Wilson v. Tilton

Filing 49

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on February 15, 2013. (mmcsec, COURT STAFF) (Filed on 2/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CLINTON BRIAN WILSON,

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Petitioner,
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v.
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GARY SWARTHOUT,
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Respondent.
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______________________________ )

No. C 09-0143 MMC (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY; DIRECTIONS TO
CLERK

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Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant

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to 28 U.S.C. § 2254 by petitioner Clinton Brian Wilson, challenging the validity of a

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judgment obtained against him in state court.1 Respondent has filed an answer to the

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petition. Petitioner has not filed a traverse.
I. PROCEDURAL HISTORY

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In 2005, a San Mateo County jury found petitioner guilty of robbery with personal

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use of a firearm, possession of a firearm by a felon, burglary of a vehicle, and possession of

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stolen property. (Ex. 1 at 505-11).2 The trial court sentenced petitioner to a total term of 15

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years and eight months in state prison. (Ex. 1 at 569-70).

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Petitioner initially named James E. Tilton, former Secretary of the California
Department of Corrections and Rehabilitation, as the respondent in this action. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Gary Swarthout, the current warden of
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as respondent.
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Unless otherwise indicated, all references herein to exhibits are to exhibits submitted
by respondent in support of the Answer.

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On September 21, 2007, in a reasoned opinion, the California Court of Appeal

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affirmed the judgment. People v. Wilson, 2007 WL 2751877 (Cal. Ct. App. Sept. 21, 2007).

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On December 19, 2007, the California Supreme Court summarily denied the petition for

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review. (Resp.’s Apr. 16, 2012 Mot. To Dismiss (“MTD”) Ex. 2.)

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On June 13, 2009, petitioner filed the initial petition in the instant action, which

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petition contained two claims alleging trial court error. Petitioner thereafter sought and was

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granted a stay to exhaust in state court a claim alleging ineffective assistance of counsel.

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(Dkt. No. 16.)

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Court, Court of Appeal, and Supreme Court, all of which were denied. (MTD Exs. 3-5.)

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Petitioner next filed petitions for a writ of habeas corpus in the California Superior

On June 14, 2011, petitioner filed in the instant action an amended petition containing

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all three claims for relief. By order filed July 5, 2012, the Court granted respondent’s motion

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to dismiss the new claim as untimely and directed respondent to file an answer to the two

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remaining claims. (Dkt. No. 40.)

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II. STATEMENT OF FACTS
The California Court of Appeal found the facts underlying petitioner’s conviction to
be as follows:

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Bank Robbery-July 10, 2003

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At about noon on July 10, 2003, Paula Pacis was working as lead teller at a San
Mateo Wells Fargo Bank (San Mateo bank). She noticed two
African-American men enter the bank through the rear door and approach her
teller window. One man (later identified as [petitioner]), wore a black
fisherman’s hat and blue shirt with “security” written on it in white letters; the
other (later identified as Burtley) wore a white t-shirt, black baseball cap and
black pants. [Petitioner] put his hand, covered by an envelope, on the counter,
told Pacis she was being robbed and demanded she give him money. He
removed the envelope to reveal a small white handled (sic) handgun pointed at
her, and told her to give him her “hundreds and [fifties].” Burtley was standing
next to [petitioner]. Pacis complied with the demand and placed the hundreds
and fifties from her bottom drawer on the counter.

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After Pacis placed the money on the counter, Burtley told [petitioner] he
wanted all the money. [Petitioner] then told Pacis to give him the twenties.
Pacis put all the money in her top drawer on the counter while the gun
remained pointed at her. The twenties contained a dye package marker.
Burtley told her she would be “okay” and he and [petitioner] walked out the
bank’s rear door. Pacis pulled the bank’s alarm and told two coworkers she
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had been robbed. Pacis calculated that $2,400 had been taken in the robbery.

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Pacis met with FBI Agent Pete Adduci the following day, and, on July 13,
2003, he showed her two photographic lineups. In the first lineup Pacis
identified a photo of [petitioner] and said he was the person who robbed her. In
the second lineup Pacis did not recognize anyone as the robber who held the
gun or the robber’s accomplice.3 Adduci also showed Pacis a gun which she
identified as that used in the robbery. At trial, Pacis identified [petitioner] as
the man with the gun and Burtley as his accomplice.

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Contractor John Caropepe and carpenter Kevin Kerns were working at the San
Mateo bank at the time of the robbery. Caropepe and Kerns noticed a reddish
late model Mustang convertible with a tan top, drive through the bank parking
lot with two men inside. One of the men wore a dark fishing-style hat and a
blue shirt with white stenciled letters. About 10 or 15 minutes later, Caropepe
saw the man with the hat and a shirt saying “security” walk by with another
African-American man, walking toward the bank’s door or ATM. A couple
minutes later, Caropepe saw the same two men running past the bank window
and down the street, and heard a bank teller tell the bank manager she had just
been robbed. Caropepe and Kerns went in pursuit of the two men and found an
exploded dye pack and some money in the street.

