Haney v. Adams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONTE L. HANEY,  No. 09-16148

Petitioner-Appellant,

v.  D.C. No.

3:07-cv-04682-CRB

DERRAL G. ADAMS, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Submitted April 12, 2011*

San Francisco, California

Filed May 26, 2011

Before: Alfred T. Goodwin and N. Randy Smith,

Circuit Judges, and Raner C. Collins, District Judge.**

Opinion by Judge N.R. Smith

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Raner C. Collins, District Judge for the U.S. District

Court for Arizona, Tucson, sitting by designation.

7021

HANEY v. ADAMS 7023

COUNSEL

Monte L. Haney, pro se, Represa, California, for the

petitioner-appellant.

Michele J. Swanson, Deputy Attorney General, San Fran-

cisco, California, for the respondent-appellee..

OPINION

N.R. SMITH, Circuit Judge:

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme

Court held that “the Equal Protection Clause forbids the pros-

ecutor to challenge potential jurors solely on account of their

race or on the assumption that black jurors as a group will be

unable impartially to consider the State’s case against a black

defendant.” We now hold that a petitioner may not raise a

Batson claim in his habeas petition if the petitioner failed to

object to the prosecution’s use of peremptory challenges at

trial. We must, therefore, affirm the judgment of the district

court denying this petitioner’s petition for habeas corpus.1

1

Although Haney raises two uncertified issues on appeal, he has not

“demonstrate[d] that reasonable jurists would find the district court’s

7024 HANEY v. ADAMS

FACTS AND PROCEDURAL HISTORY

In 2005, Monte L. Haney, an African American, was tried

and convicted of aggravated mayhem, torture, assault by

means of force likely to produce great bodily injury, assault

with a deadly weapon, corporal injury on a cohabitant, and

criminal threats. During voir dire examination, the prosecutor

used peremptory challenges to remove nine potential jurors.

Haney did not object to any of these nine challenges during

his trial. The jury ultimately consisted of a mixture of Asian,

white, and Hispanic jurors, but no African Americans were

chosen.

Haney appealed his convictions to the California Court of

Appeal in 2006, which affirmed the convictions. He did not

raise a Batson claim during this direct appeal.2 The California

Supreme Court denied his petition for review.

In 2007, Haney filed a petition for habeas corpus with the

California Supreme Court alleging ineffective assistance of

counsel, prosecutorial misconduct, incorrect jury instructions,

and a Batson violation. In claiming a Batson violation, he

alleged that two of the potential jurors struck by the prosecu-

tion were African American. The California Supreme Court

denied the petition for habeas corpus without an opinion.3

assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Because he has not made “a substan-

tial showing of the denial of a constitutional right,” we decline to issue a

certificate of appealability for the uncertified issues. Id.

2

In his subsequent petition for state habeas, Haney alleged he raised the

Batson claim on appeal, but also argued that “on appeal I wanted to raise

the issue that I did not have any [A]frican [A]mericans on my jury and my

appellate attorney told me that it was irrelevant.” The California Court of

Appeal did not mention a Batson claim, indicating that the claim was not

raised. Regardless, our opinion rests on Haney’s failure to object during

voir dire, not on appeal.

3

Denials of habeas corpus petitions without opinion by the California

Supreme Court are decisions on the merits, and satisfy the exhaustion

HANEY v. ADAMS 7025

Haney then filed his federal habeas petition in the United

States District Court for Northern California alleging his Bat-

son claim and other grounds not relevant here. The district

court also denied his petition. It rejected the Batson claim on

two grounds: (1) the claim was not raised at the trial court,

and (2) it failed on the merits, because Haney could not show

purposeful discrimination. Instead, the record revealed legiti-

mate reasons for striking all nine potential jurors, regardless

of race.

