Lewis

MEMORANDUM **

The appellant, John Lee Smith (“Smith”), seeks a writ of habeas corpus to overturn his California convictions of assault with a firearm and being a convicted felon in possession of a firearm. He contends that the prosecutor’s peremptory challenges of Black potential jurors denied him equal protection, in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The United States District Court for the Central District of California rejected this contention and so do we.

The prosecutor used at least nine peremptory challenges during jury selection. Smith’s counsel told the district court that of the nine jurors thus eliminated, “six ... [were] Black, two ... were Hispanic, and one ... [was] mideastern.” The jury that tried and convicted Smith consisted of six Blacks, two Asians, one Latino and three whites; an alternate juror was Black. At oral argument we were told that the prosecutor did not use all her peremptory challenges.

Smith contends that the prosecutor’s peremptory challenges of six Black jurors itself established a prima facie case under Batson “that the prosecutor used that practice to exclude the veniremen from the petit…