Rainwater Law Group

Effective Criminal Defense

Shirley v. Yates No. 13-16273 [November 20, 2015]

Shirley v. Yates

The court grants relief based on Shirley’s Batson claim. Here, because the state court rejected the Batson challenge at Step One, producing evidence that is sufficient to permit an inference that discrimination has occurred, it did not get to Steps Two and Three in the Batson analysis. The district court correctly determined that the Step One analysis by the state court was an unreasonable application of federal law because it applied a more strenuous test than the Supreme Court required in Johnson v. California. At step two, “the state must both (1) assert that specific, race-neutral reasons were the actual reasons for the challenged strikes, and (2) offer some evidence which, if credible, would support the conclusion that those reasons were the actual reasons for the strikes.” “Whether the evidence in support of the reason is credible or even whether it ‘makes sense’ is to be determined at Step Three.” If the State fails to meet its Step Two burden of production, “there is no race-neutral evidence to weigh,” and the defendant will prevail at Step Three of his Batson challenge in almost all such cases. Here, the state made its case circumstantially on Step Two by testifying having the prosecutor testify to his usual practice in voir dire. The Court held that the district court erred in its Step Three analysis as to one of the jurors based on a comparative juror analysis with a similar seated veniremember. “Because the district court failed to assess whether the circumstantial evidence [the prosecutor] offered supported the conclusion that his asserted, race-neutral reason for striking [the juror] was actually his reason for doing so and because the court failed to make a finding as to the actual reason for the challenge, the district court committed clear error.” The Court on its own examination found the actual reason for the strike violated Mr. Shirley’s equal protection rights finding that there was insufficient evidence of the true, non-discriminatory motive on which the particular strikes were actually based. While circumstantial evidence of a prosecutor’s general jury selection approach is adequate at Step Two, it deserves little if any weight at Step Three when it describes only a vague general preference as to the type of jurors the prosecutor finds most desirable rather than types of veniremembers the prosecutor customarily strikes. “A prosecutor must offer not ‘general assertions’ but rather a ‘neutral explanation related to the particular case to be tried. A comparative analysis of the jurors did not support the state’s claims of a race-neutral reason for the strike. The Court held that in cases where the prosecutor cannot actually remember the reasons for the striking of a juror “that if a prosecutor testifies both to his general jury selection approach and he is confident one of these race-neutral preferences was the actual reason for the strike, this is sufficient circumstantial evidence to satisfy Batson Step Two. Nevertheless, we also hold that this evidence alone will seldom be enough at Step Three to overcome a prima facie case unless the prosecutor has a regular practice of striking veniremembers who possess an objective characteristic that may be clearly defined.”

UPDATED: See amended opinion filed on March 21, 2016, and denial of rehearing and rehearing en banc.


Jones v. Davis, No. 14-56373 [November 12, 2015]

Jones v. Davis

Held that a claim that California’s post-conviction system of judicial review violates the Eighth Amendment’s prohibition against cruel and unusual punishment by creating excessive delay between sentencing and execution, such that only an arbitrary few prisoners are executed is barred by Teague v Lane, under which federal courts may not consider novel constitutional theories on habeas review, without considering the parties’ arguments concerning exhaustion. The claim here, seeks to apply a novel constitutional rule, and is therefore barred by Teague and this Court has the discretion to address that issue “without reaching the exhaustion issue.”


Zapien v. Martel No. 09-99023 [November 9, 2015]

Zapien v. Martel

Zapien claimed that his due process rights were denied when a prosecution investigator found and then destroyed an envelope containing a “defense strategy tape.” The Court found that the California courts did not unreasonably apply California v. Trombetta or Arizona v. Youngblood. Because they dealt with “the destruction of potentially exculpatory evidence – not, as here, the destruction of attorney-client work product.” Secondly, Zapien argued that the California court’s finding that the investigator did not listen to the tape was an unreasonable finding of fact. The court held that even if the tape had been listened to, Zapien did not establish a due process violation. Therefore, he didn’t have a viable claim. Additionally, Zapien raised several confrontation clause claims, one where the trial court admitted statements of Zapien’s sister at the preliminary hearing after she refused to testify at trial. The Court held that California’s reliance and application of Ohio v. Roberts was not unreasonable. Zapien also raised several ineffective assistance of counsel claims at the guilt and sentencing phases that were summarily denied by the Court. Finally, Zapien raised a claim that his right to an impartial jury was violated “when the trial court failed to dismiss a juror who admitted to hearing a news report that suggested Zapien would hurt his guards if he were given the death penalty.” The Court found that the California court’s application of Mattox v. United States was not unreasonable and denied the claim.


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