                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DARREN ALEXES HILTON,                            No. 12-55932

              Petitioner - Appellant,            D.C. No. 3:10-cv-02597-WQH-
                                                 WMC
  v.

MATTHEW CATE, Secretary, California              MEMORANDUM *
Department of Corrections and
Rehabilitations,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                        Argued and Submitted June 4, 2013
                              Pasadena, California

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

       Darren Alexes Hilton appeals the district court’s denial of his habeas corpus

petition, which challenges his convictions for forcible rape, pandering by

encouraging, forcible oral copulation, lewd acts upon a child fourteen or fifteen



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
years of age, and oral copulation of a person under eighteen years of age in

violation of California law, as well as related sentencing enhancements. We have

jurisdiction under 28 U.S.C. §§ 1291, 2253(a). We affirm.

                                           I

      We review a state court's conclusion that the prosecutor’s peremptory strikes

were not motivated by purposeful discrimination in violation of Batson v.

Kentucky, 476 U.S. 79 (1986), under the deferential standard set forth in 28 U.S.C.

§ 2254(d)(2). Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012); Cook v.

LaMarque, 593 F.3d 810, 816 (9th Cir. 2010); Ali v. Hickman, 584 F.3d 1174,

1180–81 (9th Cir. 2009). Under that standard, we will uphold the state court’s

decision unless it was “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

In evaluating habeas petitions premised on a Batson violation, “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.” Briggs, 682 F.3d at 1170 (citing Rice v.

Collins, 546 U.S. 333, 338–42 (2006)). This deference is owed because the

question of discriminatory intent “largely will turn on evaluation of credibility,”

and “evaluation of the prosecutor’s state of mind based on demeanor and


                                           2
credibility lies peculiarly within a trial judge’s province.” Hernandez v. New York,

500 U.S. 352, 365 (1991) (internal quotation marks and citations omitted).

      Applying these standards to this case, we conclude that the district court

properly denied Hilton’s Batson claims. The California Court of Appeal concluded

that substantial evidence supported the trial court’s determination crediting the

prosecutor’s gender-neutral reasons for striking the four male prospective jurors.

Although some of the prosecutor’s reasons for striking these prospective jurors

appear questionable in hindsight, a court need not believe that “the stated reason

represents a sound strategic judgment” to find the prosecutor’s rationale

acceptable; rather, it need be convinced only that the justification “‘should be

believed.’” Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc)

(quoting Hernandez, 500 U.S. at 365). Even if “[r]easonable minds reviewing the

record might disagree about the prosecutor’s credibility, . . . on habeas review that

does not suffice to supersede the trial court's credibility determination.” Rice, 546

U.S. at 341–42. Thus, though we have some reason to doubt the prosecutor’s

credibility, the evidence of pretext was not so strong that the California court’s

decision to credit the prosecutor’s explanation for the peremptory strikes is an

unreasonable determination of the facts.




                                           3
                                           II

      Assuming, without deciding, that the prosecutor committed misconduct in

his closing argument to the jury, Hilton failed to establish that the statement in

question “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The trial judge repeatedly

instructed the jury that the attorneys’ statements were not evidence, the

objectionable remark was but one sentence in a lengthy closing argument, and the

evidence of guilt was overwhelming. Therefore, the California Court of Appeal’s

denial of this claim did not constitute an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d)(1).

      AFFIRMED




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