                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 06 2010

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



                           FOR THE NINTH CIRCUIT


SAMMY WILLIAMS,                                  No. 07-15385

              Petitioner - Appellant,            D.C. No. CV-06-00275-PHX-EHC

  v.
                                                 MEMORANDUM*
PERKINS and TERRY GODDARD,
Attorney General State of Arizona,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Earl H. Carroll, District Judge, Presiding

                           Submitted October 4, 2010**
                            San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Sammy Williams appeals the district court’s denial of his habeas corpus

petition under 28 U.S.C. § 2254. 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).
                                             I

       Williams argues that his due process rights were violated because perjured

testimony was admitted at trial. He concedes that he did not raise this issue on

direct appeal or in his first petition for post-conviction relief, and, as such, it is

procedurally defaulted. See Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007)

(“On federal habeas review under AEDPA, generally, we may not reach the merits

of procedurally defaulted claims.”). Yet, Williams submits that he suffered a

fundamental miscarriage of justice, and thus, we should review his claim. We

disagree. As Williams has presented no new evidence to establish actual

innocence, he cannot establish a fundamental miscarriage of justice. See Schlup v.

Delo, 513 U.S. 298, 324 (1995); Johnson v. Knowles, 541 F.3d 933, 935 (9th Cir.

2008). Additionally, Williams’s claim that James Harris’s testimony was perjured

is not self-evident. Harris was subjected to cross-examination and questions of

credibility or inconsistencies in his testimony were matters for the jury to consider.

See United States v. Scheffer, 523 U.S. 303, 313 (1998).



                                            II

       The Arizona Court of Appeals’s determination that Williams was not denied

his right to a jury of his peers is neither contrary to, nor an unreasonable


                                            -2-
application of, Supreme Court precedent. The Court has been explicit that

explanations for peremptory strikes need not be “persuasive, or even plausible.”

Purkett v. Elem, 514 U.S. 765, 767 (1995). “Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reasons offered will be deemed race

neutral.” Id. At trial, the prosecutor explained that he struck three Hispanic venire

members on the basis of work history, lack of faith in law enforcement, age, and

personality. The Arizona Court of Appeals’s conclusion that the explanations were

not inherently discriminatory was not objectively unreasonable. See Rice v.

Collins, 546 U.S. 333, 341-42 (2006).



                                          III

      Nor was the Arizona Court of Appeals’s conclusion that the victim’s

improperly admitted hearsay was harmless beyond a reasonable doubt an

objectively unreasonable application of clearly established law to the facts of this

case. See Chapman v. California, 386 U.S. 18, 24 (1967) (indicating that reversal

of a criminal conviction is not required if a federal constitutional error is “harmless

beyond a reasonable doubt”). The evidence against Williams was overwhelming,

and the admitted hearsay was of little probative value. See United States v. Pena-

Gutierrez, 222 F.3d 1080, 1089 (9th Cir. 2000). Both Harris and Carissa Morones


                                          -3-
testified that Williams was the shooter, that he used a .40 caliber Smith and

Wesson semiautomatic gun, and that the last time they saw the weapon was at

Williams’s cousin’s house in Tucson. Any questions about their credibility was a

determination for the jury. See Scheffer, 523 U.S. at 313. Moreover, other

testimony, apart from the victim’s statements, corroborated Harris’s and Morones’s

testimony. A bartender at Bandaids testified that Morones had mentioned she was

going to do “a private dance for this old man . . . and get as much money as she

could, take him for what she could on that.” The bartender also testified that

Morones had told her that Morones’s boyfriend would “be on the side to take care

of anything that might go wrong,” and that Morones had told her it might involve a

gun, “if it was necessary.” A resident of the neighborhood testified that he saw “a

Hispanic male in the five seven, five eight range” at the victim’s car window

attempting to peel away sheet metal from the hood . . . .” The victim’s statements

were merely cumulative to the other testimony presented at trial.

      AFFIRMED.




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