Curtis Ervin v. Ron Davis ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS LEE ERVIN, No. 16-99010
Petitioner-Appellant,
D.C. No.
v. 5:00-cv-01228-
LHK
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted June 2, 2021
Seattle, Washington
Filed September 10, 2021
Before: Ronald M. Gould, John B. Owens, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Owens
2 ERVIN V. DAVIS
SUMMARY *
Habeas Corpus
The panel vacated the district court’s judgment denying
Curtis Ervin’s 28 U.S.C. § 2254 habeas corpus petition
seeking relief from his first-degree murder conviction and
death sentence, and remanded so that the district court can
apply in the first instance the Supreme Court’s guidance in
Flowers v. Mississippi, 139 S. Ct. 2228 (2019), which
summarized the factors courts should consider when
evaluating a challenge under Batson v. Kentucky, 476 U.S.
79 (1986).
The panel noted that the State of California conceded
that the district court—without the benefit of Flowers—did
not consider those factors, even though the record contained
evidence potentially applicable to several of them, and Ervin
identified the applicable evidence when arguing that the
California Supreme Court’s determination was
unreasonable. The panel noted that the district court
considered neither statistical evidence regarding the
prosecutor’s use of peremptory strikes nor the prosecutor’s
misrepresentations of the record, and did not consider side-
by-side comparisons for six of the nine challenged jurors
identified by Ervin. Mindful of the Supreme Court’s
instruction to evaluate the “relevant history of the State’s
peremptory strikes in past cases” when considering Batson
claims, the panel left it to the district court to decide in the
first instance whether, in light of Cullen v. Pinholster, 563
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ERVIN V. DAVIS 3
U.S. 170 (2011), the parties may submit additional evidence
to support their positions on this factor because the
California Supreme Court made an unreasonable
determination of the facts, which would relieve the district
court of AEDPA deference, or whether such evidence must
be submitted for the first time in state court, as the State
suggested at oral argument.
The panel resolved remaining issues in a concurrently
filed memorandum disposition.
COUNSEL
Pamala Sayasane (argued), Law Office of Pamala Sayasane,
San Francisco, California; Robert R. Bryan (argued), Law
Office of Robert R. Bryan, San Francisco, California; for
Petitioner-Appellant.
Allan I. Yannow (argued), Deputy Attorney General; Glenn
R. Pruden, Supervising Deputy Attorney General; Ronald S.
Matthias, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Rob Bonta,
Attorney General; Office of the Attorney General, San
Francisco, California; for Respondent-Appellee.
4 ERVIN V. DAVIS
OPINION
OWENS, Circuit Judge:
Curtis Ervin appeals from the denial of his 28 U.S.C.
§ 2254 habeas petition seeking relief from his first-degree
murder conviction and death sentence. We have jurisdiction
under 28 U.S.C. § 1291. In light of the Supreme Court’s
recent decision in Flowers v. Mississippi, 139 S. Ct. 2228(2019), which summarized the factors courts should
consider when evaluating a challenge under Batson v.
Kentucky, 476 U.S. 79 (1986), we vacate the district court’s
order denying relief and remand so the district court can
apply in the first instance the Supreme Court’s guidance in
Flowers. 1
I. FACTUAL AND PROCEDURAL BACKGROUND
As the California Supreme Court explained in detail,
Ervin, a black man, was convicted and sentenced to death in
1991 for carrying out a murder for hire in Alameda County.
People v. Ervin, 990 P.2d 506, 513–14 (Cal. 2000). During
jury selection, the prosecution exercised 15 peremptory
strikes, removing 9 of the 11 black prospective jurors subject
to questioning. See id. at 518. The black prospective jurors
who were removed were: Alfred Hudnall, JoAnn White, Lisa
Kelley, Eloise Knox, Roslyn Roberts, Caroline Mullen,
James Thomas, Pamala Blake, and Lionel Jackson. Id. at
519. Ultimately, Ervin’s jury included one black juror and
one black alternate—the rest of his jury was predominantly,
if not entirely, white. Id.1
This opinion only addresses the Batson issue. A concurrently filed
memorandum disposition resolves the remaining issues on appeal.
ERVIN V. DAVIS 5
Ervin challenged the prosecutor’s use of peremptory
strikes as racially motivated, raising multiple objections
under Batson and its California analog, People v. Wheeler,
583 P.2d 748 (Cal. 1978). Ervin, 990 P.2d at 518. In
response, the prosecutor explained that his challenges were
based on “specific juror attitudes on the death penalty,” and
that he removed at least three of the black prospective jurors
because he surmised that their religious beliefs would
preclude them from imposing a death sentence. For
example, Hudnall was struck for his “deeply religious bent,”
while White was removed for her “religious bent” and
answers during voir dire. Id. at 519. The state trial judge
accepted the prosecutor’s reasons as “reasonably specific
and neutral” and denied Ervin’s objections. Id. at 518.
