Gaston v. Curry , 406 F. App'x 144 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISAAC GASTON, No. 07-55983
Petitioner - Appellant, D.C. No. CV-06-04785-DOC
v.
MEMORANDUM*
BEN CURRY, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 4, 2010
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert Clive Jones, U.S. District Judge for the District
of Nevada, sitting by designation.
Petitioner Isaac Gaston (Gaston) challenges the district court’s denial of his
federal habeas petition premised on the prosecutor’s use of peremptory challenges
to exclude African-American jurors from Gaston’s state court trial.
The California Court of Appeal’s determination that the prosecutor was
willing to accept an African-American juror, and used peremptory challenges to
exclude two African-American prospective jurors based on one prospective juror’s
demeanor and the other prospective juror’s responses to questions regarding his
views of law enforcement was not unreasonable. See Cook v. LaMarque, 593 F.3d
810, 816 (9th Cir. 2010) (“[W]e must defer to the [California Court of Appeal’s]
conclusion that there was no discrimination unless that finding was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.”) (citation, footnote reference, and internal quotation marks
omitted); see also Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (“To
accept a prosecutor’s stated nonracial reasons, the court need not agree with them.
The question is not whether the stated reason represents a sound strategic
judgment, but whether counsel’s race-neutral explanation for a peremptory
challenge should be believed.”) (citation and internal quotation marks omitted).
Gaston’s proffered comparative juror analysis does not establish that the
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California Court of Appeal’s decision was unreasonable. See Cook, 593 F.3d at
817.
AFFIRMED.
3