on his hand. Stephen Fletcher then watched as petitioner climbed a tree adjacent to the back door and saw that a window next to the tree had been left open.
Less than a minute later, Mr. Fletcher saw petitioner run from the direction of the back door of the house. Petitioner apparently heard two police officers who arrived at the scene in response to Mrs. Fletcher's 911 call. With one police officer in pursuit, petitioner ran across the backyard and vaulted a fence. The officer lost sight of the suspect. Petitioner continued to run and leap over successive fences. As he did so, he discarded the white plastic bag, the white sock he had on his hand, along with his hat, a jacket, a shirt, and a pair of jeans he was wearing.
Meanwhile, the police established a perimeter around the site of the suspected burglary. At around 5:26 p.m., an Oakland police officer saw petitioner emerge from 1325 East 31st Street and walk toward him. Petitioner was wearing white sweat pants and a black t-shirt. The officer detained petitioner because he matched the suspect's age and race, was sweating and breathing heavily, and had pieces of bush and debris in his hair. The two officers who initially arrived at the scene then positively identified petitioner as the burglary suspect. The police also found a key in the pants the suspect discarded. That key opened the front door to petitioner's apartment. Petitioner was then arrested and charged with residential burglary, Cal. Penal Code § 459. Nothing was taken from the house and there was no damage to any of its doors or windows.
Petitioner testified at trial. He admitted that he went to the back of the house, but denied entering the house or having the intent to steal from the residence. Petitioner claimed that he was walking back from his daughter's house when he noticed a police officer. He had a change of clothes and some painting supplies with him because he had gone to his daughter's house to do some painting. When petitioner saw the police officer, he attempted to elude the officer because he believed that he had an outstanding arrest warrant as a result of a parole violation. Petitioner stated that he subsequently walked down Vallecito Street and ultimately into the victims' backyard to avoid the police. Petitioner admitted that he knocked on the victims' backdoor, but claimed that he did so because a neighbor spotted him and he wanted to deflect suspicion. After realizing that the police arrived, petitioner ran through neighboring yards and testified that he took off his jacket when it snagged on a fence and his baseball cap fell off during the chase. Petitioner also stated that he discarded his jeans and t-shirt because he did not want to be identified and arrested for a parole violation.
On June 30, 1996, petitioner was convicted by an Alameda County jury of first degree residential burglary. The California Court of appeal affirmed petitioner's conviction on July 6, 1999. In its unpublished decision, the Court of Appeal addressed all of the claims upon which petitioner seeks relief. The California Supreme Court denied review and petitioner did not pursue collateral relief in state court. Petitioner filed the instant petition on October 24, 2000.
DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000).
B. Claims
Petitioner raises three cognizable claims under § 2254: (1) that the prosecutor and defense counsel unconstitutionally exercised peremptory challenges to exclude jurors because of their race or gender; (2) the prosecutor committed misconduct in her closing argument by misrepresenting a material fact to the jury; and (3) ineffective assistance of counsel because petitioner's trial counsel improperly exercised peremptory challenges, failed to stipulate to the element of intent, and failed to introduce important evidence.
1. Exercise of Peremptory Challenges
(a) The Prosecutor's Exercise of Peremptory Challenges
Petitioner claims that the prosecutor unconstitutionally exercised peremptory challenges to exclude four jurors because of their race or gender: Daniel Latimore, an African-American male; Amata Morgan, an African-American female; and Veronica Hammond Jaime and Louise Toboroff, both Caucasian females.
The Equal Protection Clause of the Constitution forbids challenging potential jurors solely on account of their race or gender. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994); Batson v. Kentucky, 476 U.S. 79, 89 (1986). A party may raise an equal protection claim on behalf of a juror regardless of whether the party and the excluded juror share the same race (or gender). See Powers v. Ohio, 499 U.S. 400, 406 (1991).
As part of its Batson analysis, the Supreme Court applies a three-step process for evaluating claims involving a prosecutor using peremptory challenges in an allegedly unconstitutional manner. See Hernandez v. New York, 500 U.S. 352, 358 (1991); Batson, 476 U.S. at 96-97. "First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race [or gender]."Hernandez, 500 U.S. at 358. However, if the trial court ruled on the ultimate question of intentional discrimination, a federal habeas court does not need to dwell on the first step because "the preliminary issue of whether the defendant has made a prima facie showing becomes moot."Id. at 359. "Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race [or gender] neutral explanation for striking the jurors in question." Id. at 358-59. The prosecutor cannot meet this burden through "mere general assertions," but must demonstrate that "`permissible . . . neutral selection criteria and procedures have produced the . . . result.'" Batson, 476 U.S. at 94. "Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." Hernandez, 500 U.S. at 359.
In evaluating the prosecutor's explanation of race or gender neutrality, proof of discriminatory intent or purpose, and not merely disproportionate impact, is required to show a violation of the Equal Protection Clause. See id. at 355-62. In addition, the findings of the trial court on the issue of discriminatory intent are entitled to "great deference" because "evaluation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly with a trial judge's province.'" Id. at 364-65 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Therefore the trial court's conclusion is not to be reversed unless it is found to be "clearly erroneous." Id. at 369.
1. Daniel Latimore
The prosecutor exercised her nineteenth peremptory challenge to excuse Daniel Latimore ("Latimore"), an African-American student at U.C. Berkeley, and defense counsel objected to the challenge onWheeler-Batson grounds. The trial court found petitioner made out a prima facie case of group bias against Latimore. Consequently, the prosecutor gave the following reasons for excusing Latimore: (1) his age and "limited life experience"; (2) his body language which suggested his "open hostility" and "displeasure" at being in the jury venire; (3) his "baggy clothes," which the prosecutor thought was a "reflection of his age;" (4) Latimore was unmated, had no children, and lived at home with his parents; and (5) he did not call the police after his younger brother's bicycle was stolen, "indicating a sort of hopelessness" regarding law enforcement. People v. Henderson, No. A077178, slip op at 11 (Cal Ct. App. July 6, 1999) (Resp't Exh. G); Reporter's Transcript ("RT") at 712-15.
In People v. Wheeler, 22 Cal.3d 258 (1978), the California Supreme Court held that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. Id. at 276. Subsequently, courts have held that Wheeler and Batson apply the same standards to peremptory challenges and are interchangeable. See Wade v. Tehune, 202 F.3d 1190, 1196 (9th Cir. 2000); People v. Box, 23 Cal.4th 1153, 1188 n. 7 (2000); People v. Johnson, 47 Cal.3d 1194, 1216 (1989).
