                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 23 2011

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




                            FOR THE NINTH CIRCUIT



MIGUEL GARZA,                                    No. 09-17517

               Petitioner - Appellant,           D.C. No. 2:04-cv-00625-GEB-
                                                 JFM
  v.

SCOTT KERNAN and ATTORNEY                        MEMORANDUM *
GENERAL 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 February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Miguel Garza appeals from the district court’s judgment denying his

28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,

and we affirm.


          *
             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).
      Garza contends the prosecutor’s race-neutral explanation for excusing an

African-American juror was in violation of Batson v. Kentucky, 476 U.S. 79

(1986).

      The California Court of Appeal’s determination that there was no Batson

violation “was not an unreasonable determination of facts in light of the evidence

presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The

question is not whether the prosecutor’s stated race-neutral reason represents a

sound strategic judgment, but “whether counsel’s race-neutral explanation for a

peremptory challenge should be believed.” Kesser v. Cambra, 465 F.3d 351, 359

(9th Cir. 2006) (en banc); see also Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir.

2010) (to show “purposeful discrimination at Batson’s third step” the petitioner

must establish that “race was a substantial motivating factor”).

      We construe appellant’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

      AFFIRMED.




                                          2                                    09-17517
