Petition for Writ of Certiorari — Kirk Saintcalle, Petitioner v. Jeffrey A. Uttecht, Warden

Supreme Court briefAug 12, 2019

Ask Donna

What actually matters in this document.

Text

INDEX TO APPENDIX

Appendix A: Memorandum Opinion, Kirk Ricardo Saintcalle v. Jeffrey Uttecht,

No. 18-35107 (9th Cir. May 13, 2019) .............................................................. 1a

Appendix B: Dissenting Opinion, Kirk Ricardo Saintcalle v. Jeffrey Uttecht,

No. 18-35107 (9th Cir. May 13, 2019) .............................................................. 9a

Appendix C: Order Adopting Report and Recommendation, Kirk Ricardo Saintcalle

v. Jeffrey Uttecht, No. C15-0156-BJR-MAT (W.D. Wash. Jan. 16, 2018) ..... 12a

Appendix D: Report and Recommendation, Kirk Ricardo Saintcalle v. Jeffrey

Uttecht, No. C15-0156-BJR-MAT (W.D. Wash. Oct. 12, 2017)...................... 34a

Appendix E: Ruling Denying Review, In re the Personal Restraint of Kirk Ricardo

Saintcalle, No. 93004-0 (Wash. Sup. Ct. Jan. 5, 2017) .................................. 55a

Appendix F: Order of Dismissal, In re the Personal Restraint of Kirk Ricardo

Saintcalle, No. 73189-1-1 (Wash. Ct. App., Div. 1, Mar. 15, 2016) .............. 56a

Appendix G: Published Opinion, State of Washington v. Kirk Ricardo Saintcalle,

No. 86257-5 (Wash. Sup. Ct. Aug. 1, 2013) .................................................... 62a

Appendix H: Unpublished Opinion, State of Washington v. Kirk Ricardo Saintcalle,

No. 64467-0-I (Wash. Ct. App., Div. 1, June 27, 2011) ............................... 115a

Appendix I: Excerpts of Record Pages 387–388, Oral Ruling of Judge James Rogers

on Batson Challenge .................................................................................... 126a

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 1 of 8

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

MAY 13 2019

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

KIRK SAINTCALLE,

No.

Petitioner-Appellant,

U.S. COURT OF APPEALS

18-35107

D.C. No. 2:15-cv-00156-BJR

MEMORANDUM*

JEFFREY A. UTTECHT, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted March 6, 2019

Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.

Petitioner-Appellant Kirk Saintcalle challenges his state court convictions

for first-degree murder and second-degree assault on the ground that, under Batson

v. Kentucky, 476 U.S. 79 (1986), the State’s peremptory strike of the only AfricanAmerican member of the venire—Juror No. 34—violated his Fourteenth

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Dean D. Pregerson, United States District Judge for

the Central District of California, sitting by designation.

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 2 of 8

Amendment right to equal protection. The district court denied Saintcalle’s

petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291

and 2253, and we affirm.

Saintcalle first contends that the Washington State Supreme Court’s

decision affirming his conviction “was contrary to . . . clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). He contends that the Washington State Supreme Court required him

to show that the State’s peremptory strike of Juror No. 34 was motivated by

racism, whereas Batson and its progeny require a showing of “purposeful

discrimination,” 476 U.S. at 93–98.

The Washington State Supreme Court’s decision was not contrary to Batson.

The court correctly explained that Saintcalle had to show purposeful discrimination

to establish a Batson claim, State v. Saintcalle, 309 P.3d 326, 333 (Wash. 2013),

abrogated on other grounds by City of Seattle v. Erickson, 398 P.3d 1124 (Wash.

2017), and the court applied that standard, holding that “the trial court’s finding

that there was not purposeful discrimination was not clear error,” id. at 339. The

parts of the Washington State Supreme Court’s opinion discussing both the

governing law and its application do not impose any requirement that Saintcalle

show racism.

Instead, Saintcalle relies on portions of the Washington State Supreme

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 3 of 8

Court’s opinion where the court pondered possible shortcomings of Batson and

considered whether to adopt a different standard under Washington law. The

passages Saintcalle relies on, however, do not equate racism with purposeful

discrimination or hold that a party must show racism under Batson. Those

passages muse that “trial courts” may “interpret” or “understand” “purposeful

discrimination” to mean “conscious discrimination,” which could in turn “require[]

judges to accuse attorneys of deceit and racism . . . .” Saintcalle, 309 P.3d at 336,

338. But there is no indication that the Washington State Supreme Court shared

that interpretation or understanding. To the contrary, its rationale shows that the

court did not do so. In a footnote, the Washington State Supreme Court noted that

the argument that “purposeful discrimination” includes “unconscious bias,” as

opposed to just “conscious bias,” “makes sense.” Id. at 338 n.8. The court then

explained that “the trial court easily could have understood ‘purposeful

discrimination’ to include unconscious bias, and the facts of the case simply do not

compel a finding of purposeful discrimination even if considering unconscious

discrimination.” Id. at 338 n.8.

AEDPA “demands” that the Washington State Supreme Court’s “decision[]

be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

(per curiam). We hold that its decision was not “contrary to . . . clearly established

Federal law.” 28 U.S.C. § 2254(d)(1).

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 4 of 8

Saintcalle next contends that even if the Washington State Supreme

Court’s decision was not contrary to Batson, its finding that the State did not

purposefully discriminate against Juror No. 34 was an “unreasonable determination

of the facts.” 28 U.S.C. § 2254(d)(2). We disagree.

After Saintcalle raised a Batson challenge in the trial court to the State’s

peremptory strike of Juror No. 34, the State explained that it was concerned that

the evidence in the case would “overwhelm[]” Juror No. 34, because one of her

friends had recently been murdered, and that she would be lost as a juror. The trial

court found that this explanation was a sufficient, race-neutral reason to strike

Juror No. 34, and it denied Saintcalle’s Batson challenge. The Washington State

Supreme Court affirmed. Saintcalle, 309 P.3d at 339. It explained that “[i]n light

of [Juror No. 34’s] statements throughout voir dire, we defer to the trial court’s

factual finding that the prosecutor was justified in believing there was a realistic

possibility that she might have been ‘lost’ as a juror before the end of the case.”

Id. at 340.

The state courts’ findings are supported by the record. During voir dire,

Juror No. 34 stated that sitting on the panel was “hard” and “difficult” for her, and

that she did not “want to be a part of th[e] jury,” because her friend had been

murdered two weeks before. Juror No. 34 stated that she thought she could be fair

to both sides and that she thought she had a duty to serve on the jury and be fair.

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 5 of 8

But she ultimately explained that she did not know how she would react to the

evidence: “I mean, I have never been in this situation where I have lost someone.

You just went to the funeral. He is young. Only 24. And to be called to jury duty

to perhaps be on a jury of a murder suspect. I don’t know how I’m going to react.”

Given this testimony, it was reasonable to fear that Juror No. 34 would not last

through trial; she had just lost a friend and the trial was going to involve graphic

evidence. This is a race-neutral reason for striking her and we cannot say that the

Washington State Supreme Court unreasonably determined the facts in light of the

record. See Miller-El v. Dretke, 545 U.S. 231, 265 (2005); Taylor v. Maddox, 366

F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro,

745 F.3d 984, 999–1000 (9th Cir. 2014).

Moreover, as the Washington State Supreme Court pointed out, “[t]he trial

court observed the juror and agreed that she was having difficulties.” Saintcalle,

309 P.3d at 340. “[D]eterminations of . . . demeanor lie peculiarly within a trial

judge’s province.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (quotation

omitted).

The dissent contends that the State should have struck another juror—Juror

No. 24—if it was concerned about losing jurors during trial, and the State’s failure

to do so is evidence of pretext. Juror No. 24 and Juror No. 34, however, were not

similarly situated. Juror No. 24 testified that it would be “hard” to disregard

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 6 of 8

information the court instructed jurors to disregard, but the juror later clarified that

the juror “would follow the [court’s] instructions” on the matter. Juror No. 34, in

contrast, testified that she did not know how she was “going to react” emotionally

during trial given her friend’s recent death. The similarities between these jurors

are insufficient to find pretext. See Miller-El, 545 U.S. at 245; Castellanos v.

Small, 766 F.3d 1137, 1149 (9th Cir. 2014).

The dissent next contends that the State was “explicit about race playing a

role in striking Juror No. 34.” It cites the State’s statement that “the race of the

victim in this case is the same race as [Juror No. 34’s] friend.” But the overall

point of the argument being made—of which the statement was a small part—was

that photographs of the crime could be particularly disturbing to Juror No. 34.

Saintcalle contends that the State’s stated fear that it might lose Juror No. 34

during trial was “baseless and contradicted” by Juror No. 34’s own statements that

she “considered it her duty to serve on a jury and was willing to do so despite how

it would affect her emotionally.” The dissent similarly contends that the State’s

“explanation that the evidence might overwhelm Juror No. 34 mischaracterizes her

own testimony.” Although Juror No. 34 acknowledged that she felt she had a duty

to serve on the jury and be fair, she ultimately testified that she did not know how

she would react to the evidence. The State’s concern that Juror No. 34 would be

too emotionally affected to proceed through trial was not “baseless,” and the State

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 7 of 8

did not mischaracterize her testimony.

Saintcalle and the dissent next contend that Juror No. 34 was questioned

much more than other jurors. That is indisputable. But Juror No. 34 did not give a

concrete answer when repeatedly asked whether she could handle a murder trial in

light of her friend’s recent murder. The State and the trial court gave Juror No. 34

time to think about the question twice, and the State came back to her twice trying

to get a clear answer. While the State’s repeated questioning of Juror No. 34 could

show discrimination, it could also show that the State sought an answer to its

questions.

Saintcalle and the dissent finally contend that it is probative that the trial

court sustained a Batson challenge to the State’s attempt to strike the only other

non-white member of the venire, a Mexican-American juror. We agree. But “all

of the circumstances that bear upon the issue of racial animosity must be

consulted.” Snyder, 552 U.S. at 478. Those circumstances do not clearly show

that the State purposefully discriminated against Juror. No. 34.

The record supports the State’s race-neutral stated reason for striking Juror

No. 34, which was a concern she would not last through trial. Although some

evidence weighs against the State’s stated reason, that evidence is not so

“powerful,” Miller-El, 545 U.S. at 265, that the Washington State Supreme Court

“could not reasonably conclude,” Taylor, 366 F.3d at 1000, in light of the record,

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-1, Page 8 of 8

that the State struck Juror No. 34 for a race-neutral reason.

AFFIRMED.

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-2, Page 1 of 3

FILED

Saintcalle v. Uttecht, No. 18-35107

MAY 13 2019

PAEZ, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that the Washington State Supreme Court applied

the “purposeful discrimination” standard required by Batson. I disagree, however,

with my colleagues and would hold that the Washington State Supreme Court’s

conclusion that the prosecutor did not purposefully discriminate against Juror No.

34 was an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).

First, the prosecutor’s fear of losing Juror No. 34 during trial was both

misplaced and, as seen by a comparative juror analysis, pretextual. See

Castellanos v. Small, 766 F.3d 1137, 1148 (9th Cir. 2014) (“Where, as here, the

trial court did not undertake a formal comparative juror analysis in the first

instance, [this court] must do so on collateral review.”). During voir dire the

prosecutor asked some other prospective jurors, Juror Nos. 24 and 27, whether, if

they were seated on the jury and reached a point where they could not be fair, they

could communicate that with the court. When asking those questions, the

prosecutor explicitly referenced that alternates might be seated and able to fill in

for a juror who could not finish the trial. The prosecutor did not strike any of those

jurors, and at least one of them—Juror No. 24—was seated. Yet the prosecutor

allegedly struck Juror No. 34 for fear of losing her during trial. Had the prosecutor

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-2, Page 2 of 3

actually been concerned about losing jurors, the prosecutor would also have struck

Jurors No. 24. The prosecutor’s failure to do so is evidence of pretext.

Second, in my view, the prosecutor’s explanation that the evidence might

overwhelm Juror No. 34 mischaracterizes her own testimony. See Miller-El v.

Dretke, 545 U.S. 231, 244 (2005) (noting the prosecutor mischaracterized the

testimony of the black jurors he struck with discriminatory intent). In response to

the prosecutor’s questions, Juror No. 34 emphasized a belief that she could be fair,

that she is exactly the type of person “who could be honest and look through all the

facts,” and that she is “not an emotional person.” When the prosecutor asked if

any jurors had “concerns about visualizing” violence, autopsy evidence, and crime

scene photographs, Juror No. 34 did not respond affirmatively. Later, while many

potential jurors expressed fear about serving as a juror for a murder trial, Juror No.

34 was not one of them.

Third, the prosecutor’s allegedly race-neutral explanation was the product of

disparate questioning. See id. (noting that non-black jurors who expressed similar

views to a black juror were not questioned further or struck). Juror No. 34 was

questioned more than any other potential juror. Contrary to what the majority says,

the prosecutor does not appear to have repeatedly questioned Juror No. 34 because

she did not answer the prosecutor’s questions, but because she was not providing

the answer the prosecutor wanted to hear—one that would support striking the only

10a

Case: 18-35107, 05/13/2019, ID: 11294501, DktEntry: 28-2, Page 3 of 3

African American juror in the venire. Id. at 255 (recognizing purposeful

discrimination where prosecutors disparately questioned a potential juror in order

“to elicit plausibly neutral grounds for a peremptory strike”).

Fourth, the prosecutor’s discriminatory peremptory strike of another juror in

the instant case makes it more likely that the peremptory strike of Juror No. 34 was

discriminatory. See Currie v. McDowell, 825 F.3d 603, 610 (9th Cir. 2016). The

trial court granted Saintcalle’s Batson challenge when the prosecutor tried to strike

a Mexican American juror, which is evidence of discrimination against others. See

id.

Finally, I note that the prosecutor was explicit about race playing a role in

striking Juror No. 34. The prosecutor’s extensive questioning of Juror No. 34 only

began when she pointed out that she was one of the only non-white members in the

venire. Later, when providing a rationale for the peremptory strike, the prosecutor

relied upon race, explaining that Juror No. 34 might be emotionally overcome

because her recently-deceased friend was the same race as the victim in the instant

case.

This is a close case. The prosecutor’s disparate questioning of Juror No. 34

and a comparative juror analysis, however, show that the prosecutor’s proffered

rationale was pretext for a discriminatory strike. I respectfully dissent.

11a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KIRK SAINTCALLE,

Case No. C15-0156-BJR-MAT

Petitioner,

ORDER ADOPTING REPORT AND

RECOMMENDATION.

JEFFREY UTTECHT,

Respondent,

INTRODUCTION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Mary

Alice Theiler (ECF No. 31), which recommends that Petitioner’s habeas petition (ECF No. 23) be

DENIED, a certificate of appealability (“COA”) be GRANTED, and Petitioner’s action be

dismissed with prejudice.

After reviewing the R&R, Petitioner’s Objections, Respondent’s

Response to Petitioner’s Objections, and the record, the Court ADOPTS Magistrate Judge

Theiler’s R&R.

II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Kirk Saintcalle (“Petitioner”) filed an amended petition for writ of habeas corpus under 28

U.S.C. § 2254. (ECF No. 23.) Petitioner, an African-American man, challenges his state court

convictions on the grounds that, under Batson v. Kentucky, 476 U.S. 79 (1986), the peremptory

strike of the only African-American venire member violated his Fourteenth Amendment right to

equal protection. See State v. Saintcalle, 178 Wash. 2d 34, 35 (2013).

On October 16, 2009, Petitioner was sentenced to 579 months in prison after being

12a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 2 of 22

convicted of one count of first degree felony murder and three counts of second degree assault.

(ECF No. 23.) “[He] was accused of entering an apartment in the city of Auburn with two

companions, holding three people at gunpoint, and shooting and killing Anthony Johnson.”

