FILED
NOT FOR PUBLICATION JAN 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON J. LEWIS, Jr., No. 11-15972
Petitioner - Appellant, D.C. No. 4:08-cv-02337-CW
v.
MEMORANDUM*
ROBERT A. HOREL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted December 6, 2013
San Francisco, California
Before: TROTT and MURGUIA, Circuit Judges, and EZRA, District Judge.**
Milton J. Lewis, Jr., an African-American male, was tried by an all-white
jury in Eureka, California. The jury was all white because the prosecutor exercised
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
a peremptory challenge against the only African-American prospective juror
subjected to voir dire, known here as “Juror G.”
Lewis’s attorney timely objected to the prosecutor’s challenge of Juror G on
the ground that it was racially motivated. The trial court declined to find a prima
facia case of discrimination but credited nevertheless the prosecutor’s voiced
explanation of his challenge of Juror G as “specific” and “[race] neutral.”
On appeal, the California Court of Appeal rejected Lewis’s contention that
the trial court erred in ruling on his objection to Juror G’s exclusion. In so holding,
the court highlighted one of the concrete reasons given by the prosecutor and
accepted by the trial court as sufficient to strike Juror G. Juror G’s brother and her
cousin had been convicted of crimes, and Juror G’s brother was having problems
on probation, including a violation caused by his failure to meet with his probation
officer. About this circumstance, the trial court had said, “[I]t is not uncommon for
[a] prosecutor to excuse, peremptory someone whose brother is on probation” and
“not doing satisfactory [sic].” The trial court had also observed that the
prosecutor’s voir dire of Juror G was not “in any way disproportionate to the other
people.” The Court of Appeal credited this analysis, saying that Juror G’s “family
member’s negative experiences with law enforcement [are] a well-recognized valid
ground for the peremptory challenge.”
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We have examined the prosecutor’s articulated reasons for his challenge, the
trial court’s evaluation of them, and the Court of Appeal’s reasoning. Given the
deferential standard of review under AEDPA, Cook v. LaMarque, 593 F.3d 810,
816 (9th Cir. 2010), we determine them to be satisfactory to support the state
court’s determination of no Batson .v Kentucky, 476 U.S. 79 (1986) violation.
Moreover, we have conducted a comparative juror analysis as required by Ali v.
Hickman, 584 F.3d 1174, 1180-81 & n.4 (9th Cir. 2009), and we are unable to
identify any significant factor that undercuts our determination.
AFFIRMED.
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