FILED
NOT FOR PUBLICATION AUG 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESSE HARROD, No. 08-56203
Petitioner - Appellant, D.C. No. 2:03-cv-06598-CJC-PJW
v.
MEMORANDUM *
A. K. SCRIBNER, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted April 7, 2010
Pasadena, California
Before: PREGERSON, BEEZER and THOMPSON, Circuit Judges.
Jesse Harrod brings a petition for a writ of habeas corpus following his
conviction in California state court for first degree murder. The parties are familiar
with the facts of this case, which we repeat here only to the extent necessary to
explain our decision. We have jurisdiction under 28 U.S.C. § 2253. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the district court’s decision to deny a writ of habeas corpus de novo, Pinholster v.
Ayers, 590 F.3d 651, 662 (9th Cir. 2009) (en banc), and affirm.
I. Batson Issues
We review de novo to determine whether a prosecutor’s reason for
dismissing a juror is race-neutral. Williams v. Rhoades, 354F.3d 1101, 1107 (9th
Cir. 2004). The determination whether the prosecutor acted with disciminatory
intent is reviewed for clear error. Id. at 1109.
In determining the racial neutrality of a proffered reason for dismissing a
juror, we must conduct a comparative analysis of jurors who were dismissed and
those who were not dismissed. Kesser v. Cambra, 465 F.3d 351, 360-61 (9th Cir.
2006). Generally, the proffer of a pretextual explanation gives rise to an inference
of discriminatory intent. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008).
Here, the prosecutor’s explanation that he struck juror 5 because the juror was a
postal employee was pretextual because the prosecutor did not strike another juror
who was also a postal employee. However, both juror 5 and the other postal-
employee juror were of the same race. We therefore cannot infer that race played a
role in juror 5’s dismissal.
Though the issue is close, the prosecutor’s statements about music were
facially neutral, and did not rise to the level of “blatant racist and cultural
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stereotypes” discussed in Kesser. See, e.g. Kesser, 465 F.3d at 357. Our
comparative analysis of the proffered explanation’s persuasive effect is
complicated by the severe limitations of the record before us. On such a limited
record, we cannot conclude that juror 5’s interest in music or disrespectful
demeanor in court were mere pretexts for his dismissal.
The prosecutor dismissed juror 11 because she seemed “dissatisfied” and
“above it all.” A prosecutor may legitimately dismiss a juror for “poor attitude.”
United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). We presume that
the state court’s credibility determination is correct. Rhoades, 354 F.3d at 1106.
Once again, comparative analysis of the sparse record in this case does not suggest
that other dissatisfied-looking jurors were left on the panel, or that the dismissal
was racially motivated.
II. Juror Misconduct
We review a district court’s decision whether to order a new trial due to
juror misconduct for abuse of discretion, United States v. Mills, 280 F.3d 915, 921
(9th Cir. 2002), and its factual findings for clear error. United States v. Long, 301
F.3d 1095, 1101 (9th Cir. 2002), cert. denied, 537 U.S. 1216 (2003). Harrod’s
allegations of juror misconduct have no merit. Saunders never claimed that she
had never met Harrod, but rather stated that she had no recollection of him. Harrod
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had gained eighty-six pounds, and testified that he did not recognize Saunders at
trial either. The evidence does not establish that Saunders lied to remain on the
jury.
Accordingly, the district court’s decision is AFFIRMED and the petition is
DENIED.
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