Smulls v. Roper

Survey re- “The curate; example, is incorrect

sponse discrepancies unexplained

identification com- responses and survey

between admissibility of Although the

piled data. for their statements reporting LEAs’ the district arguable,

trustworthiness its broad discretion not abuse

court did survey responses the LEAs’

allowing knowledge Missouri’s

to demonstrate problems.

possible CONCLUSION

IV. orders reverse the district

We remand judgment, and summary

granting this accordance

for reconsideration evidentiary district court’s

opinion. The

rulings are affirmed. SMULLS, Appellant,

Herbert ROPER, Superintendent, Potosi

Don Center, Appellee.

Correctional

No. 05-2456. Appeals, Court of

United States

Eighth Circuit. 26, 2007. Sept.

Submitted: July

Filed: LLC, Pilate, Pilate, Morgan A.

Cheryl (Charles Rogers, M. Olathe, KS, argued Weis, & Miraki- Wyrsch Hobbs Jeremy S. brief), MO, City, on the an, P.C., Kansas appellant. for Gen., Hawke, Atty. Asst. D. Stephen (Jeremiah W. MO, argued City, Jefferson brief), for Gen., Nixon, Atty. on (Jay) appellee. LOKEN, Judge, Chief

Before MURPHY, BYE, HANSEN, WOLLMAN, COLLOTON, SMITH, MELLOY, RILEY, SHEPHERD, GRUENDER, and Circuit En Banc. Judges, HANSEN, Judge. Circuit Smulls found Herbert jury A Missouri murder, as well degree first guilty crimes, sentenced and he was other of Missouri Supreme Court The death. on convictions Smulls’ ultimately affirmed for his motions appeal denied direct court1 district The relief. postconviction Webber, of Missouri. United E. Richard Honorable 1. The Eastern Judge District States District 85 petition,

denied Smulls’ 28 from panel. U.S.C. described granted ap- and this court a certificate of Sidney’s Ms. during demeanor his exami- pealability on Batson2 —related Smulls’ panel, nation of the particularly during the panel After a claims. divided of this court potential discussion of the death penalty, in part affirmed and reversed and remand- and he specifically glare recounted a on part, ed in Roper, Smulls v. 467 F.3d 1108 face, her eyes, an aversion of her and an (8th Cir.2006), granted peti- we the State’s irritated questions. answer to one of his rehearing tion for en banc and vacated the He also Sidney’s discussed occupation, panel opinion. affirm We now the district which he described as a mail sorter for court’s denial of relief. habeas 5,000 Monsanto, people which, view, his equated her postal with service I. workers. to the According prosecutor, he July On and Smulls Norman negative had experiences postal with work- jewelry Brown robbed a store owned ers who served as past. the He Stephen and Florence Honickman. In the general demeanor, which, noted her in his robbery, course of the Stephen Smulls shot discussion, included the fact that she wore Florence; Stephen and died from his day a beret one sequined and a cap the wounds, perma- and sustained Florence next. Finally, prosecutor the compared injuries. nent charged Smulls was Sidney Ms. to juror, another white Ms. murder, degree assault, first degree first Dillard, whom he struck had because she degree robbery, two counts of first and a postal was worker with a confrontational two counts of armed criminal action. At attitude. prosecutor’s the Following ex- trial, jury first his found guilty Smulls planation for striking Sidney, Ms. the trial degree of first robbery but failed to reach request overruled the quash to verdicts on the remaining Upon counts. jury and denied the motion for a mistrial. retrial, jury guilty found Smulls Defense counsel argued then that remaining counts. prosecutor’s stated pretextu- reasons were During jury selection at Smulls’ second al, addressing the points various made by trial, his objected defense counsel to the prosecutor discussing several oth- a peremptory exercise of chal- court, er venirepersons. The noting lenge Margaret to remove Sidney from the that it ruling only was on the Batson chal- jury. The defense moved to quash the lenge to the strike of Sidney, again Ms. jury and moved for a mistrial on the basis objection. overruled the Defense counsel aof Batson violation. Counsel identified then moved the court to disallow the strike Sidney only Ms. as the person black left on of Ms. Sidney, to which the trial court 30-person panel venire from which responded, “Based what is upon before the peremptory challenges were made ar- (Id. request Court that bewill denied.” at gued that removal of Ms. 19.) Smulls, Sidney black, left who to face The next defense morning, counsel re- jury. an all-white Counsel “fe[lt] newed the motion for mistrial and the state struck her in racially discriminato- quash motion to 13.) jury Batson, ry manner.” based on (Appellant’s App. at arguing The trial “that the striking court asked of Ms. prosecutor Margaret Sidney address the claim. the black prosecutor recog- juror female who was the Sidney nized only was a black black remaining juror female out of 30 we and discussed his for striking qualified, reasons her racially was struck on a discrimi- Kentucky, (1986). (Id. 22.) been, natory briefly may at Defense coun- as it have and I’m basis.” not supplement the record made sel asked to sit going say you here and that Ms. day, which the court allowed. previous Sidney is not But I’m going black. The court allowed the to re- judgment to make a as to any- whether spond and then denied the motion for was, body panel else on the in any so Undeterred, mistrial for the third time. event, merely I’m telling you that for responded defense counsel to the denial the record. I I stating, “Judge, believe stated on the I’d rather not even discuss it on the I yesterday my record when made record But, event, record. I’m going to Sidney that Ms. was the black deny your motion for mistrial on the (Id. 26-27.) out of the remaining 30.” ready basis stated. Are we proceed? judge’s At the trial frustration point, this (Id. 27-28.) ultimately Smulls was con apparent. became by jury jurors. victed containing no black THE COURT: You made that state- appeal, On Court of Missouri ment. rejected unanimously Smulls’ claim that Okay. MS. KRAFT: by violated improp see, I prob- THE You have a COURT: erly striking Sidney. Smulls, State v. lem. I don’t know what is to be black. (Mo.1996) (en banc) 935 S.W.2d 15-16 I don’t know what constitutes black. (White, J.), denied, cert. 520 U.S. 117 never, Court, I in this no matter And (1997). S.Ct. Fol any appellate may say, what court I lowing postconviction pro numerous state judicial anybody never take notice that ceedings concerning disqualify a motion to person one or four is black or trial judge presiding state from over persons eight persons or are black. postconviction hearings, something That to me that I is don’t ultimately Court of affirmed Missouri enough any think this Court is wise or all postconviction denial of relief. Smulls appellate enough other court is wise un- State, (Mo.2002) (en 71 S.W.3d 138 less there is direct evidence as to who is banc). black and who is white and who is § filed a petition Smulls 28 U.S.C. orange purple. and who is I do not review, by which denied habeas under circumstances in this division granted the district court. We a certifi- judicial ever take notice of the number appealability cate of to review Smulls’ Bat- people of who are black. And I believe son—related claims. responsibility prove that’s counsel’s who is black and who isn’t or who is a II. minority and who isn’t. an from a district appeal “On complexioned

There were some dark petition court’s denial of a for writ of habe- people jury. on this I don’t if that know corpus, as we review its of fact for said, I I makes them black or white. As clear error and its conclusions of law de don’t know what constitutes black. Weber, Chavez v. ago they say drop Years used to one of novo.” (8th Cir.2007). review, blood constitutes black. I don’t know Our as was the somebody court’s, strictly by what black means. en- Can district circumscribed lighten me of what black is? I don’t Death the Anti-Terrorism Effective know; I people. (AEDPA). think of them as Penalty Act of 1996 Under AEDPA, claim has prisoner’s

