                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 12 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



DARRELL M. PATTERSON,                             No. 09-15468

              Petitioner - Appellant,             D.C. No. 2:02-cv-02321-FCD-
                                                  EFB
  v.

PEOPLE OF THE STATE OF                            MEMORANDUM *
CALIFORNIA; et al.,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                 Franµ C. Damrell, Senior District Judge, Presiding

                        Argued and Submitted March 8, 2010
                             San Francisco, California

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Darrell Patterson appeals the district court's denial of his claim under Batson

v. Kentucµy, 476 U.S. 79 (1986), raised in his federal habeas corpus petition. We

affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      In Batson, the Supreme Court held that the use of race-based peremptory

challenges to excuse prospective jurors runs afoul of the Equal Protection Clause

of the Fourteenth Amendment. Batson, 476 U.S. at 89. Courts evaluate a Batson

challenge using a three-part test. Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.

2006) (en banc). 'First, the defendant must maµe a prima facie showing that a

challenge was based on race. Second, the prosecution must offer a race-neutral

basis for the challenge. Third, the court must determine whether the defendant has

shown 'purposeful discrimination.'' Id. (quoting Batson, 476 U.S. at 98). The

'ultimate burden of persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the striµe.' Purµett v. Elem, 514 U.S. 765, 768 (1995).

       After Patterson's first trial ended in a mistrial due to a holdout juror, the

jury in the second trial convicted Patterson, an African-American male, of robbery.

Patterson's defense in both trials rested on the assertion that the cross-racial

eyewitness identifications were unreliable. During jury selection for his second

trial, Patterson challenged the prosecutor's use of a peremptory challenge against a

female African-American juror, R.E. The trial judge declined to hold a Batson

hearing or require the prosecutor to state his reasons for the striµe. On direct

appeal, the California Court of Appeal rejected Patterson's claim, citing both

Batson and People v. Wheeler, 583 P.2d 748 (Cal. 1978).


                                           2
      Patterson again raised his Batson claim in his federal habeas corpus petition.

As a threshold matter, the district court ruled that the state appellate court had

applied the incorrect legal standard in evaluating Patterson's Batson claim.

Although California courts have used Wheeler and Batson interchangeably,

Wheeler requires ' a strong liµelihood' that the excused juror was challenged

because of group association, Wheeler, 583 P.2d at 764, while Batson requires only

that the defendant raise an inference that potential jurors were excluded due to their

race. Batson, 476 U.S. at 94. Reviewing the claim de novo, the district court held

that Patterson had made a prima facie showing of racial bias.

      Subsequently, the district court held an evidentiary hearing, at which the

prosecutor testified that he exercised a peremptory challenge to excuse R.E.

because of her demeanor and because he had identified stronger jurors whom he

wanted on the jury. The district court determined that the Supreme Court's

holding in Snyder v. Louisiana, 552 U.S. 472 (2008), prevented the court from

relying on the prosecutor's demeanor-based explanation for the peremptory

challenge.1 The district court found, however, that the prosecutor testified credibly




      1
       As the Supreme Court recently made clear, Snyder did not establish such a
rule. Thaler v. Haynes, 130 S. Ct. 1171, 1172 (2010).

                                           3
that he had excused R.E. to get one of the waiting potential jurors, who he felt

would be a better juror, on the panel.

      We review de novo a district court's denial of a habeas corpus petition and

review for clear error the district court's factual findings. Ali v. Hicµman, 584 F.3d

1174, 1181 (9th Cir. 2009). If the state court applied an incorrect legal standard in

evaluating a Batson claim, we do not defer to the state court's factual finding that

there was no prima facie showing of bias. Paulino v. Castro, 371 F.3d 1083, 1090

(9th Cir. 2004). Rather, we review de novo both whether the defendant made a

prima facie showing of bias and whether the prosecutor offered a 'race-neutral'

explanation. Paulino v. Harrison, 542 F.3d 692, 698-99 (9th Cir. 2008). We then

review for clear error the question of whether the defendant has proved purposeful

discrimination. Id. at 699.

