Herbert Smulls v. Donald Roper

efficiency true, reduce it would remains the au- to force welfare consumers’ user. charge on each new levy

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Affirmed. SMULLS, Petitioner-

Herbert

Appellant, ROPER, Superintendent,

Don Center, Correctional

Potosi

Respondent-Appellee. 05-2456.

No. Appeals, Court of

United States

Eighth Circuit. May 2006.

Submitted:

Filed: 2006. Nov. Pilate,

Cheryle argued, Ann Kansas (Charles City, Rogers Jeremy M. MO Weis, MO, brief), City, S. Kansas on the appellant. AAG, Hawke, Stephen argued, David MO, City, for appellee. Jefferson BYE, HANSEN, SMITH, Before Judges. Circuit BYE, Judge. Circuit jury A Missouri convicted Herbert degree Smulls of first murder and other him crimes and sentenced to death. His convictions and sentence were affirmed appeal post-conviction and his mоtion for relief was denied. Smulls filed this then petition raising 28 U.S.C. 2254 numerous grounds for The district court de- relief. on her face as penalty glare death granted and this petition nied the that area. She was questioning now affirm appealability. certificate row, believe, yester- seated in the back remand for part, reverse part, directly I looked at her day. When proceedings. further question, row a she asked that last eyes and wouldn’t answer I averted her at me. and wouldn’t look my question and Norman July Smulls On The very nervous. That made me owned jewelry a store robbed Brown of Ms. get I out response was able In Honickman. Florence and Stephen her Sidney today was when I asked Stephen shot robbery, Smulls course of the At she re- occupation. her first about Florence; from his Steven died and a though I was sponded [sic] with what permanent Florence sustained wounds indicated very irritated answer. She first charged with injuries. was Smulls a mail sorter for Monsanto that she is assault, murder, degree two first degree for, mail I That she sorts Company. robbery and two degree first counts of said, people. And her believe she At action. his of armed criminal counts office. And post works for the husband guilty of trial, jury found Smulls first I listed him as a custodian. believe she failed to reach robbery but degree first my experience in the nine It’s been Upon remaining counts. as to the verdicts prosecutor that I years that I’ve been a guilty of the retrial, jury found Smulls mail people treat who work as sorters remaining counts. five carriers, carriers and and as mail letter second During jury selection Smulls’s Post people work for the U.S. Office who pros- trial, objected defense counsel suspicion they in that have great with chal- peremptory of a ecutor’s exercise many in generally my experience —in Sidney from the Margaret lenge to remove very had —are dis- the trials ‍​‌​​​​​​‌​‌​​‌‌​‌​‌​‌​​‌​​‌​​​​​‌​​​‌‌‌​‌​‌​​​​​‍I’ve Sidney as Afri- identified jury. Counsel sys- gruntled, unhappy people with argued can-American every make effort to strike tem and Kentucky, challenge violated Batson a my experience prosecutor, back. had several trying in cases where I’ve (1986). offered the follow- prosecutor The jury, people and left mail on the cases challenge: ing explanation for the hung jury. in had them result a I did strike Judge, I made nine strikes. case most recent of which was a murder who, guess, I for juror Ms. September, in last State this courthouse My a black female. the record was where a (phonetically) versus Dana Ruff Sidney are striking Ms. reasons hung mail carrier the holdout for a was during I upon what observed based both I several in- jury in that case. also have my experi- upon and based our voir dire employees postal laws who are lawsuits, which trying in criminal they ence department though and even in courthouse relatives, 50 cases this has exceeded I share the same somewhat this Court several cases before with including opinion of them. So I treat them that I have been a years glared in the nine she at me great suspicion. When attitude, attorney. My concerns with in- prosecuting just general her which I Sidney began yesterday. yesterday, Ms. Sid- Ms. cluded her outfit —which believe, today all of the was ney very during silent included beret was it, just I felt point cap sequins at one a ball with questioning. observed good [sic] that she be a states my concerning the wouldn’t during questioning

