Brian McGee v. Richard Kirkland

FILED

NOT FOR PUBLICATION JUL 31 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BRIAN MCAUTHOR MCGEE, No. 10-56111

Petitioner - Appellee, D.C. No. 2:05-cv-05077-PSG-OP

v.

MEMORANDUM *

RICHARD J. KIRKLAND, Warden,

Respondent - Appellant.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted March 9, 2012 Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District Judge.**

The district court granted Brian McGee’s habeas corpus petition on the basis

that the prosecutor at McGee’s state court trial impermissibly used peremptory

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald M. Whyte, Senior District Judge for the U.S. District Court for Northern California, sitting by designation. challenges to remove African-Americans from the jury in violation of Batson v.

Kentucky, 476 U.S. 79 (1986). We…