Dewoyne Potts v. Dalinda Harman

MEMORANDUM *

Petitioner Dewoyne Curtis Potts appeals the district court’s denial of his application for habeas relief. Because the state court erred when it required Petitioner to show a “strong likelihood,” instead of only a “reasonable inference,” of purposeful discrimination at the first step of its analysis under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), our review is de novo. Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir.2000). We have jurisdiction under 28 U.S.C. § 1291 , and we reverse the district court’s judgment and remand for an evidentiary hearing on Petitioner’s claim.

At the first step of the Batson analysis, a defendant’s burden to establish a prima facie- case of purposeful discrimination is very low. Johnson v. California, 545 U.S. 162, 170 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005). In this case, three factors combined to satisfy Petitioner’s burden: (1) the excused juror was the only African-American juror who remained on the panel after others had been excused for cause, (2) the prosecutor misstated the juror’s voir dire testimony when he sought to excuse her for cause, and (3) two other jurors who were not African-American had…

dissenting:

I respectfully dissent.

In my view, on this record, Petitioner has not met the admittedly low threshold of demonstrating “an inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005). The prosecutor’s use of a peremptory strike against the only *621 remaining African-American prospective juror does not by itself raise an inference of discrimination. Crittenden v, Ayers, 624 F.3d 943, 955 (9th Cir.2010). The prosecutor’s misstatement of the juror’s voir dire testimony, adds little to the showing of discrimination because his brief comment was interrupted, there is clear evidence of a valid non-discriminatory reason for the recusal, and there is really no other evidence suggesting a discriminatory intent. No such evidence is provided through juror comparison because the other two jurors’ experiences with interracial misidentification occurred many years before the trial, and their difficulties with properly identifying assailants resulted in no harm to themselves or their families. In contrast, here, the recused juror related that within the year of the trial, her son had been picked up and held overnight…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT DEC 16 2014

MOLLY C. DWYER, CLERK

DEWOYNE CURTIS POTTS, No. 12-56193 U.S. COURT OF APPEALS

Petitioner - Appellant, D.C. No. 2:07-cv-01312-AHS-

AJW

v.

DALINDA HARMAN, Acting Chief of MEMORANDUM* the Contract Beds Unit,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Alicemarie H. Stotler, Senior District Judge, Presiding

Argued and Submitted December 10, 2014 Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

Petitioner Dewoyne Curtis Potts appeals the district court’s denial of his

application for habeas relief. Because the state court erred when it required

Petitioner to show a "strong likelihood," instead of only a "reasonable inference,"

of purposeful discrimination at the first step of its analysis under Batson v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Kentucky, 476 U.S. 79 (1986), our…