Love v. Scribner

Filing 55

REPORT AND RECOMMENDATION Granting Petition For Writ Of Habeas Corpus (Doc. 1 ) And ORDER Granting Respondent's Motion To Strike Exhibit B: Objections to R&R due by 12/18/2009. Replies due by 1/8/2010. Signed by Magistrate Judge Ruben B. Brooks on 11/30/2009. (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. v. L.E. SCRIBNER, Warden, Respondent. ALFREDERICK LOVE, Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 06cv640 WQH(RBB) REPORT AND RECOMMENDATION GRANTING PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 1] AND ORDER GRANTING RESPONDENT'S MOTION TO STRIKE EXHIBIT B UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

INTRODUCTION Alfrederick Love, an African-American, was tried and convicted of battery on a non-confined person by a prisoner. During the

second day of jury selection, Monday, July 21, 2003, Assistant District Attorney Eric Baker excused the lone African-American from the jury. His motivation for that peremptory challenge is the

subject of this proceeding. I. The Jury Selection BACKGROUND

On December 4, 2002, the Imperial County District Attorney filed an information charging Alfrederick Love with two counts of battery on a non-confined person by a prisoner in violation of 1
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California Penal Code section 4501.5 for his attacks against Sergeant Kenneth Grady and Correctional Officer B. Walker. (Lodgment No. 1, Clerk's Tr. vol. 1, 001C-002, Dec. 4, 2002.) The

information also alleged the following sentencing enhancements: (1) Petitioner committed the charged batteries while confined in state prison within the meaning of California Penal Code section 1170.1(c), and (2) Love had three prior serious or violent felony convictions for robbery that would result in sentencing enhancements under California Penal Code sections 667(b)-(i) and 1170.12(a)-(d). 1. (Id.); see also Cal. Penal Code § 211 (West 2008). Jury Selection -- Day One Love represented (J. Mot.

Jury selection began on July 17, 2003.

himself during the jury selection process and at trial.

File Tr. State Proceedings, Attach. #1 Tr. 134, 216, July 17, 2003.) On the first day of the selection process, Assistant

District Attorney Christopher Kowalski represented the People of California. (Id.) The Honorable Jeffrey B. Jones excused or

deferred service for all the potential jurors with qualifying hardships. (Id. at 170-73.) He then questioned the twenty-four (Id. at 173-201.) Among them were

remaining potential jurors.

Sahid Ramirez, later struck by Prosecutor Baker, and juror four, one of the jurors who is the subject of this Court's comparative analysis.1 (Id. at 172.)

Ramirez told the trial court he was from Calexico; he was married with a young baby; he worked at the "[S]ocial [S]ecurity

The trial court transcript refers to some jurors by name and others by number, presumably to protect the privacy of those making that request. This Court will use the same identifying information here. 2
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office;" his wife was a tutor at an elementary school; and he had no prior jury experience. (Id. at 176.) Juror four stated her

residence and explained that she was married with three children and one grandchild; she was "an instructional assistant;" her husband was a maintenance worker; and she had no prior jury experience. (Id.) Other prospective jurors disclosed similar

background information and responded to questions from the court. (Id. at 176-201.) Next, Assistant District Attorney Kowalski and Love questioned the potential jurors. (Id. at 201-252.) Neither directed any Following questioning,

questions to Ramirez or juror four.

(Id.)

the prosecutor and Love each challenged certain prospective jurors for cause, and the trial judge excused five individuals from the jury panel. (Id. at 252-60.) After vacancies in the jury box were

filled, Kowalski and Love were permitted to make peremptory challenges to the first twelve potential jurors. (Id. at 260-63.)

Kowalski exercised four peremptory challenges, and Love exercised three; the court excused each challenged juror. Judge Jones drew nine additional names. (Id.) He

(Id. at 263-65.)

then conducted the court's voir dire of the new potential jurors. (Id. at 266-77.) Gloria McGee, the focal point of Love's Batson (Id. at 264.) She was married,

challenge, was among this group.

had three children, was an eligibility worker, and had no prior jury experience. electrician. (Id. at 266.) Her husband was a retired

(Id. at 268.)

In addition, she disclosed that her

brother-in-law was a correctional officer at Calipatria State Prison, and her sister was a supervisor in the records section of the sheriff's department. (Id. at 275.) 3
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Kowalski and Love questioned the nine new potential jurors. (Id. at 277-94.) The prosecutor asked McGee questions about her

contacts and conversations with her sister and brother-in-law. (Id. at 291-93.) Following the questioning, the judge excused two individuals from the group of nine for cause. (Id. at 296.) Next, Kowalski

and Love each exercised three peremptory challenges, and the court excused the challenged jurors. (Id. at 296-98.) Their vacancies

were filled from the group of nine potential jurors outside the jury box. (Id.) McGee moved to seat number one. (Id. at 298.)

This concluded the first day of voir dire. 2. Jury Selection -- Day Two

(Id. at 297-98.)

When the trial resumed the following Monday, July 21, 2003, Kowalski was unavailable due to illness, and attorney Gordon Goodman appeared for the People of California. 304, 307, July 21, 2003.) (Id. Attach. #2 Tr.

An additional group of potential jurors (Id. at 310.) Judge Jones excused

was brought to the courtroom.

or deferred service for those individuals with qualifying hardships. (Id. at 337-41.)

After a recess, Assistant District Attorney Eric Baker, the prosecutor whose actions are the subject of Love's Batson challenge, entered the courtroom. (Id. at 347.) He stated that he (Id.)

had been assigned to the case and was prepared to proceed. At that point, Goodman was excused. (Id. at 348.)

The judge

explained that there were twelve potential jurors in the jury box who had been questioned during the first day of voir dire. 347-48.) (Id. at

The court called another twelve individuals to fill the (Id. at 348.) 4
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seats outside the jury box.

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Judge Jones then conducted the court's voir dire of the twelve additional potential jurors. (Id. at 349-63.) Among this group of

twelve were jurors eight and ten, Denise Garibay, Karl Noris, and alternate number one. (Id. at 348-49.)

Juror eight stated her city of residence and explained that she was married with three children and one grandchild. 352.) (Id. at

She was employed as a "teacher's aide;" her husband was

retired from his job as a cowboy in a feed lot; and she had served on a jury approximately ten to twelve years earlier but could not remember if it was in a civil or criminal case. (Id.) Juror ten

was a Holtville resident; she was not married, had one child, and was a "school teacher." (Id. at 351.) Her ex-husband was a

farmer, and she served on a criminal case about fifteen years earlier. (Id.)

Garibay lived in El Centro, was divorced, had two children, was a teacher for "Imperial County Office of Education[,]" and her ex-husband worked for a tire repair service. (Id. at 353.) Noris

lived in El Centro, had no children, was single, went to Imperial College, and had no prior jury experience. (Id.) Alternate number

one stated her residence and explained that she was married with a daughter, "work[ed] at Jefferson El Centro School[,]" and her husband worked for the family tire service. (Id. at 353-54.)

