                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 20 2010

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




                            FOR THE NINTH CIRCUIT



DAVID DION WATKINS,                              No. 08-56363

               Petitioner - Appellant,           D.C. No. 3:07-cv-00196-W-POR

  v.
                                                 MEMORANDUM *
LARRY SMALL, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                       Argued and Submitted October 6, 2010
                               Pasadena, California

Before: CUDAHY, * * WARDLAW and W. FLETCHER, Circuit Judges.

       David Dion Watkins appeals the district court’s denial of his petition for

habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), 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 Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
      It was not unreasonable for the California Court of Appeal on review of

Watkins’s state habeas petition to determine that Watkins failed to show that the

prosecution engaged in discriminatory conduct under Batson v. Kentucky, 476 U.S.

79 (1986). The trial record shows that at least one African-American was

empaneled on the jury. Even if the trial court had conducted a comparative juror

analysis scrutinizing the justifications proffered for excluding the African-

American panelists and considering whether those justifications applied equally to

white jurors, see Miller-El v. Dretke, 545 U.S. 231, 241 (2005), Watkins fails to

show that such an analysis would have demonstrated that the prosecutor’s race-

neutral justifications for the peremptory challenges were pretextual. See Kesser v.

Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en banc) (“[I]f a review of the record

undermines the prosecutor’s stated reasons, or many of the proffered reasons, the

reasons may be deemed a pretext for racial discrimination.” (alteration in original)

(quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003))).

      Therefore, the California Court of Appeal’s decision was neither an

unreasonable application of clearly established federal law nor an unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding.

      AFFIRMED.
