David Dion Watkins v. LARRY SMALL, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Richard D. Cudahy, Senior United States Circuit* *
Judge for the Seventh Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID DION WATKINS,
Petitioner - Appellant,
v.
LARRY SMALL, Warden,
Respondent - Appellee.
No. 08-56363
D.C. No. 3:07-cv-00196-W-POR
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted October 6, 2010
Pasadena, California
Before: CUDAHY, WARDLAW and W. FLETCHER, Circuit Judges.* *
David Dion Watkins appeals the district court’s denial of his petition for
habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we
affirm.
FILED
OCT 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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It was not unreasonable for the California Court of Appeal on review of
Watkins’s state habeas petition to determine that Watkins failed to show that the
prosecution engaged in discriminatory conduct under Batson v. Kentucky, 476 U.S.
79 (1986). The trial record shows that at least one African-American was
empaneled on the jury. Even if the trial court had conducted a comparative juror
analysis scrutinizing the justifications proffered for excluding the African-
American panelists and considering whether those justifications applied equally to
white jurors, see Miller-El v. Dretke, 545 U.S. 231, 241 (2005), Watkins fails to
show that such an analysis would have demonstrated that the prosecutor’s race-
neutral justifications for the peremptory challenges were pretextual. See Kesser v.
Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en banc) (“[I]f a review of the record
undermines the prosecutor’s stated reasons, or many of the proffered reasons, the
reasons may be deemed a pretext for racial discrimination.” (alteration in original)
(quoting Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003))).
Therefore, the California Court of Appeal’s decision was neither an
unreasonable application of clearly established federal law nor an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding.
AFFIRMED.

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