NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 08 2013
MOLLY C. DWYER, CLERK
MOBASSA BOYD, No. 10-16913 U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 5:00-cv-21287-RMW
v.
MEMORANDUM*
KAMALA D. HARRIS, Attorney General
for the State of California,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Submitted January 15, 2013**
San Francisco, California
Before: CUDAHY,*** GRABER, and FISHER, Circuit Judges.
Petitioner Mobassa Boyd appeals the district court’s denial of habeas corpus
relief on remand after our earlier opinion, Boyd v. Newland, 467 F.3d 1139 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by designation.
Cir. 2006), of his claim under Batson v. Kentucky, 476 U.S. 79 (1986). Reviewing
de novo, Cudjo v. Ayers, 698 F.3d 752, 761 (9th Cir. 2012), petition for cert. filed,
81 U.S.L.W. 3457 (U.S. Feb. 4, 2013) (No. 12-971), we affirm.
The district court correctly held that, considering the voir dire transcript and
the notes of Petitioner’s trial counsel, Petitioner’s Batson claim fails.1 A
"‘defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has
occurred.’" Boyd, 467 F.3d at 1145 (quoting Johnson v. California, 545 U.S. 162,
170 (2005)). Although that threshold is "quite low," id., the evidence in the record
here was insufficient.
The prosecutor used one peremptory strike on an African-American
prospective juror and three peremptory strikes on white prospective jurors. An
alternate juror was African-American, another alternate juror was Hispanic, and
two members of the jury were Hispanic. Statistical analysis does not give rise to
an inference of discrimination. See United States v. Vasquez-Lopez, 22 F.3d 900,
902 (9th Cir. 1994) ("The one fact supporting Vasquez-Lopez’s Batson claim was
the juror’s status as the sole Black prospective juror. More was required."); id.
1
The district court also held, in the alternative, that Petitioner could not
expand the record under 28 U.S.C. § 2254(e)(2). We need not, and do not, reach
that issue; like the district court, we assume without deciding that we may consider
all the proffered material.
2
("[J]ust as ‘one’ is not a magic number which establishes the absence of
discrimination, the fact that the juror was the one Black member of the venire does
not, in itself, raise an inference of discrimination."); see also Fernandez v. Roe, 286
F.3d 1073, 1078 (9th Cir. 2002) ("Because the numbers are so small (and, hence,
potentially unreliable), two such challenges, standing alone, may not be sufficient
to support an inference of discrimination."); United States v. Chinchilla, 874 F.2d
695, 698 n.4 (9th Cir. 1989) ("[T]he willingness of a prosecutor to accept minority
jurors weighs against the findings of a prima facie case.").
Comparative analysis, too, fails to give rise to an inference of
discrimination.2 Unlike the seated jurors, the excused juror volunteered that she
was a grandmother who spent her free time with her grandchildren, and she
expressed some hesitation about whether she would call the police on a loved one.
Those facts were important, because the criminal charges here resulted from the
fact that Petitioner’s grandmother called the police to report Petitioner’s strange
and potentially dangerous behavior. Similarly, the excused juror expressed more
hesitation about the effect of her absence on her work responsibilities than any
other seated juror.
AFFIRMED.
2
Petitioner’s argument that comparative juror analysis is inappropriate as a
matter of law overlooks our specific instructions to the district court on remand.
Boyd, 467 F.3d at 1147–50.
3