                                                                             FILED
                      UNITED STATES COURT OF APPEALS                            JAN 28 2013

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U .S. C O U R T OF APPE ALS




BRIAN MCAUTHOR MCGEE,                             No. 10-56111

              Petitioner - Appellee,              D.C. No. 2:05-cv-05077-PSG-OP
                                                  Central District of California,
  v.                                              Los Angeles

RICHARD J. KIRKLAND, Warden,
                                                  ORDER
              Respondent - Appellant.



Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.*




       The memorandum filed July 31, 2012 is amended as follows:

       On page 2 of the memorandum disposition, replace <We reverse.> with <We

reverse and remand for the district court to reach the merits of Petitioner’s

remaining claims.>.

       On page 5 of the memorandum disposition, insert the following sentence

before <REVERSED.>: <We remand to the district court for consideration of

Petitioner’s remaining claims.>.



       *
             The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
         On page 5 of the memorandum disposition, replace <REVERSED> with

<REVERSED AND REMANDED>.

         With these amendments, the panel has voted unanimously to deny the

petition for panel rehearing. Judges Wardlaw and Berzon have voted to deny the

petition for rehearing en banc, and Judge Whyte has so recommended.

         The full court has been advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         The petition for panel rehearing and rehearing en banc, filed August 9, 2012,

is DENIED. No further petitions for rehearing will be entertained.

         An amended memorandum disposition is filed concurrently with this Order.
                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 28 2013

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




                            FOR THE NINTH CIRCUIT



BRIAN MCAUTHOR MCGEE,                            No. 10-56111

              Petitioner - Appellee,             D.C. No. 2:05-cv-05077-PSG-OP

  v.
                                                 AMENDED MEMORANDUM *
RICHARD J. KIRKLAND, Warden,

              Respondent - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                       Argued and Submitted March 9, 2012
                              Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.**

       The district court granted Brian McGee’s habeas corpus petition on the basis

that the prosecutor at McGee’s state court trial impermissibly used peremptory




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for Northern California, sitting by designation.
challenges to remove African-Americans from the jury in violation of Batson v.

Kentucky, 476 U.S. 79 (1986). We reverse and remand for the district court to

reach the merits of Petitioner’s remaining claims.

          The California Court of Appeal’s denial of McGee’s Batson claim was not

an “unreasonable determination of the facts in light of the evidence” in the record.

28 U.S.C. § 2254(d)(2). Although comparative juror analysis suggests that the

state courts may have “had reason to question the prosecutor’s credibility,” such

analysis “does not . . . compel the conclusion that the trial court had no permissible

alternative but to reject the prosecutor’s race-neutral justifications.” 1 Rice v.

Collins, 546 U.S. 333, 341 (2006) (emphasis added).

          The district court focused in particular on Jurors 4046 and 9744, holding that

their dismissal was impermissibly race-based. It was not unreasonable for the

California courts to credit the prosecutor’s justifications for challenging these

jurors.


          1
        We reject the state’s contention that comparative juror analysis is useful
only when the comparison is between an excluded African-American prospective
juror and a non-African-American seated juror. Comparative analysis provides the
strongest evidence of discrimination, of course, when the record indicates that an
excluded black prospective juror was the same as a seated juror in all respects
except race. Still, where the prosecutor has offered a justification for striking a
particular juror that applies equally to jurors he has not excluded, regardless of the
race of the jurors who were not stricken, this comparison nevertheless supports the
logical conclusion that the proffered justification was disingenuous.

                                            -2-
      The prosecutor provided three reasons for excusing Juror 4046 from the

jury: (1) her lack of jury experience; (2) her job as a “substitute cafeteria helper,”

from which the prosecutor inferred she might lack the education and ability to

understand fully a complex murder trial; and (3) that she “demonstrated . . . that

she was timid, . . . not detail oriented, and potentially unable to contribute to the

jury deliberations.” These justifications are race-neutral and supported by the

record. Although the prosecutor accepted some jurors without previous jury

experience, several others without such experience were stricken. Juror 4046’s

lack of jury experience was connected to the prosecutor’s overarching

concern—that she might not be able to fulfill effectively the obligations of a juror.

It was not unreasonable, therefore, for the California courts to conclude that the

prosecutor challenged Juror 4046 based on this race-neutral concern. See Rice, 546

U.S. at 339.

      The California courts’ conclusion that the prosecutor’s challenge of Juror

9744 was not based on race was also reasonable. The prosecutor stated that he

struck Juror 9744 because of “the large number of [her] relatives [who were] in

prison.” This is a permissible, race-neutral reason, substantiated by the record.

See United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987), overruled on

other grounds by Huddleston v. United States, 485 U.S. 681 (1988). Although the


                                           -3-
prosecutor accepted some jurors whose relatives had been convicted of crimes,

prosecutors often attempt to ensure that juries have few, if any, such individuals.

The record indicates that the venire contained a large number of prospective jurors

who themselves had criminal convictions or who had relatives with criminal

convictions. Juror 9744, excused during the selection of alternate jurors, was the

last African-American prospective juror stricken by the prosecutor. It was not

unreasonable of the California courts to accept as race-neutral the prosecutor’s

desire not to add another juror whose relatives had criminal convictions to a jury

that already had several such jurors.

      Furthermore, five of the seated jurors were African-American. “The fact

that African-American jurors remained on the panel ‘may be considered indicative

of a nondiscriminatory motive.’” Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th

Cir. 2009) (quoting Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997)). In

addition, the prosecutor twice accepted the jury while it contained some of the

jurors who were eventually excused, further undermining any inference of racial

discrimination. See Yee v. Duncan, 463 F.3d 893, 901 (9th Cir. 2006).

      Moreover, although the precise racial composition of the venire is not in the

record, the record strongly suggests that the venire contained a large number of

African-American prospective jurors. Therefore, it is unsurprising that a large


                                         -4-
percentage of the excused jurors were African-American, diminishing any

inference of racial motivation that may ordinarily be drawn from that circumstance.

      Because the California Court of Appeal was not unreasonable in rejecting

McGee’s Batson challenge, we must uphold its decision and REVERSE that of the

district court. We remand to the district court for consideration of Petitioner’s

remaining claims.

      REVERSED AND REMANDED.




                                          -5-