I when a state responses listened to the of Ms. Sidney. very adjudicated I merits in state watched her attitude been on the long strikes have been Peremptory court, “shall not federal court system. Peremptory jury of our of habe- for a writ application an grant[ ]” Roman times date back to ancient strikes adjudica- courts’ unless the state corpus country eventually carried to this and were claim: prisoner’s tion of the separated Eng colonists from when the (1) that was resulted in a decision & Roger Enriquez generally land. See to, involved an unreasonable contrary or III, Psychology The Social John W. Clark of, Feder- clearly established application Peremptory Challenges: An Examina of law, al as determined Jurors, Hisp. Tex. J.L. & tion Latino States; or of the United (2007) (discussing the histo Pol’y 28-30 (2) that was in a decision resulted The nature ry peremptory challenges). determination on an unreasonable based which, strike, defini peremptory the evidence light of the facts any shown requiring tion means “[n]ot proceeding. in the presented State cause; arbitrary,” Dictionary Law Black’s 2254(d). ruling ap- § on an 28 U.S.C. (7th ed.1999), prose allows both corpus, “a for a writ of habeas plication counsel to remove a cutor and the defense made of a factual issue determination en panel from the based potential to be cor- presumed be State court shall gut feeling instinct or tirely on his or her rect,” “by clear and con- unless rebutted an individual would not be favorable 2254(e)(1). vincing evidence.” juror. peremptory strikes are an While on col substantial limitations AEDPA’s jury system, our see important part of Congress’s concern review reflect lateral Batson, “A court’s collater for federalism. federal (noting peremptory “challenges that tradi decision must be al review of a state-court as one means of tionally have been viewed respect with the due state consistent assuring qualified the selection of a system.” Miller-El in our federal courts States, jury”); Lewis v. unbiased United 340, Cockrell, 322, 123 S.Ct. v. 537 U.S. 136, 370, 376, 36 L.Ed. 146 U.S. 13 S.Ct. (2003) (Miller-El I); 1029, L.Ed.2d 154 931 (1892) a (deeming peremptory 1011 strikes Collins, 333, 344, Rice v. 546 U.S. see also necessary litigant’s right a component of (2006) 969, 163 L.Ed.2d 824 126 S.Ct. trial), arbitrary a fair their nature has (“[Cjonsiderations J., (Breyer, concurring) the strikes to prosecutors allowed to use require federal habeas courts of federalism venireperson remove a from the purposely to state- yet to show further deference solely venireper- of the jury on the basis judgments.”). race. Race discrimination within the son’s recently “ereate[d] reiterated that AEDPA any stage, including the judicial process at independent, high standard to be met an jurors, ques serious selection of “raises a writ of may before a federal court issue process tions” as to the fairness of the rul corpus habeas to set aside state-court Edmonson v. Leesville Concrete itself. — Brown, -, ings.” v. U.S. Co., Inc., 614, 628, 2077, Uttecht 111 500 U.S. S.Ct. 2218, 2224, (1991). 127 167 L.Ed.2d 1014 S.Ct. 114 L.Ed.2d 660 “Racial bias mars (2007) (reversing grant Ninth Circuit’s judicial system and integrity relief where the court “failed to govern habeas the idea of democratic prevents prescribed by respect becoming reality.” the limited role from a Id. Not ment precedent). Congress” racially and the Court’s do motivated strikes violate mind, right in turn to With these restrictions we the defendant’s Constitutional Batson, equal protection, that he entitled to see 476 U.S. Mr. Smulls’ claims 84-85, (discussing 1712 106 S.Ct. habeas relief.

859 may stereotyping in v. be a form of century-old holding Strauder invisible Court’s 303, L.Ed. 664 100 U.S. 25 Virginia, West even to the prosecutor?”); Miller-El v. de- (1880), “the denies black State Dretke, 231, 238, 2317, 545 125 U.S. S.Ct. protection of the laws when equal fendant (2005) (,Miller-El II) 162 196 L.Ed.2d jury him trial before a from puts on (“The difficulty rub has been practical pur- his race have been members of which in ferreting out discrimination selections excluded”), they violate the veni- posefully nature, discretionary by and choices sub- equal protection by right own reperson’s influences, ject myriad legitimate what- “denying venireperson the excluded ever the race of the individuals on the in our privilege participating honor selected.”); panel jurors from which are Edmonson, system justice,” Batson, 476 U.S. at S.Ct. (holding that Batson S.Ct. (Marshall, J., concurring) (discussing the jury private, in civil applies to selection prosecutor may fact that a recog- even engaged has in “un- litigation). The Court racism). nize his own subconscious racial ceasing efforts to eradicate discrimi- procedures in the used to select the nation These difficulties notwithstand from individual are venire which ing, peremptory challenges a sig remain Batson, drawn.” 476 U.S. at 106 S.Ct. jury nificant of our trial process, and 85-86, 1712; see also id. at (discussing jurisprudence the Court’s since Court continues to stand Ohio, Strauder); Powers proper the Batson framework as the meth (1991) od to determine a prosecutor whether has (holding may challenge that a defendant engaged purposeful unconstitutional dis venireperson strike of a racially motivated in exercising peremptory crimination chal not of the defendant’s race based on the Batson, lenges. Under a trial court must jury “right defendant’s to be tried engage three-step inquiry. The trial whose members are selected nondis- court first determines whether the defen criteria”). criminatory prima showing dant has made a facie

