A petition for a writ of habeas corpus was filed in the United States District Court for the Southern District of California by the appellant, who sought relief upon the ground that his state court trial was “fundamentally unfair” because the jury selected to try the case was not comprised of members from a cross section of the immediate community within the jurisdiction of the trial court.

The petition which was filed on November 25, 1969, was denied by the District Court by order dated December 30, 1969. On January 12, 1970, petitioner filed a notice of appeal from the district court order of December 30, 1969, denying his petition. On the same date, he filed in the district court a petition for rehearing which was denied by order dated and filed January 16, 1970. On January 27, 1970, appellant filed a document which he denominated “Amendment to Petition for Rehearing.” As noted above, the court had disposed of the petition for rehearing on January 16, 1970.

In his petition for the writ, the appellant alleged that he had been convicted in a jury trial in the state court on two counts of unlawfully selling marihuana. He further alleged that he had made a timely objection to the selection of the jury and that “Petitioner predicates this finding (assertion that the trial was “fundamentally unfair”) on the following colloquy found on pages 5, 6 and 7 of the trial court proceedings in case No. CR 8406, before the Honorable Robert W. Conyers, Judge presiding, in the Superior Court of the State of California in and for the County of San Diego, December 7, 1965, where it found that:

It is clear that the appellant’s objection in the state court was solely to the fact that there was no black person on-the panel from which the jury was to be selected to try his case and that the trial judge denied his motion for the inclusion of Negroes on the jury panel.

The absence of persons of a particular race on a jury panel is no indication of discrimination. To challenge a jury panel on the grounds of racial discrimination, there must be a purposeful discrimination proven by systematic exclusion of eligible jurors of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination. Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), Akins v. Texas, 325 U.S. 398 , 65 S.Ct. 1276 , 89 L.Ed. 1692 (1945), Patton v. State of Mississippi, 332 U.S. 463 , 68 S.Ct. 184 , 92 L.Ed. 76 (1947).

In his contention before this court, appellant states in his brief, that in 1968 (three years after appellant’s trial and conviction), a San Diego County Superior Court judge held the selection of jurors in the Superior Court of that County was unconstitutional. Obviously this holding has no relation to appellant’s trial. Lattimore also asserts, on this appeal, that there was a systematic exclusion of Negroes from his state court jury panel. This question was not raised in the state court, and accordingly we do not consider it here.

Affirmed.