¶1David S. Olson, Agapay, Levyn & Hailing, Los Angeles, CA, for the petitioner-appellant-cross-appellee.
¶2Carol Frederick Jorstad, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee-cross-appellant.
¶3Before: KOZINSKI, RYMER and SILVERMAN, Circuit Judges.
¶4Opinion by Judge RYMER; Concurrence by Judge SILVERMAN.
¶5ORDER
¶6The amended opinion filed October 23, 2002 [309 F.3d 1095], is further amended as follows.
¶7Slip opinion at 23 [309 F.3d at 1107]: Replace Part II.C with the following:
Fields’s claim that several of the jurors were racially prejudiced against him fails for lack of any substantial evi*1063dence. Even assuming that the declarations upon which he relies are admissible, they are vague and speculative; they do not show that any racist statements were made. Cf, e.g., United States v. Henley, 238 F.3d 1111, 1120-21 (9th Cir.2001) (juror reportedly said something to the effect that “the niggers are guilty”); Tobias v. Smith, 468 F.Supp. 1287, 1289-90 (W.D.N.Y.1979) (jury foreperson said “[yjou can’t tell one black from another.”).