mi Certainly, strong juror mosity part. not a on her I think the juror. clothing [sic], death, clearly pretextural reasons are get the consideration of should we think that there is a the trial. And also I case where there part to that juror that I struck on the basis of look- point would out for the Court Dillard. like what called a eight, struck number very ‘due debt.’ And the Court found that to I struck her for the same reason pretextural be and sent [sic] that she is a letter carrier and works back. Louis, City That occurred in the delivering though mail. And I her St. [sic] but I don’t attitude was also confrontational. And I name the case. regard being postal did not feel that her were ones With to her work- answers er, give Mr. Waldemer has mentioned that believing would rise to me she juror. they’re employment a at the bottom of the strong would be states [sic] out, Dillard, rung. postal I I think a lot of point Ms. would is a white workers virtually money, they’re I make more female. And struck her for because fed- employees, eral than a lot of my experi- people the same reasons. It’s been who jury duty. come in postal ence that I left workers on here for He said he when attitude, who seem to have an based on struck Ms. Dillard because she was a postal my interpretation, that I’ve had re- worker. She also indicated she bad case, why sults. And that’s I struck her. knew the victim this Florence honest, perfectly Honiekman. And to be Appellant’s App. at 14-16. I think that might would the state have waiting response Without for a from concerns that she wouldn’t like Mrs. lawyer, Smulls’s the trial court overruled Honiekman on based Mrs. Honickman’s challenge. the Batson Defense counsel on demeanor and based comments that however, persisted, argued: Mr. Waldemer made about Mrs. Honick- all, attorney First of I’ve been a trial as very man. that could So have well been has, many he long trying as casеs as Dil- part striking of the reason for Ms. I any type he has and didn’t detect lard, being postal other than her a em- Sidney. Secondly, attitude from Ms. he ployee. So I feel that his reasons were during said she remained silent his pretextural [sic]. questioning during qualifica- the death Id. at 16-18. tion. He ques- didn’t ask her direct making any on-the-record find- Without jurors tion. Numerous remained silent ings articulating reasoning, during question his death because he court overruled Batson questions. didn’t ask them direct Ms. attorney following morning, Smulls’s Beeson. He didn’t ask Ms. Uhlmansiek renewed the and the fol- Batson questions although he did strike her. lowing colloquy occurred: Linn, female, who is a white she Judge, KRAFT: I I MS. believe stated totally only I’m remained silent. yesterday on the record when I made one who talked to her at all than other my only record that Ms. was the Copper asking municipali- Mr. her what remaining black out of the 30. in, ty she lived but he did not strike her. THE You that state- COURT: made jurors So numerous and the record will Okay. KRAFT: ment. MS. that, reflect during remained silent Mr. see, I questioning. again prob-

Waldemer’s Once to- THE COURT: You day I when he asked her about her occu- lem. don’t know what is be black. pation any I did not of ani- I constitutes black. detect kind don’t know what Court, never, ing challeng reasons for in this no matter

IAnd may say, any appellate postal mail sorters and workers are what anybody judicial nonsensical, notice never take this does not establish person one or four is black or inherently pretextual.” reasons are State eight pеrsons or black. persons (Mo.S.Ct. Smulls, 9, 15-16 935 S.W.2d that I something me don’t That to is 1996) (en banc). enough is wise think this Court Thereafter, peti- filed his Smulls enough un- appellate court is wise other tion. After the district court denied is is direct evidence as who less there granted appeal- we a certificate of petition, is and who is white who black 1) ability. appeal, argues On Smulls purple. I do not orange and who by striking prosecutor violated Batson any circumstances in this division under 2) venireperson jury, lone black from the judicial of the number ever take notice failing fully counsel was ineffective people who are black. And believe 3) challenge, coun- develop responsibility prove that’s counsel’s failing sel was ineffective for to seek the and who isn’t or who is

who is black disqualification judge. of the trial who isn’t. There were minority and people this complexioned some dark I know if that makes them

