Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

392 F.3d 327 Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee. No. 02-15475. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 11, 2002. Withdrawn from Submission December 9, 2002. Resubmitted April 3, 2003. * Filed December 16, 2004. ** COPYRIGHT MATERIAL OMITTED William Weiner, San Francisco, CA, for the petitioner-appellant. Bill Lockyer, Attorney General of the State of California; Robert R. Anderson, Chief Assistant Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Michael E. Banister, Deputy Attorney General, San Francisco, CA, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-96-03452-PJH. Before: BALDOCK, *** KLEINFELD, and RAWLINSON, Circuit Judges. BALDOCK, Senior Circuit Judge: 1 The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination in jury selection against members of a cognizable group. Batson v. Kentucky, 476 U.S. 79, 88 , 106 S.Ct. 1712 , 90 L.Ed.2d 69…

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination in jury selection against members of a cognizable group. Batson v. Kentucky, 476 U.S. 79, 88 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). In Bat-son, a racial discrimination ease, the Supreme Court established a three-part test for determining whether a prosecutor’s use of peremptory challenges to exclude veniremembers of a cognizable group violates the Equal Protection Clause.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003) (citing Batson, 476 U.S. at 96-98 , 106 S.Ct. 1712 ) (internal citations omitted).

In this appeal, we address a Batson- related question in the context of habeas corpus review: Whether the state appellate court erred in undertaking a “mixed motive” analysis to uphold the constitutionality of three peremptory challenges, when the state prosecutor offered ethnic-neutral reasons for exercising those challenges against three Native American veniremembers, together with an ethnic-based reason for challenging one of those veniremembers. Applying AEDPA’s deferential standard of review, 1 we hold the state court’s “mixed motive”…

dissenting.

After the United States Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), no prosecutor worth his salt is going to come right out and say: “The defendant in this case is Native American. I do not want any Native Americans on the jury .because Native American jurors might be more reluctant to convict Native American defendants.” The prosecutor in this case came as close to this admission as we are likely ever to see. Not only did he use his peremptory challenges to exclude every prospective Native American juror, he candidly admitted that his decision was driven by the race of the prospective jurors.

To understand the magnitude of the prosecutor’s actions, it is important to consider the sequence of events leading to the defense’s Wheeler challenge.

' The trial court identified three Native American prospective jurors who were peremptorily challenged by the prosecution: Ms. Rindels, Ms. Lawton and Ms. Smithfield.

The. prosecutor gave the following explanation for excusing Ms. Rindels from the jury panel:

As to prospective juror Lawton, the prosecutor responded:

The prosecutor justified his challenge to Ms.…