The California Supreme Court agreed with the trial
judge. Though the court recognized that the prosecutor’s
reasons were not always “particularly logical or substantial,”
it saw “no good reason to second-guess [the trial judge’s]
factual determination,” and it did not scrutinize the record
for factual support for the prosecutor’s stated reasons. Id.at 519–20 (citation omitted). For example, the court
accepted the prosecutor’s reason for removing Hudnall—his
“deeply religious bent”—despite contrary evidence in the
record showing Hudnall was, in fact, not religious. See id.
at 519. The court also explicitly declined to conduct a
comparative analysis of the black prospective jurors who
were struck compared with similarly situated white
prospective jurors who were not struck. 2 Id. at 520.
2
At the time, California did not require such a comparative analysis.
Ervin, 990 P.2d at 520. The law since has changed. See People v.
Gutierrez, 395 P.3d 186, 202 (Cal. 2017) (“[E]vidence of comparative
juror analysis must be considered . . . for the first time on appeal if relied
6 ERVIN V. DAVIS
In 2007, Ervin sought relief on his Batson claims in
federal court. 3 In his habeas petition, Ervin highlighted the
statistically “disproportionate number of blacks stricken by
the prosecutor” (9 out of 11), as well as the low number of
black prospective jurors in Ervin’s final venire (17 out of
110). (ECF Doc. No. 97). Ervin also identified specific
discrepancies between the prosecutor’s stated reasons for
removing Hudnall (his “deeply religious bent”) and
Hudnall’s answers during voir dire, when Hudnall
repeatedly stated he was “not a member of the church,” had
no religious background, and that his only church
involvement was his daughter going to a Christian school
and attending church there with her mother. Ervin’s petition
also highlighted inconsistencies between the prosecutor’s
stated reasons for removing White and his treatment of other,
similarly situated prospective white jurors who were not
removed.
The district court denied Ervin’s petition. Ervin v. Davis,
150 F. Supp. 3d 1108, 1140 (N.D. Cal. 2015). The court
focused its Batson analysis on three of the nine removed
prospective jurors—Kelley, Thomas, and Roberts—and
concluded, based on a comparative analysis of each of those
three jurors, that the prosecutor’s stated reasons withstood
scrutiny. Id. at 1135–40. The district court did not evaluate
the remaining six prospective jurors, including Hudnall and
upon by the defendant and the record is adequate to permit the urged
comparisons.” (citation omitted)).
3
Ervin filed his first federal habeas petition in 2002 but requested a
stay to pursue unexhausted claims in state court. After the California
Supreme Court summarily denied Ervin’s remaining claims in December
2005, Ervin filed the amended petition at issue here.
ERVIN V. DAVIS 7
White, nor did it consider the overall context of the strikes. 4
Id. at 1136. The district court also did not analyze any
statistical discrepancies regarding the number of black
prospective jurors who were removed (9 out of 11); any
disparate questioning by the prosecutor; or any relevant
history regarding the State’s exercise of peremptory strikes.
Ervin timely appealed.
II. DISCUSSION
A. Standard of Review
Because Ervin filed his habeas petition after 1996, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
governs this case. Hurles v. Ryan, 752 F.3d 768, 777 (9th
Cir. 2014). “A state court’s finding that the prosecutor did
not engage in purposeful discrimination is reviewed under
the deferential standard set forth in 28 U.S.C. § 2254(d)(2).”
Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013).
“[T]he state court’s decision will be upheld unless it was
‘based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.’” Id.
at 1225 (quoting § 2254(d)(2)). “The standard is demanding
but not insatiable.” Miller-El v. Dretke, 545 U.S. 231, 240
4
The district court concluded Ervin had “fail[ed] to advance specific
arguments” as to those six prospective jurors because he did not
specifically discuss them in his opposition to the State’s motion for
summary judgment. Ervin, 150 F. Supp. 3d at 1136. Ervin’s opposition
discusses only three specific jurors—Kelley, Thomas, and Roberts—but
he refers back to his habeas petition regarding the remaining six: “In this
case, the [Batson] error committed by the prosecutor is even more
egregious given that the discriminatory conduct was repeated at least
nine different times. Petitioner has detailed each instance of
discrimination in the petition, but will revisit some of them here.” (ECF
Doc. No. 249).