Petitioner maintains that the prosecutor's reasons were pretextual. For example, the prosecutor's reference to "baggy clothes" was merely used as a substitute for overt racial stereotypes. Petitioner mainly relies on comparative analysis to support a finding that the prosecutor's reasons for excusing Latimore were a pretext for discrimination. Apparently, two of the final jurors were single with no children and lived at home with their parents. Likewise, one juror was single with no children and three others had no children. Another juror also did not file a report with the police when radios were stolen from his brother and sister's cars and one juror did not call the police when someone broke into his car. Finally, petitioner argues that the prosecutor exercised her challenge against Latimore in retaliation for defense counsel's excusal of a potential non-black male juror. Latimore was excused after the prosecutor had already passed on the jury panel — including Latimore — therefore petitioner infers that she struck Latimore for retalitory purposes and that the reasons she gave to the trial court were contrived.
Respondent argues that petitioner's reliance on comparative analysis is illegitimate based on People v. Johnson, 47 Cal.3d 1194 (1989). In Johnson, the California Supreme Court held that comparative analysis, as utilized by petitioner, is unreliable and should not be used because it fails to consider the fact to a "the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar." Id. at 1221. Therefore, the California Court of Appeal rejected petitioner's attempt to rely on comparative analysis. People v. Henderson, slip op. at 12.
However, the Supreme Court is silent on this issue, and the Ninth Circuit has utilized comparative analysis in habeas petitions originating from California state courts. See United States v. Chinchilla, 874 F.2d 695, 698-99 (9th Cir. 1989); Burks v. Borg, 27 F.3d 1424, 1427 (9th Cir. 1994); McClain v. Prunty, 217 F.3d 1209 (9th Cir. 2000). InBurks, the court wrestled with whether Johnson barred the use of comparative analysis, but concluded that comparative analysis did not provide a definitive answer by stating:
Chinchilla does not stand for the proposition that Batson is violated whenever prospective jurors of different races provide similar responses and one is excused while the other is not. Nothing in Chinchilla precludes trial counsel from making credibility determinations. . . . In short, counsel is entitled to exercise his full professional judgment in pursuing his client's `legitimate interest in using peremptory challenges . . . to secure a fair and impartial jury.'Burks, 27 F.3d at 1429 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 (1994). However, in a recent decision endorsing the use of comparative analysis, the Ninth Circuit did not specifically address the California Supreme Court's disavowal of comparative analysis. See McClain v. Prunty, 217 F.3d 1209, 1220-22 (9th Cir. 2000). Therefore, it appears that the law in this circuit is to allow the use of comparative analysis, but it does not "diminish the deference we must give to findings properly made by a trial court." Burks, 27 F.3d at 1428.
The trial court agreed with the prosecutor's observations and denied petitioner's Batson motion. The court noted that Latimore "expressed . . . considerable displeasure" with being in the venire, which "transcends the displeasure that you can say all jurors hold." The court also found that Latimore had "limited life experience," far less than others who remained on the jury, and that his lack of life experience had no relation to his race. The court concluded that the prosecutor's reasons for excusing Latimore "are not sham reasons" but instead were "genuine expressions of her concerns [which are] legitimate reasons for exercising peremptory challenges." RT 740-43.
The Court of Appeal stated that the trial court fulfilled its duty to make a sincere effort to evaluate the nondiscriminatory justifications offered by the prosecutor and thus its conclusions were entitled to great deference. See People v. Franklin, slip op. at 11. In addition, the reasons given by the prosecutor for excusing Latimore were legitimate under California law. See id. at 11-13. In following Johnson, the Court of Appeal also rejected petitioner's use of comparative analysis and noted that the final composition of the jury included two African-American women, thus supporting a finding that the prosecutor did not act with discriminatory intent in excusing African-Americans such as Latimore. See id. at 12-13. The court concluded that "substantial evidence supports the trial court's finding . . . [t]hus the court did not err in denying the Wheeler-Batson motion as to Latimore." Id. at 13.
The Court concurs with the Court of Appeal decision because petitioner fails to show that the prosecutor acted with discriminatory intent in using a peremptory challenge against Latimore. The reasons given by the prosecutor for striking Latimore were upheld by the trial court and all have been found to be legitimate neutral considerations. The prosecutor and trial court both found that Latimore had limited employment or life experience, lived at home with his parents, was unmarried, and had no children. See e.g., Stubbs v.Gomez, 189 F.3d 1099, 1105-06 (9th Cir. 1999); United States v. Hunter, 86 F.3d 679, 683 (employment experience and experience outside the home are neutral considerations); Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (life experience is a neutral consideration); United States v. Nichols, 937 F.2d 1257, 1264 (7th Cir. 1991); United States v. Williams, 934 F.2d 847, 849-50 (7th Cir. 1991) (marital status is a neutral consideration).
In addition, the prosecutor and trial court agreed that Latimore exhibited youth and immaturity during the voir dire, both neutral considerations. See e.g., United States v. Joe, 8 F.3d 1488, 1499 (10th Cir. 1993) (youth and maturity level are neutral considerations); United States v. Ferguson, 935 F.2d 862, 865 (7th Cir. 1991) (youth is a neutral consideration); United States v. Williams, 934 F.2d at 849-50 (same). Further, the prosecutor and trial court both concluded that Latimore showed "displeasure" with being at the proceedings. Demeanor, disinterest and reluctance to serve on a jury are also neutral considerations. See Stubbs, 189 F.3d at 1105; Jones v. Gomez, 66 F.3d 199, 201-02 (9th Cir. 1995). Likewise, the prosecutor and trial court referred to Latimore' s apparent belief that redress of crime through law enforcement was not useful. Again, negative experiences or a lack of faith in law enforcement are neutral reasons for using a peremptory strike. See Jordan v. Lefevre, 206 F.3d at 200; United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987). In sum, the prosecutor met her burden through providing permissible racially neutral selection criteria and the trial court's endorsement of the provided criteria is entitled to great deference. See Hernandez, 500 U.S. at 364; Batson, 476 U.S. at 94.
