Floyd Mayes v. Jeff Premo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLOYD M. MAYES, No. 12-35461 Petitioner-Appellant, D.C. No. v. 3:06-cv-06334- HU JEFF PREMO, Superintendent, Mill Creek Correctional Facility, Respondent-Appellee. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted July 9, 2013—Portland, Oregon

Filed March 27, 2014 Amended August 21, 2014

Before: Harry Pregerson, Mary H. Murguia, and Morgan Christen, Circuit Judges.

Order; Opinion by Judge Murguia; Dissent by Judge Pregerson SUMMARY*

Habeas Corpus

The panel filed an amended opinion, denied a petition for rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which the district court denied a habeas corpus petition alleging (1) the prosecutor struck a venireman on the basis of race in violation of the Equal Protection Clause, and (2) a hearsay statement was admitted in violation of the Confrontation Clause.

The panel held that the trial court’s decision to credit the…

ORDER AND AMENDED OPINION

ORDER

The Opinion filed March 27, 2014, and appearing at 747 F.3d 686 (9th Cir.2014), is hereby amended. The amended opinion is filed concurrently with this Order.

With these amendments, Judges Murg-uia and Christen have voted to deny the petition for rehearing and rehearing en banc, and Judge Pregerson has voted to grant the petition for rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellee’s petition for rehearing and rehearing en banc, filed May 16, 2014, is DENIED. No further petitions for rehearing or rehearing en banc shall be permitted.

OPINION

Petitioner Floyd Mayes was convicted in Oregon state court of felony murder, first-degree robbery, first-degree burglary, and second-degree assault. He was sentenced to 274 months in prison. The district court denied Mayes’s petition for habeas corpus, which alleged (1) the prosecutor who tried his case struck a venireman on the basis of race in violation of the Equal Protection Clause, and (2) a hearsay statement was admitted at his trial in violation…

dissenting:

The prosecution in this case struck four out of five black prospective jurors during voir dire. Three of those four black prospective jurors were struck using peremptory challenges. Perhaps this was simply an incredible coincidence. But it is hard to avoid concluding “that the State was trying to avoid black jurors.” Miller-El v. *967 Dretke, 545 U.S. 231, 255 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 (2005).

“Because just one racial strike calls for a retrial,” Kesser v. Cambra, 465 F.3d 351, 369 (9th Cir.2006) (en banc), we need not determine whether the prosecution acted with discriminatory intent every time it used a peremptory challenge to strike yet another black prospective juror. If even just one of the prosecution’s peremptory challenges was not race-neutral, Mayes is entitled to habeas relief.

At least one of the prosecution’s peremptory strikes was not race-neutral. The record cannot support any race-neutral reason for the prosecution’s peremptory strike against Ray S., a black prospective juror. In concluding that the peremptory strike against Ray S. was race-neutral, the state trial court engaged in an unreasonable determination of the facts and contravened…