Steven Martell Collins v. Bertram Rice Attorney General of the State of California

365 F.3d 667 Steven Martell COLLINS, Petitioner-Appellant, v. Bertram RICE; Attorney General of the State of California, Respondents-Appellees. No. 01-56958. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 2003. Filed November 7, 2003. Amended April 8, 2004. COPYRIGHT MATERIAL OMITTED Karen H. Bucur, Laguna Hills, CA, argued the case for the appellant. Erika D. Jackson, Deputy Attorney General, Los Angeles, CA, argued the case for the appellees. Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Chief District Judge, Presiding. D.C. No. CV-98-09329-TJH. Before HALL, THOMAS, and PAEZ, Circuit Judges. ORDER 1 The opinion filed November 7, 2003 is AMENDED as follows: 2 1. Page ___, line 14: delete "and 019" and change "Jurors" to "Juror." 3 2. Footnote 12, line 2: after "challenge" insert "because the prosecutor labeled Juror 019 `young' even though Juror 019 was a grandmother." 4 3. Delete the first full paragraph on page ___. 5 4. Delete "her pretextual justifications for dismissing Juror 019," on line 2-3 of the last paragraph on page ___. 6 5. The first full sentence on page ___ should be amended to…

dissenting from the denial of rehearing en banc:

I respectfully dissent from the court’s denial of the state’s petition for a rehearing en banc because the majority opinion seriously undermines the ability of a trial court to judge the sincerity of counsel’s reason for a peremptory challenge to a juror when a Batson/Wheeler 1 challenge is made.

Collins is an African American who was convicted of possession of O.lgrams of rock cocaine. It was his third felony conviction; he was sentenced to 25 years to life under California’s “three strikes” law. The sentence in this case is harsh; from it, the majority opinion makes bad law.

On the basis of the prosecutor’s peremptory challenge of one African American prospective juror, the majority opinion reverses a denial of habeas corpus and orders a new trial.

The trial court enquired of and listened to the prosecutor’s race-neutral reasons for using a peremptory strike against an African American prospective juror, weighed the evidence both for and against concluding that the strike was racially motivated, and decided the prosecutor was credible and that her reasons for making the strike were indeed race-neutral. The Court of Appeal…

ORDER

The opinion filed November 7, 2003 is AMENDED as follows:

With these amendments, the panel majority has voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge Hall voted to grant the petition for panel rehearing, and recommended granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R. App. P. 35.

The petition for rehearing en banc is denied.

dissenting:

The state trial court determined that the prosecutor’s proffered race-neutral justifications for striking Juror 016 were credible: This conclusion is entitled to “great deference,” Hernandez v. New York, 500 U.S. 352, 364 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991), and may not be disturbed on appeal unless clearly erroneous. Id. at 369 , 111 S.Ct. 1859 ; see also Miller-El v. Cockrell, 537 U.S. 322 , 123 S.Ct. 1029, 1041 , 154 L.Ed.2d 931 (2003) (reasoning that because an appellate court has access only to the trial transcript, it is “not as well positioned as the trial court is to make credibility determinations.”). Applying this deferential standard, the California Court, of Appeal found that the trial court did not err. Because this case is governed by AEDPA, we must defer to the California Court of Appeal’s conclusion unless contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or premised on an unreasonable factual finding. 28 U.S.C. § 2254 (d).

The majority does not defer to the California Court of Appeal. According to the majority, deference is unwarranted be-cause the Court of Appeal’s decision rests upon the…