                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 01 2010

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


                            FOR THE NINTH CIRCUIT

 JESSE JOE CRESPIN,
                                               No. 08-55556
             Petitioner-Appellant,
                                               D.C. No. 5:07-cv-01348-AG-MLG
             v.
                                               MEMORANDUM *
 BRIAN HAWES, WARDEN,

            Respondent-Apellee.



                       Appeal from the United District Court
                        for the Central District of California
                     Andrew Guilford, District Judge, Presiding

                      Argued and Submitted February 9, 2010
                               Pasadena, California

Before:      THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District
             Judge**

      Petitioner-Appellant Jesse Joe Crespin, a state prisoner, appeals the district

court's denial of his habeas petition, which raised a single claim under Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
      During voir dire in Crespin’s retrial, the prosecutor used a peremptory

challenge to strike prospective juror Obregon, a Hispanic female. Crespin’s

counsel objected under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583

P.2d 748 (1978)1, contending that the prosecutor had excused Obregon because of

her race. The prosecutor stated that she had excused Obregon because Obregon

had indicated on her juror questionnaire that her nephew had been arrested for or

charged with armed robbery.

      The trial court denied Crespin’s Wheeler motion. The trial court’s

determination as to whether the prosecutor's explanation for dismissing a member

of the venire is credible must be accorded substantial deference. Rice v. Collins,

546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). As long as the

prosecutor presents a "comprehensible reason" and her motive is not inherently

discriminatory, her explanation need not be "persuasive, or even plausible" to

suffice. Id. at 338, 126 S.Ct. 969. The state appellate court based its decision on

the trial court's factual finding that the prosecutor was motivated by her belief that

Obregon would be sympathetic to Crespin because she had a nephew who likely

was approximately the same age as Crespin who had been arrested for or charged

with armed robbery. That decision was neither contrary to nor an unreasonable



      1
          Wheeler is the California state law equivalent of Batson.

                                           2
application of federal law.

      AFFIRMED.




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