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Automobile Burglary-July 12, 2003
Mark Dahl testified he drove his Ford Tempo to Antones Bar in San Mateo on
the afternoon of July 12, 2003. He left his red Marlboro fanny pack on his
car’s front seat underneath a vest, locked the car and went inside the bar for
lunch. The fanny pack contained various items including Dahl’s wallet,
checkbook, passport, and various receipts. At about 2:00 p.m., he discovered
his car had been broken into, the front passenger window was broken out and
his fanny pack was missing.
Bartender Sandra Tipsword and her friend Bruce Hollingsworth were at
Antones Bar when they heard the sound of glass breaking. Hollingsworth and
Tipsword went outside and saw two African-American men walking across the
street and a car with its window broken out and glass on the ground. When
Hollingsworth yelled “hey,” the two men looked at him and started running
toward an alley. Hollingsworth and Tipsword said one of the men wore a dark
fishing-type hat and a shirt that said “security.” The other man wore a light
colored, or white shirt and a hat with the visor turned backwards. Tipsword
called 911 and chased the two men into the alley. She said she was “really
scared” because she did not know if the alley had an outlet. Inside the alley, a
silver or white car backed up toward Tipsword and drove down the alley.
On July 18, 2003, Tipsword and Hollingsworth were each shown photographic
lineups. In one lineup Tipsword circled [petitioner’s] picture and said she was
30 percent sure it was one of the men she saw. In the other lineup she circled
Burtley’s picture and said she was 30 percent sure he was one of the men she
saw. Hollingsworth also selected [petitioner’s] picture as the man he saw in the

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The parties stipulated Burtley’s photograph was included in the second
photo lineup shown to Pacis.
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fishing hat and “security” shirt. In the second lineup he circled Burtley’s
picture as the person wearing the light colored shirt.

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Pacis, Tipsword and Hollingsworth attended a live lineup on August 8, 2003.
Each selected the person in the number one position, although it was stipulated
that [petitioner] was in the number three position in the live lineup.

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At trial Tipsword and Hollingsworth said photos of [petitioner’s] car looked
like the car they saw in the alley. Hollingsworth identified defendants[4] as the
two men he saw on July 12. Tipsword identified defendants as the men she
saw following the auto burglary and was certain of her identification.

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Defendants’ Arrest-July 12, 2003
At about 3:00 p.m. on July 12, 2003, Rocio Sandoval was working as a teller at
a Palo Alto Wells Fargo Bank (Palo Alto bank). She noticed two
African-American males loitering outside the front of the bank for about 20 or
30 minutes, looking into the bank, which aroused her suspicion. Sandoval,
who was aware of the San Mateo bank robbery, notified acting bank manager,
David Prasad, who told her to call police. Prasad then walked toward the door
of the bank as the two men entered. One of the men wore a white t-shirt, blue
jeans and a hat or visor, and the other wore a dark blue or black t-shirt with
“security” written across it and a fisherman’s hat. The man with the “security”
shirt was holding a piece of paper. The men stood in a teller line looking
around and appeared nervous or confused. After reaching the front of the teller
line, the men left the bank without going to a teller window or making a
transaction.
Prasad testified that when he went outside to contact the two men, the man with
the “security” shirt, later identified as [petitioner], asked what time the bank
closed. Prasad found the question unusual, because the bank hours were posted
on the door in the area the two men had been looking. While the two men
waited in the teller line, they were stared at by Prasad and the three tellers, who
had been alerted to their presence. Prasad said it was “suspicious” that the men
left the bank without doing a transaction. Prasad followed the two men after
they left the bank and eventually lost sight of them. He thought it was
“unusual” that the men did not go to a car in the bank parking lot.
Police detained defendants near the bank parking lot. [Petitioner] was carrying
a rolled up blue t-shirt with “security” written on it and a “soft-type” hat. A
consensual pat search of [petitioner] turned up a clear baggie with 12 wrapped
smaller baggies containing marijuana and two .32-caliber hollow tip bullets.
Nothing was recovered in a consensual pat search of Burtley. A 2000 Pontiac
Grand Prix registered to [petitioner] was recovered across the street from the
Palo Alto bank and impounded. A search of the car turned up a red Marlboro
fanny pack containing Dahl’s passport and checkbook.
Defendants were separately transported to the police station where they were
placed together in an interview room. On a hidden camera, [petitioner] was

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All references to “defendants” in the Court of Appeal’s opinion are to petitioner and
his co-defendant, Jeffrey Burtley.
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observed pulling a gun from his pants and placing it under an acoustic wall
panel. Police then entered the interview room, recovered the gun and searched
[petitioner] again, who was wearing two layers of clothing. Pacis later
identified the gun recovered from [petitioner] as the gun used during the
robbery of the San Mateo bank.