Standard of Review

We review the district court’s denial of a habeas corpus

petition de novo. Ali v. Hickman, 584 F.3d 1174, 1181 (9th

Cir. 2009). Under the Antiterrorism and Effective Death Pen-

alty Act (AEDPA), we may only grant the habeas petition if

the last reasoned state court decision was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). “ ‘[C]learly estab-

lished Federal law’ under § 2254(d)(1)” means “the governing

legal principle or principles set forth by the Supreme Court at

the time the state court renders its decision.” Lockyer v.

Andrade, 538 U.S. 63, 71-72 (2003) (citation omitted).

However, because Haney (1) did not raise the Batson issue

on direct appeal, and (2) his state habeas petition was denied

without opinion, there is no reasoned state court opinion to

review here. We must, therefore, “perform an independent

review of the record to ascertain whether the state court deci-

sion was objectively unreasonable.” Pinholster v. Ayers, 590

requirement in 28 U.S.C. § 2254(b)(1)(A). See Hunter v. Aispuro, 982

F.2d 344, 348 (9th Cir. 1992); Harris v. Superior Court, 500 F.2d 1124,

1128-29 (9th Cir. 1974) (en banc). Therefore, although Haney did not

raise the Batson claim on direct appeal, he “ ‘fairly presented’ his federal

claim to the highest state court” and we may review it. Johnson v. Zenon,

88 F.3d 828, 829 (9th Cir. 1996) (citation omitted).

7026 HANEY v. ADAMS

F.3d 651, 663 (9th Cir. 2009) (en banc), reversed on other

grounds sub nom. Cullen v. Pinholster, 131 S. Ct. 1388

(2011) (internal quotation marks and citation omitted). This is

not de novo review of the constitutional issue, but only a

means to determine whether the “state court decision is objec-

tively unreasonable.” Id. Therefore, for this appeal, Haney

must show that “there was no reasonable basis” for the state

court’s ruling. Cullen, 131 S. Ct. at 1402. “A habeas court

must determine what arguments or theories could have sup-

ported the state court’s decision; and then it must ask whether

it is possible fairminded jurists could disagree that those argu-

ments or theories are inconsistent with the holding in a prior

decision of [the Supreme] Court.” Id. (alterations and citation

omitted).

Contemporaneous Objection

[1] The state court may have denied Haney’s Batson claim

because he failed to object to the use of peremptory chal-

lenges during voir dire or at any point during the trial.4 This

presents an issue of first impression in this circuit: Whether

the state court’s decision to deny a Batson claim when a

defendant made no contemporaneous objection to the use of

peremptory challenges in the trial court is contrary to, or an

unreasonable application of, clearly established federal law.5

4

Because the denial of his claim was on the merits, rather than state pro-

cedural grounds, the “cause and prejudice” analysis in Coleman v. Thomp-

son, 501 U.S. 722, 750 (1991) is inapplicable.

5

We have previously held that an objection “must be made as soon as

possible, and preferably before the jury is sworn” in federal criminal

cases, but on direct appeal we may review the claim for plain error. United

States v. Contreras-Contreras, 83 F.3d 1103, 1104 (9th Cir. 1996); see

also Fed. R. Crim. P. 52(b). However, although Federal Rule of Criminal

Procedure 52(b) plain error review applies to federal criminal cases, it

does not apply to either the state proceedings or habeas petitions. Accord-

ingly, we have implied that an objection must be made in order to preserve

a Batson claim in a habeas case. See Boyd v. Newland, 467 F.3d 1139,

1142 n.2 (9th Cir. 2006) (“A Wheeler motion serves as an implicit objec-

HANEY v. ADAMS 7027

The Supreme Court has never allowed a Batson challenge to

be raised on appeal or on collateral attack, if no objection was

made during jury selection. Indeed, as explained below, Bat-

son itself presupposes a timely objection. Ford v. Georgia,

498 U.S. 411, 423 (1991) held that states may adopt rules for

determining whether a Batson objection is timely, but did not

address whether failure to timely object barred a habeas

claim. Therefore, the state court’s habeas decision was not

“contrary to” clearly established federal law. Furthermore, we

join other circuits which have considered this issue in holding

that an objection at trial is a prerequisite to a Batson challenge

for purposes of habeas review.6 Accordingly, we hold that the

state court’s habeas decision was not “an unreasonable appli-

cation” of the law clearly established in Batson.