Petitioner's reliance on comparative analysis is also not persuasive. While petitioner can point to isolated examples of similarities between Latimore and jurors who were not stricken, his argument is undermined by the final composition of the jury. The final sixteen jurors (including four alternates) consisted of seven minority and nine white jurors, three minority male and four minority female jurors, including one African-American male and three African-American female jurors. Acceptance of minorities on the jury has been endorsed as "a valid, though not necessarily dispositive, consideration in determinating whether a prosecutor violated Batson." Burks, 27 F.3d at 1429; see also United States v. Chinchilla, 874 F.2d 695, 699 n. 4 (9th Cir. 1989) ("the willingness of a prosecutor to accept minority jurors weighs against the findings of a prima facie case"). While the final composition is therefore not dispositive, in combination with the assortment of valid neutral factors put forward by the prosecutor and endorsed by the trial court, it further discredits the isolated examples utilized in petitioner's comparative analysis.
Further, if comparative analysis is utilized, the court should also consider the peremptory challenges the prosecutor used against three other jurors who were single, without children, and living alone and one juror who was not married, did not have children and lived with his parents. RT 714. Therefore, comparative analysis fails to support petitioner's claim that the prosecutor used peremptory challenges in an unconstitutionally discriminatory manner.
Petitioner also asserts that Latimore was stricken from the venire in retaliation for defense counsel striking a non-black male juror. The timing of the peremptory challenge is a valid factor to analyze in determining whether the reasons given by the prosecutor were pretextual.See Batson, 476 U.S. at 94. However, it is one of many factors to be analyzed, and the trial court considered a variety of factors in determining that the prosecutor's peremptory strike was supported by legitimate neutral reasons. The trial court "is best suited to conduct this inquiry" through observing the jury selection process firsthand and petitioner fails to show it committed a "clear error" in concluding that there were valid reasons for striking Latimore. Turner v. Marshall, 121 F.3d 1248, 1251 (9th Cir. 1997).
In sum, substantial evidence supports the trial court and Court of Appeal's finding that the reasons the prosecutor gave for excusing Latimore were legitimate reasons for exercising peremptory challenges. Petitioner therefore fails to establish that the Court of Appeal's endorsement of the trial court's findings was contrary to, or involved an unreasonable application of, United States Supreme authority. Thus, the state court did not err in denying the Batson motion as to Latimore.
2. Amata Morgan
The prosecutor used her second peremptory challenge to excuse Amata Morgan ("Morgan"), a young African-American woman and also a student at U.C. Berkeley. Defense counsel made a Wheeler-Batson objection, alleging that the prosecutor was discriminating against African-Americans in general, and African-American women in particular. The trial court again found a prima facie case of group bias and required the prosecutor to provide reasons for challenging Morgan. The prosecutor stated that she did not actually think Morgan was African-American and gave the following reasons for using a peremptory challenge against her: (1) she appeared to be "18 or 19 years old" and had "minimal life experience;" (2) she did not seem "serious enough" or "mature enough . . . to sit through a proceeding of this complexity;" (3) the prosecutor was also concerned with the fact that Morgan's father was charged with assaulting a woman and thus Morgan may be disinclined to convict; and (4) the combination of Morgan's age, lack of work experience, unmarried status, not having kids, and never being on a jury. RT 253-34 to 253-37.
Petitioner again utilized comparative analysis to argue that the prosecutor's justification was pretextual. Petitioner points to the same jurors who similarly lacked life experience that were identified with respect to the Latimore challenge. In addition, petitioner refers to three jurors who had relatives who were jailed and one juror who was actually jailed himself, to challenge the prosecutor's alleged concern with Morgan's father's assault.
The trial court initially pointed out that it agreed with the prosecutor in believing that Morgan was not an African-American. The court then examined the prosecutor's reasons for using a peremptory challenge against Morgan and found that they were not pretextual. The court pointed to Morgan's "limited life experience" and the fact that she "jump[ed] around from subject to subject . . . reflecting perhaps either inability or unwillingness to focus for very long on one subject." The court also noted that while it is not "dispositive," there were already four African-American women sitting on the jury and it was early in the jury selection process. RT 253-51 to 253-54. In conclusion, the court stated:
My conclusion is this: I have very carefully evaluated as carefully as I possibly can [the prosecutor's] stated reasons for excusal of these jurors and I have tried to make as ( sic) sincere and reasoned attempt to evaluate those explanations in light of all materials available to me. For whatever value this has, I have been involved in the criminal justice system either as an attorney or a judge for 30 years . . . I offer that background in terms of my trial techniques and my observations of the manner in which, in this [the prosecutor] has examined members of the veniremen. I do not believe these are sham excuses, I believe that these are bonified reasons that have nothing to do with race.
RT 253-53.
The Court of Appeal upheld the trial court's decision because the trial court "fulfilled its duty to make a `sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.'" People v. Henderson, slip op. at 14 (quoting People v. Jackson, 13 Cal.4th 1164, 1197 (1996)). The court also agreed that the factors provided by the prosecutor were neutral by stating, "Ms. Morgan's youth and lack of life experience were legitimate factors the prosecutor could consider in exercising peremptory challenges." Id. (citing People v. Arias, 13 Cal.4th 92, 138-39 (1996); People v. Perez, 29 Cal.4th 1313, 1328 (1994)).
For the same reasons stated in rejecting petitioner's claim in relation to Latimore, petitioner's Batson claim as to Morgan also lacks merit. Again, all of the reasons for excusing Morgan given by the prosecutor — lack of experience, youth, unmarried, no kids, immaturity, disinclination to convict — and endorsed by the trial court provide legitimate non-pretextual justification for using peremptory challenges.See Jordan v. Lefevre, 206 F.3d at 200; Stubbs, 189 F.3d at 1105;Nichols, 937 F.2d at 1264; Williams, 934 F.2d at 849-50; Vaccaro, 816 F.2d at 457. In addition, the prosecutor and trial court were both unsure as to whether Morgan was African-American. This suggests that the prosecutor's challenge was not based on Morgan's race.
Petitioner fails to justify an equal protection violation based on gender or race through comparative analysis. Again, the final composition of the jury (including alternates) consisted of ten female jurors, three of whom were African-Americans, thus providing further support for the trial court and Court of Appeal's conclusion that petitioner's claim lacks merit. See Burks, 27 F.3d at 1429; Chinchilla, 874 F.2d at 699 n. 4.