Saintcalle, 178 Wash. 2d at 36. On direct appeal, the Washington Supreme Court provided the

following summary of facts relevant to Petitioner’s Batson claim:

¶5 During jury selection at Saintcalle’s trial, the prosecution used a peremptory

challenge to strike the only black juror in the venire, juror 34, Anna Tolson. This

challenge came after the prosecution questioned juror 34 extensively during voir

dire—far more extensively than any other juror. Indeed, most of the prosecution’s

interactions with jurors were quite brief, usually consisting of only a few short

questions, but not the interaction with juror 34. The State began questioning juror

34 after another juror made a comment about race:

[JUROR 72]: I feel there are some areas of unfairness in our system.

I am aware, for example, that a jury of their peers [sic], yet as you

look around this panel, all of the faces are white.

[JUROR 34]: No, not quite.

(Laughter.)

[PROSECUTOR]: You know what, you kind of bring a very

important topic to light. If you were seated here in this chair and you

looked out at this panel, would you have any concern about whether

or not people are going to be able to relate to you or listen to you or

feel for you? Juror number—What is your number? Juror number

34, I am going to ask you a little bit about your background. You

work at the YMCA?

[JUROR 34]: I work in a middle school.

[PROSECUTOR]: So tell me how that works. So you are a

counselor?

[PROSECUTOR]: Which means you see a whole lot.

[JUROR 34]: Yes.

[PROSECUTOR]: And where do you work? What school do you

work in?

13a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 3 of 22

[JUROR 34]: Do I really need to say that?

[PROSECUTOR]: How about you just tell me the city. Is it an inner

city school?

[JUROR 34]: Yes.

[PROSECUTOR]: You see a whole lot?

[JUROR 34]: Yes.

[PROSECUTOR]: I am interested to hear from you—I mean, do you

have impressions about the criminal justice system?

[JUROR 34]: Yes.

[PROSECUTOR]: You are not going to hurt my feelings if you talk

about them a little bit. What are your thoughts?

[JUROR 34]: Gosh, I feel like I am on the spot here.

But being a person of color, I have a lot of thoughts about the

criminal system. I see—I have seen firsthand—and a couple people

have already mentioned that if you have money, you tend to seem to

work the system and get over. And regardless if you are innocent or

guilty, if you want to be innocent, your money says you are innocent.

And a person of color, even if you do have an affluent lawyer who

has the background, the finance to get you off, because you are a

person of color, a lot of times you are not going to get that same kind

of opportunities.

And especially with this person being a person of color and being a

male, I am concerned about, you know, the different stereotypes.

Even if we haven't heard anything about this case, we watch the

news every night. We see how people of color, especially young

men, are portrayed in the news. We never hardly ever see anyone of

color doing something positive, doing something good in their

community.

So kind of like what the person behind me is saying, since most of

the people in this room are white, I am wondering what's running

through their mind as they see this young man sitting up here.

[PROSECUTOR]: Right. How about for you, do you think—I mean,

you've got a whole lot that you are feeling as you sit here and that

14a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 4 of 22

you are going to be asked to sit in judgment of somebody. How do

you think you are going to be able to handle that?

[JUROR 34]: I think number one, because I am a Christian, I know

I can listen to the facts and, you know, follow the judge's instruction.

But also it's kind of hard, and I haven't mentioned this before

because none of those questions have come up for me to answer, but

I lost a friend two weeks ago to a murder, so it's kind of difficult

sitting here. Even though I don't know the facts of this particular

case, and I would like to think that I can be fair because I am a

Christian, I did lose someone two weeks ago.

[PROSECUTOR]: Was that in Seattle?

[JUROR 34]: Yes.

[PROSECUTOR]: Was that [the] Tyrone case?

[JUROR 34]: Yes.

Report of Proceedings (RP) (Mar. 9, 2009) at 65–68. After a stretch break, the

prosecutor resumed questioning juror 34:

[PROSECUTOR]: Juror number 34, I am going to move on to the

group, but I wanted to close the loop with you. You have a lot that

is going through your mind currently both that would give you a lot

of empathy for someone who is charged with a crime and also

empathy for someone who may be a victim of a crime. In that way,

you may be representative of the perfect juror.

At the same time, we don't put people in a position where it's going

to cause them a lot of emotional pain. At this point do you think you

could sit in this case and listen to the facts and make a decision based

solely on the evidence presented in trial here and be fair to both

sides?

[JUROR 34]: I'd like to think that I could be, but kind of what you

just mentioned just with the freshness and the rawness of the death

of a friend, I am wondering if that would kind of go through my

mind. I like to think that I am fair and can listen, be impartial, but I

don't know. I have never been on a murder trial and have just lost a

friend two weeks prior to a murder.

[PROSECUTOR]: What I am going to do, I am going to ask

questions. I am going to kind of move on to the rest of the group so

that you have time to think, and then we'll come back and ask you

15a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 5 of 22

maybe tomorrow to make your final decision about whether or not

you think you can be fair. I am sorry for your loss.

Id. at 69–70. The next day, a different deputy prosecuting attorney followed up with

juror 34:

[PROSECUTOR]: Go back to [a] couple [of] people juror number

34 sorry [to] focus on you again after yesterday but I just want to try

and go back [and] touch base with you. I know[ ] you mentioned

yesterday that you had some recent events in your life that may make

it difficult for you to serve as jurors [sic] in [this case]. Have you

done anymore thinking about that? How are you feeling today?

[JUROR 34]: Yes. I thought about it last night as well as this

morning. And, you know, my thought is I don't want to be a part of

this jury because of the situations, and the circumstances that I just

went through. But I'm thinking if ever I was put in a situation where

I needed twelve people who could be honest and look through all

the facts or I guess I'm saying who could be like me I would want

me. So sometimes you have to do things that you don't want to do.

[PROSECUTOR]: I guess my only concern is do you feel like

maybe some of the emotions that dredge up could cloud your

judgment at all on either side. Either you know against the

defendant, against the State or I'm just concerned about that

particular issue?

[Court inquires whether juror 34 would like to answer the question

in private, but juror 34 declines.]

[PROSECUTOR]: So is that something you can set aside or worried

at all about the emotions kind of clouding in? I mean, it's just so new

in terms of your life?

[JUROR 34]: I mean, I have never been in this situation where I

have lost someone. You just went to the funeral. He is young. Only

24. And to be called to jury duty to perhaps be on a jury of a murder

suspect. I don't know how I'm going to react. You know, I don't

know. I'm—I'm not an emotional person, but I'm thinking as we go

through it, and I hear the testimony, and I see the pictures, I don't

know. I mean, I'm just being honest. I don't know how I'm going to

feel.

RP (Mar. 10, 2009) at 41–43.

16a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 6 of 22

¶ 6 After this exchange, the prosecution challenged juror 34 for cause. The judge

denied the challenge, and the prosecution announced its intent to exercise a

peremptory strike. At that point, Saintcalle raised a Batson challenge.

¶ 7 As required by Batson, the judge first found that Saintcalle had made a prima

facie showing of purposeful discrimination. Next, the prosecution presented raceneutral reasons for striking juror 34: the reasons were (1) juror 34's “inattention”

during voir dire and (2) the recent death of juror 34's friend. Id. at 101–02. The

prosecutor claimed to have spent “a lot of time watching juror 34” and asserted that

juror 34 was “very checked out.” Id. at 101.

¶ 8 The judge denied the Batson challenge, stating on the record that he accepted

the recent death of juror 34's friend as a proper race-neutral reason for the strike.

Near the end of jury selection, the prosecution peremptorily struck juror 34,

excusing her from the jury.

¶ 9 The prosecution also attempted to exercise a peremptory against the sole

Mexican–American juror in the venire, juror 10, but the judge sustained Saintcalle's

Batson challenge to that strike, rejecting each of the prosecutor's proffered reasons

as pretextual. Id. at 119–20.

¶ 10 After Saintcalle was convicted, he appealed, alleging that the peremptory strike

of juror 34 (Ms. Tolson) violated the Fourteenth Amendment's guaranty of equal

protection. The Court of Appeals rejected his argument finding there was no

purposeful discrimination and accepting the State's race-neutral explanation. State

v. Saintcalle, noted at 162 Wash.App. 1028, 2011 WL 2520000 (2011). We granted

review only on the Batson issue. State v. Saintcalle, 172 Wash. 2d 1020, 268 P.3d

224 (2011).

Saintcalle, 178 Wash. 2d at 36-41 (alteration in original).

The Washington Supreme Court affirmed Petitioner’s conviction, stating that “the trial

court’s finding that there was no purposeful discrimination here [was] not clearly erroneous.” Id.

at 35. The court argued that Batson protections need to be strengthened, but it ultimately found

that Batson was not violated, reasoning:

Ms. Tolson said she might have trouble sitting on the jury of a murder trial because

someone she knew had recently been murdered.

...

In light of Ms. Tolson’s statements throughout voir dire, we defer to the trial court’s

factual finding that the prosecutor was justified in believing there was a realistic

17a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 7 of 22

possibility that she might have been “lost” as a juror before the end of the case. The

record does not compel a contrary conclusion. The trial court observed the juror

and agreed that she was having difficulties. Losing jurors during a lengthy trial is

always a possibility, and justice is not served when a mistrial is declared or a juror

is unable to view and process the evidence. Here, it was entirely reasonable for the

court to conclude that the prosecutor’s concerns were legitimate and race-neutral,

and there was no clear error. We affirm the trial court’s finding that there was no

purposeful discrimination.

¶ 48 We do, however, acknowledge that Ms. Tolson was questioned far more than

any other juror, perhaps in part because she was black. This conclusion is supported

by a statistical analysis of the prosecution’s voir dire that appears in Appendix A,

attached to this opinion. [footnote omitted] These statistics are rather striking, and

in general, disparate questioning of minority jurors can provide evidence of

discriminatory purpose because it can suggest that an attorney is “fishing” for a

race-neutral reason to exercise a strike. See Miller-El, 545 U.S. at 241, 125 S. Ct.

2317; Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir. 2009). However, disparate

questioning does not itself prove purposeful discrimination. In some cases, there

may be good reasons to question minority jurors more than nonminority jurors.

Here, for example, the prosecutor began by eliciting Ms. Tolson’s views on race in

the criminal justice system and later spoke with her regarding the recent death of

her friend. These were legitimate topics to explore. [footnote omitted] We defer to

the trial court that the disparate questioning in this case, while it may have been

motivated in part by race, did not necessarily amount to purposeful discrimination.

¶ 49 We also acknowledge that the prosecution attempted to strike the only

Mexican-American juror in the venire, juror 10. RP (Mar. 10, 2009) at 119-20. And

while it is true that a court’s finding of discrimination against one juror is evidence

of discrimination against others, it does not follow that one Batson violation

necessarily implies another. Snyder, 552 U.S. at 478, 128 S. Ct. 1203.

¶ 50 Under Batson, we defer to the trial court’s ruling.

Id. at 56-57. The Washington Supreme Court’s decision included three concurrences and one

dissenting opinion, in which Justice Chambers stated that he was “not convinced that Kirk

Saintcalle received a fair trial before a truly representative jury.” Id. at 119.

Petitioner filed his amended petition for writ of habeas corpus on June 23, 2017. (ECF No.

23.) On October 12, 2017 Magistrate Judge Theiler issued the instant R&R recommending that

this Court deny Petitioner’s habeas petition, grant Petitioner a COA, and dismiss Petitioner’s action

with prejudice. (ECF No. 31.) Petitioner filed timely objections, and Respondent filed a timely

18a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 8 of 22

response to Petitioner’s objections. (ECF Nos. 32, 33.)

III.

STANDARDS OF REVIEW

A. Report and Recommendation

When a party objects to an R&R, the district court must review de novo those portions of

the R&R to which objection is made. Fed. R. Civ. P. 72(b)(3); see Communications Capital Group

LTD. v. Tabb Assocs., No. 89-15043, 1990 WL 90311 at *3 (9th Cir. June 27, 1990) (citing United

States v. Raddatz, 447 U.S. 667, 675 (1980); North Amer. Watch v. Princess Ermine Jewels, 786

F.2d 1447 (9th Cir.1986)). The district court may accept, reject, or modify, in whole or in part,

the findings and recommendations made by the Magistrate Judge. 28 U.S.C. § 636 (b)(1)(C); see

Communications Capital Group LTD. v. Tabb Assocs., No. 89-15043, 1990 WL 90311 at *3 (9th

Cir. June 27, 1990) (citing United States v. Raddatz, 447 U.S. 667, 675 (1980); North Amer. Watch

v. Princess Ermine Jewels, 786 F.2d 1447 (9th Cir.1986)).

B. Habeas Corpus Petition

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) “bars relitigation of any

claim ‘adjudicated on the merits’ in state court,” Harrington v. Richter, 562 U.S. 86 (2011), “unless

the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(1)-(2). For the purposes of the AEDPA, clearly established federal law 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), and includes only the

Supreme Court’s holdings, not its dicta, id. (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)

19a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 9 of 22

(Justice O’Connor’s opinion)).

The AEDPA creates a standard that is “difficult to meet.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). While it does not

“complete[ly] bar federal-court relitigation of claims already rejected in state proceedings,”

Harrington, 562 U.S. at 102 (citing Felker v. Turpin, 518 U.S. 651, 644 (1996)), it limits relief to

those cases where “the state court’s ruling […] was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement,” id. at 103. The AEDPA’s high standard “reflects the view that habeas corpus is a

‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for

ordinary error correction through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332,

n.5 (1979) (Stevens, J. concurring)).

When considering a petition for habeas corpus brought pursuant to 28 U.S.C. § 2254(d),

the federal court’s review “is limited to the record that was before the state court that adjudicated

the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). The federal court

must also give the “benefit of the doubt” to state court decisions, and the burden of proof lies with

the petitioner. Id. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)

(citation and internal quotation marks omitted)). “When more than one state court has adjudicated

a claim, [the federal court] analyze[s] the last reasoned decision.” Barker v. Fleming, 423 F.3d

1085, 1091-92 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).

To grant a writ of habeas corpus under 28 U.S.C. § 2254(d)(1), the state court’s decision

must meet either the requirements of the AEDPA’s “contrary to” clause or the requirements of its

“unreasonable application” clause.

Under the “contrary to” clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by this Court on a question of

20a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 10 of 22

law or if the state court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court identifies the correct

governing legal principle from this Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. at 412–13 (Justice O’Connor’s opinion). In its analysis, “a habeas

court must determine “whether it is possible fairminded jurists could disagree that [the state

court’s] arguments or theories are inconsistent with [clearly established federal law].” Harrington

v. Richter, 562 U.S. 86, 102 (2011). “A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Id. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Further, to qualify as an “unreasonable application,” the state court’s application of clearly

established law must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 69 (2003)

(citing Williams v. Taylor, 529 U.S. at 409 (Justice O’Connor’s opinion)).

Separately, a habeas court may grant the writ under 28 U.S.C. § 2254(d)(2) if the state

court’s decision “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” A habeas court may not “substitute[ ] its evaluation of

the record for that of the state trial court,” nor “use a set of debatable inferences to set aside the

conclusion reached by the state court.” Rice v. Collins, 546 U.S. 333, 337-38, 342 (2006). In the

Batson context, to grant relief under 28 U.S.C. § 2254(d)(2) a court must demonstrate that the trial

court acted unreasonably when it credited the prosecutor’s race-neutral explanation. See id. at 338.

“[A] decision adjudicated on the merits in a state court and based on a factual determination will

not be overturned on factual grounds unless objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003) (citing

28 U.S.C. § 2254(d)(2)).

21a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 11 of 22

Finally, “in a proceeding instituted by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2254(e)(1) requires “a

determination of a factual issue made by a State court shall be presumed to be correct,” and the

petitioner “shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”

Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C.

§ 2554(e)(1)).

Sections 2554(d)(2) and 2554(e)(1) of the AEDPA have at times been read together,

requiring federal habeas courts to “presume the [state] court’s factual findings to be sound unless

[the petitioner] rebuts the ‘presumption of correctness by clear and convincing evidence.’” MillerEl v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)); see Miller-El v. Cockrell,

537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1); 28 U.S.C. § 2254(d)(2); Williams v.