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As part of his investigation of the San Mateo bank robbery, San Mateo Police
Sergeant Malcolm Laner was informed that a 1999 Ford Mustang convertible
was registered to Burtley. On August 7, 2003, he went to the courthouse where
the preliminary hearing was to take place, and located a red Mustang
convertible in the courthouse parking lot. A check of the car’s license plate
revealed it was registered to Burtley, and the car matched the descriptions
given by Caropepe and Kerns of the car seen in the bank parking lot following
the bank robbery.

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The thrust of the defense was mistaken identification.

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Wilson, 2007 WL 2751877 at *1-4 (Cal. Ct. App. Sept 21, 2007) (internal footnote renumbered).
III. DISCUSSION

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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);
Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on
the basis of a claim that was reviewed 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.”
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas
relief is warranted only if the constitutional error at issue had a “substantial and injurious
effect on the verdict.” Penry v. Johnson, 532 U.S. 782, 796 (2001) (internal citation
omitted).
A state court decision is “contrary to” clearly established Supreme Court precedent if
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it “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,”

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or if it “confronts a set of facts that are materially indistinguishable from a decision of [the

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Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams,

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529 U.S. at 405-06. “Under the ‘unreasonable application’ clause, a federal habeas court

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may grant the writ if the state court identifies the correct governing legal principle from [the

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Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

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prisoner’s case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because

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that court concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly. Rather, that application must also
be unreasonable.” Id. at 411.

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Section 2254(d)(1) restricts the source of clearly established law to the Supreme

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Court’s jurisprudence. “[C]learly established Federal law, as determined by the Supreme

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Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme]

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Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at

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412. “A federal court may not overrule a state court for simply holding a view different from

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its own, when the precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v.

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Esparza, 540 U.S. 12, 17 (2003).

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Here, the only state court to address the merits of petitioner’s claims was the

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California Court of Appeal on direct review. The Court of Appeal thus was the highest court

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to have reviewed the claims in a reasoned decision, and it is the Court of Appeal’s decision

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that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);

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Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

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B.

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Petitioner’s Claims
Petitioner claims his conviction and sentence are invalid because: (1) the trial court

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erred in admitting profile evidence; and (2) the trial court erroneously denied petitioner’s

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Batson/Wheeler motion. The Court addresses each claim in turn.

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1.

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Petitioner claims the testimony of Palo Alto bank manager David Prasad (“Prasad”)

Profile Evidence

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constituted inadmissible “profile evidence.” (Petition at 6.)
a.

Background

The California Court of Appeal summarized the factual and procedural background
for this claim as follows:

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Evidence Code Section 402 Hearing

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At an Evidence Code section 402 hearing, Prasad testified about training he
received in recognizing potential bank robbers. He explained that on a
quarterly basis he was required to watch videos regarding identification of bank
robbers, check fraud or “anything that could happen within the bank.” He was
taught to notice his surroundings, to make eye contact and talk with someone
who is loitering around the bank, and look out for anything unusual. Prasad
said that based on his training, it was “really suspicious to have somebody
come in, stand in line, and just walk outside of the door.”

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Burtley’s counsel argued that Prasad’s training regarding identifying potential
bank robbers was inadmissible profile evidence that could not be used to prove
criminal conduct or criminal intent. Counsel also argued that the evidence was
irrelevant and more prejudicial than probative. (Evid.Code, § 352.) The
prosecutor argued the challenged evidence was relevant because it explained
why Prasad notified police about the suspects. [Petitioner’s] counsel argued
that Prasad could not offer an opinion that the men were “casing” the bank, but
could describe their conduct.
The court concluded that Prasad could not “speculate ... or offer opinions with
regard to mental states of the two individuals [he] saw,” but could describe
what he observed as a percipient witness. The court said it would not make a
blanket ruling regarding the term “casing” and noted that counsel reserved the
right to object when Prasad testified.

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Prasad’s Trial Testimony
At trial, Prasad testified he was taught “if somebody’s just kind of moping
around the branch, just not doing anything, kind of looking inside, that just
causes some suspicion in us on why they just are, you know, sitting around.
[¶] We’ve always been taught if there is something we are suspicious of [we
should] go ahead and make eye contact with the person. Most likely at this
point if we are making eye contact, the person won’t really look into your eyes
and they won’t really talk to you about much.” He described his training as
“[b]asically on a quarterly basis we watch videos and have [a] meeting around,
... what to look for.” Prasad said that at the time he went outside to contact the
two men, he was aware only that the San Mateo bank had been robbed by two
men, but did not know what they looked like.
Wilson, 2007 WL 2751877, *8-9 (Cal. Ct. App. Sept 21, 2007).
b.

