Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

WARDLAW, Circuit Judge,

with whom PAEZ and BERZON, Circuit Judges, join, concurring:

I join in the majority’s well-reasoned opinion; the trial court abdicated its duty under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), to determine pretext, with particularly egregious results here, in the face of raw pros- *372 ecutorial bias against Native Americans. I write separately to note my view that inherent in the Supreme Court’s equal protection jurisprudence, which spawned Bat-son and its progeny, the central question is whether the challenged decision was made with a racially discriminatory purpose. Washington v. Davis, 426 U.S. 229, 239 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). Where a prosecutor articulates both race-based and race-neutral reasons for striking a veniremember, Supreme Court precedent requires application of “but for” mixed-motive analysis to determine whether the strike violates the Equal Protection Clause. I would therefore grant habeas relief on the alternative ground that the California Court of Appeal’s failure to apply mixed-motive analysis was an unreasonable application of clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254 (d)(1).

I

The Supreme Court has created a generic framework for determining whether a decision ostensibly resulting from a race neutral purpose in fact resulted from a racially discriminatory purpose. Under this single-motive or pretext approach, the alleged victim of discrimination must make out a prima facie case of discrimination; the perpetrator must offer a non-discriminatory explanation for the decision; and the victim must then demonstrate that the explanation is pretextual, i.e., that the decision was in fact motivated by a discriminatory purpose. See, e.g., Batson, 476 U.S. at 96-98 , 106 S.Ct. 1712 (peremptory challenge claim); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981) (employment discrimination claim). Throughout, the ultimate burden of persuasion never shifts from the party alleging discrimination. Burdine, 450 U.S. at 253 , 101 S.Ct. 1089 .

However, where both race-based and race-neutral reasons have motivated a challenged decision, a supplementary analysis applies. In these situations, the Court allows those accused of unlawful discrimination to prevail, despite clear evidence of racially discriminatory motivation, if they can show that the challenged decision would have been made even absent the impermissible motivation, or, put another way, that the discriminatory motivation was not a “but for” cause of the challenged decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 , 270 n. 21, 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977). This dual- or mixed-motive analysis is not inconsistent with the approach used in single-motive cases, but rather supplements it where mixed motives exist. See Costa v. Desert Place, Inc., 299 F.3d 838, 857 (9th Cir.2002) (en banc), aff'd, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003).

Batson is an Equal Protection Clause case, which emerged from and explicitly located itself within equal protection jurisprudence. See Batson, 476 U.S. at 90 , 106 S.Ct. 1712 (equating jury discrimination cases with “any case alleging a violation of the Equal Protection Clause”); see also id. at 93-95 , 106 S.Ct. 1712 & n. 18 (quoting Davis, 426 U.S. at 240 , 96 S.Ct. 2040 , and Arlington Heights, 429 U.S. at 266 , 97 S.Ct. 555 ); id. at 98, 106 S.Ct. 1712 & nn. 20-21 (quoting Burdine, 450 U.S. at 258 , 101 S.Ct. 1089 ). Batson’s three-step framework for evaluating claims of racial discrimination in the exercise of peremptory challenges tracks that used in other contexts to determine whether a decision was impermissibly motivated by race:

First, a defendant must make a prima facie showing that a peremptory chai- *373 lenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003) (citing Batson, 476 U.S. at 96-98 , 106 S.Ct. 1712 ); cf. Burdine, 450 U.S. at 252-53 , 101 S.Ct. 1089 (three-step framework for employment discrimination claims). Moreover, the purpose of Batson’s framework is identical to that of the generic equal protection and anti-discrimination framework: to determine whether a decision was made “on account of’ an impermissible basis, such as race. Batson, 476 U.S. at 96 , 106 S.Ct. 1712 .

Perhaps because rare will be a prosecu-torial admission at step two of the Batson inquiry that a challenge was race-based, the Supreme Court has yet to have occasion to apply mixed-motive analysis specifically in the Batson context. But that does not mean that the Court’s use of mixed-motive analysis in other discrimination cases does not control the analysis here. The Court has consistently and repeatedly applied mixed-motive analysis where both permissible and impermissible motivations are present. See, e.g., Desert Palace, 539 U.S. at 94-95 , 123 S.Ct. 2148 (Title VII claim); NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 , 103 S.Ct. 2469 , 76 L.Ed.2d 667 (1983) (National Labor Relations Act claim), overruled in part by Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 , 114 S.Ct. 2251 , 129 L.Ed.2d 221 (1994); Mt. Healthy, 429 U.S. at 287 , 97 S.Ct. 568 (Equal Protection Clause claim).

