                                                                           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                             NOT FOR PUBLICATION                            APR 16 2010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.




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