Mckenzie v. Brown

376 F. App'x 689

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2010
• Docket: 07-56135
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Gustavo McKenzie appeals from the district court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

McKenzie contends that his right to a fair and impartial jury was violated when the prosecutor exercised a peremptory challenge to excuse an African-American juror. We review McKenzie’s claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), de novo because the state court’s use of the standard laid out in People v. Wheeler, 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), does not satisfy constitutional requirements. See Wade v. Terhune, 202 F.3d 1190, 1192 (9th Cir.2000). McKenzie has failed to establish that the totality of relevant facts “gives rise to an inference” of purposeful discrimination by the prosecutor. See Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).

AFFIRMED.

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