Where, as here, a decisionmaker provides both race-based and race-neutral reasons for a decision challenged under the Equal Protection Clause, clearly established federal law requires the decision-maker to show that he would have made the decision even in the absence of any racially discriminatory motivation. See, e.g., Mt. Healthy, 429 U.S. at 287 , 97 S.Ct. 568 . In Batson cases, courts may apply mixed-motive analysis at step two, and hold that a prosecutor who cannot show that he would have struck the venire-member in question absent the admitted racially discriminatory motivation has failed “to explain adequately the racial exclusion” by demonstrating that “permissible racially neutral selection criteria and procedures” justified the strike. Batson, 476 U.S. at 94 , 106 S.Ct. 1712 (internal quotation marks omitted). Alternatively, courts may apply mixed-motive analysis at step three, where a defendant will succeed in establishing purposeful discrimination if the prosecutor cannot demonstrate that he would have exercised the strike absent his discriminatory motive. See id. at 98 , 106 S.Ct. 1712 . Either way, a court may not allow a mixed-motive rationale to survive equal protection scrutiny unless the prosecutor can establish by a preponderance of the evidence that he would have reached the same decision even in the absence of impermissible race-based motivation. See Mt. Healthy, 429 U.S. at 287 , 97 S.Ct. 568 .

Every one of our sister circuits to have decided Batson cases in which mixed motives are present has come to this conclusion. See Howard v. Senkowski, 986 F.2d 24, 27-30 (2d Cir.1993) (remanding for correct application of mixed-motive analysis on habeas review); Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir.2002) (approving correct application of mixed-motive analysis on habeas review); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir.1995) (remanding for correct application of mixed-motive analysis on direct review); United States *374 v. Darden, 70 F.3d 1507 , 1530-32 (8th Cir.1995) (approving correct application of mixed-motive analysis on direct review); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir.1996) (per curiam) (approving correct application of mixed-motive analysis on habeas review). The decisions of other federal courts “may be persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law,” particularly where the convergent holdings of several of our sister circuits reflect and apply clearly established federal law. Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir.2004) (internal quotation marks omitted). As the Second Circuit explained in Howard, Batson requires the application of mixed-motive analysis when mixed motives are present,

[s]ince dual motivation analysis was explicitly invoked by the Supreme Court in the context of determining racial motivation for purposes of adjudicating a challenge under the Equal Protection Clause, see Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. 555 , and since Batson equated jury discrimination claims with “any case alleging a violation of the Equal Protection Clause,” Batson, 476 U.S. at 90 , 106 S.Ct. 1712 ....

... In concluding that dual motivation analysis applies to a Batson challenge, we do no more than apply that analysis precisely as previously enunciated by the Supreme Court in prior dual motivation cases such as Arlington Heights and Price Waterhouse.

Howard, 986 F.2d at 28, 30 .

Purkett v. Elem is not to the contrary, notwithstanding its statement that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” 514 U.S. 765, 768 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995) (per curiam). Purkett was not a mixed-motive case (the prosecutor offered only race-neutral reasons for his strikes), and there is no indication that the Court considered a situation in which a prosecutor proffers both race-based and race-neutral reasons at step two of the Batson inquiry.

Purkett addressed the Eighth Circuit’s decision to evaluate and reject the prosecutor’s facially race-neutral (though implausible) justifications at step two of the Batson inquiry, rather than to proceed to step three to evaluate the persuasiveness of the defendant’s claim. 514 U.S. at 767 . In reversing the Eighth Circuit, Purkett held that even implausible justifications for challenged strikes satisfy the prosecutor’s burden at step two, so long as those justifications are race-neutral. Id. at 769 , 115 S.Ct. 1769 ; see also Rice v. Collins , — - U.S. -, -, 126 S.Ct. 969, 974 , 163 L.Ed.2d 824 (2006) (“[S]o long as the reason is not inherently discriminatory, it suffices.” (citing Purkett, 514 U.S. at 767-68 , 115 S.Ct. 1769 )). That “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the [victim of the alleged discrimination]” in single-motive Batson cases, Purkett, 514 U.S. at 768 , 115 S.Ct. 1769 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993)), just as in single-motive equal protection or Title VII cases, see Hicks, 509 U.S. at 511 , 113 S.Ct. 2742 , does not alter the fact that mixed-motive analysis must be used when prosecutors or civil rights defendants offer racially motivated justifications for their conduct in Batson cases, see Plaster, 57 F.3d at 420-22 , just as in equal protection or Title VII cases, see Desert Palace, 539 U.S. at 94-95 , 123 S.Ct. 2148 ; Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. 555 . There is no support for the dissent’s assertion that Purkett some *375 how excepted Batson from the Supreme Court’s equal protection jurisprudence and held that mixed-motive analysis is not appropriate when a prosecutor provides racially discriminatory reasons at step two. See Plaster, 57 F.3d at 420 -22 (citing Pvtrkett and holding that mixed-motive analysis is required in Batson cases).

