                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 15 2014

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



                           FOR THE NINTH CIRCUIT


MILTON J. LEWIS, Jr.,                            No. 11-15972

              Petitioner - Appellant,            D.C. No. 4:08-cv-02337-CW

  v.
                                                 MEMORANDUM*
ROBERT A. HOREL, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Claudia Wilken, Chief District Judge, Presiding

                     Argued and Submitted December 6, 2013
                            San Francisco, California

Before: TROTT and MURGUIA, Circuit Judges, and EZRA, District Judge.**

       Milton J. Lewis, Jr., an African-American male, was tried by an all-white

jury in Eureka, California. The jury was all white because the prosecutor exercised




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
a peremptory challenge against the only African-American prospective juror

subjected to voir dire, known here as “Juror G.”

      Lewis’s attorney timely objected to the prosecutor’s challenge of Juror G on

the ground that it was racially motivated. The trial court declined to find a prima

facia case of discrimination but credited nevertheless the prosecutor’s voiced

explanation of his challenge of Juror G as “specific” and “[race] neutral.”

      On appeal, the California Court of Appeal rejected Lewis’s contention that

the trial court erred in ruling on his objection to Juror G’s exclusion. In so holding,

the court highlighted one of the concrete reasons given by the prosecutor and

accepted by the trial court as sufficient to strike Juror G. Juror G’s brother and her

cousin had been convicted of crimes, and Juror G’s brother was having problems

on probation, including a violation caused by his failure to meet with his probation

officer. About this circumstance, the trial court had said, “[I]t is not uncommon for

[a] prosecutor to excuse, peremptory someone whose brother is on probation” and

“not doing satisfactory [sic].” The trial court had also observed that the

prosecutor’s voir dire of Juror G was not “in any way disproportionate to the other

people.” The Court of Appeal credited this analysis, saying that Juror G’s “family

member’s negative experiences with law enforcement [are] a well-recognized valid

ground for the peremptory challenge.”


                                          -2-
      We have examined the prosecutor’s articulated reasons for his challenge, the

trial court’s evaluation of them, and the Court of Appeal’s reasoning. Given the

deferential standard of review under AEDPA, Cook v. LaMarque, 593 F.3d 810,

816 (9th Cir. 2010), we determine them to be satisfactory to support the state

court’s determination of no Batson .v Kentucky, 476 U.S. 79 (1986) violation.

Moreover, we have conducted a comparative juror analysis as required by Ali v.

Hickman, 584 F.3d 1174, 1180-81 & n.4 (9th Cir. 2009), and we are unable to

identify any significant factor that undercuts our determination.

      AFFIRMED.




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