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376 F. App'x 689

Mckenzie v. Brown

U.S. Courts of Appeals

Decided April 16, 2010

U.S. Courts of Appeals · decided 2010-04-16

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Batson v. Kentucky · 22 Cal. 3d 258 - People v. Wheeler · Johnson v. California

Decided 2010-04-16

¶1 MEMORANDUM …

¶2 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.

¶3 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).

¶4 AFFIRMED.

…

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

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