Mckenzie v. Brown

FILED
NOT FOR PUBLICATION APR 16 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

GUSTAVO McKENZIE, No. 07-56135

Petitioner - Appellant, D.C. No. CV-05-02404-CJC

v.
MEMORANDUM *
EDMUND G. BROWN, Jr., Warden,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

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.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 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,

467 U.S. 79 (1986), de novo because the state court’s use of the standard laid out

in People v. Wheeler, 22 Cal. 3d 258, 280 (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 (2005).

AFFIRMED.

2 07-56135