                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 15 2010

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



                           FOR THE NINTH CIRCUIT


ISAAC GASTON,                                    No. 07-55983

              Petitioner - Appellant,            D.C. No. CV-06-04785-DOC

  v.
                                                 MEMORANDUM*
BEN CURRY, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                     Argued and Submitted November 4, 2010
                              Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   The Honorable Robert Clive Jones, U.S. District Judge for the District
of Nevada, sitting by designation.
      Petitioner Isaac Gaston (Gaston) challenges the district court’s denial of his

federal habeas petition premised on the prosecutor’s use of peremptory challenges

to exclude African-American jurors from Gaston’s state court trial.

      The California Court of Appeal’s determination that the prosecutor was

willing to accept an African-American juror, and used peremptory challenges to

exclude two African-American prospective jurors based on one prospective juror’s

demeanor and the other prospective juror’s responses to questions regarding his

views of law enforcement was not unreasonable. See Cook v. LaMarque, 593 F.3d

810, 816 (9th Cir. 2010) (“[W]e must defer to the [California Court of Appeal’s]

conclusion that there was no discrimination unless that finding was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.”) (citation, footnote reference, and internal quotation marks

omitted); see also Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (“To

accept a prosecutor’s stated nonracial reasons, the court need not agree with them.

The question is not whether the stated reason represents a sound strategic

judgment, but whether counsel’s race-neutral explanation for a peremptory

challenge should be believed.”) (citation and internal quotation marks omitted).

      Gaston’s proffered comparative juror analysis does not establish that the




                                          2
California Court of Appeal’s decision was unreasonable. See Cook, 593 F.3d at

817.

       AFFIRMED.




                                       3
