Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:07-cv-04682-CRB
The opinion of the court was delivered by: N.R. Smith, Circuit Judge:
Submitted April 12, 2011*fn1 San Francisco, California
Before: Alfred T. Goodwin and N. Randy Smith, Circuit Judges, and Raner C. Collins, District Judge.*fn2
Opinion by Judge N.R. Smith
In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." We now hold that a petitioner may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution's use of peremptory challenges at trial. We must, therefore, affirm the judgment of the district court denying this petitioner's petition for habeas corpus.*fn3
FACTS AND PROCEDURAL HISTORY
In 2005, Monte L. Haney, an African American, was tried and convicted of aggravated mayhem, torture, assault by means of force likely to produce great bodily injury, assault with a deadly weapon, corporal injury on a cohabitant, and criminal threats. During voir dire examination, the prosecutor used peremptory challenges to remove nine potential jurors. Haney did not object to any of these nine challenges during his trial. The jury ultimately consisted of a mixture of Asian, white, and Hispanic jurors, but no African Americans were chosen.
Haney appealed his convictions to the California Court of Appeal in 2006, which affirmed the convictions. He did not raise a Batson claim during this direct appeal.*fn4 The California Supreme Court denied his petition for review.
In 2007, Haney filed a petition for habeas corpus with the California Supreme Court alleging ineffective assistance of counsel, prosecutorial misconduct, incorrect jury instructions, and a Batson violation. In claiming a Batson violation, he alleged that two of the potential jurors struck by the prosecution were African American. The California Supreme Court denied the petition for habeas corpus without an opinion.*fn5
Haney then filed his federal habeas petition in the United States District Court for Northern California alleging his Batson claim and other grounds not relevant here. The district court also denied his petition. It rejected the Batson claim on two grounds: (1) the claim was not raised at the trial court, and (2) it failed on the merits, because Haney could not show purposeful discrimination. ...