Taylor, 529 U.S. at 399 (2000) (Justice O’Connor’s opinion)) (“Where 28 U.S.C. § 2254 applies,

… [f]actual determinations by state courts are presumed correct absent clear and convincing

evidence to the contrary.”); Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion).

However, the Supreme Court and the Ninth Circuit have questioned the relationship

between (e)(1) and (d)(2). In Wood v. Allen, the Supreme Court granted certiorari to resolve

“whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state court

factual determination on which the decision was based was ‘unreasonable,’ or whether

§ 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was

correct with clear and convincing evidence.” 558 U.S. 290, 299 (2010). The Supreme Court noted

that the question “has divided the Courts of Appeals”:

See, e.g., … Taylor v. Maddox, 366 F.3d 992, 999–1000 (9th Cir. 2004), cert.

denied, 543 U.S. 1038 (2004) (where a habeas petitioner challenges state-court

factual findings “based entirely on the state record,” the federal court reviews those

findings for reasonableness only under § 2254(d)(2), but where a petitioner

22a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 12 of 22

challenges such findings based in part on evidence that is extrinsic to the state-court

record, § 2254(e)(1) applies); Lambert v. Blackwell, 387 F.3d 210, 235 (3rd Cir.

2004) (“§ 2254(d)(2)'s reasonableness determination turns on a consideration of the

totality of the ‘evidence presented in the state-court proceeding,’ while § 2254(e)(1)

contemplates a challenge to the state court's individual factual determinations,

including a challenge based wholly or in part on evidence outside the state trial

record”); Trussell v. Bowersox, 447 F.3d 588, 591 (8th Cir. 2006) (federal habeas

relief is available only “if the state court made ‘an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding,’ 28 U.S.C.

§ 2254(d)(2), which requires clear and convincing evidence that the state court's

presumptively correct factual finding lacks evidentiary support”), cert. denied, 549

U.S. 1034 (2006); Ben–Yisrayl v. Buss, 540 F.3d 542, 549 (7th Cir. 2008)

(§ 2254(d)(2) can be satisfied by showing, under § 2254(e)(1), that a state-court

decision “rests upon a determination of fact that lies against the clear weight of the

evidence” because such a decision “is, by definition, a decision so inadequately

supported by the record as to be arbitrary and therefore objectively unreasonable”

(internal quotation marks omitted)).

Id. at 299 n.1.

Ultimately, the Supreme Court determined that “the reasonableness of the state court’s

factual determination in [Wood v. Allen] [did] not turn on any interpretative difference regarding

the relationship between [the] provisions,” declined to resolve the issue, and assumed “for the sake

of argument” that § 2254(e)(1) did not apply. 558 U.S. 290, 300 (2010). In 2014, the Ninth Circuit

recognized that this question remains unsolved. Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir.

2014) (“We believe any tension between [Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)] and

our cases or between Taylor and limited statements by the Supreme Court will have to be resolved

by our court en banc, or by the Supreme Court.”). While the facts of this case approach the

undetermined space between the two standards, the Court ultimately need not choose between

them because it holds that the state court ruling can be affirmed under either standard.

IV.

DISCUSSION

A. Batson Standard

“The Equal Protection Clause guarantees the defendant that the State will not exclude

23a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 13 of 22

members of his race from the jury venire on account of race….” Batson, 476 U.S. at 86 (citing

Strauder v. West Virginia, 100 U.S. 303, 305 (1880)). The prosecutor is also forbidden to exclude

members of the defendant’s race based on the “false assumption that members of his race as a

group are not qualified to serve as jurors.” Batson, 476 U.S. at 86 (citing Norris v. Alabama, 294

U.S. 587, 599 (1935)). When analyzing a Batson claim, a trial court must conduct a “three-step

inquiry.” Rice v. Collins, 546 U.S. 333, 338 (2006).

First “the trial court must determine whether the defendant has made a prima facie showing

that the prosecutor exercised a peremptory strike on the basis of race.” Id. (citing Batson, 476 U.S.

at 96-97). Next, if a prima facie case has been established, the trial court must determine whether

the prosecutor has successfully “present[ed] a race-neutral explanation for striking the juror in

question.”

Id. (citing Batson, 476 U.S. at 97-98).

At this second stage, the prosecutor’s

explanation need not be “persuasive, or even plausible.” Id. (quoting Purkett v. Elem, 514 U.S.

765, 767-68 (1995) (per curiam)). “So long as the reason is not inherently discriminatory, it

suffices.” Id. At the third stage of the Batson analysis, however, a trial court must consider the

“persuasiveness of the [prosecutor’s] justification,” and the prosecutor’s credibility, in order to

“determine whether the defendant has carried his burden of proving purposeful discrimination.”

Rice v. Collins, 546 U.S. at 338-39 (first quoting Purkett, 514 U.S. at 768 (per curiam); then

quoting Batson, 476 U.S. at 98). In reaching its determination, it “may rely on ‘all relevant

circumstances,’” Miller-El v. Dretke, 545 U.S. at 240-41, 261 (quoting Batson, 476 U.S. at 96-97),

and “must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but

also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike

attributed to the juror by the prosecutor,” Snyder v. Louisiana, 552 U.S. 472 (2008).

When examining a trial court’s determination during the third and final stage of its Batson

24a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 14 of 22

analysis “[o]n appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained

unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. at 477 (citing Hernandez v. New

York, 500 U.S. 352, 369 (1991) (plurality opinion)). Further, when considering the credibility and

demeanor of jurors and prosecutors, “in the absence of exceptional circumstances” the trial court

should receive deference. Snyder v. Louisiana, 552 U.S. at 477 (quoting Hernandez, 500 U.S. 366

(plurality opinion)). This is, in part, because the prosecutor’s “race-neutral reasons for peremptory

challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s

firsthand observations of even greater importance.” Id.

In the instant case, all parties agree that Petitioner successfully stated a prima facie case

that juror 34 was struck on the basis of race. They also agree that the prosecutor’s proffered excuse

for this strike was race-neutral on its face. The issues remaining are whether the Washington

Supreme Court identified and applied the correct Batson standard as required by 28 U.S.C.

§ 2554(d)(1), and whether it made a reasonable determination of the facts as required by 28 U.S.C.

§ 2554(d)(2).

B. The state court decision was not contrary to clearly established federal law.

Petitioner argues that the state court required him to show that racism, as opposed to

purposeful discrimination, was the reason for the peremptive strike of juror 34. In requiring

this, he argues, it imposed a higher burden than that imposed by the Supreme Court’s Batson

standard. As support for his argument he points to the state court’s opinion:

The main problem is that Batson's third step requires a finding of “purposeful

discrimination,” which trial courts may often interpret to require conscious

discrimination. This is problematic because discrimination is often unconscious. A

requirement of conscious discrimination is especially disconcerting because it

seemingly requires judges to accuse attorneys of deceit and racism in order to

sustain a Batson challenge. See Robin Charlow, Tolerating Deception and

Discrimination After Batson, 50 Stan. L. Rev. 9, 11 (1997) (noting that one judge

25a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 15 of 22

“had the uncomfortable feeling that she had just rendered an official ruling that the

attorney was lying to the court”). Imagine how difficult it must be for a judge to

look a member of the bar in the eye and level an accusation of deceit or racism.

[footnote omitted]

Saintcalle, 178 Wash. 2d at 53.

In analyzing Petitioner’s challenge, the R&R first notes that the Supreme Court has not

defined “purposeful discrimination” in this context, and so it cannot be contrary to clearly

established federal law to state that the standard requires a showing of racism. (See ECF No. 31

at 14 (quoting ECF No. 23 at 16).) This is in keeping with Supreme Court precedent stating that

“it is not an unreasonable application of clearly established Federal law for a state court to decline

to apply a specific legal rule that has not been squarely established by this Court.” Id. at 101

(quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (internal quotation marks omitted)).

Petitioner takes issue with this reasoning, arguing that a term used by the Supreme Court should

be presumed to have its plain meaning, and the plain meaning of racism when compared to the

plain meaning of purposeful discrimination clearly reveals that it would be “much more

burdensome” for a defendant to prove racism. (ECF No. 32 at 15.)

The R&R also reasons that the Washington Supreme Court’s statement about “deceit and

racism” was meant to inform a larger discussion focusing on the treatment of conscious versus

unconscious bias in the Batson context. The R&R points out that, although the state court

examined this issue at length, it ultimately determined that the facts of Petitioner’s case would not

“compel a finding of purposeful discrimination,” whether the “purposeful discrimination” required

by Batson encompassed unconscious bias or not. (ECF No. 31 at 14 (citing Saintcalle, 178 Wash.

2d at 53 n.8).) The R&R also states that any discussion of a “crippling burden” potentially created

by Batson was used in support of the state court’s conclusion that Batson protections should be

strengthened, rather than in application to the facts of Petitioner’s case. Petitioner argues that this

26a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 16 of 22

conclusion is irrelevant, because the Washington Supreme Court identified the lower courts’

“profound misunderstanding” of Batson (that it seems to require judges to accuse attorneys of

deceit and racism) and, instead of dispelling it, embraced it. (ECF No. 32 at 6.)

The AEDPA does not require that state courts refrain from discussing misunderstandings

of clearly established federal law or critiquing it. The “contrary to” clause states only that federal

courts “may grant the writ [of habeas corpus] if the state court arrives at a conclusion opposite that

reached by [the Supreme Court] on a question of law or if the state court decides a case differently

than [the Supreme Court] has on a set of materially indistinguishable facts.”

28 U.S.C.

§ 2254(d)(1). Petitioner offers no case with “materially indistinguishable facts” and so he must

demonstrate that the state court arrived at a conclusion opposite to that reached by the Supreme

Court on a question of law.

The Washington Supreme Court explored the context surrounding Batson in depth. It

lamented that if trial courts interpret Batson’s standard of “purposeful discrimination” as requiring

“conscious discrimination,” that would be “disconcerting because [a requirement of conscious

discrimination] seemingly requires judges to accuse attorneys of deceit and racism.” Saintcalle,

178 Wash. 2d at 53. However, footnote 8 in the same paragraph made it clear that the Washington

Supreme Court was not necessarily subscribing to this interpretation; it stated, “it could be argued

(although none of the parties make this argument) that ‘purposeful discrimination’ already

encompasses unconscious bias.” Id. at 53 n.8. The state court opinion also proposed ideas for

new requirements that could replace Batson. These discussions were of an academic nature,

examining shortcomings of, possible interpretations of, and alternatives to Batson. They do not

appear to be an identification of the principle that was to be applied.

Further, the Batson standard was not “unreasonably applied” to Petitioner’s case. As stated

27a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 17 of 22

in the R&R:

The [state] court correctly explained three elements of the “purposeful

discrimination” analysis that have been articulated by the Supreme Court:

comparative juror analysis, which “entails examining whether the proffered raceneutral explanation could apply just as well to a nonminority juror who was allowed

to serve”; disparate questioning of minority jurors, which “can provide evidence of

discriminatory purpose because it creates an appearance that an attorney is ‘fishing’

for race neutral reason to exercise a “strike”; and a proffer of pretextual reasons,

which “gives rise to an inference of race discrimination, and a court’s finding of

discrimination against one juror is evidence of discrimination of against [sic] other

jurors.”

(ECF No. 31 at 10 (citing Saintcalle, 178 Wash. 2d at 43).)

After providing these factors, the state court proceeded to discuss the context surrounding

Batson in depth, but ultimately returned to the existing framework in its application to the case at

hand. See Saintcalle, 178 Wash. 2d at 43, 55-56. The state court weighed the factors on either

side of the argument, and ultimately decided that “the trial court’s finding that there was no

purposeful discrimination was not clear error.” Saintcalle, 178 Wash. 2d at 55. In applying this

analysis (as opposed to a heightened standard requiring a showing of racism), the state court’s

application of Batson was not objectively unreasonable. At the very least, it is likely that

“fairminded jurists could disagree” on whether the state court decided Petitioner’s case correctly.

See generally Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)) (finding “a state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision”).

C. The state court decision was not based on an unreasonable determination of the facts.

Petitioner’s second argument challenges the state court’s factual finding that the

peremptory challenge of juror 34 was not based on purposeful discrimination. He claims that the

28a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 18 of 22

state court both failed to address certain evidence that was before the trial court and analyzed the

evidence incorrectly, pointing to a number of factors that he claims demonstrate a Batson violation.

While the petition identifies this alleged error as an “unreasonable application of law” under

§ 2554(d)(1), (ECF No. 23 at 24), the R&R correctly identifies this argument as a challenge to the

state court’s factual finding, to be analyzed under § 2554(d)(2), (ECF No. 31 at 15).

A trial court’s decision to credit the prosecutor’s explanation “represents a finding of fact

of the sort accorded great deference on appeal,” Hernandez v. New York, 500 U.S. 352, 364 (1991)

(plurality opinion), and its ruling “must be sustained unless it is clearly erroneous,” Snyder, 552

U.S. at 477 (citing Hernandez, 500 U.S. at 369 (plurality opinion)). This high level of deference

to the trial court rests on the notion that “determinations of credibility and demeanor lie ‘peculiarly

within a trial judge's province.’” Snyder, 552 U.S. at 477 (quotation marks omitted) (quoting

Hernandez, 500 U.S. at 365 (plurality opinion)). “In addition, race-neutral reasons for peremptory

challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's

firsthand observations of even greater importance.” Id.

In determining whether a trial court’s decision to believe a prosecutor’s proffered raceneutral explanation meets this standard, an appellate court may analyze a number of factors, among

them whether the explanation would apply equally to a white juror who was not struck, whether

the explanation was highly speculative, the disparate questioning of non-white jurors, and any

previous Batson violations. E.g., Snyder v. Louisiana, 552 U.S. at 477 (citing Hernandez, 500

U.S. at 369 (plurality opinion)) (holding that the Louisiana Supreme Court’s rejection of the

petitioner’s Batson claim was clearly erroneous where the prosecutor’s explanation was highly

speculative and applied equally to white jurors who were not struck); Miller-El v. Dretke, 545 U.S.

231 (2005) (holding that the state court’s decision to credit the prosecutor’s race-neutral

29a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 19 of 22

explanation was unreasonable and clearly erroneous where prosecutors engaged in disparate

questioning of black jurors, provided black jury members with more graphic information regarding

the death penalty, offered an explanation that “reek[ed] of afterthought,” and worked in a district

attorney’s office that was known to exclude black venire members). The use of pretextual

explanations also “gives rise to an inference of discriminatory intent.” Snyder, 552 U.S. at 485

(citing Miller-El v. Dretke, 545 U.S. at 252). Petitioner highlights a number of these factors in his

objections.

First, he argues that the prosecutor’s race-neutral explanation for the strike of juror 34 was

unduly speculative, which the Supreme Court identified as evidence of a Batson violation in

Snyder v. Louisiana. 552 U.S. 472, 482 (2008) (finding the race-neutral reason, that a juror would

be inclined to find the defendant guilty of a lesser verdict to minimize the number of student

teaching hours he would miss, to be highly speculative because the trial was anticipated to be short,

the juror had received permission from his dean to make up missed time, and, if what the juror

wanted was a short trial, he might have agreed with a verdict of first degree murder if the other

jurors favored it).

The R&R distinguishes Snyder, explaining that while the prosecutor’s excuse in Snyder

was “illogical [and] contradicted by the record,” the Washington Supreme Court acted reasonably

in believing that the prosecutor was concerned juror 34 would be lost due to the recent murder of

her friend, the anticipated use of explicit photos of bodies and blood in the trial, and juror 34’s

statement that she “was not sure how she was going to respond.” (ECF No. 31 at 18.) Petitioner

contends that juror 34 was “unequivocal” in stating that she could serve as a juror, and that

“nothing about the conversation that the prosecutor had with juror 34” could justify the

prosecutor’s concerns. (ECF No. 32 at 7.) However, as the R&R highlights, “rather than being

30a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 20 of 22

‘unequivocal,’ [juror 34] vacillated between asserting that she could be fair and expressing concern

about her abilities given the recent murder of her friend.” (ECF No. 31 at 16.)

