Alonzo Johnson v. Claude Finn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALONZO DEON JOHNSON; DARRYL  No. 10-15641

THOMPSON,

Petitioners-Appellants, D.C. Nos.

2:03-cv-02063-

v.

 JAM-JFM

CLAUDE E. FINN, WARDEN; 2:04-cv-02208-

ATTORNEY GENERAL FOR THE STATE JAM-JFM

OF CALIFORNIA; TOM L. CAREY,

OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

October 14, 2011—San Francisco, California

Filed December 8, 2011

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt

20849

20852 JOHNSON v. FINN

COUNSEL

Daniel J. Broderick, Federal Defender, Sacramento, Califor-

nia; David M. Porter (argued), Assistant Federal Defender,

Sacramento, California; for the petitioners-appellants.

Kamala D. Harris, Attorney General of California, Sacra-

mento, California; Michael P. Farrell, Senior Assistant Attor-

ney General, Sacramento, California; Catherine Chatman,

Supervising Deputy Attorney General, Sacramento, Califor-

nia; R. Todd Marshall (argued), Deputy Attorney General,

Sacramento, California; for the respondents-appellees.

JOHNSON v. FINN 20853

OPINION

REINHARDT, Circuit Judge:

Alonzo Deon Johnson and Darrell Thompson, California

state prisoners, challenge the prosecution’s use of peremptory

strikes to exclude black jurors in their trial. A magistrate

judge, after holding an evidentiary hearing at which the prose-

cutor testified, found that he had purposefully discriminated

on the basis of race in exercising a peremptory strike against

one of the black jurors. The district judge, without holding a

new evidentiary hearing, rejected the magistrate judge’s find-

ing as to the prosecutor’s lack of credibility in asserting race-

neutral reasons for having stricken the juror. In doing so, the

district judge denied Johnson and Thompson the process that

they were constitutionally due.

We hold that the rule of United States v. Ridgway, 300 F.3d

1153 (9th Cir. 2002), extends to determinations by a magis-

trate judge as to the credibility of a prosecutor’s testimony at

the second and third steps of the inquiry required by Batson

v. Kentucky, 476 U.S. 79 (1986). In Ridgway, we held that the

Due Process Clause required “that a district court . . . conduct

its own evidentiary hearing before rejecting a magistrate

judge’s credibility findings made after a hearing on a motion

to suppress.” 300 F.3d at 1154. As in Ridgway, an in-person

evaluation of a witness’s demeanor—here, that of the

prosecutor—is essential to the kind of determination that the

district judge was required to make: “In the typical peremp-

tory challenge inquiry, the decisive question will be whether

counsel’s race-neutral explanation for a peremptory challenge

should be believed. There will seldom be much evidence

bearing on that issue, and the best evidence often will be the

demeanor of the attorney who exercises the challenge.” Her-

nandez v. New York, 500 U.S. 352, 365 (1991). The district

judge erred by declining the opportunity to observe the trial

prosecutor’s demeanor before rejecting the magistrate judge’s

adverse credibility finding.

20854 JOHNSON v. FINN

We therefore vacate the district court’s denial of the writ of

habeas corpus and remand for the district judge either to

accept the magistrate judge’s credibility finding or to conduct

a new evidentiary hearing. We retain jurisdiction over any

appeal from the district court’s judgment.

I

In 2000, Johnson and Thompson were tried together for

murder and other charges in the death of Rafael Palacios.

They were acquitted of murder but convicted of shooting at

an occupied motor vehicle and, in Thompson’s case, of will-

fully participating in a street gang and being a felon in posses-

sion of a firearm. Several sentence enhancements were found

to apply in each case.

During the jury selection phase of their trial, Johnson and

Thompson raised objections under Batson and its state-law

cognate, People v. Wheeler, 22 Cal. 3d 258 (1978), to the

prosecution’s use of peremptory challenges against three

black jurors: W.J., E.G., and W.T. The trial court found in

each case that Johnson and Thompson “had failed to make a

prima facie showing that the prosecutor had an invidious basis

for the peremptory challenge.”

After exhausting his remedies in state court, including an

appeal before the intermediate state appellate court and a peti-

tion for review that the state supreme court declined to hear,

Johnson filed a timely petition for a writ of habeas corpus in

the U.S. District Court for the Eastern District of California.

Thompson did the same in the Northern District of California.

Thompson’s case was transferred to the Eastern District, the

state filed answers to both petitions, and the district court

deemed the cases related.

