Opinion
Civil No. 04cv0036-BTM (WMc).
October 26, 2005
Petitioner Regal Robinson, a state prisoner proceeding pro se and in forma pauperis, is seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims the prosecutor's peremptory challenge of the only two African-American jurors on the panel violated his equal protection rights as set forth inBatson v. Kentucky, 476 U.S. 79 (1986), that the prosecutor committed misconduct by suppressing exculpatory evidence and suborning perjury, and insufficient evidence exists to support his convictions.
United States Magistrate Judge William McCurine, Jr. has issued a Report and Recommendation ("RR") finding that the state court's adjudication of Petitioner's claims was objectively reasonable within the meaning of 28 U.S.C. § 2254(d), concluding therefore that Petitioner is not entitled to habeas relief as to any claim presented, and recommending entering judgment denying the Petition. Petitioner has filed Objections to the RR.
The Court has reviewed the RR pursuant to 28 U.S.C. § 636(b)(1), which provides that "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C.A. § 636(b)(1) (West Supp. 2005). For the following reasons, the Court ADOPTS in part the findings and conclusions of the Magistrate Judge, DENIES the Petition, and ISSUES a Certificate of Appealability limited to Claim One.
I. Claim One.
Petitioner represented himself at trial with the aid of standby counsel and was convicted by a jury of forcible rape, forcible sodomy, unlawful sexual penetration by a foreign object, and selling/furnishing cocaine base. (Lodgment No. 1, Clerk's Tr. at 250-53.) The jury found true the allegations that Petitioner had previously been convicted of rape (which he admitted in his opening statement and on cross-examination) and that he had committed the charged offenses against more than one victim; Petitioner admitted he had suffered five prior "strike" convictions and was sentenced to 186 years-to-life in state prison. (id. at 249, 263.) Petitioner, who is African-American, contends in Claim One that the prosecutor improperly removed the only two African-American jurors on the panel via peremptory challenges in violation of his rights protected by the Equal Protection Clause of the Fourteenth Amendment as articulated inBatson v. Kentucky, 476 U.S. 79 (1986).
Batson established a three-step framework to analyze claims of racial discrimination in jury selection. The first step requires defendant to make a prima facie showing the peremptory challenge was exercised on the basis of race. If defendant makes a prima facie showing, the second step requires the prosecutor to articulate a race-neutral reason for the challenge and thereby rebut the defendant's prima facie case. The third step requires the trial judge to determine whether the defendant carried the ultimate burden of proving purposeful discrimination. Batson, 476 U.S. at 94-98.
The trial judge found that Petitioner had made a prima facie case of group bias regarding the removal of the two jurors, and asked the prosecutor to justify the challenges. (Lodgment No. 5,People v. Robinson, No. D036698, slip op. at 11-12 (Cal.Ct.App. Aug. 1, 2002).) The prosecutor indicated that Juror Dabney had a son who had pled guilty to rape charges, was prosecuted by the San Diego District Attorney's office, and was currently serving a prison sentence of eighty-five-years-to-life, and that it was the prosecutor's belief that Juror Pargo's family was well known as having been involved in criminal activities for several generations. (Id. at 12.) The trial judge found the prosecutor had exercised the peremptory challenges for a nondiscriminatory purpose, and denied Petitioner's motion brought pursuant to Batson and People v. Wheeler, 22 Cal.3d 258 (1978). (Id.)
Petitioner argued on direct appeal that the prosecutor had not indicated how she became aware of Juror Pargo's family history, had not indicated how she knew Juror Pargo was a member of the same Pargo family which she believed had a family history of criminal activity, and that she should have asked Juror Pargo on voir dire about his family in order to complete the record. (Pet. Ex. 3, People v. Robinson, No. D036698, Appellant's Opening Brief at 24-25; Appellant's Reply Brief at 4-5.) Petitioner also contended it appeared suspicious the prosecutor passed four times while Petitioner continued to exercise peremptory challenges before challenging Juror Pargo. (Pet. Ex. 3, People v. Robinson, No. D036698, Appellant's Reply Brief at 5.)
The state appellate court found that under People v. Silva, 25 Cal.4th 345, 386 (2001), the trial judge erred in failing to conduct a further inquiry into the prosecutor's reason with respect to Juror Pargo because the stated reason was not supported by the record. (Lodgment No. 5, People v. Robinson, No. D036698, slip op. at 14.) However, the court found any error arising from that failure was harmless because the trial court had erred regarding the first Batson step. The court found Petitioner had failed to establish a prima facie case as to either juror because he had presented no evidence of bias other than the fact that the only two African-American jurors on the panel were removed, although they both indicated they could be fair and impartial. (Id. at 15-16.) The appellate court found that "[a] party attempting to make a prima facie case of group bias in the exercise of peremptory challenges must demonstrate a strong likelihood that the prospective jurors were excused because of their race." (Id. at 15.) The court ultimately concluded that because no prima facie case was shown it was unnecessary to address whether the trial court had made an adequate inquiry into the prosecutor's justifications for challenging the jurors. (Id. at 18.)
