Oliver v. Davis

25 F.4th 1228

Anthony C. OLIVER, Petitioner-Appellee,

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

No. 20-99000

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 28, 2021 Pasadena, California

Filed February 17, 2022

Shira Seigle Markovich (argued) and A. Scott Hayward, Deputy Attorneys General; Dana M. Ali, Supervising Deputy Attorney General; James William Bilderback II, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellant.

Ajay Kusnoor (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; Robert M Myers and David W. German, Newman Aaronson Vanaman LLP, Sherman Oaks, California; for Petitioner-Appellee.

Before: Richard R. Clifton, Milan D. Smith, Jr., and Eric D. Miller, Circuit Judges.

OPINION

MILLER, Circuit Judge:

On July 21, 1989, Anthony Oliver and his half-brother, Albert Lewis, went to the Mount Olive Church in Los Angeles during an evening service. See generally People v. Lewis , 39 Cal.4th 970, 47 Cal.Rptr.3d 467, 140 P.3d 775, 789–91 (2006). A year before, Lewis had married Cynthia Mizell at the same church. The marriage proved an unhappy one: Lewis repeatedly attacked Mizell and threatened to kill her. When they arrived at the church this time, Oliver and Lewis were dressed in dark clothes and carrying shotguns. Oliver entered the church while Lewis stood guard outside. As one parishioner, Eddie Mae Lee, attempted to flee, Oliver shot her in the back. He then shot another man in the leg before he approached Mizell's cousin, Patrinella Luke, and shot her in the head. Both Lee and Luke died from their wounds.

Mizell normally played the organ at the Mount Olive Church, but she was not present at that service, having fled to Las Vegas just hours earlier. She told police that she believed Oliver and Lewis to be the gunmen. A search of Oliver's car revealed a black jacket containing gunshot residue as well as a shotgun that matched shells found at the church; palm prints on the gun matched Oliver's right hand.

Oliver and Lewis were both arrested and charged with two counts of first-degree murder and one count of attempted murder. During the course of jury selection for Oliver and Lewis's joint trial in California state court, the defense made four unsuccessful motions claiming that the prosecutor violated Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which prohibits the use of peremptory challenges to strike prospective jurors on the basis of race. (Strictly speaking, the motions invoked not Batson but People v. Wheeler , 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), which established a state-law rule equivalent to Batson . But we have held that an objection under Wheeler is sufficient to preserve a Batson claim, so the distinction does not matter for our purposes. McDaniels v. Kirkland , 813 F.3d 770, 773 (9th Cir. 2015) (en banc).)

In Batson , the Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." 476 U.S. at 89, 106 S.Ct. 1712. A Batson challenge proceeds in three steps: "First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ " Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (quoting Batson , 476 U.S. at 93–94, 106 S.Ct. 1712 ). Second, "the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes." Id. (quoting Batson , 476 U.S. at 94, 106 S.Ct. 1712 ). Third, "the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." Id. (omission in original) (quoting Purkett v. Elem , 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)).

One of the defense motions—the only one relevant to this appeal—involved the exclusion of V.H., a black man. In general, V.H.'s answers in voir dire indicated that he would neutrally and fairly apply the law. For example, V.H. explained that he encouraged his son, who was incarcerated, "to do his time and not be bitter" and confirmed that his son's experience would not affect his ability to serve as a juror. V.H. said that he "ha[d] no trouble" imposing the death penalty, "as long as [he was] convinced of [the defendants'] guilt." He also agreed that he would vote to convict if he were convinced of the defendants' guilt beyond a reasonable doubt.

The prosecutor questioned V.H. about his prior jury experience. V.H. said that he had served as a juror in a rape case about one year earlier. When the prosecutor asked whether the jury in that case had reached a verdict, V.H. confirmed that it had and immediately volunteered that the verdict was not guilty. The prosecutor then asked whether "that case turn[ed] on the credibility of the victim," and V.H. said that it did. The prosecutor asked whether V.H. believed the victim, and V.H. said he did not.

