                                                                              FILED
                            NOT FOR PUBLICATION                                SEP 02 2010

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




                             FOR THE NINTH CIRCUIT



KEVIN ANTONIO WILLIAMS,                            No. 08-15834

              Petitioner - Appellant,              D.C. No. 3:05-CV-02870-MHP

  v.
                                                   MEMORANDUM *
JOHN W. HAVILAND, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Northern District of California
                  Marilyn H. Patel, Senior District Judge, Presiding

                         Argued and Submitted July 14, 2010
                             San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.**

       Kevin Antonio Williams appeals the district court’s denial of his habeas

petition. Williams claims that the state trial court erred in refusing to reconsider its

denial of his first Batson challenge given that the court subsequently found a prima

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.
facie case of discrimination with regard to the second struck juror.1 As the facts

and procedural history are familiar to the parties, we do not recite them here except

as necessary to explain our decision. This court has jurisdiction under 28 U.S.C. §

2253. We affirm.

      Williams’s procedural claim regarding sequential Batson challenges has not

yet been squarely addressed by the United States Supreme Court, so we must defer

to the state court’s resolution of the issue.2 See Moses v. Payne, 555 F.3d 742,

758-59 (9th Cir. 2009). Contrary to Williams’s suggestion, Batson’s general

requirement that the trial court assess “all relevant circumstances” in deciding

whether a defendant has made a prima facie case for discrimination does not

“squarely address” the specific question whether a court must reconsider its denial

of a Batson motion with regard to one juror if it subsequently finds a prima facie

case of discrimination with regard to a different juror. Cf. Gonzalez v. Brown, 585

F.3d 1202, 1208 n.4 (9th Cir. 2009) (deferring to state court because the “closest

thing to guidance in [] Batson” did not announce a “per se” rule squarely

addressing petitioner’s claim). In fact, in Batson, the Supreme Court explicitly


      1
        The court accepted the prosecutor’s race-neutral reasons for the second
strike and ultimately denied Williams’s second Batson motion.
      2
        Williams also argues that the trial court erred by not finding a prima facie
case of discrimination when counsel made his first Batson challenge. This claim is
unexhausted, as it was never presented to the California Court of Appeal. See
Tamalini v. Stewart, 249 F.3d 895, 898-99 (9th Cir. 2001).
declined to “formulate particular procedures to be followed upon a defendant’s

timely objection to a prosecutor’s challenges.” Batson v. Kentucky, 476 U.S. 79,

99 (1986); see also id. at 99 n.24 (“In light of the variety of jury selection practices

followed in our state and federal trial courts, we make no attempt to instruct these

courts how best to implement our holding today.”).3

      Therefore, in light of “the absence of any clear contrary declaration from the

United States Supreme Court, we cannot hold under the AEDPA that the California

Court of Appeal unreasonably applied Batson” when it upheld the trial court’s

refusal to reconsider a previously rejected Batson challenge after finding a prima

facie case of discrimination with respect to a subsequent juror. Gonzalez 585 F.3d

at 1209.

      AFFIRMED.




      3
        In Batson, the defense raised a single joint challenge to the peremptory
challenges at the end of voir dire, instead of four separate challenges. Thus, the
Supreme Court did not have occasion to address whether the trial court would have
been required to revisit its earlier determinations had the motions been made
separately. See Batson, 476 U.S. at 83.