As in the case of Latimore, substantial evidence supports the Court of Appeal's endorsement of the trial court's finding that the prosecutor had valid neutral reasons for using a peremptory challenge against Morgan. Therefore its decision was not contrary to, and did not involve an unreasonable application of, United States Supreme Court authority. Thus, petitioner's claim for relief based on an alleged Batson violation as to Morgan is denied.
3. Veronica Hammond Jaime
Veronica Hammond Jaime ("Jaime") was described by the trial court as a 24 year old white female working as a pharmacy technician at a non-profit clinic. She was not married and had no children. The prosecutor exercised her ninth peremptory challenge to excuse Jaime, and petitioner objected to the challenge on the grounds of group bias against women. The trial court found defense counsel made a prima facie showing of group bias and the prosecutor offered the following reasons in justifying her challenge: (1) "she developed this Spanish accent when she wanted a Spanish accent;" (2) her life experience was limited, given her age, and being unmated without children; (3) Jaime made some comments to the other jurors that evoked laughter, made comments like "I don't want to be here," and sighed audibly; and (4) the prosecutor felt Jaime "actively disliked" her and was "almost hostile to me," but was "very gracious and charming" with defense counsel. RT 707-08.
Petitioner again relies on a comparative analysis to support a finding of gender bias. As in his claims regarding Latimore and Morgan, petitioner points to jurors with similar life experience as Jaime who the prosecutor found to be suitable.
The trial court confirmed the prosecutor's observations and denied petitioner's Batson-Wheeler motion. The court found that the prosecutor gave legitimate, non-pretextual reasons for exercising a peremptory challenge against Jaime:
Nobody is happy about being on jury duty, but Ms. Jaime had a level of unhappiness which was pretty clear from my observations as well. I did note all of the observations [the prosecutor] did, but I did note that there appeared to be no reflection of acceptance or willingness to have a friendly relationship between Ms. Jaime and the [prosecutor], rather that there were expressions of those kinds of things between Ms. Jaime and [defense counsel] is the conclusion I drew from that. I didn't make much note of it at the time, but I feel again from an examination of the entire record that these are genuine statements of the true reasons for [the prosecutor] dismissing Ms. Jaime, not having anything to do with her gender.
RT 734-36.
As in the case of Latimore and Morgan, the Court of Appeal upheld the trial court's decision to deny petitioner's Batson motion:
Again, the trial court fulfilled its duty to make a `sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered' and its conclusions are therefore entitled to deference on appeal. Moreover, the prosecutor's reasons were proper gender neutral reasons for exercising peremptory challenges. Finally, as the trial court noted, the jury selected actually contained more women than men (seven to five) and this supported the trial court's finding that the prosecutor did not act with discriminatory intent in excusing other women from the jury.People v. Franklin, slip op. at 15-16 (citations omitted).
For the reasons previously stated, the justification provided by the prosecutor for excusing Jaime are valid reasons for exercising a peremptory challenge, including Jaime's hostility towards the prosecutor and displeasure with jury duty. See Jordan, 206 F.3d at 200; Stubbs, 189 F.3d at 1105; Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir. 1990). Petitioner's use of comparative analysis again fails to justify finding a Batson violation as to Jaime.
Substantial evidence, including the final composition of the jury, supports the Court of Appeal's endorsement of the trial court's finding that the prosecutor had valid non-discriminatory reasons for using a peremptory challenge against Jaime. The Court of Appeal's decision was not contrary to, and did not involve an unreasonable application of, United States Supreme Court authority. Petitioner's claim for relief based on an alleged Batson violation as to Jaime is therefore denied.
4. Louise Toboroff
The prosecutor used her third peremptory challenge to excuse Louise Toboroff ("Toboroff") on July 17, 1996. RT 253-15. Defense counsel did not raise a Batson objection as to Toboroff at that time. Toboroff was a part-time teacher's aide and was married with two children. RT 192. She told the court that her home was burglarized in 1982 and that the perpetrators were not caught, but she was "perfectly happy with what happened" and recovered her belongings through insurance. RT 193. However, Toboroff also said that she "felt it was a neighbor who knew they had an easy access over the back fence type of thing . . . . [the police] did what they could and it wasn't exactly my belongings, but I recovered through insurance." RT 220. After the prosecutor used peremptory challenges against two more non-minority women from the jury after challenging Toboroff, defense counsel made a Batson objection based on the prosecutor discriminating against women.
On July 22, 1996, the trial court heard defense counsel's gender-basedBatson motions and defense counsel addressed his claim concerning Toboroff. The colluquy will be transcribed in its entirety because of its relevance to the issue as to whether defense counsel made a specificBatson-Wheeler objection to the peremptory challenge to Toboroff:
Defense counsel: I would indicate that the third peremptory challenge exercised by the people was against another female, Ms. Coatroff ( sic — Toboroff) who was not addressed in the earlier motion. She indicated she was employed as a teacher's aid ( sic) . . . her husband was employed . . . she had children. She obviously came from a very stable background.
Prosecutor: Excuse me, if I might interrupt. Ms. [Toboroff] is now the second person discussed and offered as part of this motion in addition to Ms. Heily that was not actually a challenge at the time I just as a procedural question was wondering if [defense counsel] essentially is going challenge by challenge even on people where he did not raise a Wheeler motion whether that is appropriate.
The Court: Well, I think your point is well taken, but I'm not going to preclude [defense counsel] from making reference to any jurors here although I —
Prosecutor: Just a point of order.
The Court: As a separate subject of the motion there was no motion filed so I'm not going to consider the excuse of Ms. [Toboroff] as subject to the Wheeler motion made. However I'm not going to preclude a/n counsel from making reference to any juror that information will be relevant to my making a decision in the entire record
Prosecutor: Okay. . . . I just want to be clear for the record and the way [defense counsel's] going challenge by challenge is not clear.
The Court: All right. The record will note that I may have some remarks to make later about the propriety of comparative juror analysis, but at this point I'd rather allow both counsel to make reports as they wish.
Prosecutor: That's fine. Excuse my motion.
The Court: But I will not preclude either counsel from referring to anything we have done here during jury selection. Go ahead [defense counsel].
Defense counsel: Yes. Just for the record I think jurors Heily and [Toboroff] are relative ( sic) to the motion because the help to establish a pattern of excusing jurors not based on anything that disqualified them but rather just as a pattern of excusing female jurors.
