FILED

NOT FOR PUBLICATION AUG 31 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ALFREDERICK LOVE, Nos. 10-55377 10-55387 Petitioner-Appellee-Cross-Appellant D.C. No. 06-cv-00640-WÏH (RBB) v.

MATTHEW CATE, Secretary, MEMORANDUM *

Respondent-Appellant-Cross-Appellee

Appeals from the United States District Court for the Southern District of California William Ï. Hayes, District Judge, Presiding

Argued and Submitted April 28, 2011 San Francisco, California

Before: GRABER and BERZON, Circuit Judges, and WILKEN,** District Judge.

Following proceedings on remand from this panel's decision in Love v.

Scribner (Love I), 278 F. App'x 714 (9th Cir. 2008), the district court granted

Petitioner Alfredericµ Love a conditional writ of habeas corpus. Respondent

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Claudia Wilµen, United States District Judge for the Northern District of California, sitting by designation. Matthew Cate, Secretary of the California Department of Corrections and

Rehabilitation (CDCR), appeals the district court's decision. Love cross-appeals

several of the district court's procedural and evidentiary rulings. We have

jurisdiction under 28 U.S.C. y 2253. We affirm the decision to grant Love a

conditional writ of habeas corpus, and we dismiss his cross-appeal as moot.

Love alleged that, in his state trial for battery of two prison guards, a

prosecutor exercised a peremptory striµe based on race against the only blacµ

venire-member, in violation of Batson v. Kentucµy, 476 U.S. 79 (1986). Under

Batson, a challenge to a peremptory striµe is evaluated in three steps. First, the

defendant must maµe a prima facie showing that the prosecutor exercised the

peremptory challenge because of race. Id. at 96-97. Second, if the defendant

maµes such a showing, the burden shifts to the prosecutor to come forward with a

race-neutral explanation for the challenge. Id. at 97. Third, the court must

determine whether 'the defendant has established purposeful discrimination.' Id.

at 98.

In Love I, a majority of this panel reversed the district court's previous

denial of Love's habeas corpus petition, concluding that the California Court of

Appeal unreasonably applied clearly established federal law by refusing to conduct

a comparative juror analysis and by speculating as to the reasons the prosecutor

Page 2 of 9 may have had for not striµing non-blacµ venire-members. See Miller-El v. Dretµe,

545 U.S. 231, 241 (2005); Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en

banc). The majority remanded for an evidentiary hearing because, although the

existing state court record evinced an unreasonable application of clearly

established federal law, it did not provide an adequate basis for showing that the

prosecutor had any reason other than race for striµing the venire-member.1

Because Love and the Love I respondent met their respective burdens at Batson's

first and second steps, the district court was directed to consider only the third step

on remand. See Love I, 278 F. App'x at 716. The district court was instructed that

if, following an evidentiary hearing, it found evidence of improper discrimination,

'the petition shall be granted.' Id. at 718. Because the district court's decision on

remand required only a factual determination of whether the prosecutor

1 In Cullen v. Pinholster, the Supreme Court concluded that 'evidence later introduced in federal court is irrelevant to y 2254(d)(1) review' and that 'a federal habeas petitioner must overcome the limitation of y 2254(d)(1) on the record that was before that state court.' 131 S. Ct. 1388, 1400 (2011). Love I is not contrary to Pinholster. Pinholster provides that an evidentiary hearing under y 2254(e)(2) may be appropriate 'where y 2254(d)(1) does not bar federal habeas relief.' Id. at 1401. Here, Love I held that the state appellate court, based on the record before it, unreasonably applied federal law. Thus, y 2254(d)(1) does not preclude federal habeas relief. Further, the evidentiary hearing in this case was ordered to give the state the opportunity to show that striµing the sole blacµ venire-member was not based on race discrimination; it was not held, as in Pinholster, to determine whether the state court unreasonably applied federal law. See 131 S. Ct. at 1399.

Page 3 of 9 discriminated based on race, we afford it deference and review for clear error.

Paulino v. Harrison, 542 F.3d 692, 698-99 (9th Cir. 2008).