Despite important protections prosecutor’s peremptory strike Batson, afforded defendants Batson Rice, 338, on at based race. 546 U.S. 126 can challenge be difficult to resolve be If the defendant satisfies the S.Ct. analysis requires cause the Batson a court step, then to the first the burden shifts subjective to assess the moti prosecutor present expla to a race-neutral exercising a peremptory vation for strike. juror. striking prosecu nation for 93-95, (discussing at 1712 See id. 106 S.Ct. “ ‘persua stated reason need not be tor’s protection jurisprudence equal the Court’s ” sive, long as it is not plausible’ or even as selection). concerning jury per Because inherently discriminatory. (quoting Id. (indeed can be emptory strike instinctive 768, Elem, 765, 115 Purkett v. 514 U.S. subliminal) with, begin perhaps even (1995) 1769, (per S.Ct. 131 L.Ed.2d 834 establish, is difficult for a defendant to as curiam)). The burden then shifts back challenging a as is his burden when strike step the defendant at the third to shoulder discriminatory, had an that the establishing pur his ultimate burden of unstated, impermissible, unconstitutional step The “final in poseful discrimination. discriminatory exercising motive for evaluating persuasiveness of volves ‘the Rice, 343, at 126 strike. See 546 U.S. justification’ prosecu proffered (“How J., (Breyer, concurring) S.Ct. 969 Purkett, 514 (quoting tor.” Id. U.S. judges second-guess can trial an instinctive 1769). 768, 115 judgment underlying for which S.Ct. basis Applica- argue positions, lowed to their A. AEDPA’s “Unreasonable Clearly Established Federal granted tion of trial court the motion without Requirement Law” making any specific findings, implicitly finding the proponent’s reasons to be ra argues that Smulls first motivated); cially Wainwright see also v. findings no con Missouri trial court made Witt, 430, 412, 844, validity cerning the (1985) (upholding L.Ed.2d 841 a state trial strike, reasons for the claimed race-neutral juror court’s dismissal of a for cause and unreasonably ap and therefore the court noting judge required “that the was [not] fails to direct us plied federal law. Smulls to announce for the record his conclusion any Supreme holding Court case biased, juror a trial court to requires the Constitution or his [the] reviewing specific fact-findings make reasoning” finding because the was evident Musladin, challenge. Carey record). Batson See v. from the 649, 653, 549 U.S. 127 S.Ct. We do not read the Court’s (2006) (“ ‘[C]learly L.Ed.2d 482 established addressing most recent ease Batson to 2254(d)(1) Federal law in ‘refers to the Louisiana, Snyder hold otherwise. See dicta, holdings, opposed to the of [the — U.S.-, 1203, 170 128 S.Ct. L.Ed.2d Supreme] Court’s decisions as of the time (2008). Snyder, In the Court refused ”) of the relevant state-court decision.’ that the presume trial court credited the (quoting Taylor, Williams v. 529 U.S. prosecutor’s representation that he struck challenged juror’s based on the (2000)). fact, federal law has never trial demeanor because the court had required explicit fact-findings following a ju- made no determination concerning the challenge, especially prima where a But, ror’s demeanor. Id. at 1209. a num- acknowledged facie case is and the prose ber of factors led the Court to that conclu- presents specific nondiscriminatory cution First, in Snyder sion. did I, on the record. reasons See Miller-El ruling state whether it based its on the (“We 123 S.Ct. 1029 ad (claimed first proffered reason nervous- proposition here to the that a state court juror), on ness the second need not make detailed address (other pressing reason time constraints— it.”); ing all the evidence before see also teaching responsibilities), student or on (2d Artuz, McKinney v. both, unwilling and the Court was to as- Cir.2003) (“Although reviewing courts sume the trial court relied on the first might preferred have the trial court to reason when the Court found that provide express reasons for each credibili second reason did not stand toup scrutiny determination, ty clearly no established under the deferential standard. Id. at required federal law the trial court to do 1209, Notably, 1212. applied the Court so.”). ruling A trial court’s on Batson the deferential standard to the second determination, challenge is itself a factual reason, proffered which it lacking, found repeatedly upheld rulings and we have though even the trial court made no find- made without additional reasoning. See ings concerning the second reason other Enters., Xpress U.S. Inc. v. J.B. Hunt allowing than the strike. Id. at 1209. Inc., (8th Transp., 320 F.3d 814 Cir. Second, rejected the Court the 2003) second rea- (concluding that the trial court en by prosecutor, leaving son offered in gaged analysis” “a full Batson where juror’s alleged nervousness as the objector challenge, made a Batson strike, potentially valid for proponent of the basis strike offered race- explanation, neutral in parties both were al there was no evidence the record that

861 particular court make reference to the ex- pre-emptively would have prosecutor juror. on his nervous It challenged the based cusal of each is the trial court’s Third, Uttecht, at 1212. the Court ruling ness alone. Id. that counts.” 127 (internal omitted). the strike rejected Here, the second reason for citations 2228 “highly speculative” because was denying challenge, the Batson the trial reasoning the same would have because implicitly found that the prosecu- specific more force to white applied with proffered nondiscriminatory tion’s reasons strike. jurors, prosecutor whom the did not fact-finding were No further credible. was Despite 1211-12. the reversal of the Id. at required. of The absence additional find- in continues Snyder, trial court the Court certainly ings misapplication not a of ... determinations of “recognizef ] clearly Supreme prece- established Court peculiarly lie credibility and demeanor required dent as relief under and, “in judge’s province,” a trial within 2254(d)(1). § circumstances, exceptional the absence the trial Nor does court’s failure the trial court.” defer to [the will] Court explicit findings to make relieve this court omitted). (internal marks In Id. at 1208 obligation of its to view the state trial case, proffered reasons withstand our both findings presumptively correct3 infra, scrutiny, as discussed more detail or empower us order the federal district wheth such that we are not left to surmise court to reconstruct the record.4 Prior to the two reasons alone would er one of AEDPA, presumption of correctness nondiscriminatory. support the strike as 2254(d), §in was contained which listed prose is no evidence here that the There eight exceptions presumption. to the See proffered applied cutor’s reasons 2254(d) (1994), § 28 U.S.C. amended greater jurors force to white who were not Penalty Antiterrorism & Effective Death struck; fact, used the 104-132, 104(4), § Act of Pub.L. No. occupation and demean- same reasons — (1996). AEDPA’s Stat. event, juror. In or—to strike white “jettisoned § amendments Snyder was not established law at previously swept situations which rejection [the] the time of the state courts’ provide presumption.” claim and cannot aside the Valdez Cock Smulls’ Batson (5th rell, Cir.2001), under basis for habeas relief cert. 2254(d)(1). Williams, denied, § 529 U.S. at See 123 S.Ct. 412, 120 S.Ct. 1495. (2002). presumption L.Ed.2d 141 “The place correctness erected in its involving context the dis- related 2254(e)(1), simply provides that un now for cause who are missal “sub- findings petitioner less the can rebut stantially ability in their to im- impaired” through convincing of fact clear and evi pose penalty, the death dence, presumed of fact are those no re- recently explained that “there is I, Id.; to be correct.” see also Miller-El quirement involving in a case the Wither- (Thom- 358-59, appellate rule that a state 537 U.S. at spoonVWitt Court, Snyder, appeal recently which a direct from the 4. As noted later, remand, Louisiana, a decade such a more than change Supreme Court of does not Snyder, S.Ct. at 1212 would be futile. See 128 findings respect to court as the owed state ("Nor possibility that this is there realistic by of a direct mandated AEDPA. On review question profit- subtle of causation could be appeal, Supreme is bound Court not ably explored at this late further on remand required by presumption of correctness date, petitioner’s than a decade after more 2254(e)(1). § trial.”). 862 (“Section 2254(e)(1) if the trial court made

