Carl Montigue Lewis v. David L. Runnels

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL MONTIGUE LEWIS,
Petitioner - Appellant,
v.
DAVID L. RUNNELS,
Respondent - Appellee.
No. 10-17415
D.C. No. 2:03-cv-01410-GEB-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted April 17, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, McKEOWN and N.R. SMITH, Circuit Judges.
A. The district court did not commit clear error in its determination that the
prosecutor provided credible, race neutral reasons for excluding two African-
American women from the jury and that he was not motivated by racial bias. See
Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011). Therefore, Lewis failed to
FILED
APR 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

establish “purposeful discrimination.” See Batson v. Kentucky, 476 U.S. 79, 90
(1986).
B. The California Court of Appeal’s determination that the special
circumstance jury instruction (California Jury Instruction–Criminal 8.80.1)
complied with Tison v. Arizona, 481 U.S. 137 (1987), “was [not] contrary to,” and
did not “involve[] an unreasonable application of, clearly established” Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). Even assuming error in the instruction,
the error would not have “a substantial and injurious effect,” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), because there was sufficient evidence for
the jury to conclude that Lewis was the actual killer, Jackson v. Virginia, 443 U.S.
307, 319 (1979).
AFFIRMED.

-- 2 of 2 --