Love v. Scribner (691 F. Supp. 2d 1215, 2010)

ORDER

HAYES, District Judge:

The matter before the Court is the Report and Recommendation (Doc. # 55) of Magistrate Judge Ruben B. Brooks, filed on November 30, 2009, recommending that the Court grant Petitioner Alfredrick Love’s Petition for Writ of Habeas Corpus (Doc. # 1), unless Love is retried within a reasonable period of time.

BACKGROUND

In July of 2003, Love, an African-American, was tried and convicted in state court of battery on a non-eonfined person by a prisoner. During jury selection, after consideration of hardships, only one remaining venire-member was African-American, Gloria McGee. During the second day of jury selection, July 21, 2003, Assistant District Attorney Eric Baker exercised a peremptory challenge to excuse McGee from the jury panel.

Love made a timely objection to the prosecution’s excusing McGee, arguing that the prosecution’s peremptory challenge was racially motivated. The prosecution stated that McGee was excused because:

she’s a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal — my personal jury selection. Teachers and social workers don’t sit on the jury. I referred to Chris Kowalski’s notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution.

(Jt. Mot. to File Copy of Trans, at 371-72, Doc. #45). Love responded by saying that,

From my notes, she’s not a teácher and social worker. The only thing about her background has been law enforcement, which makes it seem — conventionally she would be leaning toward the District Attorney. The only thing I can see that you would possibly dismiss her for is that she’s African/American.

Id. at 372.

The state trial court denied Love’s challenge to the prosecution’s use of its peremptory challenge on the grounds that Love did not make out a prima facie case of purposeful discrimination because Love was unable to show a “pattern” of racially motivated peremptory strikes. Id. Alternatively, the trial court denied Love’s challenge on the grounds that the prosecution stated a reasonable race-neutral explanation for excusing the lone remaining African-American member of the jury pool. Id. at 372-73.

On June 16, 2004, Love filed an appeal, arguing that he was entitled to a new trial based upon the prosecution’s racially motivated use of a peremptory challenge. On February 2, 2005, the California Court of Appeal affirmed the conviction.

On March 22, 2006, Love filed a Petition for Writ of Habeas Corpus in this Court. (Doc. # 1). On September 7, 2006, the Magistrate Judge issued a report and recommendation recommending that Love’s Petition be denied. (Doc. # 11). On January 19, 2007, 2007 WL 173895, this Court adopted the report and recommendation and ordered judgment to be entered. (Doc. # 15).

On March 19, 2008, 278 Fed.Appx. 714, the Ninth Circuit reversed the judgment. (Doc. #25). The Ninth Circuit stated:

Because the California Court of Appeal ‘unreasonabl[y] applied] ... clearly established Federal Law,’ 28 U.S.C. § 2254(d)(1), with respect to the comparative analysis, the inquiry into whether the prosecutor’s reason for rejecting the black juror was pretextual must be determined de novo on federal habeas.

The dissent maintains that we can determine on the current record that there was no pretext, because the prosecutor did strike all the social workers, although not all the teachers. This analysis repeats the error of the California Court of Appeal. The prosecutor’s stated reason applied to both teachers and social workers.... [Wjhere, as here, the prosecutor’s stated reason does not hold up, ‘[i]ts retextual significance does not fade,’ Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), because an appellate judge, looking at the record, can construct a different rationale, here an antipathy toward social workers but not teachers.

The record, as it stands, does not provide an adequate basis for determining de novo whether the real reason the prosecutor struck Ms. M. was her race. The [state] trial court did not allow Love to examine the prosecutor’s actual reasons for keeping teaching-connected individuals, while striking Ms. M. from the jury....

Under the circumstances, the appropriate remedy is a remand for an evidentiary hearing.

We therefore reverse and remand for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race. If, on remand, the district court finds discrimination, the petition shall be granted. If, however, the district court finds no discrimination, the judgment denying the petition shall be reinstated.

Love v. Scribner, 278 Fed.Appx. 714, 718 (9th Cir.2008) (citations omitted).

On July 14, 2008, this Court referred the case to the Magistrate Judge following remand from the Ninth Circuit. (Doc. # 28). On March 12, 2009, the Magistrate Judge conducted an evidentiary hearing, at which two witnesses testified: Baker and Love. (Doc. # 43, 44-1).

On November 30, 2009, the Magistrate Judge issued the Report and Recommendation. (Doc. # 55).

A. Report and Recommendation

1. Motion to Strike Petitioner’s Exhibit B

Petitioner attached a transcript of a December 2008 interview of Baker as Exhibit B to Petitioner’s post-evidentiary-hearing brief. (Doc. #48). The interview was conducted by Respondent’s counsel, and a transcript of the interview was prepared and provided to Petitioner’s counsel. At the evidentiary hearing, neither counsel for Petitioner nor counsel for Respondent sought to introduce the interview transcript into evidence, although both referred to the prior interview.

The Magistrate Judge granted Respondent’s motion to strike the transcript. (Doc. # 55 at 17-22). The Magistrate Judge stated:

Petitioner was not diligent in seeking to expand the record after the close of evidence. The Baker interview transcript is not the type of post-evidentiary hearing material for which Rule 7 [of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254] is suited. The interview was tape recorded and does not appear to have been given under oath. The transcript is not signed, was not reviewed, and the question-and-answer session took place long after the filing of Love’s habeas Petition. The content of the interview is not especially important or probative and does little to ‘clarify the relevant facts.’

(Doc. # 55 at 22 (quoting Vasquez v. Hillery, 474 U.S. 254, 258, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986))).

2. Batson Challenge

In the Report and Recommendation, the Magistrate Judge analyzed Love’s Batson challenge at length, and concluded:

Baker’s categorical explanation for striking McGee — teachers and ' social workers don’t sit on the jury — was not consistently applied. He challenged McGee but permitted non-African-Americans [who were teachers or had a teaching-related occupation] to serve on the jury. Alternatively, if being a teacher or social worker was only one of many factors the prosecutor generally considered, Baker was unable to articulate any additional reasons he had for challenging McGee. He did not identify any of his guidelines as the actual reason for challenging her or not challenging others. The prosecutor simply did not recall what he had done five and one-half years earlier. In Love’s case, additional reasons did not come from Baker, but from Respondent’s counsel. Her speculation is not entitled to any weight. The evidence indicates that the peremptory-strike was racially motivated.