as, J., proceedings. does Even dissenting) did, not, excep error, create predecessor support as its error not legal does procedural for to factual deference tions if court appellate habeas relief the state 2254(e)(1) simply infirmities.... Section correctly Boyd federal law. See applied implied cannot read to contain an slid be (9th Newland, 1139, 467 F.3d 1144 Cir. deference.”) (noting that the ing scale of 2006) (giving deference to California appear not to con majority opinion does correctly Appeals decision that Court view). Thus, regardless of flict with this trial court applied though Batson even the extent of the evidence considered applied higher had state court standard court, may reject the state trial we making prima for out a facie Batson findings only factual if those trial court’s — claim), denied, -, cert. 127 U.S. findings proven “by are incorrect clear and 2249, (2007); 167 L.Ed.2d see S.Ct. 1089 2254(e)(1); § convincing evidence.” see Purkett, 1200- also Elem v. F.3d Luebbers, also Hall v. 341 F.3d (8th Cir.1995) (reviewing appellate state (8th Cir.2003) (“Each step of the Batson court on remand from the Su inquiry involves factual determination Court). preme presumption entitled to a of correctness convincing unless overcome clear and Supreme Court of Missouri evidence.”), denied, 996, 124 cert. correctly three-step articulated the Batson (2004). Our standard, prosecutor’s prof found that the suggestions judges to federal concerning Sidney’s fered reasons oc they are advised to articulate their well neutral, cupation and demeanor were race findings concerning validity of the that the trial concluded court did not reasons, prosecutor’s asserted race-neutral clearly overruling err in chal the Batson see, Fredericksen, e.g., Hopson v. Smulls, lenge. at 14-15. See S.W.2d (8th Cir.1992) (“We strongly Smulls focuses on the suggest judges [addressing that trial Missouri’s citation to Purkett in its discus challenge] make an Batson on-the-record step support sion of the third Batson his ruling stating reasoning appro their improperly assertion that the court con priate underlying references to the facts steps flated two and three. See id. at 15- be.”), are, they as determine them to (noting legitimate reason for “[a] course, binding judges. not on state court exercising peremptory challenges is not presume therefore will the trial court’s We one ‘that makes sense’ but one ‘that does fact-findings to be correct unless Smulls ” deny equal Purk protection,’ quoting present convincing can “clear and evi ett, where 2254(e)(1). dence” otherwise. explained why Eighth the Court had holding prosecu Circuit had erred in “Contrary Clearly B. AEDPA’s Es- high tion to too of a burden at the second tablished Federal Require- Law” step). ment do not construe the We Court Missouri’s discussion or consider Smulls next claims that stopping ation of at step the issue two supreme analysis state of the Bat- or inappropriately applying step-two contrary son claim established step three. three re Step standard supreme federal law because the quires balancing prima the defendant’s fa- steps conflated the second and third step against cie case from one the race- analysis. reviewing state court justifications step neutral offered in two to proceedings compliance with federal law, entirety we of the state met consider determine whether defendant has