The Court: All right. Thank you.
RT 689-91 (emphasis added). The court therefore never precluded defense counsel from asserting that Toboroff was part of his gender-based Batson claim.
Subsequently, the court gave the prosecutor an opportunity to argue that defense counsel failed to make a prima facie case for gender-based discrimination. After the court found that defense counsel established a prima facie case, the prosecutor gave her justification for the challenged peremptory strikes. The prosecutor started with Ms. Heily, "who was not the subject of a motion but who is someone [defense counsel] just argued to you." RT 699. The prosecutor then provided justification for eight of her peremptory challenges, but did not refer to Toboroff. RT 699-717. After the prosecutor finished, the court asked defense counsel if he had any response. RT 717. Defense counsel proceeded to comment on the prosecutor's arguments in great detail, spanning five pages of the court reporter's transcript, without once mentioning Toboroff. RT 717-22. Both sides then submitted the matter to the court. RT 724.
It thus appears that the court gave defense counsel the opportunity to raise a Batson objection as to Toboroff, but defense counsel never specifically included her in his gender-based class of discriminatory challenges. The Supreme Court held that constitutional rights "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." United States v. Olano, 507 U.S. 725, 731 (1993) (quotingYakus v. United States, 321 U.S. 414, 444 (1944)). Petitioner thus forfeited his claim as to Toboroff by not specifically including her in his initial Batson motion. Petitioner's claim as to Toboroff is thus barred unless he can demonstrate cause for the default — such as ineffective assistance of counsel — or prejudice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). And petitioner has not raised such a claim as to Toboroff.
After examining the record, the Court concludes that the California Court of Appeal's determination that petitioner "never made a specificWheeler-Batson motion to the peremptory challenge to Louise Toboroff" was not unreasonable. People v. Franklin, slip op. at 13. Petitioner's claim regarding the prosecutor's peremptory challenge of Toboroff is therefore barred and the Court will not examine the underlying merits.
(b) Defense Counsel's Exercise of Peremptory Challenges
Petitioner also claims that his constitutional rights were denied by his own trial counsel's use of peremptory challenges. He asserts that counsel exercised peremptory challenges to exclude Caucasian males from the jury on the basis of their race and gender. Therefore, petitioner argues that his conviction must be reversed based on the trial court's failure to remedy this violation.
The use of peremptory challenges by either the prosecution of defense counsel to exclude cognizable groups from a jury may violate the Equal Protection Clause. See Georgia v. McCollum, 505 U.S. 42, 55-56 (1992). InMcCollum, the Court extended Batson to defense counsel because "if a court allows jurors to be excluded because of group bias, [it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice — our citizens' confidence in it.'" Id. at 49-50 (citations omitted). The Supreme Court, however, did not address the potential remedy for such a violation.
While the Supreme Court has yet to address what the remedy should be for defense counsel's Batson error, two federal circuit courts have examined the issue and there is a split in authority. See United States v. Boyd, 86 F.3d 719 (7th Cir. 1996); United States v. Huey, 76 F.3d 638 (5th Cir. 1996). In Huey, the Fifth Circuit reversed the defendant's conviction based on his counsel's Batson error. See Huey, F.3d at 641-42. The court was aware of the "irony in reversing [defendant's] conviction," but nevertheless decided that it was necessary because it was the only way to regain public confidence in the integrity of the judicial system. Id.
In Boyd the Seventh Circuit emphatically rejected Huey by stating that "[g]iving a defendant a new trial because of his own violation of the Constitution would make a laughingstock of the judicial process." Boyd, 86 F.3d at 725. The Boyd court held that this finding was consistent with Supreme Court precedent, because the McCollum holding stood for the "[i]mportnat social interests [that] allow a judge to block the defense from taking certain action. . . . It does not follow that by violating these important social interests a defendant can help himself to a new trial." Id. at 724.
The Court does not need to choose sides in this debate, because petitioner's claim lacks merit. Even if the claim had merit, petitioner would not be entitled to a new trial on this ground because no clearly established Supreme Court precedent requires a new trial for defense counsel's violation of Batson.
Defense counsel ultimately exercised 15 peremptory challenges and the prosecutor interposed her own Batson-Wheeler objections to nine of the defense challenges. After denying defense counsel's Batson-Wheeler motions, the trial court turned to the prosecutor's objections and the parties appeared to resolve the dispute:
The Court: Yesterday evening we completed the litigation of the Wheeler motion filed on behalf of [petitioner] by [defense counsel]. There is a second half, so to speak, of those motions which were Wheeler motions filed during jury selection by [the prosecutor] on behalf of the people and there were . . . nine separate motions filed on behalf of the people following the exercise of peremptory challenges by [defense counsel], however, we did not deal with those at all yesterday evening . . . so [prosecutor], how do you wish to proceed?
Prosecutor: Your Honor, at this point I wish to withdraw each of the Wheeler motions I lodged during the course of the peremptory challenges.
The Court: I didn't hear the last. I heard withdraw but what else?
Prosecutor: Withdraw each of the motions I made with respect to . . . Wheeler during the peremptories of exercising excuses.
The Court: All right. [defense counsel], any thoughts or comments?
Defense Counsel: Well, judge, I was prepared to concede the motions this morning.
The Court: You were going to concede the motions?
Defense Counsel: Yeah, but I don't —
The Court: All right. I think it would be appropriate to. This is a motion brought by the people so I think the people are entitled to withdraw it, so I will accept that and the motions are withdrawn.
Augmented Reporter's Transcript 135-36 (Resp't Exh. C).
Petitioner asserts that defense counsel's "concession" statement was an admission of his Batson violation. Petitioner also points out that 13 of defense counsel's peremptory strikes were directed against non-black men and 14 of his 15 challenges were directed against non-blacks. In addition, petitioner claims that the trial court acknowledged defense counsel's violation by stating that his proposed concession "was appropriate."
Petitioner's alleged "concession" is irrelevant because it was made after the prosecutor already withdrew her Batson-Wheeler motions. To establish a violation, the moving party must make a prima facie showing of purposeful discrimination. See McCollum, 505 U.S. at 49; Batson, 476 U.S. at 94-96. Here, however, the prosecutor never attempted to affirmatively establish that jurors had been challenged because of their race of gender. In addition, the prosecutor "never even identified the `cognizable group' defense counsel was allegedly discriminating against."People v. Franklin, slip op. at 18-19 (quoting Wheeler, 22 Cal.3d at 280).
