Gaston v. Curry, No. 07-55983 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 15 2010 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07-55983 ISAAC GASTON, Petitioner - Appellant,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 2 California Court of Appeal s decision was unreasonable. See Cook, 593 F.3d at 817. AFFIRMED. 3
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