863 (11th Cir.2006) (rejecting a that step prov at three of claim the ultimate burden his motives were prosecutor’s that the ing apply state courts failed to the third Bat- discriminatory. Although the Su fact step concluding and that the trial son quoted from of Missouri preme Court rejection challenge of the was itself step-two analy discussion of the Purkett’s — denied, finding), a step-three cert. U.S. that even if it sis, court concluded the -, 127 S.Ct. rea prosecutor’s assumed that some (2007). that By finding the court did nonsensical, that sons for the strike were clearly accepting err in the prosecu jus not establish that the did reasons, tor’s the Court of Mis inherently pretextual, tifications were third properly applied step souri step at defendant’s burden which is the analysis. Batson Rice, at 126 S.Ct. three. See habeas court can (noting that federal argument, In a related Smulls claims on Batson petition based grant clearly that the trial court violated estab- for the only if it was unreasonable state by placing lished federal law an undue credit the raceneu court to on the defendant to establish the burden Bell-Bey Roper, v. explanations); tral venireperson race of each and then avoid- Cir.2007) (“[T]he (8th F.3d 757-58 ing challenge Batson when the defense the state at trial court’s conclusion [that] allegedly imposed failed to meet the bur- nondiscriminatory rationale torney’s However, den. it is evident from the rec- (without argument further persuasive trial court ord that the state was informed defense]) contrary to was not [from Sidney only that Ms. was the black venire- [W]hen federal law.... established rejected it the Batson person when first necessary credi the trial court makes the determination, we defer to that rul bility challenge. represented The defense to the ” ‘nothing and there is left to review.’ ing person black court that she was the 339-40, I, (quoting Miller-El 537 U.S. qualified group venirepersons of 30 1029)). challenged the and when it first strike above, challenge the denial of a it again we discussed when renewed As challenge finding is itself a at the following morning, and no time did car that the defendant failed to step third that fact. The prosecution dispute ever establishing ry his burden the trial court record shows when by purposeful motivated dis strike was objection, the Batson did so ruled on York, Hernandez v. New crimination. See presented to this based on “what was 352, 364, Court,” defense counsel’s which included (1991) (“In Batson, [the L.Ed.2d 395 Su composi- the racial representation about explained that the trial preme Court] (Appellant’s qualified tion of the venire. question the ultimate court’s decision on 18.) short, the trial court con- App. at finding discriminatory represents intent cir- challenge and the related sidered ....”) (plurality opinion); Messiah of fact arguments, including its cumstances Cir.2006) (2d Duncan, v. 435 F.3d Sidney, made its of Ms. observations (holding that the trial court fulfills its in two ruling it made four times ruling, third-step “duty rule” on the Batson claims that days. To the extent Smulls a clear intention to analysis “by expressing by plac- violated federal law the trial court reject listening after uphold or strike on the defendant to ing high too a burden explanation the race-neutral challenge, venireper- the race of the other establish parties”); High arguments and the sons, reject the claim. respectfully 1072 n. 9 we Terry, tower Further, 338, the was allowed to re- challenge.” defense the Batson Id. at spond prosecutor’s proffered “Moreover, to the rea- S.Ct. 969. ... our deference argue sons and the stated reasons trial fact-finding doubly great to court pretextual. the trial court did were While considering challenges when be- initially deny the motion for a mistrial unique cause of the awareness the [on proffered race- following the totality of the trial of the court] striking Sidney, neutral reasons for surrounding circumstances voir dire.” immediately the trial court allowed the Luebbers, 929, Simmons v. 299 F.3d ample opportunity defense to make its ar- (8th Cir.2002) (internal omitted), marks gument that proffered the reasons were cert, denied, 923, 1582, 538 U.S. 123 S.Ct. pretextual. The trial court did not limit (2003); Uttecht, 155 L.Ed.2d 314 see also Rather, it the defense. allowed the de- (noting 127 S.Ct. at 2224 the deference due make, fense to make record chose to a trial in assessing court “the demeanor of arguments, considered the and then denied venire, and of the who individuals com- the motion. The defense then asked that it, pose importance factor of critical disallowed, peremptory strike be which assessing qualifications the attitude and trial following court overruled. The potential jurors”); Hightower Schofield, day, again the defense raised the Batson (11th (ac- 1008, Cir.2004) 365 F.3d 1034-35 challenge. The trial court allowed both cepting Georgia trial finding, court’s parties to supple- address the issue and elaboration, without further that the defen- ment the record. The trial court once dant purposeful failed to “establish dis- again challenge, denied the but after provided crimination” where the defendant again listening once to arguments no evidence to the trial court to discredit by made counsel. Given this extensive prosecutor’s proffered justifications, record, the trial court cannot be criticized leaving the trial court free accept to failing for to afford an oppor- the defense (internal prosecutor’s reasons at face value tunity respond, nor can it fairly be omitted)), marks and by brackets vacated failing criticized for to consider the rele- 545 U.S. 125 S.Ct. 162 L.Ed.2d vant circumstances raised the attor- (2005), neys. reinstated 459 F.3d (11th Cir.2006). C. AEDPA’s “Unreasonable Determi- AEDPA, just Under it is not nation of the Requirement Facts” trial presumed are Smulls also claims that be correct. presumption, The codified Missouri courts’ denial of his Batson claim pre-AEDPA 2254(d), §in applies to factu an involves unreasonable determination of al determinations appellate made the facts based on the evidence contained Mata, court as well. Sumner v. in the record. The deference owed to the 539, 547, 2254(e)(1) pursuant state trial court (1981) omitted). (subsequent history includes deference to credibility its deter statute “makes no distinction between the minations. A federal only grant court can factual determinations of a state habeas relief if credibility the state court’s appellate those of a state court.” Id. objectively determinations were unreason 101 S.Ct. 764. As we noted in Rice, able based on the record. See Jones, (8th Jones v. 338-39, 842-43 “Thus, U.S. at 126 S.Ct. 969. Cir.1991), requires federal “Sumner us to only grant habeas court can also [a] petition if it was consider whether the [appellate unreasonable credit the court] explanations race-neutral made finding regarding of fact carriers, people mail letter carriers and challenges.” See peremptory prosecutor’s Bowersox, 241 F.3d for the with also who work U.S. Post Office Weaver Cir.2001) (8th (noting that factual ”).) Thus, the great suspicion.... prosecu- courts are by appellate made state findings falsely Sidney tor did not state that Ms. of cor- presumption the same entitled to worker, accurately service but postal was courts). findings of state trial rectness as recognized that she for worked Monsanto. of Missouri considered Supreme The Court also prosecutor compared The Ms. Sid- by shown the trial court the circumstances Dillard, ney to Ms. white whom he prosecutor’s that the and concluded record occupa- struck based on her mail-related to be type typically were the found reasons tion. The Court Missouri and that the trial court did race neutral comparison support found this the trial denying challenge. in the err prosecutor court’s determination that the court also noted that the supreme justification had a valid race-neutral for Sidney sup- of Ms. was prosecutor’s strike striking Sidney. Although Ms. Smulls Dillard, of Ms. a simi- ported by his strike ju- points to differences between the two venireperson struck on larly situated white rors, “similarly purposes situated” for postal as a occupation the basis of her justifying peremptory the use of strikes and her confrontational demeanor. worker findings, require similarity respects. does not in all In addition to the trial court’s by these unanimous the jurors products are not of a “[P]otential are likewise entitled Court Missouri II, 545 set of cookie cutters.” Miller-El deference, presumed and are substantial (“None U.S. at 247 n. 125 S.Ct. 2317 unless clear and be correct rebutted our cases announces a rule that no com- convincing contrary. to the evidence parison probative is unless the situation of compared the individuals is identical in all in points Smulls to evidence respects, accept and there is no reason to allegedly record that indicates that one.”). enough The two are similar prosecutor’s proffered pre- reasons were say that cannot on this record that the we Specifically, points Smulls out textual. Sidney’s Sidney manager prosecutor’s as a stated reason —Ms. that Ms. worked mail Corporation’s Monsanto distribution racial dis- occupation pretext for —was department postal rather than as service crimination. allegedly characterized worker as Sidney’s occupation, In to Ms. addition prosecutor. A close examination of the demeanor, listed her which prosecutor his record reveals that Smulls overstates face interpreted glare he from a on her instance, prosecutor recog case. For answer, justifi- and an irritated as further Sidney worked for Monsan nized Smulls cites no Su- cation for the strike. his for explained to when he first reasons prose- that a preme requiring case striking her. He also noted that she justification based on demeanor cutor’s department, in the mail which he worked by evidence on supported must be postal service workers who equated accept can judge the trial record before (See lack generally he asserted ambition. Rice, the trial court justification. (“[Ms. Sidney] Appellant’s App. at 14-15 justification accepted that she is a mail sorter indicated juror’s demeanor challenged on the based That mail Company. Monsanto she sorts (a to a rolling eyes response 5,000 for, said, people.... I believe she court) though even question from the my experience years in the nine It’s been negative court itself did not witness I treat that I’ve been a Ninth appeal, the Circuit mail sorters and as demeanor. On people who work as I, 338-39, that the trial court unreason- ler-El determined justification ably credited the Typically, question the decisive negative for a the claimed strike where whether judge pros should believe the demeanor not corroborated explanations. ecutor’s race-neutral There Rice, record. Collins v. issue, is seldom much evidence on the “and (9th Cir.2003). In reversing, 1095-96 the the best evidence often will be the demean- gener- Court held that “the most or attorney of the who exercises chal the reading suggest ous the would [of record] lenge. As with the state of mind of a only that the trial court had reason to juror, evaluation of the prosecutor’s state question the prosecutor’s credibility re- of mind based on demeanor and credibility garding alleged improper Juror 16’s de- ‘peculiarly judge’s prov lies within a trial Rice, meanor.” 546 U.S. ” ince.’ Id. at (quoting S.Ct. 1029 969. “[reasonable Where minds review- Witt, 844). 428, 105 ing might the disagree record about the prosecutor’s credibility, ... habeas review perspective From the of the defer supersede does not suffice to the trial given ence to the state trial court in as credibility court’s determination.” Id. at sessing prosecutor’s credibility, the this 341-42,126 S.Ct. 969. case is indistinguishable from Rice and prose Smulls also claims that the Hernandez,5 Hernandez. In prosecu the cutor previ lied when he said that he had tor Spanish-speaking said he struck problems postal ous service workers veniremembers an interpreter because juries, serving on when in fact postal trial, would be used at and he was afraid service worker in the specifically case he that Spanish-speaking jurors would not de convict, referred to though voted to even fer to interpreter’s the translations. the case in hung jury. Regardless ended U.S. at 111 S.Ct. 1859. The strikes prosecutor of whether the lied or instead in resulted the removal of several Latinos merely was postal mistaken about the ser from jury the of a Latino defendant. Al vice in specific worker’s actions the prior though the argued defendant the referred, case to which he up it was the prosecutor’s merely reasons were an ex judge court to his credibility and de Latinos, striking cuse for the termine accept whether to proffered his Court refused to overturn the state trial striking Sidney. reasons for While acceptance of prosecutor’s jus the this discrepancy disclosed the later es tification for the strikes or. its ultimate tablished record may give a reviewing determination that prosecutor’s strikes court reason question prosecutor’s racially were not motivated. Id. at justifications, compel it does not such a (“[W]here 111 S.Ct. 1859 there are two conclusion. critical in question “[T]he de permissible evidence, views the fact- termining whether a prisoner proved has finder’s choice purposeful between them cannot be step discrimination at three is (internal persuasiveness clearly prosecutor’s jus erroneous.” marks omit ted)). tification for peremptory his strike.” Mil- I, a was direct criminal appeal. review of direct criminal Hernandez Miller-El Cf. (Thomas, J., Appeals’ rejection New York Court of U.S. at 359 n. 123 S.Ct. 1029 ("Hernandez's dissenting) defendant’s Batson claim. 500 U.S. at clear-error stan- respect demanding S.Ct. 1859. The owed to dard is less of a criminal defen- 2254(e)(1) state court in the habeas context is dant appli- than is of a habeas greater cant.”). than the deference owed them in venirepersons was shown to Rice, qualified determined black Ninth Circuit accept- convincing erred erroneous clear and evi- be state justifica- dence, race-neutral including prosecution’s use of

