Nieblas

*179 MEMORANDUM *

The California Court of Appeal unquestionably decided “contrary to” Batson v. Kentucky 1 in holding that no prima facie case was made regarding whether the prosecutor’s use of peremptory challenges was race-based. However, this error was harmless because the trial court and the court of appeal heard and considered the prosecutor’s reasons anyway, just as though the defense had been deemed to have made a prima facie case. The court of appeal concluded after careful analysis of each challenge that the challenges were based on race-neutral grounds which were not pretextual. Though petitioner makes some colorable arguments against it, under the deferential standard we are required by AEDPA to apply, we cannot conclude that the state court made “an unreasonable determination of the facts in light of the evidence presented” 2 or otherwise acted “contrary to, or involved an unreasonable application of,” 3 Batson.

For each of the five challenged, Hispanic veniremen, there were genuine reasons why a prosecutor might well use up a peremptory challenge on them no matter what their ethnicity was: (1) friendly looks at the defense table, avoiding the prosecutor’s eyes,…