Magistrate Judge John F. Moulds issued an order conclud-

ing that the California Court of Appeal had applied an incor-

rect legal standard in determining whether Johnson and

JOHNSON v. FINN 20855

Thompson had established a prima facie case of racial dis-

crimination. The magistrate judge therefore determined that

he would evaluate Johnson and Thompson’s Batson claim de

novo, without affording deference under the Anti-Terrorism

and Effective Death Penalty Act (AEDPA). The magistrate

judge found that Johnson and Thompson had made a prima

facie showing of racial discrimination as to each of the three

black jurors whose strikes were at issue. Recognizing that

under Batson, “the burden shifts to the state to explain the

racial exclusion by offering permissible race-neutral justifica-

tions for his strikes,” the magistrate judge ordered an evidenti-

ary hearing, as the state had “never been required to present

evidence of the prosecutor’s actual, non-discriminatory rea-

sons for striking the three black jurors.”

After hearing testimony from the trial prosecutor, the mag-

istrate judge issued a forty-three-page report of findings and

recommendations. The finding that concerns us here is the

magistrate judge’s determination that the prosecutor’s

asserted race-neutral reasons for striking W.J. were not his

genuine reasons for doing so. Upon conducting a thorough

comparative juror analysis, the magistrate judge concluded

that “[a] comparison between [W.J.] and . . . other jurors

fatally undermines the credibility of the prosecutor’s stated

justification for excusing [W.J.] and demonstrates that

[W.J.’s] youth, marital status, residence and poor spelling”—

all reasons that the prosecutor had given—“could not have

genuinely motivated the prosecutor to strike him.” The magis-

trate judge also found that “the prosecutor’s failure to ask

follow-up voir dire in an effort to clear up his alleged con-

cerns[ ] suggests he made up nonracial reasons to strike

[W.J.].” The magistrate judge therefore found that the prose-

cutor’s “stated reasons for excluding [W.J.] were a pretext for

eliminating him from the jury on account of his race”—in

other words, that the prosecutor’s testimony as to the strike of

W.J. was not credible. The magistrate judge found that the

prosecutor had not discriminated in striking the other two

black jurors, E.G. and W.T.

20856 JOHNSON v. FINN

The district judge, in a four-page order, upheld the magis-

trate judge’s findings and recommendations—including those

concerning the inapplicability of AEDPA deference—except

for the determination that the prosecutor’s asserted reasons for

striking W.J. were pretextual. The district judge found that

Johnson and Thompson did not show “that the totality of cir-

cumstances raises an inference that the strike was motivated

by race.” He found that the prosecutor “put forward evidence

of legitimate, race-neutral reasons for exercising a peremptory

challenge against” W.J. and that Johnson and Thompson

failed to “prove purposeful racial discrimination by the prose-

cutor.” In short, the district judge rejected the magistrate

judge’s finding as to the prosecutor’s lack of credibility.

Whereas the magistrate judge found that the prosecutor’s

asserted reasons were not his actual reasons for striking W.J.,

the district judge found that the prosecutor struck W.J. for “le-

gitimate, race-neutral reasons.” This appeal followed.

II

Before considering whether the district judge was required

to hold a new evidentiary hearing in order to reject the credi-

bility determination of the magistrate judge, we must address

two threshold questions as to whether it was necessary to hold

an evidentiary hearing in the first instance. The first is

whether AEDPA deference applies in this case to the state

courts’ determination at the first step of the inquiry required

by Batson. We answer this question in the negative, which

raises a second question: did Johnson and Thompson, on the

basis of the state record, make the requisite prima facie show-

ing of discrimination? We answer that question in the affirma-

tive.

A

Under AEDPA, no federal court may grant a writ of habeas

corpus unless the state courts adjudicated the petitioner’s

claim in a manner that “was contrary to, or involved an unrea-

JOHNSON v. FINN 20857

sonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). “When a state court’s adjudication of a

claim is dependent on an antecedent unreasonable application

of federal law,” however, “the requirement set forth in

§ 2254(d)(1) is satisfied. A federal court must then resolve the

claim without the deference AEDPA otherwise requires.”

Panetti v. Quarterman, 551 U.S. 930, 953 (2007). The ques-

tion here is whether the state courts’ adjudication of Johnson

and Thompson’s Batson claim was “dependent on an anteced-

ent unreasonable application of federal law,” id.—namely,

whether the state courts applied the proper standard in deter-

mining whether Johnson and Thompson made a prima facie

showing of racial discrimination. In answering that question,

“[w]e review the state court’s last reasoned decision,” Critten-

den v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010), which was

in this case a decision made by the California Court of

Appeal.