ing tions, shuffle,” because “jury disparate venire ques- juror’s young age on the reliance jurors, posed tions to black and white com- record, which estab- by the contradicted similarly situated black and parison of jurors was that one of the stricken lished jurors, practice white and the admitted and also because grandmother, County Prosecutor’s the Dallas Office an originally gender, relied on juries). removing minorities from This in itself. See impermissible basis strong case contains nowhere near the cir- misgiv- Despite these F.3d at 1094-95. present evidence in Miller-El cumstantial had a prosecutor the ings about whether to compelled Supreme II that the Court jurors, striking for the race-based motive conclude that the trial court made an un- Ninth reversed the the Court of the facts when reasonable determination rejection of the trial court’s Circuit’s upheld peremptory the ten strikes. “Reasonable credibility assessment. purpose progeny The of Batson and its might dis- reviewing the record minds attorneys that trial not is to insure do credibility, prosecutor’s the agree about prospective strike for unconstitu- review that does not suf- on habeas but tional reasons. The state trial court’s ill- trial court’s credi- supersede to the fice day advised comments made on the second Rice, 546 at bility determination.” prosecutor’s proffered do not make the 341-42, The is true 126 same S.Ct. neutral, they reasons race and less in the record discrepancies here. While bearing on whether those reasons have no prosecu- about the may question raise faith. id. at good were asserted Cf. motive, they overwhelm- are not so tor’s (noting prose- that it is the S.Ct. that “leave us with ing they in this case for the strike that is cutor’s actual reason and firm conviction that mis- a definite the challenge, relevant in a Batson and Hernandez, has been committed.” take could come Appeals fact that the Court (plurality 500 U.S. at the justify to up with a substitute reason omitted). (internal marks The opinion) satisfy prose- the nothing “does to strikes credibility trial determina- state court’s stating racially neu- burden of cwtor[]s concerning prosecutor’s the stated tion for own actions.” explanation [his] tral must stand on habeas review. reasons added)). pros- note that the (emphasis We fact the argues that the Smulls the initial rea- wavered from ecutor never juror struck the black prosecution court. From presented sons he prosecutor’s stated establishes that justify time he was asked the first alone, That fact pretextual. were reasons Sidney, prosecutor stated strike of Ms. however, together considered when Sidney based on her that he struck Ms. whole, provide the record as a does demeanor, reasons he occupation and her necessary to convincing and evidence clear juror. also to strike white used of correctness af- presumption rebut trial court’s and the supports record determinations, to the state courts’ forded acceptance of Missouri’s Supreme Court con- supreme the state particularly reasons, present failed to these Smulls has strike was prosecution’s clusion that to the con- convincing clear and evidence II, Miller-El race neutral. Cf. regrettable sub- trary, the trial court’s 262-66, (holding change that do not sequent statements acceptance of the state court’s fact. ten of the eleven explanation striking for summary, affirming the state courts’ Batson from the decision the denial of contrary to and did not

ruling was not challenge. Smulls’s Batson I concur in the application involve an unreasonable of majority’s denial of his claim of ineffective prece- established assistance of counsel. dent, an nor was it based on unreasonable light determination of the facts I presented to the state evidence courts. trial, During jury selection Smulls’s grant permitted We are not habeas objected defense counsel to the prosecu- prisoner might relief to a state because we peremptory challenge tor’s exercise of a objec- differently have ruled on the Batson Margaret Sidney jury. remove from the tion, of initial nor do we sit as a court Sidney Counsel identified as African- judges. Applying review over state trial American argued provisions AEDPA’s restrictive review challenge violated Batson. The (both applicable as to the law and as to the offered the courts), following explanation for the facts found state the dis- correctly challenge: trict court denied Smulls’ petition challenge. based on the Batson Judge, I made nine I strikes. did strike As for Smulls’ Batson —related ineffective who, Sidney guess, I claims, original assistance of counsel My the record was a black female. panel unanimously agreed that those striking Sidney reasons for Ms. are merit, claims were without and we rein- upon based both what I during observed panel opinion state the to the extent that it our upon my experi- voir dire and based affirmed the dismissal of those claims. lawsuits, trying ence in criminal which Smulls, See 467 F.3d at 1116 n. 2. has in exceeded cases this courthouse including several eases before this Court III. years in the I nine that have been a The district judgment denying court’s prosecuting attorney. My concerns with petition Smulls’ 2254 is affirmed. Sidney began yesterday. Ms. Ms. Sid- ney very was silent all of during BYE, Judge, with Circuit whom questioning. point I observed at one SMITH, Judge, joins, concurring Circuit in my during questioning concerning the in dissenting part. and death penalty glare on her face as I The deferential standard of review questioning that area. She was called for the Anti-Terrorism and Ef- row, believe, in yester- seated the back I (AED- Penalty fective Death Act of 1996 day. I directly When looked at her and PA) requires neither permits nor us to asked that question, last row a she fidelity sacrifice principles constitutional eyes averted her and wouldn’t answer Today the altar of federalism. the ma- my question and wouldn’t look at me. jority this principle eschews bedrock and very That only made me nervous. The deems the state trial flagrant disre- response I get was able to out of Ms. gard of Batson v. Kentucky, 476 U.S. Sidney today was when I asked her (1986), about her occupation. At first she re- constitutionally sound. In doing, so sponded I though with what [sic] was court places imprimatur upon its a consti- very irritated answer. She indicated tutionally flawed process which will ulti- that she is mail sorter for Monsanto mately lead to Herbert Smulls’s death. for, Company. Because I cannot That she mail I condone the actions of sorts courts, I respectfully said, Missouri dissent people. believe she And her my interpretation, I’ve had bad re- office. And post for the husband works why him as custodian. I struck her. I she listed sults. And that’s believe nine in the my experience It’s been Appellant’s App. at 14-16. I I’ve been a years that from permitting any response Without as mail who work sorters people treat lawyer, the trial court overruled Smulls’s carriers, letter carriers and as mail counsel challenge. the Batson Defense Post Office work for the U.S. people who however, argued: persisted, they in that have great suspicion all, attorney First of I’ve been a trial as many my experience generally—-in has, trying many he cases as long as very had—are dis- trials that I’ve any type and I detect he has didn’t sys- unhappy people with gruntled, Sidney. Secondly, he attitude from Ms. every effort to strike tem and make during said she remained silent his my experience prosecutor, as a back. during qualifica- the death questioning I’ve had several trying cases where jury, ques- He didn’t ask her a direct people mail on the tion. cases and left jury. The hung result in a silent had them tion. Numerous remained was a murder case most recent of which during question his death because he September, last State in this courthouse questions. ask them direct Ms. didn’t Ruff where (phonetically) versus Dana He ask Ms. Uhlmansiek Beeson. didn’t hung holdout for a mail carrier was the questions although he did strike her. in- jury in that case. I also have several female, Linn, who is a white she postal employees laws who are totally I’m the remained silent. though they are department and even than who talked to her at all other one relatives, I share the same somewhat municipali- Copper asking Mr. her what I treat them with opinion of them. So in, ty lived he did not strike her. she but at me suspicion. glared When she great numerous and the record will So attitude, in- just general which and her that, during Mr. remained silent reflect I yesterday, outfit —which cluded her to- questioning. again Once Waldemer’s believe, today included a beret her occu- day when he asked her about it, just I felt sequins on cap a ball any kind of ani- I did not detect pation good states [sic] that she wouldn’t be clothing I mosity part. on her think the juror in juror. Certainly, strong not a [sic], I clearly pretextural are reasons death, get should we the consideration that there is a case where there think I trial. And also part to that of the juror on the basis of look- was a struck that I out for the Court point would called a like what ing eight, number Ms. Dillard. juror struck that to the Court found ‘due debt.’ And very same reason I struck her for the and sent it back. pretextural [sic] be works a letter carrier and that she is Louis, City in the of St. That occurred her though mail. And I delivering [sic] name of the case. I don’t have the but IAnd attitude was also confrontational. being postal work- regard to her With that her answers were ones did not feel er, has mentioned Mr. Waldemer give believing rise to me she that would employment they’re at the bottom juror. strong [sic] states would be postal workers rung. I think a lot out, Dillard, a white point I would Ms. they’re fed- money, more because make virtually I her for female. And struck people a lot of who employees, than eral my experi- It’s been the same reasons. he jury duty. He said in here for come on postal that when I left workers ence was a attitude, Dillard because she on struck Ms. an based who seem to have postal worker. She also indicated she complexioned some dark people on this case, knew the victim in this Florence jury. I don’t know if that them makes honest, perfectly Honickman. And to be said, black or white. IAs I don’t know might I would think that the state have what ago they constitutes black. Years concerns that she wouldn’t like Mrs. say used to drop one of blood constitutes Honickman based on Mrs. Honickman’s black. I don’t know what black means. demeanor and based on comments that somebody enlighten Can me of what Mr. Waldemer made about Mrs. Honick- know; black I is? don’t I think of them very man. So that could have well been people. as I responses listened to the striking of the reason for Dil- Ms. Ms. Sidney. I watched her attitude lard, being postal other than her em- very briefly been, it may have ployee. ISo feel that his reasons were going I’m not to say you sit here and to pretextural [sic]. Sidney is not black. But I’m Id. at 16-18. going to judgment make a as to