On July 21, 2003, Baker struck the only African-American seated on the jury to try this African-American defendant. Love has proven, by a preponderance of the evidence, that the prosecutor did not strike McGee from the jury simply because she was an eligibility worker. The circumstances of that peremptory strike, Baker’s inability to articulate a credible explanation for the strike, and a comparative analysis of McGee and jurors who were permitted to serve are sufficient to conclude that Baker used a peremptory challenge to eliminate McGee from the jury because she was African-American. The prosecutor’s strike violated the Equal Protection Clause as described in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court recommends that unless Love is retried within a reasonable period to be set by the district court, his Petition for Writ of Habeas Corpus be GRANTED.

(Doc. # 55 at 47-48).

B. Objections to the Report and Recommendation

On December 17, 2009, Respondent filed objections to the Report and Recommendation (Doc. # 57), and on December 18, 2009, Petitioner filed objections to the Report and Recommendation (Doc. # 58). On January 8, 2010, Petitioner filed a reply to Respondent’s objections. (Doc. # 59).

1. Respondent’s Objections

Respondent summarized his objections as follows:

First, the Magistrate Judge ignored the circumstantial evidence presented regarding the prosecutor’s motives. The prosecutor testified to the characteristics he was looking for in Petitioner’s jury. He testified regarding the types of jurors he favored and disfavored at the time and stated that he applied those standards and preferences while selecting Petitioner’s jury. The Magistrate Judge ignored this testimony and categorized it as the prosecutor’s or Respondents counsel’s speculation. There is nothing speculative about testifying to one’s habit and practices. There is no legal cause for disregarding the prosecutor’s testimony regarding the practices he applied during Petitioner’s trial.

Additionally, the Magistrate Judge found the state had an obligation to present the prosecutor’s actual reasons for retaining each of the teaching-connected jurors that formed the. basis of the court’s comparative juror analysis. Although the state has a burden to present the prosecutor’s actual reason for striking the minority juror and a failure to meet that burden constitutes evidence of discrimination, there is no burden to present the prosecutor’s actual reasons for retaining all of the jurors who remain on the jury. The. Magistrate Judge improperly imposed a burden on the state where none exists and then found evidence of discrimination in the state’s perceived inability to meet that burden.

In so doing, the Magistrate Judge failed to conduct a true comparative juror analysis. The Magistrate Judge did not conduct a side-by-side comparison of the minority juror who was removed and the non-minority jurors who remained on the jury. The Magistrate Judge failed to address the dissimilarities between the jurors or explain how the prosecutor’s decision to retain the non-minority jurors was probative of his motive to strike the minority juror despite the considerable ^differences between the jurors. Rather, the Magistrate Judge inferred discrimination strictly from the prosecutor’s inability to recall the jurors or provide direct testimony regarding why he chose to keep them on the jury. A true comparative juror analysis reveals that no similarly-situated jurors remained on the jury. Petitioner has failed to meet his burden to show purposeful race discrimination, and this Court must deny his Petition with prejudice.

(Doc. # 57 at 1-2).

Petitioner filed a reply, contending that “Respondent mischaracterizes mere insufficient evidence supporting his theories as assigning a burden of proof’ (Doc. # 59 at 4), and “Respondent’s critique of the comparative analysis is meritless and grounded on incorrect factual assertions” (Doc. # 59 at 5).

2. Petitioner’s Objections

Petitioner “accepts Judge Brooks’s ultimate conclusion and recommendation, but he objects to specific findings and rulings in the R & R.... [Petitioner] ... requests the Court reject those portions, but otherwise adopt the R & R in full.” (Doc. # 58 at 1). Petitioner contends that “this Court should reject the [Magistrate Judge’s] legal conclusion that án expansive definition of ‘teacher’ is not required by the law of the case.” (Doc. # 58 at 2). Petitioner objects to the Magistrate Judge’s granting of Respondent’s motion to strike the transcript of the December 2008 interview of Baker. Petitioner contends that the Magistrate Judge erroneously assigned little weight to Petitioner’s arguments concerning venire-member Ramirez, and Baker’s exercising of his first peremptory challenge against McGee. Finally, Petitioner requests that the Court make two “corrections and clarifications” to the Report and Recommendation.

STANDARD OF REVIEW

The duties of the district court in connection with a magistrate judge’s report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those portions of the report ... to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989).

DISCUSSION

The Court has considered all objections filed by the parties and reviewed de novo all portions of the Report and Recommendation. In the Report and Recommendation, the Magistrate Judge set forth the correct legal standards and undertook “ ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,’ ” including “a comparative analysis of similarly situated jurors.” Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir.2008) (quoting Batson, 476 U.S. at 93, 106 S.Ct. 1712); see also Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Bat-son’s third step.”). After considering all of the available evidence, and giving due weight to the Magistrate Judge’s credibility findings, the Court adopts the finding of the Magistrate Judge that the prosecutor’s strike of McGee violated the Equal Protection Clause, as described in Batson. See Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) (“ ‘[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose’ ”) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994)).

Respondent objects that the Magistrate Judge “disregarded Mr. Baker’s testimony regarding the general practices he employed to select Petitioner’s jury.” (Doc. # 57 at 3). The Ninth Circuit has indicated that “a firm set of specific guidelines that [a prosecutor] consistently employed” during jury selection may constitute “competent evidence of a prosecutor’s actual reasons for striking certain jurors.” Paulino v. Harrison, 542 F.3d 692, 701 n. 10 (9th Cir.2008) (declining to reach the issue because the prosecutor “did not testify to a firm set of specific guidelines that she consistently employed”). In the Report and Recommendation, the Magistrate Judge expressly considered Baker’s testimony concerning his “general practices.” (Doc. # 55 at 25, 43-44). However, the Magistrate Judge noted that Baker testified that his handling of Love’s case was not consistent with how he would normally conduct a case. (Id. at 43.) The Magistrate Judge reasonably concluded that Baker’s “uneven application of his general principles,” as illustrated by comparative juror analysis, constitutes evidence of pretext. (Id. at 44). Even Baker testified that his “general approach to jury selection involves rules of thumb,” and “the rules of thumb are sometimes applied and sometimes not.” (Doc. # 44-1 at 72). Baker’s “general practices” were not “a firm set of specific guidelines that [he] consistently employed,” and the Magistrate Judge reasonably discounted them. Paulino, 542 F.3d at 701 n. 10. This objection is overruled.

