GUSTAVO McKENZIE v. EDMUND G. BROWN, Jr., Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO McKENZIE,
Petitioner - Appellant,
v.
EDMUND G. BROWN, Jr., Warden,
Respondent - Appellee.
No. 07-56135
D.C. No. CV-05-02404-CJC
MEMORANDUM *
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.
FILED
APR 16 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-56135 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.

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