Petitioner argued in his petition for review to the California Supreme Court that the lower courts had erred in failing to develop the record with respect to the credibility of the prosecutor's justification for challenging Juror Pargo. (Lodgment No. 7, People v. Robinson, No. SD2001DA0098, Pet. for Rev. at 15-17 (Cal. filed Sept. 6, 2002).) However, Petitioner did not come forward with any evidence supporting his contention that the prosecutor's explanation was not credible, but merely concluded it was incredible as a matter of law. (Id. at 17.) The petition for review was denied by the state supreme court on October 23, 2002, by an order which stated: "Petition for review DENIED." (Lodgment No. 8.)
The Magistrate Judge recognized that the Ninth Circuit has held that an appellate court's application of the "strong likelihood" standard of Wheeler requires a federal habeas court to refuse to apply deference to findings made under that standard, and instead conduct a de novo review of the Batson claim. (RR at 12, citing Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000) (holding that the Wheeler standard "is impermissibly stringent in comparison to the more generous Batson `inference' test.").) The Magistrate Judge also found the Ninth Circuit has determined that for cases such as the instant one which were decided after the California Supreme Court clarified the application of theWheeler standard in People v. Box, 23 Cal.4th 1153, 1188 n. 7 (2000) (holding that "strong likelihood" means the same as "reasonable inference"), de novo review is not appropriate and deference must be given to the findings of the state courts. (RR at 12, citing Paulino v. Castro, 371 F.3d 1083, 1090 n. 5 (9th Cir. 2004) and Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001).) The RR then reviewed Ninth Circuit precedent interpreting Batson, which provides that a prima facie case can be demonstrated by statistical disparities in the use of peremptory challenges. (RR at 13.) The Magistrate Judge found that because Petitioner had not alleged any statistical information suggesting the prosecutor had used the peremptory challenges on the basis of race, he had failed to rebut the finding of the appellate court. (Id.) The Magistrate Judge concluded that the appellate court's adjudication of this claim was therefore neither contrary to, nor involved an unreasonable application of, clearly established federal law. (RR at 13-14.)
Petitioner objects to the Magistrate Judge's findings, contending the RR erred in reviewing the appellate court's reasoning for denying the claim rather than focusing on whether the trial judge had abused his discretion in finding a prima facie case had been established. (Obj. at 3.) Petitioner contends this Court must accept the trial court's finding that he established a prima facie case of bias, and then determine whether the prosecutor's explanations were race-neutral. (Id. at 4-5.) Petitioner states that because the appellate court applied an incorrect standard, this Court is required by Wade v. Terhune to conduct a de novo review of the claim. (Id. at 5-6.) Finally, he contends that his request for an evidentiary hearing on this claim has never been addressed on its merits. (Id. at 5.)
After the RR was issued, the Supreme Court clarified the application of Batson, both on direct review of a state court judgment in Johnson v. California, 545 U.S. ___, 125 S.Ct. 2410 (2005), and in the context of the restrictions placed on federal habeas review of a state court judgment by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), in Miller-El v. Dretke, 545 U.S. ___, 125 S.Ct. 2317 (2005). In Dretke, the Court discussed the type and quantum of evidence relevant to the second and third Batson steps, in particular what is required to rebut the presumption of correctness given to a state trial court's finding of fact that the prosecutor's race-neutral explanations were true. Dretke, 125 S.Ct. at 2325. TheDretke, Court found that under AEDPA the petitioner "may obtain relief only by showing the [state trial court's] conclusion [that the prosecutor's race-neutral explanations were true] to be `an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.'" Id., quoting 28 U.S.C. § 2254(d)(2). The Court concluded that the prosecutor's justifications for striking African-American jurors were incredible in the face of evidence in the record which showed the "strikes correlate with no fact as well as they correlate with race." Id. at 2338-40. In Johnson, the Court examined the scope of the first Batson step, and held that California erred in adopting a standard requiring a defendant to show it is more likely than not that peremptory challenges were based on impermissible group bias. Johnson, 125 S.Ct. at 2416. The Court held instead that "a defendant satisfies the requirements ofBatson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. at 2417. The Johnson Court recognized that the California Supreme Court had applied the standard consistently with its interpretation in Box that "strong likelihood" meant the same as "reasonable inference," but found that the California standard impermissibly imposed a "substantial" burden on a defendant to make such a showing. Id. at 2415. The Court ultimately found that petitioner had carried his burden of showing an inference of bias when all three African-American jurors on the panel were challenged by the prosecutor. Id. at 2419.