[1] At the first step of the Batson inquiry, a defendant need

only “raise an inference that the prosecutor . . . exclude[d] the

veniremen from the petit jury on account of their race.” 476

U.S. at 96 (emphasis added). The Court of Appeal recited the

correct standard: “A party establishes a prima facie showing

of invidious group bias when there is a reasonable inference

from the circumstances as a whole that this was the basis for

the peremptory challenge.” But the case that the court cited

for that proposition was People v. Box, 5 P.3d 130 (Cal.

2000), overruled on other grounds by People v. Martinez, 224

P.3d 877 (Cal. 2010), which stated that “in California, a

‘strong likelihood’ means a ‘reasonable inference.’ ” Id. at

154 n.7. The U.S. Supreme Court squarely rejected that doc-

trine of California law as contrary to Batson. See Johnson v.

California, 545 U.S. 162 (2005), rev’g People v. Johnson, 71

P.3d 270, 277 (Cal. 2003) (“We reiterate what we . . . stated

in Box: . . . ‘strong likelihood’ and ‘reasonable inference’

state the same standard.”). In Johnson, the Court quoted with

approval the California Court of Appeal’s statement that to

20858 JOHNSON v. FINN

equate a “strong likelihood” and a “reasonable inference” is

“as novel a proposition as the idea that ‘clear and convincing

evidence’ has always meant a ‘preponderance of the evi-

dence.’ ” 545 U.S. at 166 n.2. A state court that equates a cor-

rect standard with an incorrect standard cannot be applying

the correct standard in the manner required by law.

Moreover, the Court of Appeal’s reasoning here leaves lit-

tle doubt that in equating a “strong likelihood” with a “reason-

able inference,” it was improperly heightening the latter

standard rather than diminishing the former. The version of

the “reasonable inference” standard that the Court of Appeal

applied was the one rejected as unlawful in Johnson, not the

one recognized by federal law. The strongest evidence of the

court’s error is its statement that “[w]hen a trial court denies

a motion to contest the basis of a peremptory challenge

because there is no prima facie showing,” the appellate court

must affirm so long as “there are grounds upon which a prose-

cutor could reasonably have premised a challenge.” As we

explained in Williams v. Runnels, 432 F.3d 1102 (9th Cir.

2006), while “other relevant circumstances” can “rebut an

inference of discriminatory purpose based on statistical dis-

parity,” these “ ‘other relevant circumstances’ must do more

than indicate that the record would support race-neutral rea-

sons for the questioned challenges.” Id. at 1107-08. Contrary

to the Court of Appeal’s reasoning, the existence of “grounds

upon which a prosecutor could reasonably have premised a

challenge,” does not suffice to defeat an inference of racial

bias at the first step of the Batson framework.

[2] The only remaining question is whether the federal law

that the Court of Appeal failed to apply reasonably was

clearly established by the Supreme Court at the time of the

Court of Appeal’s decision, as AEDPA requires in order for

the state court’s error to be a basis for declining deference.

The state argues that because Johnson was decided in 2005,

three years after the state court of appeal decided this case,

“there was no United States Supreme Court decision” reject-

JOHNSON v. FINN 20859

ing as erroneous California’s “longstanding holdings” that a

strong likelihood and a reasonable inference had the identical

meaning. Br. at 35-36. But in Williams, we rejected precisely

the same argument: there, we held that we did not owe defer-

ence to state court decisions issued prior to Johnson, and

using the “strong likelihood” standard, because “the Supreme

Court clearly indicates in Johnson that it is clarifying Batson,

not making new law.” 432 F.3d at 1105 n.5; see Johnson, 545

U.S. at 169 (observing that “Batson . . . on its own terms pro-

vides no support for California’s rule”). Williams explains

why the federal law that the California Court of Appeal

applied unreasonably here is Batson itself, not just its restate-

ment in Johnson. We are bound by, and we agree with, Wil-

liams’s holding that “where the state court used the ‘strong

likelihood’ standard for reviewing a Batson claim, the state

court’s findings are not entitled to deference.” Id. at 1105 (cit-

ing Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004));

see also Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.

2002); Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.

2001).

In an appeal of the denial of a habeas petition without

AEDPA deference, “we review de novo questions of law and

mixed questions of law and fact. Factual findings and credi-

bility determinations that were not made by the [state] trial

court but were made by the district court after an evidentiary

hearing are reviewed for clear error.” Crittenden, 624 F.3d at

954 (citations omitted).1 We review de novo the question

whether the district judge deprived Johnson and Thompson of

1

The evidentiary hearing in this case was not of the sort barred by Cul-

len v. Pinholster, 131 S. Ct. 1388 (2011), which held that “review under

[28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits.” Id. at 1398. If Pinholster

were applicable, it would have been improper for the district or magistrate

judge to take new evidence in determining whether the state courts’ han-

dling of the petitioners’ Batson claim “was contrary to, or involved an

unreasonable application of, clearly established Federal law,” 28 U.S.C.