Respondent objects that “the Magistrate Judge imposed a burden on the state where none exists,” because, at stage three of the Batson inquiry, “the state did not have a burden to produce the reasons for retaining Jurors No. 4, 8, 10, and prospective alternate juror Ms. [Garibay].” (Doc. # 57 at 7-8). In the Report and Recommendation, the Magistrate Judge correctly set forth the legal framework surrounding Batson challenges, including the burden of proof. (Doc. # 55 at 22-24; see also id. at 23-24 (“At step three of the Batson inquiry, the question is ‘whether the opponent of the strike has proved purposeful racial discrimination.’ The ultimate burden of persuasion regarding racial motivation ‘rests with, and never shifts from, the opponent of the strike.’ Thus, Petitioner Love has the burden of proving purposeful discrimination.”) (quoting Johnson v. California, 545 U.S. 162, 168, 171, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005))). The Magistrate Judge confined his analysis to step three of the Batson inquiry. The Magistrate Judge did not impose a burden on Respondent to produce reasons for retaining the jurors who were the subject of comparative analysis with McGee. Instead, the Magistrate Judge properly applied the principle that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Bat-son’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). This objection is overruled.

Finally, Respondent objects that “the Magistrate Judge failed to conduct a true comparative analysis,” because “Ms. McGee was not comparable to Jurors No. 4, 8, 10 or prospective alternate juror Ms. [Garibay].” (Doc. # 57 at 2, 9). “Two jurors do not have to have all the same characteristics to be similarly situated. ‘A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.’ ” Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir.2008) (quoting Miller-El, 545 U.S. at 247 n. 6, 125 S.Ct. 2317). In the Report and Recommendation, the Magistrate Judge conducted a thorough and proper comparative analysis. The Magistrate Judge recognized that “[f]or a comparative analysis to be useful, the compared jurors must be similarly situated.” (Doc. # 55 at 34 (citing Mitleider v. Hall, 391 F.3d 1039, 1049 n. 9, 1050 (9th Cir.2004)). However, the Magistrate Judge properly refused to engage in “speculation about the prosecutor’s knowledge or motive.” (Doc. #55 at 35 (citing Paulino, 542 F.3d at 700)). “A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” Miller-El, 545 U.S. at 252, 125 S.Ct. 2317. Respondent’s theory regarding why prospective alternate juror Garibay was not similarly situated to McGee, see Doc. # 57 at 9, constitutes post-hoc speculation by Respondent’s counsel, and is contradicted by Baker’s testimony. (Doc. #44-1 at 77 (“[W]hen you’re looking at an alternate ... I don’t think there’s any difference in philosophy and approach.”); 78 (“I would have guessed I would have struck her.”)). Respondent’s arguments about Jurors No. 4, 8 and 10 involve application of Baker’s inconsistently-applied “the rules of thumb,” discussed above. (Doc. # 44-1 at 72). McGee shared some of Baker’s positively-viewed “rules of thumb” (e.g., she was married, and had children, a blue-collar spouse, a sister who worked in a sheriffs office, and a brother-in-law who was a correctional’ officer). To the extent Baker based his decision-making as to Jurors No. 4, 8, 10 and alternate Garibay on his “rules of thumb” and he was unaware of whether McGee did or did not share those relevant characteristics (such as town of residente, age, occupation of spouse, existence of children, etc.), Baker’s failure to question McGee to determine whether she likewise shared these positively-viewed “rules of thumb” is itself evidence of pretext. See Miller-El, 545 U.S. at 246, 125 S.Ct. 2317 (“The State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.”); United States v. Esparza-Gonzalez, 422 F.3d 897, 905 (9th Cir.2005) (“[T]he prosecutor had very little hard information to base this decision on. Although the prosecutor has no obligation to question all potential jurors, his failure to do so [before] removing a juror of a cognizable group ... may contribute to a suspicion that this juror was removed on the basis of race.”). This objection is overruled.

Petitioner objects to the Magistrate Judge’s conclusion that an expansive definition of “teacher” was not required by the law of the case doctrine. (Doc. # 58 at 2). In the Report and Recommendation, the Magistrate Judge stated:

When making its juror comparisons, neither the law of the case doctrine nor the rule of mandate requires the Court to consider instructional assistants and teacher’s aides to be teachers. The prosecutor’s stated race-neutral explanation is the touchstone. Even so, a comparison between. McGee and each juror with a teaching-related career is instructive. Prosecutor Baker acknowledged that the distinction between teachers, instructional assistants, and teacher’s aides was not one of kind, but of degree.

(Doc. # 55 at 33 (citing Doc. # 44-1 at 56-58)). The Magistrate Judge proceeded to conduct a comparative juror analysis between McGee and each juror with a teaching-related career. Petitioner fails to indicate how a comparative juror analysis would have proceeded any differently had the Magistrate Júdge concluded that an expansive definition of “teacher” was required by the law of the case. Accordingly, this objection is overruled for failure to show prejudice.

Petitioner objects to the Magistrate Judge’s granting of Respondent’s motion to strike the transcript of the December 2008 interview of Baker. Petitioner contends that the December 2008 interview transcript, which was attached to Petitioner’s PosNHearing Legal Brief (Doc. # 48), is “probative in triangulating the historical facts and in assessing the credibility of Mr. Baker’s testimony.” (Doc. # 58 at 7-8). However, a review of Petitioner’s Post-Hearing Legal Brief shows that, with a single exception, his citations to the December 2008 interview transcript are merely cumulative of his citations to Baker’s testimony before the Magistrate Judge. (Doc. # 48 at 7-12, 14, 17). The sole exception is in a footnote, where Petitioner states:

[T]he fact there is no evidence of an official policy of discrimination is no more dispositive than in numerous cases where Batson claims were sustained without such a showing. It is noteworthy, though, that Baker had previously described Batson/Wheeler challenges as ‘com[ing] up often in our county,’ if only due to the local demographics, [citing to the December 2008 interview], but at the evidentiary hearing he retreated from this, saying only that they ‘come up often during trial where the defense feels they may be violated.’