Analysis

Petitioner presents his claim in the instant petition by referencing his petition for
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review filed in the California Supreme Court. In said petition for review, petitioner claimed

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Prasad’s testimony was (1) inadmissible profile evidence, in violation of People v. Robbie,

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92 Cal. App. 4th 1075, 1084 (2001) and other California case law; and (2) unduly prejudicial

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in violation of People v. Watson, 46 Cal. 2d 818, 837 (1956). (See Ex. 6 at 7-9.) Petitioner

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raises no new arguments here.

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Under AEDPA, this Court may entertain a petition for habeas relief on behalf of a

treaties of the United States.” 28 U.S.C. § 2254(a). The admission of evidence is not subject

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to federal habeas review unless a specific constitutional guarantee is violated or the error is

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of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due

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prisoner “only on the ground that he is in custody in violation of the Constitution or laws or

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United States District Court

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process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784

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F.2d 984, 990 (9th Cir. 1986).

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Here, petitioner does not refer to any federal law or constitutional provision with

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respect to his profile evidence claim. Instead, petitioner alleges error under state law only.

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“[It] is not the province of a federal habeas court to reexamine state-court determinations on

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state-law questions. In conducting habeas review, a federal court is limited to deciding

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whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle

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v. McGuire, 502 U.S. 62, 67-68 (1991); see also Aponte v. Gomez, 993 F.2d 705, 707 (9th

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Cir. 1993) (holding federal courts are “bound by a state court’s construction of its own penal

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statutes”).

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Further, even assuming admission of Prasad’s testimony was error, any such error did

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not constitute a denial of due process. The due process inquiry in federal habeas review is

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whether “the admission of the evidence was arbitrary or so prejudicial that it rendered the

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trial fundamentally unfair.” Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley,

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784 F.2d at 990. The admission violates due process “only if there are no permissible

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inferences the jury may draw from the evidence.” Jammal v. Van de Kamp, 926 F.2d 918,

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920 (9th Cir. 1991) (emphasis in original). Here, the California Court of Appeal found the

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testimony regarding Prasad’s training was relevant and admissible to explain why Prasad was
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particularly attentive to petitioner’s conduct, thereby reinforcing the accuracy of Prasad’s

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observations. Wilson, 2007 WL 2751877 at *10. The Court of Appeal also found Prasad’s

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testimony relevant and admissible under California Evidence Code § 1101(b), in that it

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served to show the identity of the San Mateo bank robbers, who were wearing clothing nearly

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identical to that worn by the two individuals Prasad observed acting in a suspicious manner

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at the Palo Alto bank. Id. The inferences identified by the state court are clearly permissible,

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and, consequently, the admission of Prasad’s testimony did not violate due process.

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Accordingly, petitioner is not entitled to habeas relief on this claim.

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2.

During jury selection, the prosecutor exercised peremptory challenges against two

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Batson/Wheeler Motion

prospective African-American jurors. (Ex. 3 at 307.) Petitioner and his co-defendant,

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Burtley, both of whom are African-American, made a joint Batson/Wheeler motion.5 (Id. at

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308-10.) After finding the defendants had made out a prima facie case of purposeful

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discrimination, the trial court denied the motion, further finding there were race-neutral

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justifications for the peremptory challenges. (Id. at 313-14, 319-20.) Petitioner claims the

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denial of the motion was erroneous. (Petition at 6.)

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a.

Background

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The California Court of Appeal summarized and resolved this claim as follows:

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Prospective Juror L.L.

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L.L. was in the first group of jurors called to the jury box. During voir dire by
the court, L.L. stated that nothing about her prior jury service would make it
difficult to serve in this case and said there was no reason she could not be fair.
L.L. said she was married, had two grown children, was a high school math
tutor, her husband was a truck driver, no one in her household had legal
training and she had no friends involved in criminal law. L.L. said that two
years before she was a juror on a “drug-related” case in San Mateo County.
She said, “the guy felt that he had been set up by the police.” Subsequently,
the prosecutor asked if any of the prospective jurors felt sympathy that would
interfere with their ability to be a fair and impartial juror. In response, L.L.
volunteered, “By being an African-American and they are African-American, I
have no problem with it.” After the prosecutor asked whether anyone

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Batson v. Kentucky, 476 U.S. 79, 89 (1986); People v. Wheeler, 22 Cal. 3d 258,
280 (1978).
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disagreed with the concept that “just because there is some conflicting evidence
that in and of itself does not create reasonable doubt,” the following colloquy
occurred:

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“[L.L.]: I think it could possibly cause some confusion.

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“[Prosecutor]: But you understand you have to evaluate all of the evidence; is
that correct?