After the court's questioning was completed, the trial judge told Baker he had twenty minutes to question the jurors. 363-64.) jurors. (Id. at

Baker had the notes that Kowalski had taken about the (Tr. Evidentiary Hr'g 17, Mar. 12, 2009.) They contained

the jurors' occupations, but "not all the jurors had the same amount of notes written on them." 5 (Id.) The only information
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Baker recalled about McGee from the notes was that she was an eligibility worker, which he would characterize as a social worker. (Id. at 22-23, 25.) Prosecutor Baker asked the potential jurors generally about any personal contacts with law enforcement; could they hold a pro se defendant to the same standard as the prosecution, and could they base their decision on the evidence in this case. File Tr. State Proceedings, Attach. #2 Tr. 364-66.) (J. Mot.

He asked one

juror if he would be able to vote guilty if the prosecution proved its case beyond a reasonable doubt. (Id. at 366.) Baker asked if

anyone felt uncomfortable because the case involved an incident that occurred in state prison and whether there were any other reasons they did not want to sit on the jury that they had not already shared. (Id.) Love did not ask any questions. (Id.)

Next, Baker and Love conferred with the judge in chambers, and Love made one challenge for cause that the judge granted. 366-67.) (Id. at

Judge Jones then explained they would resume peremptory (Id.) Baker asked

challenges once they returned to the courtroom.

whether the individuals in the jury box had been challenged yet. (Id.) The judge responded that each party could make peremptory (Id. at 367-68.)

challenges of the jurors seated in the jury box.

The prosecution had already exercised seven peremptory challenges, and Love had exercised six; Baker would be the first to exercise a challenge. (Id. at 368.) Before reentering the courtroom, Baker

asked whether it was a "life case," to which the judge responded that there was a possible "20 indeterminate life sentence." (Id.)

After the trial judge excused one individual for cause, Baker began his peremptory challenges. (Id.) 6 His first challenge was to
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McGee, the only African-American potential juror. 371.)

(Id. at 369,

Love exercised a peremptory challenge, and then Baker

excused Ramirez, the individual who worked at the Social Security office. (Id. at 369.) Next, Love excused Lovecchino, a high (Id. at 351, 369.) The

school special education teacher.

prosecutor exercised another peremptory strike, followed by Love, and then Baker exercised a fourth strike. (Id. at 370.) Both

Baker and Love indicated they had no other peremptory challenges. (Id.) Before the jurors were sworn, Love asked for a side-bar conference to address the court. (Id. at 371.) He made a

"Wheeler/Batson" objection to Baker's dismissal of McGee, the only African-American on the jury panel.2 (Id.) The court sought a

response from the prosecutor, and Baker offered the following explanation: . . . I would offer as my reason is that she's a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal ­- my personal jury selection. Teachers and social workers don't sit on the jury. I referred to Chris Kowalski's notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution. (Id. at 371-72.) Love countered:

In People v. Wheeler, 22 Cal. 3d 258, 276-77, 583 P.2d 748, 761-62, 148 Cal. Rptr. 890, 903 (1978), the California Supreme Court held that the prosecution's use of peremptory challenges to eliminate jurors on the basis of "group bias," including challenges on the basis of membership in a certain racial group, violates the California Constitution. Similarly, the United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 89 (1986), held that the prosecution's use of peremptory challenges to eliminate AfricanAmericans from the jury pool violates the Equal Protection Clause. 7
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From my notes, she's not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem ­- conventionally she would be leaning towards the District Attorney. The only thing I can see that you would possibly dismiss her for is that she's African/American. (Id. at 372.) The court overruled Love's objection. I'll deny the motion on the following basis. First of all, to my knowledge ­- and I believe this is correct of the entire groups we've brought in, which would have been a total of about -­ I'm going to say 155, 160 people ­- Ms. McGee was the only African/American. .... I think she's the only one that remained after hardships. I don't think there was anybody left. .... And so the People's exercise of peremptory challenge as to the only African/American juror in the entire available panel I don't think shows a pattern which is required. It's one peremptory out of many. And I do find that the reason offered by Mr. Baker for the exercise of the challenge is a ­- although not a challenge-for-cause reason, it establishes there was not a discriminatory motive based upon her membership of the protective class. I'll deny the motion, Mr. Love. you've made your record. (Id. at 372-73.) But I think

Love asked, "Did he indicate that he had removed (Id. at 373.) Judge Jones

all teachers and social workers?"

responded, "He indicated that was the reason for removing Ms. McGee." (Id.)

The jury was sworn in, and the judge decided there should be one alternate. (Id. at 374.) Each party had one peremptory The next three jurors were

challenge to the alternate.

(Id.)

Garibay, a teacher; Noris, an unmarried student; and alternate 8
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number one, who stated she worked at a local school. 75.)

(Id. at 374-

Baker passed, and Love exercised his peremptory challenge on (Id. at 375-76.) The prosecutor then exercised his (Id. at 375.) Thus, the remaining

Garibay.

peremptory challenge on Noris. person became the alternate.

(Id.)

Jury selection was completed, (Id. at 375-76.)

and the remaining potential jurors were excused. B. The Subsequent Procedural History

On July 28, 2003, the jury convicted Petitioner of battery on Sergeant Grady but acquitted him of battery on Officer Walker. (Lodgment No. 1, Clerk's Tr. vol. 2, 361-62, July 28, 2003.) The

jurors found the allegations of three prior felony convictions were true. (Id. at 365.) Petitioner filed a motion for new trial on August 11, 2003. (Id. at 377, Aug. 11, 2003.) One of the bases of Love's motion was

the trial court's denial of his Wheeler/Batson motion to set aside the prosecutor's peremptory challenge of McGee. (Id. at 389-90);

see Batson v. Kentucky, 476 U.S. at 89; People v. Wheeler, 22 Cal. 3d at 276-77, 583 P.2d at 761-62, 148 Cal. Rptr. at 903. In

addition, Petitioner moved to strike his prior convictions. (Lodgment No. 1, Clerk's Tr. vol. 2, 370.) The trial judge denied Love's motions. (Id. at 415.) The

court sentenced Petitioner, a confined inmate, to twenty-five years to life in prison, which was to run consecutively to the term he was already serving. (Id.) Love was also ordered to pay a

restitution fine of $200 pursuant to California Penal Code section 1202.4(b). (Id.)

Petitioner filed an appeal, arguing that the denial of his Wheeler motion was in error and required reversal. 9 (Lodgment No.
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2, Appellant's Opening Brief at 8, People v. Love, No. D043053 (Cal. Ct. App. Feb. 2, 2005).) The California Court of Appeal (Lodgment No. 5,

affirmed Love's conviction on February 2, 2005.

