                                                                              FILED
                             NOT FOR PUBLICATION                              NOV 19 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DAVID TURAN JOHNSON,                             No. 11-16729

                Petitioner - Appellant,          D.C. No. 2:08-cv-02035-WBS-
                                                 KJN
  v.

IVAN CLAY,                                       MEMORANDUM*

                Respondent - Appellee.


                    Appeal from the United States District Court
                         for the Eastern District of California
                  William B. Shubb, Senior District Judge, Presiding

                       Argued and Submitted October 19, 2012
                             San Francisco, California

Before: HAWKINS, N.R. SMITH**, and MURGUIA, Circuit Judges.

       Petitioner appeals from the district court’s denial of his habeas claim. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.



            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            Judge N.R. Smith was drawn to replace Judge Betty Binns Fletcher.
Judge Smith has read the briefs, reviewed the record, and listened to the oral
arguments that were held on October 19, 2012.
                                            I.

      It was not contrary to, or an unreasonable application of, Batson v. Kentucky,

476 U.S. 79 (1986), for the California Court of Appeal to affirm the trial court’s

denial of Petitioner’s Batson motion. See 28 U.S.C. § 2254(d)(1). Courts must

apply a three-step test when evaluating a Batson challenge:

      First, the movant must make a prima facie showing that the prosecution
      has engaged in the discriminatory use of a peremptory challenge by
      demonstrating that the circumstances raise an inference that the
      prosecutor used [the challenge] to exclude veniremen from the petit jury
      on account of their race. Second, if the trial court determines a prima
      facie case has been established, the burden shifts to the prosecution to
      articulate a race-neutral explanation for challenging the juror in question.
      Third, if the prosecution provides such an explanation, the trial court
      must then rule whether the movant has carried his or her burden of
      proving the existence of purposeful discrimination.

Tolbert v. Page, 182 F.3d 677, 680 (9th Cir. 1999) (en banc) (alteration in original)

(internal citations and quotation marks omitted). The California Court of Appeal,

as well as the state trial court, applied the right legal standard in this case because it

correctly analyzed the trial court’s decision under each step of the Batson test.

      We reject Petitioner’s argument that the California Court of Appeal ran afoul

of Miller-El v. Dretke, 545 U.S. 231 (2005), by failing to conduct an exhaustive

comparative juror analysis under step three of the Batson test. The California

Court of Appeal analyzed the comparative information proffered by Petitioner on



                                         Page 2
direct review, but was prevented from conducting the kind of comparative analysis

done in Miller-El by the lack of truly comparable factors contained in the record.

Further, although a comparative juror analysis is an important tool that can be used

to determine whether the totality of the circumstances gives rise to an inference of

discrimination, it is not always required at the state appellate level. Boyd v.

Newland, 467 F.3d 1139, 1148-49 (9th Cir. 2006). The California Court of Appeal

considered the totality of the circumstances in evaluating the Batson challenge,

and, thus, Petitioner is not entitled to relief under § 2254(d)(1). See id.; see also

Miller-El, 545 U.S. at 240.

                                          II.

      Petitioner cannot show that the California Court of Appeal acted

unreasonably in affirming the trial court’s factual findings with respect to

Petitioner’s Batson challenge. The consideration of “purposeful discrimination” at

step three of the Batson inquiry is a factual one entitled to appropriate deference by

a reviewing court. Batson, 476 U.S. at 98 n.21. The state court's factual findings

are presumed to be sound unless Petitioner rebuts the “presumption of correctness

by clear and convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(quoting 28 U.S.C. § 2254(e)(1)) (internal quotation marks omitted). Because

Petitioner has not shown that the prosecutor’s proffered race-neutral explanations


                                        Page 3
for the challenged strike are implausible, Petitioner has not shown that the

California Court of Appeal was unreasonable in denying his Batson challenge. For

these reasons, the district court was correct to deny Petitioner’s appeal.1

      AFFIRMED.




      1
             Although Petitioner briefed a non-certified issue, we decline to
expand the certificate of appealability to include it, and, thus, we will not review
the issue. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1102-04 (9th
Cir. 1999) (per curiam).

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