Murphy v. Butler

MEMORANDUM **

Kirk D. Murphy appeals the district court’s entry of summary judgment against him on his habeas corpus petition in which he asserted that the prosecutor violated the dictates of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). We affirm.

Because the California Court of Appeal applied an incorrect standard for determining whether Murphy made out a prima facie case that the prosecutor exercised peremptory challenges in a racially discriminatory manner, 1 we review its deci *826 sion de novo. 2 A pattern of discrimination will suffice to establish a prima facie case. See Batson, 476 U.S. at 96-97 , 106 S.Ct. at 1723 . A sufficient statistical showing can establish the necessary pattern. See Paulino, 371 F.3d at 1091; Fernandez, 286 F.3d at 1078—80; Montiel v. City of L.A., 2 F.3d 335 , 340 (9th Cir.1993). Murphy failed to develop the record sufficiently to make that showing; he simply pointed to the fact that a certain number of African-American prospective jurors had been challenged.

Nor did Murphy attempt to show the trial court that there was something more to indicate a violation. See Paulino, 371 F.3d at 1092; Wade v. Terhune, 202 F.3d…