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Mayes v. Premo

United States Court of Appeals, Ninth Circuit

August 21, 2014

FLOYD M. MAYES, Petitioner-Appellant,
JEFF PREMO, Superintendent, Mill Creek Correctional Facility, Respondent-Appellee

Argued and Submitted: July 9, 2013, Portland, Oregon.

Petition for certiorari filed at, 11/06/2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Oregon. D.C. No. 3:06-cv-06334-HU. Michael W. Mosman, District Judge, Presiding.

Nell Brown (argued), Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Oregon, Portland, Oregon, for Petitioner-Appellant.

Pamela J. Walsh (argued), Assistant Attorney General; Ellen F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor General, Oregon Department of Justice, Salem, Oregon, for Respondent-Appellee.

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, California, for amici curiae National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and California Appellate Defense Counsel.

Before: Harry Pregerson, Mary H. Murguia, and Morgan Christen, Circuit Judges.

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The Opinion filed March 27, 2014, and appearing at 747 F.3d 686 (9th Cir. 2014), is hereby amended. The amended opinion is filed concurrently with this Order.

With these amendments, Judges Murguia and Christen have voted to deny the petition for rehearing and rehearing en banc, and Judge Pregerson has voted to grant the petition for rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellee's petition for rehearing and rehearing en banc, filed May 16, 2014, is DENIED. No further petitions for rehearing or rehearing en banc shall be permitted.


MURGUIA, Circuit Judge:

Petitioner Floyd Mayes was convicted in Oregon state court of felony murder, first-degree robbery, first-degree burglary, and second-degree assault. He was sentenced to 274 months in prison. The district court denied Mayes's petition for habeas corpus, which alleged (1) the prosecutor who tried his case struck a venireman on the basis of race in violation of the Equal Protection Clause, and (2) a hearsay statement was admitted at his trial in violation of the Confrontation Clause. We affirm.


A. The Crime

On December 11, 1994, while staying at the home of Anna Walking-Eagle, Victor Walking-Eagle and Richard Hall decided to rob James Loupe, a drug dealer who had previously sold Hall marijuana.[1] Walking-Eagle called his friend, Kevin Washington, to help with the robbery; Washington agreed and brought Frederick Knight and Petitioner Floyd Mayes to Anna's house. The group went into Walking-Eagle's room and finalized a plan: Hall would enter Loupe's home purporting

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to want to purchase marijuana, but once inside, Hall would let the others in to rob Loupe. They agreed to hold a gun to Hall's head to " make it look like [he] was a victim" too.

At Loupe's house, Hall knocked on the door, and Loupe's common-law wife, Erin Conaway, let him inside and walked him to the living room. Loupe and his seven-year-old twin sons were sitting on the sofa watching television. Loupe told Hall that he did not have any marijuana for sale, so Hall, pretending to be on his way, returned to the front door; when he opened the door, Walking-Eagle, Washington, Knight, and Mayes " rushed in." Knight held Hall at gunpoint by the stairway, and Mayes stood on the other side of the room. As they demanded money and marijuana, Washington pointed his pistol at Loupe, and Walking-Eagle pistol-whipped Conaway in the head. The two young boys cried, " Leave my mommy and daddy alone."

Mayes and Knight traded places by the stairway, where Mayes then held Hall at gunpoint. Conaway tried to run out the back door, but Washington ran after her, dragged her back to the living room, and pistol-whipped her in the head. Loupe, seeing his wife bleeding and screaming, got up off the couch and told Washington to leave her alone. Knight pointed his gun at Loupe, and Loupe knocked it out of Knight's hand. Loupe, Knight, and Walking-Eagle began grappling on the floor trying to gain control of the gun. Washington walked over to the melee and, as the twins cried out for their father, shot Loupe in the head. Walking-Eagle, Knight, and Mayes immediately ran out of the home, but Washington held back for a moment to take Loupe's wallet before leaving. Hall, continuing the ruse, stayed behind and called 911.

The State of Oregon indicted Hall, Walking-Eagle, Washington, Knight, and Mayes. Washington was tried and convicted on his own for aggravated murder, Hall and Walking-Eagle accepted plea bargains, and Knight and Mayes were tried jointly. As part of his plea bargain, Hall agreed to testify against Knight and Mayes.

B. Voir Dire

Fifty veniremen were examined over the course of three days on April 29, April 30, and May 1, 1996.[2] The prosecutor[3] and counsel for the defendants questioned twenty-nine veniremen on April 29. One of these twenty-nine, Abigail L., was black. The prosecutor and defendants questioned the remaining twenty-one members of the venire on April 30. Four of these twenty-one were black: Ray S., Yolanda T., Edward T., and Adelaide G. The trial court excused three members of the venire on its own motion, and the prosecutor and defendants agreed to excuse two white jurors for cause. The trial court granted the prosecutor's for-cause strike against Yolanda T. because she failed to disclose a prior criminal conviction.