The district court did not clearly err in finding that race motivated the

prosecutor's peremptory striµe against the only blacµ venire-member. At the

evidentiary hearing, the prosecutor stated that he excused the blacµ venire-member

solely because he thought she was a social worµer, the same reason he gave the

state trial court. The prosecutor opined that 'teachers and social worµers don't

maµe good jurors' and indicated that he did not distinguish between the two

professions. Nevertheless, the prosecutor did not dismiss non-blacµ venire-

members within this category, even though he excused the blacµ individual he

believed to be a social worµer.2 These circumstances support the finding that his

stated reason for the challenged peremptory striµe was pretext for race

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

The district court's decision is also supported by the prosecutor's failure to

question the blacµ venire-member. The prosecutor explained that, if a venire-

member were a teacher or social worµer, he would inquire 'more thoroughly or at

2 The prosecutor excused a non-blacµ venire-member with a Spanish sur- name who worµed for the Social Security Administration (SSA). At the evidentiary hearing, however, the prosecutor testified that he did not consider SSA employees to be social worµers. The record contains no evidence that, at the time he excused the SSA employee, the prosecutor believed him to be a social worµer.

Page 4 of 9 least more specifically on those issues of concern liµe could they be fair, how do

they solve disputes and things liµe that.' The prosecutor believed that the blacµ

venire-member was a social worµer, but did not asµ her any specific questions.

Although the prosecutor did not have an 'obligation to question all potential jurors,

his failure to do so' -- especially contrary to his professed practice -- also suggests

that his proffered reason was pretext for improper bias. See United States v.

Esparza-Gonzalez, 422 F.3d 897, 905 (9th Cir. 2005); see also United States v.

Collins, 551 F.3d 914, 922 (9th Cir. 2009) (concluding that the prosecutor's failure

to 'pursue further questioning before striµing the only remaining

African-American panel member' could support an inference of discrimination).

The district court performed the comparative juror analysis required by Love

I and Miller-El, which further supports its finding of discrimination. It compared

the excused blacµ venire-member to Juror No. 10, a teacher; Juror No. 8, a

teacher's aide; and Juror No. 4, an instructional aide. During the proceedings on

remand, Respondent pointed out to the district court that these jurors had non-

racial characteristics that distinguished them from the blacµ venire-member.

However, the prosecutor never stated to the state trial court that he relied on these

characteristics, even though Batson required him to articulate his reasons. See

Johnson v. California, 545 U.S. 162, 172 (2005) ('The Batson frameworµ is

Page 5 of 9 designed to produce actual answers to suspicions and inferences that

discrimination may have infected the jury selection process.'); Paulino, 542 F.3d at

699; see also Miller-El, 545 U.S. at 252 (stating that, when a Batson challenge is

raised, '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'). Plainly, Respondent's reasoning

was not the prosecutor's rationale, and the district court properly rejected it.

The district court did not erroneously conflate steps two and three of the

Batson analysis. It is true that the district court cited authority addressing the

effect of a prosecutor's failure to articulate the basis for striµing a potential juror.

As explained above, a prosecutor's race-neutral reasons are the focus of Batson's

second step. However, a prosecutor's failure to account for a striµe ''is added to

the inference of discrimination raised by the prima facie showing.'' Gonzalez v.

Brown, 585 F.3d 1202, 1208 (9th Cir. 2009) (quoting Yee v. Duncan, 463 F.3d

893, 899 (9th Cir. 2006)). Thus, legal authority addressing Batson's second step

can be relevant when evaluating a defendant's showing at step three. See, e.g.,

Gonzalez, 585 F.3d at 1208; Yee, 463 F.3d at 900.

On appeal here, Respondent argues that Love I was erroneous. Citing the

subsequently decided cases Ali v. Hicµman, 584 F.3d 1174 (9th Cir. 2009), cert.

denied, 130 S. Ct. 2065 (2010), and Cooµ v. LaMarque, 593 F.3d 810 (9th Cir.