For the following reasons, the Court finds that Petitioner is not entitled to habeas relief irrespective of whether this Court is required to review the claim de novo or give deference to the findings of the state courts, and irrespective of whetherJohnson applies retroactively. After a panel of twenty-four jurors were examined for cause, twelve were seated in the jury box and the parties proceeded with peremptory challenges. (Lodgment No. 2, Reporter's Augmented Tr. at 201-02.) The parties alternated exercising challenges, six by the prosecutor and five by Petitioner, until the trial judge directed the Clerk to call thirteen additional jurors to be voir dired and challenged for cause. (Id. at 203-04.) Juror Pargo was one of those thirteen and was voir dired. (Id. at 205, 215-16.) The parties stipulated that one of the jurors should be excused for cause, and peremptory challenges continued. (Id. at 221-25.)
Petitioner and the prosecutor alternated exercising challenges and excused three jurors before the prosecutor passed for the first time. (Id. at 226.) The prosecutor passed three times as Petitioner continued to excuse jurors, and the prosecutor then challenged one of the newly-seated jurors. (Id. at 226.) Petitioner passed and the prosecutor excused juror number eight, who was replaced by Juror Pargo. (Id. at 226-27.) Petitioner exercised a challenge and the prosecutor challenged Juror Pargo. (Id.) A recess was taken and the following occurred:
Petitioner: Your honor, I would like to object to dismissal of juror number 8.
The Court: What's the name?
Petitioner: Mr. Pargo. He answered all the questions fairly; didn't seem to have any bias. But in addition he was a Black man, basically around about my age who is to be considered one of my peers as well as the others. But he was the only Black out of 40 people basically that we have called so far. [¶] We feel that the prosecution's dismissal are grounds for a Wheeler motion.
The Court: Okay. Do the People wish to be heard as to the prima facie case for a Wheeler challenge?
Prosecutor: Your honor, I don't believe there's been a prima facie for a Wheeler challenge is [sic] the eleven jurors that I had kicked the first Black person that I had kicked — is the court asking my reason for —
The Court: I'm asking whether you want to be heard; whether there's a prima facie case by the defense.
Prosecutor: I don't believe there has been a prima facie case has been made. That I exercised — that was my eleventh challenge that I had exercised which fall across all ethnic and gender lines. And so I don't believe there has been a prima facie case made at this point.
The Court: [The] Court is going to find there is a prima facie case made. I believe this is the only African American juror who has been on the — among the jurors who have been voir dired by the court. [¶] There was one female who the parties stipulated and because she said she couldn't be fair. So there was no — I think she sought herself out of the case. [¶] But since this was the only Black juror who has been challenged the court feels there has been a prima facie case made so. [¶] Having said that then I turn to the next inquiry, which is justification on a non-discriminatory basis for the challenge.
Prosecutor: Thank you, your honor. Your honor, it's my belief and based on the people that I have talked to the Pargo family is a well known family in San Diego that have been involved, at least a couple of generations in the area of illicit criminal activities. And given that connection the relationship with the Pargo family and their involvement in criminal activities I did not feel like this juror could be fair and impartial and uphold the law as presented.
The Court: Okay. Did the defense wish to respond?
(Discussion off the record)
Petitioner: Well, when the court asked the juror was he charged with any crime or anything to of [sic] that nature, he didn't respond with a "yes." So the defense is saying that as a juror that shouldn't disqualify him.
The Court: Okay. Thank you. The issue on the Wheeler motion is whether or not on[c]e the prima facie case has been made there is a non-discriminatory basis for exercising a peremptory challenge that has been articulated and seems a plausible reason for the challenge. [¶] The court's conclusion is that the issue is not whether or not there has to be proof that there is cause to challenge the jurors. So the issue about whether Mr. Pargo himself has a change [sic] in criminal conduct. There doesn't have to be a showing of that. [¶] What has to be shown is whether or not the reasoning used by the prosecution for exercising a peremptory challenge is one that is based on discriminatory reasons or is a non-discriminatory reason. [¶] Whether or not it's a reason that others would agree with or disagree with is not the issue; it's whether or not it's [a] discriminatory reason. [¶] It is the court's feeling that the reason expressed by the prosecutor is a non-discriminatory reason because that reason of someone being related to or a member of a family or family name that is known to or notorious with the prosecution's office of being involved in criminal activities, it may well be that that particular person is clean as the driven snow. But that reason of kicking someone because they are a part of that type of family or may have been exposed to other people who are involved in criminal activities or being related could apply whatever the color of one's skin. [¶] So I don't believe that's a discriminatory basis for exercising a challenge. So the Court is going to deny the Wheeler motion.
(Id. at 227-30.)
The parties then each exercised one additional peremptory challenge which caused the trial judge to call for another thirteen jurors to be voir dired. (Id. at 231.) Juror Dabney was among the new group, and indicated on voir dire that one of his children had been arrested in the past. (Id. at 241-42.) Juror Dabney had previously stated in chambers during the voir dire of the entire venire that he had a son who had pled guilty to rape charges, had been prosecuted by the San Diego District Attorney's office, and was currently serving a prison sentence of eighty-five years-to-life. (Lodgment No. 2, Reporter's Augmented Tr. at 73-74.)
