
    Carl Montigue LEWIS, Petitioner-Appellant, v. David L. RUNNELS, Respondent-Appellee.
    No. 10-17415.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 17, 2012.
    Filed April 25, 2012.
    Michael Bradley Bigelow, Esquire, Sacramento, CA, for Petitioner-Appellant.
    Laura Wetzel Simpton, Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for Respondents Appellee.
    Before: KOZINSKI, Chief Judge, McKEOWN and N.R. SMITH, Circuit Judges.
   MEMORANDUM

A. The district court did not commit clear error in its determination that the prosecutor provided credible, race neutral reasons for excluding two African-American women from the jury and that he was not motivated by racial bias. See Felkner v. Jackson, — U.S.-, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011). Therefore, Lewis failed to establish “purposeful discrimination.” See Batson v. Kentucky, 476 U.S. 79, 90, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

B. The California Court of Appeal’s determination that the special circumstance jury instruction (California Jury Instruction-Criminal 8.80.1) complied with Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), “was [not] contrary to,” and did not “involve[ ] an unreasonable application of, clearly established” Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Even assuming error in the instruction, the error would not have “a substantial and injurious effect,” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), because there was sufficient evidence for the jury to conclude that Lewis was the actual killer, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     