                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 19 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


EDUL JINNAH AZEEZ, II,                           No. 13-57027

              Petitioner - Appellant,            D.C. No. 3:12-cv-01832-WQH-
                                                 NLS
 v.

MATTHEW CATE and KAMALA                          MEMORANDUM*
HARRIS,

              Respondents - Appellees.


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

                        Argued and Submitted June 1, 2015
                              Pasadena, California

Before: FERNANDEZ and BEA, Circuit Judges and MARQUEZ,** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Rosemary Marquez, District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
      Edul “Sean” Azeez appeals the district court’s order denying his petition for

writ of habeas corpus under 28 U.S.C. § 2254. We review de novo, Harvest v.

Castro, 531 F.3d 737, 741 (9th Cir. 2008), and we affirm.

      Azeez was the getaway driver for a 1995 vehicle burglary that resulted in the

murder of the vehicle’s owner. Azeez, who is African-American, was sentenced to

the upper term of 11 years’ imprisonment for voluntary manslaughter after he

entered a guilty plea in exchange for the dismissal of murder charges. Two of his

co-defendants, who are not African-American, received probation. Azeez asserts

that the sentence disparity was based on racial discrimination and that his right to

equal protection was violated. But one co-defendant was a minor; the other

cooperated with the prosecution in identifying the men involved. The California

Supreme Court summarily denied Azeez’s equal protection claim. In so doing, that

court did not make “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” nor “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. § 2254(d). The sentencing judge considered Azeez’s

mitigation evidence and stated that Azeez was a good person who was truly

remorseful and unlikely to be involved in criminal activity again. The judge then


                                          2
commented on Azeez’s culpability, his failure to come forward, and the

foreseeability of the victim’s murder. The record supports the finding that Azeez’s

sentence was based on the facts of the case and his role in the burglary and murder,

not racial bias. Azeez has not shown that the sentencing judge’s action “had a

discriminatory effect and that it was motivated by a discriminatory purpose.”

United States v. Armstrong, 517 U.S. 456, 465 (1996).

      AFFIRMED.




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