Each party had twelve total peremptory strikes. Twelve members of the venire occupied the jury box at one time, and the parties were allowed to strike only those veniremen in the box. Each party was allowed to exercise two peremptory strikes per round. If a party declined to exercise a strike in one round, that party was precluded

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in all later rounds from striking veniremen who were in the jury box when the party failed to exercise one of its strikes.[4]

One of the first twelve members of the venire who entered the jury box was Abigail L. In Round One, Knight and Mayes each exercised their two respective--so four combined--peremptory strikes against white jurors, but the prosecutor declined to exercise his two strikes, thereby accepting Abigail L. as a member of the jury. After another four strikes from the defendants in Round Two, the prosecutor struck two white jurors. The defendants then made four more strikes in Round Three. The prosecutor struck one white juror but did not use his second strike in the third round. After the defendants made four more strikes in Round Four, Ray S. entered the jury box. The prosecutor struck Ray S., and Knight's counsel raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The prosecutor explained the strike by stating that, during voir dire, Ray S. " uttered phrases that indicated identification with defendants in a criminal case," and expressed views that showed that, of all the veniremen, he " has the most problems with believing [the testimony of] a person who would be a convicted felon and a codefendant testifying under a plea agreement." Defense counsel noted that the prosecutor's characterization of Ray S.'s testimony was " debatable." However, he offered no explanation as to why the prosecutor was incorrect in concluding that Ray S. expressed " the most" concern about the co-defendant testimony.

The trial court denied Knight's Batson challenge, ruling,

[Ray S.] did express considerable concern about the plea deal . . . . But I am holding that at this point the defendant has not established a prima facie case of peremptory challenge upon the basis of race, and even if it had, [Ray S.] did express this rather strong opinion about a potential witness of the State, namely a codefendant.

The trial court also ruled that the prosecutor's ready acceptance of Abigail L. as a member of the jury undercut the argument that the prosecutor wanted to prevent black individuals from serving on the jury. The prosecutor then exercised his second peremptory strike in Round Four against a white juror.

In Round Five, the defendants exercised their four peremptory strikes; Edward T., who is black, replaced one of the stricken veniremen, and Katherine P., who is white, replaced another. When the prosecutor exercised his first strike in Round Five to remove Edward T., the defendants again raised a Batson challenge.

The prosecutor explained that, in his view, Edward T. was " singularly the most dangerous" venireman: Edward T. had said he was a " rational anarchist" and knew " things are not what they seem on the surface." He was also a veteran of the Vietnam War and said his experience in combat had an " extreme[]" impact on his life and taught him " not to always believe things about people." These statements caused the prosecutor concern that Edward T. lacked respect for authority and might decline to follow the court's instructions. The trial court agreed and denied this Batson challenge, ruling that " Mr.

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T['s] examination gives numerous grounds for peremptory challenge aside from his race." Adelaide G., who is black, then replaced Edward T. in the jury box, and the prosecutor exercised his second Round Five strike on her. The defendants raised another Batson challenge.

The prosecutor offered two reasons for this strike. The first was Adelaide G.'s emotional reaction during voir dire: she began weeping immediately, saying, " I just get emotional. I can't--I don't know if [the defendants] did it or not . . . . Oh, my God, I don't know." Adelaide G. said that her " emotions always run high like that" because she is a " sensitive person" and " cr[ies] over cats and dogs." The prosecutor also observed that Adelaide G. said she had never had " [a]ny connection . . . in any way" to the criminal justice system. According to the prosecutor, however, a background check revealed that she had been charged with drug possession and delivery in a gang-related case. The trial court denied the third Batson challenge, noting that it shared the prosecutor's concern about Adelaide G.'s emotional stability and that her emotional outburst was " rather unusual."

The defendants used their first strike in Round Six against Katherine P. After the defendants exercised their three remaining strikes in Round Six, the prosecutor had five strikes left. He declined to exercise any of them because he was satisfied with the jury, which included Abigail L.

C. The Trial

1. The Principal Evidence

Knight and Mayes's joint trial commenced on May 2, 1996. Knight testified at length, claiming he was just in the wrong place at the wrong time. Knight testified that he was hanging out with Mayes when Washington called Mayes to help with the robbery and that he only agreed to go along because he was afraid of Mayes, Washington, and Walking-Eagle. Mayes declined to testify. His defense theory was that he had not actually been present at the scene of the crime.[5]

Hall, the state's principal witness, suffered some credibility problems. He was high on methamphetamine the night of the crime, he hid the identity of his co-felons during the investigation's first several months, and he only admitted his own involvement approximately three months after the crime, once police found persuasive evidence implicating him.

Hall testified that he knew Walking-Eagle and Washington before the night of the crime, but that he had never previously met the men who arrived at Anna's house with Washington that night. Consequently, he was " not positive" he had correctly identified Knight and Mayes due to his minimal familiarity with the fourth and fifth perpetrators. Aside from Hall's equivocation on this point, Knight's and Hall's respective descriptions of the crime were identical in all material respects:

o Walking-Eagle and Hall hatched the scheme at Anna's house. Washington, Knight, and Mayes arrived at Anna's house together and went to Walking-Eagle's room to discuss the robbery. They planned that Hall would pretend to want to buy marijuana, but then would open the door for the others. The men armed themselves with guns stored in Anna's house.

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o Mayes and Knight rode to Loupe's house in the same car.

o Mayes had a gun upon entering Loupe's house. Once in the home, Knight stood pointing a gun at Hall by the stairway, and Mayes stood on the other side of the room. Mayes and Knight later switched places so that ...

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