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“[L.L.]: Exactly.”
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The prosecutor’s sixth peremptory challenge was to L.L. At the time L.L. was
challenged, counsel for defendants had peremptorily challenged five
prospective jurors.
Prospective Juror S.B.
When prospective Juror S.B. was called to the jury box, he asked to be excused
for hardship. He explained his hardship was, “Both business and financial.
From a business standpoint, I have a lot of deliverables and deadlines which
still have to be met. So if I serve on the jury, I still have to probably go into the
office and work after hours and on weekends, get projects done.” S.B.
explained he did financial accounting work for Hewlett-Packard and
acknowledged he would not lose income as a result of his jury service. S.B.
also said he was concerned that if he was on a jury panel for two weeks it
would jeopardize his opportunity to interview for a position with a new
company. S.B. said the interview had not yet been scheduled, but would
probably occur within the next week. After he acknowledged that the
prospective employer would “potentially” be willing to reschedule the
interview due to his jury service, the court denied S.B.’s hardship request.
S.B. then stated he was single, had no children, lived alone and had no friends
or relatives involved with law enforcement or criminal law. He also said there
was no reason he could not be fair and impartial. Subsequently, in response to
questioning by the prosecutor, S.B. said he would be “pretty unhappy” if he got
called for the interview and the company was unwilling to reschedule it.
However, he answered “no” when asked if he would hold it against the
prosecutor or the defense, S.B. said, “I think if I explain my circumstances, if
they want me bad enough, they will probably let me come in at another time.
That’s my true feelings. [¶] ... So I think we could probably work something
out maybe even after hours ...” He reiterated that even if he was sitting on a
jury, his work still needed to get done, nobody else could do it, and he would
have to work weekends or after hours. When asked if he “will be okay with the
course of the trial,” S.B. answered, “Sure.” Thereafter, the prosecutor
exercised his thirteenth peremptory challenge against S.B. and defense counsel
made their joint Batson-Wheeler motion.
In asserting the Batson-Wheeler motion, the defense argued that out of the
nearly 100 people in the jury panels, only three were African-American,
including L.L. and S.B. The court noted that following the challenges to L.L.
and S.B., one African-American remained on the jury panel. Thereafter, it
found that a prima facie case had been established and asked the prosecutor to
explain its peremptory challenges to L.L. and S.B.
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The prosecutor gave the following justification for challenging L .L.: “First, as
to [L.L.], ... beginning initially with in-court conduct, I noticed upon-shortly
upon her entry at certain points during the voir dire process before I questioned
her I did notice her staring at me on several occasions which was what initially
drew my attention to her. [¶] Upon my voir dire, when I addressed the entire
panel and asked the question if there was any reason I might be held to a higher
burden by any members of the jury, including sympathy, she immediately upon
her response when I asked her if there was any higher reasoning became
defensive. As it sounded to me on the record that she would not sympathize
with the defendants because they were African-American, making an
assumption it was a race-motivated question asked by the People or at least
that’s how it seemed. And she did seem somewhat annoyed with me with her
facial expressions after that particular question was asked. [¶] I also noted and
was referred to me by Detective or Sergeant Cabral was that I asked the juror
next to her who was Ms. [B.] and the rest of the venire a question about being
able to resolve the conflicts in the evidence in the case, and if they felt--one if
they understood that conflicts in the evidence did not in and of themselves
create reasonable doubt. Ms. [B.] seemed to have a problem with that. And at
the same time, [L.L.] was nodding her head in agreement with that, which is
something that Sergeant Cabral noticed as well. [¶] At the end of the day in the
exercise of peremptories, I did not further voir dire her anymore yesterday and
did not--I passed on her at this point. [¶] When I came back in here this
morning I noticed her body language directed towards me. She did seem to
focus on me at least a little bit. Based upon that, I felt she might harbor some
ill will towards me because of my question, if my question offended her, and if
she might hold that against me personally and against the prosecution of the
case. Those are my reasons as to [L.L.].”
The prosecutor gave the following justification for challenging S.B.: “As to
[S.B.], I think the record is very clear [S.B.] started out by asking to be excused
for hardship, which the court denied. He stated he had numerous business
obligations and was going to be working late after work just at the hardship
stage, and additionally that he had a potential job interview that was available
to him that was [possibly] going to be missed if he had to serve on a jury over
the next two weeks. He brought that up to the court. The court denied the
hardship challenge. [¶] I then asked him on voir dire specifically about that
particular issue. Are you going to be upset if you miss that opportunity, and he
said yes, I’m not going to be happy if that’s the case. He did comment that if
they wanted him badly enough they would reschedule, but the fact that he
could potentially [lose] a job interview for a higher paying job is obviously a
matter of concern. Coupled with the fact that he indicated that he was going to
continue to work late after trial as well as on the weekends additionally I feel
met the criteria to strike him as a [juror] in this particular case. I have also
struck other ... [¶] ... jurors for the same basis. In terms of having contrary
concerns that will be distractions to them over the ... same reason why I struck
Mrs. [S.] based upon her repeated issues with having to be away from her
children, not being able to take care of her, being distracted about issues with
her, same situation with Ms. [D.] and Mr. [W.] as well as the house sale.” The
prosecutor also noted that he had passed for challenge another
African-American prospective juror.
Burtley’s counsel responded that S.B. was “quite clear ... that he was more than
willing to have the people he wanted to potentially interview him reschedule ...
[H]e showed a willingness and readiness to serve and no frustration or temper
tantrums. The court stated, “I think fairly speaking, after sometime he did
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warm to the idea of possibly serving as a juror where he was a little bit more
resistant to the concept at the beginning of his voir dire.”

