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«MARIO ALEMAN, No. 09-55837 Petitioner-Appellant, D.C. No. v. 2:06-cv-04687JSL-RZ DOMINGO URIBE, JR., Warden, Appellee-Respondent. RAYMOND MALDONADO, ...»

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(citing Rice v. Collins, 546 U.S. 333, 340 (2006)). This is a fact-based inquiry. To determine if a prosecutor’s mistake undermines his or her credibility, we must consider whether, based on the facts of the case, the mistake indicates purposeful discrimination instead of innocent error. See Mitleider v. Hall, 391 F.3d 1039, 1049 (9th Cir. 2004) (Batson is not violated by prosecutor’s honest, but mistaken belief as long as it is not pretextual). After all, Batson prohibits purposeful discrimination, not honest, unintentional mistakes. See Batson, 476 U.S. at 98.

It was not objectively unreasonable for the California Court of Appeal to affirm the trial court’s Batson ruling on the ground that an honest mistake is not evidence of racial bias. For a prosecutor to eliminate a prospective juror by peremptory strike based on an honest mistake as to what that juror had said in voir dire is not the same, for constitutional purposes, as striking the juror based on an intentionally discriminatory motive. The record supports the trial court’s finding that the prosecutor’s mistake was credible, honest, and unintentional. During voir dire, the prosecutor stated several times that he was feeling under the weather. In fact, when the prosecutor initially explained his reasons for excusing Juror Acevedo, he stated, “I am sorry. I am having a hard time articulating my thoughts because I am not feeling well.” The record also shows that Juror Acevedo was sitting near the juror who made the “prissy” comment, and, when asked the same question about police work, Juror Acevedo said that she would not be able to deal with the pressure of police work. Given the prosecutor’s illness, the jurors’ proximity to each other, and the relative similarity of their ALEMAN V. URIBE 11 comments, it is a permissible finding of the trial court to say that the prosecutor innocently transposed the responses from the jurors. Such “innocent transposition makes little headway toward the conclusion that the prosecutor’s explanation was not clearly credible.” Rice, 546 U.S. at 340.

We must give “double deference” to the trial court’s credibility finding where that finding was affirmed by the state court of appeals. Jamerson, 713 F.3d at 1234. One level of deference arises from the broad power of a trial court to assess credibility of the prosecutor’s statements that were made in open court. Another level of deference arises from the AEDPA context where we defer to state court decisions that are not objectively unreasonable. See Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012) (“Here our standard is doubly deferential: unless the state appellate court was objectively unreasonable in concluding that a trial court’s credibility determination was supported by substantial evidence, we must uphold it.”). Applying this double deference, we cannot say that the Court of Appeal’s decision, which relied on the trial court’s credibility finding, was objectively unreasonable.

There is ample support in the record for the trial court’s determination that the prosecutor did not act with purposeful discrimination when he removed Juror Acevedo based on his mistaken belief that she had said that she was too “prissy” for police work. In the initial Batson proceeding, the prosecutor explained that he removed Juror Acevedo because her “prissy” comment caused him to believe that she was sensitive and would have a difficult time dealing with the firearms and violence in the case. Although, as the trial court noted, this was not the strongest explanation, in the context of this case it is sufficient to show the absence of discriminatory 12 ALEMAN V. URIBE intent. See Mitleider, 391 F.3d at 1050 (“The prosecutor’s motives, however, must be considered on the basis of the facts set forth in each particular case.”).

Other factors reinforce that conclusion: First, the prosecutor’s explanation was related to the case, which involved very violent facts, and it would be reasonable to conclude that a sensitive juror might have a tough time dealing with that violence. See id. at 1049 (recognizing that immaturity and lack of life experience are legitimate bases for peremptory challenges). Second, as the trial court noted, the prosecution accepted the panel several times with Hispanic members. See Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.

1994) (considering the prosecutor’s acceptance of minorities on the jury a valid, but not necessarily dispositive, factor).

Third, the trial court conducted a thorough review of the record and twice assessed the prosecutor’s credibility, first during its initial Batson review and then when it reopened the Batson motion. This was not a “rubber stamp” decision by the state trial court. Fourth, comparative analysis does not show that the trial court’s determination was objectively unreasonable. Appellants argue that the prosecutor did not challenge other jurors who had less life experience than Juror Acevedo. Although these other jurors bear some similarity to Juror Acevedo, the record does not show that they were so similar as to compel the conclusion that the state court erred in concluding that the prosecutor did not purposefully discriminate. See Burks, 27 F.3d at 1429–30 (sustaining the state court’s decision where the objective evidence of discrimination was relatively weak). In short, there was ample support for the California trial court’s decision that the prosecutor made an honest mistake and did not intentionally discriminate in jury selection. On this premise, the California Court of Appeal decided that the important principle of ALEMAN V. URIBE 13 Batson was not violated. We conclude that this was not an objectively unreasonable application of Batson. Accordingly, we affirm the district court’s denial of habeas corpus relief.

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