Mitchell v. A.C. Newland
Opinion
Lead Opinion
ORDER
Appellant’s motion to recall the mandate and re-issue the memorandum disposition is GRANTED. The mandate shall be recalled forthwith. We hereby vacate the memorandum disposition filed in this case on March 21, 2002 and order that the memorandum disposition be re-issued on the date of this order. Judge Fernandez dissents from this order.
MEMORANDUM *
Gregory Mitchell appeals the district court’s denial of his habeas corpus petition alleging that he is entitled to relief under AEDPA, 28 U.S.C. § 2254 , on three grounds. First, he contends that his con *399 stitutional right to equal protection was violated when the prosecution used a peremptory challenge to remove the only African-American prospective juror from the jury pool in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Second, he argues that he was denied effective assistance of appellate counsel because his attorney failed to obtain the voir dire transcript from his trial and failed to raise a Batson challenge on appeal. Third, he alleges that the trial court’s failure to give the jury his requested “defense of others” instruction violated his due process rights. We affirm.