                                                                               FILED
                            NOT FOR PUBLICATION                                 SEP 09 2011

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




                             FOR THE NINTH CIRCUIT



FRANK TAYLOR,                                      No. 09-15341

              Petitioner - Appellant,              D.C. No.
                                                   2:06-cv-02878-GEB-CHS
  v.

D. K. SISTO,                                       MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                       Argued and Submitted February 9, 2010
                             San Francisco, California

Before: NOONAN, BERZON, and IKUTA, Circuit Judges.

       The state appellate court did not maµe 'an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding' in concluding

that the trial court did not err in crediting the prosecutor's race-neutral explanations




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for striµing three jurors.1 28 U.S.C. y 2254(d)(2); see also Rice v. Collins, 546

U.S. 333, 339 (2006). Given that the 'evaluation of the prosecutor's state of mind

based on demeanor and credibility lies 'peculiarly within a trial judge's province,''

Hernandez v. New Yorµ, 500 U.S. 352, 365 (1991) (plurality opinion) (quoting

Wainwright v. Witt, 469 U.S. 412, 428 (1985)), and '[s]tate court factual findings

. . . are presumed correct,' Rice, 546 U.S. at 338-39, the state court was not

objectively unreasonable in crediting the prosecutor's statements that: (1) he strucµ

Mr. L because he was inexperienced and soft-spoµen; (2) he strucµ Ms. W because

her past experiences with crime and the police made it possible that she might

harbor bias against law enforcement; and (3) he strucµ Ms. D because, among




      1
        The state appellate court assumed that Taylor had made a prima facie case
of purposeful discrimination based on the prosecutor's use of peremptory striµes,
see Batson v. Kentucµy, 476 U.S. 79, 96-97 (1986), and thus focused on the
question whether Taylor had carried his burden of proving purposeful
discrimination on the part of the prosecutor.

                                          2
other things, she provided a 'resounding yes' to the question of whether she had a

negative experience with law enforcement.2

      Nor can Taylor prevail on his argument that jurors whom the prosecutor did

not challenge were comparable to the challenged jurors, because the state court's

conclusion to the contrary was not objectively unreasonable. See Cooµ v.

LaMarque, 593 F.3d 810, 826 (9th Cir. 2010). While Taylor raises grounds to

question the prosecutor's credibility regarding his reasons for striµing the jurors,

the Supreme Court has recently instructed, '[r]easonable minds reviewing the

record might disagree about the prosecutor's credibility, but on habeas review that




      2
         The dissent concludes, based on its own review of the record, that three of
the prosecutor's stated reasons with regard to Ms. D were 'patently pretextual,'
and therefore the prosecutor was partially motivated by race. Dissent Op. at 1. But
AEDPA does not permit us to maµe our own credibility determinations. Rather,
our standard is doubly deferential: unless the state appellate court was objectively
unreasonable in concluding that a trial court's credibility determination was not
clearly erroneous, we must uphold it. Rice, 546 U.S. at 338-39. The dissent's
approach is contrary to Supreme Court precedent, and accordingly, we reject it.
See id.; see also Harrington v. Richter, --- S. Ct. ----, 2011 WL 148587, at *11-12.

                                           3
does not suffice to supersede the trial court's credibility determination.' Rice, 546

U.S. at 341-42. Taylor's Batson claim therefore fails.3

      The state appellate court was not objectively unreasonable in interpreting the

trial court's instructions to the jury regarding the 'large box at the doorway to this

courtroom' as telling jurors to put aside biases and prejudices rather than to ignore

life experiences. See 28 U.S.C. y 2254(d)(2). The state appellate court's rejection

of Taylor's claim that these instructions violated his Sixth Amendment right to a

fair trial was not contrary to any Supreme Court precedent that 'squarely

addresses' the issue in this case. Wright v. Van Patten, 552 U.S. 120, 125 (2008)

(per curiam). To the extent Supreme Court cases establish a 'general standard'

that defendants are entitled to a jury whose members are not stripped of their

common sense, the state appellate court reasonably exercised its greater latitude to

determine that the trial court's instruction did not violate this general standard.



      3
         Because the state court could reasonably credit the prosecutor's stated
reason for striµing Ms. D, the state court did not maµe an 'unreasonable
application' of Batson by noting an additional reason not raised by the prosecutor
for rejecting the argument that Ms. D was comparable to other jurors. While the
Supreme Court has held that a Batson challenge does not allow a court to come up
with its own non-discriminatory reason for striµing a juror when the prosecutor's
'stated reason does not hold up,' Miller-El v. Dretµe 545 U.S. 231, 252 (2005),
here the prosecutor's stated reason did 'hold up.' The dissent concludes
otherwise, but its de novo review is a far cry from the 'doubly deferential' review
contemplated by AEDPA. See Rice, 546 U.S. at 338-39.

                                           4
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009). Accordingly, we reject

Taylor's challenge to the state appellate court's denial of his Sixth Amendment fair

trial claim.

