Ervin v. Ayers

Filing 466

ORDER REGARDING CONSIDERATION OF NEW EVIDENCE, by Judge Vince Chhabria. Status Report due by 1/25/2023.(knm, COURT STAFF) (Filed on 9/27/2022)

Case 3:00-cv-01228-VC Document 466 Filed 09/27/22 Page 1 of 5

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

CURTIS LEE ERVIN,

Case No. 00-cv-01228-VC

Petitioner,
v.
RON BROOMFIELD,
Respondent.

ORDER REGARDING
CONSIDERATION OF NEW
EVIDENCE
Re: Dkt. No. 458

The parties have submitted briefs on the issue of whether new evidence may be
considered in support of petitioner’s Claim Five, a challenge under Batson v. Kentucky, 476 U.S.
79 (1986), following the Ninth Circuit’s remand of this case for reconsideration of Judge Koh’s
ruling in light of Flowers v. Mississippi, 139 S. Ct. 2228 (2019). See Ervin v. Davis, 12 F.4th
1102 (9th Cir. 2021). The Ninth Circuit left it “to the district court to decide in the first instance
whether, in light of Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 179 L.Ed.2d 557 (2011),
the parties may submit additional evidence to support their positions . . . because the California
Supreme Court made an unreasonable determination of the facts, which would relieve the district
court of AEDPA deference, or whether such evidence must be submitted for the first time in
state court.” Id. at 1108. Petitioner argues that he is entitled to de novo review of his Batson
claim, including the consideration of new evidence, because the state court unreasonably denied
his claim. Respondent disagrees.
The Ninth Circuit remanded petitioner’s case so that “the district court can apply in the

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first instance the Supreme Court's guidance in Flowers.” Ervin, 12 F.4th at 1104. In Flowers, the
United States Supreme Court set out the following list of factors that judges should consider
when evaluating the validity of a peremptory strike:
• statistical evidence about the prosecutor’s use of peremptory
strikes against black prospective jurors as compared to white
prospective jurors in the case;
• evidence of a prosecutor’s disparate questioning and investigation
of black and white prospective jurors in the case;
• side-by-side comparisons of black prospective jurors who were
struck and white prospective jurors who were not struck in the case;
• a prosecutor’s misrepresentations of the record when defending the
strikes during the Batson hearing;
• relevant history of the State’s peremptory strikes in past cases; or
• other relevant circumstances that bear upon the issue of racial
discrimination.
139 S. Ct. at 2243. In remanding petitioner’s case, the Ninth Circuit stated that without the
benefit of Flowers, the district court did not fully analyze statistical evidence regarding the
prosecutor’s use of peremptory challenges, did not consider the prosecutor’s misrepresentation of
the record, did not perform a complete comparative juror analysis and was not mindful of the
history of the state's peremptory strikes in past cases. Ervin, 12 F.4th at 1107-08. Highlighting
the Supreme Court's instruction in Flowers to evaluate the history of the state's peremptory
strikes in past cases, the Ninth Circuit cited a New York Times article, “Case Stirs Fight on Jews,
Juries and Execution,” in which the prosecutor in petitioner’s case, James H. Anderson, was
interviewed by a reporter in 2005. In that article, Anderson reportedly stated that allegations
made by Jack Quatman, a former Alameda County prosecutor, asserting that the Alameda
County District Attorney’s office removed Jews and African American women from juries were
“laughable,” but acknowledged that:
[M]any prospective jurors, including Jews and blacks, were
excluded because of backgrounds, professions and political beliefs.
“That is not a racist thing, but just common sense," Mr. Anderson
said. "It is an axiom. It is not because of prejudice. Their politics are
not going to be on your side . . . When I was a young D.A., [the
judge] would tell me, “If you have a cop case, be careful of blacks

