Birdine

*86 MEMORANDUM *

Petitioner Mark Birdine, a California prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . He seeks to vacate his conviction by jury of conspiracy to commit murder, murder, conspiracy to commit arson, and conspiracy to commit grand theft of personal property, petty theft, forgery of access card, receiving stolen property and counterfeiting access card. He is currently serving a sentence of twenty-five years to life. All of the crimes arise out of efforts to steal a hospital credit card machine by setting fire to a hospital. The sole challenge to the convictions is to the jury selection process.

The dispositive issue is whether Birdine, an African-American, established a prima facie case of discriminatory use of peremptory challenges by the prosecutor. The venire panel of potential jurors numbered approximately 400. The trial court observed that the potential jurors included a “disproportionate number of black persons ... far in excess of what this court’s information is about the random population in the community.” The record does not show, however, how many were African-American. The prosecution…