§ 2254(d)(1). But because the magistrate judge properly determined that

the California Court of Appeal’s decision did not qualify for deference

under that provision, it was both lawful and necessary—just as in

Crittenden—to conduct an evidentiary hearing in order to resolve the Bat-

son claim by addressing the issues that the state court (as a result of its

erroneous analysis) failed to reach.

20860 JOHNSON v. FINN

the process that they were constitutionally due when it

rejected the magistrate judge’s credibility determination with-

out conducting a new evidentiary hearing. Ridgway, 300 F.3d

at 1155.

B

Having concluded that we owe no AEDPA deference to the

state courts’ determination that Johnson and Thompson failed

to make a prima facie showing of racial discrimination, we

must determine—de novo, Crittenden, 624 F.3d at 954 —

whether the petitioners have shown that the evidence relating

to the voir dire process at their trial, including all relevant cir-

cumstances, raises an inference of racial bias in the prosecu-

tion’s exercise of its peremptory strikes.

[3] Batson explained how a defendant may make such a

case:

[A] defendant may establish a prima facie case of

purposeful discrimination in selection of the petit

jury solely on evidence concerning the prosecutor’s

exercise of peremptory challenges at the defendant’s

trial. To establish such a case, the defendant first

must show that he is a member of a cognizable racial

group, and that the prosecutor has exercised peremp-

tory challenges to remove from the venire members

of the defendant’s race. Second, the defendant is

entitled to rely on the fact, as to which there can be

no dispute, that peremptory challenges constitute a

jury selection practice that permits “those to discrim-

inate who are of a mind to discriminate.” Finally, the

defendant must show that these facts and any other

relevant circumstances raise an inference that the

prosecutor used that practice to exclude the venire-

men from the petit jury on account of their race.

JOHNSON v. FINN 20861

476 U.S. at 96 (citations omitted). We have recognized that

“a defendant can make a prima facie showing based on statis-

tical disparities alone.” Paulino, 371 F.3d at 1091.

[4] The fact that “three of the prosecution’s peremptory

challenges were exercised against the only three African-

Americans in the jury pool,” is enough to establish a prima

facie case of racial discrimination. In multiple cases, we have

held that a prima facie showing of racial discrimination had

been made where prosecutors had stricken a lesser proportion

of the racial minorities in a venire pool. See, e.g., Paulino,

371 F.3d at 1091 (finding a prima facie showing where “the

prosecution had struck five out of six possible black jurors”);

Fernandez, 286 F.3d at 1078 (finding a prima facie showing

where “[t]he prosecutor [had] struck four out of seven . . .

Hispanics” and “the only two prospective African-American

jurors”); Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995),

overruled on other grounds by Tolbert v. Page, 182 F.3d 677,

681 (9th Cir.1999) (en banc) (finding a prima facie showing

where “the prosecutor had used peremptory challenges to

exclude five African-Americans out of a possible nine

African-American venirepersons”). As the Supreme Court

observed in Miller-El v. Cockrell, 537 U.S. 322 (2003), in

which the prosecutor had exercised peremptory strikes against

ten out of the eleven black jurors not removed by strikes for

cause or by agreement, “[h]appenstance is unlikely to produce

this disparity.” Id. at 342. The same is true where the prosecu-

tor used peremptory strikes to remove all of the black jurors

from the venire pool.

[5] The Supreme Court has made clear that it “did not

intend the first step” of the Batson inquiry “to be so onerous

that a defendant would have to persuade the judge—on the

basis of all the facts, some of which are impossible for the

defendant to know with certainty—that the challenge was

more likely than not the product of purposeful discrimina-

tion.” Johnson, 545 U.S. at 170. A defendant makes a prima

facie showing at Batson’s first step merely by “producing evi-

20862 JOHNSON v. FINN

dence sufficient to permit the trial judge to draw an inference

that discrimination has occurred.” Id. (emphasis added). The

prosecutor’s use of peremptory strikes to remove all of the

black potential jurors in the venire pool for Johnson and

Thompson’s trial clearly raised a reasonable inference of

racial discrimination.

