Murphy v. Butler

113 F. App'x 825

Opinion

MEMORANDUM

**

Kirk D. Murphy appeals the district court’s entry of summary judgment against him on his habeas corpus petition in which he asserted that the prosecutor violated the dictates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

Because the California Court of Appeal applied an incorrect standard for determining whether Murphy made out a prima facie case that the prosecutor exercised peremptory challenges in a racially discriminatory manner,¹ we review its decision de novo.² A pattern of discrimination will suffice to establish a prima facie case. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. A sufficient statistical showing can establish the necessary pattern. See Paulino, 371 F.3d at 1091; Fernandez, 286 F.3d at 1078—80; Montiel v. City of L.A., 2 F.3d 335, 340 (9th Cir.1993). Murphy failed to develop the record sufficiently to make that showing; he simply pointed to the fact that a certain number of African-American prospective jurors had been challenged.

Nor did Murphy attempt to show the trial court that there was something more to indicate a violation. See Paulino, 371 F.3d at 1092; Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir.2000). At any rate, we, like the district court, have reviewed the record and agree that the “more” is not there.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See People v. Wheeler, 22 Cal.3d 258, 280—81, 583 P.2d 748, 764, 148 Cal.Rptr. 890, 905—06 (1978); see also People v. Bernard, 27 Cal.App.4th 458, 465—66, 32 Cal.Rptr.2d 486, 490 (1994) (test is "strong likelihood” which is more stringent than reasonable inference). The California Supreme Court has disapproved of Bernard. See People v. Box, 23 Cal.4th 1153, 1188 n. 7, 5 P.3d 130, 152 n. 7, 99 Cal.Rptr.2d 69, 94 n. 7 (2000); see also People v. Johnson, 30 Cal.4th 1302, 1306, 71 P.3d 270, 272, 1 Cal.Rptr.3d 1, 3—4 (2003). However, this case was decided between Bernard and Box, and the Court of Appeal used the "strong likelihood" rubric.

2 . See Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.2004); Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.2002); Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir.2001).