Page 6 of 9 2010), he challenges the conclusion that the failure to conduct a comparative juror

analysis constitutes an unreasonable application of clearly established federal law

that vitiates the deference to state courts required under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). Respondent did not raise this issue

in the district court, including when the district court sought supplemental briefing

in light of Ali in July 2009. Because Respondent failed to raise this argument

below, we need not consider it. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.

1998).

Even if we were to agree with Respondent and now apply AEDPA

deference, we would conclude that the California Court of Appeal made an

unreasonable determination of the facts in light of the evidence before it. See 28

U.S.C. y 2254(d)(2). The state appellate court concluded that substantial evidence

supported the state trial court's finding of no improper racial bias. However, in

doing so, the state appellate court disregarded the prosecutor's assertion before the

state trial court that '[t]eachers and social worµers don't sit on the jury,' a point he

reiterated at the evidentiary hearing on remand, and his failure to excuse from the

jury non-blacµ teachers and educational aides, whom he regarded to be similar to

teachers. By distinguishing teachers from social worµers, notwithstanding the

prosecutor's statements that he did not, and by giving no weight to the presence of

Page 7 of 9 non-blacµ educators on the jury, the state appellate court unreasonably determined

that substantial evidence showed no discrimination.

The state trial court's determination that the striµe was not racially motivated

was liµewise erroneous. First, the state trial court concluded that Love did not

maµe out a prima facie case of race discrimination because only one peremptory

striµe was at issue; thus, the trial court explained, 'there is no pattern,' which it

believed was required. This is incorrect because a single peremptory striµe,

motivated by discrimination, violates Batson. Gonzalez, 585 F.3d at 1206.

Second, the state trial court accepted the blacµ venire-member's disfavored type of

employment as a 'reasonable explanation.' However, as already explained, the

prosecutor did not striµe non-blacµ potential jurors with the disfavored types of

employment. Thus, this explanation clearly lacµed credibility. And when Love

asµed the trial court to explore whether or not the prosecutor dismissed all venire-

members who were teachers or social worµers, the trial court refused.

Consequently, because its factual determination was also clearly erroneous, the

state trial court's decision is liµewise not entitled to deference. See Felµner v.

Jacµson, 131 S. Ct. 1305, 1307 (2011) (per curiam).

For the foregoing reasons, the district court did not clearly err in finding that

the prosecutor exercised a peremptory striµe on the basis of race.

Page 8 of 9

DECISION TO GRANT CONDITIONAL WRIT OF HABEAS

CORPUS AFFIRMED. APPELLEE'S CROSS-APPEAL DISMISSED AS

MOOT.

Page 9 of 9

FILED

Love v. Cate, Nos. 10-55377, 10-55387 AUG 31 2011

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

This case returns to us in a peculiar posture: We are asµed to decide whether

the district court's factual findings are clearly erroneous, when in my view no

remand should have occurred and no such findings should have been made.

Reasonable minds can (and do) differ about the appropriate inferences to be drawn

from the record, both state and now federal. If we properly were reviewing what

the district court found as fact, I would agree that the district court did not clearly

err, our deferential standard of review.

But I adhere to the view, previously expressed, that no remand was

appropriate in the first place. We owe great deference in the first instance to the

state court's findings of fact. The California Court of Appeal did not maµe an

unreasonable determination of the facts in light of the evidence before it. 28

U.S.C. y 2254(d)(2). That court reasoned that counsel excused the juror in

question for the stated reason that she was a social worµer or eligibility worµer,

who might therefore be expected to be pro-defense, and that counsel applied that

specific criterion consistently. The state court also found that counsel's stated

reason was subjectively genuine. Neither that reasoning nor that result

unreasonably found facts.

Supreme Court precedent since we decided Love I only underscores the error of our ways. In Felµner v. Jacµson, 131 S. Ct. 1305, 1307 (2011) (per

curiam), the Supreme Court forcefully reversed a habeas grant from this court on a

Batson issue. In doing so, the Court emphasized that we owe special deference to

the state court's determination on a question of credibility, such as the one that we

have here. Id. The majority's citation of Felµner for its result turns that decision

on its head.

I respectfully dissent.

2