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Norton v. Myers

submitted*fn* pasadena california: September 9, 1991.

JAMES NORTON, PETITIONER-APPELLANT,
v.
EDDIE R. MYERS, WARDEN, ET AL., RESPONDENT-APPELLEE



Appeal from the United States District Court for the Central District of California; D.C. No. CV-89-3577-WJR; William J. Rea, District Judge, Presiding.

Beezer, Hall, and Wiggins, Circuit Judges.

MEMORANDUM

James Norton appeals the dismissal of his habeas corpus petition brought under 28 U.S.C. §§ 2241 & 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

A

Norton was charged with burglary and tried in California Superior Court. He is black. During voir dire, the prosecutor accepted four black jurors, but used eight of eighteen peremptory challenges to dismiss additional blacks. After the prosecutor exercised his eighteenth peremptory challenge, defense counsel objected, contending that the prosecutor's peremptory challenges had been racially motivated, and requested a hearing under Wheeler v. California, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978). His sole foundation for the objection was that "out of the 18 challenges that we have had that the prosecutor has exercised so far -- I show . . . eight blacks have been excused." After noting that four blacks had been named to the jury despite the use of peremptory challenges by the prosecution and defense, the court denied the objection. Norton renewed his Wheeler objection in a motion for a new trial, which the court denied without comment.

On direct appeal to the California Court of Appeal, Norton's appointed counsel did not raise the prosecutor's use of peremptory challenges. After his conviction was affirmed and his petition for habeas corpus denied by the California Supreme Court, Norton filed a petition for writ of habeas corpus in the district court, alleging that he had received ineffective assistance of counsel from both his trial and appellate counsel. Adopting the findings of Magistrate Charles F. Eick, the district court denied the petition.

Norton timely appealed. This court granted his request for a certificate of probable cause and for appointment of appellate counsel. Of the allegations presented in his original petition, Norton, now represented by counsel, presents us with a single issue: Whether the failure of his appellate counsel to raise on direct appeal the prosecutor's use of peremptory challenges constituted ineffective assistance of counsel.

B

The district court's denial of a habeas petition is reviewed de novo. Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990), cert. denied, 111 S. Ct. 974 (1991).

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner claiming to have received ineffective assistance of counsel must show (1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that, but for his counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Both prongs of the Strickland test need not be addressed if a petitioner makes an insufficient showing as to one. Id. at 697. Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). Strickland applies to legal representation at the appellate level. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1988).

Allegations of racially motivated peremptory challenges are reviewed under Batson v. United States, 476 U.S. 79 (1986). Under Batson, a defendant bears the initial burden of establishing a prima facie case of purposeful discrimination. Id. at 94-95. He must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the jury members of the defendant's race. Id. at 96. The defendant must then "demonstrate that these facts and any other relevant circumstances raise an inference that the prosecutor used the challenge to exclude such jurors on account of race." United States v. Chinchilla, 874 F.2d 695, 697 (9th Cir. 1989) (citing Batson, 476 U.S. at 96). Once the defendant makes a prima facie showing, the burden shifts to the government to articulate an explanation for challenging those jurors. Batson, 476 U.S. at 96. The California courts employ a similar standard. See People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986).

In deciding whether the defendant has met his burden,

the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.

Batson, 476 U.S. at 96. A trial court's finding that the prosecutor did or did not act with discriminatory purpose is entitled to ...


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