[2] Under Batson, a defendant who alleges the discrimina-

tory use of peremptory challenges must first make out a prima

facie case. He must show: (1) “that he is a member of a cogni-

zable racial group,” (2) “that the prosecutor has exercised

peremptory challenges to remove from the venire members of

the defendant’s race,” and (3) “that these facts and any other

relevant circumstances raise an inference” of intentional dis-

crimination. 476 U.S. at 96. The burden then shifts to the

prosecutor to provide a race-neutral explanation for the chal-

tion under Batson, so Petitioner preserved his federal constitutional

claim.” (internal citation omitted)). We have also required contemporane-

ous objections in civil cases. See Dias v. Sky Chefs, Inc., 948 F.2d 532,

534-35 (9th Cir. 1991) (refusing to consider Batson claim when no objec-

tion was made before the jury was sworn).

6

McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996); Abu-Jamal

v. Horn, 520 F.3d 272 (3d Cir. 2008), vacated on other grounds by Beard

v. Abu-Jamal, 130 S. Ct. 1134 (2010); Allen v. Lee, 366 F.3d 319, 327-28

(4th Cir. 2004); Thomas v. Moore, 866 F.2d 803, 804 (5th Cir. 1989); Car-

ter v. Hopkins, 151 F.3d 872, 875-76 (8th Cir. 1998) (refusing to apply

burden-shifting when no contemporaneous objection); Sledd v. McKune,

71 F.3d 797, 799 (10th Cir. 1995) (refusing to consider Batson claim with-

out an objection because there was no record to review).

7028 HANEY v. ADAMS

lenges. Id. at 97. This process presupposes that the defendant

made a timely objection to the challenges during voir dire, as

Batson had done, id. at 83, 100. The Court did not expressly

require, however, that the defendant make such an objection

in order to preserve the claim.

[3] The Supreme Court’s established three-step Batson

procedure supports reading Batson to require a contemporane-

ous objection at trial. At step one, the Court emphasized that

“the trial court should consider all relevant circumstances” in

determining whether defendant had made out a prima facie

case. Id. at 96. At step two, “race-neutral reasons for peremp-

tory challenges often invoke a juror’s demeanor (e.g., ner-

vousness, inattention), making the trial court’s first-hand

observations of even greater importance.” Snyder v. Louisi-

ana, 552 U.S. 472, 477 (2008). “Because challenges are often

based on such subtle, intangible impressions, the reasons for

exercising the challenges may be quite difficult to remember

if an objection is not raised promptly.” McCrory, 82 F.3d at

1248. Finally, “when determining whether the prosecutor’s

race-neutral explanations are credible, ‘the best evidence

often will be the demeanor of the attorney who exercises the

challenge.’ ” Abu-Jamal, 520 F.3d at 282 n.6 (quoting Miller-

El v. Cockrell, 537 U.S. 322, 339 (2003)); see also Thomas,

866 F.2d at 805 (“Determining whether a prosecutor has acted

discriminatorily in his use of a peremptory challenge depends

greatly upon the observations of the presiding judge.”).

