Andre Johnson v. Daniel B. Vasquez, Warden

Andre Johnson, a California prisoner, appeals from the district court’s judgment that dismissed his petition for a writ of habeas corpus. Johnson alleges that the state prosecutor excused an African-American woman from the venire on the basis of her race, thereby violating the Equal Protection Clause as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). A state appellate court rejected on direct appeal an analogous claim made under the California Constitution. The district court rejected Johnson’s Batson claim after an evidentiary hearing. We reverse the judgment, and remand the case to the district court with instructions to issue the writ.

I

A jury convicted Johnson of twice robbing a convenience store located in Torrance, California. Johnson, who is African-American, received a sentence of 18 years and eight months in state prison.

Jury selection in Johnson’s case took place on December 15,1986, in Los Angeles County Superior Court. The venire consisted of twenty-six persons, from whom twelve jurors and two alternates were to be selected. Only one member of the venire, a Mrs. Nichols-Garland, was…

dissenting:

I respectfully dissent.

The majority reverses the district court by retrying a question of fact the district court resolved. The majority does this by examining the cold record. This record shows neither the witnesses’ demeanor, pauses in responses to questions, manner of answering, nor the myriad of other factors which a trial judge is uniquely able to observe and rely upon in making findings of fact.

Here the trial judge did what he was supposed to do. He resolved a close question of fact. The state court did the same thing, and its finding of fact on the same issue is presumptively correct. Sumner v. Mata, 449 U.S. 539, 547 , 101 S.Ct. 764, 769 , 66 L.Ed.2d 722 . Now on appeal, the majority tosses all this aside by relying on the voir dire transcript from the state trial court, the transcript of the evidentiary hearing before the district court, and an exhibit. The majority’s analysis by which it reaches its result is flawed, and with all due respect its decision is wrong.

The majority accepts, as indeed it must, that the prosecutor’s reasons for exercising a peremptory challenge to excuse Mrs. Nichols-Garland were facially race-neutral. The majority also…

3 F.3d 1327 Andre JOHNSON, Petitioner-Appellant, v. Daniel B. VASQUEZ, Warden, Respondent-Appellee. No. 91-56395. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 7, 1992. Decided Sept. 2, 1993. William S. Harris, Stewart & Harris, Pasadena, CA, for petitioner-appellant. Sanjay T. Kumar, Deputy Atty. Gen., Los Angeles, CA, for respondent-appellee. Appeal from the United States District Court for the Central District of California. Before: CANBY, BOOCHEVER, and THOMPSON, Circuit Judges. CANBY, Circuit Judge: 1 Andre Johnson, a California prisoner, appeals from the district court's judgment that dismissed his petition for a writ of habeas corpus. Johnson alleges that the state prosecutor excused an African-American woman from the venire on the basis of her race, thereby violating the Equal Protection Clause as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). A state appellate court rejected on direct appeal an analogous claim made under the California Constitution. The district court rejected Johnson's Batson claim after an evidentiary hearing. We reverse the judgment, and remand the case to the…