Here, neither the state trial court nor the California Court of Appeal applied mixed-motive analysis to the prosecutor’s strikes of Native American venirewomen, despite the prosecutor’s avowed racially discriminatory motive for striking Rindels. In light of the Supreme Court’s unwavering application of mixed-motive analysis in evaluating whether a mixed-motive decision is lawful, and considering Batson’s place in the Supreme Court’s equal protection jurisprudence, this failure to apply mixed-motive analysis constituted an “un-reasonabl[e] refus[al]” to extend clearly established federal law, as determined by the Supreme Court, to a context where it should apply. Williams v. Taylor, 529 U.S. 362, 407 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

II

The Supreme Court’s equal protection jurisprudence required the California Court of Appeal not only to apply mixed-motive analysis, but to apply that analysis correctly. It did neither. For two reasons, and contrary to the State’s assertion, the Court of Appeal’s statement that “the trial court could reasonably have found ... that the prosecutor’s ‘pre-dominant motive’ in excluding juror Rindels was not ethnic or racial bias” does not constitute a proper application of mixed-motive analysis.

Imagine a prosecutor considering using a strike against either an African-American or a white venirewoman because each has a spouse who has served time in prison. Imagine that the prosecutor ultimately strikes the African-American woman instead of the white woman because of her race. Although the stricken venirewom-an’s experience with the criminal justice system is the predominant motive driving the strike, her race is the but-for cause. Thus a partially race-based strike may pass the Court of Appeal’s “predominant motive” standard but fail mixed-motive analysis. Moreover, mixed-motive analysis shifts the burden to the prosecutor to demonstrate that veniremembers would have been challenged irrespective of their race, and there is no indication that the Court of Appeal shifted the burden here.

More fundamentally, it is questionable whether the state courts even made a third-step Batson finding in this case. After the prosecutor, Dikeman, offered his reasons for striking all three Native American venirewomen, the trial court stated that

there is sufficient justification to support the peremptory challenges. With regard to Miss Rindels, my understanding of what Mr. Dikeman said is that — one of them is at least that she worked for the tribe, not because she was one of the tribe, but she worked for the tribe. That’s entirely different....

The trial court thus interpreted the comments regarding Rindels’s employment to be race-neutral, an interpretation the Court of Appeal recognized was unquestionably erroneous. Because the trial court misinterpreted the prosecutor’s proffered reasons, it could not have found that the prosecutor’s race-neutral motivations predominated over his race-based motivations; all the trial court saw were race-neutral motivations.

Nor is it clear that the Court of Appeal made a predominant motive finding in approving the trial court’s Batson analysis. The Court of Appeal merely stated that *376 “the trial court could reasonably have found ... that the prosecutor’s ‘predominant motive’ in excluding juror Rindels was not ethnic or racial bias.” (Emphasis added.) But because the trial court did not make a predominant motive finding, the Court of Appeal’s statement that the trial court “could reasonably have” made such a finding is unhelpful in determining whether the trial court in fact made that finding. Notwithstanding the dissent’s attempt to conjure up a state court finding of fact to which it seeks to defer, neither the trial court nor the Court of Appeal ever weighed the prosecutor’s race-based and race-neutral reasons and determined that the prosecutor’s motive in striking Rindels was “predominantly” race-neutral. Thus, it does not appear that there is any true finding of fact for us to review. The appropriate remedy would be to remand to the state court so that it may correctly apply Batson in the first instance.

Were we to remand, I would require the state court to apply mixed-motive analysis to the prosecutor’s strike of each of the three Native American venir ewomen, not just to his strike of Rindels. Although the prosecutor launched his anti-Native-American tirade in explaining his strike of Rin-dels, his contempt for and stark prejudice against Native Americans could not have been limited only to Rindels. Yet the Court of Appeal cursorily reviewed the strikes of Native American venir ewomen Lawton and Smithfield without mentioning the prosecutor’s racial bias. The Court of Appeal credited the prosecutor’s explanation that he struck Lawton for a number of reasons, including the fact that she was “weak” and “not overly educated,” and that he struck Smithfield because her husband was a recovering alcoholic, like the defendants. This falls far short of the required mixed-motive analysis.

Ill

For these reasons, I would hold that the California Court of Appeal’s failure to apply mixed-motive analysis was an unreasonable application of clearly established federal law, as determined by the Supreme Court, and grant Kesser’s habeas petition under 28 U.S.C. § 2254 (d)(1).