jury. don’t II said, I don’t know black or white. As Our review Smulls’s claims is they ago black. Years what constitutes governed by the and Ef Anti-Terrorism say drop to one of blood constitutes used (AED- Penalty Death Act of 1996 fective I don’t know what black means. black. PA). may grant not a writ of habeas somebody enlighten me of Can what corpus respect any with to issue decided know; I don’t I think of them black is? by the courts decision Missouri unless the responses I listened to the people. as to, contrary “was or involved an unreason Sidney. watched her attitude of, application clearly able established been, very briefly may as it law, Federal as determined the Su say you I’m to sit here and to going not preme Court” or the decision “was based Sidney is not black. But I’m that Ms. on an unreasonable determination of the judgment make a to going to light facts in presented evidence was, anybody panel else on the whether 2254(d)(1), § the State court.” 28 U.S.C. event, merely I’m any telling you so in (2). Johnson, Penry 532 U.S. that for the record. I’d rather not even (2001), But, it on the record. discuss interpreta Court reiterated its event, going deny your I’m motion for 2254(d)(l)’s § “contrary tion of to” and a on the basis stated. Are mistrial we application “unreasonable of’ federal law ready proceed? standards. Id. at 26-28. A “contrary state court decision is to” Court, the Missouri appeаl,

On clearly precedent if established the state commenting without on the absence of “applies court either a contra- rule that findings, upheld the trial court’s denial of governing dicts the law set in our forth the Batson The Court conclud- cases,” or “confronts a set of facts that clearly ed the trial court did not err be- materially indistinguishable from a cause easons such as these have “[r] been support that a trial court decision of this Court and nevertheless found err[,]” clearly did not at assum- arrives a result different from our “[e]ven argues prosecutor’s stated A court decision will Smulls precedent.” pretextual they of’ our reasons were because application “unreasonable be an сontrary unsupported by if to or the record. precedent it “cor- clearly established example, prosecu- For Smulls claims the legal rule rectly governing identifies the Sidney characterization of as a “mail unreasonably to the facts tor’s applies it but or “mail carrier” case.” sorter” was erroneous particular prisoner’s of a record because the shows Monsanto, and, management ‍​‌​​​​​​‌​‌​​‌‌​‌​‌​‌​​‌​​‌​​​​​‌​​​‌‌‌​‌​‌​​​​​‍at member duties, among supervised employees other Distinguishing an unreasonable between responsible sorting distributing application an incorrect of federal Additionally, argues mail. Smulls law, clarified that even if the federal we jury claim that a had previous the state habeas court concludes hung by postal employee been is factual- applied court decision ly inaccurate.1 incorrectly, appro- federal law relief is Both trial court and the Missouri application if that is also priate analyze these fac- Supreme Court failed objectively unreasonable. disputes tual on the record. The district (cita- 792-93, 532 U.S. concluded, took note of them but omitted). tions record, on its review of the based reviewing a district court’s When Sidney’s was aware of actual petition, of a we review the denial and, job description though even he was findings of fact for clear error and trial, prose- mistaken about his earlier King of law novo. v. Bow conclusions de postal cutor beliеved a worker voted (8th Cir.2002). ersox, Therefore, against conviction. the district appli- court concluded the Missouri courts’ argues prosecu Smulls first the not cation of federal law was unreasonable. challenge venireperson peremptory tor’s argues the district court’s Smulls also Sidney Equal Pro violated Batson. rejection challenge of his Batson was erro- of the States Consti tection Clause United neous because the trial court failed to prohibits using peremptory chal tution findings support make factual to the lenges jurors to on the basis of exclude him prosecutor’s Sidney “glared” claim at Batson, 89, 476 at 106 race. U.S. questioning. the or acted “irritated” prove purposeful 1712. To discrimination Smulls, According to defense counsel dis- peremptory challenge, in the use of a a puted prosecutor’s alleged the observa- prima first make a facie defendant must the trial court should have re- tions and racial If a case of discrimination. such dispute on the record. Smulls solved made, showing suggest is the state must argues side-by-side comparison also explanation race-neutral for the strike. Sidney venireperson Dillard was im- and explanation if a is Finally, race-neutral proper Dillard knew the victim because offered, the trial court must decide wheth was, therefore, similarly not situated. has party objecting er the strike trial court or the proved purposeful again, Purkett Once neither the discriminatiоn. Elem, 1769, 765, 767, to Supreme v. 514 115 Missouri Court chose address U.S. (1995); on the record. The dis- arguments United States v. these (8th Cir.2001). Jones, 990, findings noted the lack of but 245 F.3d 992 trict court prosecutor’s 1. claim was inaccurate. The state concedes 1114 The record before us offers little because defense

