Nieblas

ORDER

The Memorandum Disposition filed May 05, 2005 and appearing at 130 FedAppx. 177 is hereby WITHDRAWN. The Clerk shall file the attached Memorandum Disposition.

Judges O’ Scannlain and Kleinfeld have voted to deny the petition for rehearing en banc, and Judge Beezer has recommended the same.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(b).

The petition for rehearing en banc is DENIED.

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…