                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 26 2012

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




                           FOR THE NINTH CIRCUIT


FERNANDO PADRON                        )      No. 09-17171
RODRIGUEZ,                             )
                                       )      D.C. No. 3:02-cv-00236-ECR-VPC
      Petitioner – Appellant,          )
                                       )      MEMORANDUM *
      v.                               )
                                       )
CATHERINE CORTEZ MASTO;                )
RENEE BAKER, Warden,                   )
                                       )
      Respondents – Appellees.         )
                                       )
                                       )

                  Appeal from the United States District Court
                           for the District of Nevada
               Edward C. Reed, Jr., Senior District Judge, Presiding

                             Submitted June 12, 2012 **
                             San Francisco, California

Before:      FERNANDEZ, GOULD, and BEA, Circuit Judges.

      Fernando Padron Rodriguez (“Rodriguez”) appeals the district court’s denial



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
of his petition for a writ of habeas corpus predicated on his claim that his jury was

unconstitutionally selected. See 28 U.S.C. § 2254. We affirm.

      (1)    Rodriguez first asserts that the writ should issue because the state

courts erred in determining that the prosecutor did not exercise peremptory

challenges to remove jurors on account of their race. See Batson v. Kentucky, 476

U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986); see also Miller-El v.

Dretke, 545 U.S. 231, 237–38, 125 S. Ct. 2317, 2323–24, 162 L. Ed. 2d 196

(2005); Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770–71, 131 L. Ed.

2d 834 (1995) (per curiam). We disagree. We have carefully reviewed the

transcripts and are unable to conclude that the state courts’ decisions regarding

those peremptories were either contrary to law as clearly established by the

Supreme Court, or the result of an unreasonable application of that law, or an

unreasonable determination of facts. See 28 U.S.C. § 2254(d); Ngo v. Giurbino,

651 F.3d 1112, 1114 (9th Cir. 2011). Simply put, we cannot say that the state

courts’ rulings were “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770,

786–87, 178 L. Ed. 2d 624 (2011); see also Lockyer v. Andrade, 538 U.S. 63,

71–76, 123 S. Ct. 1166, 1172–75, 155 L. Ed. 2d 144 (2003).


                                           2
      (2)     Rodriguez then claims that the prosecutor improperly exercised

peremptory challenges against jurors on the basis of their less than enthusiastic

acceptance of the death penalty as a possible sentence.1 However, there are no

Supreme Court cases directed to a prosecutor’s use of peremptories on that basis,2

and that dooms his claim. The absence of clearly established Supreme Court law

precludes our order of a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1); Carey

v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654, 166 L. Ed. 2d 482 (2006); see

also Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d

389 (2000).

      AFFIRMED.




      1
        The use of peremptory challenges was the issue presented to and exhausted
in the state courts, presented to the district court, and designated in the certificate
of appealability issued by this court. We will not consider arguments regarding
challenges for cause or Supreme Court holdings that address only challenges for
cause. See Uttecht v. Brown, 551 U.S. 1, 9–10, 127 S. Ct. 2218, 2224, 167 L. Ed.
2d 1014 (2007); Wainwright v. Witt, 469 U.S. 412, 424–26, 105 S. Ct. 844,
852–53, 83 L. Ed. 2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 521–23,
88 S. Ct. 1770, 1776–77, 20 L. Ed. 2d 776 (1968).
      2
        The closest analogous cases suggest that there would be no bar to the use of
peremptories for that purpose because even if that use resulted in a jury with “death
qualified” jurors, a death qualified juror is not a tainted juror. See Lockhart v.
McCree, 476 U.S. 162, 173, 106 S. Ct. 1758, 1764, 90 L. Ed. 2d 137 (1986);
Witherspoon, 391 U.S. at 516–18, 88 S. Ct. at 1774–75.

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