The trial court judge observed the prosecutor and juror 34 throughout voir dire and heard

the arguments of both the prosecution and the defense. The trial court’s ability to make these

“firsthand observations” is precisely the reason that its decision is owed deference. It was within

the trial court judge’s discretion to credit the prosecutor’s race-neutral explanation.

Petitioner also argues that disparate questioning of juror 34, comparative juror analysis,

and the prosecutor’s attempt to strike the only other non-white juror in the venire provide evidence

of purposeful discrimination against juror 34. Petitioner correctly identifies these factors as

elements of a purposeful discrimination analysis, which must be considered together with “all of

the circumstances that bear upon the issue of racial animosity.” See Snyder, 552 U.S. at 478 (citing

Miller-El v. Dretke, 545 U.S. at 239). However, Petitioner’s arguments are insufficient to compel

the conclusion that the use of a peremptory challenge on juror 34 was the result of purposeful

discrimination.

In reviewing the trial court’s judgement, the Washington Supreme Court was required to

sustain the determination “unless it [wa]s clearly erroneous.” Felkner v. Jackson, 562 U.S. 594,

598 (2011) (quoting Snyder, 552 U.S. at 477). It was also required to defer to the trial court on

findings of credibility and demeanor. See Snyder, 552 U.S. at 477. Moreover, the AEDPA’s

“highly deferential standard for evaluating state-court rulings,” Felkner, 562 U.S. at 598, requires

this Court to give the benefit of the doubt to the state court’s decision, see Cullen v. Pinholster,

563 U.S. at 181.

Accordingly, the Court determines that the Washington Supreme Court

reasonably deferred to the trial judge’s factual finding, and denies the petition for writ of habeas

corpus.

31a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 21 of 22

D. Petitioner’s request for an evidentiary hearing is denied.

This Court adopts Magistrate Judge Theiler’s recommendation that Petitioner’s request that

the Court hold an evidentiary hearing be denied. “An evidentiary hearing is not required on issues

that can be resolved by reference to the state court record.” Totten v. Merkle, 137 F.3d 1172, 1176

(9th Cir. 1998) (citing Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994)). “If the record refutes

the applicant's factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (1933). In this

case, the record that was before the state court does preclude relief, and Petitioner’s request for an

evidentiary hearing is therefore denied.

E. The Court grants a Certificate of Appealability (“COA”) because Petitioner’s claims are

debatable.

The R&R recommends that a COA be granted to Petitioner. “Before an appeal may be

entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain

a COA….” Miller-El v. Cockrell, 537 U.S. at 335-36. “A motion for a [COA] must first be

considered by the district court. If the district court grants a COA, the Court shall state which issue

or issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2).” Ninth Circuit Rule 22-1. Under

28 U.S.C. § 2253(c)(2), “the applicant [must have] made a substantial showing of the denial of a

constitutional right.” To meet this standard, “a petitioner must ‘sho[w] that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were “adequate to deserve encouragement to proceed

further.”’” Miller-El v. Cockrell, 537 U.S. at 336 (alteration in original) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

32a

Case 2:15-cv-00156-BJR Document 34 Filed 01/16/18 Page 22 of 22

In this case, Petitioner has made a substantial showing that his Fourteenth Amendment rights

were violated when the trial court judge allowed the state to strike the only African-American

member of the venire. Further, he has shown that reasonable jurists could debate whether the state

court based its decision on an unreasonable determination of the facts, and therefore whether the

petition for habeas corpus should have been granted. Accordingly, this Court adopts Magistrate

Judge Theiler’s recommendation and grants Petitioner a COA.

CONCLUSION

Petitioner has not demonstrated that the state court’s decision was contrary to, or involved

an unreasonable application of, clearly established federal law, nor that it was based on an

objectively unreasonable determination of facts.

Having reviewed the R&R, Petitioner’s

Objections to the R&R, Respondent’s Response to Petitioner’s Objections to the R&R, and all

other material properly before the Court, it is hereby ordered that:

(1)

The Court ADOPTS the R&R, (ECF No. 31), and DENIES Petitioner’s petition for writ of

habeas corpus, (ECF No. 23);

(2)

The Court GRANTS a certificate of appealability; and

(3)

The Clerk of the Court shall send copies of this Order to Petitioner and dismiss this action

with prejudice.

IT IS SO ORDERED.

Dated this 16th day of January, 2018.

Barbara Jacobs Rothstein

U.S. District Court Judge

33a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 1 of 21

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KIRK SAINTCALLE,

Case No. C15-0156-BJR-MAT

Petitioner,

REPORT AND RECOMMENDATION

JEFFREY UTTECHT,

Respondent.

INTRODUCTION

Petitioner, a state prisoner who is currently confined at the Washington Corrections Center

in Shelton, Washington, seeks relief under 28 U.S.C. § 2254 from a 2009 King County Superior

Court judgment and sentence. Petitioner, who is African American, raises a Batson1 claim as his

only ground for relief, arguing that by allowing the State to strike the sole African American

member of the jury venire, the trial court violated his right to equal protection under the Fourteenth

Amendment, as well as the rights of the excluded venire person. (Dkt. 23 at 14.)

Respondent has filed an answer to petitioner’s habeas petition and submitted relevant

Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause prohibits prosecutors

from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will

be unable to impartially consider the State’s case against a black defendant).

REPORT AND RECOMMENDATION - 1

34a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 2 of 21

portions of the state court record. (Dkts. 26 & 29.) Petitioner has filed a reply in support of his

habeas petition. (Dkt. 30.) Having considered the parties’ submissions, the balance of the record,

and the governing law, the Court recommends that petitioner’s habeas petition be DENIED, a

certificate of appealability be GRANTED, and this action be dismissed with prejudice.

II.

BACKGROUND

The Washington Supreme Court, on direct appeal, summarized the facts and procedural

history relevant to petitioner’s conviction and Batson claim:

¶ 4 Kirk Saintcalle was convicted of one count of first degree felony murder

and three counts of second degree assault, all with firearm enhancements. Saintcalle

was accused of entering an apartment in the city of Auburn with two companions,

holding three people at gunpoint, and shooting and killing Anthony Johnson.

Saintcalle was sentenced to 579 months in prison.

¶ 5 During jury selection at Saintcalle’s trial, the prosecution used a peremptory

challenge to strike the only black juror in the venire, juror 34, Anna Tolson. This

challenge came after the prosecution questioned juror 34 extensively during voir

dire—far more extensively than any other juror. Indeed, most of the prosecution’s

interactions with jurors were quite brief, usually consisting of only a few short

questions, but not the interaction with juror 34. The State began questioning juror

34 after another juror made a comment about race:

[JUROR 72]: I feel there are some areas of unfairness in our system. I am

aware, for example, that a jury of their peers [sic], yet as you look around

this panel, all of the faces are white.

[JUROR 34]: No, not quite.

(Laughter.)

[PROSECUTOR]: You know what, you kind of bring a very important

topic to light. If you were seated here in this chair and you looked out at

this panel, would you have any concern about whether or not people are

going to be able to relate to you or listen to you or feel for you? Juror

number—What is your number? Juror number 34, I am going to ask you a

little bit about your background. You work at the YMCA?

[JUROR 34]: I work in a middle school.

[PROSECUTOR]: So tell me how that works. So you are a counselor?

REPORT AND RECOMMENDATION - 2

35a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 3 of 21

[JUROR 34]: Yes.

[PROSECUTOR]: Which means you see a whole lot.

[JUROR 34]: Yes.

[PROSECUTOR]: And where do you work? What school do you work in?

[JUROR 34]: Do I really need to say that?

[PROSECUTOR]: How about you just tell me the city. Is it an inner city

school?

[JUROR 34]: Yes.

[PROSECUTOR]: You see a whole lot?

[JUROR 34]: Yes.

[PROSECUTOR]: I am interested to hear from you—I mean, do you have

impressions about the criminal justice system?

[JUROR 34]: Yes.

[PROSECUTOR]: You are not going to hurt my feelings if you talk about

them a little bit. What are your thoughts?

[JUROR 34]: Gosh, I feel like I am on the spot here.

But being a person of color, I have a lot of thoughts about the criminal

system. I see—I have seen firsthand—and a couple people have already

mentioned that if you have money, you tend to seem to work the system and

get over. And regardless if you are innocent or guilty, if you want to be

innocent, your money says you are innocent.

And a person of color, even if you do have an affluent lawyer who has the

background, the finance to get you off, because you are a person of color, a

lot of times you are not going to get that same kind of opportunities.

And especially with this person being a person of color and being a male, I

am concerned about, you know, the different stereotypes. Even if we

haven’t heard anything about this case, we watch the news every night. We

see how people of color, especially young men, are portrayed in the news.

We never hardly ever see anyone of color doing something positive, doing

something good in their community.

REPORT AND RECOMMENDATION - 3

36a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 4 of 21

So kind of like what the person behind me is saying, since most of the

people in this room are white, I am wondering what’s running through their

mind as they see this young man sitting up here.

[PROSECUTOR]: Right. How about for you, do you think—I mean,

you’ve got a whole lot that you are feeling as you sit here and that you are

going to be asked to sit in judgment of somebody. How do you think you

are going to be able to handle that?

[JUROR 34]: I think number one, because I am a Christian, I know I can

listen to the facts and, you know, follow the judge’s instruction. But also

it’s kind of hard, and I haven’t mentioned this before because none of those

questions have come up for me to answer, but I lost a friend two weeks ago

to a murder, so it’s kind of difficult sitting here. Even though I don’t know

the facts of this particular case, and I would like to think that I can be fair

because I am a Christian, I did lose someone two weeks ago.

[PROSECUTOR]: Was that in Seattle?

[JUROR 34]: Yes.

[PROSECUTOR]: Was that [the] Tyrone case?

[JUROR 34]: Yes.

Report of Proceedings (RP) (Mar. 9, 2009) at 65-68. After a stretch break, the

prosecutor resumed questioning juror 34:

[PROSECUTOR]: Juror number 34, I am going to move on to the group,

but I wanted to close the loop with you. You have a lot that is going through

your mind currently both that would give you a lot of empathy for someone

who is charged with a crime and also empathy for someone who may be a

victim of a crime. In that way, you may be representative of the perfect

juror.

At the same time, we don’t put people in a position where it’s going to cause

them a lot of emotional pain. At this point do you think you could sit in this

case and listen to the facts and make a decision based solely on the evidence

presented in trial here and be fair to both sides?

[JUROR 34]: I’d like to think that I could be, but kind of what you just

mentioned just with the freshness and the rawness of the death of a friend,

I am wondering if that would kind of go through my mind. I like to think

that I am fair and can listen, be impartial, but I don’t know. I have never

been on a murder trial and have just lost a friend two weeks prior to a

murder.

REPORT AND RECOMMENDATION - 4

37a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 5 of 21

[PROSECUTOR]: What I am going to do, I am going to ask questions. I

am going to kind of move on to the rest of the group so that you have time

to think, and then we’ll come back and ask you maybe tomorrow to make

your final decision about whether or not you think you can be fair. I am

sorry for your loss.

Id. at 69-70. The next day, a different deputy prosecuting attorney followed up

with juror 34:

[PROSECUTOR]: Go back to [a] couple [of] people juror number 34 sorry

[to] focus on you again after yesterday but I just want to try and go back

[and] touch base with you. I know[ ] you mentioned yesterday that you had

some recent events in your life that may make it difficult for you to serve as

jurors [sic] in [this case]. Have you done anymore thinking about that?

How are you feeling today?

[JUROR 34]: Yes. I thought about it last night as well as this morning.

And, you know, my thought is I don’t want to be a part of this jury because

of the situations, and the circumstances that I just went through. But I’m

thinking if ever I was put in a situation where I needed twelve people who

could be honest and look through all the facts or I guess I’m saying who

could be like me I would want me. So sometimes you have to do things that

you don’t want to do.

[PROSECUTOR]: I guess my only concern is do you feel like maybe some

of the emotions that dredge up could cloud your judgment at all on either

side. Either you know against the defendant, against the State or I’m just

concerned about that particular issue?

[Court inquires whether juror 34 would like to answer the question in

private, but juror 34 declines.]

[PROSECUTOR]: So is that something you can set aside or worried at all

about the emotions kind of clouding in? I mean, it’s just so new in terms of

your life?

[JUROR 34]: I mean, I have never been in this situation where I have lost

someone. You just went to the funeral. He is young. Only 24. And to be

called to jury duty to perhaps be on a jury of a murder suspect. I don’t know

how I’m going to react. You know, I don’t know. I’m—I’m not an

emotional person, but I’m thinking as we go through it, and I hear the

testimony, and I see the pictures, I don’t know. I mean, I’m just being

honest. I don’t know how I’m going to feel.

RP (Mar. 10, 2009) at 41-43.

REPORT AND RECOMMENDATION - 5

38a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 6 of 21

¶ 6 After this exchange, the prosecution challenged juror 34 for cause. The

judge denied the challenge, and the prosecution announced its intent to exercise a

peremptory strike. At that point, Saintcalle raised a Batson challenge.

¶ 7 As required by Batson, the judge first found that Saintcalle had made a prima

facie showing of purposeful discrimination. Next, the prosecution presented raceneutral reasons for striking juror 34: the reasons were (1) juror 34’s “inattention”

during voir dire and (2) the recent death of juror 34’s friend. Id. at 101-02. The

prosecutor claimed to have spent “a lot of time watching juror 34” and asserted that

juror 34 was “very checked out.” Id. at 101.

¶ 8 The judge denied the Batson challenge, stating on the record that he accepted

the recent death of juror 34’s friend as a proper race-neutral reason for the strike.

Near the end of jury selection, the prosecution peremptorily struck juror 34,

excusing her from the jury.

¶ 9 The prosecution also attempted to exercise a peremptory against the sole

Mexican-American juror in the venire, juror 10, but the judge sustained Saintcalle’s

Batson challenge to that strike, rejecting each of the prosecutor’s proffered reasons

as pretextual. Id. at 119-20.

¶ 10 After Saintcalle was convicted, he appealed, alleging that the peremptory

strike of juror 34 (Ms. Tolson) violated the Fourteenth Amendment’s guaranty of

equal protection. The Court of Appeals rejected his argument finding there was no

purposeful discrimination and accepting the State’s race-neutral explanation. State

v. Saintcalle, noted at 162 Wash. App. 1028, 2011 WL 2520000 (2011). We

granted review only on the Batson issue. State v. Saintcalle, 172 Wash.2d 1020,

268 P.3d 224 (2011).

State v. Saintcalle, 178 Wash.2d 34, 36-41 (alterations in original).2

III.

GROUND FOR RELIEF

As noted above, petitioner identifies a single ground for relief: “By allowing the state to

strike the sole African American member of the jury venire, the trial court violated Mr. Saintcalle’s

right to equal protection under the Fourteenth Amendment as well as the rights of the excluded

venire person.” (Dkt. 23 at 14.) There is no dispute that petitioner properly exhausted his state

remedies and timely filed this federal habeas petition.

The additional procedural history has no bearing on the instant habeas petition and therefore is omitted.

REPORT AND RECOMMENDATION - 6

39a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 7 of 21

IV.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a habeas corpus

petition may be granted with respect to any claim adjudicated on the merits in state court only if

(1) the state court’s decision was contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court, or (2) the decision was based on an

unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

In considering claims pursuant to § 2254(d), the Court is limited to the record before the state court

that adjudicated the claim on the merits, and the petitioner carries the burden of proof. Cullen v.

Pinholster, 563 U.S. 170, 181-82 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th

Cir. 2013). “When more than one state court has adjudicated a claim, [the Court analyzes] the last

reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005) (citing Ylst v.

Nunnemaker, 501 U.S. 797, 803-04 (1991)).

