Averill Briggs v. Randy Grounds

Opinion by Judge TALLMAN; Dissent by Judge BERZON.

*1168 OPINION

Petitioner-appellant Averill W. Briggs (“Briggs”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction for one count of committing a forcible lewd act upon a child under 14 years of age; eight counts of aggravated sexual assault of a child under 14 years of age — including four counts of oral copulation, two counts of rape, one count of sexual penetration with a foreign object, and one count of sodomy; and first-degree burglary. Briggs is currently serving a sentence of 265 years to life for those convictions. In his petition, he argues that the prosecutor’s use of peremptory challenges to strike three African American prospective jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I

A

On June 9, 2002, Briggs climbed through a second-floor window of an apartment building in the Lockwood Tevis neighborhood of Oakland, California, and sexually assaulted two 13-year-old Asian girls. In picking the jury, the prosecutor intended to rely on the following…

dissenting:

I respectfully dissent.

The California Court of Appeal accepted, -with little examination, the prosecutor’s proffered justifications for using peremptory challenges to strike three African-American panelists, resulting in a jury without any black jurors. 1 While it purported to undertake a comparative juror analysis, it did so backwards. Rather than examining each of the reasons proffered by the prosecutor for striking African-American jurors to determine whether any, many, or most were pretextual, the appellate court sifted through the prosecutor’s justifications, ignoring numerous pretextual rationales, in search of at least one reason that happened not to apply equally to a retained juror. Both Supreme Court precedent and our case law make clear that a court conducting comparative juror *1182 analysis must do the opposite — that is, it must examine each of the proffered justifications in turn. If any — or, worse, several — are equally applicable to seated jurors, an inference of pretext arises, rendering suspect the permissibility of the challenge. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 246, 250-52 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 (2005); Kesser v.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AVERILL W. BRIGGS,  No. 10-16683 Petitioner-Appellant, D.C. No. v.  5:08-cv-03856- RANDY GROUNDS, Warden, RMW Respondent-Appellee.  OPINION

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted February 14, 2012—San Francisco, California

Filed June 15, 2012

Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge Berzon

6895 6898 BRIGGS v. GROUNDS

COUNSEL

Mark D. Eibert, Half Moon Bay, California, for the petitioner- appellant.

Stan Helfman, Office of the California Attorney General, San Francisco, California, for the respondent-appellee.

OPINION

TALLMAN, Circuit Judge:

Petitioner-appellant Averill W. Briggs (“Briggs”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas peti- tion challenging his jury conviction for one count of commit- ting a forcible lewd act upon a child under 14 years of age; eight counts of…