                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 21 2011

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




                            FOR THE NINTH CIRCUIT



ROLON LAMARR MORRIS, II,                         No. 10-15803

              Petitioner - Appellant,            D.C. No. 2:06-cv-00354-GEB-
                                                 JFM
  v.

THOMAS CAREY, Warden and                         MEMORANDUM *
ATTORNEY GENERAL FOR STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                             Submitted June 17, 2011 **
                              San Francisco, California

Before: BYBEE and MURGUIA, Circuit Judges, and SINGLETON, Senior
District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, Anchorage, sitting by designation.
      Petitioner Rolon Morris appeals the district court’s denial of his petition for

writ of habeas corpus. Because the facts are familiar to the parties, we will not

recite them here. Upon consideration of the law, arguments, and record, we affirm.

      Because the California Court of Appeal used the wrong legal standard to

review Petitioner’s Batson claim, see Johnson v. California, 545 U.S. 162, 173

(2005), the district court properly reviewed the Batson claim de novo, see Paulino

v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004). Accordingly, we review

Petitioner’s Batson claim outside the AEDPA context. Id.

      We find the district court properly found a prima facie case of

discrimination. Here, where the prosecutor struck the final African-American on

the jury despite the trial judge’s statement that he saw no reason for her to be

struck, it is reasonable for the court to infer discrimination at Batson step one. See

Johnson v. California, 545 U.S. 162, 170 (2005).

      We also find that the prosecutor’s stated reasons for striking the prospective

alternate juror were race neutral. The prosecutor explained that she used a

peremptory strike against Juror M. for two reasons: (1) she believed that “this juror

would hold [her] as a prosecutor to a higher standard of proof than proof beyond a

reasonable doubt”; and (2) she believed Juror M.’s body language “made [her] feel

that there was a hostility there.” Because neither of these reasons is “based on . . .


                                           2
the race of the juror” and because “discriminatory intent is [not] inherent in the

prosecutor’s explanation,” we find the prosecutor’s reasons are “race neutral.”

Hernandez v. New York, 500 U.S. 352, 360 (1991).

      Finally, the district court did not err in finding no purposeful racial

discrimination. The district court’s step three determination is a factual finding,

and this court reviews it for clear error. See United States v. Steele, 298 F.3d 906,

910 (9th Cir. 2002). The record reveals that none of the other jurors were

sufficiently similar to the prospective alternate juror to provide comparisons that

“reveal[] racial reasons for the prosecutor’s dismissal” of the prospective alternate

juror in question. Turner v. Marshall, 121 F.3d 1248, 1255 (9th Cir. 1997). And

nothing in the record gives rise to “a definite and firm conviction that a mistake has

been committed.” United States v. Esparza-Gonzalez, 422 F.3d 897, 901 (9th Cir.

2005) (citation omitted). Therefore, the district court properly rejected Petitioner’s

Batson claim.

      The district court also properly rejected Petitioner’s suggestive identification

claim. Under clearly established Supreme Court law, identification procedures that

are “unnecessarily suggestive and conducive to irreparable mistaken identification”

are prohibited by the Due Process Clause of the U.S. Constitution. Stovall v.




                                           3
Denno, 388 U.S. 293, 302 (1967), overruled on other grounds by Griffith v.

Kentucky, 479 U.S. 314 (1987).

       The California Court of Appeal’s decision does not violate clearly

established federal law. Neither the one-on-one identification, nor the police’s

request that a beanie and bandana be put on Petitioner were especially likely to

yield “irreparable mistaken identification.” Stovall v. Denno, 388 U.S. at 302.

Here, where the witnesses spent time with Petitioner during this crime in very close

quarters, had ample time to observe the uncovered portions of petitioner’s face and

his clothing, and was held just one hour after the crime, the field showup does not

violate due process. See Manson v. Braithwaite, 432 U.S. 98, 106 (1977) (“The

admission of testimony concerning a suggestive and unnecessary identification

procedure does not violate due process so long as the identification possesses

sufficient aspects of reliability.”).

       None of the Supreme Court cases Petitioner cites holds otherwise. See

Foster v. California, 394 U.S. 440, 441–43 (1969) (finding unconstitutional an

identification involving two lineups weeks apart, the only common member of

which was the accused, and a one-on-one interview with witness and the accused,

with prosecution but without defense counsel present); United States v. Wade, 388

U.S. 218, 239–41 (1967) (finding unconstitutional an identification that occurred


                                          4
without defendant’s counsel present); Stovall, 388 U.S. at 302 (finding

constitutional an identification where the suspect was handcuffed to a police

officer, escorted by four other police officers, and was brought to the hospital bed

of his victim who was asked whether the suspect “was the man”).

      AFFIRMED.




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