Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

MEMORANDUM^** 

Johnny Clifford Jackson, a California state prisoner, appeals pro se the district court's dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Jackson 1) challenges the peremptory exclusion of three black prospective jurors, 2) alleges that the trial judge deprived him of a fair trial by improperly commenting on newspaper articles in the presence of the jury, and 3) maintains that assistance of counsel was ineffective. The district court dismissed the petition with prejudice. We affirm.

We review the district court's denial of a writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Jackson contends that the trial court erred in failing to require the prosecutor to justify his peremptory exclusion of three black prospective jurors. Batson v. Kentucky, 476 U.S. 79 (1986), requires prosecutors to justify peremptory challenges if the defense makes a prima facie showing that the prosecutor has used peremptory challenges to remove potential jurors because they are the same race as the defendant. Id. at 96. However, Jackson was convicted in state court in 1971 and the Batson rule does not apply retroactively on collateral review of final convictions. See Teague v. Lane, 489 U.S. 288, 295-96 (1989); Allen v. Hardy, 478 U.S. 255, 258 (1986). Consequently, the propriety of the peremptory exclusions exercised in this case is governed by Swain v. Alabama, 380 U.S. 202 (1965). Swain held that a " [s]tate's purposeful or deliberate denial" to blacks of an opportunity to serve as jurors solely on account of race violates the Fourteenth Amendment. Id. at 203-04. In order to establish a prima facie case of discrimination under Swain, a showing of the systematic discriminatory exclusion of potential jurors over time by the prosecutor in the county where the trial was held must be made. Id. at 223. Jackson has made no such showing. He has merely alleged that the three black prospective jurors were peremptorily challenged because of their race. In the absence of a prima facie case under Swain, the trial court need not have required the prosecutor to justify his use of peremptory challenges to exclude the three black prospective jurors.

Jackson also argues his right to a fair trial was abrogated by a comment of the trial judge to the jury regarding newspaper coverage of the case. In admonishing prospective jurors not to read newspaper articles concerning the case the trial judge stated:

I want to admonish you all, again, to not discuss the case or talk about it even among yourselves or to read any newspaper articles about it. You will have an opportunity to read these after the case is over, if you want to. We want you to have an open mind, uncluttered by anything that might be said, whether it is true or not. The newspaper reporting that I have seen seems to be quite accurate. In any event, don't--and I know it is a great temptation to see a headline and not go further, but don't.

It is the highlighted sentence which Jackson contends violated his constitutional right to a fair trial.

In determining whether a defendant was denied a fair trial by a comment of the court, the defendant must show prejudice stemming from the comment. United States v. Herbert, 698 F.2d 981, 984 (9th Cir.), cert. denied, 464 U.S. 821 (1983). The trial court's comment, though unfortunate, was not prejudicial. The remark occurred in the course of the court's admonition to the panel of prospective jurors not to read any of the newspaper articles concerning the case. The articles in the paper were principally addressed to the security measures employed at Jackson's trial, of which the jurors independently were aware. Moreover, the pre-trial publicity was not so pervasive as to support a motion for a change of venue. Under such circumstances, the remark by the trial court did not prejudice Jackson's opportunity for a fair trial.

Jackson argues that assistance of counsel was ineffective on direct appeal because his appointed attorney failed to raise the two contentions addressed above. Judicial scrutiny of counsel's performance is "highly deferential." Strickland v. Washington, 466 U.S. 668, 689 (1984). The decision by counsel not to pursue these specific arguments on appeal was not so questionable as to overcome "the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Moreover, the prejudice component of the Strickland test has not been satisfied. Id. at 691-96. The assistance of counsel was not constitutionally defective.

Dismissal of the habeas corpus petition was proper.

AFFIRMED.