                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 25 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


RICHARD ALEX WILLIAMS,                           No. 14-16393

              Petitioner - Appellee,             D.C. No. 2:03-cv-00721-LKK-AC

 v.
                                                 MEMORANDUM*
CHERYL PLILER, Warden and
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents - Appellants.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                            Submitted April 14, 2015**
                             San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

      When we initially heard this case, the state informed us that de novo review

applied to Petitioner’s Batson claim, and we so held. See Williams v. Pliler, 411 F.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
App’x 954, 955 (9th Cir. 2011). We then remanded for the district court to

“conduct a full step-three inquiry.” Id. The district court conducted such an

inquiry de novo, found that the peremptory strike at issue was motivated in

substantial part by race, and ordered the state to release or re-try Williams. We

affirm.

                               I. Standard of Review

      The state now argues, despite its initial position and our initial holding that

the standard of review was de novo, that we should apply a deferential standard of

review. Our earlier holding that the standard of review was de novo constitutes the

law of the case. The law of the case doctrine “posits that when a court decides

upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.” Pepper v. United States, 562 U.S. 476, 506

(2011) (citation omitted) (internal quotation marks omitted). Here, the district

court relied on our decision that de novo review was the proper standard of review

and expended substantial resources to hold an evidentiary hearing and issue a

decision in light of the evidence produced. We are now asked to review that

decision which followed our earlier remand.

      The state argues that we are not bound by the law of the case because our

earlier decision was clearly erroneous. It is true that the law of the case “doctrine


                                          2
‘does not apply if the court is ‘convinced that [its prior decision] is clearly

erroneous and would work a manifest injustice.’’” Id. at 506-07 (citation omitted));

see also Gonzales v. U.S. Dep’t of Homeland Sec., 712 F.3d 1271, 1277 (9th Cir.

2013) (noting an exception when “the decision is clearly erroneous and its

enforcement would work a manifest injustice” (citation omitted) (internal quotation

marks omitted)).1 We reject the state’s argument, however, because our decision

that de novo review applies was not clearly erroneous, and even if it were, its

enforcement would not work a manifest injustice.

                                           A.

      There is no dispute that the test applied by the state trial and appellate courts

to determine that Petitioner did not make out a prima facie case was contrary to

clearly established Supreme Court precedent, and that those state court decisions

are therefore not entitled to deference at step one of Batson. See Johnson v. Finn,

665 F.3d 1063, 1069 (9th Cir. 2011). The state argues, however, that our decision

to apply de novo review at the third step of Batson was clearly erroneous because

the state appellate court issued an alternative merits adjudication at that step.

      1
        There are two additional exceptions — when “[1] intervening controlling
authority makes reconsideration appropriate, or [2] substantially different evidence
was adduced at a subsequent trial” — but neither is at issue here. Gonzales, 712
F.3d at 1277 (quoting Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995)) (internal
quotation marks omitted).

                                           3
      The state is wrong. The state appellate court did not clearly reach the third

step of Batson. In fact, it expressly disclaimed application of Batson, noting that

“the Batson test was not . . . at issue in this case.” Its statements that the struck

juror at issue “raised several matters the prosecutor could and expressly did

reasonably view as grounds for peremptory challenge,” and that “[t]hose reasons

were . . . proper,” “factually appropriate[,] and in compliance with any threshold of

assessment,” most closely resemble a step two adjudication, at which the court

must determine whether the prosecutor has “come forward with a neutral

explanation for challenging black jurors.” Batson v. Kentucky, 476 U.S. 79, 97

(1986). That is especially so because neither the state trial nor the state appellate

court made a credibility finding as to whether the prosecutor actually struck the

juror at issue for the reasons he proffered, and because under Batson while we

analyze whether the proffered reasons are non-discriminatory at step two,

credibility determinations are reserved for step three. See Purkett v. Elem, 514

U.S. 765, 768 (1995). In short, none of the district court’s statements is in any way

dispositive of the ultimate determination that a court must make at step three:

“whether the opponent of the strike has carried his burden of proving purposeful

discrimination.” Id. In light of the fact that the state court did not clearly reach




                                            4
step three and make the determination required under that step, our earlier decision

that de novo review applied was not clearly erroneous.