People v. Love, No. D043053, slip op. at 1, 9 (Cal. Ct. App. Feb. 2, 2005).) Petitioner filed a petition for review in the California Supreme Court, raising the same Wheeler/Batson argument regarding the prosecutor's alleged impermissible use of a peremptory challenge. (Lodgment No. 6, Petition for Review at 3, People v. The court summarily (Lodgment No. 7, People

Love, No. S132156 (Cal. Apr. 13, 2005).) denied Love's petition on April 13, 2005.

v. Love, No. S132156, order at 1 (Cal. Apr. 13, 2005).) On March 22, 2006, Love, proceeding pro se and in forma pauperis, filed a federal Petition for Writ of Habeas Corpus [doc. no. 1]. Petitioner alleged one claim for relief: Assistant

District Attorney Baker's use of a peremptory challenge to exclude "all black jurors from the seated panel" and the trial court's denial of Love's motion to set aside the peremptory challenge of the only African-American juror, McGee, resulted in a violation of Petitioner's right to equal protection under the Fourteenth Amendment. (Pet. 5.) Denying

This Court issued a Report and Recommendation Re:

Petition for Writ of Habeas Corpus and Order Denying Request for Evidentiary Hearing on September 7, 2006 [doc. no. 11]. timely filed an objection [doc. no. 12]. Love

United States District

Judge William Q. Hayes adopted the Report and Recommendation and entered judgment in favor of Respondent on January 19, 2007 [doc.

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no. 15].

Judge Hayes granted Petitioner's request for a

certificate of appealability on February 14, 2007 [doc. no. 18]. The Ninth Circuit, on March 19, 2008, reversed the judgment and remanded the case for an evidentiary hearing to determine whether the prosecution struck McGee on the basis of her race [doc. no. 25]. The circuit court held that the California Court of

Appeal unreasonably applied clearly established federal law, so "the inquiry into whether the prosecutor's reason for rejecting the black juror was pretextual must be determined de novo on federal habeas." Love v. Scribner, 278 F. App'x 714, 718 (9th Cir. 2008)

(quoting 28 U.S.C. § 2254(d)(1) (citing Frantz v. Hazey, 522 F.3d 724, 739 (9th Cir. 2008) (en banc)). This Court appointed counsel for Petitioner [doc. no. 29]. Prehearing conferences with counsel for Love and Respondent were held on October 21 and November 18, 2008 [doc. nos. 33, 34]; the evidentiary hearing was set for December 2, 2008, but continued to March 12, 2009 [doc. nos. 33, 34, 37, 38]. was held on that date [doc. no. 43]. the hearing: The evidentiary hearing

Two witnesses testified at

Eric Baker, a former deputy district attorney in the

Imperial County District Attorney's Office, and Love, the AfricanAmerican Petitioner. (Tr. Evidentiary Hr'g 1-3, 82.)

The parties jointly filed a copy of the transcript of the superior court jury selection proceedings [doc. no. 45]. On April

28, 2009, Respondent submitted his Post-Evidentiary Hearing Opening Brief [doc. no. 46]. [doc. no. 48]. Petitioner filed a Post-Hearing Legal Brief

Attached as Exhibit B to the brief is a copy of the (Pet'r's Post-

transcript of a prehearing interview of Eric Baker. Hr'g Br. Ex. B.)

Respondent's Post-Evidentiary Hearing Reply Brief 11
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was submitted on May 29, 2009 [doc. no. 49].

The brief also

contains a request to strike Exhibit B to Petitioner's PostEvidentiary Hearing Brief. (Resp't's Post-Evidentiary Hr'g Br. 1.)

Love filed an Opposition to Motion to Strike and Surreply to PostHearing Briefing [doc. no. 50]. On July 7, 2009, the Ninth Circuit decided Ali v. Hickman, 571 F.3d 902 (9th Cir.), amended by 2009 WL 3401452 (9th Cir. Oct. 23, 2009), a case discussing a Batson challenge to a state court conviction [doc. no. 52]. Petitioner and Respondent each filed

supplemental briefs addressing Ali [doc. nos. 53, 54]. II. THE SCOPE OF THIS PROCEEDING

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.A. § 2244 (West Supp. 2008), applies to all federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 538

U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the scope of review for federal habeas

corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because Love's Petition was filed on March 22, 2006, See Woodford, 538 U.S. at 204.

AEDPA applies to this case.

Amended § 2254(d) reads: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 12
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claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d). On remand from the Ninth Circuit, this Court must now determine the merits of Love's Batson claim. The federal appellate

court held that the California Court of Appeal's refusal to conduct a comparative juror analysis "was contrary to, or involved an unreasonable application of, clearly established Federal law." Love, 278 F. App'x at 717 (quoting 28 U.S.C. § 2254(d)(1)) (citing Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en banc)). Love's case was remanded "for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race." Id. at 718. This Court will make that de novo finding

under Batson, 476 U.S. 79, and its progeny. There is a well-established, three-part test for evaluating a Batson challenge to the prosecutor's use of peremptory challenges. Ali v. Hickman, No. 07-16731, 2009 WL 3401452, at *5. First, the defendant must make a prima facie showing that a challenge was based on race. See Kesser, 465 F.3d at 359. If such a showing is made, the burden then shifts to the prosecutor to produce a "clear and reasonably specific" race-neutral explanation for challenging the potential juror. See id. Third and finally, the court must determine whether, despite the prosecutor's proffered justification, the defendant has nonetheless met his burden of showing "purposeful discrimination." See id.

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Ali, id.; accord Love v. Scribner, 278 F. App'x at 716. A prima facie case of purposeful discrimination is established if "(1) the prospective juror is a member of a `cognizable racial group,' (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was [motivated] by race." Boyd v.

Newland, 455 F.3d 897, 901 (9th Cir. 2006) (citations omitted). Baker told the trial judge that he exercised a peremptory challenge to McGee based on her occupation as a "social worker and eligibility worker" and that his personal preference was that "[t]eachers and social workers don't sit on the jury." File Tr. State Proceedings, Attach. #2 Tr. 371.) (J. Mot.

The Ninth Circuit

found the explanation "sufficient to satisfy the prosecutor's burden at the second Batson step." at 716. Batson's first two steps are "mere burdens of production," but step three is where the challenge is decided. F.3d 893, 898 (9th Cir. 2006). Yee v. Duncan, 463 Love v. Scribner, 278 F. App'x

"Once a prosecutor has offered a

race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." 500 U.S. 352, 359 (1991). A. The Mandate Rule The Ninth Hernandez v. New York,

The remand to the district court was limited.

Circuit explained, "[T]he [state] trial court did not allow Love to examine the prosecutor's actual reasons for keeping the teachingconnected individuals, while striking Ms. M. from the jury." 14 Love

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v. Scribner, 278 F. App'x at 718.

