Walter J. Blair v. Bill Armontrout, Walter J. Blair v. William Armontrout William Webster

GIBSON, Judge, Before JOHN R. Circuit HEANEY, FLOYD R. GIBSON and Senior Judges. Circuit GIBSON, Judge. JOHN R. Circuit Walter appeals J. Blair from an order of the district denying corpus court1 relief (1988), under 28 U.S.C. § his motion judgment for relief from under 60(b)(6). Fed.R.Civ.P. urges five grounds appeal, on but we will devote ex- tended only discussion to one issue: Blair’s claim that striking African Americans from his jury panel right violated his protection guaranteed by of the law Fourteenth under Amendment Swain v. Alabama, 380 U.S. (1965).2

L.Ed.2d affirm We the district Wright, 1. The Honorable Scott O. Senior United 2. The Court overruled Swain in Batson Judge States for the District Western District of Kentucky, (1986). Missouri. L.Ed.2d 69

H33 Fifth, him after his arrest in violation of his and Blair’s of the writ court’s denial Sixth, rights; Amendment 60(b)(6) Fourteenth motion. (2) failure to instruct the the trial court’s capital murder as Blair was convicted first- jury on the lesser-included offense of Allen, Kathy death of Jo a result of the murder, degree felony and the Missouri testify victim as the was scheduled who denial of this on Court’s claim Larry Jackson. rape trial of Eighth direct violated his and Four- affirmed Blair’s Supreme Court rights; Amendment teenth of death.3 and sentence State conviction State failed to disclose to the a claimed banc), (Mo.1982)(en Blair, 638 S.W.2d 838, promise leniency to witness Ernest denied, cert. pending charges, on in violation of Blair then filed a Jones Mo. post-conviction rights process relief under to due and motion for Blair’s holding hear Rule 27.26.4 After a Sup.Ct. protection. The district court held that relief, ing, the circuit court denied claims these three were successive because Appeals of for the the Missouri Court and raised in Blair’s first the claims were habe- Missouri affirmed that District of Western thus, petition, procedurally and barred. State, 683 S.W.2d 269 judgment. Blair v. Armontrout, Blair v. Nos. 85-0155-CV- for petitioned Blair then (Mo.Ct.App.1984). 87-0302-CV-W-5, W-5, slip op. at 15-16 corpus relief under 28 U.S.C. 1992). (W.D.Mo. Feb. relief, The district court denied 2254. § The district court also considered Blair’s Armontrout, F.Supp. 643 785 Blair v. (1) remaining prose claims that: three (W.D.Mo.1986),and we affirmed. Blair v. injected prejudice cutor racial into his clos Cir.1990). Armontrout, (8th 1310 ing argument Eighth of the and violation petition rehearing, denied Blair’s We Amendments; (2) Fourteenth Blair received peti Court denied Blair’s — ineffective assistance of counsel because U.S. -, for certiorari. tion his trial counsel failed to interview and (1991). 89, 116 L.Ed.2d 62 witnesses, present testimony of two pending Blair’s first While (3) prosecutor used court, pro peti this Blair filed a se before challenges remaining all the Afri to strike corpus. Blair tion for writ of habeas jury, in violation can Americans from constitu sought review of his exhausted equal protection guaran right of Blair’s alleged appointed he tional claims which Amendment under by teed the Fourteenth appellate omitted from his habeas counsel Swain, 85 S.Ct. 824. his consent. The district petition without held that these three claims district court peti that this second habeas court ordered raised they were not were abusive because abeyance until this court tion be held op. at petition. Slip in Blair’s first habeas decision. Blair v. Armon rendered its —Zant, U.S. -, (citing McCleskey v. 87-0302-CV-W-5, trout, Order No. 1454, 1468, 113 L.Ed.2d 2, 1987). (W.D.Mo. July After this court (1991)). considered The district court then the district court’s denial affirmed procedural de Blair could avoid whether petition, Blair moved Blair’s first habeas showing cause for by fault of these claims of claims and for relief for a consolidation peti failing in his earlier to include them judgment court’s under from the district prejudice from the exclusion tion and 60(b)(6). The district court Fed.R.Civ.P. claims, establishing a “fundamental by hearing consolidated the conducted Slip op. at 10-14. miscarriage justice.” presented six petitions. Blair two habeas claims, these respect each of that: With grounds for relief. He claimed meet Blair failed to Missouri, Depart Police district court ruled City, Kansas showing prejudice cause inculpatory statements from his burden ment obtained January repealed effective history procedural case is set out 4. Rule 27.26 was of this 3. Armontrout, greater F.2d detail in Blair denied, Cir.1990), (8th U.S. cert. -, (1991). miscarriage justice. peaching concerning or a fundamental information witness and, Id. Ernest Jones were successive claims therefore, procedurally barred. The district court denied habeas relief stay Blair’s of execu- and first dissolved Blair is entitled to a second review of tion, granted later it. We denied the but if justice” successive claims the “ends of so stay, expedited require. States, motion to set aside but Sanders v. United appeal. 1068, 1077, this 10 L.Ed.2d qualifies Blair contends that he for a second review of these claims under