                                      B.

      Even if our decision were clearly erroneous, we would nevertheless apply it

as the law of the case because the state has not demonstrated that a manifest

injustice would result from its application. “The existence of exceptional

circumstances is required before finding a manifest injustice. At a minimum, the

challenged decision should involve a significant inequity or the extinguishment of

a right before being characterized as manifestly unjust.” Jeffries v. Wood, 114 F.3d

1484, 1492 (9th Cir. 1997) (en banc) (citations omitted), overruled on other

grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). None of

the state’s rights are extinguished by applying de novo review. Unlike in United

States v. Miller, 822 F.2d 828, 833 (9th Cir. 1987), in which a concession by the

government would result in the clearly erroneous suppression of evidence, here the

application of de novo review affects only the standard of review and does not

control the outcome of the Batson claim. Indeed, to prevail under de novo review

the state need show only that its prosecution of Petitioner was consistent with the

Fourteenth Amendment. Even if it cannot do so, “[r]etrial and resentencing are

available options.” Jeffries, 114 F.3d at 1492. In fact, “the state superior court has


                                           5
already re-arraigned Williams.” Opp’n to Motion for Release at 7. In short, if de

novo review applies, Petitioner can receive no more than a determination that he

did or did not receive a fair trial under the Constitution. And, if his trial was

unfair, the state will have an opportunity to prosecute him once more. Such relief

does not constitute a manifest injustice. Thus, these circumstances do not meet the

relevant exception to the law of the case doctrine.

                                      II. Merits

      Petitioner’s first trial resulted in a hung jury due to holdouts by two African-

Americans on the jury. At Petitioner’s second trial — the one we review here —

the prosecutor, Mr. Gold, struck the only clearly African-American prospective

juror who was eligible to serve, Ms. Thompson. As a result of the strike of

Thompson, none of the jurors seated at Petitioner’s second trial was African-

American. These circumstances clearly support an inference that discrimination

occurred; in fact, there is no dispute that Petitioner satisfied his “minimal” burden

at step one of making out a prima facie case of discrimination. Johnson, 665 F.3d

at 1071. Nor is there any dispute that Gold satisfied step two by articulating

facially neutral reasons for the strike of Thompson. The state argues, however, that

even if the district court was correct to apply de novo review, it nevertheless erred

in holding at step three that “the prosecutor was ‘motivated in substantial part by


                                           6
discriminatory intent.’” Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010)

(quoting Snyder v. Louisiana, 552 U.S. 472, 485 (2008)).

      “At step three, the question of whether the defendant has proven purposeful

discrimination is a question of fact that we review for clear error.” Paulino v.

Harrison, 542 F.3d 692, 699 (9th Cir. 2008) (citation omitted). “Where there are

two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574

(1985) (citation omitted). Although less deference may in some instances be

accorded a district judge’s finding concerning discrimination than that of a state

court judge who presided over the trial, here the district court’s thorough opinion

satisfies our court’s review for clear error. The district court carefully analyzed

each of Gold’s nine proffered reasons for striking Thompson by comparing the

jurors’ questionnaires and voir dire testimony, and reviewing the juror-challenge

hearing held at the state trial court and the evidentiary hearing held in the district

court. The district court’s factual determination that the strike of Thompson was

motivated in substantial part by discriminatory intent was a permissible view of

this evidence and therefore not clearly erroneous.

