Opinion
No. 10-17598 D.C. No. 5:06-cv-07064-JF
07-10-2013
RANDALL SCOTT CASH, Petitioner - Appellant, v. RON BARNES, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Submitted May 16, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.
The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
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Randall Scott Cash ("Petitioner") appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This Court has jurisdiction under 28 U.S.C. § 2253. We review de novo a district court's decision to deny a petition for a writ of habeas corpus, Moses v. Payne, 555 F.3d 742, 750 (9th Cir. 2009), and we affirm.
Petitioner argues the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 96-98 (1986), forbade the prosecution in his capital murder trial from exercising a peremptory challenge to dismiss a prospective juror on account of that person's religion. During jury selection, however, Petitioner objected only to the prosecutor's dismissal of that prospective juror on the basis of race. "The Supreme Court has never allowed a Batson challenge to be raised on appeal or on collateral attack, if no objection was made during jury selection." Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011). Since Petitioner did not raise a religion-based objection during jury selection, he cannot raise it here. Id.
In any event, Petitioner's claim fails because the Supreme Court has not extended the protections articulated in Batson to religious affiliation or belief. See, e.g., Davis v. Minnesota, 511 U.S. 1115 (1994) (denying certiorari to review state supreme court decision declining to extend Batson to religion); but see J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (extending Batson protections to gender-based peremptory challenges). We may grant an application for habeas corpus only if the underlying state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). As the instant case fails to satisfy either of these statutory requirements, we must deny habeas relief. Moses, 555 F.3d at 750.
AFFIRMED.