After the parties passed for cause with respect to the newly seated jurors, Petitioner exercised a challenge and the prosecutor passed. (Lodgment No. 2, Reporter's Augmented Tr. at 246.) Petitioner continued to exercise challenges as the prosecutor passed an additional four times. (Id. at 247.) Juror Dabney was seated in the jury box, replacing one of the jurors excused by Petitioner, and was immediately challenged by the prosecutor. (Id.) Petitioner then asked for a recess and the following exchange took place:
Petitioner: Yes, your honor. Your honor, this is my second Wheeler motion and my challenge to the jury panel as a whole. [¶] Let the record reflect that I am a Black man. Let the record reflect that I have exercised my last peremptory challenge. The District Attorney from Mr. — threw Mr. Dabney off my case.
The Court: You said "Dabney"?
Petitioner: — Dabney off that panel. Like me Mr. Dabney is Black. There are no more Black jurors on this panel. [¶] If the court paid close attention to Mr. Dabney's answers both in public and in private he is a good man, a good citizen. Mr. Dabney was thoroughly disgusted with his son's actions and feels he deserves a conviction and sentence. [¶] It is clear that Mr. Dabney told all of us he could be fair to both sides and had no biases notwithstanding the fact the District Attorney threw him off the panel because like me is Black. [¶] I further allege or I should say I further challenge that this entire jury panel as being unfairly racially constituted due to the prosecutor's action, and ask that this court to excuse this entire jury panel and obtain another panel from the jury commissioner or in the alternative to dismiss this case due to prosecution misconduct and misconduct.
The Court: Thank you. People wish to respond?
Prosecutor: Thank you, your honor. Yesterday when Mr. Dabney revealed that he did know somebody who was charged with a similar type of offense —
The Court: I'm sorry. I want to make sure we go through the proper process. First, as to the Wheeler motion did you wish to argue as to a prima facia [sic] case?
Prosecutor: No, Your honor. I would like to explain my reasons for kicking Mr. Dabney.
The Court: The Court finds that a prima facie case has been made out. You can now proceed with rationale for your challenge.
Prosecutor: Thank you, your honor. Yesterday when we spoke to Mr. Dabney he had told us that in 1996 his son was involved in the case which the San Diego Police Department investigated; that he was arrested, charged and convicted for rape. [¶] This case is also a charge of rape. His son received a sentence of 85-years-to-life. And although Mr. Dabney told us he could be fair, he specifically said over and over again, "no. I could be fair because my son confessed to his girlfriend; he was bragging about it and he pled guilty."
We don't have that situation here. We don't have a confession by the defendant. We don't have the plea of guilty; we have a trial. I just will mention briefly that Mr. Dabney is much too closely connected to the situation where he knows somebody who had been charged and convicted of rape and got a significant sentence because of his background, because of the background of his son. And I just don't think he would be fair and impartial to our case in this case when we've got somebody so similarly situated. That he is close in relationship to, it being his direct son, your honor.
Your honor, I did [-] in no way did I kick Mr. Dabney because of the color of his skin. My investigating officer in this case is African American, Detective LeLoach; one of my victims is African American; that's Georgia Tanner. Brenda Ayaya told her best friend, Eric Gordon, is the one who calle[d] the police on the defendant, well, Eric Gordon is African American.
This has nothing to do with the color of any skin of the jurors. It goes directly to the facts that I want to get a fair and impartial juror to decide this case and I don't believe because of Mr. Dabney's situation with his son he would be a fair and impartial juror and that is why I exercise[d] my peremptory challenge on Mr. Dabney.
(Id. at 249-51.)
Petitioner immediately objected to the fact of the 65 jurors on the panel only two were African-American and both were excused by the prosecutor. (Id. at 252.) The trial judge then accepted the prosecutor's explanation as a race-neutral reason for exercising the challenge as to Juror Dabney. (Id. at 252-54.)
The state appellate court here found that "[a] party attempting to make a prima facie case of group bias in the exercise of peremptory challenges must demonstrate a strong likelihood that the prospective jurors were excused because of their race." (Lodgment No. 5, People v. Robinson, No. D036698, slip op. at 15.) This is directly at odds with the holding in Johnson, which explicitly rejected that standard even as it has been interpreted by the state supreme court in Box. The Johnson Court held instead that Batson only requires that a defendant present evidence to permit a trial judge to draw an inference that discrimination has occurred. Johnson, 125 S.Ct. at 2417. The Court in Johnson found the fact that all three of the African-American jurors on the panel in that case were excused sufficient to support a finding that a prima facie case of discriminatory intent had been established. Id. at 2419. The Court in Dretky stated that the fact the prosecutor used peremptory challenges to remove 91% of the eligible African-American jurors was a factor supporting a finding of discriminatory intent, albeit in the context of the third Batson step. Dretky, 125 S.Ct. at 2325.