I. exception. this Specifically, he contends procedural first consider a issue We previ- that this court should re-examine its argues Blair raises. district opinion respect ous with to his instruc- treating 60(b)(6) court erred his Rule subsequent tion claim because federal and equivalent motion as the functional of a “completely state court decisions have un- corpus. second for writ of habeas reasoning dermined” the court used reject argument. We The district denying him relief on this claim. He ar- precedent in treating court followed our gues that the failure to instruct on the petition. as a In motion second habeas lesser-included offense pro- violates his due (8th Armontrout, v. 888 F.2d 530 Smith rights Alabama, cess under Beck v. 447 Cir.1989), held that a we motion remand 625, U.S. 65 L.Ed.2d 392 equivalent was the functional of a second (1980), Supreme and that the Missouri corpus petition, or successive habeas and “capricious Court’s and result-oriented” petition if such that would be dismissed as disposition of this issue right violated his writ, the the motion abusive of to remand equal protection. Along lines, similar he should also be denied. Id. at 540. We says that this court should his revisit claim ruling made a similar in Simmons v. Lock prosecution knowingly that the used the hart, (8th Cir.1988). 1146 perjured testimony of witness Jones be- Likewise, the Eleventh squarely Circuit has cause this court did not consider State v. held that claims like the ones advanced Patterson, (Mo.1981) (en 618 S.W.2d 664 in a peti here should be raised successive banc), in its earlier decision. corpus, tion for habeas rather than a Rule The district court refused to consider 60(b) Lindsey motion. Thigpen, v. 875 claims, ruling these two that the claims 1509, 1511-12, (11th Cir.1989). F.2d 1515 successive, therefore, were procedural- Supreme We also observe that the Court ly op. Slip barred.5 at 15-16. The district litigation has treated 42 under U.S.C. court concluded that justice” the “ends of unworthy as abusive and of a § require did not these claims be re- stay of execution. Gomez United States again viewed because Blair failed to make — Court, -, -, District U.S. a showing “colorable of factual innocence” (1992). S.Ct. Wilson, under Kuhlmann v. treating The district court did not err in Slip 60(b) equivalent motion Rule of a op. at plurality 15-16. A corpus. for writ of habeas second explained Court in Kuhlmann that “ends justice” permit federal courts to II. examine the merits of a successive claim argues “only the district court prisoner supplements where the concluding regard erred that his claims a constitutional claim with colorable show- ing the failure to instruct on the ing lesser- of factual innocence.” 477 U.S. at first-degree felony included offense of mur The reject- at 2627. district court S.Ct. der and the failure to disclose critical im- argument plurality opin- ed Blair’s that the relating 5. The any district court also concluded that Blair’s issues to his confessions in this procedur- confession claim was successive and appeal. ally Slip op. barred. at 15. Blair does not raise Grebing nor demonstrate Stepter neither applied. not be should in Kuhlmann ion considering instruction issue reason for Slip op. at 15. question again. Stepter addressed recently ended all Supreme Court support sub- was evidence to whether there plurality status of about the questions second-degree murder instruction mitting a in Kuhlmann. opinion 652-54, jury, — 794 S.W.2d Whitley, U.S. Sawyer held sufficiency of evi- questioned the Grebing -, 120 L.Ed.2d first-degree murder conviction dence no show (1992), when there has been from those here. 787 facts far removed on successive, prejudice ing of cause Likewise, reject at 880-81. we S.W.2d abusive, procedurally defaulted habeas argument that we should reconsider showing of actual claims, must be a there — knowingly used his claim that state at -, Id. U.S. innocence. Patterson, perjured testimony light explained that The Court at 2517-19. is not new 618 S.W.2d at 665. Patterson show one must ‘actual innocence’ “to show Blair has failed to establish circum- that but law. convincing evidence by clear and error, these requiring no reasonable a second review of stances for a constitutional eligi petitioner have found juror would claims. applica penalty under for the death ble III. at -, Id. state law.”