Moreover, it is impossible to understand the full context and meaning of defense counsel's "concession" at this point. Perhaps, as respondent points out, it was a tactical attempt on the part of defense counsel to gain what he had failed to accomplish through his own Wheeler-Batson motions: discharge of the jury. Similarly, the trial court's "appropriate" comment is also ambiguous at best. The court may have been referring to defense counsel's concession, but it is just as likely that the reference was made to the prosecutor's withdrawal of her motion.
The California Court of Appeal concluded that under these circumstances the trial court was not required to find a prima facie case even though the prosecutor had withdrawn the motions. The court came to this conclusion based on a California Supreme Court case holding that the trial court was not required to determine if a prima facie case was established after the Batson-Wheeler motion was withdrawn. See California v. Fudge, 7 Cal.4th 1075, 1096-97 (1994).
In sum, petitioner's claim based on the constitutionality of defense counsel's peremptory challenges was not preserved for appeal because the prosecutor withdrew her Batson-Wheeler motions without objection from defense counsel. The state court did not err in denying this motion and relief is therefore denied on this basis.
2. Prosecutorial Misconduct
Petitioner next alleges that the prosecutor committed misconduct in closing argument by misrepresenting a material fact to the jury. Thus, petitioner asserts his conviction should be reversed.
The United States Supreme Court has held that inappropriate comments made by the prosecutor in the presence of the jury may constitute reversible prosecutorial misconduct. See Darden v. Wainwright, 477 U.S. 168, 179-81. However, the appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See id. at 181. A defendant's due process rights are only violated when a prosecutor's misconduct renders the trial "fundamentally unfair."Id. Claims of prosecutorial misconduct are reviewed "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995).
If the prosecutor committed misconduct, the court then must find actual prejudice to reverse the defendant's conviction. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Prejudice only occurs when the error has a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
As mentioned in the statement of facts, petitioner's primary explanation for his conduct was that he was on parole and believed he had an outstanding probation violation. Therefore, he went to the back of the residence to avoid contact with the police and fled to avoid being arrested for the perceived parole violation.
Petitioners s misconduct claim is based on the following remarks made the prosecutor during her rebuttal portion of her closing argument to the jury:
Prosecutor: Mr. Henderson [petitioner] suggests to you that the reason he took off from the police or he went on this long run was because he had a parole warrant. It's interesting [defense counsel] didn't argue anything about what Mr. Henderson — and I would urge you to disregard the entire testimony of Mr. Henderson, he has an incredible motive to lie, he has done this before.
The judge will read you a jury instruction that says if you find a witness willfully false in one part of his testimony you may disregard the entirety of his testimony. If there was any evidence that this defendant had a parole warrant you can bet your boots —
Defense Counsel: Objection, Your Honor. Objection.
The Court: On what grounds?
Defense Counsel: She is arguing facts she knows not to be true.
The Court: Let me see both counsel in chambers. [Not reported]. . . . For the record the objection is overruled, and you may continue.
Prosecutor: There is no evidence before the jury that there was a parole warrant of any kind on the defendant.
RT 534-35 (emphasis added).
Petitioner asserts that the prosecutor misrepresented a material fact because she knew — or at least the information was known to the prosecution team — that petitioner in fact had an outstanding parole warrant. During a pretrial suppression hearing, one of the arresting officers testified that during the course of his investigation he "learned that [petitioner] was a parolee at large, that he had a warrant out for his arrest." Supplemental RT 190 (Resp't Exh. B). The prosecutor was present when the officer testified about the warrant at the suppression hearing. In addition, a police report written by one of the arresting officers noted that "upon identifying Henderson I learned via service that Henderson was an outstanding parolee at large." RT 540. The designation "parolee at large" is used by the State Department of Corrections to mean "that the parolee has absconded from parole supervision." People v. Ford, 54 Cal.App.3d 149, 153 n. 1 (1975). However, neither party has yet to produce petitioner's outstanding parole warrant.
Outside of the presence of the jury, the trial court heard arguments concerning the prosecutor's statement. Defense counsel argued that petitioner had an outstanding parole warrant based on the suppression hearing testimony and the police report and the prosecutor was aware of the warrant. Thus, defense counsel asserted that "it is unethical even if there is no actual evidence of a warrant just as it is true with any fact even if there s no evidence of that fact, unethical to claim — for any attorney to claim that that fact is not true if he [or] she knows otherwise whether or not there is evidence about it in the case." RT 538. The prosecutor denied having any knowledge "whether or not this defendant had a warrant at that time . . . what I was intending to comment on in front of the jury was there's been no evidence that there was a warrant." RT 540.
In again overruling the defense objection, the trial court held:
I explained to the jury that this was argument. The prosecutor just as the defense attorney is entitled to comment on the state of the evidence and there's countless cases which indicate that a comment on the state of the evidence is appropriate.
In this case Mr. Henderson testified at some length that the reason for his flight and his apprehension is that because he had failed to report and perhaps other perceived transgressions that he, Mr. Henderson, believed the parole agent was going to issue a warrant for his arrest.
As [the prosecutor] points out he, Mr: Henderson, did not say that he knew there was a warrant for his arrest, simply that he believed there may be based on his own understanding of his own conduct that he had failed to report pursuant to the parole officer's obligation and then he went further and he testified that on prior occasions he had been arrested based on active warrants for his arrest issued by parole agents.
Given that testimony I think it's appropriate for [the prosecutor] to make the comments she did no more than the comments he [petitioner] did. I think it's an appropriate comment on this state of the evidence. . . . It's not an inappropriate comment for the prosecutor to point out that's, ( sic) there is no evidence of the existence of such a warrant now. . . . I think it's an appropriate comment on the state of the evidence . . . .
RT 543-44.
The Court of Appeal agreed with the trial court in finding that the prosecutor did not commit misconduct, because the prosecutor is "permitted to comment on the defense's failure to produce logical evidence." People v. Franklin, slip op. at 29. The court also stated that it did not believe the prosecutor misrepresented a material fact which she knew, or should have known, was untrue:
First, in light of the prosecutor's explicit claim she did not have `any knowledge' whether [petitioner] in fact had an outstanding parole warrant, we are unwilling to find she actually knew or believed that [petitioner] actually had an outstanding warrant. Moreover, [petitioner] has not produced a record which affirmatively establishes he in fact had a parole warrant outstanding at the time of his arrest. He has not produced the warrant itself or any official record of the warrant. Thus, [petitioner] has failed to carry his burden on the record to show [petitioner] in fact had an outstanding parole warrant at the time of his arrest, much less that the prosecutor knew or should have known of the warrant.Id. at 30.