The district court was to hold

an evidentiary hearing to decide if Baker struck McGee from the jury because she was African-American. Id.

Petitioner and Respondent disagree on whether Baker may amplify his earlier explanation for challenging McGee. In its

opinion, the Ninth Circuit addressed Baker's comments but did not decide their preclusive effect. In this case, the prosecutor explained that he excused the only available African-American member of the jury pool because she was a "social worker and eligibility worker" and his policy was that "teachers and social workers don't sit on the jury." Because the disputed juror was an eligibility worker, whom the prosecution also described as a social worker, this explanation is sufficient to satisfy the prosecutor's burden at the second Batson step. Love v. Scribner, 278 F. App'x at 716. Love contends that

Respondent is attempting to recast prosecutor Baker's absolutism into a flexible rule and is precluded from doing so. "On remand, the doctrine of the law of the case is rigid; the district court owes obedience to the mandate of . . . the court of appeals and must carry the mandate into effect according to its terms." 18 James Wm. Moore, et al., Moore's Federal Practice § "The

134.23[1][a], at 134-59 (3d ed. 2009) (footnote omitted). nondiscretionary aspect of the law of the case doctrine is sometimes called the `mandate rule.'" (footnote omitted). Id. at 134-58 to 59

"[I]n the Ninth Circuit, the mandate rule is jurisdictional, implicating the `power,' not just the preferred or common practice, of the district courts." Taltech Ltd. v. Esquel Enters., 609 F.

Supp. 2d 1195, 1200 (W.D. Wash. 2009) (citing United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007)). 15 The rule precludes
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this Court from reconsidering any issue decided explicitly or by necessary implication by the Ninth Circuit. Id. "On remand, the

trial court should only have considered matters left open by the mandate of [the appellate] court." Waggoner v. Dallaire, 767 F.2d

589, 593 (9th Cir. 1985) (internal quotations omitted) (citing Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834 (9th Cir. 1982)). Some circuits describe the rule as a "specific application Jones v. Lewis, 957 F.2d 260,

of the law of the case doctrine."

262 (6th Cir. 1992) (citations omitted). The mandate rule and the law of the case doctrine are frequently cited without differentiating one from the other. "There certainly is a difference between the two doctrines, and they are not identical. While both doctrines serve an interest in

consistency, finality and efficiency, the mandate rule also serves an interest in preserving the hierarchical structure of the court system." United States v. Thrasher, 483 F.3d at 982. "[T]he

[mandate] doctrine is `similar to, but broader than, the law of the case doctrine.'" Id.

The Ninth Circuit remand limits this Court's jurisdiction. Id. (citation omitted); see also United States v. Hall, 434 F. Supp. 2d 19, 24 n.3 (D. Me. 2006) ("[N]ew evidence cannot be considered if it bears on an issue that was not left open by an appellate decision remanding for further proceedings on other issues.") (quoting 18B Charles Alan Wright et al., Federal Practice & Procedure: Jurisdiction 2d § 4478, at 685 (2d ed. 2002)).

"At Batson's second step, the question of whether the state has offered a `race-neutral' reason is a question of law . . . ." Paulino v. Harrison (Paulino II), 542 F.3d 692, 699 (9th Cir. 2008) 16
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(citation omitted). answered.

In Petitioner's case, the question has been

The appellate court found that step two in evaluating Love v. Scribner, 278 F. App'x

the Batson challenge was satisfied. at 716.

Step two pertains to the burden of producing evidence; the Thus, step

merits of the challenge are not resolved at that stage. two of the test is not the focus of this proceeding.

Baker's testimony that a disfavored occupation such as a social worker or teacher was merely a factor to consider when deciding whether to strike a possible juror cannot add to the analysis at step two. Nevertheless, the testimony is relevant to

this Court's "ultimate [step three] determination of whether there has been purposeful discrimination." Yee, 463 F.3d at 901; see

also Gonzalez v. Brown, 07-56107, 2009 U.S. App. LEXIS 23891, at *18 (9th Cir. Oct. 30, 2009) ("While the issue of whether these facts establish the inference to support the first step of Batson is not before us, they are relevant to whether it was objectively unreasonable to conclude Gonzalez had not met his ultimate burden at Batson step three.) B. The Motion to Strike Petitioner's Exhibit B

Before considering the merits of Love's Batson claim, the Court must address Respondent's motion to strike Exhibit B to Petitioner's Post-Hearing Legal Brief. Reply Br. 1.) (Post-Evidentiary Hr'g

Exhibit B is the transcript of an interview of

former Assistant District Attorney Eric Baker. In December of 2008, Baker was interviewed by counsel for the Respondent. recorded." (Tr. Evidentiary Hr'g 33-36.) (Id. at 35.) The session was "tape

A transcript of that interview was At the evidentiary
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prepared and provided to Petitioner's counsel. 17

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hearing, neither counsel for Petitioner nor counsel for Respondent sought to introduce the interview transcript into evidence, although both referred to the prior interview. Two months later,

on May 15, 2009, Love attached a copy of the Baker transcript as Exhibit B to Petitioner's Post-Hearing Legal Brief. The Respondent notes that Love's attorney was provided an opportunity to submit additional evidence at the conclusion of the evidentiary hearing, but he declined. Br. 1.) (Post-Evidentiary Hr'g Reply

Petitioner's counsel stated that he had no further

evidence and only asked that one exhibit, a letter from the Imperial County District Attorney's Office, be admitted into evidence. (Tr. Evidentiary Hr'g 85-86.) Respondent complains that

the "attempt to submit new evidence at this late [juncture] is improper." (Post-Evidentiary Hr'g Reply Br. 1.) He also objects

to the interview transcript as hearsay and lacking foundation. (Id.) Petitioner describes Exhibit B as a copy of an "interview [of Baker] conducted in the Attorney General's office at which two deputies (including current counsel) were present, along with an investigator, and Mr. Baker's daughter. The interview was

conducted ex parte, and there was no questioning by opposing counsel." (Opp'n Mot. Strike & Surreply 2.) Love contends that

the prosecutor confirmed the substance of the interview at the evidentiary hearing; and for that reason, there should be no doubt as to its authenticity. (Id.) The interview took place over six

months before Love submitted it to the Court and was referred to extensively during the evidentiary hearing, so there was no unfair surprise. (Id.) Additionally, Love argues that "the interview 18
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citations show merely to what extent Mr. Baker's memory was confirmed or not by his prior rendition." this use of the transcript is not hearsay. (Id.) (Id.) He maintains that

In his Post-Hearing Brief, Love cites the federal evidentiary hearing and Baker interview transcripts in tandem. Hr'g Br. 7-12, 14, 17.) (Pet'r's Post-