8 ERVIN V. DAVIS
(2005). Although we must ordinarily give a trial judge’s
findings “great deference,” Batson, 476 U.S. at 98 n.21,
“[d]eference does not by definition preclude relief,” Miller-
El, 545 U.S. at 240 (alteration in original) (citation omitted).
B. The District Court, Without the Benefit of Flowers,
Did Not Fully Analyze the Batson Question
Since the 1980s, the U.S. Supreme Court has issued
many decisions on improper jury selection, starting with
Batson. See, e.g., Powers v. Ohio, 499 U.S. 400 (1991);
Purkett v. Elem, 514 U.S. 765 (1995) (per curiam); Miller-
El v. Dretke, 545 U.S. 231 (2005); Rice v. Collins, 546 U.S.
333 (2006); Snyder v. Louisiana, 552 U.S. 472 (2008);
Foster v. Chatman, 136 S. Ct. 1737 (2016). The Court’s
recent decision in Flowers v. Mississippi, 139 S. Ct. 2228(2019), summarizes the existing law concerning jury
selection and how courts should evaluate Batson challenges.
In Flowers, the Supreme Court reversed the conviction
of a black defendant based in part on the disproportionate
number of black prospective jurors who were removed from
his jury pool. Id. at 2235. Of the “[f]our critical facts [that],
taken together, require[d] reversal,” two of them centered on
statistical disparities—specifically, the State’s use of
peremptory challenges to remove 41 out of 42 black
prospective jurors across the defendant’s six trials combined,
and the State’s use of such challenges to remove 5 out of 6
black prospective jurors in the defendant’s most recent trial
alone. Id. The other “critical facts” were the State’s
“dramatically disparate questioning of black and white
prospective jurors,” and a comparative analysis of a black
prospective juror who was removed compared with similarly
situated white prospective jurors who were allowed to stay.
Id.ERVIN V. DAVIS 9
In granting relief, the Flowers Court set out, in bullet
point form, a list of factors or evidence that judges should
consider in evaluating the validity of a peremptory strike
when presented by a defendant:
• statistical evidence about the prosecutor’s
use of peremptory strikes against black
prospective jurors as compared to white
prospective jurors in the case;
• evidence of a prosecutor’s disparate
questioning and investigation of black
and white prospective jurors in the case;
• side-by-side comparisons of black
prospective jurors who were struck and
white prospective jurors who were not
struck in the case;
• a prosecutor’s misrepresentations of the
record when defending the strikes during
the Batson hearing;
• relevant history of the State’s peremptory
strikes in past cases; or
• other relevant circumstances that bear
upon the issue of racial discrimination.
Id. at 2243 (citing Foster, 136 S. Ct. at 1737; Snyder,
552 U.S. at 472; Miller-El, 545 U.S. at 231; Batson, 476 U.S.
at 79).
The Court twice emphasized that reliance on the above
factors “break[s] no new legal ground . . . [but] simply
enforce[s] and reinforce[s] Batson.” Id. at 2235, 2251. And
10 ERVIN V. DAVIS
the Court reminded judges that these factors were to be
considered holistically, based on “all of the relevant facts
and circumstances.” Id. at 2251. Indeed, the Court explicitly
declined to adopt a piecemeal approach that evaluated each
individual strike in a vacuum. Id. at 2250 (“The side-by-side
comparison of [a juror who was removed against one who
was retained] . . . cannot be considered in isolation in this
case. . . . [W]e must examine the whole picture.”); see also
Miller-El, 545 U.S. at 265 (noting that evidence of
discriminatory strikes must be viewed “cumulatively,” even
if the probative value of each individual component may be
“open to judgment calls”).
As the State concedes, the district court—without the
benefit of Flowers—did not consider the above list of
factors, even though the record contained evidence
potentially applicable to several (if not all) of them, 5 and
Ervin identified the applicable evidence when arguing that
the California Supreme Court’s determination of the facts
was unreasonable. For example, the district court did not
consider the statistical evidence regarding the prosecutor’s
use of peremptory strikes—here, removing 9 out of 11 black
prospective jurors, compared to just 6 out of roughly 30 non-
black prospective jurors. (ECF Doc. No. 387). In other
words, the prosecutor struck 82 percent of the black
prospective jurors who were called to the jury box, compared
to about 20 percent of the non-black prospective jurors. See
Flowers, 139 S. Ct. at 2248 (granting relief in large part
because the statistical anomalies were “too disparate to be
explained away or categorized as mere happenstance”
(internal quotation marks and citation omitted)); see also
Miller-El, 545 U.S. at 241–42 (characterizing the
5
See Oral Argument at 38:43–44:00, Ervin v. Davis, No. 16-99010,
https://www.ca9.uscourts.gov/media/video/?20210602/16-99010/.