However, the court also found that the prosecutor's comment that "[i]f there had been any evidence that this defendant had a parole warrant you can bet your boots . . . ." was "troubling" and questioned her honesty in denying knowledge of the parole warrant:
[i]t certainly appears the prosecutor was about to say: "you would have heard about [the parole warrant]' or words to that effect." Such an argument, if made, would have been fundamentally different from the acceptable one put on the record after the chambers conference. In light of defendant's trial testimony and references to the warrant by the arresting officer in his report and at the suppression hearing, it is difficult to believe the prosecutor's claimed ignorance of the warrant.Id. at 30 n. 13.
The Court, however, agrees with the trial court and Court of Appeal decisions and finds that the prosecutor made a permissible comment on the state of the evidence. A prosecutor may point out that the defense has not produced evidence during closing arguments. See United States v. Ponce, 51 F.3d 820, 831 (9th Cir. 1995). Petitioner's defense was based on his belief that he had an outstanding parole warrant, but he did not introduce evidence of an actual warrant. Thus, the prosecutor's statement that "[t]here is no evidence before the jury that there was a parole warrant," was an accurate and permissible statement indicating that no evidence was presented to the jury in support of petitioner's belief. Petitioner thus fails to show that the prosecutor's comments rendered his trial "fundamentally unfair." Darden, 477 U.S. at 181.
The Court is also somewhat troubled by the prosecutor's allusion to the lack of the existence of an arrest warrant. The comment, however, was somewhat ambiguous in that the prosecutor never completed her sentence and thus never actually stated that there was no outstanding parole warrant. Moreover, petitioner has yet to affirmatively establish the existence of the parole warrant.
Petitioner's attempt to analogize his situation to the defendant inUnited States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993), misses the mark. In Kojayan, the court concluded that the prosecutor "was not telling the truth" when he denied the existence of a cooperation agreement between the government and an unindicted co-conspirator. Id. at 1317-18. The court emphasized that the prosecutor was not asking the jury to infer something from the evidence, but instead made "unsupported factual claims" to the jury. Id. at 1321. Here, the prosecutor told the truth when she told the jury that petitioner failed to present evidence pointing to the existence of an arrest warrant. The prosecutor's "bet your boots" comment was an incomplete thought. The prosecutor completed her sentence by stating that "[t]here is no evidence before the jury that there was a parole warrant of any kind on the defendant." Unlike the prosecutor in Kojayan, she did not make an unsupported factual claim and told the truth about the state of the evidence to the jury.
Even if the prosecutor's "bet your boots" comment constituted misconduct — and the Court holds that it did not — petitioner is unable to show actual prejudice because he fails to show that the jury was misled by the prosecutor's comment. See Brecht, 507 U.S. at 637. In determining whether there was prejudice, the Court may consider the weight of the evidence against petitioner. See United States v. Young, 470 U.S. 1, 19 (1985). The jurors had an opportunity to listen to petitioner testify about his belief that there was an arrest warrant, but apparently did not believe his explanation. Instead, they concluded that petitioner entered Vallecito Street residence and thus committed burglary. The jury's conclusion was based on substantial evidence: the testimony of petitioner, the officers who pursued and arrested petitioner, and neighbors who witnessed the crime. In sum, "the state's case was strong," thus averting the potential for prejudice from the prosecutor's alleged misconduct. Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999).
The jury instructions also helped avert any possible prejudice created by the prosecutor's comment. In determining whether there was misconduct, "it is appropriate to consider whether the jury was instructed to decide solely on the basis of the evidence rather than counsel's arguments . . . ." Furman, 190 F.3d at 1006 (9th Cir. 1999) (citing Darden, 477 U.S. at 182). Here, the jury was instructed to not allow passion, prejudice, or other sentiments enter into their deliberations, that facts were only to be determined from evidence adduced at trial and no other source, and that the statements of counsel constituted neither evidence nor the law. RT 124-25, 546-48. The jury is presumed to have followed those instructions. Yates v. Evatt, 500 U.S. 391, 403 (1990). Therefore the prosecutor's remarks did not prejudice the jury because "when reviewed in context, [the misconduct] cannot be said to undermine the fairness of the trial and contribute to a miscarriage of justice." Young, 470 U.S. at 20.
In conclusion, prosecutor's comments did not constitute misconduct and her comments did not create prejudice the jury against petitioner. Therefore the Court of Appeal decision to deny petitioner's claim for relief based on prosecutorial misconduct is not an unreasonable application of, or contrary to, Supreme Court authority. Thus, petitioner's claim for relief is denied.
3. Ineffective Assistance of Counsel
In order to prevail on an ineffective assistance of counsel claim, petitioner must meet two requirements. First, petitioner must prove that counsel's performance was deficient through showing that his representation fell below an "objective standard of reasonableness."Strickland v. Washington 466 U.S. 668, 687-88 (1984). Second, if the first factor is met through showing counsel's deficiency, petitioner must then establish that he was prejudiced by counsel's deficient performance — i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is the equivalent of "a probability sufficient to undermine confidence in the outcome."Id.
Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id. at 689; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
Petitioner has the burden of showing that counsel's performance was deficient. See Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990). Similarly, petitioner must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Conclusory allegations that counsel was ineffective do not warrant relief Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995).
Petitioner claims he was denied effective assistance of trial counsel on three grounds: (a) counsel's exercise of peremptory challenges; (b) counsel's failure to stipulate on the issue of intent; and (c) counsel's failure to introduce important evidence. All of petitioner's claims lack merit.
Respondent claims that petitioner's claims concerning defense counsel's failure to stipulate and introduce important evidence are not exhausted, and thus procedurally barred, because they were not presented to the California Supreme Court in the petition for review. However, both arguments were raised in the petition submitted to the California Supreme Court and therefore will be addressed.