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With regard to L.L., Burtley’s counsel stated, “I mean she was staring at us too.
They are sitting up there. Here we are. They are kind of a captive audience.
I’m not sure they are staring at me is a substantial reason to kick her off the
jury.”
[Petitioner’s] counsel stated he did not perceive that the prosecutor “did
anything wrong and singled anybody out. And I didn’t get those same feelings
or reactions from [L.L.] or [S.B.]” He noted there were a number of
professionals on the jury that would rather be at work, and he did not
understand the justification for the prosecutors challenges of L.L. and S.B.
The prosecutor responded that L.L. seemed to be offended by his question and
responded defensively to it, and he was concerned she would hold it against
him in the course of trial. He added that L.L.’s body language “solidified” his
concerns. As to S.B. the prosecutor said that S.B.’s statement that he would
not be happy if he did not get the job coupled with his having to work after
hours and weekends gave the prosecutor concern that S.B. would be distracted
with things other than trial, particularly if he were working late at night.
In denying the Batson-Wheeler motion the court stated that although it was
“somewhat troubled,” and therefore found a prima facie case had been
established, it concluded there was a reasonable neutral explanation for the
prosecutor’s challenges of L.L. and S.B. and no purposeful discrimination had
been shown.
The trial court’s ruling on the issue of purposeful racial discrimination is
reviewed for substantial evidence. (Avila, supra, 38 Cal.4th at p. 541.) The
prosecutor is presumed to use peremptory challenges in a constitutional manner
and deference is given to the court’s ability to distinguish “‘bona fide reasons
from sham excuses.’ [Citation.]” (Ibid.) The prosecutor may exercise a
peremptory challenge for any permissible reason, or for no reason at all, but if
he or she provides an “‘implausible or fantastic’ [citation]” justification for a
challenged strike, the court may determine the justification is a pretext for
purposeful discrimination. (People v. Huggins (2006) 38 Cal.4th 175, 227.)
We defer to the court’s conclusions so long as it makes a “‘sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered.’
[Citation.]” (Avila, supra at p. 541.) “‘[I]n fulfilling [this] obligation, the trial
court is not required to make specific or detailed comments for the record to
justify every instance in which a prosecutor’s [nondiscriminatory] reason for
exercising a peremptory challenge is being accepted by the court as genuine.
This is particularly true where the prosecutor’s [nondiscriminatory] reason for
exercising a peremptory challenge is based on the prospective juror’s
demeanor, or similar intangible factors, while in the courtroom.’” (People v.
Ward (2005) 36 Cal.4th 186, 200, quoting People v. Reynoso (2003) 31 Cal.4th
903, 919.)
Defendants contend the court’s finding that the prosecutor had race neutral
reasons in support of his challenges of L.L. and S.B. is not supported by
substantial evidence. As to the prosecutor’s justification that L.L. was annoyed
with him, [petitioner] argues, in essence, that the prosecutor provoked L.L.’s
annoyance by posing a question that put her “on the spot,” rendering the
prosecutor’s justification illusory. Defendants both argue there is no evidence
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in the record that L.L. expressed any disagreement with the concept that
conflicting evidence does not alone create reasonable doubt, and there is no
evidence that L.L. projected any animosity toward the prosecutor. [Petitioner]
argues that the prosecutor’s reliance on L.L .’s body language should be given
less weight.
“Since the trial court was in the best position to observe [L.L.’s] demeanor and
the manner in which the prosecutor exercised his peremptory challenges, the
implied finding, that the prosecutor’s reasons for excusing [L.L.], including the
demeanor-based reason[s], were sincere and genuine, is entitled to ‘great
deference’ on appeal. [Citations.]” (People v. Reynoso, supra, 31 Cal.4th at p.
926; People v. Stanley (2006) 39 Cal.4th 913, 939.) While the cold record
before us does not affirmatively disclose L.L.’s asserted defensiveness,
annoyance, or body language, it is not contradicted by the record. Thus, we
may rely on the presumption that the prosecutor properly relied on these
reasons. (See People v. Allen (2004) 115 Cal.App.4th 542, 549.)
Burtley argues that the record provides no basis for the prosecutor’s striking
S.B. on the ground that S.B. was unwilling to serve on the jury due to work
commitments or a prospective job interview. [Petitioner] argues that the fact
that the prosecutor did not peremptorily challenge Juror No. 3 whose hardship
request was denied renders insufficient the prosecutor’s justification for
challenging S.B. Assuming, without deciding, that a comparative juror
analysis should be conducted for the first time on appeal (see, e.g., People v.
Williams, (2006) 40 Cal.4th 287, 312; Avila, supra, 38 Cal.4th at p. 546;
People v. Huggins, supra, 38 Cal.4th at p. 232; People v. Jurado (2006) 38
Cal.4th 72, 105; People v. Schmeck (2005) 37 Cal.4th 240, 270; People v. Gray
(2005) 37 Cal.4th 168, 189-190; People v. Cornwell (2005) 37 Cal .4th 50, 71),
we conclude it is unavailing.
The prosecutor’s justification was not that S.B. was unwilling to serve on the
jury, but that S.B.’s statement that he would not be happy if he did not get the
job coupled with his having to work after hours and weekends gave the
prosecutor concern that S.B. would be distracted with things other than trial,
particularly if he were working late at night. This is a perfectly reasonable
inference from S.B.’s statements and a proper justification for the prosecutor’s
challenge.
We also reject [petitioner’s] attempt at comparative juror analysis to establish
that the prosecutor’s explanation for challenging S.B. was a sham. (See, e.g.,
Miller-El v. Dretke (2005) 545 U.S. 231, 240-248; Avila, supra, 38 Cal.4th at ¶.
545-546.) Juror No. 3, a clinical nurse case manager, stated that if she were not
at work, it would be very difficult for others in her office to absorb her work
duties. Juror No. 3 also stated that she was divorced and responsible for
transporting her 17-year-old son to and from high school on certain days. Juror
No. 3’s responses to voir dire questions revealed her circumstances and reasons
for requesting to be excused for hardship were different from S.B.’s and
therefore comparative juror analysis does not tend to show prohibited group
bias. The trial court was in the best position to evaluate the jurors and the
prosecutor’s justification for challenging S.B. and found that justification
legitimate. On the record before us, we have no reason to reach a different
conclusion. Defendants’ Batson-Wheeler motion was properly denied.
Wilson, 2007 WL 2751877 at *4-8 (Cal. Ct. App. Sept. 21, 2007).
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b.