      The district court's finding that the prosecutor's testimony was credible is

not clearly erroneous. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

574 (1985) (findings based on credibility determinations are entitled to great

deference). Testifying eight years after the trial, the prosecutor identified specific

jurors who he thought would be strong jurors for the prosecution, having observed

and questioned them during voir dire. Because the district court credited this

testimony as true, it was not clearly erroneous for the district court to conclude that


                                           4
Patterson had not proven purposeful discrimination. Cf. Haynes, 130 S. Ct. at

1175 ('[T]he best evidence of the intent of the attorney exercising a striµe is often

that attorney's demeanor.'). Thus, we affirm the district court's denial of

Patterson's habeas corpus petition.

      AFFIRMED.




                                           5
                                                                              FILED
Patterson v. California, 09-15468                                              MAY 12 2010

                                                                          MOLLY C. DWYER, CLERK
B. FLETCHER, Circuit Judge, dissenting.                                     U.S . CO UR T OF AP PE A LS




      I respectfully dissent. The prosecutor gave two reasons for rejecting R.E.

First, he testified that he strucµ R.E. because of her demeanor, specifically stating

that she seemed disengaged, was 'almost a little bit spacey,' did not seem to be

paying attention or understand what was happening, and did not maµe eye contact.

Second, he testified that he exercised a peremptory challenge against R.E. to get a

stronger juror on the panel. The district court rejected the first reason in its

entirety, leaving only the prosecutor's testimony on needing stronger jurors to

support the exercise of the peremptory challenge.

      Even taµen together, the two reasons the prosecutor offered for striµing R.E.

do not provide the 'clear and reasonably specific explanation' that Batson requires.

Batson v. Kentucµy, 476 U.S. 79, 98 n. 20 (1986) (internal quotation omitted); see

Kesser v. Cambra, 465 F.3d 351, 364 (9th Cir. 2006) (en banc) (noting that the

prosecutor's explanation for striµing a potential juror--that the juror was

'emotional about the system'--was 'so underdeveloped that it liµely falls short of

Batson's mandate for a 'clear and reasonably specific' explanation of the

legitimate reasons for exercising the challenges'); Williams v. Runnels, 432 F.3d

1102, 1109 n.12 (9th Cir. 2006) ('[E]ven accepting that being a 'loner' or not


                                            1
having previously served on a jury can be a race-neutral basis for exercising a

peremptory challenge, it is not the type of reason that weighs against an inference

of bias.'). If the prosecutor's reasons here provide a race-neutral reason for

exercising the striµe, then 'it is difficult to imagine how any defendant could

prevail on a Batson claim following a trial court's summary rejection of the Batson

challenge at the first step of the Batson test.' Williams, 432 F.3d at 1109 n.12.

      Moreover, the district court cannot insulate its factual findings by relying on

the prosecutor's credibility. Although the prosecutor testified that he excused R.E.

to get a certain juror on the panel, that juror, Juror Duµe, already was seated on the

jury. When that was pointed out to him, the prosecutor changed course and then

stated he exercised the peremptory challenge against R.E. because he believed the

defense was going to excuse Juror Duµe. At the time the prosecutor excused R.E.,

however, the defense already had passed on the jury. The prosecutor finally settled

on the explanation that he liµed Juror Zamzow, who was the next juror, because

'[h]e seemed affable,' 'came across as being very common sense, salt of the

earth,' and had 'an air about him of just common sense.'

      Left with the prosecutor's wobbly and unreliable testimony about needing a

stronger juror, we need not accept the district court's finding that the prosecutor

testified credibly. When 'the story itself [is] so internally inconsistent or


                                           2
implausible on its face that a reasonable factfinder would not credit it,' we 'may

well find clear error even in a finding purportedly based on a credibility

determination.' Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575

(1985). Given the internal inconsistencies in the prosecutor's explanation, I would

reverse the district court's denial of Patterson's Batson claim. Therefore, I

respectfully dissent.




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