                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          FEB 19 2014

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




TINO PESE,                                       No. 09-16387

              Petitioner - Appellant,            D.C. No. 3:05-cv-04199-PJH
                                                 Northern District of California,
  v.                                             Oakland

D. L. RUNNELS, Warden,
                                                 ORDER
              Respondent - Appellee.


Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.


       Petitioner’s Petition for Rehearing is DENIED.

       The full court has been advised of the Petition for Rehearing En Banc and no

judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed.

R. App. P. 35. Petitioner’s Petition for Rehearing En Banc is also DENIED.

       The memorandum disposition filed January 8, 2014, is AMENDED as

follows:

       On page 2, the first two sentences in the second full paragraph are deleted,

so the paragraph now reads:

                   Trial counsel’s Batson objection lacked any
             substantive content. When asked to respond to the
             prosecutor’s defense of his challenges, counsel’s
             response was, “I don’t have anything to say at this point.”
             He followed up this statement by merely arguing that the
             exclusion for racial reasons of one prospective juror was
             enough to support his challenge. Moreover, the
             prosecutor used only three of his fourteen strikes to
             challenge African Americans and, because Pese only
             challenges two of those strikes, the prosecutor only
             challenged 40% of the African American prospective
             jurors.

      The dissent filed January 8, 2014, is also AMENDED as follows:

      In the last paragraph of the dissent, the first sentence beginning with

“Finally, the fact . . .” is deleted and the last sentence beginning with “I would

remand to the . . .” will become the last sentence of the dissent. So the last

paragraph of the dissent should read:

                    Although the trial judge observed that race-neutral
             reasons existed for striking Cooper and Lewis, “it does
             not matter that the prosecutor might have had good
             reasons to strike the prospective jurors. What matters is
             the real reason they were stricken.” Paulino v. Castro,
             371 F.3d 1083, 1090 (9th Cir. 2004). Without the
             prosecutor’s reasons for the strikes, the district court’s
             comparative juror analysis is unable to compare the
             African-American jurors with other jurors on the basis of
             the prosecutor’s stated reasons for striking them. See
             Johnson v. Finn, 665 F.3d 1063, 1071 (9th Cir. 2011)
             (the existence of race-neutral reasons for a peremptory
             strike “cannot negate the existence of a prima facie
             showing in the first instance”). I would remand to the
             district court to give the defendant the opportunity to hear
             and address the prosecutor’s reasons for striking each
             prospective juror.



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No further petitions for rehearing or rehearing en banc will be accepted.

IT IS SO ORDERED.




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