Ervin v. Davis

12 F.4th 1102

Curtis Lee ERVIN, Petitioner-Appellant,

v.Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.

No. 16-99010

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2021 Seattle, Washington

Filed September 10, 2021

Pamala Sayasane (argued), Law Office of Pamala Sayasane, San Francisco, California; Robert R. Bryan (argued), Law Office of Robert R. Bryan, San Francisco, California; for Petitioner-Appellant.

Allan I. Yannow (argued), Deputy Attorney General; Glenn R. Pruden, Supervising Deputy Attorney General; Ronald S. Matthias, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Francisco, California; for Respondent-Appellee.

Before: Ronald M. Gould, John B. Owens, and Danielle J. Forrest, Circuit Judges.

OWENS, Circuit Judge:

Curtis Ervin appeals from the denial of his 28 U.S.C. § 2254 habeas petition seeking relief from his first-degree murder conviction and death sentence. We have jurisdiction under 28 U.S.C. § 1291. In light of the Supreme Court's recent decision in Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 204 L.Ed.2d 638 (2019), which summarized the factors courts should consider when evaluating a challenge under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we vacate the district court's order denying relief and remand so the district court can apply in the first instance the Supreme Court's guidance in Flowers .¹

I. FACTUAL AND PROCEDURAL BACKGROUND

As the California Supreme Court explained in detail, Ervin, a black man, was convicted and sentenced to death in 1991 for carrying out a murder for hire in Alameda County. People v. Ervin , 22 Cal.4th 48, 91 Cal.Rptr.2d 623, 990 P.2d 506, 513–14 (2000). During jury selection, the prosecution exercised 15 peremptory strikes, removing 9 of the 11 black prospective jurors subject to questioning. See id. , 91 Cal.Rptr.2d 623, 990 P.2d at 518. The black prospective jurors who were removed were: Alfred Hudnall, JoAnn White, Lisa Kelley, Eloise Knox, Roslyn Roberts, Caroline Mullen, James Thomas, Pamala Blake, and Lionel Jackson. Id. , 91 Cal.Rptr.2d 623, 990 P.2d at 519. Ultimately, Ervin's jury included one black juror and one black alternate—the rest of his jury was predominantly, if not entirely, white. Id.

Ervin challenged the prosecutor's use of peremptory strikes as racially motivated, raising multiple objections under Batson and its California analog, People v. Wheeler , 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Ervin , 91 Cal.Rptr.2d 623, 990 P.2d at 518. In response, the prosecutor explained that his challenges were based on "specific juror attitudes on the death penalty," and that he removed at least three of the black prospective jurors because he surmised that their religious beliefs would preclude them from imposing a death sentence. For example, Hudnall was struck for his "deeply religious bent," while White was removed for her "religious bent" and answers during voir dire. Id. , 91 Cal.Rptr.2d 623, 990 P.2d at 519. The state trial judge accepted the prosecutor's reasons as "reasonably specific and neutral" and denied Ervin's objections. Id. , 91 Cal.Rptr.2d 623, 990 P.2d at 518.

The California Supreme Court agreed with the trial judge. Though the court recognized that the prosecutor's reasons were not always "particularly logical or substantial," it saw "no good reason to second-guess [the trial judge's] factual determination," and it did not scrutinize the record for factual support for the prosecutor's stated reasons. Id. , 91 Cal.Rptr.2d 623, 990 P.2d at 519–20 (citation omitted). For example, the court accepted the prosecutor's reason for removing Hudnall—his "deeply religious bent"—despite contrary evidence in the record showing Hudnall was, in fact, not religious. See id. , 91 Cal.Rptr.2d 623, 990 P.2d at 519. The court also explicitly declined to conduct a comparative analysis of the black prospective jurors who were struck compared with similarly situated white prospective jurors who were not struck.² Id. , 91 Cal.Rptr.2d 623, 990 P.2d at 520.

In 2007, Ervin sought relief on his Batson claims in federal court.³ In his habeas petition, Ervin highlighted the statistically "disproportionate number of blacks stricken by the prosecutor" (9 out of 11), as well as the low number of black prospective jurors in Ervin's final venire (17 out of 110). (ECF Doc. No. 97). Ervin also identified specific discrepancies between the prosecutor's stated reasons for removing Hudnall (his "deeply religious bent") and Hudnall's answers during voir dire, when Hudnall repeatedly stated he was "not a member of the church," had no religious background, and that his only church involvement was his daughter going to a Christian school and attending church there with her mother. Ervin's petition also highlighted inconsistencies between the prosecutor's stated reasons for removing White and his treatment of other, similarly situated prospective white jurors who were not removed.