It is true that statistical disparity alone does not end the

inquiry; Batson held that we must “consider all relevant cir-

cumstances.” 476 U.S. at 96 (emphasis added). As we noted

earlier, however, such “ ‘relevant circumstances’ must do

more than indicate that the record would support race-neutral

reasons for the questioned challenges.” Williams, 432 F.3d at

1108. The state obviously misunderstands that principle in

presenting, as “relevant circumstances,” the argument that

“there were numerous legitimate race-neutral reasons for the

prosecutor to excuse each of the . . . prospective jurors,” Br.

at 37. The consideration that the state urges belongs at the

later steps of the Batson inquiry, when the prosecutor is

required to proffer race-neutral reasons for the strike and the

court is required to determine whether those explanations are

credible.2 The existence of “legitimate race-neutral reasons”

for a peremptory strike, id., can rebut at Batson’s second and

third steps the prima facie showing of racial discrimination

that has been made at the first step. But it cannot negate the

existence of a prima facie showing in the first instance, or else

the Supreme Court’s repeated guidance about the minimal

burden of such a showing would be rendered meaningless.

2

See Tolbert v. Page, 182 F.3d 677, 680 (9th Cir. 1999) (en banc)

(“First, the [Batson] movant must make a prima facie showing that the

prosecution has engaged in the discriminatory use of a peremptory chal-

lenge . . . Second, if the trial court determines a prima facie case has been

established, the burden shifts to the prosecution to articulate a race-neutral

explanation for challenging the juror in question. Third, if the prosecution

provides such an explanation, the trial court must then rule whether the

movant has carried his or her burden of proving the existence of purpose-

ful discrimination.”).

JOHNSON v. FINN 20863

The state’s other argument on this point is similarly incor-

rect. Because the magistrate and district judges “ultimately

acknowledged the propriety of excusing the second and third

prospective jurors,” the state argues, we are “left with a statis-

tical analysis in which the prosecutor used his seventh

peremptory challenge to excuse a lone African American pro-

spective juror.” Br. at 37. But the state’s argument again

ignores the difference between step one and the later steps of

the Batson framework. It is true that the magistrate judge,

having found a prima facie case of racial discrimination at

step one, concluded at step three that the prosecution had

stricken two black jurors for genuine race-neutral reasons.

Contrary to the state’s understanding, however, that ultimate

conclusion does not negate the existence of a prima facie case

in the first place. The Batson framework is one of burden-

shifting. The party that objects (here, the defendant) bears the

burden at steps one and three; the other side (here, the state)

bears the burden at step two. These steps must be taken in the

proper sequence. That a defendant fails to meet his burden at

step three does not mean that he failed to meet his burden at

step one. The magistrate and district judges found that the

petitioners did not meet their ultimate burden of showing that

the prosecutor’s race-neutral reasons for striking the two

black jurors other than W.J. were pretextual, notwithstanding

the prima facie showing that these jurors were stricken for

illegitimate reasons. The state is mistaken in arguing that this

ultimate conclusion as to two jurors negates the district

court’s finding of a prima facie case of racial discrimination

as to all three black jurors.

[6] On de novo review, we agree with the magistrate and

district judges that Johnson and Thompson did make a prima

facie showing of racial discrimination at the first step of the

Batson framework. It was therefore the duty of the magistrate

judge to conduct an evidentiary hearing, in order to replicate

on habeas review the inquiry that the state trial court should

have conducted in the first place—requiring the prosecutor to

assert race-neutral reasons for the strike (at Batson step two)

20864 JOHNSON v. FINN

and determining (at Batson step three) whether the asserted

reasons were in fact genuine rather than pretextual. Because

the reasons that the prosecutor proffered for striking W.J.

were race-neutral on their face, we proceed to consider the

central question in this appeal: whether the district judge

properly handled the inquiry required by Batson’s third step.

III

[7] Under 28 U.S.C. § 636(b)(1), when a district judge del-

egates to a magistrate judge the task of conducting an eviden-

tiary hearing concerning a habeas petition, the district judge

is to “make a de novo determination of those portions of the

[magistrate judge’s] report or specified proposed findings or

recommendations to which objection is made.” Id.

§ 636(b)(1)(C). In two cases concerning magistrate judge rul-

ings on motions to suppress, however, we have held as a mat-

ter of constitutional due process “that a district court must

conduct its own evidentiary hearing before rejecting a magis-

trate judge’s credibility findings.” United States v. Ridgway,

300 F.3d 1153, 1154 (9th Cir. 2002).3 We initially adopted

this rule in United States v. Bergera, 512 F.2d 391 (9th Cir.

