United States v. 2012-06-26 | 09-17171 | FERNANDO RODRIGUEZ V. RENEE BAKER, WARDEN | nonprecedential…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without oral**
argument. Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO PADRON ) No. 09-17171
RODRIGUEZ, )
) D.C. No. 3:02-cv-00236-ECR-VPC
Petitioner – Appellant, )
) MEMORANDUM*
v. )
)
CATHERINE CORTEZ MASTO; )
RENEE BAKER, Warden, )
)
Respondents – Appellees. )
)
)
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Submitted June 12, 2012**
San Francisco, California
Before: FERNANDEZ, GOULD, and BEA, Circuit Judges.
Fernando Padron Rodriguez (“Rodriguez”) appeals the district court’s denial
FILED
JUN 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of his petition for a writ of habeas corpus predicated on his claim that his jury was
unconstitutionally selected. See 28 U.S.C. § 2254. We affirm.
(1) Rodriguez first asserts that the writ should issue because the state
courts erred in determining that the prosecutor did not exercise peremptory
challenges to remove jurors on account of their race. See Batson v. Kentucky, 476
U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986); see also Miller-El v.
Dretke, 545 U.S. 231, 237–38, 125 S. Ct. 2317, 2323–24, 162 L. Ed. 2d 196
(2005); Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770–71, 131 L. Ed.
2d 834 (1995) (per curiam). We disagree. We have carefully reviewed the
transcripts and are unable to conclude that the state courts’ decisions regarding
those peremptories were either contrary to law as clearly established by the
Supreme Court, or the result of an unreasonable application of that law, or an
unreasonable determination of facts. See 28 U.S.C. § 2254(d); Ngo v. Giurbino,
651 F.3d 1112, 1114 (9th Cir. 2011). Simply put, we cannot say that the state
courts’ rulings were “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, __ U.S. __, __, 131 S. Ct. 770,
786–87, 178 L. Ed. 2d 624 (2011); see also Lockyer v. Andrade, 538 U.S. 63,
71–76, 123 S. Ct. 1166, 1172–75, 155 L. Ed. 2d 144 (2003).

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The use of peremptory challenges was the issue presented to and exhausted1
in the state courts, presented to the district court, and designated in the certificate
of appealability issued by this court. We will not consider arguments regarding
challenges for cause or Supreme Court holdings that address only challenges for
cause. See Uttecht v. Brown, 551 U.S. 1, 9–10, 127 S. Ct. 2218, 2224, 167 L. Ed.
2d 1014 (2007); Wainwright v. Witt, 469 U.S. 412, 424–26, 105 S. Ct. 844,
852–53, 83 L. Ed. 2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 521–23,
88 S. Ct. 1770, 1776–77, 20 L. Ed. 2d 776 (1968).
The closest analogous cases suggest that there would be no bar to the use of2
peremptories for that purpose because even if that use resulted in a jury with “death
qualified” jurors, a death qualified juror is not a tainted juror. See Lockhart v.
McCree, 476 U.S. 162, 173, 106 S. Ct. 1758, 1764, 90 L. Ed. 2d 137 (1986);
Witherspoon, 391 U.S. at 516–18, 88 S. Ct. at 1774–75.
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(2) Rodriguez then claims that the prosecutor improperly exercised
peremptory challenges against jurors on the basis of their less than enthusiastic
acceptance of the death penalty as a possible sentence. However, there are no1
Supreme Court cases directed to a prosecutor’s use of peremptories on that basis,2
and that dooms his claim. The absence of clearly established Supreme Court law
precludes our order of a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1); Carey
v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654, 166 L. Ed. 2d 482 (2006); see
also Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d
389 (2000).
AFFIRMED.

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