                                                                              FILED
                            NOT FOR PUBLICATION                                APR 25 2012

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



                            FOR THE NINTH CIRCUIT


CARL MONTIGUE LEWIS,                             No. 10-17415

              Petitioner - Appellant,            D.C. No. 2:03-cv-01410-GEB-
                                                 EFB
  v.

DAVID L. RUNNELS,                                MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                       Argued and Submitted April 17, 2012
                            San Francisco, California

Before: KOZINSKI, Chief Judge, McKEOWN and N.R. SMITH, Circuit Judges.

       A. The district court did not commit clear error in its determination that the

prosecutor provided credible, race neutral reasons for excluding two African-

American women from the jury and that he was not motivated by racial bias. See

Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011). Therefore, Lewis failed to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
establish “purposeful discrimination.” See Batson v. Kentucky, 476 U.S. 79, 90

(1986).

      B. The California Court of Appeal’s determination that the special

circumstance jury instruction (California Jury Instruction–Criminal 8.80.1)

complied with Tison v. Arizona, 481 U.S. 137 (1987), “was [not] contrary to,” and

did not “involve[] an unreasonable application of, clearly established” Supreme

Court precedent. 28 U.S.C. § 2254(d)(1). Even assuming error in the instruction,

the error would not have “a substantial and injurious effect,” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993), because there was sufficient evidence for

the jury to conclude that Lewis was the actual killer, Jackson v. Virginia, 443 U.S.

307, 319 (1979).

      AFFIRMED.