rejected arguments suggest trial court in the eval engaged “neither confirms disagreement counsel’s anticipated process by Batson poor had a uative nor denies that Ms. initially Further, Notably, progeny. the district court demeanor.” findings challenge not without ever afford lack of did denied concluded the an to re decision defense counsel opportunity the trial court’s unreason- make racially-neutral Instead, concluded trial but the reasons offered able. concerns, Despite rejection challenge, prosecutor. Batson these of the however, today our decision based the Missouri Court’s reliance court, solely what the trial court failed upon reasonable upon v. say record. But Hardcastle on the on the see based record. (3d Horn, 246, F.3d per We concerned with the (‘[S]ome engagement with the evidence functory the trial court manner which necessary step part considered is handled Smulls’s inquiry,’ requires three of the Batson previously emphasized the need terse, ‘more abrupt than a comment on the record ] detañed “make[ Batson.’) has satisfied chal peremptory support Taylor, v. (quоting Riley 277 F.3d Clarke, under Moran v. lenge Batson.” Cir.2001) (en (3d banc)); 290-91 Barnes v. (8th Cir.2006) (citing F.3d (2d Cir.1999) Anderson, 202 F.3d Inc., Enter., Hunt Xpress J.B. U.S. (ordering a new trial the trial court where (8th Inc., 809, 814 Cir. Transp., 320 F.3d explicit denied a Batson “without 2003)). entirely consistent Such a view is adjudication credibility of the non- with for the explanations movant’s race-neutral importance for tri precedent stressing the strikes.”); challenged States v. and United carefully consider all al courts evidence Cir.1998) (re Hill, Batson, 476 bearing on the issue. See manding where “the record ... indicates (“In deciding 106 S.Ct. 1712 whether nothing thought about the district court’s requisite [pri- made the the defendant has processes apart abrupt ... from its con showing, the court should facie] ma ... clusion that the asserted circumstances.”). all As consider relevant justification outweighed defendant’s] [the discriminatory the issue intent —the of the circum showing totality under of the challenge, in step third a Batson “Batson stances.”). Rather, we reverse because judge to assess requires plausi ... the refused to and assess recognize court light in bility prosecutor’s] [the of reason required by all relevant circumstances as bearing all on Mil of evidence with it.” clearly established federal law. Dretke, U.S. ler-El 545 (ci (2005) 2317, 2331-32, attempted counsel to es- When defense omitted). if deciding Sidney tation “In defen tablish for the record was the only jury remaining dant has his burden of in the persuasion, carried black inquiry pool, a court must undertake a ‘sensitive trial court refused to inexplicably acknowledge compo- into such circumstantial evi or consider the racial direct ” may jury pool. what dence of intent as be available.’ sition of the “I don’t know Batson, never, 1712 black. I in this U.S. constitutes And Heights Court, (quoting Arlington any appellate v. Metro. no matter what court Housing may judicial take notice that Corp., say, Dev. never (1977)). anyone or that or person L.Ed.2d 450 is black one persons eight persons or four black.” strate court was from the outset antag- considering composition Instead of of onistic towards the Batson challenge and jury pool, Supreme as mandated unwilling engage in the inquiry sensitive precedent, imposed the trial court Court into circumstantial and direct evidence as unprecedented, if upоn the defendant an Enter., Inc., required. Xpress See U.S. impossible, burden: 320 F.3d at 814 n. 4 (noting that under certain “lack something specifici- That to me is that I don’t circumstances the ty think a trial court enough any this Court is wise or record to demonstrate appellate compliance other un- enough analysis may is wise with the Batson require less there is direct evidence toas who is remand for further findings.”). Thus, black and who is white and who is we are not bound the normal orange and who purple. presumption do not of correctness in favor under circumstances in this division trial court’s or the Missouri Su- judicial ever take notice of the number preme Court’s affirmance those find- of people who are black. And I ings. Any believe other conclusion would render responsibility that’s counsel’s to prove illusory already protections tenuous who is black and who isn’t who is a afforded under Batson. minority and who isn’t. that, do not We hold had the trial court