If the holding in Johnson applies retroactively, this Court would reject as objectively unreasonable the state appellate court's finding that the trial judge erred in finding that Petitioner failed to make a prima facie case by pointing out that the prosecutor had challenged the only two African-American jurors on the panel, both of whom indicated they could be fair and impartial. In Teague v. Lane, 489 U.S. 288 (1989), a plurality of the Court announced a test for determining whether a holding of the Supreme Court is considered to be a "new rule" which is not to be applied retroactively to cases on collateral review at the time the decision is announced. The Court stated that while it "is admittedly often difficult to determine when a case announces a new rule, . . . [a] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301 (emphasis in original).
The Teague plurality recognized two exceptions to the ban on retroactive application of new rules, when the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and "if it requires the observance of those procedures that are implicit in the concept of ordered liberty."Teague, 489 U.S. at 311. Neither exception applies here.
It does not appear the Court in Johnson announced a new rule, but merely pointed out that Batson has been interpreted for at least the past ten years as having held that the persuasiveness of a justification becomes relevant only in the third step of a Batson inquiry. Johnson, 125 S.Ct. at 2418. It appears the holding in Johnson, that a prima facie case may be established by the inference raised simply from striking all of the African-American jurors on a panel, was dictated byBatson prior to the date Petitioner's conviction became final.Johnson, 125 S.Ct. at 2418.
However, the Court need not pass on the Teague issue. As the Magistrate Judge correctly observed, there is support in pre-Johnson Ninth Circuit precedent that statistical disparities may support a finding of a prima facie case of discrimination. (See RR at 13, citing Williams v. Woodford, 384 F.3d 567, 584 (9th Cir. 2004); Fernandez v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002).) The Court finds that the statistical disparity present here renders the state appellate court's finding an objectively unreasonable application of clearly established federal law under pre-Johnson precedent.Williams, 384 F.3d at 584 ("Statistical facts like a high proportion of African-Americans struck and a disproportionate rate of strikes against African-Americans can establish a pattern of exclusion on the basis of race that gives rise to a prima facie Batson violation."), citing Fernandez, 286 F.3d at 1079. Thus, irrespective of whether Johnson applies retroactively, the Court finds that the state appellate court's adjudication of the Batson claim involved an unreasonable application of clearly established federal law. As will be seen, Petitioner is not entitled to habeas relief because he has not satisfied the third Batson step. Even were the Court unable to find that the state appellate court's finding was objectively unreasonable within the meaning of 28 U.S.C. § 2254(d), either becauseJohnson does not apply retroactively or because pre-Johnson precedent does not support such a finding, the Court would deny habeas relief for the reasons set forth in the RR. Petitioner is therefore not entitled to habeas relief irrespective of the outcome of the Teague issue and irrespective of the standard of review applied to this claim.
In order to be entitled to habeas relief on his Batson claim, Petitioner must demonstrate that the trial judge's resolution of the second and third Batson steps, that is, the determination that the prosecutor gave race-neutral reasons for excusing the jurors and that Petitioner did not carry his ultimate burden of proving purposeful discrimination, involved an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Dretke, 125 S.Ct. at 2325. As will be seen, even under a de novo review of this claim, Petitioner has not demonstrated that the prosecutor's proffered reasons were a pretext for discrimination, much less that the trial judge's determination in that regard was objectively unreasonable.
Petitioner argues that the Court should find that the Prosecutor's reason for challenging Juror Pargo to be a pretext for racial discrimination based on the record as it is, in particular the failure of the record to support her explanation coupled with the unusual or suspicious use of peremptory challenges. Alternately, he contends the Court should conduct an evidentiary hearing to develop the record regarding the credibility of the prosecutor's proffered justification. Although the trial judge made a credibility determination that the prosecutor's reasons were not pretextual, Petitioner contends this Court cannot defer to the finding regarding Juror Pargo because it was based on the unsupported assumption by the trial judge that the Pargo family was known in the District Attorney's office as having a history of criminal activity, and was based on the unsupported assumption by the prosecutor that Juror Pargo was a member of that family simply by virtue of a shared last name.
Petitioner argued in his petition for review to the California Supreme Court that the lower courts erred in failing to develop the record with respect to the credibility of the prosecutor's justification for challenging Juror Pargo. (Lodgment No. 7,People v. Robinson, No. SD2001DA0098, Pet. for Rev. at 15-17 (Cal. filed Sept. 6, 2002).) However, Petitioner did not come forward with any evidence supporting his contention that the prosecutor's explanation was not credible, but merely concluded it was incredible as a matter of law for lack of support in the record. (Id. at 17.) Petitioner did not come forward with any evidence showing that the Pargo family did not have a reputation for being involved in criminal activity as suggested by the prosecutor, or that Juror Pargo was not a member of the Pargo family which has such a reputation. Petitioner had the resources in the state court proceedings to make such a determination, as he had access to a defense investigator in his capacity as a pro per defendant at trial and was represented by an attorney on appeal.