(Doc. # 48 at 18 n. 15 (citations omitted)). In the Report and Recommendation, the Magistrate Judge did not discuss the issue of whether there existed “evidence of an official policy of discrimination.” Id. Accordingly, this objection is overruled for failure to show prejudice.

Petitioner makes two additional objections regarding the weight the Magistrate Judge assigned to two of Petitioner’s arguments. (Doc. # 58 at 8-12). After review of these objections and the relevant portions of the Report and Recommendation, the Court overrules each objection for the reasons stated in the Report and Recommendation. (Doc. # 55 at 39-41, 47).

Finally, Petitioner requésts that the Court make two “corrections and clarifications” to the Report and Recommendation. (Doc. # 58 at 12). First, Petitioner asserts:

The R & R states:

before entering the courtroom, Baker asked whether it was a ‘life case,’ to which the judge responded that there was a possible ’20 indeterminate life sentence.’

Actually, the trial transcript shows that the judge merely replied, ’20,’ and it was Baker who added the comment on the indeterminate life sentence.

The R & R should be amended to clarify the proper attributions and that the numeral ’20’ in the exchange seemingly refers to the number of peremptory challenges allotted to each side in a case with a possible life sentence.

Id. (citing Cal.Code of Civ. Proc. § 231(a)). The Court.will amend the Report and Recommendation to clarify the proper attributions from the transcript. There is no suggestion in the record or in the Report and Recommendation that Baker believed he had no remaining peremptory strikes or that he adjusted his juror selection strategy due to an erroneous belief about the number of his available strikes. Accordingly, this portion of the Report and Recommendation will not be amended further.

Pursuant to Petitioner’s second requested correction, the Report and Recommendation will be amended to correct the spelling of the name of venire-member Lovecchio.

CONCLUSION

IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. # 55) is ADOPTED in its entirety, except for the following two amendments:

(1) Page 6, line 26 is stricken in its entirety and replaced with, “ ‘20’. Baker responded, ‘20 indeterminate life sentence.’ ”

(2) On page 7, line 4, “Lovecchino” is stricken and replaced with “Lovecchio”.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doe. # 1) will be GRANTED, unless the State of California grants Petitioner a new trial no later than 180 days from the date of this Order. The parties shall file a joint status report no later than 180 days from the date of this Order.

REPORT AND RECOMMENDATION GRANTING PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 1] AND ORDER GRANTING RESPONDENT’S MOTION TO STRIKE EXHIBIT B

RUBEN B. BROOKS, United States Magistrate Judge.

INTRODUCTION

Alfredrick Love, an African-American, was tried and convicted of battery on a non-confined person by a prisoner. During the second day of jury selection, Monday, July 21, 2003, Assistant District Attorney Eric Baker excused the lone African-American from the jury. His motivation for that peremptory challenge is the subject of this proceeding.

I. BACKGROUND

A. The Jury Selection

On December 4, 2002, the Imperial County District Attorney filed an information charging Alfredrick Love with two counts of battery on a non-confined person by a prisoner in violation of California Penal Code section 4501.5 for his attacks against Sergeant Kenneth Grady and Correctional Officer B. Walker. (Lodgment No. 1, Clerk’s Tr. vol. 1, 001C-002, Dec. 4, 2002.) The information also alleged the following sentencing enhancements: (1) Petitioner committed the charged batteries while confined in state prison within the meaning of California Penal Code section 1170.1(c), and (2) Love had three prior serious or violent felony convictions for robbery that would result in sentencing enhancements under California Penal Code sections 667(b)-(i) and 1170.12(a)-(d). (Id.); see also Cal.Penal Code § 211 (West 2008).

1. Jury Selection — Day One

Jury selection began on July 17, 2003. Love represented himself during the jury selection process and at trial. (J. Mot. File Tr. State Proceedings, Attach. # 1 Tr. 134, 216, July 17, 2003.) On the first day of the selection process, Assistant District Attorney Christopher Kowalski represented the People of California. (Id.) The Honorable Jeffrey B. Jones excused or deferred service for all the potential jurors with qualifying hardships. (Id. at 170-73.) He then questioned the twenty-four remaining potential jurors. (Id. at 173-201.) Among them were Sahid Ramirez, later struck by Prosecutor Baker, and juror four, one of the jurors who is the subject of this Court’s comparative analysis. (Id. at 172.)

Ramirez told the trial court he was from Calexico; he was married with a young baby; he worked at the “[SJocial [Security office;” his wife was a tutor at an elementary school; and he had no prior, jury experience. (Id. at 176.) Juror four stated her residence and explained that she was married with three children and one grandchild; she was “an instructional assistant;” her husband was a maintenance worker; and she had no prior jury experience. (Id.) Other prospective jurors disclosed similar background information and responded to questions from the court. (Id. at 176-201.)

Next, Assistant District Attorney Kowalski and Love questioned the potential jurors. (Id. at 201-252.) Neither directed any questions to Ramirez or juror four. (Id.) Following questioning, the prosecutor and Love each challenged certain prospective jurors for cause, and the trial judge excused five individuals from the jury panel. (Id. at 252-60.) After vacancies in the jury box were filled, Kowalski and Love were permitted to make peremptory challenges to the first twelve potential jurors. (Id. at 260-63.) Kowalski exercised four peremptory challenges, and Love exercised three; the court excused each challenged juror. (Id.)

Judge Jones drew nine additional names. (Id. at 263-65.) He then conducted the court’s voir dire of the new potential jurors. (Id. at 266-77.) Gloria McGee, the focal point of Love’s Batson challenge, was among this group. (Id. at 264.) She was married, had three children, was an eligibility worker, and had no. prior jury experience. (Id. at 266.) Her husband was a retired electrician. (Id. at 268.) In addition, she disclosed that her brother-in-law was a correctional officer at Calipatria State Prison, and her sister was a supervisor in the records section of the sheriffs department. (Id. at 275.)

Kowalski and Love questioned the nine new potential jurors. (Id. at 277-94.) The prosecutor asked McGee questions about her contacts and conversations with her sister and brother-in-law. (Id. at 291-93.)

