Ervin
Ervin v. Chappell
Opinion
Trial Court Opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CURTIS LEE ERVIN, Case No. 00-cv-01228-VC Petitioner,
ORDER REGARDING
v. CONSIDERATION OF NEW
EVIDENCE
RON BROOMFIELD,
Re: Dkt. No. 458 Respondent. The parties have submitted briefs on the issue of whether new evidence may be considered in support of petitioner’s Claim Five, a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), following the Ninth Circuit’s remand of this case for reconsideration of Judge Koh’s ruling in light of Flowers v. Mississippi, 139 S. Ct. 2228 (2019). See Ervin v. Davis, 12 F.4th 1102 (9th Cir. 2021). The Ninth Circuit left it “to the district court to decide in the first instance whether, in light of Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 179 L.Ed.2d 557 (2011), the parties may submit additional evidence to support their positions . . . because the California Supreme Court made an unreasonable determination of the facts, which would relieve the district court of AEDPA deference, or whether such evidence must be submitted for the first time in state court.” Id. at 1108. Petitioner argues that he is entitled to de novo review of his…