Under § 2254(d)(1)’s “contrary to” clause, a federal court may grant the habeas petition

only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law, or if the state court decides a case differently than the Supreme Court has on a set

of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under

the “unreasonable application” clause, a federal habeas court may grant the writ only if the state

court identifies the correct governing legal principle from the Supreme Court’s decisions, but

unreasonably applies that principle to the facts of the prisoner’s case. See id. at 407-09. The

Supreme Court has made clear that a state court’s decision may be overturned only if the

application is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 69 (2003). The

Supreme Court has further explained that “[a] state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

REPORT AND RECOMMENDATION - 7

40a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 8 of 21

the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). Clearly established federal law, for purposes of AEDPA,

means “the governing legal principle or principles set forth by the Supreme Court at the time the

state court render[ed] its decision.” Lockyer, 538 U.S. at 71-72. This includes the Supreme Court’s

holdings, not its dicta. Id.

With respect to § 2254(d)(2), a petitioner may only obtain relief by showing that the state

court’s conclusion was based on “an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(quoting 28 U.S.C. § 2254(d)(2)); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“[A]

decision adjudicated on the merits in a state court and based on a factual determination will not be

overturned on factual grounds unless objectively unreasonable in light of the evidence presented

in the state-court proceedings.”). The Court presumes the state court’s factual findings to be sound

unless the petitioner rebuts “the presumption of correctness by clear and convincing evidence.”

Miller-El, 545 U.S. at 240 (quoting 28 U.S.C. § 2254(e)(1)).

DISCUSSION

Petitioner raises two challenges to the state court’s denial of his Batson claim. First, he

argues that the Washington Supreme Court’s decision is contrary to clearly established federal law

because it improperly altered the Batson test. (Dkt. 23 at 14-19.) Second, he contends that even

if the Washington Supreme Court applied the correct test, its decision was unreasonable. (Id. at

24-25.) As discussed below, neither argument is persuasive.

Batson’s analytical framework

The Equal Protection Clause forbids the use of peremptory challenges to exclude jurors

solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson claims are

REPORT AND RECOMMENDATION - 8

41a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 9 of 21

evaluated using a three-step test. “First, the trial court must determine whether the defendant has

made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of

race.” Rice v. Collins, 546 U.S. 333, 338 (2006) (citing Batson, 476 U.S. at 96-97). “Second, if

the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for

striking the juror in question.” Id. (citing Batson, 478 U.S. at 97). At the second step, the

prosecutor must offer a comprehensible, non-discriminatory reason, but the explanation does not

need to be persuasive or “even plausible.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 767-68

(1995) (per curiam)). Third, the court must determine “whether the defendant has carried his

burden of proving purposeful discrimination.” Id. (citing Batson, 478 U.S. at 98).

Although the defendant always has “the ultimate burden of persuasion regarding racial

motivation,” Batson’s third step involves evaluating the credibility of the prosecutor and his or her

proffered justification for the strike. Id. (quoting Purkett, 514 U.S. at 768); see also Snyder v.

Louisiana, 552 U.S. 472, 477 (2008). “[T]he trial court must evaluate not only whether the

prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can

credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.”

Snyder, 552 U.S. at 477. “[I]n considering a Batson objection, or in reviewing a ruling claim to

be Batson error, all of the circumstances that bear upon the issue of racial animosity must be

consulted.” Id. at 478.

Summary of the Washington Supreme Court’s decision

Before reaching the merits of petitioner’s Batson claim, the Washington Supreme Court

took the opportunity to address race discrimination in courtrooms, the context for Batson, how

race discrimination has changed over the years, and whether and how Batson protections could be

strengthened. Saintcalle, 178 Wash.2d at 41-55. The court began by acknowledging the harms

REPORT AND RECOMMENDATION - 9

42a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 10 of 21

caused by race discrimination in the judicial system and correctly setting forth the three-step

Batson analysis, which focuses on “purposeful discrimination.” Id. at 41-42. The court correctly

explained three elements of the “purposeful discrimination” analysis that have been articulated by

the Supreme Court: comparative juror analysis, which “entails examining whether the proffered

race-neutral explanation could apply just as well to a nonminority juror who was allowed to serve”;

disparate questioning of minority jurors, which “can provide evidence of discriminatory purpose

because it creates an appearance that an attorney is ‘fishing’ for a race-neutral reason to exercise

a strike”; and a proffer of pretextual reasons, which “gives rise to an inference of race

discrimination, and a court’s finding of discrimination against one juror is evidence of

discrimination of against other jurors.” Id. at 43 (citing, inter alia, Miller-El, 545 U.S. at 241, and

Snyder, 552 U.S. at 485, 472).

The court then discussed Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson,

476 U.S. 79, which held that purposeful discrimination in the use of peremptory challenges violates

the Equal Protection Clause, but required proof of a long-running pattern of purposeful

discriminatory acts, which Batson later described as a “crippling burden of proof.” Saintcalle, 178

Wash.2d at 43-44. The court concluded that Batson has done little more than Swain to curb

discrimination in jury selection, noting a recent report that concluded “peremptory challenges have

become a cloak for race discrimination.” Id. at 44-45. The court noted, “In over 40 cases since

Batson, Washington appellate courts have never reversed a conviction based on a trial court’s

erroneous denial of a Batson challenge. [. . .] This is rather shocking and underscores the

substantial discretion that is afforded to trial courts under Batson.” Id. at 46 (emphasis in original).

The court concluded that Batson “appears to have created a ‘crippling burden,’” like Swain before

it. Id.

REPORT AND RECOMMENDATION - 10

43a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 11 of 21

The court went on to opine that part of the problem is that racism has changed: “It is now

socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are

ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate

them.” Id. After reviewing some of the scholarly articles on unconscious prejudice and implicit

bias, the court found,

Unconscious stereotyping upends the Batson framework. Batson is only equipped

to root out ‘purposeful’ discrimination, which many trial courts probably

understand to mean conscious discrimination. But discrimination in this day and

age is frequently unconscious and less often consciously purposeful. That does not

make it any less pernicious. . . . Since Batson’s third step hinges on credibility, this

makes it very difficult to sustain a Batson challenge even in situations where race

has in fact affected decision-making.

Id. at 48-49 (emphasis in original). Given these problems, the court concluded that Batson

protections in Washington should be strengthened. Id. at 51. According to the court,

The main problem is that Batson’s third step requires a finding of “purposeful

discrimination,” which trial courts may often interpret to require conscious

discrimination. This is problematic because discrimination is often unconscious. A

requirement of conscious discrimination is especially disconcerting because it

seemingly requires judges to accuse attorneys of deceit and racism in order to

sustain a Batson challenge. [citation omitted] Imagine how difficult it must be for

a judge to look a member of the bar in the eye and level an accusation of deceit or

racism. [footnote omitted] And if the judge chooses not to do so despite misgivings

about possible race bias, the problem is compounded by the fact that we defer

heavily to the judge’s findings on appeal. [citation omitted] A strict “purposeful

discrimination” requirement thus blunts Batson’s effectiveness and blinds its

analysis to unconscious racism.[3] As a first step, we should abandon and replace

[Washington Supreme Court footnote 8] It could be argued (although none of the parties makes this

argument) that “purposeful discrimination” already encompasses unconscious bias. This argument flows from the

idea that the “purposeful discrimination” requirement was never intended to be a proxy for conscious intent or anything

resembling a conscious mens rea, but rather a signpost for distinguishing between discriminatory purpose and

disproportionate impact. Before Batson was decided, it was well established that disproportionate impact alone does

not violate the equal protection clause. See Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 48 L.Ed.2d 597

(1976). It could be argued that Batson’s “purposeful discrimination” requirement therefore meant not that the state’s

attorney need be found intentionally racist, only that racial bias (conscious or unconscious, as the argument would go)

be the source of any disparate impact. This argument finds support in scholarship and in the United States Supreme

Court’s equal protection jurisprudence regarding jury selection. See, e.g., Alexander v. Louisiana, 405 U.S. 625, 632,

92 S. Ct. 1221, 31 L.Ed.2d 536 (1972) (finding that disproportionate exclusion of blacks in subjective jury selection

process was clearly discriminatory even with “no evidence that the commissioners consciously selected by race”);

REPORT AND RECOMMENDATION - 11

44a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 12 of 21

Batson’s “purposeful discrimination” requirement with a requirement that

necessarily accounts for and alerts trial courts to the problem of unconscious bias,

without ambiguity or confusion.

Id. at 53-54. The court, however, declined to take immediate action, in part because neither party

asked for a new standard or framework, and instead called for a methodical process of “formulating

a new, functional method to prevent racial bias in jury selection.” Id. at 52, 55.

Finally, the Washington Supreme Court applied Batson to petitioner’s case, finding no

clear error in the trial court’s determination that the prosecutor had a valid race-neutral reason to

strike juror 34. Id. at 56. The court explained:

Ms. Tolson said she might have trouble sitting on the jury of a murder trial because

someone she knew had recently been murdered:

I mean, I have never been in this situation where I have lost someone. You

just went to the funeral. He is young. Only 24. And to be called to jury

duty to perhaps be on a jury of a murder suspect. I don’t know how I’m

going to react. You know, I don’t know. I’m–I’m not an emotional person,

but I’m thinking as we go through it, and I hear the testimony, and I see the

pictures, I don’t know. I mean, I’m just being honest. I don’t know how

I’m going to feel.

RP (Mar. 10, 2009) at 43. In light of Ms. Tolson’s statements throughout voir dire,

we defer to the trial court’s factual finding that the prosecutor was justified in

believing there was a realistic possibility that she might have been “lost” as a juror

before the end of the case. The record does not compel a contrary conclusion. The

trial court observed the juror and agreed that she was having difficulties. Losing

jurors during a lengthy trial is always a possibility, and justice is not served when

a mistrial is declared or a juror is unable to view and process the evidence. Here,

it was entirely reasonable for the court to conclude that the prosecutor’s concerns

were legitimate and race-neutral, and there was no clear error. We affirm the trial

court’s finding that there was no purposeful discrimination.

¶ 48 We do, however, acknowledge that Ms. Tolson was questioned far more

Batson, 476 U.S. at 94, 106 S. Ct. 1712 (citing Alexander); see also Hernandez v. Texas, 347 U.S. 475, 482, 74 S. Ct.

667, 98 L. Ed. 866 (1954) (“The result bespeaks discrimination, whether or not it was a conscious decision on the part

of any individual. . . .”); Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?:

Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1090-93 (2009) (concluding that “discriminatory purpose”

includes unconscious bias under current equal protection jurisprudence). This argument makes sense, but we do not

consider it here. The issue was not raised or decided below, the trial court easily could have understood “purposeful

discrimination” to include unconscious bias, and the facts of this case simply do not compel a finding of purposeful

discrimination even if considering unconscious discrimination.

REPORT AND RECOMMENDATION - 12

45a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 13 of 21

than any other juror, perhaps in part because she was black. This conclusion is

supported by a statistical analysis of the prosecution’s voir dire that appears in

Appendix A, attached to this opinion. [footnote omitted] These statistics are rather

striking, and in general, disparate questioning of minority jurors can provide

evidence of discriminatory purpose because it can suggest that an attorney is

“fishing” for a race-neutral reason to exercise a strike. See Miller-El, 545 U.S. at

241, 125 S. Ct. 2317; Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir. 2009).

However, disparate questioning does not itself prove purposeful discrimination. In

some cases, there may be good reasons to question minority jurors more than

nonminority jurors. Here, for example, the prosecutor began by eliciting Ms.

Tolson’s views on race in the criminal justice system and later spoke with her

regarding the recent death of her friend. These were legitimate topics to explore.

[footnote omitted] We defer to the trial court that the disparate questioning in this

case, while it may have been motivated in part by race, did not necessarily amount

to purposeful discrimination.

¶ 49 We also acknowledge that the prosecution attempted to strike the only

Mexican-American juror in the venire, juror 10. RP (Mar. 10, 2009) at 119-20.

And while it is true that a court’s finding of discrimination against one juror is

evidence of discrimination against others, it does not follow that one Batson

violation necessarily implies another. Snyder, 552 U.S. at 478, 128 S. Ct. 1203.

¶ 50 Under Batson, we defer to the trial court’s ruling.

Id. at 56-57.

The state court decision is not contrary to clearly established federal law

Petitioner’s main argument is that the Washington Supreme Court’s decision is contrary to

Batson because the state court required a showing of “racism,” rather than Batson’s lower standard

of “purposeful discrimination.” (Dkt. 23 at 14.) Petitioner primarily relies on the following

passage from Saintcalle: “The main problem is that Batson’s third step requires a finding of

‘purposeful discrimination,’ which trial courts may often interpret to require conscious

discrimination. This is problematic because discrimination is often unconscious. A requirement

of conscious discrimination is especially disconcerting because it seemingly requires judges to

accuse attorneys of deceit and racism in order to sustain a Batson challenge.” Saintcalle, 178

Wash.2d at 53 (emphases added). According to petitioner, this passage amounts to a directive

REPORT AND RECOMMENDATION - 13

46a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 14 of 21

from the Washington Supreme Court that lower state courts require a showing that a prosecutor

was motivated by racism, rather than Batson’s “purposeful discrimination.” (Dkt. 23 at 16.)

Petitioner contends that “racism” is more difficult to establish than “purposeful discrimination,”

relying definitions from Black’s Law Dictionary. (Id.)

On habeas review, the Court applies clearly established federal law. The Supreme Court

has not expressly defined “purposeful discrimination” in the Batson context, and thus there is no

basis in Supreme Court precedent for petitioner’s claim—based on dictionary definitions—that

“racism” is somehow different from and more difficult to prove than “purposeful discrimination.”

Moreover, rather than distinguishing between “purposeful discrimination” and “racism,” the

Washington Supreme Court focused on conscious versus unconscious racial bias. See Saintcalle,

178 Wash.2d at 46-54. The court was concerned that “purposeful discrimination” is more often

interpreted narrowly to include only conscious discrimination. See Saintcalle, 178 Wash.2d at 48

(“Batson is only equipped to root out ‘purposeful’ discrimination, which many trial courts

probably understand to mean conscious discrimination.”); see also Snyder, 552 U.S. at 447 (using

“discriminatory intent” interchangeably with “purposeful discrimination”). The court noted,

however, that there is some support in Supreme Court precedent for an understanding of

“purposeful discrimination” that encompasses both conscious and unconscious racial bias.

Saintcalle, 178 Wash.2d at 53 n.8.

discrimination” included both conscious and unconscious bias, the facts of petitioner’s case did

not compel a finding that there was a Batson violation. Id. at 53 n.8, 56-57. Contrary to petitioner’s

assertions, the court did not adopt a more difficult standard to meet than Batson requires.

The court ultimately found that even if “purposeful

Petitioner also faults the Washington Supreme Court for characterizing Batson as creating

a “crippling burden,” claiming that the burden can only be described crippling when it requires

REPORT AND RECOMMENDATION - 14

47a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 15 of 21

proving racism on the part of the prosecutor. (Dkt. 23 at 18.) Petitioner posits that Washington

courts’ apparent misapplication of Batson can help explain why Washington appellate courts have

never reversed a conviction based on Batson, as noted by the Washington Supreme Court. (Id.)

But petitioner merely cites portions of the state court’s decision that supported its conclusion that

Batson protections need to be strengthened.

Supreme Court incorrectly set forth the Batson standard that it applied to petitioner’s case. A

review of the Washington Supreme Court’s entire opinion establishes that it is not contrary to

clearly established federal law.

Neither argument establishes the Washington

The state court decision did not rest on an unreasonable determination

Under AEDPA, the state court’s finding that the prosecutor’s race-neutral explanations

were true can only be overturned if the petitioner shows that it is “an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” Miller-El, 545 U.S.

at 240 (quoting 28 U.S.C. § 2254(d)(2)). In addition, the Court presumes that the state court’s

factual findings are sound unless the petitioner rebuts the “presumption of correctness by clear and

convincing evidence.” Id. (quoting 28 U.S.C. § 2254(e)(1)).