Following the questioning, the judge excused two individuals from the group of nine for cause. (Id. at 296.) Next, Kowal-' ski and Love each exercised three peremptory challenges, and the court excused the challenged jurors. (Id. at 296-98.) Their vacancies were filled from the group of nine potential jurors outside the jury box. (Id.) McGee moved to seat number one. (Id. at 298.) This concluded the first day of voir dire. (Id. at 297-98.)

2. Jury Selection — Day Two

When the trial resumed the following Monday, July 21, 2003, Kowalski was unavailable due to illness, and attorney Gordon Goodman appeared for the People of California. (Id. Attach. #2 Tr. 304, 307, July 21, 2003.) An additional group of potential jurors was brought to the courtroom. (Id. at 310.) Judge Jones excused or deferred service for those individuals with qualifying hardships. (Id. at 337-41.)

After a recess, Assistant District Attorney Eric Baker, the prosecutor whose actions are the subject of Love’s Batson challenge, entered the courtroom. (Id. at 347.) He stated that he had been assigned to the case and was prepared to proceed. (Id.) At that point, Goodman was excused. (Id. at 348.) The judge explained that there were twelve potential jurors in the jury box who had been questioned during the first day. of voir dire. (Id. at 347-48.) The court called another twelve individuals to fill the seats outside the jury box. (Id. at 348.)

Judge Jones then conducted the court’s voir dire of the twelve additional potential jurors. (Id. at 349-63.) Among this group of twelve were jurors eight and ten, Denise Garibay, Karl Noris, and alternate number one. (Id. at 348-49.)

Juror eight stated her city of residence and explained that she was married with three children and one grandchild. (Id. at 352.) She was employed as a “teacher’s aide;” her husband was retired from his job as a cowboy in a feed lot; and she had served on a jury approximately ten to twelve years earlier but could not remember if it was in a civil or criminal case. (Id.) Juror ten was a Holtville resident; she was not married, had one child, and was a “school teacher.” (Id. at 351.) Her ex-husband was a farmer, and she served on a criminal case about fifteen years earlier. (Id.)

Garibay lived in El Centro, was divorced, had two children, was a teacher for “Imperial County Office of Education[,]” and her ex-husband worked for a tire repair service. (Id. at 353.) Noris lived, in El Centro, had no children, was single, went to Imperial College, and had no prior jury experience. (Id.) Alternate number one stated her residence and explained that she was married with a daughter, “work[ed] at Jefferson El Centro School[,]” and her husband worked for the family tire service. (Id. at 353-54.)

After the court’s questioning was completed, the trial judge told Baker he had twenty minutes to question the jurors. (Id. at 363-64.) Baker had the notes that Kowalski had taken about the jurors. (Tr. Evidentiary Hr’g 17, Mar. 12, 2009.) They contained the jurors’ occupations, but “not all the jurors had the same amount of notes written on them.” (Id.) The only information Baker recalled about McGee from the notes was that she was an eligibility worker, which he would characterize as a social worker. (Id. at 22-23, 25.)

Prosecutor Baker asked the potential jurors generally about any personal contacts with law enforcement; could they hold a pro se defendant to the same standard as the prosecution, and could they base their decision on the evidence in this case. (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. 364-66.) He asked one juror if he would be able to vote guilty if the prosecution proved its case beyond a reasonable doubt. (Id. at 366.) Baker asked if anyone felt uncomfortable because the case involved an incident that occurred in state prison and whether there were any other reasons they did not want to sit on the jury that they had not already shared. (Id.) Love did not ask any questions. (Id.)

Next, Baker and Love conferred with the judge in chambers, and Love made one challenge for cause that the judge granted. (Id. at 366-67.) Judge Jones then explained they would resume peremptory challenges once they returned to the courtroom. (Id.) Baker asked whether the individuals in the jury box had been challenged yet. (Id.) The judge responded that each party could make peremptory challenges of the jurors seated in the jury box. (Id. at 367-68.) The prosecution had already exercised seven peremptory challenges, and Love had exercised six; Baker would be the first to exercise a challenge. (Id. at 368.) Before reentering the courtroom, Baker asked whether it was a “life case,” to which the judge responded that there was a possible “20 indeterminate life sentence.” (Id.)

After the trial judge excused one individual for cause, Baker began his peremptory challenges. (Id.) His first challenge was to McGee, the only African-American potential juror. (Id. at 369, 371.) Love exercised a peremptory challenge, and then Baker excused Ramirez, the individual who worked at the Social Security office. (Id. at 369.) Next, Love excused Loveechino, a high school special education teacher. (Id. at 351, 369.) The prosecutor exercised another peremptory strike, followed by Love, and then Baker exercised a fourth strike. (Id. at 370.) Both Baker and Love indicated they had no other peremptory challenges. (Id.)

Before the jurors were sworn, Love asked for a side-bar conference to address the court. (Id. at 371.) He made a “Wheeler/Batson ” objection to Baker’s dismissal of McGee, the only African-American on the jury panel. (Id.) The court sought a response from the prosecutor, and Baker offered the following explanation:

... I would offer as my reason is that she’s a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal — my personal jury selection. Teachers and social workers don’t sit on the jury. I referred to Chris Kowalski’s notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution.

(Id. at 371-72.)

Love countered:

From my notes, she’s not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem — conventionally she would be leaning towards the District Attorney. The only thing I can see that you would possibly dismiss her for is that she’s African/American.

(Id. at 372.)

The court overruled Love’s objection.

I’ll deny the motion on the following basis. First of all, to my knowledge— and I believe this is correct of the entire groups we’ve brought in, which would have been a total of about — I’m going to say 155, 160 people — Ms. McGee was the only African/American.

I think she’s the only one that remained after hardships. I don’t think there was anybody left.

And so the People’s exercise of peremptory challenge as to the only African/American juror in the entire available panel I don’t think shows a pattern which is required.. It’s one peremptory out of many. And I do find that the reason offered by Mr. Baker for the exercise of the challenge is a — although not a ehallenge-for-cause reason, it establishes there was not a discriminatory motive based upon her membership of the protective class.

I’ll deny the motion, Mr. Love. But I think you’ve made your record.

(Id. at 372-73.) Love asked, “Did he indicate that he had removed all teachers and social workers?” (Id. at 373.) Judge Jones responded, “He indicated that was the reason for removing Ms. McGee.” (Id.)

