                                                                            FILED
                            NOT FOR PUBLICATION                                 JUL 23 2010

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




                            FOR THE NINTH CIRCUIT



STEVEN FRANK JACKSON,                            No. 09-15379

             Petitioner - Appellant,             D.C. No. 2:07-cv-00555-RJB

  v.
                                                 MEMORANDUM *
T. FELKNER,

             Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Robert J. Bryan, District Judge, Presiding

                       Argued and Submitted April 15, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS,
District Judge.**

       Appellant Steven Frank Jackson (Jackson) appeals the district court’s denial

of his petition for a writ of habeas corpus, contending that the prosecutor’s

peremptory challenges excusing two African-American jurors violated his rights

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
under the Sixth and Fourteenth Amendments. Because Jackson filed his habeas

petition after 1996, his claim is governed by the Antiterrorism and Effective Death

Penalty Act (AEDPA). See Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009).

      “Under AEDPA, [Jackson’s] petition can be granted only if the state court

determination resolving his claim was contrary to, or involved an unreasonable

application of, clearly established Federal law . . .” Id. (citation and internal

quotation marks omitted). It is clearly established federal law that the Equal

Protection Clause prohibits the prosecutor from challenging prospective jurors

solely on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); see

also Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir. 2009), as amended. “A Batson

challenge has three steps: first, the defendant must make a prima facie showing

that a challenge was based on race; second, the prosecution must offer a race-

neutral basis for the challenge; and third, the court must determine whether the

defendant has shown purposeful discrimination.” Cook v. Lamarque, 593 F.3d

810, 814 (9th Cir. 2010) (citations and internal quotation marks omitted). In

evaluating pretext, our precedent requires a comparative juror analysis. See Boyd

v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006) (citing Miller-El v. Dretke, 545

U.S. 231 (2005)).




                                            2
      The prosecutor’s proffered race-neutral bases for peremptorily striking the

two African-American jurors were not sufficient to counter the evidence of

purposeful discrimination in light of the fact that two out of three prospective

African-American jurors were stricken, and the record reflected different treatment

of comparably situated jurors. See Ali, 584 F.3d at 1182 (holding under similar

circumstances that the California Court of Appeal’s finding of no pretext was

unreasonable). Therefore, we reverse the district court’s denial of Jackson’s

petition for writ of habeas corpus.

      REVERSED and REMANDED.




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