Petitioner argues that the state court’s denial of his Batson claim is unreasonable because

the decision did not take into account everything juror 34 said during voir dire and because a

finding of purposeful discrimination is supported by a comparative juror analysis, the prosecutors’

disparate questioning of juror 34, and the prosecutor’s attempt to peremptorily strike juror 10, the

only other minority among the prospective jurors. (Dkt. 23 at 19-25.) As discussed below,

petitioner fails to establish that it was objectively unreasonable for the Washington Supreme Court

to credit the prosecutor’s race-neutral reasons for striking juror 34. See Miller-El v. Cockrell, 537

U.S. 322, 340 (2003) (stating that § 2254(d)(2) only provides for habeas relief when a state court

REPORT AND RECOMMENDATION - 15

48a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 16 of 21

decision is based on a factual determination that is “objectively unreasonable in light of the

evidence presented in the state-court proceedings”).

Petitioner first asserts the prosecutor’s proffered race-neutral reason for peremptorily

striking juror 34—that there was a possibility of losing her during trial because she did not know

what effect the testimony and photographs of the victim would have on her, given that her friend

was recently murdered—ignored juror 34’s statements that she did not tend to be an emotional

person, that she was the right type of person to serve as a juror because she would be honest and

look at all of the facts, that she could follow the judge’s instructions, and that she thought it was

her duty to sit on the jury despite the recent murder of her friend. (Dkt. 23 at 20.) According to

petitioner, juror 34 made “unequivocal statements that she believed she could serve as a juror” in

the case, which makes the prosecutor’s assertion that the court might lose her “highly speculative.”

(Id. (citing Snyder, 552 U.S. at 482).)

The Washington Supreme Court, however, considered juror 34’s “statements throughout

voir dire.” Saintcalle, 178 Wash.2d at 56. And rather than being “unequivocal,” she vacillated

between asserting that she could be fair and expressing concern about her abilities given the recent

murder of her friend. On the first day of voir dire, she stated: “I know I can listen to the facts and,

you know, follow the judge’s instruction. . . . [B]ut I lost a friend two weeks ago to a murder, so

it’s kind of difficult sitting here.” (Dkt. 23-1 at 258-59.) She also said, “I like to think that I am

fair and can listen, be impartial, but I don’t know. I have never been on a murder trial and have

just lost a friend two weeks prior to a murder.” (Id. at 261.) When the prosecutor followed up the

next day, she initially stated:

[M]y thought is I don’t want to be a part of this jury because of the situations, and

the circumstances that I just went through. But I’m thinking if ever I was put in a

situation where I needed twelve people who could be honest and look through all

the facts . . . I would want me. So sometimes you have to do things that you don’t

REPORT AND RECOMMENDATION - 16

49a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 17 of 21

want to do.

(Id. at 328-29.) But when the prosecutor specifically asked whether her recent experiences would

cloud her judgment in the case, juror 34 expressed uncertainty:

I mean, I have never been in this situation where I have lost someone. You just

went to the funeral. He is young. Only 24. And to be called to jury duty to perhaps

be on a jury of a murder suspect. I don’t know how I’m going to react. You know,

I don’t know. I’m–I’m not an emotional person, but I’m thinking as we go through

it, and I hear the testimony, and I see the pictures, I don’t know. I mean, I’m just

being honest. I don’t know how I’m going to feel.

(Id. at 330.) Given juror 34’s admission that she might have trouble sitting on the jury because of

her friend’s recent murder, the Washington Supreme Court reasonably deferred to the trial judge’s

factual finding that there was “a realistic possibility that she might have been ‘lost’ as a juror before

the end of the case.” Saintcalle, 178 Wash.2d at 56.

Petitioner cites Snyder for his claim that this conclusion was “highly speculative,” but

Snyder is readily distinguishable. In that case, the prosecutor asserted apprehension that the

prospective juror, “in order to minimize the student teaching hours missed during jury service,

might have been motivated to find petitioner guilty, not of first-degree murder, but of a lesser

included offense because this would obviate the need for a penalty phase proceeding.” Snyder,

552 U.S. at 482. The Supreme Court offered two reasons why this justification was “highly

speculative.” First, assuming the prospective juror wanted a quick resolution, if the majority of

other jurors favored a finding of first-degree murder, he might have sided with them to speed

deliberations, rather than holding out for a lesser included offense. Id. Second, the prosecutor

anticipated a short trial, which meant that serving as a juror would not have seriously interfered

with the prospective juror’s student teaching requirements. Id. Indeed, the prospective juror had

secured the promise of the dean of his school to “work with” him so that he could make up any

REPORT AND RECOMMENDATION - 17

50a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 18 of 21

missed time. Id. at 482-83.

In contrast to Snyder, the prosecutor’s concerns in petitioner’s case regarding juror 34 were

neither illogical nor contradicted by the record. Juror 34 felt it was her duty to serve, but she was

struggling with the recent murder of her friend. Petitioner’s murder trial was going to be lengthy.

(Dkt. 23-1 at 168.) It would involve somewhat explicit photographs of bodies and blood. (Id. at

353-54.) Juror 34 was not sure how she was going to respond given the freshness of her friend’s

murder. (Id. at 330.) The state court reasonably credited the prosecutor’s reason for peremptorily

striking juror 34.

Petitioner next argues that if the prosecutor’s proffered explanation for striking juror 34

had been genuine, the prosecutor also would have dismissed juror 33, who was acquainted with

multiple individuals who had been shot. (Dkt. 23 at 21.) “If a prosecutor’s proffered reason for

striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to

serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s

third step.” Miller-El, 545 U.S. at 241. But there are material differences between juror 33 and

juror 34. Juror 34 was dismissed because of the recency of her young friend’s murder and her

uncertainty regarding how she would handle being a juror in a murder case. Juror 33 had

“acquaintances” in law enforcement who had been “shot.” (Dkt. 23-1 at 302-03.) There is no

indication in the record that these shootings were recent, that anyone died as a result, or that juror

33 was struggling with emotions that could interfere with sitting on the jury. (See id. at 303.)

Petitioner also faults the prosecutor for not challenging white jurors with defense friendly

positions. (Dkt. 23 at 22-23.) But the Supreme Court’s comparative juror analysis does not look

at general attitudes espoused by jurors who are empaneled; it focuses on the prosecutor’s reasons

for seeking to strike the prospective juror at the center of the Batson challenge. See Miller-El, 545

REPORT AND RECOMMENDATION - 18

51a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 19 of 21

U.S. at 241. The prosecutor sought to strike juror 34 because of concerns about her ability to sit

through a lengthy murder trial given the recent murder of her friend. The same concerns do not

apply to any of the other jurors.

Next, petitioner raises the fact that the prosecutors questioned juror 34 more than any other

member of the venire. (Dkt. 23 at 21-22.) As the Washington Supreme Court noted, “[D]isparate

questioning of minority jurors can provide evidence of discriminatory purpose because it can

suggest that an attorney is ‘fishing’ for a race-neutral reason to exercise a strike.” Saintcalle, 178

Wash.2d at 57 (citing Miller-El, 545 U.S. at 241, and Reed v. Quarterman, 555 F.3d 364, 379 (5th

Cir. 2009)). While acknowledging the disparate questioning of juror 34, the Washington Supreme

Court ultimately concluded that it did not compel a finding of purposeful discrimination because

the prosecutor questioned juror 34 about legitimate topics. Id. Petitioner concedes that the topics

discussed, namely juror 34’s views on race in the criminal justice system and the recent murder of

her friend, may have warranted some questioning, but he argues that the prosecutor went too far.

(Dkt. 23 at 22.) Nevertheless, given the legitimacy of the topics discussed, the Court cannot

conclude that the state court was unreasonable. Petitioner also maintains that the prosecutor should

have questioned other prospective jurors in similar detail, pointing to juror 33, who had

acquaintances who were shot, and juror 72, who initiated the discussion of race in the criminal

justice system. (Id.) But neither juror 33 nor juror 72 indicated that they would have difficulty

with the trial, and therefore petitioner’s arguments do not provide a basis for habeas relief.

Finally, petitioner argues that the state courts violated Batson by dismissing juror 34

because the prosecutor also tried to strike the only other non-white venire member, juror 10, who

was Mexican-American. (Dkt. 23 at 23-24.) The Washington Supreme Court acknowledged this

fact but concluded that it did not render juror 34’s dismissal a Batson violation: “[W]hile it is true

REPORT AND RECOMMENDATION - 19

52a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 20 of 21

that a court’s finding of discrimination against one juror is evidence of discrimination against

others, it does not follow that one Batson violation necessarily implies another.” Saintcalle, 178

Wash.2d at 58 (citing Snyder, 552 U.S. at 478). Petitioner does not show that this conclusion was

objectively unreasonable given juror 34’s statements and demeanor during voir dire. See id. at 56

(quoting juror 34 and noting the trial court’s observation that she was having difficulties).

In sum, petitioner does not establish that the state court made an unreasonable

determination of the facts in light of the evidence presented. Accordingly, he is not entitled to

habeas relief on his Batson claim.

Evidentiary hearing

Petitioner asks the Court to hold an evidentiary hearing. Because his claims can be resolved

by reference to the state court record, an evidentiary hearing is not necessary. See Totten v. Merkle,

137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can

be resolved by reference to the state court record.”).

VI.

CERTIFICATE OF APPEALABILITY

A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s

dismissal of his federal habeas petition only after obtaining a certificate of appealability from a

district or circuit judge. A certificate of appealability may issue only where a petitioner has made

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner

satisfies this standard “by demonstrating that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). Under this standard, the Court concludes that a certificate of appealability should be

granted.

REPORT AND RECOMMENDATION - 20

53a

Case 2:15-cv-00156-BJR Document 31 Filed 10/12/17 Page 21 of 21

VII.

CONCLUSION

The Court recommends petitioner’s habeas petition be DENIED without an evidentiary

hearing and this action be DISMISSED with prejudice. The Court further recommends that a

certificate of appealability be GRANTED as to petitioner’s sole ground for relief. A proposed

order accompanies this Report and Recommendation.

Objections to this Report and Recommendation, if any, should be filed with the Clerk and

served upon all parties to this suit within twenty-one (21) days of the date on which this Report

and Recommendation is signed. Failure to file objections within the specified time may affect

your right to appeal. Objections should be noted for consideration on the District Judge’s motions

calendar for the third Friday after they are filed. Responses to objections may be filed within

fourteen (14) days after service of objections. If no timely objections are filed, the matter will be

ready for consideration by the District Judge on November 3, 2017.

Dated this 12th day of October, 2017.

Mary Alice Theiler

United States Magistrate Judge

REPORT AND RECOMMENDATION - 21

54a

55a

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Personal

Restraint of:

No. 73189-1-1

KIRK RICARDO SAINTCALLE,

ORDER OF DISMISSAL

Petitioner.

Kirk Saintcalle filed this personal restraint petition challenging his convictions

following a jury trial for felony murder in the first degree and three counts of assault in

the second degree in King County Superior Court No. 07-1-02250-0.

In order to obtain

collateral relief by means of a personal restraint petition, Saintcalle must demonstrate

either an error of constitutional magnitude that gives rise to actual prejudice or a

nonconstitutional error that inherently results in a "complete miscarriage of justice." |n

re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).

This court and the Washington Supreme Court affirmed Saintcalle's convictions

on appeal. State v. Saintcalle, No. 64467-0-I, noted at 162 Wn. App. 1028 (2011);

State v. Saintcalle, 178 Wn.2d 34, 309 P.3d 326 (2013), cert, denied, 134 S. Ct. 831

(2013). In this court's unpublished decision on direct appeal, the court summarized the

evidence as follows:

In the early morning hours of February 9, 2007, Kirk Saintcalle and his

friend Narada Roberts, Roberts' brother Roderick, and two other males drove to

Tamara Brown's apartment located in Auburn to find out who had assaulted

Narada Roberts on New Year's Eve.

While she was upstairs in her apartment, Brown heard a knock on the

front door and heard her boyfriend Anthony Johnson walk toward the door.

56a

No. 73189-1-1/2

Brown decided it was unusually quiet downstairs and went to see what was going

on. At the door, Brown saw Johnson and other people, including Saintcalle.

Brown testified that Saintcalle held a gun to her face, rushed her up the stairs,

and forced her, along with her roommate Latasha Ellis and Ellis' boyfriend,

Ronald Robinson, into a bedroom closet and told them to get on their knees and

stay there. Robinson and Ellis testified to similar versions of the events.

Robinson testified that he started to go downstairs because he heard commotion;

downstairs, he saw three males wrestling Johnson to the ground. One of these

males was holding an assault rifle. Robinson wanted to help Johnson, but

Saintcalle pushed him back up the stairs, holding a semiautomatic pistol. Ellis

also testified that Saintcalle chased Brown and Robinson up the stairs while

holding a handgun and that he pointed the gun at all three of them when they

were in the closet.

While Brown, Ellis, and Robinson were in the closet, Narada Roberts and

Roderick Roberts entered the bedroom. Narada Roberts was holding an assault

rifle and put the gun up against each of the three people's heads. Narada

Roberts took a suitcase from the closet in the bedroom. The Roberts brothers

then left the bedroom and Saintcalle returned. He told Brown there was just

something we got to take care of. Saintcalle then left the bedroom and went back

downstairs. The next thing Brown heard were gunshots. Robinson testified that at

the time the shots were fired, Narada Roberts was in the bedroom with his gun

pointed at Brown's head. Ellis testified that at the time she heard the gunshots,

Saintcalle was downstairs.

Officer Daniel O'Neil of the Auburn Police Department was dispatched to a

call of shots fired at an apartment. Officer O'Neil and other officers located the

apartment, opened the front door, and saw a body, later identified as Anthony

Johnson, lying on the ground in a bathroom that was just inside the door. The

officers also saw a shell casing and a bullet fragment on the ground near

Johnson's feet. Johnson was dead. He sustained three gunshot wounds. The

murder weapon was determined to be a .45 caliber handgun.

See State v. Saintcalle, No. 64467-0-1 at 1.

According to Saintcalle's petition, the State amended the charging document just

before trial. His counsel requested a continuance, but the motion was denied. As a

result, he claims that his counsel was "totally unprepared for trial" and was

constitutionally deficient.

57a

No. 73189-1-1/3

To establish ineffective assistance of counsel, Saintcalle must show that

counsel's performance was deficient and that prejudice resulted from the deficiency.

Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State

v. Thomas. 109 Wn.2d 222, 743 P.2d 816 (1987). Reviewing courts presume that

counsel was competent and followed a reasonable trial strategy. Strickland, 466 U.S. at

689-90. Prejudice requires "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland. 466 U.S. at 694, 104 S. Ct. 2052; Thomas, 109 Wn.2d at 226.

Saintcalle fails to identify or allege any deficiency on the part of counsel. He

argues that counsel was unprepared for trial as a general matter, but offers no specific

examples of counsel's lack of preparation. And beyond vague and conclusory

assertions, he fails to establish that he was prejudiced.

Saintcalle next alleges that the prosecutor engaged in misconduct by permitting

the "known false testimony" of numerous witnesses and by amending the charging

document shortly before trial. To prevail on a claim of prosecutorial misconduct, a

defendant must show that the prosecutor's conduct was both improper and prejudicial.

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). There is

nothing in the record to suggest that the State deliberately elicited any false testimony.

Saintcalle fails to demonstrate that amendment of the charging document amounted to

misconduct.

In a similar vein, Saintcalle contends that he was convicted on the basis of false

testimony in violation of his right to due process. But Saintcalle's assertion that some

58a

No. 73189-1-1/4

witnesses' testimony was inconsistent with earlier statements does not establish that he

was convicted on the basis of testimony "known to be perjured."

In his direct appeal, both this court and the Washington Supreme Court rejected

Saintcalle's claim under Batson v. Kentuckv, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d

69 (1986), concluding that the trial court's finding of no purposeful discrimination was

not clearly erroneous.

In his petition, Saintcalle again challenges that determination.