The district court denied Ervin's petition. Ervin v. Davis , 150 F. Supp. 3d 1108, 1140 (N.D. Cal. 2015). The court focused its Batson analysis on three of the nine removed prospective jurors—Kelley, Thomas, and Roberts—and concluded, based on a comparative analysis of each of those three jurors, that the prosecutor's stated reasons withstood scrutiny. Id. at 1135–40. The district court did not evaluate the remaining six prospective jurors, including Hudnall and White, nor did it consider the overall context of the strikes.⁴ Id. at 1136. The district court also did not analyze any statistical discrepancies regarding the number of black prospective jurors who were removed (9 out of 11); any disparate questioning by the prosecutor; or any relevant history regarding the State's exercise of peremptory strikes.

Ervin timely appealed.

II. DISCUSSION

A. Standard of Review

Because Ervin filed his habeas petition after 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this case. Hurles v. Ryan , 752 F.3d 768, 777 (9th Cir. 2014). "A state court's finding that the prosecutor did not engage in purposeful discrimination is reviewed under the deferential standard set forth in 28 U.S.C. § 2254(d)(2)." Jamerson v. Runnels , 713 F.3d 1218, 1224 (9th Cir. 2013). "[T]he state court's decision will be upheld unless it was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Id. at 1225 (quoting § 2254(d)(2) ). "The standard is demanding but not insatiable." Miller-El v. Dretke , 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Although we must ordinarily give a trial judge's findings "great deference," Batson , 476 U.S. at 98 n.21, 106 S.Ct. 1712, "[d]eference does not by definition preclude relief," Miller-El , 545 U.S. at 240, 125 S.Ct. 2317 (alteration in original) (citation omitted).

B. The District Court, Without the Benefit of Flowers , Did Not Fully Analyze the Batson Question

Since the 1980s, the U.S. Supreme Court has issued many decisions on improper jury selection, starting with Batson . See, e.g. , Powers v. Ohio , 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ; Purkett v. Elem , 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Miller-El v. Dretke , 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ; Rice v. Collins , 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) ; Snyder v. Louisiana , 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; Foster v. Chatman , 578 U.S. 488, 136 S. Ct. 1737, 195 L.Ed.2d 1 (2016). The Court's recent decision in Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 204 L.Ed.2d 638 (2019), summarizes the existing law concerning jury selection and how courts should evaluate Batson challenges.

In Flowers , the Supreme Court reversed the conviction of a black defendant based in part on the disproportionate number of black prospective jurors who were removed from his jury pool. Id. at 2235. Of the "[f]our critical facts [that], taken together, require[d] reversal," two of them centered on statistical disparities—specifically, the State's use of peremptory challenges to remove 41 out of 42 black prospective jurors across the defendant's six trials combined, and the State's use of such challenges to remove 5 out of 6 black prospective jurors in the defendant's most recent trial alone. Id . The other "critical facts" were the State's "dramatically disparate questioning of black and white prospective jurors," and a comparative analysis of a black prospective juror who was removed compared with similarly situated white prospective jurors who were allowed to stay. Id.

In granting relief, the Flowers Court set out, in bullet point form, a list of factors or evidence that judges should consider in evaluating the validity of a peremptory strike when presented by a defendant:

• statistical evidence about the prosecutor's use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;

• evidence of a prosecutor's disparate questioning and investigation of black and white prospective jurors in the case;

• side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;

• a prosecutor's misrepresentations of the record when defending the strikes during the Batson hearing;

• relevant history of the State's peremptory strikes in past cases; or

• other relevant circumstances that bear upon the issue of racial discrimination.

Id. at 2243 (citing Foster , 136 S. Ct. at 1737 ; Snyder , 552 U.S. at 472, 128 S.Ct. 1203 ; Miller-El , 545 U.S. at 231, 125 S.Ct. 2317 ; Batson , 476 U.S. at 79, 106 S.Ct. 1712 ).

The Court twice emphasized that reliance on the above factors "break[s] no new legal ground ... [but] simply enforce[s] and reinforce[s] Batson ."...