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on the jury, because they don't like cops,” ’ Mr. Anderson said. ‘I
heard him tell defense lawyers: “Be careful of Asians. They are very
law-and-order oriented.
Ervin, 12 F.4th at 1108 n.8. This article was not part of the record on appeal, but was brought to
the parties’ attention by the Ninth Circuit. See Ervin v. Davis, No. 16-99010, ECF No. 73 (9th
Cir. May 21, 2021).1
Petitioner argues that his Batson claim was unreasonably denied by the California
Supreme Court, that the state failed to disclose evidence of Mr. Anderson’s bias and that the
Court should take judicial notice of the New York Times article and expand the record to include
it. Respondent counters that the denial of petitioner’s Batson claim was reasonable, that the
Court may not take judicial notice of the truth of the matters asserted in the New York Times
article because it is based on hearsay, and that petitioner did not exercise reasonable diligence in
discovering the New York Times article. Respondent contends that the article has been in the
public realm since it was published in 2005, and that petitioner failed to ask Mr. Anderson
questions about jury selection when he deposed him in 2010, even though he did question him
about Jack Quatman’s allegations.
As noted above, the Ninth Circuit left it to the district court to decide whether the parties
may submit additional evidence in relation to petitioner’s Batson claim, or whether such

The Ninth Circuit instructed the parties to be prepared at oral argument “to discuss the
comments Alameda County prosecutor James H. Anderson made in 2005 to The New York Times
about jury selection strategies. See Dean E. Murphy, Case Stirs Fight on Jews, Juries and
Execution, N.Y. Times (Mar. 16, 2005), https://www.nytimes.com/2005/03/16/us/case-stirsfight-on-jews-juries-and-execution.html. The parties should be prepared to explain whether these
comments were in the state or federal court record, and what impact, if any, they have on
Petitioner’s Batson claims, request for an evidentiary hearing, and the scope of this court’s
review under Cullen v. Pinholster, 563 U.S. 170 (2011).” Id. At oral argument, petitioner
conceded that the news article was not part of the record.
https://www.ca9.uscourts.gov/media/video/?20210602/16-99010 at 6:21.
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evidence must be submitted for the first time in state court. Ervin, 12 F.4th at 1108. The New
York Times article strengthens the evidentiary posture of petitioner’s Batson claim, arguably
rendering it unexhausted. See Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (where
federal habeas petitioner presents new evidence that places the case in significantly stronger
evidentiary posture, state courts must be given opportunity to consider the evidence); see also
Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014).
Under Pinholster, federal habeas review under 28 U.S.C. ' 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits. 563 U.S. at 181.
Once a state court has decided a claim on the merits, Aevidence later introduced in federal court
is irrelevant.@ Id. at 1400. Under Pinholster, if a federal habeas petitioner wishes for a federal
court to consider new evidence in deciding whether his claims survive review under Section
2254(d)(1), he must first present that evidence in state court. See, e.g., Gonzalez v. Wong, 667
F.3d 965 (2011) (potentially meritorious Brady claim supported by newly-discovered materials
obtained during federal habeas proceedings remanded to district court with instructions to stay
proceedings to permit petitioner to present claim to California Supreme Court). The United
States Supreme Court recently made clear that “only rarely may a federal habeas court hear a
claim or consider evidence that a prisoner did not previously present to the state courts in
compliance with state procedural rules.” Shinn v. Ramirez, 142 S. Ct. 1718, 1730 (2022).
In light of Pinholster's emphasis on the primary responsibility of the state court,
petitioner’s new evidence must be presented to the state court before it can be considered on
federal habeas review. Accordingly, this case is stayed so that petitioner may present his Batson
claim, accompanied by all new evidence and argument, including the New York Times article
identified by the Ninth Circuit, to state court. Petitioner is directed to file a state habeas petition

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raising his Batson claim within sixty days of the date of this Order. One hundred and twenty days
after the entry of this Order, and every ninety days thereafter until his state proceedings are
terminated, petitioner shall file a brief report updating the Court on the status of his state habeas
action. No later than thirty days after proceedings in his state case are completed, petitioner shall
serve and file notice that proceedings are completed.
IT IS SO ORDERED.
Dated: September 27, 2022
______________________________________
VINCE CHHABRIA
United States District Judge

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