Michael R. SCOTT, Petitioner-Appellant, v. M.C. KRAMMER and Attorney General for the State of California, Respondents-Appellees, 516 F. App'x 612

MEMORANDUM Petitioner Michael Scott appeals the district court’s dismissal of his petition for habeas corpus relief. We review the district court’s denial of a habeas petition de novo. Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir.2007) (citing Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005), cert. denied sub nom., Barker v. Spalding, 547 U.S. 1138, 126 S.Ct. 2041, 164 L.Ed.2d 796 (2006)). We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and we affirm.

Scott contends that his conviction is unconstitutional because the prosecutor’s use of peremptory challenges to strike African-Ameriean venirepersons violated his right to equal protection as well as the equal protection rights of the dismissed potential jurors. See Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Because Scott’s claim was adjudicated on the merits by the state court, our review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2254(d).

Scott contends that in determining that the prosecutor did not violate Batson or the equal protection rights of the dismissed potential jurors, the state court unreasonably applied “clearly established Federal law” and rested its conclusion on “an unreasonable determination of the facts.” Id. The Supreme Court’s decision in Batson prohibits the use of race-based peremptory challenges and requires a court to undertake a three-step inquiry when a litigant’s use of challenges is contested. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. Scott challenges the state court’s determination of the second and third steps.

Scott contends that the California Court of Appeal unreasonably applied “clearly established Federal law, as determined by the Supreme Court” when, at Batson’s second-step, it accepted the prosecutor’s race-neutral explanations as valid. 28 U.S.C. § 2254(d)(1). One of Scott’s claims is that the prosecutor’s reliance on prospective jurors’ negative experiences with law enforcement, while facially race-neutral, ran afoul of the Supreme Court’s prohibition in Batson because that factor is merely a proxy for race. See Hernandez v.

New York, 500 U.S. 352, 371-72, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); United States v. Bishop, 959 F.2d 820, 825-26 (9th Cir.1992). Scott premises the substance of his argument on this Court’s decision in Bishop. But Bishop dealt with a federal defendant before the enactment of AEDPA, 959 F.2d at 823 n. 4, and so the requirement that we find a violation of “clearly established Federal law, as determined by the Supreme Court ” did not apply, 28 U.S.C. § 2254(d)(1) (emphasis added).

As Bishop noted, “[t]he Supreme Court has never directly addressed” the issue of whether Batson prohibits basing peremptory challenges on proxies for race. Bishop, 959 F.2d at 823. In Hernandez, the Court discussed, but did not decide, whether Bat-son encompassed such a prohibition. Hernandez, 500 U.S. at 358-62, 111 S.Ct. 1859. AEDPA bars relief. See 28 U.S.C. § 2254(d). Regarding the prosecutor’s other reasons for striking particular African-American venirepersons, it was not unreasonable for the state court to determine that they were valid. See 28 U.S.C. § 2254(d)(1).

Scott also challenges the California Court of Appeal’s analysis at Batson’s third-step, fact-based inquiry into “whether counsel’s race-neutral explanation[s] for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). Under AEDPA, we can only disturb a state court’s factual determinations if they are unreasonable. 28 U.S.C. § 2254(d)(2). A state court’s factual determinations are not unreasonable if reasonable minds could disagree. Wood v.

Allen, 558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010). Here, the comparative juror analysis shows that the prosecutor applied his stated reasons across racial lines. It was not unreasonable for the state court to conclude that the prosecutor’s reasons were not a pretext for discrimination. See 28 U.S.C. § 2254(d)(2); Wood, 130 S.Ct. at 849; Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859. The California Court of Appeal did not unreasonably determine that the prosecution’s use of peremptory challenges lacked a discriminatory motive.

Contrary to Scott’s assertions, it did not unreasonably interpret Batson in dismissing the petition. See 28 U.S.C. § 2254(d)(1). Scott also claims that the prosecutor’s peremptory challenges violated the equal protection rights of the dismissed African-American prospective jurors. Regardless of whether he has standing to pursue this third-party claim, it fails on the merits for the same reasons as his Batson claim. See 28 U.S.C. § 2254. AFFIRMED This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.