       We also reject Taylor's argument that the state appellate court erred in

denying his claim that his due process rights were violated by jury instructions that

''[a] willful or wanton disregard for the safety of persons or property includes, but

is not limited to . . . three or more Vehicle Code violations.'' The state appellate

court's determination that this language defines a new felony (the act of

committing three or more moving violations or causing property damage while

fleeing a peace officer, see Cal. Veh. Code. y 2800.2(b)), and does not create a

mandatory presumption, is not contrary to Supreme Court precedent. See Francis

v. Franµlin, 471 U.S. 307, 313-15 (1985).

       Finally, the state appellate court's denial of Taylor's claim that his due

process rights were violated by the trial court's failure to instruct the jury, sua

sponte, on which underlying traffic violations result in 'points' was not contrary to

clearly established Supreme Court precedent. Given that the violations at issue did

result in points, and it was not disputed that defendant caused property damage,

this omission cannot be said to have 'so infected the entire trial that the resulting

conviction violates due process,' Estelle v. McGuire, 502 U.S. 62, 72 (1991)


                                            5
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)) (internal quotation marµs

omitted). Thus, we also reject this due process claim.

      AFFIRMED.




                                         6
                                                                            FILED
Taylor v. Sisto, No. 09-15341                                                SEP 09 2011

                                                                        MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, concurring:                                        U .S . CO UR T OF AP PE A LS




      We act within the restraints set on federal courts by AEDPA and its

interpretation by the Supreme Court of the United States. So doing, we defer to the

California Court of Appeal's benign interpretation of the trial judge's erroneous

instruction stripping the jurors of their use of common sense.
                                                                                  FILED
Taylor v. Sisto, No. 09-15341                                                      SEP 09 2011

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




      I dissent with respect to the striµing of Ms. D from the jury. The prosecutor

proffered three transparently pretextual justifications for striµing Ms. D--the only

African-American left in the jury pool and the sole African-American woman in

the entire pool--before he finally stumbled upon a plausible reason for excluding

her. Because his first three explanations were patently pretextual, I have no doubt

that the 'peremptory striµe was 'motivated in substantial part' by race.'

Crittenden v. Ayers, 624 F.3d 943, 959 (9th Cir. 2010) (as amended) (quoting Cooµ

v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010)). As Taylor's equal protection

rights were violated under the rule articulated in Batson v. Kentucµy, 476 U.S. 79

(1986), I would grant the petition.

      1. As an initial matter, it is not at all clear that the state court's

determination regarding Taylor's Batson claim is entitled to AEDPA deference.

The California Supreme Court summarily denied Taylor's petition for review, so

we looµ to the state court of appeals as the 'last reasoned state-court opinion.'

Musladin v. Lamarque, 555 F.3d 830, 834-35 (9th Cir. 2009). In reaching its

determination that the exclusion of Ms. D was not the result of purposeful



                                            -1-
discrimination, the state court relied on a justification for striµing her that was not

advanced by the prosecution--namely, that she believed the police should not

pursue cars for minor offenses. Prior to the state court's decision, the Supreme

Court prohibited reviewing courts from 'thinµing up any rational basis' for

excluding jurors: 'The Court of Appeals's . . . substitution of a reason for

eliminating [the juror] does nothing to satisfy the prosecutors' burden of stating a

racially neutral explanation for their own actions.' Miller-El v. Dretµe, 545 U.S.

231, 252 (2005).

      Here, the court of appeals incorrectly supplied its own reasons justifying Ms.

D's exclusion, thereby 'appl[ying] a rule that contradicts the governing law set

forth in [Supreme Court] cases.' Musladin, 555 F.3d at 834 (quoting Williams v.

Taylor, 529 U.S. 362, 405-06 (2000)). Its decision in that respect was 'contrary to

. . . clearly established Federal law, as determined by the Supreme Court of the

United States,' and not entitled to AEDPA deference. 28 U.S.C. y 2254(d)(1).

      2. I would grant the petition even if the state court had applied the correct

federal law as determined by the U. S. Supreme Court, because, as I explain below,

the state court's decision was 'based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.' 28 U.S.C.

y 2254(d)(2).


                                           -2-
      At a hearing on Taylor's Batson motion, the prosecutor began with the

following explanation for striµing Ms. D: She had been the victim of two sexual

assaults perpetrated by African-American men (she had been dating one of her

assailants at the time of the assault). The prosecutor speculated that 'emotional

baggage' from these events could bias her in favor of his case. He then went on to

admit he was no 'psychologist,' but suspected she might 'overcompensate' for her

racial biases against African-Americans by holding him to a higher standard.

      This explanation is so absurd as to be affirmatively indicative of racial bias.

Justice Marshall observed that '[a] prosecutor's own conscious or unconscious

racism may lead him easily to [a] conclusion' regarding an African-American juror

'that would not have come to his mind if a white juror had acted identically.'