1975), explaining that a requirement for “the district court to

rehear the evidence if it decides not to follow the recommen-

dations of the magistrate insures that any decision on the facts

will be the result of first-hand observation of witnesses and

evidence.” Id. at 393. As we stated in Bergera, “[t]he law has

long recognized the value of these more immediate impres-

sions, and gives them a measure of protection from easy mod-

ifications made on the basis of dry records.” Id. at 393.

Ridgway reaffirmed this rule, and explained its constitu-

tional foundation, in light of the Supreme Court’s decision in

3

Magistrate judge rulings on motions to suppress, like those concerning

habeas petitions, fall within the class of rulings authorized by 28 U.S.C.

§ 636(b)(1)(B), all of which the district judge reviews de novo under

§ 636(b)(1)(C). See Ridgway, 300 F.3d at 1154.

JOHNSON v. FINN 20865

United States v. Raddatz, 447 U.S. 667 (1980). The Court

held in Raddatz that a district judge could accept a magistrate

judge’s determination of credibility without holding a new

evidentiary hearing, while expressing doubt as to whether a

district judge could reject a magistrate judge’s finding in

these circumstances. The Court stated in a footnote that it

found the latter prospect troubling: “[W]e assume it is

unlikely that a district judge would reject a magistrate’s pro-

posed findings on credibility when those findings are disposi-

tive and substitute the judge’s own appraisal; to do so without

seeing and hearing the witness or witnesses whose credibility

is in question could well give rise to serious questions which

we do not reach.” Id. at 681 n.7.

[8] Although we have not yet explicitly extended this doc-

trine beyond rulings on motions to suppress, its rationale

clearly applies to Batson motions by criminal defendants. As

the Supreme Court has explained, it is essential that judges

who rule at Batson’s third step have the opportunity to wit-

ness the prosecutor’s testimony in person: “In the typical

peremptory challenge inquiry, the decisive question will be

whether counsel’s race-neutral explanation for a peremptory

challenge should be believed. There will seldom be much evi-

dence bearing on that issue, and the best evidence often will

be the demeanor of the attorney who exercises the challenge.”

Hernandez v. New York, 500 U.S. 352, 365 (1991); see also

Gomez v. United States, 490 U.S. 858, 874-75 (1989) (“To

detect prejudices [during voir dire], . . . [t]he court . . . must

scrutinize not only spoken words but also gestures and atti-

tudes of all participants to ensure the jury’s impartiality.”);

United States v. You, 382 F.3d 958, 968 (9th Cir. 2004) (“A

trial court’s findings on purposeful discrimination rest largely

on credibility. Courts measure credibility ‘by, among other

factors, the prosecutor’s demeanor . . . .’ ” (citation omitted)).

“There can be no doubt,” we have held, “that seeing a witness

testify live assists the finder of fact in evaluating the witness’s

credibility. . . . Live testimony enables the finder of fact to see

the witness’s physical reactions to questions, to assess the wit-

20866 JOHNSON v. FINN

ness’s demeanor, and to hear the tone of the witness’s voice—

matters that cannot be gleaned from a written transcript.”

United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995). A

district judge who rejects a magistrate judge’s finding as to

the credibility of a prosecutor’s explanation for a peremptory

strike, without seeing the prosecutor testify in person, is just

as hampered by the deficiencies of a cold record as one who

rejects a magistrate judge’s finding as to the credibility of tes-

timony in a suppression hearing.

Indeed, the Supreme Court has suggested in two cases that

the considerations discussed in the Raddatz footnote extend to

the context of voir dire. First, in holding that magistrate

judges could not preside over voir dire in a felony trial with-

out the defendant’s consent, the Court commented in a foot-

note:

Like motions to suppress evidence, petitions for

writs of habeas corpus, and other dispositive matters

entailing evidentiary hearings, jury selection requires

the adjudicator to observe witnesses, make credibil-

ity determinations, and weigh contradictory evi-

dence. Clearly it is more difficult to review the

correctness of a magistrate’s decisions on these mat-

ters than on pretrial matters, such as discovery

motions, decided solely by reference to documents.

Gomez v. United States, 490 U.S. 858, 874 n.27 (1989) (cita-

tion omitted). Then, in its subsequent and related holding that

magistrate judges do have the power to supervise felony voir

dire with the defendant’s consent, the Court acknowledged

that “de novo review by the district court” might in certain

cases “provide an inadequate substitute for the Article III

judge’s actual supervision of the voir dire.” Peretz v. United

States, 501 U.S. 923, 939 (1991). But “the same,” it said, was

“true of a magistrate’s determination in a suppression hearing,

which often turns on the credibility of witnesses,” and which

JOHNSON v. FINN 20867

Raddatz expressly authorized. Id.4 In other words, the Court

in these cases understood the constitutional problem in the

voir dire and suppression contexts to be the same: because a

determination in these matters generally relies on the ability

to observe a witness, it is difficult—and constitutionally

troubling—for a district judge to disagree with the determina-

tion reached by a magistrate judge without first hearing the

relevant testimony in person.

