OSCAR RICO-ARREOLA V. SMITH, No. 17-15826 (9th Cir. 2018)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 16 2018 MOLLY C. DWYER, CLERK OSCAR RICO-ARREOLA, Petitioner-Appellant, No. 17-15826 U.S. COURT OF APPEALS D.C. No. 3:13-cv-00580-MMD-WGC v. SMITH, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA, MEMORANDUM* Respondents-Appellees. Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Submitted October 10, 2018** San Francisco, California Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges. Petitioner-Appellant Oscar Rico-Arreola was convicted in Nevada state court of one count of sexual assault of a minor under the age of fourteen. Rico- * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Arreola filed a petition for writ of habeas corpus with the Federal District Court for the District of Nevada alleging that the prosecution’s use of peremptory strikes against two African-American jurors violated his constitutional rights under Batson v. Kentucky, 476 U.S. 79 (1986). The district court denied the petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. The Nevada Supreme Court’s decision was not “contrary to” nor “an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Applying Felkner v. Jackson, 562 U.S. 594 (2011) (per curiam), which upheld a peremptory strike based on the juror’s background in social work, the Nevada Supreme Court could reasonably conclude that the prosecution had provided a valid, race-neutral reason for striking both jurors. Moreover, the Nevada Supreme Court did not contravene clearly established Federal law by failing to conduct a comparative juror analysis when evaluating the third prong of Batson. See Murray v. Schriro, 745 F.3d 984, 1005 (9th Cir. 2014). The Nevada Supreme Court’s decision was also based on a reasonable “determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). It was not objectively unreasonable for the Nevada Supreme Court to defer to a credibility determination by the trial court. 2 See Felkner, 562 U.S. at 598. Moreover, the comparative juror analysis presented by Rico-Arreola to this court does not indicate that the trial court’s credibility determination was unreasonable. Accordingly, the judgment of the district court is AFFIRMED. 3
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