In a decision shorn of findings articulat- anybody was, whether panel else on the ing any basis, reasoned the trial court event, in any so I’m merely telling you overruled the challenge. The fol- that for the record. I’d rather not even lowing morning, attorney Smulls’s re- But, discuss on the record. newed the Batson challenge and the fol- event, I’m going deny your motion for lowing colloquy occurred: a mistrial on the basis stated. Are we

MS. KRAFT: I Judge, believe I stated ready proceed? yesterday on the record when I made Id. at 26-28. my Sidney record that Ms. was the appeal, On Supreme Court, Missouri remaining black out of the 30. without commenting on the absence of THE COURT: You made that state- support the trial court’s deci ment. sion, upheld the denial of the Batson chal Okay. MS. KRAFT: lenge. The court concluded the trial court see, THE COURT: You I prob- have a “[rjeasons did not err because such lem. I don’t know what it is to be black. as these have been found support I don’t know what constitutes black. ruling that a trial court did not never, Court, And I in this no matter err[,]” and assuming prosecu “[e]ven any what appellate may say, I tor’s reasons for challenging mail sorters judicial never take anybody notice that postal and non-sensical, workers are this black or that person one or four does not establish the reasons are inher persons or eight persons are black. ently Smulls, pretextual.” State v. That to me is something that I don’t (Mo.1996) 9, 15 (en banc). S.W.2d think this enough Court is wise any or other appellate court enough is wise un- II less there is direct evidence as to who is As the majority correctly notes, our re- black and who is white and who is of view Smulls’s governed claims is by orange and purple. who is I do not AEDPA, may and we any grant under not a writ circumstances this division judicial corpus ever habeas respect any take notice of the issue number people who are black. I decided And believe Missouri courts unless the that’s responsibility to, counsel’s decision prove contrary “was or involved an who is black and who of, isn’t or who application is a unreasonable clearly estab- minority and who isn’t. law, There were lished Federal as determined 2254(d)(1), he was mistaken about his earlier though 28 U.S.C. Supreme Court.” trial, identifies worker voted (2). correctly postal believed a majority also The Therefore, Kentucky, 476 U.S. the district conviction. against Batson v. (1986), as clear- 90 L.Ed.2d appli- 5.Ct. the Missouri courts’ court concluded I precedent. federal ly established law was not unreasonable. cation of federal however, majority’s ap- with the company, argues also the district Smulls to the salutary precepts of these plication rejection challenge was erro- of his this case. issues trial court failed to neous because the Protection Clause Equal The support factual make using prohibits Constitution United States at him Sidney “glared” claim prosecutor’s challenges to exclude peremptory questioning. or acted “irritated” Batson, 476 U.S. of race. on the basis Smulls, defense counsel dis- According prove purposeful To alleged observa- puted prosecutor’s peremptory of a in the use discrimination should re- tions and the trial court have make a must first a defendant challenge, dispute on the record. Smulls solved the racial discrimination. facie case of prima side-by-side comparison argues also made, must showing is the state If such im- venireperson Dillard was Sidney and for the explanation race-neutral suggest a Dillard knew the victim proper because explanation is if a race-neutral strike and was, therefore, similarly situated. and offered, court must decide wheth- the trial the trial court nor again, Once neither has objecting to the strike party er chose to ad- the Missouri Purkett discrimination. purposeful proved arguments these on the record. dress Elem, 767, 115 S.Ct. findings but court noted the lack of district (1995); States v. United 131 L.Ed.2d defense rejected arguments because Cir.2001). (8th Jones, 245 F.3d “neither confirms disagreement counsel’s stated argues prosecutor’s Smulls Sidney poor had a nor denies that Ms. they because were pretextual were reasons concluded The district court demeanor.” by the record. unsupported to or contrary the trial record did not make the barren characteriza- He claims the or the Missouri court’s decision or “mail Sidney as a “mail sorter” tion of I dis- affirmance unreasonable. Court’s because the record carrier” was erroneous agree. manage- a member of Sidney shows Monsanto, and, among other dismayed perfunctory at the ment I am duties, employees responsible trial court supervised cavalier manner which distributing mail. Addi- “In sorting challenge. Smulls’s Batson dismissed tionally, argues Smulls the defendant has made deciding whether hung jury a had been previous claim that showing, the [prima facie] requisite factually inaccu- is by postal employee a cir- all relevant trial court should consider rate.6 Batson, 96, at 476 U.S. cumstances.” the need emphasized have S.Ct. 1712. We and the Missouri the trial court

Both findings on the record detailed ] to “make[ fac- analyze these failed Supreme Court ruling peremptory a on a support in of The district the record. disputes tual on Moran v. Batson.” challenge under findings the lack of but court took note of Cir.2006) (8th 646, Clarke, 443 F.3d was aware prosecutor concluded the Enter., Inc., v. J.B. and, Xpress (citing even U.S. job description Sidney’s actual was inaccurate. claim concedes 6. The state (8th Inc., correctly analyzed Transp., challenge Hunt Cir.2003)). entirely is consis Such view impossible when it is to divine the court’s Supreme tent with established reasoning. Snyder, prosecutor Id. stressing importance precedent Court striking ju- offered two reasons for carefully trial all courts to consider ror —nervousness and pressing time con- Batson, bearing evidence on the issue. straints, id. at and the 96, 106 Further, 476 U.S. S.Ct. rejected challenge a Batson expla- without intent, discriminatory to the issue of “Bat- nation, id. 1209. The requires judge son assess the any concluded was unable to conduct in plausibility prosecutor’s] reason [the meaningful proffered review of the first light bearing all on it.” evidence with (nervousness) reason because “the record Dretke, Miller-El v. 545 U.S. does not judge actually show the trial 2317, 2331-32, S.Ct. 162 L.Ed.2d 196 made a concerning ju- determination [the (2005) (citation omitted). “In deciding if demeanor.” Id. at 1209. ror’s] Unlike the defendant has carried his burden of decision, today’s recognized the Court persuasion, a court must undertake a ‘sen a paucity findings by the trial court inquiry sitive into such circumstantial and judicial impossible, made review and re- may direct evidence of intent as be avail ” engage fused to in the perverse reasoning Batson, able.’ 476 U.S. at 106 S.Ct. by today’s enshrined decision which con- 1712 (quoting Arlington Heights v. Metro. unreasoned, cludes an unexplained denial 252, 266, Housing Corp., Dev. implies process. a deliberative (1977)). The majority’s invocation of AEDPA’s deferen majority attempts Snyder to avoid tial standard of review does not alter the by arguing it need not decide in this case nothing fact that of the sort occurred what reasons the trial court credited be- this instance. Because the trial record is justify cause all would the challenge. This reasoning, meaningful bereft of review argument ignores Snyder. The issue is impossible. our court is reason, not whether proffered if veri-

