                                                                               FILED
                            NOT FOR PUBLICATION                                 FEB 27 2013

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



                            FOR THE NINTH CIRCUIT


MICHAEL R. SCOTT,                                 No. 11-16175

              Petitioner - Appellant,             D.C. No. 2:07-cv-02729-LKK-
                                                  JFM
  v.

M. C. KRAMMER and ATTORNEY                        MEMORANDUM*
GENERAL FOR THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                           Submitted February 12, 2013**
                               Stanford, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.

       Petitioner Michael Scott appeals the district court’s dismissal of his petition

for habeas corpus relief. We review the district court’s denial of a habeas petition


        *
             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).
de novo. Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007) (citing Barker v.

Fleming, 423 F.3d 1085, 1091 (9th Cir. 1991), cert. denied sub nom., Barker v.

Spalding, 547 U.S. 1138 (2006)). We have jurisdiction under 28 U.S.C. §§ 1291,

2253, and we affirm.

      Scott contends that his conviction is unconstitutional because the

prosecutor’s use of peremptory challenges to strike African-American

venirepersons violated his right to equal protection as well as the equal protection

rights of the dismissed potential jurors. See Powers v. Ohio, 499 U.S. 400, 415

(1991); Batson v. Kentucky, 476 U.S. 79 (1986). Because Scott’s claim was

adjudicated on the merits by the state court, our review is limited by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C.

§ 2254(d). Scott contends that in determining that the prosecutor did not violate

Batson or the equal protection rights of the dismissed potential jurors, the state

court unreasonably applied “clearly established Federal law” and rested its

conclusion on “an unreasonable determination of the facts.” Id.

      The Supreme Court’s decision in Batson prohibits the use of race-based

peremptory challenges and requires a court to undertake a three-step inquiry when

a litigant’s use of challenges is contested. Batson, 476 U.S. at 96-98. Scott

challenges the state court’s determination of the second and third steps.


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      Scott contends that the California Court of Appeal unreasonably applied

“clearly established Federal law, as determined by the Supreme Court” when, at

Batson’s second-step, it accepted the prosecutor’s race-neutral explanations as

valid. 28 U.S.C. § 2254(d)(1). One of Scott’s claims is that the prosecutor’s

reliance on prospective jurors’ negative experiences with law enforcement, while

facially race-neutral, ran afoul of the Supreme Court’s prohibition in Batson

because that factor is merely a proxy for race. See Hernandez v. New York, 500

U.S. 352, 371-72 (1991); United States v. Bishop, 959 F.2d 820, 825-26 (9th Cir.

1992).

      Scott premises the substance of his argument on this Court’s decision in

Bishop. But Bishop dealt with a federal defendant before the enactment of AEDPA,

959 F.2d at 823 n.4, and so the requirement that we find a violation of “clearly

established Federal law, as determined by the Supreme Court” did not apply, 28

U.S.C. § 2254(d)(1) (emphasis added). As Bishop noted, “[t]he Supreme Court has

never directly addressed” the issue of whether Batson prohibits basing peremptory

challenges on proxies for race. Bishop, 959 F.2d at 823. In Hernandez, the Court

discussed, but did not decide, whether Batson encompassed such a prohibition.

Hernandez, 500 U.S. at 1866-67. AEDPA bars relief. See 28 U.S.C. § 2254(d).




                                         3
      Regarding the prosecutor’s other reasons for striking particular African-

American venirepersons, it was not unreasonable for the state court to determine

that they were valid. See 28 U.S.C. § 2254(d)(1).

      Scott also challenges the California Court of Appeal’s analysis at Batson’s

third-step, fact-based inquiry into “whether counsel’s race-neutral explanation[s]

for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365

(quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). Under AEDPA, we can

only disturb a state court’s factual determinations if they are unreasonable. 28

U.S.C. § 2254(d)(2). A state court’s factual determinations are not unreasonable if

reasonable minds could disagree. Wood v. Allen, 130 S. Ct. 841, 849 (2010).

Here, the comparative juror analysis shows that the prosecutor applied his stated

reasons across racial lines. It was not unreasonable for the state court to conclude

that the prosecutor’s reasons were not a pretext for discrimination. See 28 U.S.C. §

2254(d)(2); Wood, 130 S. Ct. at 849; Hernandez, 500 U.S. at 364-65.

      The California Court of Appeal did not unreasonably determine that the

prosecution’s use of peremptory challenges lacked a discriminatory motive.

Contrary to Scott’s assertions, it did not unreasonably interpret Batson in

dismissing the petition. See 28 U.S.C. § 2254(d)(1).




                                          4
      Scott also claims that the prosecutor’s peremptory challenges violated the

equal protection rights of the dismissed African-American prospective jurors.

Regardless of whether he has standing to pursue this third-party claim, it fails on

the merits for the same reasons as his Batson claim. See 28 U.S.C. § 2254.

      AFFIRMED




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