FILED
NOT FOR PUBLICATION JUL 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL SCOTT CASH, No. 10-17598
Petitioner - Appellant,
D.C. No. 5:06-cv-07064-JF
v.
RON BARNES, Warden,
MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Submitted May 16, 2013**
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.***
*
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).
***
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Randall Scott Cash (“Petitioner”) appeals the district court’s denial of his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This Court
has jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s
decision to deny a petition for a writ of habeas corpus, Moses v. Payne, 555 F.3d
742, 750 (9th Cir. 2009), and we affirm.
Petitioner argues the Supreme Court’s decision in Batson v. Kentucky, 476
U.S. 79, 96–98 (1986), forbade the prosecution in his capital murder trial from
exercising a peremptory challenge to dismiss a prospective juror on account of that
person’s religion. During jury selection, however, Petitioner objected only to the
prosecutor’s dismissal of that prospective juror on the basis of race. “The Supreme
Court has never allowed a Batson challenge to be raised on appeal or on collateral
attack, if no objection was made during jury selection.” Haney v. Adams, 641 F.3d
1168, 1171 (9th Cir. 2011). Since Petitioner did not raise a religion-based
objection during jury selection, he cannot raise it here. Id.
In any event, Petitioner’s claim fails because the Supreme Court has not
extended the protections articulated in Batson to religious affiliation or belief. See,
e.g., Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari to review state
supreme court decision declining to extend Batson to religion); but see J.E.B. v.
Alabama, 511 U.S. 127, 146 (1994) (extending Batson protections to gender-based
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peremptory challenges). We may grant an application for habeas corpus only if the
underlying state-court decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). As the instant case fails to satisfy either of these statutory requirements,
we must deny habeas relief. Moses, 555 F.3d at 750.
AFFIRMED.
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