Analysis

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The Equal Protection Clause forbids peremptory challenges of “potential jurors solely

Batson is established in a three-step process: (1) the defendant must make out a prima facie

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case that the prosecutor exercised peremptory challenges on the basis of race “by showing

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that the totality of the relevant facts gives rise to an inference of discriminatory purpose”;

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(2) if a prima facie case is established, the burden shifts to the prosecutor to articulate a race-

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neutral explanation for striking the jurors in question; and (3) if the prosecutor comes

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forward with a race-neutral explanation, the trial court must determine whether the opponent

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of the strike has proved purposeful discrimination. Johnson v. California, 545 U.S. 162, 168

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on account of their race.” Batson, 476 U.S. at 89. A violation of equal protection under

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United States District Court

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(2005).

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A federal habeas court need not dwell on the first step of the Batson analysis if the

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matter has proceeded to the second or third step. “Once a prosecutor has offered a

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race-neutral explanation for the peremptory challenges and the trial court has ruled on the

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ultimate question of intentional discrimination, the preliminary issue of whether the

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defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500

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U.S. 352, 359 (1991).

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Where the prosecution comes forward with an explanation of racial neutrality, proof

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of discriminatory intent or purpose is required to show a violation of the Equal Protection

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Clause. See Hernandez, 500 U.S. at 355-62. Such a finding turns largely on the trial court’s

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evaluation of the prosecutor’s credibility, Rice v. Collins, 546 U.S. 333, 340-42 (2006). To

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fulfill its duty, the court must evaluate the prosecutor’s proffered reasons and credibility in

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light of the totality of the relevant facts, using all the available tools including its own

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observations and the assistance of counsel. Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir.

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2004). A legitimate reason “is not a reason that makes sense, but a reason that does not deny

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equal protection.” Purkett v. Elem, 514 U.S. 765, 769 (1995). What matters is the

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“genuineness of the motive” behind the racially-neutral explanation, not “the reasonableness

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of the asserted nonracial motive.” Id. (emphasis in original). “‘To accept a prosecutor’s
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stated nonracial reasons, the court need not agree with them. The question is not whether the

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stated reason represents a sound strategic judgment, but whether counsel’s race-neutral

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explanation for a peremptory challenge should be believed.’” Gaston v. Curry, 406 Fed.

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App’x. 144, 145 (9th Cir. 2010) (quoting Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.

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2006)).