[9] Taking the Supreme Court’s various hints, the First,

Second, Third, Fifth, and Eleventh Circuits have all held that

a district judge may not reject the credibility finding of a mag-

istrate judge without holding a new evidentiary hearing. See

Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980)

(“[I]n a situation involving the constitutional rights of a crimi-

nal defendant, we hold that the district judge should not enter

an order inconsistent with the credibility choices made by the

magistrate without personally hearing the live testimony of

the witnesses whose testimony is determinative.” (footnote

omitted)); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995) (“A

district court may not reject a finding of fact by a magistrate

judge without an evidentiary hearing, where the finding is

based on the credibility of a witness testifying before the mag-

istrate judge and the finding is dispositive of an application

for post-conviction relief involving the constitutional rights of

a criminal defendant.”); Cullen v. United States, 194 F.3d

401, 407 (2d Cir. 1999) (“[I]t appears that a district judge

should normally not reject a proposed finding of a magistrate

judge that rests on a credibility finding without having the

witness testify before the judge.”); United States v.

Hernandez-Rodriguez, 443 F.3d 138, 148 (1st Cir. 2006)

(“[W]e join our sister circuits when we find that, absent spe-

cial circumstances, a district judge may not reject the credibil-

ity determination of a magistrate judge without first hearing

4

As in the Raddatz footnote, the Court in Peretz “presume[d] . . . that

district judges [would] handle such cases properly if and when they [were

to] arise.” Id.

20868 JOHNSON v. FINN

the testimony that was the basis for that determination.”);

United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir.

2001) (“[G]enerally a district court must rehear the disputed

testimony before rejecting a magistrate judge’s credibility deter-

minations.”).5 We agree with these circuits that the rationale

of Ridgway and the Raddatz footnote applies generally to

determinations affecting the rights of a criminal defendant and

involving a credibility finding. A district court may not in

such instances reject a magistrate judge’s proposed credibility

determination without hearing and seeing the testimony of the

relevant witnesses.

The state’s only response to Johnson and Thompson’s argu-

ments concerning Ridgway is to assert, in a single footnote,

that “Ridgway is wholly inapplicable here because the Magis-

trate Judge’s factual findings regarding the prosecutor were

purely based upon his crabbed comparative analysis and not

upon any observations of the prosecutor’s demeanor while

testifying.” Br. at 18 n.8. We explicitly rejected this argument,

however, in Ridgway itself. There, the district judge had

asserted—much as the state does here—that the relevant wit-

ness’s credibility “could be assessed by reviewing the cold

record, without personally observing the witness, because ‘the

magistrate judge ha[d] founded his credibility determination

upon supposed discrepancies, not the witness’s demeanor or

any other attribute which is unavailable in the paper record.’ ”

300 F.3d at 1155. We disagreed, on the basis that “[t]he broad

rule announced in Bergera contains no exceptions,” 300 F.3d

at 1157, and we believe our holding in Bergera applies with

equal force in the Batson context.

5

The Sixth, Seventh, Eighth, and Tenth Circuits have found it unneces-

sary to reach the question in cases before them. See United States v. Bai-

ley, 302 F.3d 652, 657 n.5 (6th Cir. 2002); United States v. Ornelas-

Ledesma, 16 F.3d 714, 720 (7th Cir. 1994), vacated on other grounds,

Ornelas v. United States, 517 U.S. 690 (1996); United States v. Black

Bear, 422 F.3d 658, 662 n.1 (8th Cir. 2005); United States v. Orrego-

Fernandez, 78 F.3d 1497, 1502 (10th Cir. 1996). No circuits appear to

have rejected the rule in question.

JOHNSON v. FINN 20869

[10] Even aside from its conflict with our precedent, the

state’s argument is erroneous because a district judge’s review

of a magistrate judge’s credibility finding is in no way limited

to the specific reasons offered by the magistrate judge. A

magistrate judge might choose to explain his adverse credibil-

ity finding on the basis of the paper record, even though he

also considers a witness’s demeanor to be suspect. A credibil-

ity determination—particularly in a Batson challenge—

ordinarily involves the fact-finder’s assessment of the wit-

ness’s demeanor as well as his review of the record. See Her-

nandez, 500 U.S. at 365; see also Mejia, 69 F.3d at 315. A

district judge who disagrees with the magistrate judge’s writ-

ten analysis of the record might nonetheless, if he took the

time to observe the witness in person, agree with the magis-

trate judge’s unwritten assessment of the witness’s demeanor

and affirm the magistrate judge’s overall credibility determi-

nation on that basis. “If the district judge doubts the credibil-

ity determination of the magistrate, only by hearing the

testimony himself does he have an adequate basis on which

to base his decision.” Louis, 630 F.2d at 1110.

