Mitcham

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AS TO CLAIM D’S SUBCLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

INTRODUCTION

Petitioner was found guilty in 1984 of murder and attempted murder during a robbery. Petitioner is African American. His victims were Caucasian. During voir dire, the prosecutor struck 100 percent (eight of eight) of African Americans called *1094 to the jury box. At the time of Petitioner’s trial, People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978), which held the use of peremptory challenges to strike venirepersons solely' on the basis of race to be a violation of the 'California Constitution, had been the law in California for six years. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), had not yet been decided. Petitioner’s counsel did not object under Wheeler to the prosecutor’s peremptory challenges. In a subclaim of claim D of his federal habeas petition, Petitioner argues that his trial counsel was ineffective for failing to object to the prosecutor’s use of peremptory challenges to strike all African Americans called to the jury box. For the reasons described below, the Court GRANTS the petition for…