                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            SEP 23 2014

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

DAVID MARTINEZ CASTILLO,                          No. 12-16221

              Petitioner - Appellant,             D.C. No. 1:11-cv-01289-LJO-
                                                  BAM
  v.

CONNIE GIPSON, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted September 9, 2014
                             San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       David Martinez Castillo appeals the dismissal of his petition for a writ of

habeas corpus. We exercise jurisdiction under 28 U.S.C. § 2253 and affirm.

       1.    Castillo contends that the trial court failed to conduct the “sensitive

inquiry” required under Batson’s third step. Batson v. Kentucky, 476 U.S. 79, 93



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1986). But we need not address whether the trial court properly conducted that

analysis, for this Court reviews the last reasoned state-court decision that

adjudicated Castillo’s Batson claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991). Here, that decision is the opinion of the California Court of Appeal

affirming Castillo’s conviction on direct review. Because the California Court of

Appeal fully adjudicated Castillo’s Batson claim and conducted the “sensitive

inquiry” required at step three of that analysis, we conclude that the California

Court of Appeal’s decision was not “contrary to, or . . . an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

      2.     Castillo further claims that the California Court of Appeal’s decision

affirming his conviction “was based on an unreasonable determination of the facts

in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). The California Court

of Appeal conducted a comparative juror analysis and concluded that such an

analysis “fails to demonstrate the prosecutor’s nondiscriminatory reasons for

excusing the jurors were pretextual.” After conducting our own comparative juror

analysis, see Murray v. Schriro, 745 F.3d 984, 1007 (9th Cir. 2014), we conclude

that, despite asserted similarities, all of the potential jurors excused by the

prosecution were materially distinguishable from those jurors actually sworn.


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Accordingly, we conclude that the California Court of Appeal’s decision was not

“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).

      AFFIRMED.




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