Randall Allan Yee v. Bill Duncan, Warden

ORDER WITHDRAWING OPINION AND OPINION

ORDER

The Opinion filed on March 28, 2006, and reported at 441 F.3d 851 (9th Cir. 2006), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

With this action, the previous opinion filed March 28, 2006, becomes inoperative and the pending petition for rehearing and petition for rehearing en banc becomes moot. The parties, should they so choose, are at liberty to file new petitions with respect to the new opinion.

So ORDERED.

OPINION

In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the United States Supreme Court established the principle that peremptory challenges may not be used to exclude jurors on account of race. Although Batson involved peremptory challenges based on race, in J.E.B. v. Alabama, 511 U.S. 127, 146 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994), the Supreme Court subsequently extended Batson’s principles to peremptory challenges based on gender. The broader principle in Batson and later case law is that a defendant opposing a peremptory challenge bears the ultimate burden of proving the challenge was improper and that this burden never…