Ervin v. Chappell
- Vince Chhabria
- 3:00-cv-01228
- U.S. District Court · Northern District of California
- 5
In Ervin v. Broomfield, Judge Chhabria stayed federal review and required new Batson evidence to be presented first in state court.
Curtis Lee Ervin, whose federal case was stayed and who was required to present his Batson claim and new evidence in state court first; Ron Broomfield, the respondent, was affected by the stay and state-court requirement.
What happened
In Ervin v. Broomfield, Curtis Lee Ervin challenged the use of jury strikes in his case, arguing that the prosecutor improperly excluded prospective jurors based on race. The Ninth Circuit sent the case back for reconsideration after the Supreme Court’s decision in Flowers v. Mississippi and asked the district court to decide whether new evidence could be considered.
Ervin asked the court to consider additional evidence, including a New York Times article reporting comments by prosecutor James H. Anderson about jury selection. Ron Broomfield argued that the federal court could not consider the new material because it was not part of the state-court record and because Ervin had not reasonably sought it earlier.
Judge Chhabria ruled that the new evidence had to be presented to the state court before the federal court could consider it. He stayed the case, ordered Ervin to file a state petition raising the jury-selection claim within 60 days, and required periodic status reports until the state proceedings ended.
The detailed version
- Ervin v. Chappell · No. 3:00-cv-01228
- Vince Chhabria
- Sept. 27, 2022
Background
Curtis Lee Ervin is pursuing federal habeas review of a Batson v. Kentucky claim. A Batson claim challenges the use of peremptory jury strikes to exclude prospective jurors because of race. The Ninth Circuit had remanded the case so the district court could reconsider Judge Koh’s ruling in light of Flowers v. Mississippi. The appellate court identified several areas requiring fuller analysis, including statistical evidence, comparisons between struck and unstruck jurors, alleged misrepresentations of the record, and the history of the prosecutor’s jury strikes in other cases.
The Ninth Circuit also identified a 2005 New York Times article that reported comments by Alameda County prosecutor James H. Anderson about jury-selection practices. The article was not part of the record before the Ninth Circuit. Ervin argued that the court should take judicial notice of the article and expand the record. Broomfield argued that the court could not take judicial notice of the truth of the article’s reported matters because they were based on hearsay, and that Ervin had not exercised reasonable diligence in finding the article earlier.
Issue
The question was whether Ervin could submit and rely on new evidence in federal court in support of his Batson claim, or whether he first had to present that evidence to a state court.
The court explained that under Cullen v. Pinholster, federal habeas review under 28 U.S.C. § 2254(d)(1) generally is limited to the record that was before the state court that decided the claim. The court also noted that new evidence making a claim substantially stronger may require the state courts to have an opportunity to consider it first. The court concluded that the New York Times article and other new evidence had to be presented in state court before federal review.
Ruling and directives
Judge Vince Chhabria stayed the case so Ervin could present his Batson claim, along with all new evidence and argument, to the state court. The court directed Ervin to file a state habeas petition raising the claim within 60 days of the order. It also required him to file a status report 120 days after the order and every 90 days thereafter until the state proceedings ended, and to notify the federal court within 30 days after those proceedings were completed.
The order did not decide whether Ervin’s Batson claim ultimately succeeds. It addressed the proper forum and record for considering the new evidence.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.