The jury was sworn in, and the judge decided there should be one alternate. (Id. at 374.) Each party had one peremptory challenge to the alternate. (Id.) The next three jurors were Garibay, a teacher; Noris, an unmarried student; and alternate number one, who stated she worked at a local school. (Id. at 374-75.) Baker passed, and Love exercised his peremptory challenge on Garibay. (Id. at 375-76.) The prosecutor then exercised his peremptory challenge on Noris. (Id. at 375.) Thus, the remaining person became the alternate. (Id.) Jury selection was completed, and the remaining potential jurors were excused. (Id. at 375-76.)

B. The Subsequent Procedural History

On July 28, 2003, the jury convicted Petitioner of battery on Sergeant Grady but acquitted him of battery on Officer Walker. (Lodgment No. 1, Clerk’s Tr. vol. 2, 361-62, July 28, 2003.) The jurors found the allegations of three prior felony convictions were true. (Id. at 365.)

Petitioner filed a motion for new trial on August 11, 2003. (Id. at 377, Aug. 11, 2003.) One of the bases of Love’s motion was the trial court’s denial of his Wheeler/Batson motion to set aside the prosecutor’s peremptory challenge of McGee. (Id. at 389-90); see Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. 1712; People v. Wheeler, 22 Cal.3d at 276-77, 583 P.2d at 761-62, 148 Cal.Rptr. at 903. In addition, Petitioner moved to strike his prior convictions. (Lodgment No. 1, Clerk’s Tr. vol. 2, 370.)

The trial judge denied Love’s motions. (Id. at 415.) The court sentenced Petitioner, a confined inmate, to twenty-five years to life in prison, which was to run consecutively to the term he was already serving. (Id.) Love was also ordered to pay a restitution fine of $200 pursuant to California Penal Code section 1202.4(b). (Id.)

Petitioner filed an appeal, arguing that the denial of his Wheeler motion was in error and required reversal. (Lodgment No. 2, Appellant’s Opening Brief at 8, People v. Love, No. D043053, 2005 WL 240903 (Cal.Ct.App. Feb. 2, 2005).) The California Court of Appeal affirmed Love’s conviction on February 2, 2005. (Lodgment No. 5, People v. Love, No. D043053, slip op. at 1, 9, 2005 WL 240903 (Cal.Ct.App. Feb. 2, 2005).)

Petitioner filed a petition for review in the California Supreme Court, raising the same Wheeler/Batson argument regarding the prosecutor’s alleged impermissible use of a • peremptory challenge. (Lodgment No. 6, Petition for Review at 3, People v. Love, No. S132156 (Cal. Apr. 13, 2005).) The court summarily denied Love’s petition on April 13, 2005. (Lodgment No. 7, People v. Love, No. S132156, order at 1 (Cal. Apr. 13, 2005).)

On March 22, 2006, Love, proceeding pro se and in forma pauperis, filed a federal Petition for Writ of Habeas Corpus [doc. no. 1]. Petitioner alleged one claim for relief: Assistant District Attorney Baker’s use of a peremptory challenge to exclude “all black jurors from the seated panel” and the trial court’s denial of Love’s motion to set aside the peremptory challenge of the only African-American juror, McGee, resulted in a violation of Petitioner’s right to equal protection under the Fourteenth Amendment. (Pet. 5.)

This Court issued a Report and Recommendation Re: Denying Petition for Writ of Habeas Corpus and Order Denying Request for Evidentiary Hearing on September 7, 2006 [doc. no. 11]. Love timely filed an objection [doc. no. 12], United States District Judge William Q. Hayes adopted the Report and Recommendation and entered judgment in favor of Respondent on January 19, 2007 [doc. no. 15], Judge Hayes granted Petitioner’s request for a certificate of appealability on February 14, 2007 [doc. no. 18].

The Ninth Circuit, on March 19, 2008, reversed the judgment and remanded the case for an evidentiary hearing to determine whether the prosecution struck McGee on the basis of her race [doc. no. 25]. The circuit court held that the California Court of Appeal unreasonably applied clearly established federal law, so “the inquiry into whether the prosecutor’s reason for rejecting the black juror was pretextual must be determined de novo on federal habeas.” Love v. Scribner, 278 Fed.Appx. 714, 718 (9th Cir.2008) (quoting 28 U.S.C. § 2254(d)(1)) (citing Frantz v. Hazey, 533 F.3d 724, 739 (9th Cir.2008) (en banc)).

This Court appointed counsel for Petitioner [doc. no. 29]. Prehearing conferences with counsel for Love and Respondent were held on October 21 and November 18, 2008 [doc. nos. 33, 34]; the evidentiary hearing was set for December 2, 2008, but continued to March 12, 2009 [doe. nos. 33, 34, 37, 38]. The evidentiary hearing was held on that date [doc. no. 43]. Two witnesses testified at the hearing: Eric Baker, a former deputy district attorney in the Imperial County District Attorney’s Office, and Love, the African-American Petitioner. (Tr. Evidentiary Hr’g 1-3, 82.)

The parties jointly filed a copy of the transcript of the superior court jury selection proceedings [doc. no. 45]. On April 28, 2009, Respondent'submitted his PostEvidentiary Hearing Opening Brief [doc. no. 46]. Petitioner filed a Post-Hearing Legal Brief [doc. no. 48]. Attached as Exhibit B to the brief is a copy of the transcript of a prehearing interview of Eric Baker. (Pet’r’s Post-Hr’g Br. Ex. B.) Respondent’s Post-Evidentiary Hearing Reply Brief was submitted on May 29, 2009 [doc. no. 49]. The brief also contains a request to strike Exhibit B to Petitioner’s Post-Evidentiary Hearing Brief.’ (Resp’t’s Posh-Evidentiary Hr’g Br. 1.) Love filed an Opposition to Motion to Strike and Surreply to Posh-Hearing Briefing [doe. no. 50],

On July 7, 2009, the Ninth Circuit decided Ali v. Hickman, 571 F.3d 902 (9th Cir.), amended by 584 F.3d 1174 (9th Cir.2009), a case discussing a Batson challenge to a state court conviction [doc. no. 52]. Petitioner and Respondent each filed supplemental briefs addressing Ali [doc. nos. 53, 54],

II. THE SCOPE OF THIS PROCEEDING

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.A. § 2244 (West Supp.2008), applies to all federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 538 U.S. 202, 204, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 U.S. 339, 347, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991). Because Love’s Petition was filed on March 22, 2006, AEDPA applies to this case. See Woodford, 538 U.S. at 204, 123 S.Ct. 1398.