(a) Defense Counsel's Exercise of Peremptory Challenges
Petitioner first claims his counsel was ineffective because he exercised peremptory challenges on the basis of group bias. Even if defense counsel excused some Caucasian or male jurors in violation ofBatson, petitioner fails to meet the Strickland standard for showing ineffective assistance of counsel. The Court of Appeal rejected petitioner's claim based on United States v. Boyd, 86 F.3d 719. In Boyd, the Seventh Circuit emphatically rejected a similar claim:
Nothing in this record suggests that the removal of the black member of the venire produced a jury that was likely to convict an innocent person, or even a jury more likely to convict a guilty one. . . McCollum, which holds that defense lawyers are bound by the rule of Batson, did not reach this conclusion to protect defendants from their lawyers. It did so, instead, to protect the legitimate interests of jurors and the criminal justice system. (citations omitted). Often the defendant's interests will be aligned with those other interests, but when they are not — when, for exam le, a racially based challenge is designed to assist the defense — McCollum allows the prosecutor to object and the judge to override the defense's preference. McCollum does not imply that all, or even many, improper peremptory challen ges disserve the interests oft he side making them.Id. at 722.
Similarly, the Court of Appeals held that petitioner's counsel was not ineffective through his use peremptory challenges:
[I]n this case nothing in this record suggests defense counsel's peremptory removal of men or Caucasians `produced a jury that was likely to convict an innocent person, or even a jury more likely to convict a guilty one.' Boyd, 86 F.3d at 722. Thus, appellant has not shown he was prejudiced by defense counsel's alleged improper use of peremptory challenges.
Moreover, as the Boyd court points out, the fact that a discriminatory challenge may disserve the juror's interests and the interests of the criminal justice system, does not necessarily mean the challenge disserves the interest of the side making it. Thus, defense counsel may have had — from his client's point of view — a sound tactical reason for making the allegedly discriminatory challenges against male and Caucasian jurors.People v. Franklin, slip op. at 31.
While there is no Supreme Court authority addressing this issue, the Court of Appeal's decision is not an unreasonable application of federal law and petitioner's claim is denied.
(b) Defense Counsel's Failure to Concede the Intent Element of Burglary
Petitioner next claims that his counsel was ineffective because of his failure to stipulate to the intent element of burglary. During an in limine hearing before the trial started, defense counsel argued that there could be no serious dispute about petitioner's intent to commit burglary in order to focus on whether or not petitioner had actually entered the residence. The prosecutor asked defense counsel if he would be willing to stipulate that the person seen at the back door of the Vallecito Street residence "had the specific intent to steal . . . ." RT 76. Defense counsel declined to accept the stipulation. The trial court subsequently held that evidence of petitioner's previous crimes was admissible on the issue of intent.
Petitioner argues that there was no strategic or tactical reason to reject the prosecutor's offer to stipulate. Because of counsel's failure to stipulate, petitioner asserts that the jury heard prejudicial evidence concerning petitioner's prior crimes. Thus, petitioner claims his trial counsel was ineffective and that he was prejudiced by counsel's failure to stipulate.
The Court of Appeal rejected petitioner's claim based on his failure to show prejudice:
Even assuming reasonable trial counsel would have stipulated to the intent element to permit the jury to focus on whether or not [petitioner] had actually entered the residence, the only effect of the stipulation would have been exclusion of the other crime evidence to prove intent. In our view, it is not reasonably probable the result of the proceeding would have been different had the other crime evidence been excluded.
Although there was some conflict in the testimony, there was ample evidence [petitioner] actually entered the residence. The neighbor saw [petitioner] climb a tree next to an open window and then a few moments later saw the man run out of the backdoor. To the extent there was inconsistency on this point, it arose from the fact that the neighbor/witness was surprised at how quickly [petitioner] had gotten in and out of the house. As he put it: `I was astonished that he was even in the house by the time he was coming out of it. I mean . . . I couldn't see how he had gotten into the house [since] it . . . seemed like it few heartbeats. It was really fast.'
Thus, in our view, the genuine issue at trial was not whether petitioner intended to enter the house — he clearly did — but whether he had time to do so before the police arrived. The other crime evidence had no prejudicial effect on this issue — that is, whether, under the peculiar facts of this case, [petitioner] had time to enter the house before the police arrived. In sum, we do not believe there is a reasonable probability exclusion of the other crime evidence would have changed the jury's verdict in this case.People v. Franklin, slip op. at 32-33 (emphasis in original) (citations omitted).
The Court of Appeal's analysis is a reasonable application of theStrickland standard for prejudice. Petitioner is therefore not entitled to federal habeas relief on this claim.
(c) Defense Counsel's Failure to Introduce Evidence of the Parole Warrant
Petitioner's third and final claim for ineffective assistance of counsel relates to the previously mentioned outstanding parole warrant. Defense counsel was allegedly ineffective because he failed to introduce evidence showing that the parole warrant existed at the time of the offense. Again, the claim lacks merit.
The California Court of Appeal denied the claim because it was a reasonable tactical decision by defense counsel:
First . . . on the record it is unclear whether [petitioner] in fact had an outstanding warrant at the time of his arrest in this case. But even if he did, trial counsel may have had a reasonable tactical reason for not introducing such evidence. It will be remembered [petitioner's] defense was based on the fact he believed he had an outstanding warrant, and thus had a motive to avoid the police. Whether [petitioner] in fact had a warrant would have been only marginally relevant to this issue. Moreover, introducing such evidence would have reminded the jury that, in the eyes of the State, [petitioner] was incapable of remaining "clean," even while on parole. Thus, defense counsel may have decided the prejudicial effect of evidence showing [petitioner] actually had an outstanding parole warrant outweighed the probative value of that fact to the defense. In our view, it is possible defense counsel was attempting to have his cake and eat it too: to establish a defense based on [petitioners] belief, without ever actually introducing evidence [petitioner] was in fact in violation of his parole. This is a classic tactical decision on which we are not permitted to second guess trial counsel.People v. Franklin, slip op. at 33 (emphasis in original) (citation omitted).
The Court agrees with the state court. A difference of opinion as to trial tactics does not constitute denial of effective assistance and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984); United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Trial counsel's decision was valid because it appears to have been based on strategic considerations; it was an informed decision based upon investigation and the decision was reasonable under the circumstances. See Sanders, 21 F.3d at 1456.
In sum, the Court of Appeal's reasoning is consistent with the principles established by the Supreme Court in Strickland. Petitioner's claim for relief is therefore denied.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.