Darrell Anthony GAUTT, Petitioner-Appellant, v. Gail LEWIS, Warden, Respondent-Appellee, 236 F. App'x 313

MEMORANDUM Darrell Anthony Gautt challenges his second-degree murder conviction under

section 187(

a) of the California Penal Code, arguing that the prosecution exercised its peremptory strikes in a racially discriminatory manner. See Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The parties are familiar with the facts underlying the Batson claim so we do not recite them here. The jury challenge rests exclusively on a marginal statistical showing and an incomplete picture of the race of all those struck from the jury.

We do not know what percentage of the 34 jurors who were questioned were African American; and we do not know the race of the jurors excused for cause or struck by the defense. Although the prosecution used three of its twenty allotted peremptory strikes against African Americans, nine strikes in total, and only two African Americans were on the sworn panel, by itself these facts are insufficient to show “that the totality of the relevant facts give[ ] rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94, 106 S.Ct. 1712.

We affirm the denial of Gautt’s habeas petition as to the underlying conviction. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . In a separate Opinion, we addressed Gautt's sentencing claims. Gautt v. Lewis, 489 F.3d 993 (9th Cir.2007).