Although he argues to the contrary,

Petitioner is seeking to use the transcribed interview as substantive evidence. does not make it so. In neither his Post-Hearing Brief nor his Opposition to Motion to Strike did Love ask to reopen the record to lay the foundation and introduce the Baker interview into evidence. A motion to Labeling his use a "non-hearsay purpose"

reopen the record to submit additional evidence is addressed to the sound discretion of the Court. Zenith Radio Corp. v. Hazeltine

Research, Inc., 401 U.S. 321, 331 (1971) (citations omitted). "[T]he particular criteria that guide a trial court's decision to reopen are necessarily flexible and case-specific . . . ." Rivera-

Flores v. Puerto Rico Telephone Co., 64 F.3d 742, 746 (1st Cir. 1995). The Court should consider whether: "(1) [T]he evidence

sought to be introduced is especially important and probative; (2) the moving party's explanation for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no undue prejudice to the nonmoving party." The Baker interview is cumulative. Id. (citations omitted). Love fails to highlight

any statement in the transcript that is particularly probative. Courts generally act within their discretion in refusing to reopen a case for cumulative evidence or evidence with little probative value. Id. (citing Joseph v. Terminix Int'l Co., 17 F.3d 1282, 19
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1285 (10th Cir. 1994); Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1336 (9th Cir. 1978)). In Thomas, the Ninth Circuit found that the

trial court acted within its discretion in denying a motion to reopen to hear new evidence that "does not have the persuasive power [appellant] claims for it." Thomas, 572 F.2d at 1336.

The state trial court proceedings and Baker's testimony at the federal evidentiary hearing are before the Court. In this context,

the transcript of Baker's tape recorded interview is not "especially important and probative." Petitioner offers no reason why the transcript could not have been introduced into evidence before his Post-Hearing Brief, filed two months after the evidentiary hearing concluded [doc. nos. 43, 48]. Inadvertence is not a compelling explanation. Yet,

Respondent does not claim that he will be prejudiced by consideration of the transcript. Reply Br. 1.) foundation. (Resp't's Post-Evidentiary Hr'g

Instead, he argues that it is hearsay and lacks

(Id.)

It is unclear whether the interview was under oath; the transcript was not certified by a reporter; Baker did not review it for mistakes; and he did not sign the transcript. (See Pet'r's The

Post-Hr'g Br. Ex. B at 5-6, 63; Tr. Evidentiary Hr'g 34-36.) objections are well taken.

This proceeding will not be reopened to

provide Love an opportunity to introduce the Baker interview transcript into evidence. Alternatively, Love moves to include Exhibit B as a document relating to the Petition pursuant to Rule 7(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. (Id. at 3.) The rule provides

that "the judge may direct the parties to expand the record by 20
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submitting additional materials relating to the petition." 7(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.

Rule "The

purpose [of the rule] is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." committee's note on 1976 adoption. Id. advisory

"An expanded record may also be Id.

helpful when an evidentiary hearing is ordered."

But with respect to methods for securing facts where necessary to accomplish the objective of [habeas] proceedings Congress has been largely silent. Clearly, in these circumstances, the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. Harris v. Nelson, 394 U.S. 286, 299 (1969). But cf. Williams v.

Schriro, 423 F. Supp. 2d 994, 1003 (D. Ariz. 2006) (refusing to allow petitioner to supplement the record with declarations that were not relevant to his claims). Rule 7(b) identifies items that may be included in an expanded record. "The materials that may be required include letters

predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of Rule 7(b), Rules Governing § 2254 Cases, 28 U.S.C. The Baker interview is different in kind from the

the record." foll. § 2254.

materials listed in Rule 7(b). Love's attempt to make the transcript part of the record two months after the evidentiary hearing is inconsistent with the standards for expanding the record. In Cooper-Smith v. Palmateer,

397 F.3d 1236, 1241-42 (9th Cir. 2005), the court held that to 21
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expand the record without an evidentiary hearing, a habeas petitioner must comply with the diligence requirement in § 2254(e)(2). Neither case law, AEDPA, nor Rule 7 set a standard for

expanding the record after an evidentiary hearing has closed. Nevertheless, the diligence requirement that permeates AEDPA will be applied here. Petitioner was not diligent in seeking to expand the record after the close of evidence. The Baker interview transcript is not

the type of post-evidentiary hearing material for which Rule 7 is suited. The interview was tape recorded and does not appear to (Tr. Evidentiary Hr'g 35-36.) The

have been given under oath.

transcript is not signed, was not reviewed, and the question-andanswer session took place long after the filing of Love's habeas Petition. The content of the interview is not especially important See

or probative and does little to "clarify the relevant facts."

Vasquez v. Hillery, 474 U.S. 254, 258 (1986) (citation omitted). For all these reasons, Love's request to expand the record to include the Baker interview transcript is denied, and Respondent's Motion to Strike Exhibit B to Petitioner's Post-Hearing Legal Brief is GRANTED. C. The Batson Challenge

The Equal Protection Clause of the Fourteenth Amendment prevents a prosecutor from purposefully excluding potential jurors on the basis of racial identity. Batson, 476 U.S. at 85-88.

"[T]he `Constitution forbids striking even a single prospective juror for a discriminatory purpose.'" Williams v. Runnels, 432

F.3d 1102, 1107 (9th Cir. 2006) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)). 22 "The Batson
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framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." Johnson v. California, 545 U.S. 162, 172 (2005)

(citation omitted). The prosecutor has the burden of producing a race-neutral reason for the challenged strike. Kesser v. Cambra, 465 F.3d at

359 (citing Batson, 476 U.S. at 98; Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). The proffered explanation need not be Purkett, 514

"persuasive, or even plausible" to be race-neutral. U.S. at 767-68.

The reason must, however, be "related to the Batson, 476 U.S. at 98 (footnote

particular case to be tried." omitted).

Notably, "[a] Batson challenge does not call for a mere Miller-El v. Dretke,

exercise in thinking up any rational basis." 545 U.S. 231, 252 (2005).

"[W]hen illegitimate grounds like race

are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives." Id.

The Court may not substitute its reasoning to satisfy the prosecutor's burden at step two of a Batson analysis. statement to the trial court was categorical: workers don't sit on the jury." Id. Baker's

"Teachers and social

(J. Mot. File Tr. State

Proceedings, Attach. #2 Tr. 371.) 1. Proving Purposeful Discrimination at Step Three

At step three of the Batson inquiry, the question is "whether the opponent of the strike has proved purposeful racial discrimination." 514 U.S. at 767). Johnson, 545 U.S. at 168 (citing Purkett v. Elem, The ultimate burden of persuasion regarding

racial motivation "rests with, and never shifts from, the opponent 23
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of the strike."

Id. at 171 (quoting Purkett, 514 U.S. at 768).

Thus, Petitioner Love has the burden of proving purposeful discrimination. Rice v. Collins, 546 U.S. 333, 338 (2006). Love must establish

The burden, however, is not a heavy one.