      The record supports the district court’s finding that Gold’s second proffered

reason — that Thompson was approximately twenty-one years old when she


                                           7
committed petty theft — supports an inference of pretext. Juror 11 had two non-

juvenile offenses, yet Gold failed to inquire about Juror 11’s age at the time of

them, and indeed asked no questions at all about the criminal history revealed by

either Juror 8 or Juror 11.2

      The record supports the district court’s finding that Gold’s fourth proffered

reason — that Thompson had a prior bad experience with the police — supports an

inference of discrimination. Gold had a tense exchange about this experience with

Thompson, who stated that it occurred “[f]our or five years ago” and “doesn’t

bother [her]” anymore, In contrast, Alternate Juror 3 sua sponte raised in his

questionnaire his concern regarding unwarranted harassment of African-American

males. At voir dire, Alternate Juror 3 elaborated substantially on those concerns in

an exchange with defense counsel, yet Gold asked no questions about it. As the

district court explained, “[t]he fact that a non-black person concerned about law

enforcement fairness was neither questioned nor excused while Thompson was

struck supports an inference of discrimination.”

      The record supports the district court’s finding that Gold’s fifth proffered

reason — that Thompson’s strong agreement with the proposition that “it is better

      2
       With the exception of Alternate Juror 3, the individual jurors discussed
herein — Jurors 1, 3, 7, 8, 9, and 11 — were seated on the jury. As stated above,
none of the empaneled jurors was African-American.

                                          8
for society to let some guilty people go free than to risk convicting an innocent

person” showed “specific bias” — was pretextual. That proposition is a

fundamental value of our criminal justice system, not a statement of specific bias

against the prosecution. See Schlup v. Delo, 513 U.S. 298, 325 (1995). Moreover,

Juror 9 noted strong agreement with the same proposition, yet was not questioned

about it. Jurors 1 and 11 each strengthened their commitment to that proposition

during voir dire exchanges with defense counsel, yet Gold did not question either

of them on the subject. Juror 7 changed her position from strong disagreement to

what appeared to be strong agreement with that proposition, yet Gold did not

question her either.

      The record supports the district court’s finding that Gold’s sixth proffered

reason — that Thompson’s strong disagreement with the proposition that “if the

prosecution brings someone to trial, that person is probably guilty” showed

“specific bias” — was pretextual. Her answer reflected her agreement with the

presumption of innocence that is basic to our criminal justice system, not any

specific bias against the prosecution. Moreover, six of the empaneled jurors gave

the same answer as Thompson, yet Gold questioned none of them about it.

      The record supports the district court’s finding that Gold’s seventh proffered

reason — that Thompson’s belief that the criminal justice system treats people


                                          9
unfairly because of their race shows “specific bias” — was pretextual. Alternate

Juror 3, who as discussed above sua sponte commented on unwarranted

harassment of African-Americans, noted the same concern as Thompson, yet Gold

did not question him about it. Several seated jurors also testified during voir dire

concerning racism in the criminal justice system, yet Gold did not question them

either.

          The record supports the district court’s finding that Gold’s eighth proffered

reason — that Thompson was single and never married — was pretextual. Jurors 3

and 7 were also single and never married, yet Gold allowed them to be seated.

          In light of these well-supported findings, the district court did not clearly err

in finding that, based on the totality of the relevant facts, Gold’s peremptory strike

of Thompson was motivated in substantial part by race. “A court need not find all

nonracial reasons pretextual in order to find racial discrimination. ‘[I]f a review of

the record undermines . . . many of the proffered reasons, the reasons may be

deemed a pretext for racial discrimination.’” Kesser v. Cambra, 465 F.3d 351, 360

(9th Cir. 2006) (en banc) (quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.

2003)). Here, the district court had ample support for its finding that many of

Gold’s proffered reasons were undermined by the record. Its ultimate finding of




                                              10
racial discrimination was, accordingly, consistent with our case law and not in any

respect clearly erroneous.

      The district court’s decision to grant the writ is AFFIRMED.3




      3
          Petitioner’s motion for release is denied.

                                           11
