Anthony Arthur Bush v. CHERYL K. PLILER, Warden; ATTORNEY GENERAL

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ARTHUR BUSH,
Petitioner - Appellant,
v.
CHERYL K. PLILER, Warden;
ATTORNEY GENERAL,
Respondents - Appellees.
No. 09-55465
D.C. No. 3:01-cv-00142-J-NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Submitted February 14, 2011**
Pasadena, California
Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.
Appellant Anthony Bush appeals the district court’s denial of his petition for
writ of habeas corpus. Because the facts are familiar to the parties, we will not
recite them here. Upon consideration of the law, arguments, and record, we affirm.
FILED
FEB 16 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We find that the prosecutor’s stated reasons for striking the prospective
alternate juror were race-neutral. We also reject Bush’s argument that the
prosecutor’s testimony was mere speculation. The prosecutor’s testimony was
based on some independent recollection of the trial proceedings, as well as
recollection refreshed by review of the voir dire transcript, which included a record
of her questions to the prospective juror. In this case, “the transcript of jury voir
dire itself illuminate[d] the prosecutor’s actual reasons” for peremptorily striking
the prospective juror. Paulino v. Harrison, 542 F.3d 692, 701 n.8 (9th Cir. 2008).
Here, “the transcripts of voir dire and the evidentiary hearing yield a sufficient
basis for review,” Turner v. Marshall, 121 F.3d 1248, 1251 (9th Cir. 1997), and the
government has met its Batson step two “burden of producing specific reasons for
[the prosecutor’s] challenges.” Id.
Finally, we reject Bush’s argument that comparative analysis reveals
purposeful racial discrimination. The record reveals that none of the other jurors
was sufficiently similar to the prospective alternate juror to provide comparisons
that “reveal[] racial reasons for the prosecutor’s dismissal” of the prospective
alternate juror in question. Turner, 121 F.3d at 1255. We conclude that the district
court did not clearly err in finding no purposeful racial discrimination. See

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Paulino, 542 F.3d at 699 (reviewing Batson step three for clear error); Turner, 121
F.3d at 1255.
AFFIRMED.

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