"purposeful discrimination by a preponderance of the evidence." Paulino II, 542 F.3d at 703; accord Hardcastle v. Horn, 521 F. Supp. 2d 388, 401 (E.D. Pa. 2007). In deciding whether Petitioner has carried his burden, the Court must "assess the plausibility of [the prosecutor's reason for striking the challenged juror] in light of all evidence with a bearing on it." omitted). Miller-El v. Dretke, 545 U.S. at 252 (citations

The prosecutor may not "rebut the [Petitioner's] case

merely by denying that he had a discriminatory motive or `affirm[ing] [his] good faith in making individual selections.'" Batson, 476 U.S. at 98 (quoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972)). The Court considers whether the reasons advanced

by the prosecutor are "pretextual," and the conclusion "`largely will turn on evaluation of credibility.'" 365 (quoting Batson, 476 U.S. at 98 n.21). As the Supreme Court noted, "In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed." Id. "`[A] finding of intentional discrimination is a Hernandez, 500 U.S. at

finding of fact' entitled to appropriate deference by a reviewing court." Batson, 476 U.S. at 98 n.21 (quoting Anderson v. Bessemer

City, 470 U.S. 564, 573 (1985)); accord Paulino II, 542 F.3d at 699 (stating that "purposeful discrimination" raises a question of fact). 24
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a.

The Evidentiary Hearing

The evidentiary hearing in this case took place on March 12, Baker had excused McGee from the jury over five and one-half Before and after Love's trial, He

years earlier, on July 21, 2003. Baker tried many other cases.

(Tr. Evidentiary Hr'g 32-33.)

acknowledged that it was "very tough to remember the details [of Love's trial]." (Id. at 34.) "I'm trying to go on exactly what I

recall and what refreshes my recollection with the caveat . . . it's difficult not to insert your common practice and things like that and assume that happened. that." (Id. at 37.) And I'm endeavoring not to do

Baker described his general guidelines for selecting jurors. (Id. at 5-13.) But he did not independently recall his reasons for (Id. at 37.) He was able to recall

striking McGee from the jury.

the reason for the peremptory challenge only because he consulted the transcripts of the state trial proceedings. (Id.) At the

trial, Baker had the juror notes taken by his predecessor, but at the evidentiary hearing, he did not remember what information was noted for each potential juror. (Id. at 52-53.) Baker was careful As a

not to overstate what he actually recalled of July 21, 2003.

result, his testimony did not significantly alter the state court record. A memory lapse or the failure to recall the details of jury voir dire is not determinative. See Gonzalez v. Brown, No. 07In Gonzalez, the

56107, 2009 U.S. App. LEXIS 23891, at **20-21. Ninth Circuit explained:

The prosecutor's failure to give a valid and race-neutral reason for her peremptory strike of the first juror [because "she simply could not remember why she had excused the first juror"] weighs against her in an 25
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assessment of her motive, but that is not all that was before the state trial court and it had other good reasons to conclude there was not purposeful discrimination. The Gonzalez court, id. at *20, noted that in Yee, 463 F.3d

893, the Ninth Circuit "revers[ed] the grant of habeas on AEDPA standard of review where [the] prosecutor could not recall why she had stricken one juror." Later, in Paulino II, it "affirm[ed] the

grant of habeas on de novo review where the prosecutor could not recall why she had stricken any of the African-American jurors." Id. Baker's inability to reconstruct his reasons for striking

McGee and not striking others may undermine Respondent's argument, but it is not fatal. Petitioner argues that "[i]n light of the manifest deficiencies in Baker's ability to recall and report accurately the details surrounding the Batson challenge, the Court must treat his testimony as to historical facts as deserving no weight, as in Paulino." (Pet'r's Post-Hr'g Br. 12); see Paulino II, 542 F.3d at

701 (stating that at step two of a Batson analysis, the prosecutor's speculation was not circumstantial evidence of her actual reasons for striking African-Americans). Respondent concedes that Baker did not remember some aspects of Love's trial, but he argues that during the evidentiary hearing, Baker remembered striking McGee because of her occupation and not because of her race. (Post-Evidentiary Hr'g Reply Br. 3-4.) He argues that

Respondent distinguishes Love's case from Paulino.

during the state court proceedings, the prosecutor in Paulino was never asked for an explanation for her strikes; she had no independent or refreshed memory of voir dire; and the state failed 26
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carry its burden at stage two to produce a race-neutral reason for the strikes. (Id. at 2-3.) Counsel concludes, "The most striking

distinction with Paulino is that here the state satisfied its burden of production at Batson's stage two by providing a raceneutral reason for excusing Ms. M[cGee] -- her occupation as an eligibility worker." (Id. at 3.)

Baker gave the trial judge a single, race-neutral reason for his challenge to McGee; and during the evidentiary hearing, the prosecutor recalled that he struck McGee because of her occupation. (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. 371; Tr. Evidentiary Hr'g 25, 56, 73, 77, 81.) During Love's Wheeler/Batson challenge at the close of voir dire, Judge Jones told Love that "the employment background of Ms. McGee I find would be a reasonable explanation . . . ." File Tr. State Proceedings, Attach. #2 Tr. at 373.) (J. Mot.

The judge

understood the sole reason for striking McGee was her occupation, and Baker did not correct him or state that there were additional factors. The trial judge was not clairvoyant; he could only have

found the prosecutor's reason for striking McGee to be what Baker explained. During the evidentiary hearing, Baker explained that he would merely have some concerns over jurors who were teachers or social workers. (Tr. Evidentiary Hr'g 7, 9.) He did not have a general

rule that a teacher or social worker would never sit on a jury. (Id. at 10.) The prosecutor said there are a "myriad of

intangibles" that are involved in juror selection, and his aversion to teachers and social workers was more a "guideline" or "rule of thumb." (Id. at 7-8; see also id. at 10, 59, 61-62, 71-72.) 27
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When asked whether he considered teachers or social workers "negative prosecution jurors," Baker responded that he would not "put it that strongly." (Id. at 9.) The prosecutor testified that (Id. at

his categorical statement in Love's case was hyperbole. 26.)

Baker explained that there are no "blanket rules in jury (Id. at 72.)

selection."

Not surprisingly, Baker was asked, "Did you strike her [McGee] because she was an African-American?" at 25.) His answer was "no." (Id.

He was also asked, "Did her being an African-American in (Id.) Baker

any way play into your decision to strike her?" responded, "Of course not." (Id.)

The prosecutor's denial of any

discriminatory motive for striking the only African-American on the jury is welcomed, but only goes so far. Petitioner's case. It is not enough to rebut

See Batson, 476 U.S. at 98.