[11] We therefore hold that the district judge deprived

Johnson and Thompson of the process that they were constitu-

tionally due, when he rejected the magistrate judge’s pro-

posed finding as to the prosecutor’s lack of credibility without

observing the prosecutor’s testimony in person. “The guaran-

tees of due process call for a ‘hearing appropriate to the

nature of the case.’ ” Raddatz, 447 U.S. at 677 (quoting Mul-

lane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313

(1950)). The nature of this case, like every case that reaches

the third step of the Batson analysis, demands that the ulti-

mate trier of fact hear testimony in person: “the decisive ques-

tion” is “whether counsel’s race-neutral explanation for a

peremptory challenge should be believed,” and “the best evi-

dence” regarding that question “will be the demeanor of the

20870 JOHNSON v. FINN

attorney who exercises the challenge.” Hernandez, 500 U.S.

at 365.6

[12] Johnson and Thompson were constitutionally entitled

to have the district judge observe the prosecutor’s demeanor

before rejecting their Batson claim. Because the petitioners’

interest in the vindication of their rights is immense, because

the administrative burden of an additional hearing is relatively

minor, and because a credibility determination based on a

cold record is substantially more likely to be in error than one

based on an in-person evaluation of a witness, the district

judge deprived Johnson and Thompson of due process when

he declined to afford them a new evidentiary hearing. See

Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (enumerating

the factors to be weighed in a constitutional due process anal-

ysis); Louis, 630 F.2d at 1110 (applying the Mathews factors

in holding that a district judge may not reject a magistrate

judge’s credibility determination without holding a new evi-

dentiary hearing).

IV

[13] Johnson and Thompson contend that the proper rem-

edy is for us to look through the district judge’s order to

review for clear error the magistrate judge’s credibility deter-

mination. We disagree. See Cullen, 194 F.3d at 407 (holding

6

The prosecutor’s demeanor might be particularly useful evidence of his

credibility here, where his testimony included the “recit[ation of] a laun-

dry list of reasons,” for the peremptory strike of W.J.—a few of which

verge on “implausible or fantastic,” Purkett v. Elem, 514 U.S. 765, 768

(1998); many of which were not subjects of inquiry by the prosecutor dur-

ing voir dire, cf. Ali v. Hickman, 584 F.3d 1174, 1192 (9th Cir. 2009); and

some of which are unlikely to hold up under a comparative juror analysis,

cf. Green v. Lamarque, 532 F.3d 1028, 1030 n.3 (9th Cir. 2008). Because

“[a] Batson challenge does not call for a mere exercise in thinking up any

rational basis,” Miller-El v. Dretke, 545 U.S. 231, 252 (2005), the district

judge must “evaluate meaningfully the persuasiveness of the prosecutor’s

[race]-neutral explanations,” United States v. Alanis, 335 F.3d 965, 969

(9th Cir. 2003).

JOHNSON v. FINN 20871

that simply to review the magistrate judge’s determination

“would elevate the recommended ruling of the Magistrate

Judge to a final ruling and undermine section 636(b)(1)’s

requirement of a de novo determination by the District

Court”). As in Ridgway, we vacate the district judge’s order

and remand for the district judge either to adopt the magistrate

judge’s credibility determination or to conduct a new eviden-

tiary hearing.7 We retain jurisdiction over any appeal from the

judgment on remand.

VACATED and REMANDED.

7

The First, Second, and Third Circuits have in similar cases ordered that

a different district judge conduct the required hearing on remand. See Cul-

len, 194 F.3d at 408; Hernandez-Rodriguez, 443 F.3d at 148; Boyd v.

Waymart, 579 F.3d 330, 333 (3d Cir. 2009) (en banc) (per curiam); see

also id. at 339 & n.10 (Scirica, C.J., concurring) (citing Cullen, 194 F.3d

at 408). Because Johnson and Thompson have not asked that this case be

reassigned, however, and the parties have not briefed the issue, we do not

decide whether that remedy would be appropriate here. Nor do we express

any view as to whether reassignment is the proper remedy in similar cases

when requested by the appellant.