Miguel Garza v. SCOTT KERNAN and ATTORNEY GENERAL STATE OF CALIFORNIA

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NOT FOR PUBLICATION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
MIGUEL GARZA,
Petitioner - Appellant,
v.
SCOTT KERNAN and ATTORNEY
GENERAL STATE OF CALIFORNIA,
Respondents - Appellees.
No. 09-17517
D.C. No. 2:04-cv-00625-GEB-
JFM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted February 15, 2011**
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Miguel Garza appeals from the district court’s judgment denying his
28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
FILED
FEB 23 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-17517 2
Garza contends the prosecutor’s race-neutral explanation for excusing an
African-American juror was in violation of Batson v. Kentucky, 476 U.S. 79
(1986).
The California Court of Appeal’s determination that there was no Batson
violation “was not an unreasonable determination of facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The
question is not whether the prosecutor’s stated race-neutral reason represents a
sound strategic judgment, but “whether counsel’s race-neutral explanation for a
peremptory challenge should be believed.” Kesser v. Cambra, 465 F.3d 351, 359
(9th Cir. 2006) (en banc); see also Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir.
2010) (to show “purposeful discrimination at Batson’s third step” the petitioner
must establish that “race was a substantial motivating factor”).
We construe appellant’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
AFFIRMED.

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