Any doubt impact about the the failure fied, would withstand a Batson challenge. findings ability to make has on our Indeed, had the Court been able to con- meaningful conduct appellate review is juror firm Snyder appeared ner- confirmed recent Court’s vous, the trial court’s denial of the chal- — Louisiana, in Snyder decision lenge likely would have been affirmed. -, 170 L.Ed.2d 175 Rather, inquiry is whether the trial (2008). There the “pre- Court refused to proffered court found the reasons had a sume that the trial judge credited the basis in fact. If an adequate otherwise striking [asserted reasons for basis, reason has no factual the strike is juror]” because no record findings had pretextual. The record here reflects the majority’s been made. Id. at 1209. The competing prosecu- views offered attempt Snyder to blunt the effect of is tion and defense but is of no assistance in singularly unpersuasive. argues Snyder It determining factually which was correct. distinguishable because the In adhering principles, to these I refuse to striking offered two reasons for ignore the lack of and the trial and the record did not reveal whether the court’s stubborn refusal apply to Batson. one, other, trial court credited or a Finally, majority aside Sny- combination of brushes both. The distinction is by finding irrelevant. der it Snyder clearly teaches that an was not appel- estab- late presume” court “cannot a trial court lished at the law time of the state courts’ however, My disapproval today’s of decision is not Snyder, in Nothing decisions. solely establish the trial court upon intended to based what the Court suggests chal- reviewing Rather, say to on the record. I new standards failed Thus, changed nothing; it Snyder lenges. because the trial court would also reverse prin- the unremarkable simply recognizes expressly recognize refused to and assess court cannot review appellate that an ciple required by all circumstances as relevant never findings or court a decision federal law. de- established When made. attempted fense counsel to establish for only Sidney the record was the black conclusively establishes

Here the record remaining jury pool, in the the trial court make trial court refused to acknowledge refused to or inexplicably antic process in the evaluative engage jury composition consider the racial of progeny. Initial ipated by Batson its “I pool. don’t know what constitutes challenge without ly, the court denied the never, Court, in black. And I this no an affording opportunity defense counsel may say, any appellate matter what court racially-neutral reasons of to rebut Later, in judicial anyone un I take notice that is prosecutor. never fered to person per- the court refused or four equivocal language, black or one jury composition racial of the consider the black.” Instead eight persons sons or are any challenge ap to pool, issuing direct composition jury of the considering of temerity pellate possessed of prec- pool, as mandated Court Finally, of the dearth suggest should. edent, upon the imposed the trial court deci reasoning in the trial court’s reflected impos- an if not unprecedented, defendant nothing to review. See Hard sion leaves sible, burden: (3d Horn, 246, 259 Cir. castle v. 368 F.3d something that I don’t That to me is 2004) (‘[Sjome the evi engagement with enough or think this Court is wise necessary is dence considered enough un- appellate other court is wise inquiry,’ and re step three of the Batson who there is direct evidence as to is less terse, comment abrupt than a quires ‘more who is white and who is black and ’) that the has satisfied Batson. I do not orange purple. and who is Taylor, 277 F.3d (quoting Riley v. any circumstances this division under (3d Cir.2001) (en banc)); Barnes 290-91 judicial notice of the number ever take Cir.1999) (2d Anderson, 202 F.3d And I people who are black. believe trial court (ordering a new trial where the prove responsibility that’s counsel’s explicit challenge a Batson “without denied or who is a and who isn’t who black credibility non adjudication of the of the minority and who isn’t. for the explanations movant’s race-neutral at 27. Appellant’s App. strikes.”); challenged and United States v. court,- how a trial comprehend I fail to (6th Cir.1998) (re Hill, challenge, pur- a Batson can faced with ... indicates manding where “the record properly obligation fulfill its port thought nothing about the district a claim with- the merits of such evaluate abrupt con apart ... from its processes prospective taking out the race that the asserted clusion Further, may trial court account. into justification outweighed defendant’s] [the demanding propo- not avoid Batson circum showing totality under the stances.”). meet a burden reasons, challenge nent of the I would For these support which finds no proof of habeas the district court’s denial reverse stated, The trial court precedent. relief. it would not an- Ill language, in unmistakable challenge and dared alyze Batson Smulls’s to con- Because the trial court refused any appellate court to hold accountable. all re- sider relevant circumstances as majority from Remarkably, shrinks law, quired by clearly established federal trial court’s challenge, concluding unexplained its unreasoned and decision clearly expressed contempt for constitu- the normal presump- cannot be accorded proves prose- it found the principles tional Moreover, tion of correctness. the Mis- cutor’s reasons credible. The evidence is souri Court’s conclusion the trial trial court abdicated its unshakable —the properly court acted was an unreasonable Batson and I find responsibilities under application established federal majority’s no in the difficult rea- comfort precedent. To hold our otherwise renders myself with soning. align I will not accept role a sham and I refuse to an repugnant view that brushes aside interpretation appellate review which challenge treatment of Batson Smulls’s relegates a legal us to the role of rubber and excuses the trial court’s conduct and Therefore, stamp. respectfully I dissent “ill-advised,” justified, comments as albeit judg- and would reverse the district court’s expressions of “frustration.” denying petition ment Smulls’s for habeas The trial court’s actions and comments corpus. deeper are indicative of a problem. The trial court’s initial failure to afford defense opportunity respond

counsel an to the reasons, racially-neutral

complete findings, lack of pro-

court’s refusal to consider the race of evidence,”

spective jurors absent “direct

combine to demonstrate the court was URBAN HOTEL DEVELOPMENT

openly hostile chal- towards COMPANY, INC., Appellant/Cross- lenge unwilling engage in the sensi- Appellee, tive inquiry into circumstantial and direct required. Xpress evidence as See U.S. Enter., Inc., (noting 320 F.3d at 814 n. 4 PRESIDENT DEVELOPMENT under certain circumstances the “lack of GROUP, L.C., President Hotel Inves specificity in a trial court record to demon- tors, L.C., Hotel, L.C., President Ron compliance analysis strate with the Batson Jury, ald D. Trustee of the D. Ronald may require remand for further find- Jury Trust, 45, L.C., Appel and Plaza Thus, ings.”). our court is not constrained lee/Cross-Appellant. by the normal presumption correctness in favor of the trial court. Nor must we 07-2228, Nos. 07-2320. overlook the Missouri Court’s re- of Appeals, United States Court judicial sort alchemy transforming Eighth Circuit. the trial court’s refusal to consider the claim affirming. into a reasoned basis for Submitted: March 2008. Today’s incorrectly decision affirms the July Filed: privation state’s of Smulls’s constitutional rights illusory already and renders

tenuous protections afforded under Bat-

son.

Case Details

Case Name: Smulls v. Roper

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 29, 2008

Citation: 535 F.3d 853

Docket Number: 05-2456

Court Abbreviation: 8th Cir.