Amended § 2254(d) reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254(d).

On remand from the Ninth Circuit, this Court must now determine the merits of Love’s Batson claim. The federal appellate court held that the California Court of Appeal’s refusal to conduct a comparative juror analysis “was contrary to, or involved an unreasonable application of, clearly established Federal law.” Love, 278 Fed.Appx. at 717 (quoting 28 U.S.C. § 2254(d)(1)) (citing Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir.2006) (en banc)). Love’s case was remanded “for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race.” Id. at 718. This Court will make that de novo finding under Batson, 476 U.S. 79, 106 S.Ct. 1712, and its progeny.

There is a well-established, three-part test for evaluating a Batson challenge to the prosecutor’s use of peremptory challenges. Ali v. Hickman, 584 F.3d at 1180—81.

First, the defendant must make a prima facie showing that a challenge was based on race. See Kesser, 465 F.3d at 359. If such a showing is made, the burden then shifts to the prosecutor to produce a “clear and reasonably specific” race-neutral explanation for challenging the potential juror. See id. Third and finally, the court must determine whether, despite the prosecutor’s proffered justification, the defendant has nonetheless met his burden of showing “purposeful discrimination.” See id.

Ali, id.; accord Love v. Scribner, 278 Fed.Appx. at 716.

A prima facie case of purposeful discrimination is established if “(1) the prospective juror is a member of a ‘cognizable racial group,’ (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was [motivated] by race.” Boyd v. Newland, 455 F.3d 897, 901 (9th Cir.2006) (citations omitted).

Baker told the trial judge that he exercised a peremptory challenge to McGee based on her occupation as a “social worker and eligibility worker” and that his personal preference was that “[tjeachers and social workers don’t sit on the jury.” (J. Mot. File Tr. State Proceedings, Attach. # 2 Tr. 371.) The Ninth Circuit found the explanation “sufficient to satisfy the prosecutor’s burden at the second Batson step.” Love v. Scribner, 278 Fed.Appx. at 716.

Batson’s first two steps are “mere burdens of production,” but step three is where the challenge is decided. Yee v. Duncan, 463 F.3d 893, 898 (9th Cir.2006). “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

A. The Mandate Rule

The remand to the district court was limited. The Ninth Circuit explained, “[T] he [state] trial court did not allow Love to examine the prosecutor’s actual reasons for keeping the teaching-connected individuals, while striking Ms. M. from the jury.” Love v. Scribner, 278 Fed.Appx. at 718. The district court was to hold an evidentiary hearing to decide if Baker struck McGee from the jury because she was African-American. Id.

Petitioner and Respondent disagree on whether Baker may amplify his earlier explanation for challenging McGee. In its opinion, the Ninth Circuit addressed Baker’s comments but did not decide their preclusive effect.

In this case, the prosecutor explained that he excused the only available African-American member of the jury pool because she was a “social worker and eligibility worker” and his policy was that “teachers and social workers don’t sit on the jury.” Because the disputed juror was an eligibility worker, whom the prosecution also described as a social worker, this explanation is sufficient to satisfy the prosecutor’s burden at the second Batson step.

Love v. Scribner, 278 Fed.Appx. at 716. Love contends that Respondent is attempting to recast prosecutor Baker’s absolutism into a flexible rule and is precluded from doing so.

“On remand, the doctrine of the law of the case is rigid; the district court owes obedience to the mandate of ... the court of appeals and must carry the mandate into effect according to its terms.” 18 James Wm. Moore, et al., Moore’s Federal Practice § 134.23[l][a], at 134-59 (3d ed.2009) (footnote omitted). “The nondiscretionary aspect of the law of the case doctrine is sometimes called the ‘mandate rule.’ ” Id. at 134-58 to 59 (footnote omitted).

“[I]n the Ninth Circuit, the mandate rule is jurisdictional, implicating the ‘power,’ not just the preferred or common practice, of the district courts.” Taltech Ltd. v. Esquel Enters., 609 F.Supp.2d 1195, 1200 (W.D.Wash.2009) (citing United States v. Thrasher, 483 F.3d 977, 982 (9th Cir.2007)). The rule precludes this Court from reconsidering any issue decided explicitly or by necessary implication by the Ninth Circuit. Id. “On remand, the trial court should only have considered matters left open by the mandate of [the appellate] court.” Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir.1985) (internal quotations omitted) (citing Moore v. James H. Matthews & Co., 682 F.2d 830, 834 (9th Cir.1982)). Some circuits describe the rule as a “specific application of the law of the case doctrine.” Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.1992) (citations omitted).

The mandate rule and the law of the case doctrine are frequently cited without differentiating one from the other. “There certainly is a difference between the two doctrines, and they are not identical. While both doctrines serve an interest in consistency, finality and efficiency, the mandate rule also serves an interest in preserving the hierarchical structure of the court system.” United States v. Thrasher, 483 F.3d at 982. “[T]he [mandate] doctrine is ‘similar to, but broader than, the law of the case doctrine.’ ” Id.

The Ninth Circuit remand limits this Court’s jurisdiction. Id. (citation omitted); see also United States v. Hall, 434 F.Supp.2d 19, 24 n. 3 (D.Me.2006) (“[N]ew evidence cannot be considered if it bears on an issue that was not left open by an appellate decision remanding for further proceedings on other issues.”) (quoting 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4478, at 685 (2d ed.2002)).

“At Batson’s second step, the question of whether the state has offered a ‘race-neutral’ reason is a question of law.. ..” Paulino v. Harrison (Paulino II), 542 F.3d 692, 699 (9th Cir.2008) (citation omitted). In Petitioner’s case, the question has been answered. The appellate court found that step two in evaluating the Batson challenge was satisfied. Love v. Scribner, 278 Fed.Appx. at 716. Step two pertains to the burden of producing evidence; the merits of the challenge are not resolved at that stage. Thus, step two of the test is not the focus of this proceeding.

