Edgar Radillo v. David Long , 708 F. App'x 918 ( 2018 )

FILED
NOT FOR PUBLICATION
JAN 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ALEJANDRO RADILLO, No. 15-16791
Petitioner-Appellant, D.C. No.
2:13-cv-00280-TLN-EFB
v.
DAVID B. LONG, MEMORANDUM*
Respondent-Appellee.
ALBERTO SANCHEZ, No. 15-16864
Petitioner-Appellant, D.C. No.
2:13-cv-00491-TLN-EFB
v.
DANIEL PARAMO,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
Submitted January 9, 2018**
San Francisco, California
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
The district court properly denied Edgar Radillo’s and Alberto Sanchez’s
petitions for habeas corpus. The state court’s decision that the prosecutor did not
use her first five peremptory strikes in a racially motivated manner was not
“contrary to” or “an unreasonable application of[] clearly established Federal law,”
nor was it “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
We therefore affirm.
The state appellate court properly performed the third step of the
Batson/Wheeler analysis. See Batson v. Kentucky, 476 U.S. 79, 96–98 (1986);
People v. Wheeler, 583 P.2d 748, 764–65 (Cal. 1978); Lewis v. Lewis, 321 F.3d
824, 830–31, 834 (9th Cir. 2003). Although the appellate court was not “in an
ideal position to conduct a step three evaluation,” it was able to “use the trial
court’s findings and the evidence on the record to evaluate the support on the
record for the prosecutor’s reasons and credibility, and to compare the struck and
empaneled jurors.” Lewis, 321 F.3d at 832. The state court compared the five
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 3 of 3
struck jurors with the retained jurors of different races and found that Radillo and
Sanchez had failed to “establish[] purposeful discrimination.” Id. at 830 (quoting
Batson, 476 U.S. at 98). To make this determination, the court “evaluate[d] the
‘totality of the relevant facts’ to decide ‘whether counsel’s race-neutral explanation
for a peremptory challenge should be believed.’” Ali v. Hickman, 584 F.3d 1174,
1180 (9th Cir. 2009) (quoting Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006)
(en banc)). The court did not, as Radillo and Sanchez argue, supply its own race-
neutral justifications for the prosecutor’s peremptory strikes: It instead engaged in
a proper comparative analysis of the struck and empaneled jurors based on the
justifications provided by the prosecutor at trial.
AFFIRMED.