Jeffrey M. Burks v. Robert G. Borg, Mitchell Celestine v. Robert G. Borg Attorney General of the State of California

Opinion by Judge KOZINSKI.

Burks and Celestine were convicted of murdering a fellow prison inmate and sentenced to life without parole. Having exhausted state remedies, they brought a federal habeas petition raising three issues: first, that the State violated Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), by exercising peremptory strikes against three Blacks and two Hispanics; second, that the prosecutor engaged in misconduct during closing argument by suggesting that Burks and Celestine were members of a dangerous prison gang; and third, that the jury’s impartiality was impaired because one juror read a newspaper article relating to the case.

The district court dismissed the petition and we review de novo. Brown v. Borg, 951 F.2d 1011, 1014 (9th Cir.1991).

I

Jury selection in this case lasted over six months; the prosecution exercised 73, and the defense 72, peremptory strikes. Defendants made a timely objection that the prosecution’s exercise of certain peremptories violated Batson as well as People v. Wheeler, 22 Cal.3d 258, 277 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978) (“[T]he use of peremptory challenges to remove prospective jurors on the sole…