Petitioner once again fails to point to any evidence in the record which would show the prosecutor's reason for challenging Juror Pargo was a pretext for discrimination. As set forth at length above, the use of challenges was neither unusual nor suspicious. In fact, if Petitioner had not continued to exercise peremptory challenges after the prosecutor had passed, neither Juror Dabney nor Juror Pargo would have been called to the jury box and neither would have been challenged by the prosecutor. The only other evidence Petitioner points to is the fact that the record is silent regarding the basis for prosecutor's stated reason. Although the trial judge accepted the prosecutor's race-neutral reason for challenging Juror Pargo without requiring her to state on the record the basis for her belief that Juror Pargo was a member of the Pargo family which she believed had been involved in criminal activity, or how she came to know about the Pargo family history, that failure does not call the race-neutral reason into question. The state appellate court cited People v. Silva, 25 Cal.4th 345, 386 (2001) for the proposition that the trial judge was required to inquire further of the prosecutor when the reason is not supported by the record. However, Silva in turn relied on Purkett v. Elem, 514 U.S. 765, 768 (1995) (recognizing that "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination."), and McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir. 2000) (recognizing that "[a] prosecutor's motive may be inferred from the totality of the relevant facts.").
Respondent is correct that federal law does not require automatic reversal of a conviction for, or that a Batson violation is demonstrated simply by, the failure to inquire further under circumstances present here. Rather, Batson "requires the judge to assess the plausibility of the prosecutor's reason in light of all evidence with a bearing on it." Dretke, 125 S.Ct. at 2331. Unlike Dretke, Purkett orMcClain, or any other federal precedent finding a proffered reason pretextual, there is nothing in the record here which suggests the prosecutor had a discriminatory motive. The proffered justification is facially credible and is a facially race-neutral explanation for challenging Juror Pargo. Petitioner has pointed to no facts from which the Court could find the prosecutor's explanation to be a pretext for racial discrimination.
Assuming an evidentiary hearing is not precluded under 28 U.S.C. § 2254(e)(2) with respect to this claim by Petitioner's failure to develop facts showing the prosecutor's reason for excusing Juror Pargo was a pretext for racial discrimination, Petitioner is in any case not entitled to an evidentiary hearing. In order for Petitioner to be entitled to an evidentiary hearing, he must allege facts which, if proven, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312 (1963); see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (holding that an evidentiary hearing is not required on issues which can be resolved on the basis of the state court record.) Petitioner does not allege the prosecutor was lying when she said Juror Pargo's family is notorious for having been involved in criminal activity for generations, or that that statement was untrue. Even assuming the Court could discern such an allegation from a liberal reading of his pleadings, he still provides no evidence in support of such an allegation, despite having possessed the resources to make a factual determination in that regard. Petitioner is not entitled to an evidentiary hearing because he has come forward with no evidence whatsoever which calls the prosecutor's race-neutral explanations into question, and has therefore identified no basis for an evidentiary hearing. See Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (holding that conclusory allegations are insufficient to support a request for an evidentiary hearing).
The Court ADOPTS in part as set forth above the Magistrate Judge's findings and conclusion that Petitioner is not entitled to habeas relief as to Claim One. The Court finds that under a de novo review of this claim Petitioner has not established that the prosecutor's facially-race neutral reasons for challenging Jurors Dabney and Pargo were a pretext for racial discrimination in the use of peremptory challenges. Petitioner has neither carried his burden of demonstrating purposeful discrimination in the use of the peremptory challenges nor demonstrated that the state trial court's finding in that regard involved an unreasonable determination of the facts in light of the evidence presented in the state courts. The Court therefore DENIES habeas relief as to this claim. However, Petitioner has satisfied the standard for issuance of a Certificate of Appealability with respect to Claim One. See Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (providing that threshold "substantial showing of the denial of a constitutional right," is met by demonstrating that . . . the questions are adequate to deserve encouragement to proceed further). As set forth below, none of the remaining claims meet this standard. Therefore, the Court ISSUES a Certificate of Appealability limited to Claim One only.
II. Claims Two and Three.
Petitioner contends in Claims Two and Three that the prosecutor committed misconduct by turning over to the defense only the first page of a multiple-page paramedic report relating to the treatment of victim Georgia Tanner, and then suborned perjury by calling Tanner to testify in contradiction to statements attributed to her in the report without correcting her testimony. (RR at 14.) Petitioner contends the second page of the report contained exculpatory evidence he would have used at trial, namely a narrative by the paramedic stating that Tanner said she was attacked by an unknown assailant, despite the fact that Tanner testified she had met Petitioner prior to the rape. (Id. at 14-15.) Petitioner also contends the report stated that Tanner told paramedics she was hit in the head and face, choked and raped for three hours but never lost consciousness, which was contradicted by the fact the nurse's examination disclosed no visible choke marks and by Tanner's trial testimony that Petitioner beat her until she lost consciousness and raped her for three hours. (Id.) At the new trial motion he contended his cross-examination of Tanner was severely hampered by her repeated answer that "she didn't know because she lost consciousness" to many of his questions. (Lodgment No. 3, Reporter's Tr. at 659.) Finally, Petitioner presents what he characterizes as "new evidence" which he contends supports his claim and requires an evidentiary hearing. (Id. at 14-15.)