Appellant’s App. at 27. accepted applied controlling Supreme court, comprehend We fail to how a trial precedent, Court Smulls’s Batson chal- faced with a Batson can challenge, purport lenge necessarily would have been suc- obligation to fulfill its to properly evaluate Instead, cessful. we conclude the trial the merits of such a claim taking without apparent finding purposeful of no jurors the race of prospective into account. discrimination cannot be accorded the Further, we do not believe a trial court presumption normal of correctness be- may simply by demanding avoid Batson cause of its refusal consider all relevant proponent meet a required by circumstances as clearly es- proof burden of which no support finds Moreover, tablished federal law. the Mis- precedent. souri Court’s conclusion that the are aware parties focus their trial court properly acted was an unrea- arguments only application there is no sonable jurors contention other improperly precedent. federal Accordingly, we re- Thus, jury pool. struck from the that portion could verse of the district court’s argued be the trial court’s judgment dеnying refusal to con- peti- Smulls’s habeas jurors Batson, sider the race of prospective other tion based on a violation of to, is irrelevant to this discussion. We be- remand with instructions in the district lieve, however, discretion, under the unusual circum- reconstruct the circum- case, stances of this surrounding the trial court’s ac- stances Smulls’s Batson chal- tions and comments are of a to lenge prosecu- indicative determine whether the deeper problem. trial venireperson Sidney The court’s initial tor’s strike of racially failure to afford defense an oppor- recognize pas- counsel motivated. We tunity circumstances, respond sage ‍​‌​​​​​​‌​‌​​‌‌​‌​‌​‌​​‌​​‌​​​​​‌​​​‌‌‌​‌​‌​​​​​‍to the ra- of time and other reasons, cially-neutral complete lack e.g., disqualification of the trial court findings, post-conviction may and the trial court’s refusal to from proceedings, prospective jurors consider the race of impossible ab- make such a task or unsatis- evidence,” true, sent factory. proves “direct combine to demon- If that we direct 1116 by a of a factual issue made grant the writ. See determination court

the district to be cor- presumed State court shall be Batson, 106 1712 U.S. rect,” “by clear and con- unless rebutted analysis of the (remanding for further 2254(e)(1). § fed- vincing “[A] evidence.” claim); Vaughn, Brinson v. Batson not the writ may eral habeas court issue (3d (same); Hard F.3d in simply because that court concludes (same); and castle, at 261-62 368 F.3d that independent judgment the relevant Keane, 630, 640-41 252 F.3d Galarza clearly applied decision estab- state-court Cir.2001) (same).2 (2d erroneously federal law or incorrect- lished Rather, ly. application that must also be Ill Taylor, 529 unreasonable.” Williams v. herein, the dis- reasons stated For the 362, 411, 120 146 L.Ed.2d petition dismissal of the trict court’s (2000) (O’Connor,J., concurring). reversed, the case is remanded clearly I can find no established Su- in accordance with proceedings further court cites preme precedent, Court affirm the district court opinion. this none, Supreme that the Court of Mis- respects. in all other contrary unreasonably souri acted applied rejecting in Smulls’ Batson chal- HANSEN, dissenting in Judge, Circuit Newland, lenge. Boyd v. See concurring part. in part and (9th Cir.2006) (holding that proper recites the stan- the court While that appellate state court’s determination reviewing proceed- the state court dard for appellant prima failed to establish a facie to adhere to that ings, my in view fails even Batson case was entitled to deference standard, respectfully I therefore dis- though applied the state trial court more disposition of the sent from the court’s standard, onerous state where the state I concur in the court’s dis- Batson claim. appellate analyzed court the Batson claim ineffective assistance of position of Smulls’ standard). under the federal The proper claims. counsel stan- applied court Batson that a federal court repeating It bears rejected claim. On di- dard Smulls’ application ... an for a grant[ ]” not “shall appeal, Supreme Court of Mis- rect corpus prisoner to a in state writ of habeas unanimously souri affirmed on the Batson adjudica- courts’ custody unless State claim, objected finding that Smulls prisoner’s claim: tion of the prosecutor’s strike of Ms. as racial- (1) in a decision that was con- resulted discriminatory, of- ly to, an unreasonable trary or involved strike, fered race-neutral reasons for the of, clearly Feder- application argued and that the defense that the stat- law, al as determined pretextual. ed reasons were States; or of the United correctly articulated the Court Missouri (2) in a resulted decision was based standard, that the three-step found determination of the on an unreasonable prosecutor’s proffered reasons related to presented of the evidence light facts Sidney’s occupation and demeanor are proceeding. the State that have found to be race reasons been 2254(d). neutral, that the trial court ap- on an and concluded U.S.C. overruling err in the Bat- corpus, for a writ of habeas “a did plication remaining of 2. We ineffective as- and affirm the district court's dismissal find Smulls’s sistance claims to be without merit those claims. of counsel

