FILED
NOT FOR PUBLICATION JUL 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN FRANK JACKSON, No. 09-15379
Petitioner - Appellant, D.C. No. 2:07-cv-00555-RJB
v.
MEMORANDUM *
T. FELKNER,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Robert J. Bryan, District Judge, Presiding
Argued and Submitted April 15, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS,
District Judge.**
Appellant Steven Frank Jackson (Jackson) appeals the district court’s denial
of his petition for a writ of habeas corpus, contending that the prosecutor’s
peremptory challenges excusing two African-American jurors violated his rights
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
under the Sixth and Fourteenth Amendments. Because Jackson filed his habeas
petition after 1996, his claim is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). See Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009).
“Under AEDPA, [Jackson’s] petition can be granted only if the state court
determination resolving his claim was contrary to, or involved an unreasonable
application of, clearly established Federal law . . .” Id. (citation and internal
quotation marks omitted). It is clearly established federal law that the Equal
Protection Clause prohibits the prosecutor from challenging prospective jurors
solely on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); see
also Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir. 2009), as amended. “A Batson
challenge has three steps: first, the defendant must make a prima facie showing
that a challenge was based on race; second, the prosecution must offer a race-
neutral basis for the challenge; and third, the court must determine whether the
defendant has shown purposeful discrimination.” Cook v. Lamarque, 593 F.3d
810, 814 (9th Cir. 2010) (citations and internal quotation marks omitted). In
evaluating pretext, our precedent requires a comparative juror analysis. See Boyd
v. Newland, 467 F.3d 1139, 1145 (9th Cir. 2006) (citing Miller-El v. Dretke, 545
U.S. 231 (2005)).
2
The prosecutor’s proffered race-neutral bases for peremptorily striking the
two African-American jurors were not sufficient to counter the evidence of
purposeful discrimination in light of the fact that two out of three prospective
African-American jurors were stricken, and the record reflected different treatment
of comparably situated jurors. See Ali, 584 F.3d at 1182 (holding under similar
circumstances that the California Court of Appeal’s finding of no pretext was
unreasonable). Therefore, we reverse the district court’s denial of Jackson’s
petition for writ of habeas corpus.
REVERSED and REMANDED.
3