Taylor

MEMORANDUM *

The state appellate court did not make “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” in concluding that the trial court did not err in crediting the prosecutor’s race-neutral explanations for striking three jurors. 1 28 U.S.C. § 2254 (d)(2); see also Rice v. Collins, 546 U.S. 338 , 339, 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006). Given that the “evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province,’ ” Hernandez v. New York, 500 U.S. 352, 365 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion) (quoting Wainwright v. Witt, 469 U.S. 412, 428 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985)), and “[sjtate court factual findings ... are presumed correct,” Rice, 546 U.S. at 338-39 , 126 S.Ct. 969 , the state court was not objectively unreasonable in crediting the prosecutor’s statements that: (1) he struck Mr. L because he was inexperienced and soft-spoken; (2) he struck Ms. W because her past experiences with crime and the police made it possible that she might harbor bias against law enforcement; and (3) he struck Ms. D because, among…

concurring:

We act within the restraints set on federal courts by AEDPA and its interpretation by the Supreme Court of the United States. So doing, we defer to the California Court of Appeal’s benign interpretation of the trial judge’s erroneous instruction stripping the jurors of their use of common sense.

dissenting:

I dissent with respect to the striking of Ms. D from the jury. The prosecutor proffered three transparently pretextual justifications for striking Ms. D — the only African-American left in the jury pool and the sole African-American woman in the entire pool — before he finally stumbled upon a plausible reason for excluding her. Because his first three explanations were patently pretextual, I have no doubt that the “peremptory strike was ‘motivated in substantial part’ by race.” Crittenden v. Ayers, 624 F.3d 943, 959 (9th Cir.2010) (as amended) (quoting Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir.2010)). As Taylor’s equal protection rights were violated under the rule articulated in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), I would grant the petition.

1. As an initial matter, it is not at all clear that the state court’s determination regarding Taylor’s Batson claim is entitled to AEDPA deference. The California Supreme Court summarily denied Taylor’s petition for review, so we look to the state court of appeals as the “last reasoned state-court opinion.” Musladin v. Lamarque, 555 F.3d 830, 834-35 (9th Cir.2009). In reaching its…

facts in light of the evidence presented in the State court proceeding' in concluding

that the trial court did not err in crediting the prosecutor's race-neutral explanations

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. for striµing three jurors.1 28 U.S.C. y 2254(d)(2); see also Rice v. Collins, 546

U.S. 333, 339 (2006). Given that the 'evaluation of the prosecutor's state of mind

based on demeanor and credibility lies 'peculiarly within a trial judge's province,''

Hernandez v. New Yorµ, 500 U.S. 352, 365 (1991) (plurality opinion) (quoting

Wainwright v. Witt, 469 U.S. 412, 428 (1985)), and '[s]tate court factual findings

. . . are presumed correct,' Rice, 546 U.S. at 338-39, the state court was not

objectively unreasonable in crediting the prosecutor's statements that: (1) he strucµ

Mr. L because he was inexperienced and soft-spoµen; (2) he strucµ Ms. W because

her past experiences with crime and the police made it possible that she might

harbor bias against law enforcement; and (3) he strucµ Ms. D because, among

1 The state appellate court…