1117 Smulls, required explicit fact-findings, espe v. 935 never son See State (Mo.1996) (en banc), 9, cert. cially prima 14-15 whеre a facie case is acknowl S.W.2d denied, 2415, 1254, 520 117 S.Ct. 138 edged prosecution required U.S. and the is (1997). This is not a case L.Ed.2d 180 present specific nondiscriminatory reasons misapplied courts Batson where the state Cockrell, on the record. See v. Miller-El an incorrect progeny applying or its 347, 322, 1029, 537 U.S. 123 154 Roe, legal standard. Cf. Fernandez v. 286 (2003) (“We L.Ed.2d 931 adhere to the (9th Cir.) 1073, (remanding F.3d 1077 for proposition that a state court need not evidentiary hearing an where the Califor findings make addressing detailed all the courts, law, nia “erro following state it.”). A trial evidence before court’s neously required a defendant to show a on a Batson is itself a fact-find of in or ‘strong likelihood’ discrimination ing, repeatedly and we have upheld rulings prima der to establish a case rather facie reasoning. made without additional See just than an of discrimination as ‘inference’ Inc., Xpress Enterprs., U.S. 320 F.3d at Batson”), denied, required by cert. 537 Witt, 814; Wainwright see also 469 U.S. 1000, 514, 154 L.Ed.2d 395 U.S. 123 S.Ct. 412, 430, 83 L.Ed.2d (2002). nothing There is in the (1985) (upholding state trial court’s dis analysis that con Court Missouri’s is juror for noting missal cause and “that trary Xpress to Batson. See U.S. En judge required was to announce [not] Inc., terprs., Transport, Inc. v. J.B. Hunt record his conclusion [the] Cir.2003) (conclud 320 F.3d biased, ... or reasoning. his ing engaged that the trial court in “a full record.”). finding is evident from the analysis” objector Batson where the made “Moreover, ... our deference to trial court challenge, proponent a Batson of the fact-finding doubly great when consider explanations, strike offered race-neutral challenges of the because parties argue both were allowed to their unique part awareness [on positions, granted and the trial court totality of the of the circumstances court] making any specific motion without find surrounding voir dire.” Simmons v. Lueb ings, implicitly finding proponent’s rea (8th Cir.2002) bers, (in 299 F.3d motivated); racially sons to be see also omitted), denied, ternal marks cert. (2d Duncan, Messiah v. 1582, 155 L.Ed.2d 314 Cir.2006) (holding that the trial court ful (2003). By denying challenge, the Batson “duty fills its to rule” on the Batson third- implicitly the trial court found that step analysis “by expressing a clear intent prosecution’s strike was based its con reject uphold listening a strike after Sidney’s occupation cern with Ms. and her challenge, explana the race-neutral demeanor, fact- not her race. No other tion, arguments parties”). and the of the findings required. suggestions Our similarly find no unreasonable deter- judges they to federal trial are well light mination of the facts in of the evi- con advised to articulate their presented dence in state court. Our court validity as cerning the fact- specific is disturbed the absence of course, are, of serted race neutral reasons findings, as well the state trial court’s binding judges. on state court purported recognize refusal to and assess (as AEDPA, just it is not Under all of the relevant circumstances we fact-findings presumed that are an cham- quiet appellate can do bers, presumption, correct. The codified рress far removed from the of an be trial). 2254(d), However, “applies §in to fac- ongoing pre-AEDPA federal law has make, courts, consid- the record it chose to by state make made tual determinations the arguments, the and then denied a trial court or an ered court be the whether Mata, then asked that the 449 motion. The defense v. court.” Sumner appellate disallowed, the 764, strike which peremptory 66 L.Ed.2d be 101 S.Ct. omitted). day, (1981) following The history trial court overruled. (subsequent chal- again raised the Batson between the defense “makes no distinction The statute par- The trial court allowed both lenge.3 a state trial the factual determinations supplement ties to address the issue and appellate court.” thоse of state court and again trial court once noted in the record. The 764. As we Id. (8th challenge. this extensive Jones, denied the Given F.2d 842-43 v. Jones record, cannot be criticized to also the trial court Cir.1991), requires us “Sumner failing oppor- the defense an for to afford [appellate court] the consider whether tunity respond, nor do I think it can be regarding the any finding of fact made fairly failing to consider the challenges.” See criticized prosecutor’s peremptory attorneys Bowersox, relevant circumstances also Weaver (noting pressed upon that factual it. courts are by appellate state findings made trial court also finds that the state Our of cor- presumption the same entitled сourt refused to consider all of the rele- courts). trial findings of state rectness as evidence, particularly the race of the vant of Missouri considered The prospective jurors. other As I understand trial court rec- from the the circumstances reasoning, our court’s it is troubled reasons to prosecutor’s found the ord and it trial court’s remarks about “what means found to be race type typically be the certainly to be black.” While do neutral, trial court did not and that the comments made agree condone or with the denying err judge, I believe that our by the state supported These judicial improperly permits indig- court unreasonable. and are not record nation at their content to cloud its review ma- Further, proceedings. allowed to re- of the state