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AEDPA “‘imposes a highly deferential standard for evaluating state-court rulings’”

Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico v. Lett, 130 S. Ct. 1855, 1862

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(2010)). More specifically, the findings of the state trial court on the issue of discriminatory

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intent are findings of fact entitled to the presumption of correctness in federal habeas review,

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and “‘demands that state-court decisions be given the benefit of the doubt.’” Felkner v.

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see Elem, 514 U.S. at 769, as are the findings of the state appellate court, see Mitleider, 391

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F.3d at 1050; Williams v. Rhoades, 354 F.3d 1101, 1108 (9th Cir. 2004). Under AEDPA,

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this means a state court’s findings with respect to discriminatory intent are presumed sound

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unless a petitioner rebuts the presumption by clear and convincing evidence. Miller-El v.

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Dretke, 545 U.S. 231, 240 (2005). “‘[The federal court] must defer to the [state court’s]

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conclusion that there was no discrimination unless that finding was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.’”

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Gaston, 406 Fed. App’x. at 145 (quoting Cook v. LaMarque, 593 F.3d 810, 816 (9th Cir.

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2010)). A federal habeas court may grant relief only “if it was unreasonable to credit the

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prosecutor’s race-neutral explanations for the Batson challenge.” Rice, 546 U.S. at 338-41.

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Applying these legal principles to the instant matter, the Court concludes petitioner

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has failed to rebut the presumption that the state court’s conclusion was a reasonable one.

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See Miller-El, 545 U.S. at 240.6

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In particular, the record does not support petitioner’s assertion that the prosecutor’s
decision was based on unconstitutional considerations. As to L.L., the prosecutor, as noted,

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The Court need not address herein the first step of the Batson analysis, specifically,
whether petitioner made out a prima facie case of discrimination, as the prosecutor went
forward and offered race-neutral explanations for striking the jurors and the trial court ruled
28 on the ultimate question of intentional discrimination. See Hernandez, 500 U.S. at 359.
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explained that said juror appeared annoyed and hostile toward him as indicated by her body

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language and responses to his questions during voir dire. There is nothing in the record

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contradicting the prosecutor’s assessment of L.L.’s demeanor. Indeed, petitioner essentially

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acknowledges L.L.’s apparent annoyance by arguing the prosecutor provoked such response

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by “put[ting] her ‘on the spot.’” See Wilson WL 2751877 at *7. Irrespective of whether L.L.

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was put “on the spot,” however, there was nothing improper in the prosecutor’s inquiry, and

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“race-neutral reasons for peremptory challenges often invoke a juror’s demeanor.” See

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Snyder v. Louisiana, 552 U.S. 472, 477 (2008); see also Thaler v. Haynes, 130 S. Ct. 1171,

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1172 (2010) (accepting demeanor-based explanation for peremptory challenge where
prosecutor asserted prospective juror’s body language showed failure to take case seriously);

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United States District Court

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Briggs v. Grounds, 682 F.3d 1165, 1178 (9th Cir. 2012) (accepting, as race-neutral reason for

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challenge, prosecutor’s statement that prospective juror was evasive and flippant in his

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answers).

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As to S.B., as the prosecutor explained, said juror was concerned about losing a

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potential job interview as a result of serving on the jury and that he would have to work after

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hours and on weekends during the trial. As the Court of Appeal found, such concerns on the

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part of S.B. gave the prosecutor reason to believe said juror would be distracted during the

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trial. Further, the prosecutor also challenged two other jurors who, similar to S.B.,

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unsuccessfully requested to be excused for hardship and appeared likely to be preoccupied

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with or distracted by those concerns. (See Ex. 3 at 214, 226, 232-33, 247, 262-63, 302-05.)

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In sum, petitioner has not come forward with clear and convincing evidence to rebut

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the presumption that the trial court’s determination was correct, nor has he otherwise shown

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why this Court should accept his interpretation of the record over the trial court’s credibility

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determination.

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Accordingly, petitioner is not entitled to habeas relief on this claim.

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//

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//

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//
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C.

Certificate of Appealability
The federal rules governing habeas cases brought by state prisoners require a district

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court that issues an order denying a habeas petition to either grant or deny therein a

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certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a).

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A judge shall grant a certificate of appealability “only if the applicant has made a

certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a

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district court has rejected the constitutional claims on the merits, the showing required to

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satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists

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would find the district court’s assessment of the constitutional claims debatable or wrong.”

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substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Here, petitioner has not made such a showing, and, accordingly, a certificate of
appealability will be denied.
IV. CONCLUSION

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For the reasons stated above, the petition for a writ of habeas corpus is hereby
DENIED, and a certificate of appealability is hereby DENIED.

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The Clerk shall enter judgment in favor of respondent and close the file.

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Additionally, the Clerk is directed to substitute Warden Gary Swarthout on the docket

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as the respondent in this action.
IT IS SO ORDERED.
DATED: February 15, 2013

_________________________
MAXINE M. CHESNEY
United States District Judge

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