Alfredrick Love v. Matthew Cate

MEMORANDUM **

Following proceedings on remand from this panel’s decision in Love v. Scribner (.Love I), 278 Fed.Appx. 714 (9th Cir.2008), the district court granted Petitioner Alfre-derick Love a conditional writ of habeas corpus. Respondent 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. § 2258 . 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 strike based on race against the only black venire-member, in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Under Batson , a challenge to a peremptory strike is evaluated in three steps. First, the defendant must make a prima facie showing that the prosecutor exercised the peremptory challenge because of race. Id. at 96-97 , 106 S.Ct. 1712 . Second, if the defendant makes such a showing, the burden shifts to the…

dissenting:

This case returns to us in a peculiar posture: We are asked 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 make an unreasonable determination of the facts in light of the evidence before it. 28 U.S.C. § 2254 (d)(2). That court reasoned that counsel excused the juror in question for the stated reason that she was a social worker or eligibility worker, 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.…

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NOT FOR PUBLICATION AUG 31 2011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,…