Respondent argues that Baker had another reason for striking McGee. (Post-Evidentiary Hr'g Opening Br. 6-7.) He contends that

Baker had been a prosecutor on a different case in which a teacher or social worker expressed disapproval of the state pursuing a case against a person who was already incarcerated. (Id.) The

Respondent implies that because Love was incarcerated at the time of his trial, Baker was concerned about a similar reaction. The prosecutor's testimony was not that precise. (Id.)

He did not

recall whether a social worker, teacher, law enforcement officer, or someone in another occupation made the comment that prosecuting those already in prison was a waste of money when government employees were getting pink slips. (Tr. Evidentiary Hr'g 63.)

Baker never stated that this negative experience occurred before Love's case or that he considered this experience when he 28
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challenged McGee.

(Id. at 8, 63-65.)

Arguably, he addressed

wasting financial resources when he asked the potential jurors if anyone "felt uncomfortable that this happened in state prison?" (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. 366.) Baker's

anecdote is too general to conclude that it had any bearing on striking McGee from the jury. At the federal evidentiary hearing, Baker did not remember any reason for striking McGee, other than her occupation. Additional

reasons offered by Respondent are speculative and, at step three, cannot supplement the explanation Baker stated for excusing McGee from the jury. omitted). See Paulino II, 542 F.3d at 700 (citations

The prosecutor's challenge will stand or fall on the

single, race-neutral reason he gave the trial judge and circumstantial evidence. b. See Miller-El, 545 U.S. at 252.

Direct or Circumstantial Evidence

"Evidence of a prosecutor's actual reasons [for striking a juror] may be direct or circumstantial, but mere speculation is insufficient." Paulino II, 542 F.3d at 700 (citations omitted).

"[C]ircumstantial evidence is a set of facts from which another fact may be inferred, as opposed to direct evidence, which goes directly to the fact to be established." Id. at 700 n.6.

"[D]irect evidence of the prosecutor's discriminatory intent will often be hard to produce." Wilson v. Beard, 426 F.3d 653, 670 n.18

(3d Cir. 2005) (citation omitted). In Miller-El, 545 U.S. at 241, the Supreme Court cited Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), with approval, for the proposition that proof that an "explanation is unworthy of credence is simply one form of circumstantial evidence 29
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that is probative of intentional discrimination, and it may be quite persuasive[.]" "A comparative analysis of jurors struck and

those remaining is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination." Cir. 1997). Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th

"Where the facts in the record are objectively

contrary to the prosecutor's statements, serious questions about the legitimacy of a prosecutor's reasons for exercising peremptory challenges are raised." McClain v. Prunty, 217 F.3d 1209, 1221

(9th Cir. 2000) (citing Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir. 1998); Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993). "The fact that one or more of a prosecutor's justifications do not hold up under judicial scrutiny militates against the sufficiency of a valid reason." McClain, id. (citing United States v.

Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989). The prosecutor told the trial judge that he struck McGee because "she's a social worker and eligibility worker. . . . Teachers and social workers don't sit on the jury. . . . not favorable jurors to the prosecution." Proceedings, Attach. #2 Tr. 371-72.) They are

(J. Mot. File Tr. State

McGee was an eligibility The

worker, which was within Baker's definition of social worker.

race-neutral reason for striking McGee did not distinguish teachers from social workers. Likewise, at the evidentiary hearing, Baker (Tr. Evidentiary Hr'g 2-82.)

did not distinguish between the two.

He testified that both tend to be "sympathetic people," and "their perspective is rehabilitative." (Id. at 7.)

The Court must consider whether a comparative analysis of jurors should be limited to teachers and social workers, because 30
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those were the disfavored occupations cited by the prosecutor, or whether "teacher" should include instructional assistants and teacher's aides. In Love v. Scribner, the court observed: The prosecutor's stated reason applied to both teachers and social workers. Once again, where, as here, the prosecutor's stated reason does not hold up, "[i]ts pretextual significance does not fade," because an appellate judge, looking at the record, can construct a different rationale, here an antipathy toward social workers but not teachers. Love, 278 F. App'x at 718 (quoting Miller-El, 545 U.S. at 252). The Ninth Circuit found fault with the state court analysis: Hypothesizing that the "decision to retain the three teaching-connected jurors may well have been motivated by countervailing factors in their background that ameliorated concerns about their potential antipathy," the California appellate court noted that each of the teaching-connected individuals still on the jury was "older," and that two of them were married to individuals "whose occupations . . . perhaps suggest a more conservative outlook." Such speculation does not comply with the requirement that a court considering a Batson challenge compare what the prosecution said in explanation of its peremptory challenges with what it actually did. Id. at 717. In the order remanding this case for an evidentiary hearing, the district court was directed to conduct a comparative analysis of McGee and the teaching-connected individuals who served on the jury. Id. at 718. Love contends that the Court must define the

term "teacher" broadly because the law of the case doctrine compels it. (Pet'r's Post-Hr'g Br. 5 (citing Love v. Scribner, 278 F.

App'x at 717 n.1).) Respondent counters that "[w]hether or not Mr. Baker considered [jurors with teaching-related jobs as being] teachers is 31
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not a binding legal issue that the Ninth Circuit has already decided." (Post-Evidentiary Hr'g Reply Br. 10.) He argues that a

determination that those jurors are similarly situated to McGee has not been made. (Id.)

As discussed earlier, the mandate rule precludes reconsidering an issue that has already been decided by the same or a higher court. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir.

1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). In Love's case, the Ninth Circuit explained, "[T]he prosecution appears to have defined the term `social worker' broadly to include eligibility workers. This calls for a broad interpretation of the

term `teacher' to include instructional assistants and teacher's aides." Love v. Scribner, 278 F. App'x at 717 n.1. The case was

remanded because the record did not "provide an adequate basis for determining de novo whether the real reason the prosecutor struck Ms. M. was her race. . . . [T]he trial court did not allow Love to

examine the prosecutor's actual reasons for keeping the teachingconnected individuals, while striking Ms. M. from the jury." at 718. Not every statement in the Ninth Circuit opinion is law of the case or subject to the rule of mandate. "For the [law of the case] Id.

doctrine to apply, the issue in question must have been decided explicitly or by necessary implication in [the] previous disposition." Rebel Oil Co. v. Atl. Richfield Co., 146 F.3d 1088, "An issue was decided implicitly when its

1093 (9th Cir. 1998).

resolution "was a necessary step in resolving the earlier appeal . . . [and was] so closely related to the earlier appeal its resolution involves no additional consideration and so might have 32
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been resolved but unstated."