The Magistrate Judge found that Petitioner had failed to rebut the presumption of correctness given the state court's factual finding that he had failed to establish he did not receive the second page of the report, and that the state court's determination to that effect was not an unreasonable determination of the facts. (RR at 17-18.) The Magistrate Judge also found that Petitioner was not entitled to an evidentiary hearing because he had failed to develop the factual basis for the claim in the state court and could not satisfy the provisions of 28 U.S.C. § 2254(e)(2), and that the state court was correct to find that any discrepancy between Tanner's trial testimony and the statements attributable to her was a subject for cross-examination and did not amount to suborning perjury. (Id. at 19-20.) The RR concluded that Petitioner was not entitled to habeas relief because the state court's adjudication of these claims was not based on an unreasonable determination of the facts and was neither contrary to, nor involved an unreasonable application of, clearly established federal law. (Id., citingBrady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985).)
Petitioner objects to the finding in the RR that the statements attributed to Tanner in the medical report were merely areas for cross-examination, contending he could not effectively cross-examine the witness without the report. (Obj. at 19-26.) He also contends the RR failed to address his request for an evidentiary hearing as to his claim that the prosecutor suborned perjury by allowing Tanner to testify differently to the statements attributed to her in the report. (Id. at 27-33.)
On May 16, 2000, Petitioner filed a motion for a new trial. (Lodgment No. 1, Clerk's Tr. at 127-31.) Petitioner augmented the motion on July 27, 2000, contending that he had issued a subpoena to the San Diego Fire Department on June 14, 2000, and had on July 11, 2000, just received pursuant to that subpoena a multiple-page paramedic report, only the first page of which had been turned over by the prosecutor during pre-trial discovery. (Id. at 172-77.) The prosecutor submitted a declaration on August 10, 2000, attaching a copy of the four-page paramedic report, and stating that the entire report was turned over during pre-trial discovery to Petitioner's original counsel, Tom Ochs, as well as to Petitioner's standby counsel, Hodge Crabtree, who was appointed after Petitioner decided to proceed pro per. (Id. at 181-88.) The prosecutor also stated that she recalled Petitioner cross-examining a witness regarding the contents of that report. (Id. at 182.) A discovery hearing was held prior to the new trial motion at which a Deputy San Diego City Attorney appeared in response to Petitioner issuing the post-trial subpoena requesting the City to produce the paramedics who responded to the Tanner rape and the custodian of their records. (Lodgment No. 4, Reporter's Augmented Tr. at 312.) Petitioner contended at that hearing that he had in his possession only the first page of the report when cross-examining the nurse who examined Tanner, and it was only during that cross-examination that he discovered the document was a paramedic report, and in response served the subpoena. (Id. at 314-15.)
On August 25, 2000, Petitioner submitted his own declaration in support of the new trial motion, stating that when the report was produced in court pursuant to the subpoena: "Legal advisor Hodge Crabtree looked over the reports that D.D.A. Kelly Chong Mok had in her possession . . . where it was then determined that these reports were not provided to defense before, during or after trial voluntarily by the prosecution." (Lodgment No. 1, Clerk's Tr. at 196) (ellipses in original). The prosecutor responded in writing that Petitioner's statement was misleading and inaccurate, and reiterated that she had turned over the complete report. (Id. at 209.) She also stated that even if she had not turned over the complete report, the report was inculpatory and not exculpatory, and in any case the defense had an obligation to obtain it directly from the third party who generated the report. (Id.)
The trial court found that Petitioner had failed to establish he did not receive the complete report. (Lodgment No. 3, Reporter's Tr. at 673-75.) The court found there was evidence it had been turned over to Petitioner's original counsel and standby counsel, and that Petitioner's statement he did not personally see the full report did not establish a discovery violation or constitute proof it was not in his possession. (Id.) The trial court found that although the narrative in the report contained potentially relevant impeachment evidence, such evidence was neither conclusive or irrefutable by the prosecution. (Id. at 675-76.) Specifically, the trial judge noted that the victim's emotional state at the time she made the statements to the paramedics might explain any discrepancies between her statements and her trial testimony, and noted that the fact that Tanner had just met Petitioner and there was no evidence she even knew his name might explain why she referred to him as an unknown assailant.4 (Id.) The trial court found Petitioner was aware from before trial that the victim had been treated by paramedics, and that it was Petitioner's decision to proceed pro per which resulted in his failure to independently obtain the report directly from the paramedics, as any competent attorney would. (Id. at 676-79.) Finally, the trial court stated that in any case it may have been a reasonable strategy not to introduce the report since the statements contained therein highlighted the brutality of the rape. (Id.)