court the defense was trial court’s state- proffered jority interprets rea- spond prosecutor’s an undue having placed the stated reasons ments as burden argue sons the race of each the trial court did on the defense to establish While pretextual. avoiding the Bat- person motion for a mistrial venire and then initially deny the failed to following challenge son when the defense immediately How- striking allegedly imposed reasons for meet the burden. proffered race-neutral ever, it from the record that the subsequently trial court is evident Sidney, Sidney to state trial court was aware that Ms. ample opportunity the defense allowеd proffered only person rea- was the black venire when argument make its rejected challenge. The The trial court did first the Batson pretextual. sons were defense, represented it to to the court that she not limit the but allowed defense challenge again description is some- newed Batson and the court 3. Our court’s of events suggests that puzzling challenge, precede what to the extent it overruled the know the state trial court made its "I don't judge’s Only ill-advised after the comments. upon the what it means to be black” remarks ignored sought to in- defense following renewal of the Batson sure that the record reflected that Ms. fact, transcript morning. pages of four person did the trial was the black venire 22-26), during (Appellant's App. at which the court make the criticized remarks. parties court allowed to address the re- both “by ings proven incorrect clear and person venire when only the black was 2254(e)(1); § again convincing and when evidence.” see challenged the strike first Luebbers, 706, following the the Hall v. 341 F.3d it renewed also (8th (“Each prosecu- time did the morning, step and at no of the Batson short, the dispute tion that fact. ever inquiry involves a factual determination rulings not make its without trial court did presumption to a of correctness entitled prospective the considering the race of convincing clear and unless overcome ” jurors (supra or otherwise “avoid Batson evidence.”). 10) all, but, contrary, it cоnsid- at at purportedly The circumstance that was challenge and the related evi- ered the ignored potential race of each of the —the ruling. made its arguments dence and jurors support an inference that —could conclude, to without appears Our court prosecutor’s pre- stated reasons were the trial court’s citing any authority, that the textual, prosecution the struck the where “refusal to consider all relevant purported alone, only juror. That fact howev- black 11) (supra at relieves circumstances” er, together with the rec- when considered obligation apply the habeas court of its whole, pro- not in this case ord as a does presumption of correctness convincing evidence vide the clear and 2254(e)(1). § fact-findings required by of necessary presumption to rebut the Prior respectfully disagree. I must afforded to the state courts’ correctness AEDPA, presumption of correctness determination, the state su- particularly 2254(d), §in which listed was contained finding, prosecu- that preme court’s presumption. eight exceptions Miller- tion’s strike was race neutral. Cf. “jetti § 2254 AEDPA’s amendments to Dretke, El v. 545 U.S. previ all ... situations which [the] soned (2005) 2339-40, (holding ously swept presumption.” aside the Val acceptance that the state court’s Cockrell, dez v. striking for ten prosecutor’s explanation denied, Cir.2001), 883, 123 cert. 537 U.S. venire qualified per- of the eleven black (2002). “The 154 L.Ed.2d by clear was shown to be erroneous sons presumption of correctness erected evidence, including the convincing 2254(e)(1), place simply provides at now shuffle,” “jury prosecution’s use of the petitioner can rebut that unless posed to black disparate questions venire through fact clear and convinc findings similarly jurors, comparison and white evidence, fact are those jurors, and white situated black presumed to be correct.” Id.See also Mil County practice of the Dallas admitted 358-59, ler-El, at 123 S.Ct. 1029 537 U.S. removing minorities Prosecutor’s Office of (“Section (Thomas, J., dissenting) today juries). does the court from Nor 2254(e)(1) not, did, predecessor does as its Further, suggest it does. to factual deference for exceptions create objectionable comments were procedural infirmities.... Section again had in- made after the defense 2254(e)(1) to contain simply cannot be read deference.”) formed the trial court sliding an scale of implied person, a fact black venire not (noting majority opinion that the does view). ‍​‌​​​​​​‌​‌​​‌‌​‌​‌​‌​​‌​​‌​​​​​‌​​​‌‌‌​‌​‌​​​​​‍any at Thus, disputed by prosecution not appear to conflict with this time, re- and after the court had thrice with the regardless dispute of the court’s challenge. Batson is jected the Batson by the extent of the evidence considered reasons court, with the may reject the state concerned state trial we juror, the state trial striking if findings only court’s factual those find- prose- vated. Each of the cases cited do make the court’s comments remand, supra reasons less race court that ordered a proffered cutor’s good in faith. or not asserted involved state courts that failed to make a neutral ruling. The same is not true here. summary, today the court fails In governing Under the strict standard this AEDPA narrow standard adhere to the appeal, outright would affirm the district permit- are not which we are bound. We court’s well reasoned denial prison- habeas relief to a state grant ted to petition. objec- have ruled the er because we would differently had we been the state trial tion