Baker’s testimony that a disfavored occupation such as a social worker or teacher was merely a factor to consider when deciding whether to strike a possible juror cannot add to the analysis at step two. Nevertheless, the testimony is relevant to this Court’s “ultimate [step three] determination of whether there has been purposeful discrimination.” Yee, 463 F.3d at 901; see also Gonzalez v. Brown, 07-56107, 585 F.3d 1202, 1208 (9th Cir.2009) (“While the issue of whether these facts establish the inference to support the first step of Bat-son is not before us, they are relevant to whether it was objectively unreasonable to conclude Gonzalez had not met his ultimate burden at Batson step three.)

B. The Motion to Strike Petitioner’s Exhibit B

Before considering the merits of Love’s Batson claim, the Court must address Respondent’s motion to strike Exhibit B to Petitioner’s Post-Hearing Legal Brief. (Post-Evidentiary Hr’g Reply Br. 1.) Exhibit B is the transcript of an interview of former Assistant District Attorney Eric Baker.

In December of 2008, Baker was interviewed by counsel for the Respondent. (Tr. Evidentiary Hr’g 33-36.) The session was “tape recorded.” (Id. at 35.) A transcript of that interview was prepared and provided to Petitioner’s counsel. At the evidentiary hearing, neither counsel for Petitioner nor counsel for Respondent sought to introduce the interview transcript into evidence, although both referred to the prior interview. Two months later, on May 15, 2009, Love attached a copy of the Baker transcript as Exhibit B to Petitioner’s Post-Hearing Legal Brief.

The Respondent notes that Love’s attorney was provided an opportunity to submit additional evidence at the conclusion of the evidentiary hearing, but he declined. (Post-Evidentiary Hr’g Reply Br. 1.) Petitioner’s counsel stated that he had no further evidence and only asked that one exhibit, a letter from the Imperial County District Attorney’s Office, be admitted into evidence. (Tr. Evidentiary Hr’g 85-86.) Respondent complains that the “attempt to submit new evidence at this late [juncture] is improper.” (Post-Evidentiary Hr’g Reply Br. 1.) He also objects to the interview transcript as hearsay and lacking foundation. (Id.)

Petitioner describes Exhibit B as a copy of an “interview [of Baker] conducted in the Attorney General’s office at which two deputies (including current counsel) were present, along with an investigator, and Mr. Baker’s daughter. The interview was conducted ex parte, and there was no questioning by opposing counsel.” (Opp’n Mot. Strike & Surreply 2.) Love contends that the prosecutor confirmed the substance of the interview at the evidentiary hearing; and for that reason, there should be no doubt as to its authenticity. (Id.) The interview took place over six months before Love submitted it to the Court and was referred to extensively during the evidentiary hearing, so there was no unfair surprise. (Id.) Additionally, Love argues that “the interview citations show merely to what extent Mr. Baker’s memory was confirmed or not by his prior rendition.” (Id.) He maintains that this use of the transcript is not hearsay. (Id.)

In his Post-Hearing Brief, Love cites the federal evidentiary hearing and Baker interview transcripts in tandem. (Pet’r’s Post-Hr’g Br. 7-12, 14, 17.) Although he argues to the contrary, Petitioner is seeking to use the transcribed interview as substantive evidence. Labeling his use a “non-hearsay purpose” does not make it so.

In neither his PosL-Hearing Brief nor his Opposition to Motion to Strike did Love ask to reopen the record to lay the foundation and introduce the Baker interview into evidence. A motion to reopen the record to submit additional evidence is addressed to the sound discretion of the Court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (citations omitted). “[T]he particular criteria that guide a trial court’s decision to reopen are necessarily flexible and case-specific .... ” Rivera-Flores v. Puerto Rico Telephone Co., 64 F.3d 742, 746 (1st Cir.1995). The Court should consider whether: “(1) [T]he evidence sought to be introduced is especially important and probative; (2) the moving party’s explanation for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no undue prejudice to the nonmoving party.” Id. (citations omitted).

The Baker interview is cumulative. Love fails to highlight any statement in the transcript that is particularly probative. Courts generally act within their discretion in refusing to reopen a case for cumulative evidence or evidence with little probative value. Id. (citing Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir.1994); Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1336 (9th Cir.1978)). In Thomas, the Ninth Circuit found that the trial court acted within its discretion in denying a motion to reopen to hear new evidence that “does not have the persuasive power [appellant] claims for it.” Thomas, 572 F.2d at 1336.

The state trial court proceedings and Baker’s testimony at the federal evidentiary hearing are before the Court. In this context, the transcript of Baker’s tape recorded interview is not “especially important and probative.”

Petitioner offers no reason why the transcript could not have been introduced into evidence before his Post-Hearing Brief, filed two months after the evidentiary hearing concluded [doc. nos. 43, 48]. Inadvertence is not a compelling explanation. Yet, Respondent does not claim that he will be prejudiced by consideration of the transcript. (Resp’t’s Post-Evidentiary Hr’g Reply Br. 1.) Instead, he argues that it is hearsay and lacks foundation. (Id.)

It is unclear whether the interview was under oath; the transcript was not certified by a reporter; Baker did not review it for mistakes; and he did not sign the transcript. (See Pet’r’s Post-Hr’g Br. Ex. B at 5-6, 63; Tr. Evidentiary Hr’g 34-36.) The objections are well taken. This proceeding will not be reopened to provide Love an opportunity to introduce the Baker interview transcript into evidence.

Alternatively, Love moves to include Exhibit B as a document relating to the Petition pursuant to Rule 7(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. (Id. at 3.) The rule provides that “the judge may direct the parties to expand the record by submitting additional materials relating to the petition.” Rule 7(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “The purpose [of the rule] is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing.” Id. advisory committee’s note on 1976 adoption. “An expanded record may also be helpful when an evidentiary hearing is ordered.” Id.

But with respect to methods for securing facts where necessary to accomplish the objective of [habeas] proceedings Congress has been largely silent. Clearly, in these circumstances, the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.

Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). But cf. Williams v. Schriro, 423 F.Supp.2d 994, 1003 (D.Ariz.2006) (refusing to allow petitioner to supplement the record with declarations that were not relevant to his claims).

Rule 7(b) identifies items that may be included in an expanded record. “The materials that may be required include letters predating the filing of the petition,