ERVIN V. DAVIS 11
prosecutor’s removal of 10 out of 11 black prospective jurors
as “remarkable” and noting that “[h]appenstance is unlikely
to produce this disparity.” (citation omitted)). As the
Supreme Court emphasized, in cases where “[t]he numbers
speak loudly,” scrutinizing such statistical anomalies and
any “pattern of strikes” is an essential part of the Batson
inquiry. Flowers, 139 S. Ct. at 2245–46 (internal quotation
marks and citation omitted).
The district court also did not consider the prosecutor’s
misrepresentations of the record, which Ervin also
identified. Here, the prosecutor purportedly removed
Hudnall for his “deeply religious bent” and statements
regarding “religious conversion” and “everybody finding
God.” But, as noted above, Hudnall repeatedly stated that
he was “not a member of the church,” had no religious
background, and that his only church involvement was his
daughter going to a Christian school and attending church
there with her mother. 6 (ECF Doc. No. 376). And, contrary
to the prosecutor’s assertions, Hudnall never made any
statements regarding “religious conversion” or “finding
God.” In Flowers, the Supreme Court treated such factual
inaccuracies as relevant in discerning the validity of the
prosecutor’s explanation. See id. at 2250 (“When a
prosecutor misstates the record in explaining a strike, that
6
In his juror questionnaire, Hudnall initially signaled that he was
“involved with a church.” During voir dire, however, he repeatedly
clarified that he had been referring to his family’s activities: “Well, I’m
not a member of the church. My daughter goes to Patten Academy. She
goes to church there and my wife goes to church there. I don’t go.”
12 ERVIN V. DAVIS
misstatement can be another clue showing discriminatory
intent.”). 7
Moreover, the district court did not conduct side-by-side
comparisons for six of the nine challenged jurors identified
by Ervin—and for the three jurors for which it did, the court
analyzed their strikes in isolation. As noted above, Flowers
reminds judges that they must consider the “overall context”
surrounding the strikes, and not each strike in a vacuum. Id.
at 2250 (“We cannot just look away [from the broader
history and context]. Nor can we focus on [any one] strike
in isolation.”).
Finally, we are mindful of the Supreme Court’s
instruction to evaluate the “relevant history of the State’s
peremptory strikes in past cases” when considering Batson
claims. 8 Id. at 2243. We leave it to the district court to
decide in the first instance whether, in light of Cullen v.
Pinholster, 563 U.S. 170 (2011), the parties may submit
7
Our review of the record also identified other misstatements. For
example, the prosecutor stated he removed Caroline Mullen in part
because she made the comment, “Everyone is worth something.” Yet
she never did. (ECF Doc. No. 367). See Flowers, 139 S. Ct. at 2250(“[W]hen considered with other evidence of discrimination, a series of
factually inaccurate explanations for striking black prospective jurors
can be telling.”).
8
In 2005, the prosecutor in this case, James Anderson, made several
comments about jury selection and racial minorities to The New York
Times. See Dean E. Murphy, Case Stirs Fight on Jews, Juries and
Execution, N.Y. Times (Mar. 16, 2005), https://www.nytimes.com/200
5/03/16/us/case-stirs-fight-on-jews-juries-and-execution.html (“‘When I
was a young D.A., [the judge] would tell me, “If you have a cop case, be
careful of blacks on the jury, because they don’t like cops,”’ Mr.
Anderson said. ‘I heard him tell defense lawyers: “Be careful of Asians.
They are very law-and-order oriented.”’”).
ERVIN V. DAVIS 13
additional evidence to support their positions on this factor
because the California Supreme Court made an unreasonable
determination of the facts, which would relieve the district
court of AEDPA deference, or whether such evidence must
be submitted for the first time in state court, as the State
suggested at oral argument. 9
Given the Court’s recent guidance in Flowers, and under
the unique circumstances of this case, we believe that the
district court is in the best position to evaluate the Flowers
factors anew. We therefore vacate the judgment and remand
to the district court so it can evaluate Ervin’s Batson claims
in light of the Supreme Court’s guidance in Flowers. See
139 S. Ct. at 2243.
VACATED AND REMANDED.
9
See Oral Argument at 35:47–38:39, Ervin v. Davis, No. 16-99010,
https://www.ca9.uscourts.gov/media/video/?20210602/16-99010/.