court, nor do we sit as a court of initial judges. trial

review over state inquiry a full Batson permitted objection hearing after

and denied

prosecution’s race-neutral reasons and arguments pretext. The Su-

defense’s properly applied preme Court of Missouri HOLLY, Appellant, Elliott Batson, in prosecu- examined detail the tor’s reasons and found the race-neutral credible,

justifications for the strike to be Amy ANDERSON; Konieska; Deborah Supreme and affirmed. The Court of Mis- Tony Kaufenberg; Smith; Mike souri also found that the had Davis, Appellees. Sandi against exercised a strike white situated, similarly that the court found was No. 05-2882. finding my that is not unreasonable. In Appeals, United States Court of opinion, summarily our court errs con- Eighth Circuit. citation to cluding, Supreme without case, Court Court 27, 2006. Submitted: Oct. analysis Missouri’s Batson was an unrea- application sonable Filed: Nov. 2006. precedent or an unreason- Further, able determination of the facts. evidence, points

our court to no let alone evidence, convincing

clear and that contra- findings;

dicts the state courts’ we are congressionally-

therefore bound presumption

created those

are correct.

Finally, the court’s remand instructions perplexing troubling. my

are both

view, duty in proceedings, our habeas ‍​‌​​​​​​‌​‌​​‌‌​‌​‌​‌​​‌​​‌​​​​​‌​​​‌‌‌​‌​‌​​​​​‍as duty, district is to review stands,

the state court record as it not to surrounding

“reconstruct” circum- anew,

stances to determine the first (but actually years

instance after the

event), racially whether a strike was moti-

Case Details

Case Name: Herbert Smulls v. Donald Roper

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 1, 2006

Citation: 467 F.3d 1108

Docket Number: 05-2456

Court Abbreviation: 8th Cir.