He argues that while the State's use of peremptory challenges may have been

discriminatory in an unintentional and institutional sense, "it was also very deliberate."

A petitioner may not renew issues that were considered and rejected on direct

appeal unless the interests of justice require relitigation of those issues. In re Pers.

Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). "A personal restraint

petition is not meant to be a forum for relitigation of issues already considered on direct

appeal[.]" In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 491, 965 P.2d 593 (1998). Nor

may a petitioner simply revise a previously rejected argument by alleging different facts

or by asserting different legal theories. Lord, 123 Wn.2d at 329. Although Saintcalle

claims he should not be barred from relitigating issues in this petition, he fails to identify

any fundamental error, intervening change in the law, or other circumstances justifying

reconsideration of the issue. In other words, he makes no showing that the interests of

justice require allowing him to relitigate this claim.

In resolving Saintcalle's direct appeal, the lead opinion of the Washington

Supreme Court acknowledged a need to revisit the entire framework of Batson in a

future case, but declined to do so in Saintcalle's case because the issue was not fully

briefed nor was the record adequately developed. Saintcalle, 178 Wn. 2d at 55. In his

59a

No. 73189-1-1/5

petition, Saintcalle "formally requests that this court 'advance a new standard'" so that

juries will more accurately reflect the demographics of the local area. However,

Saintcalle does not propose a new standard or framework, nor explain how any new

prospective standard would affect his case.

Saintcalle also appears to claim that continuances of the trial date violated his

constitutional right to a speedy trial. He asserts that the trial court granted numerous

continuances even though the defense was ready for trial. However, even if true, this

does not demonstrate that the court's rulings were in error, that the continuances

resulted in a constitutional violation, or that Saintcalle was prejudiced.

Saintcalle appears to claim that he was convicted of crimes for which he was not

charged because his felony murder conviction was based on the predicate crimes of

burglary or robbery. But Saintcalle was charged and convicted of only felony murder

based upon Johnson's death.

Saintcalle also alleges that the court abused its discretion in allowing the Stateto

amend the charging document just before trial and by denying counsel's motion for a

continuance. He offers no cogent argument however and fails to establish a basis for

relief under the standards applicable on collateral review.

Saintcalle appears to allege that he was erroneously charged and convicted as a

principle. He also contends that the evidence was insufficient to convict him of felony

murder as an accomplice because he lacked knowledge of his co-participants' specific

crimes. He claims that he was entitled to a unanimous jury determination as to which of

the alleged means was the basis for his felony murder conviction. But here again, this

court addressed and rejected these arguments on direct appeal.

60a

No. 73189-1-1/6

Finally, Saintcalle argues that cumulative error requires a new trial. But claims

which alone are insufficient to grant relief in a personal restraint petition do not become

meritorious simply by aggregating them into one claim. Pirtle, 136 Wn.2d at 496-97.

In sum, Saintcalle has not stated grounds upon which relief can be granted by

way of a personal restraint petition.

Now, therefore, it is hereby

ORDERED that this personal restraint petition is dismissed under RAP 16.11(b).

Done this jfj

day of [<Aafch

, 2016.

Acting Chief/Judge

-j£.

C~:

61a

^-,-

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 1

Tom Chambers, J. Pro Tem., issued dissenting

opinion.

Supreme Court of Washington,

En Banc.

STATE of Washington, Respondent,

Kirk Ricardo SAINTCALLE, Petitioner.

West Headnotes

[1] Criminal Law 110

1158.17

110 Criminal Law

110XXIV Review

110XXIV(O) Questions of Fact and Findings

110k1158.17 k. Jury selection. Most Cited

Cases

The appellate court reviews Batson challenges

for clear error, deferring to the trial court to the extent that its rulings are factual; clear error exists

when the court is left with a definite and firm conviction that a mistake has been committed. (Per

Wiggins, J., with one justice concurring and six

justices concurring in result.)

No. 86257–5.

Argued May 10, 2012.

Decided Aug. 1, 2013.

Background: Defendant was convicted in a jury

trial in the Superior Court, King County, James E.

Rogers, J., of first-degree felony murder. The Court

of Appeals affirmed, 2011 WL 2520000. Defendant's petition for review was granted in part to address Batson issue.

Holdings: The Supreme Court, Wiggins, J., held

that:

(1) case did not present any of the circumstances

justifying exercise of Supreme Court's discretionary

power to determine sua sponte whether to replace

the Batson analysis or abolish peremptory challenges altogether, and

(2) State offered race-neutral reasons for exercising

peremptory strike on lone African-American venire

person.

[2] Jury 230

33(1.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(1.2) Particular Groups, Inclusion or Exclusion

230k33(1.15) k. Race. Most Cited

Cases

Race discrimination in courtrooms raises serious questions as to the fairness of the proceedings

conducted there. (Per Wiggins, J., with one justice

concurring and six justices concurring in result.)

Affirmed.

Madsen, C.J., concurred in result and issued

opinion in which J.M. Johnson, J., joined.

[3] Jury 230

Stephens, J., concurred in result and issued

opinion in which Fairhurst, J., and C. Johnson, J.,

joined.

33(1.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(1.2) Particular Groups, Inclusion or Exclusion

230k33(1.15) k. Race. Most Cited

Cases

González, J., concurred in result and issued

opinion.

62a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 2

Race discrimination mars the integrity of the

judicial system and prevents the idea of a democratic government from becoming a reality. (Per Wiggins, J., with one justice concurring and six justices

concurring in result.)

[4] Jury 230

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

When making a Batson challenge, the person

challenging the peremptory strike of a juror must

first make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; second, the burden shifts to the State

to come forward with a race-neutral explanation for

the challenge; third, the trial court then has the duty

to determine if the defendant has established purposeful discrimination; and finally, if the trial court

finds purposeful discrimination, the challenge

should be granted and the peremptory strike disallowed. (Per Wiggins, J., with one justice concurring

and six justices concurring in result.)

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

It is crucial to have meaningful and effective

procedures for identifying racially motivated juror

challenges because racial discrimination in selection of jurors harms not only the accused whose life

or liberty they are summoned to try; it also shamefully belittles minority jurors who report to serve

their civic duty only to be turned away on account

of their race. (Per Wiggins, J., with one justice concurring and six justices concurring in result.)

[5] Jury 230

[7] Jury 230

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

As part of the purposeful discrimination analysis when deciding a Batson challenge, trial courts

conduct a comparative juror analysis that examines

whether the proffered race-neutral explanation

could apply just as well to a nonminority juror who

was allowed to serve; a corollary to that is that disparate questioning of minority jurors can provide

evidence of discriminatory purpose because it creates an appearance that an attorney is “fishing” for

a race-neutral reason to exercise a strike. (Per Wiggins, J., with one justice concurring and six justices

concurring in result.)

33(1.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(1.2) Particular Groups, Inclusion or Exclusion

230k33(1.15) k. Race. Most Cited

Cases

Racial discrimination in the qualification or selection of jurors offends the dignity of persons and

the integrity of the courts, and permitting such exclusion in an official forum compounds the racial

insult inherent in judging a citizen by the color of

his or her skin. (Per Wiggins, J., with one justice

concurring and six justices concurring in result.)

[6] Jury 230

33(5.15)

[8] Jury 230

230 Jury

33(5.15)

230 Jury

63a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 3

sciously purposeful, which does not make it any

less pernicious. (Per Wiggins, J., with one justice

concurring and six justices concurring in result.)

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

During a Batson challenge inquiry, prosecutors

cannot go fishing for race-neutral reasons for using

a peremptory strike and then hide behind the legitimate reasons they do find; this disproportionately

affects minorities. (Per Wiggins, J., with one justice

concurring and six justices concurring in result.)

[9] Jury 230

[11] Jury 230

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

Problematically, people are rarely aware of the

actual reasons for their discrimination and will

genuinely believe the race-neutral reason they create to mask it; since Batson's third step hinges on

credibility, this makes it very difficult to sustain a

Batson challenge even in situations where race has

in fact affected decision-making. (Per Wiggins, J.,

with one justice concurring and six justices concurring in result.)

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

A prosecutor's proffer of pretextual reasons for

using a peremptory strike, during Batson challenge

inquiry, gives rise to an inference of race discrimination, and a court's finding of discrimination

against one juror is evidence of discrimination

against other jurors. (Per Wiggins, J., with one

justice concurring and six justices concurring in

result.)

[10] Jury 230

33(5.15)

[12] Jury 230

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

The systematic removal of minority jurors

through peremptory strikes creates a badge of inferiority, cheapening the value of the jury verdict.

(Per Wiggins, J., with one justice concurring and

six justices concurring in result.)

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

Unconscious racial stereotyping upends the

Batson framework since Batson is only equipped to

root out “purposeful” discrimination, which many

trial courts probably understand to mean conscious

discrimination; but discrimination in this day and

age is frequently unconscious and less often con-

[13] Jury 230

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory chal-

64a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 4

procedures will vary, explicitly granting states flexibility to fulfill the promise of equal protection in

the jury selection process. (Per Wiggins, J., with

one justice concurring and six justices concurring

in result.) U.S.C.A. Const.Amend. 14.

lenges. Most Cited Cases

A Batson analysis should reflect not only the

Fourteenth Amendment's equal protection guarantee, but also state constitutional jury trial protections. (Per Wiggins, J., with one justice concurring

and six justices concurring in result.) U.S.C.A.

Const.Amend. 14; West's RCWA Const. Art. 1, §

21.

[16] Jury 230

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

Washington courts may extend greaterthan-federal Batson protections to defendants under

the greater protection afforded under the state jury

trial right. (Per Wiggins, J., with one justice concurring and six justices concurring in result.) West's

RCWA Const. Art. 1, § 21.

1035(5)

[14] Criminal Law 110

110 Criminal Law

110XXIV Review

110XXIV(E) Presentation and Reservation in

Lower Court of Grounds of Review

110XXIV(E)1 In General

110k1035 Proceedings at Trial in General

110k1035(5) k. Competency of jurors and challenges. Most Cited Cases

First-degree felony murder case in which

neither party on appeal addressed efficacy of peremptory challenges and the Batson framework employed to eliminate purposeful racial discrimination

in the jury selection process, without regard to unconscious discrimination, did not present any of the

circumstances justifying exercise of Supreme

Court's discretionary power to determine, sua

sponte, whether to replace the Batson analysis or

abolish peremptory challenges altogether, although

the Court did recognize the need to begin the task

of formulating a new, functional method to prevent

racial bias in jury selection. (Per Wiggins, J., with

one justice concurring and six justices concurring

in result.)

[15] Jury 230

33(5.15)

[17] Criminal Law 110

1130(2)

110 Criminal Law

110XXIV Review

110XXIV(I) Briefs

110k1130 In General

110k1130(2) k. Specification of errors.

Most Cited Cases

The appellate courts are not in the business of

inventing unbriefed arguments for parties sua

sponte. (Per Wiggins, J., with one justice concurring and six justices concurring in result.)

[18] Jury 230

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

A strict “purposeful discrimination” requirement blunts Batson's effectiveness and blinds its

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

The Batson framework anticipates that state

65a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 5

analysis to unconscious racism in the jury selection

process. (Per Wiggins, J., with one justice concurring and six justices concurring in result.)

[19] Jury 230

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

The defendant who asserts a Batson challenge

carries the burden of proving purposeful discrimination. (Per Wiggins, J., with one justice concurring

and six justices concurring in result.)

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

State's explanation for using peremptory strike

on the lone African-American venire person, that

she might have trouble sitting on the jury of a

murder trial because someone she knew had recently been murdered, was race neutral and was not

a pretext for racial discrimination under Batson, in

first-degree felony murder prosecution. (Per Wiggins, J., with one justice concurring and six justices

concurring in result.)

[20] Jury 230

[22] Criminal Law 110

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)2 Matters or Evidence Considered

110k1134.7 k. Summoning, impaneling, or selection of jury. Most Cited Cases

Deference to trial court findings is critically

important in Batson cases because the trial court is

much better positioned than an appellate court to

examine the circumstances surrounding the challenge. (Per Wiggins, J., with one justice concurring

and six justices concurring in result.)

33(5.15)

[23] Criminal Law 110

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

A trial court's decision that a peremptory challenge is race-neutral is a factual determination

based in part on the answers provided by the juror,

as well as an assessment of the demeanor and credibility of the juror and the attorney. (Per Wiggins,

J., with one justice concurring and six justices concurring in result.)

[21] Jury 230

1134.7

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)2 Matters or Evidence Considered

110k1134.7 k. Summoning, impaneling, or selection of jury. Most Cited Cases

When reviewing a ruling on a Batson challenge, deference is important because trial judges

must have some assurance that the rest of the trial

will not be an exercise in futility if it turns out an

appellate court would have ruled on a Batson challenge differently. (Per Wiggins, J., with one justice

concurring and six justices concurring in result.)

33(5.15)

[24] Jury 230

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

230k33 Constitution and Selection of Jury

33(5.15)

230 Jury

230II Right to Trial by Jury

230k30 Denial or Infringement of Right

66a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 6

230k33 Constitution and Selection of Jury

230k33(5) Challenges and Objections

230k33(5.15) k. Peremptory challenges. Most Cited Cases

Concern that potential juror may be unable to

sit through entire trial may be valid, race-neutral

reason to exercise peremptory strike as losing jurors during a lengthy trial is always a possibility,

and justice is not served when a mistrial is declared

or a juror is unable to view and process the evidence. (Per Wiggins, J., with one justice concurring

and six justices concurring in result.)

because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional,

institutional, or unconscious. We conclude that our

Batson procedures must change and that we must

strengthen Batson to recognize these more prevalent forms of discrimination.

**329 Lila Jane Silverstein, Washington Appellate

Project, Seattle, WA, for Petitioner.

FACTS

¶ 4 Kirk Saintcalle was convicted of one count

of first degree felony murder and three counts of

second degree assault, all with firearm enhancements. Saintcalle was accused of entering an apartment in the city of Auburn with two companions,

holding three people at gunpoint, and shooting and

killing **330 Anthony Johnson. Saintcalle was

sentenced to 579 months in prison.

¶ 3 But we will not create a new standard in

this case because the issue has not been raised,

briefed, or argued, and indeed, the parties are not

seeking to advance a new standard. Applying Batson, we affirm the Court of Appeals.

Dennis John McCurdy, King County Prosecutor's

Office, Prosecuting Atty. King County, King Co.

Pros./App. Unit Supervisor, Seattle, WA, for Respondent.

WIGGINS, J.

*35 ¶ 1 This appeal raises important questions

about race discrimination in our criminal justice

system. Kirk Saintcalle, a black man, challenges

his conviction for first degree felony murder because the State used a peremptory challenge to

strike the only black venireperson in his jury pool.

Saintcalle claims the peremptory strike was clearly

racially motivated in violation of the equal protection guaranty enshrined in Batson v. Kentucky, 476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We

disagree. Batson requires a finding of purposeful

discrimination, and the trial court's finding that

there was no purposeful discrimination here is not

clearly erroneous. Accordingly, we affirm Saintcalle's conviction.

¶ 5 During jury selection at Saintcalle's trial,

the prosecution used a peremptory challenge to

strike the only black juror in the venire, juror 34,

Anna Tolson. This challenge came after the prosecution questioned juror 34 extensively during voir

dire—far more extensively than any other juror. Indeed, most of the prosecution's interactions with

jurors were quite brief, usually consisting of only a

few short questions, but not the interaction with juror 34. The State began questioning juror 34 after

another juror made a comment about race:

[JUROR 72]: I feel there are some areas of unfairness in our system. I am aware, for example,

that a jury of their peers [sic], yet as you look

around this panel, all of the faces are white.

¶ 2 However, we also take this opportunity to

examine whether our Batson procedures are robust

enough to effectively combat race discrimination in

the selection of juries. We conclude that they are

not. Twenty-six years after Batson, a growing body

of evidence shows that racial discrimination remains rampant in jury selection. In part, this *36 is

[JUROR 34]: No, not quite.

(Laughter.)