In re Meridian Reserve, Inc., 87 F.3d

406, 409-10 (10th Cir. 1996) (quoting Guidry v. Sheet Metal Workers Int'l Ass'n, 10 F.3d 700, 707 (10th Cir. 1993)(footnote omitted)). General remarks by the appellate court about a broader issue not necessary to the result are dicta. See Milgard Tempering, Inc.

v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir. 1990); Arcam Pharm. Corp. v. Faria, 513 F.3d 1, 3 (1st Cir. 2007) (commenting that dicta are "observations in a judicial opinion or order that are `not essential' to the determination of the legal questions then before the court[]") (quoting Municipality of San Juan v. Rullan, 318 F.3d 26, 29 n.3 (1st Cir. 2003). preclusive effect and are not law of the case. F.3d at 1093. When making its juror comparisons, neither the law of the case doctrine nor the rule of mandate requires the Court to consider instructional assistants and teacher's aides to be teachers. The Dicta have no Rebel Oil Co., 146

prosecutor's stated race-neutral explanation is the touchstone. Even so, a comparison between McGee and each juror with a teachingrelated career is instructive. Prosecutor Baker acknowledged that

the distinction between teachers, instructional assistants, and teacher's aides was not one of kind, but of degree. Evidentiary Hr'g 56-58.) c. Comparative Analysis (Tr.

In Miller-El, 545 U.S. at 241, the Court endorsed using a comparative analysis to review striking some jurors and not others. "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful 33
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discrimination to be considered at Batson's third step."

Id.

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 147). A "side-by-side comparison" is made of the African-American Id.

who was stricken from the panel with others allowed to serve.

For a comparative analysis to be useful, the compared jurors must be similarly situated. 1050 (9th Cir. 2004). Juror four, Ramirez, and McGee were among the potential jurors who already had participated in judicial voir dire, been questioned by Kowalski, and were seated in the jury box when Baker took over Love's case. (J. Mot. File Tr. State Proceedings, Attach. #1 Tr. Respondent explains that there is "no evidence" Mitleider v. Hall, 391 F.3d 1039, 1049 n.9,

176, 264, 291-93.)

that Baker was aware of the potential jurors' biographical information unless he was present during their voir dire. (Post-Evidentiary Hr'g Opening Br. 9.) See

Yet, he was present for the

court's voir dire of jurors eight and ten, the alternate, and others on the jury. (See J. Mot. File Tr. State Proceedings,

Attach. #2 Tr. 349-63.) Baker relied on prosecutor Kowalski's notes in deciding whom to strike. (Tr. Evidentiary Hr'g 21, 25.) At trial, he told the

court that he "referred to Chris Kowalski's notes who was [at the] original voir dire." #2 Tr. 371.) (J. Mot. File Tr. State Proceedings, Attach.

The notes, however, were never recovered; and at the

evidentiary hearing, Baker could not recall what information was on the notes, other than the challenged jurors' occupations. (Tr. Evidentiary Hr'g 16-18, 21-23, 38-39, 52-55, 75.) At trial, Baker

explained to the trial judge why he struck McGee from the jury. "It appears she was an eligibility worker." 34 (J. Mot. File Tr.
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State Proceedings, Attach. #2 Tr. 371.)

"I excused both of those

[prospective jurors McGee and Ramirez] that I believed to be that [social workers]." (Id.)

Petitioner argues, "As the [Kowalski] notes are missing, and Baker can recall nothing about the format or content of the notes, the safest course is to assume that all the information in the record was accurately reported in the notes and Baker duly informed himself of those few facts he had available to him." Strike & Surreply 6.) (Opp'n Mot.

Whether by the Respondent or Petitioner,

speculation about the prosecutor's knowledge or motive is not circumstantial evidence of the absence or existence of discriminating intent. See Paulino II, 542 F.3d at 700.

Because Kowalski's notes are missing and Baker was not present for the entire voir dire, the Court cannot attribute to him complete knowledge of what each potential juror disclosed. The

prosecutor's limited recall hampers his ability to explain what appears to be a racially-motivated peremptory strike. This

shortcoming is another of the many relevant facts to be considered. See Kesser, 465 F.3d at 359 (citing Hernandez, 500 U.S. at 363). i. McGee and Juror Ten -- The Teacher

McGee was an eligibility worker; juror ten was a school teacher. Love contends that from the prosecution's view, juror ten

and McGee each held a disfavored occupation, and this is "the crucial similarity for purposes of this case." Br. 17 (emphasis omitted).) Respondent acknowledges that juror ten was a school teacher, "[t]herefore, she had one characteristic that the prosecutor disfavored, similar to Ms. M[cGee]." 35 (Post-Evidentiary Hr'g
06cv0640 WQH(RBB)

(Pet'r's Post-Hr'g

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Opening Br. 9.)

Respondent distinguishes the two by explaining

that juror ten had "very conservative, pro-prosecution aspects of her background that Ms. M[cGee] lacked." (Id. at 10.) Namely, her

ex-husband was a farmer, and McGee's spouse was an electrician. (Id.) Juror ten was a resident of Hotville, which was "a very

conservative, small town," and McGee did not state where she resided. (Id.) According to Respondent, the meaningful difference

between juror ten and McGee was that juror ten "had close connections to the local agricultural community." Evidentiary Hr'g Reply Br. 11.) Baker's peremptory strike of McGee must "stand or fall on the plausibility of the reasons he [gave]." 252. Miller-El, 545 U.S. at (J. (Post-

"Teachers and social workers don't sit on the jury."

Mot. File Tr. State Proceedings, Attach. #2 Tr. 371.)

Even so, he "An

struck the social worker and did not strike the teacher.

inference of discrimination may arise when two or more potential jurors share the same relevant attributes but the prosecutor has challenged only the minority juror." F.3d 914, 922 (9th Cir. 2009). United States v. Collins, 551

Thus, pretext is shown because

Baker's stated reason applied equally to juror ten, who was not African-American. was not. She was permitted to serve on the jury but McGee

See Miller-El, 545 U.S. at 241.

Respondent argues there were additional pro-prosecution factors that caused Baker to strike McGee and not strike juror ten. (Post-Evidentiary Hr'g Reply Br. 11-12, 14.) Although this may be

true, Baker did not actually remember any reasons for leaving a teacher, juror ten, on the jury. (Tr. Evidentiary Hr'g 28-29.) He

was present during the court's voir dire, when she identified 36
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

herself as a teacher.

(Id. at 29.)

She also described her ex-

husband as a farmer, stated that she lived in Holtville, and was a juror in a criminal case fifteen years earlier. State Proceedings, Attach. #2 Tr. 351.) (J. Mot. File Tr.

Baker stated that

"Holtville farming families are extremely conservative and tend to be friendly prosecution jurors." (Tr. Evidentiary Hr'g 30.) He

preferred jurors who "had prior jury experience where the jury was able to reach a verdict so they can be decisive." (Id. at 6.)

Still, the prosecutor did not recall why he left a teacher on the jury, and counsel's attempt to refresh his recollection was unsuccessful. (Id. at 28-29.) "A Batson challenge does not call Miller-El,

for a mere exercise in thinking up any rational bas