The prosecutor did not challenge V.H. for cause but elected to exercise a peremptory challenge to remove him from the panel. Defense counsel objected and asserted that "the only reason" the prosecutor wanted him off the jury was because he was "a minority."

The trial court found a prima facie case of discrimination at Batson 's first step and asked the prosecutor to explain the basis for her challenge. The prosecutor responded that she struck V.H. because of his prior jury experience:

This juror indicated he acquitted on a rape case in Torrance one year ago, it was his only experience with jury service, that he found the victim not to be believable. Up until that point, I found the juror very acceptable.

Unfortunately, it is my feeling that once a juror has had the experience of acquitting a defendant, it does create a certain mind set and the readiness to acquit. It certainly shows that he was able to reject the prosecutor's argument, reject the People's proof and reject the word of a woman.

In this trial, we will have women testifying to the history of abuse by one of the defendants. Their believability and credibility will become crucial with this case. They are key witnesses in this case as the defense is very well-aware. I cannot in good conscience leave a juror on who has found a woman in a situation of a criminal trial who is a key witness to be uncredible and therefore acquit.

At first, the court granted a mistrial. It explained that "in the rape case, there were 11 other people" who voted with V.H., and the prosecution "simply ... disagree[d] with the verdict." The prosecutor responded that the court was misunderstanding the government's burden and that it was not required to establish cause to excuse V.H., just a nondiscriminatory reason for doing so. She asked the court to allow her to brief the issue. The court agreed.

The next day, the court reversed its ruling and denied the defense motion for a mistrial. After further consideration, the court "conclude[d] that the sole issue that has to be dealt with is the court's belief in the genuineness of the People's explanation as to whether or not [the challenge] was based on a race-neutral reason and whether or not the People were motivated by racial bias." Noting that although "the defendants are both black," so were "all the victims, deceased and otherwise," the court reasoned that "[b]ased on the underlying fact situation, I don't see anything that appears to be inherently racial in the case nor do I believe there is any obvious motive under these facts for the prosecution to specifically exclude blacks." The court went on to explain that it found the prosecutor's explanation to be credible:

The court does state my initial ruling yesterday was clearly not made on any finding that I disbelieved the prosecutor's explanation. I did not disbelieve it nor did I disbelieve the prior explanations....

As to the last challenge, [V.H.] did seem to meet all the tests with the sole exception of that prior jury experience. This was volunteered and not solicited. It is, nonetheless, race neutral.

There is nothing in the history of this case that gives me a reason to question the genuineness of the reasons given by the prosecution.

The jury convicted Oliver and Lewis of two counts of first-degree murder with special circumstances and one count of attempted murder, and it returned a verdict of death. See Cal. Penal Code §§ 187(a), 189, 664.

The California Supreme Court affirmed. Lewis , 39 Cal.4th 970, 47 Cal.Rptr.3d 467, 140 P.3d 775. Oliver asserted numerous challenges to his conviction, including Batson claims based on the exclusion of several different prospective jurors. In rejecting the Batson claim related to V.H., the court explained: "In light of V.H.'s vote to acquit another criminal defendant of rape, rejecting the testimony of a female victim of violence, the prosecutor had reason to be skeptical about V.H.'s willingness to be fair in this case, in which the testimony of female victims of violence would be crucial." Id. , 47 Cal.Rptr.3d 467, 140 P.3d at 811. It rejected Oliver's contention that the prosecution's proffered explanation was pretextual because she did not question S.P., who was not black, about the verdict returned in a prior criminal case in which S.P. had served on a jury, and she did not seek to strike S.P. Id ., 47 Cal.Rptr.3d 467, 140 P.3d 775 at 817–18. It explained that S.P. was not similarly situated to V.H. because the case that S.P. heard involved trespassing and assault, so it "does not appear ... to have been similarly serious" to the rape case that V.H. heard. Id. , 47 Cal.Rptr.3d 467, 140 P.3d 775 at 818.

Oliver petitioned for a writ of habeas corpus in ...