[PROSECUTOR]: You know what, you kind of

bring a very important topic to light. If you were

seated here in this chair and you looked out at

67a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 7

this panel, would you have any concern *37

about whether or not people are going to be able

to relate to you or listen to you or feel for you?

Juror number—What is your number? Juror number 34, I am going to ask you a little bit about

your background. You work at the YMCA?

mentioned that if you have money, you tend to

seem to work the system and get over. And regardless if you are innocent or guilty, if you want

to be innocent, your money says you are innocent.

And a person of color, even if you do have an

affluent lawyer who has the background, the finance to get you off, because you are a person of

color, a lot of times you are not going to get that

same kind of opportunities.

[JUROR 34]: I work in a middle school.

[PROSECUTOR]: So tell me how that works.

So you are a counselor?

[JUROR 34]: Yes.

And especially with this person being a person

of color and being a male, I am concerned about,

you know, the different *38 stereotypes. Even if

we haven't heard anything about this case, we

watch the news every night. We see how people

of color, especially young men, are portrayed in

the news. We never hardly ever see anyone of

color doing something positive, doing something

good in their community.

[PROSECUTOR]: Which means you see a

whole lot.

[JUROR 34]: Yes.

[PROSECUTOR]: And where do you work?

What school do you work in?

[JUROR 34]: Do I really need to say that?

So kind of like what the person behind me is

saying, since most of the people in this room are

white, I am wondering what's running through

their mind as they see this young man sitting up

here.

[PROSECUTOR]: How about you just tell me

the city. Is it an inner city school?

[JUROR 34]: Yes.

[PROSECUTOR]: You see a whole lot?

[PROSECUTOR]: Right. How about for you,

do you think—I mean, you've got a whole lot that

you are feeling as you sit here and that you are

going to be asked to sit in judgment of somebody.

How do you think you are going to be able to

handle that?

[JUROR 34]: Yes.

[PROSECUTOR]: I am interested to hear from

you—I mean, do you have impressions about the

criminal justice system?

[JUROR 34]: I think number one, because I am

a Christian, I know I can listen to the facts and,

you know, follow the judge's instruction. But also

it's kind of hard, and I haven't mentioned this before **331 because none of those questions have

come up for me to answer, but I lost a friend two

weeks ago to a murder, so it's kind of difficult sitting here. Even though I don't know the facts of

this particular case, and I would like to think that

I can be fair because I am a Christian, I did lose

someone two weeks ago.

[JUROR 34]: Yes.

[PROSECUTOR]: You are not going to hurt

my feelings if you talk about them a little bit.

What are your thoughts?

[JUROR 34]: Gosh, I feel like I am on the spot

here.

But being a person of color, I have a lot of

thoughts about the criminal system. I see—I have

seen firsthand—and a couple people have already

68a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 8

[PROSECUTOR]: Was that in Seattle?

people juror number 34 sorry [to] focus on you

again after yesterday but I just want to try and go

back [and] touch base with you. I know[ ] you

mentioned yesterday that you had some recent

events in your life that may make it difficult for

you to serve as jurors [sic] in [this case]. Have

you done anymore thinking about that? How are

you feeling today?

[JUROR 34]: Yes.

[PROSECUTOR]: Was that [the] Tyrone case?

[JUROR 34]: Yes.

Report of Proceedings (RP) (Mar. 9, 2009) at

65–68. After a stretch break, the prosecutor resumed questioning juror 34:

[PROSECUTOR]: Juror number 34, I am going

to move on to the group, but I wanted to close the

loop with you. You have a lot that is going

through your mind currently both that would give

you a lot of empathy for someone who is charged

with a crime and also empathy for someone who

may be a victim of a crime. In that way, you may

be representative of the perfect juror.

[JUROR 34]: Yes. I thought about it last night

as well as this morning. And, you know, my

thought is I don't want to be a part of this jury because of the situations, and the circumstances that

I just went through. But I'm thinking if ever I was

put in a situation where I needed twelve people

who could be honest and look through all the

facts or I guess I'm saying who could be like me I

would want me. So sometimes you have to do

things that you don't want to do.

At the same time, we don't put people in a position where it's going to cause them a lot of emotional pain. At this point do you *39 think you

could sit in this case and listen to the facts and

make a decision based solely on the evidence

presented in trial here and be fair to both sides?

[PROSECUTOR]: I guess my only concern is

do you feel like maybe some of the emotions that

dredge up could cloud your judgment at all on

either side. Either you know against the defendant, against the State or I'm just concerned about

that particular issue?

[JUROR 34]: I'd like to think that I could be,

but kind of what you just mentioned just with the

freshness and the rawness of the death of a

friend, I am wondering if that would kind of go

through my mind. I like to think that I am fair

and can listen, be impartial, but I don't know. I

have never been on a murder trial and have just

lost a friend two weeks prior to a murder.

[Court inquires whether juror 34 would like to

answer the question in private, but juror 34 declines.]

*40 [PROSECUTOR]: So is that something

you can set aside or worried at all about the emotions kind of clouding in? I mean, it's just so new

in terms of your life?

[PROSECUTOR]: What I am going to do, I am

going to ask questions. I am going to kind of

move on to the rest of the group so that you have

time to think, and then we'll come back and ask

you maybe tomorrow to make your final decision

about whether or not you think you can be fair. I

am sorry for your loss.

[JUROR 34]: I mean, I have never been in this

situation where I have lost someone. You just

went to the funeral. He is young. Only 24. And to

be called to jury duty to perhaps be on a jury of a

murder suspect. I don't know how I'm going to

react. You know, I don't know. I'm—I'm not an

emotional person, but I'm thinking as we go

through it, and I hear the testimony, and I see the

pictures, I don't know. I mean, **332 I'm just being honest. I don't know how I'm going to feel.

Id. at 69–70. The next day, a different deputy

prosecuting attorney followed up with juror 34:

[PROSECUTOR]: Go back to [a] couple [of]

69a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 9

RP(Mar. 10, 2009) at 41–43.

[1] ¶ 11 We review Batson challenges for clear

error, deferring to the trial court to the extent that

its rulings are factual. State v. Hicks, 163 Wash.2d

477, 486, 181 P.3d 831 (2008) (citing State v. Luvene, 127 Wash.2d 690, 699, 699, 903 P.2d 960

(1995) (quoting Hernandez v. New York, 500 U.S.

352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)

)). Clear error exists when the court is left with a

definite and firm conviction that a mistake has been

committed. E.g., Ass'n of Rural Residents v. Kitsap

County, 141 Wash.2d 185, 196, 4 P.3d 115 (2000).

¶ 6 After this exchange, the prosecution challenged juror 34 for cause. The judge denied the

challenge, and the prosecution announced its intent

to exercise a peremptory strike. At that point,

Saintcalle raised a Batson challenge.

¶ 7 As required by Batson, the judge first found

that Saintcalle had made a prima facie showing of

purposeful discrimination. Next, the prosecution

presented race-neutral reasons for striking juror 34:

the reasons were (1) juror 34's “inattention” during

voir dire and (2) the recent death of juror 34's

friend. Id. at 101–02. The prosecutor claimed to

have spent “a lot of time watching juror 34” and asserted that juror 34 was “very checked out.” Id. at

101.

ANALYSIS

[2][3] ¶ 12 Race discrimination in courtrooms

“raises serious questions as to the fairness of the

proceedings conducted there.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S.Ct.

2077, 114 L.Ed.2d 660 (1991). Discrimination

“mars the integrity of the judicial system and prevents the idea of a democratic government from becoming a reality.” Id.

¶ 8 The judge denied the Batson challenge,

stating on the record that he accepted the recent

death of juror 34's friend as a proper race-neutral

reason for the strike. Near the end of jury selection,

the prosecution peremptorily struck juror 34, excusing her from the jury.

[4][5] ¶ 13 It is crucial that we have meaningful and effective procedures for identifying racially

motivated juror challenges because “[r]acial discrimination in selection of jurors harms not only the

accused whose life or liberty they are summoned to

try”; it also shamefully belittles minority jurors

who report to serve their civic duty only to be

turned away on account of their race. Batson, 476

U.S. at 87, 106 S.Ct. 1712. Perhaps most damaging,

racial discrimination “undermine[s] public *42 confidence in the fairness of our system of justice.”

FN1

Id. at 87–88, 106 S.Ct. 1712. Racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the

**333 courts, and permitting such exclusion in an

official forum compounds the racial insult inherent

in judging a citizen by the color of his or her skin.

Edmonson, 500 U.S at 628, 111 S.Ct. 2077.

¶ 9 The prosecution also attempted to exercise

a peremptory against the sole Mexican–American

juror in the venire, juror 10, but the judge sustained

Saintcalle's Batson challenge to that strike, rejecting each of the prosecutor's proffered reasons as

pretextual. Id. at 119–20.

¶ 10 After Saintcalle was convicted, he appealed, alleging that the peremptory strike of juror

34 (Ms. Tolson) violated *41 the Fourteenth

Amendment's guaranty of equal protection. The

Court of Appeals rejected his argument finding

there was no purposeful discrimination and accepting the State's race-neutral explanation. State v.

Saintcalle, noted at 162 Wash.App. 1028, 2011 WL

2520000 (2011). We granted review only on the

Batson issue. State v. Saintcalle, 172 Wash.2d

1020, 268 P.3d 224 (2011).

FN1. A recent report by Washington's

Race and Equal Justice Task Force notes

that “ ‘bias pervades the entire legal system in general and hence [minorities] do

not trust the court system to resolve their

STANDARD OF REVIEW

70a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 10

disputes or administer justice evenhandedly.’ ” TASK FORCE ON RACE

AND THE CRIMINAL JUSTICE SYSTEM, PRELIMINARY REPORT ON

RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM at 6 (2011)

(alteration in original), available at http://

www. law. washington. edu/ About/ Race

Task Force/ preliminary_ report_ race_

criminal_ justice_ 030111. pdf (quoting

WASH. ST. MINORITY & JUSTICE

COMM'N,, 1990 Final Report at xxi

(1990), available at http:// www. courts.

wa. gov/ committee/ pdf/ Task Force. pdf).

the proposed bright line rule, a four-justice

dissent supporting it, and Chief Justice

Madsen concurring stating that “I agree

with the lead opinion in this case.

However, going forward, I agree with the

rule advocated by the dissent.” Id. at 658,

229 P.3d 752 (Madsen, C.J., concurring).

We grant Saintcalle's motion to strike the

issue because any statement about the

Rhone bright line rule would be dictum in

this case and because the State failed to

raise the issue in a timely manner. RAP

13.4(d).

[7][8] *43 ¶ 15 As part of the “purposeful discrimination” analysis, the Supreme Court has established a comparative juror analysis. This entails examining whether the proffered race-neutral explanation could apply just as well to a nonminority juror

who was allowed to serve. Miller–El v. Dretke, 545

U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196

(2005). A corollary is that disparate questioning of

minority jurors can provide evidence of discriminatory purpose because it creates an appearance that

an attorney is “fishing” for a race-neutral reason to

exercise a strike. Id. at 244–45, 125 S.Ct. 2317;

Reed v. Quarterman, 555 F.3d 364, 379 (5th Cir.

2009). We do not allow prosecutors to go fishing

for race-neutral reasons and then hide behind the legitimate reasons they do find. This disproportionately affects minorities.

[6] ¶ 14 Batson sets forth a three-part analysis

for determining whether a peremptory strike unconstitutionally discriminates based on race. First, the

person challenging the peremptory must “make out

a prima facie case of purposeful discrimination by

showing that the totality of the relevant facts gives

rise to an inference of discriminatory purpose.”

FN2

Batson, 476 U.S. at 93–94, 106 S.Ct. 1712.

Second, “the burden shifts to the State to come forward with a [race-]neutral explanation” for the

challenge. Id. at 97, 106 S.Ct. 1712. Third, “the trial court then [has] the duty to determine if the defendant has established purposeful discrimination.”

Id. at 98, 106 S.Ct. 1712. If the trial court finds purposeful discrimination, the challenge should be

granted and the peremptory strike disallowed.

FN2. The State argued for the first time in

its supplemental brief that we should repudiate the bright line rule approved by a majority of this court that “a defendant establishes a prima facie case of discrimination

when ... the record shows that the State exercised a peremptory challenge against the

sole remaining venire member of the defendant's constitutionally cognizable racial

group.” State v. Rhone, 168 Wash.2d 645,

659, 229 P.3d 752 (2010) (Alexander, J.,

dissenting) Rhone was a split decision,

with a four-justice lead opinion rejecting

[9] ¶ 16 Similarly, a proffer of pretextual reasons gives rise to an inference of race discrimination, and a court's finding of discrimination against

one juror is evidence of discrimination against other jurors. Snyder v. Louisiana, 552 U.S. 472, 485,

478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

I. Batson in context

¶ 17 Since 1879, the United States Supreme

Court has recognized that race discrimination in the

selection of jurors violates the Fourteenth Amendment's guaranty of equal protection. See Strauder v.

West Virginia, 100 U.S. (10 Otto) 303, 309–10, 25

L.Ed. 664 (1879). But to contextualize Batson we

71a

309 P.3d 326

178 Wash.2d 34, 309 P.3d 326

(Cite as: 178 Wash.2d 34, 309 P.3d 326)

Page 11

must look to its origins.

Capital Murder Trials: A Legal and Empirical

Analysis, 3 U. PA. J. CONST. L. 3, 52–53, 73,

n.197 (2001) (in 317 capital trials in Philadelphia

between 1981 and 1997, prosecutors struck 51%

of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and

54% of nonblack jurors; and race-based uses of

prosecutorial peremptories declined by only 2%

after Batson ); [Mary R.] Rose, The Peremptory

Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 Law and

Human Behavior 695, 698–699 (1999) (in one

North Carolina county, 71% of excused black jurors were removed by the prosecution; 81% of excused white jurors were removed by the defense);

[Neely] Tucker, In Moore's Trials, Excluded Jurors Fit Racial Pattern, Washington Post, Apr. 2,

2001, p. A1 (in D.C. murder case spanning four

trials, prosecutors excused 41 blacks or other

minorities and 6 whites; defense counsel struck

29 whites and 13 black venire members); [George

E.] Mize, A Legal Discrimination; Juries Aren't

Supposed*45 to be Picked on the Basis of Race

and Sex, But It Happens All the Time, WASHINGTON POST, Oct. 8, 2000, p. B8 (authored by

judge on the D.C. Superior Court); see also

[Kenneth J.] Melilli, Batson in Practice: What

We Have Learned About Batson and Peremptory

Challenges, 71 NOTRE DAME L. REV. 447,

462–464 (1996) (finding Batson challenges' success rates lower where peremptories were used to

strike black, rather than white, potential jurors);

[Jeffrey S.] Brand, The Supreme Court, Equal

Protection and Jury Selection: Denying That

Race Still Matters, 1994 WIS. L.REV. 511,

583–589 (examining judicial decisions and concluding that few Batson challenges succeed);

[Eric N. Einhorn] Note, Batson v. Kentucky and

J.E.B. v. Alabama ex rel. T.B.: Is the Peremptory

Challenge Still Preeminent? 36 BOSTON COLLEGE L. REV. 161, 189, and n.303 (1994)

(same); [Jean] Montoya, The Future of the

Post–Batson Peremptory Challenge: Voir Dire by

Questionnaire and the “Blind” Peremptory, 29

U. MICH. J.L. REFORM 981, 1006, nn.

¶ 18 Two decades before Batson, the United

States Supreme Court held in Swain v. Alabama

that purposeful discrimination in the use of peremptory challenges violates the equal protection clause.

380 U.S. 202, 223–24, 85 S.Ct. 824, 13 L.Ed.2d

759 (1965), overruled by Batson, 476 U.S. 79, 106

S.Ct. 1712. Under Swain, a single act of racism was

not sufficient to make out an equal protection

claim; a person alleging race discrimination had to

prove a long-running pattern of purposefully discriminatory acts. Id. at 221–22, 85 S.Ct. 824.

¶ 19 Swain d

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.