Batson, 476 U.S. at 106 (Marshall, J., concurring). That prediction is especially

insightful here: If Ms. D were a white woman who had been sexually assaulted by

a white man she was dating, the prosecutor would not have suggested she might be

racially biased against white people--and with good reason, as the theory is highly

suspect to say the least. Coupled with the unbelievable suggestion that the

prosecutor was concerned that Ms. D would favor his case, the prosecutor's

primary 'neutral' explanation was pretextual, to put it mildly.

      On top of all that, there is no support in the record for the prosecutor's


                                         -3-
concerns that Ms. D's perceived 'emotional baggage' might affect her

performance as a juror. After finding out there was no element of sexual assault in

the case (Taylor was accused of evading a peace officer and revving his engine to

push a patrol car bacµwards), Ms. D gave an 'iron clad guarantee' that she was

'certain [she] could act in a fair and impartial manner if selected to be a juror,' and

that Taylor's race (unsurprisingly) would not affect her decision.

      The prosecutor's second justification, that Ms. D's brother had been arrested

for drug crimes, fares no better, because it cannot withstand comparative analysis.

The majority of the seated jurors had indicated that either they, a close friend, or a

relative had been arrested or convicted for crimes ranging from DUIs, 'drugs',

burglary, recµless driving, mail fraud, and even murder. The state court of appeals

dismissed this comparative analysis in the main by reiterating that none of these

comparable jurors 'had experienced sexual assaults.' Of course, the record belies

any argument that Ms. D's experience as a victim of a sexual assault would

influence her performance as a juror; the prosecutor expressed concerns about

racial biases arising from the assault, not the assault itself. So the only plausible

interpretation of the state court's basis for rejecting the comparative analysis is that

none of the comparable jurors had been the victim of crimes perpetrated by African

Americans. And this point is only pertinent if the state court adopted the suspect


                                           -4-
premise, advanced by the prosecutor, that Ms. D might be biased against African

Americans. Again, Justice Marshall hit the nail on the head when he predicated

that '[a] judge's own conscious or unconscious racism may lead him to accept [a

prosecutor's racially tinged] explanation as well supported.' Batson, 476 U.S. at

106 (Marshall, J., concurring).

      Third, the prosecutor explained that '[Ms. D] responded positively' when he

asµed if she thought 'just because of [Taylor's] race maybe he is more liµely

innocent or maybe he's not gotten a very fair shaµe in the system.' In actuality,

Ms. D acµnowledged the existence of racial profiling, explaining that 'some

officers just liµe anybody else can't separate feelings they may have for the people

from this individual's race.' She then unequivocally stated she had no µnowledge

about the Sacramento Police, and she would not be more lenient on the defendant

because of his race: '[His race] wouldn't matter. I hold you to the same standard

no matter what race he was.' Ms. D made an uncontroversial observation about

racial profiling, and she offered no thoughts on Taylor's circumstances in

particular. The prosecutor's 'mischaracterization of [Ms. D's] answer is evidence

of discriminatory pretext.' Cooµ, 593 F.3d at 818.

      After advancing these three plainly pretextual explanations, the prosecutor

finally bumped into a plausible justification for striµing Ms. D. When asµed if


                                         -5-
'anybody had any negative experience with law enforcement,' Ms. D 'threw her

head bacµ and said, yes.' While some seated jurors discussed incidents that could

have negatively affected their views of law enforcement, the record does not

suggest they answered as energetically as Ms. D. Determinations based on

demeanor lie 'peculiarly within a trial judge's province,' Hernandez v. New Yorµ,

500 U.S. 352, 365 (1991) (quotation omitted), and this justification, standing

alone, might constitute a valid race-neutral explanation.

      But ''the prosecution's proffer of [one] pretexual explanation naturally

gives rise to an inference of discriminatory intent,' even where other, potentially

valid explanations are offered.' Ali v. Hicµman, 584 F.3d 1174, 1192 (9th Cir.

2009) (quoting Snyder v. Louisiana, 552 U.S. 472, 484 (2008)). Here, the single

plausible justification cannot overcome the inference of discriminatory intent

arising from the prosecution's three absurd justifications for striµing Ms. D. I

therefore would hold that the prosecutor was 'motivated in substantial part by

discriminatory intent.' Snyder, 552 U.S. at 485; see also Crittenden, 624 F.3d at

958. The state court ignored serious problems with three out of four of the

prosecutor's stated reasons. It also dismissed a comparative analysis by relying on

an implausible argument, advanced by the prosecutor without any basis in the

record, that Ms. D would be biased against African-Americans. Thus, even if the


                                          -6-
state court's decision was not flat out 'contrary to clearly established Federal law,'

its conclusion was 'based on an unreasonable determination of the facts in light of

the evidence presented.' 28 U.S.C. y 2254(d)(1) & (2).

      Because I would reverse the conviction on Batson grounds, I would not

reach the other issues addressed by the majority. I respectfully dissent.




                                          -7-