The appellate court found that Petitioner "does not explain how he can escape the fact that his counsel had stated under oath that they received the entire paramedic report." (Lodgment No. 5,People v. Robinson, No. D036698, slip op. at 35.) The appellate court also found Petitioner had failed to address the trial court's finding he had equal access to the report and could have obtained it himself. (Id. at 35-36.) Finally, the appellate court found that any discrepancies between Tanner's trial testimony and statements attributed to her in the report were a subject for cross-examination and impeachment of Tanner and did not amount to presentment of false testimony. (Id. at 36.)
The appellate court's finding that Ochs and Crabtree both stated under oath that they had received the report finds no support in the record, and this finding is rejected as objectively unreasonable. The new trial motion was held with Petitioner's standby counsel Crabtree appearing at the motion with Petitioner, who was still proceeding pro per. (Lodgment No. 3, Reporter's Tr. at 651.) The trial judge noted that the prosecutor had submitted a declaration indicating she had given the complete report to Crabtree and Ochs. (Id. at 673-74.) Although Petitioner presented his own declaration stating that he was not given the second page of the report, the trial judge indicated, in the presence of Crabtree, that Petitioner had failed to present a declaration from Crabtree stating that Crabtree did not receive the complete report. (Id. at 674.) At the discovery hearing held about one month prior to the new trial motion at which a Deputy San Diego City Attorney appeared in response to the post-trial subpoena issued by Petitioner, the prosecutor stated she had provided the complete report to Ochs prior to Petitioner proceeding pro per, and that Ochs gave it to Petitioner along with the other discovery when Petitioner became pro per. (Lodgment No. 4, Reporter's Augmented Tr. at 318.)
In his Objections to the RR, Petitioner contends that the Deputy City Attorney who appeared at that hearing would testify at an evidentiary hearing in this Court that the trial judge asked Crabtree if he had received a copy of the report through discovery, that Crabtree refused to answer, and that the trial judge was "bothered" by Crabtree's refusal to answer. (Obj. at 30-31.) What purports to be a certified copy of the complete transcript of that hearing is lodged in this Court as Lodgment No. 4, Reporter's Augmented Tr. Vol. 6, and it does not contain the passage referred to by Petitioner. However, even if Petitioner could prove this unsupported allegation, it sheds no light on his claim. Petitioner attached as an exhibit to a state habeas petition copies of a letter he wrote to Crabtree requesting a declaration regarding discovery, and Crabtree's letter in response offering to submit a declaration stating that he gave Petitioner two pages of discovery, but indicating that he was unable to sign a declaration that Petitioner did not receive every piece of discovery because Petitioner did not review the district attorney's file with Crabtree or with the district attorney. (Lodgment No. 12, Ex. 1.) Even if Petitioner could establish that Crabtree had not received the complete report from the prosecutor, he has still failed to rebut the state court's finding, which is supported by the record, that the prosecutor turned it over to Petitioner's original counsel, and therefore complied with her discovery obligations, and that the defense had an independent obligation to procure the report from the third party. Thus, although the state appellate court's finding that Ochs and Crabtree had stated under oath they had obtained the report from the prosecutor is not supported by the record, Petitioner has failed to successfully rebut the presumption of correctness given to the appellate court's alternate findings.
The Magistrate Judge carefully and thoroughly reviewed the "new evidence" presented by Petitioner in support of this claim, and correctly found that Petitioner had not rebutted the presumption of correctness given the state trial and appellate courts' findings that he had failed to establish the report was suppressed, and correctly found that Petitioner was not entitled to an evidentiary hearing as to this claim. (RR at 16-19.) Likewise, the Magistrate Judge correctly found that the prosecutor did not suborn perjury when Tanner testified arguably inconsistently with statements attributed to her in the paramedic's report and was not entitled to an evidentiary hearing in this regard. (Id. at 19-20.) The Court ADOPTS in full the Magistrate Judge's findings and conclusions in this regard.
For the reasons set forth in the RR, the state court's adjudication of Claims Two and Three was neither contrary to, nor an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Accordingly, habeas relief is DENIED with respect to these claims.
III. Claim Four.
In Claim Four Petitioner contends that insufficient evidence exists to support his convictions. The Magistrate Judge correctly found that sufficient evidence supported the convictions under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), and that the state court's adjudication of this claim was neither contrary to nor involved an unreasonable application of Jackson, and was not based on an unreasonable determination of the facts. (RR at 21-24.) Petitioner objects to the application of the Jackson standard by the Magistrate Judge, and contends no reasonable inference could be drawn by a rational juror that he was guilty. (Obj. at 63-65.) Petitioner's objections are without merit. The Court ADOPTS in full the findings and conclusions of the Magistrate Judge regarding Claim Four, and DENIES habeas relief for the reasons set forth in the RR.
IV. Conclusion and Order.
For the foregoing reasons, the Court overrules Petitioner's Objections, ADOPTS in part the findings and conclusions of the Magistrate Judge as set forth above, and Orders as follows: (1) The Petition for writ of habeas corpus is DENIED; and, (2) A Certificate of Appealability is ISSUED limited to Claim One only.
IT IS SO ORDERED.