These determinations not only lie “peculiarly within a trial

judge’s province,” Hernandez v. New York, 500 U.S. 352, 365

(1991) (citation omitted), they would also be difficult, if not

impossible, to evaluate for the first time in post-conviction

proceedings when no record is preserved. See Jones v. Butler,

864 F.2d 348, 370 (5th Cir. 1988) (“Years after trial, the pros-

ecutor cannot adequately reconstruct his reasons for striking

a venireman. Nor can the judge recall whether he believed a

potential juror’s statement that any alleged biases would not

prevent him from being a fair and impartial juror.”); see also

HANEY v. ADAMS 7029

McCrory,7 82 F.3d at 1250 (reversing the district court’s grant

of habeas relief where the State was unable to meet its burden

under Batson “simply because the prosecutor was understand-

ably unable at the hearing, 10 years after trial, to explain his

challenges. Accordingly, the conviction was vacated for a vio-

lation that may never have occurred.”). In this case, for exam-

ple, it is impossible to even ascertain which members of the

venire were African American. See United States v. Dobynes,

905 F.2d 1192, 1197 & n. 4 (3d Cir. 1990) (noting that even

though the court reviewed the untimely Batson claim for plain

error on direct appeal, the lack of a record made it impossible

to even ascertain how many African Americans were on the

venire). Although this problem exists even on direct appeal,

it is exacerbated by the often lengthy delays between trial and

a federal habeas petition. See, e.g., Galarza v. Keane, 252

F.3d 630, 641 (2d Cir. 2001) (11 years); McCrory, 82 F.3d at

1250 (10 years).

Similarly, the Supreme Court’s proposed remedies for Bat-

son violations presuppose a contemporaneous objection. The

Supreme Court declined “to formulate particular procedures

to be followed upon a defendant’s timely objection to a prose-

cutor’s challenges.” Batson, 476 U.S. at 99 (emphasis added).

However, the Court theorized that, after a finding of inten-

tional discrimination, trial courts could choose to “discharge

the venire and select a new jury from a panel not previously

associated with the case” or “disallow the discriminatory chal-

lenges and resume selection with the improperly challenged

7

In McCrory and Jones, the Second and Fifth Circuits required a con-

temporaneous objection even though the cases were tried prior to the Bat-

son decision, when defendants were required to show a pattern of

discrimination under Swain v. Alabama, 380 U.S. 202, 223-24 (1965). In

Haney’s case, there was a clear body of law concerning peremptory chal-

lenges to inform his counsel’s decision whether to raise a Batson claim.

Additionally, Haney’s counsel was aware of Batson—in a pretrial confer-

ence the parties agreed to raise any Batson claims in a sidebar. Accord-

ingly, it is even more appropriate to require a contemporaneous objection

in this case.

7030 HANEY v. ADAMS

jurors reinstated on the venire.” Id. at 99 n.24. Neither option

would be viable if struck members of the panel had been dis-

missed, or the case had already gone to a jury. See Abu-Jamal,

520 F.3d at 282 & n.8; McCrory, 82 F.3d at 1247; Jones, 864

F.2d at 370 (“[A]ny prosecutorial misconduct is easily reme-

died before trial simply by seating the wrongfully struck veni-

reman. After trial, the only remedy is setting aside the

conviction.”).

[4] Aside from these procedural issues, it would also be

unwise to allow defendants “to manipulate the [trial] system

to the extreme prejudice of the prosecution” by allowing post-

conviction Batson claims. McCrory, 82 F.3d at 1247. A

defendant would have a strong incentive to allow the trial to

proceed with the selected jury, then—in the event of a

conviction—raise the Batson claim on appeal, long after the

prosecutor may have forgotten the reasons for his challenges.

Id.; see also Galarza, 252 F.3d at 641 (Walker, J., dissenting)

(“In addition to allowing the trial court to act in the first

instance, potentially correcting the error and obviating the

need for an expensive, time-consuming, and disruptive

appeal, timely objection provides a record from which appel-

late courts can better assess the trial court’s reasoning, dis-

courages sandbagging and strategic behavior by trial counsel,

and provides the prevailing party with notice of the objector’s

claims of error.”).

[5] For these reasons, we join our sister circuits in conclud-

ing that a timely objection to the prosecutor’s use of peremp-

tory challenges is a prerequisite to a Batson challenge.

Therefore, the California Supreme Court’s decision denying

Haney’s Batson claim was not contrary to federal law.

The district court’s judgment denying habeas is

AFFIRMED.