Miguel Garza v. Scott Kernan, et al, No. 09-17517 (9th Cir. 2011)

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FILED FEB 23 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MIGUEL GARZA, No. 09-17517 Petitioner - Appellant, D.C. No. 2:04-cv-00625-GEBJFM v. SCOTT KERNAN and ATTORNEY GENERAL STATE OF CALIFORNIA, MEMORANDUM * Respondents - Appellees. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. 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. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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 (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. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). AFFIRMED. 2 09-17517

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