Michael Richard Neuman v. ALAN M. CROGAN, Chief Probation Officer County of Riverside

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RICHARD NEUMAN,
Petitioner - Appellant,
v.
ALAN M. CROGAN, Chief Probation
Officer County of Riverside,
Respondent - Appellee.
No. 12-57013
D.C. No. 5:11-cv-00327-DOC-
DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Petitioner Michael Richard Neuman (Neuman) appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition premised on the
prosecutor’s allegedly improper use of peremptory challenges to exclude “people
FILED
JUL 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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of color” from the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
Under the Antiterrorism and Effective Death Penalty Act, we must defer to
the state court’s determination that there was no purposeful discrimination unless
its decision was: (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” or (2) “based on an unreasonable determination of the facts in light of the
evidence presented. . . .” 28 U.S.C. § 2254(d).
The California Court of Appeal’s determination that the totality of the
circumstances failed to raise an inference of discrimination was not contrary to or
an unreasonable application of clearly established federal law, and the state court
did not unreasonably determine the facts. As the state court noted, see People v.
Neuman, 176 Cal. App.4th 571, 583-84 (2009), Neuman’s challenge is based on a
statistical disparity in the prosecutor’s use of peremptory challenges, yet Neuman
failed to provide sufficient evidence to permit a statistical comparison. See
Williams v. Woodford, 384 F.3d 567, 584 (9th Cir. 2004) (explaining that a habeas
petitioner needed to “point to more facts than the number of African-Americans
struck” to establish a pattern of discriminatory strikes). Because Neuman failed to
produce sufficient facts to raise an inference of discrimination, we need not, and do
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not, decide whether “people of color” is a cognizable group for the purpose of a
Batson analysis.
We also disagree with Neuman’s contention that a reviewing court may not
review the record to discern race-neutral reasons for peremptory challenges,
regardless of whether those reasons were proffered by the prosecutor. See, e.g.,
Paulino v. Castro, 371 F.3d 1083, 1091-92 (9th Cir. 2004) (“[W]e may consider
whether the record contains entirely plausible reasons, independent of race, why a
prosecutor may have exercised peremptories . . .”) (citation and quotation marks
omitted).
AFFIRMED.
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