Miguel Garza v. Scott Kernan

415 F. App'x 814

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2011
• Docket: 09-17517
• Status: Unpublished

Opinion

MEMORANDUM **

Miguel Garza appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Garza contends the prosecutor’s race-neutral explanation for excusing an African-American juror was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The California Court of Appeal’s determination that there was no Batson violation “was not an unreasonable determination of facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The question is not whether the prosecutor’s stated race-neutral reason represents a sound strategic judgment, but “whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc); see also Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir.2010) (to show “purposeful discrimination at Batson’s third step” the petitioner must establish that “race was a substantial motivating factor”).

We construe appellant’s additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-l(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.