ble 5.Ct. at three claims that the now turn to the We constituted abusive district court concluded testimony, argues that Blair now Jones’ claims. error, estab coupled the instruction with inno claim of factual lishes a colorable prosecutor’s argues however, This, simply reargu is cence. Eighth argument violated his closing in Blair’s rejected ment of what this court rights. During Amendment Fourteenth 1316-20, 1325- appeal. 916 F.2d at penalty phase in the closing argument argu that such an do not believe 31. We trial, prosecutor referred to the Blair’s in satisfy the Kuhlmann actual ment can staring girl6 awakening and “attractive” standard, by Sawyer. as clarified nocence by held “this black man.” gun into the in court did not err

Accordingly, the district this statement was a constitu position that made no concluding that because Blair dissenting in appeared first tional error innocence, these two suc showing of actual first decision. 916 opinion in this court’s cannot be re-examined. cessive claims J., 1347-48, (Heaney, dis 1351-52 F.2d at point this discussion could end at Our did not ob senting). Blair’s trial counsel satisfy the Kuhl Blair’s failure to based on statement, Blair did not and ject to this simply add Sawyer and tests. We mann appeal or in his in his direct raise this issue argument on the Blair’s based proceedings. Similar post-conviction state in Parker v. protection issues discussed mention of this claim ly, Blair made no Dugger, 498 U.S. cor of habeas pro se for writ petition intervening (1991), and L.Ed.2d appointed petition filed pus, amended Stepter, v. court decisions of State state filing made in counsel, pro se any or other banc), (Mo.1990) (en and 794 S.W.2d this court before court or this the district (Mo.Ct. 787 S.W.2d 877 Grebing, State in Blair’s first habe opinion its court issued us that we do not App.1990), convince appeal.. the instruction issue. Par should revisit court held that Missouri’s The district recognizes equal protection generally ker prevented state procedural rules aggra arising weighing of from the issues hence, courts, courts, the federal and mitigating when vating and circumstances re-examining Slip op. claim. at this penalty, fails to imposing the death rejected argument court Blair’s The district at before us. 498 U.S. reach the issue appel- Blair’s Similarly, the failure of trial -, 111 S.Ct. at 737-40. compare identify her race to Blair's. race or prosecutor did not the victim’s 6. The statement, preserve late counsel to this issue for re- at trial. the context of trial, was not a view constituted ineffective assistance of constitutional violation. counsel, showing so as to make a of cause argues Blair also that he received prejudice. Id. ineffective assistance trial counsel be cause counsel declined to interview or call argues the district court erred witnesses, Q.T. two Lee and Clarence Wil concluding closing argument that his opinion son. earlier Our discusses this procedurally claim is barred. He raised only response claim arguments to the set by filing petition this claim in state court 1332-33, forth in the dissent. 916 F.2d at corpus in for writ of habeas the Missouri n. 26. The Jackson Circuit Court Supreme April Court on and ar- considered this issue in the pro Rule 27.26 gues procedural ruling by the Mis- ceedings. Appeals The Missouri Court of dismissing peti- souri this ineffective, point held that counsel was not adequate independent tion is not an ing to the evidence established at the hear ground barring federal court review. He ing attempted that trial defense counsel says that the Missouri Court has locate the witnesses and were aware of firmly consistently ap- not established or potential testimony, their but did not call plied procedural the abuse of the writ bar. them testimony because their in would be consistently We read Missouri cases to consistent with the theory defense that Er hold that a claim has been defaulted when nest Jones committed the crime. Blair v. objection lodged State, there is no to the error slip No. WD op. at 25-26 trial, 31, 1984). (Mo.Ct.App. July and the issue is not raised on direct See, post-conviction proceedings. pro petition Neither Blair’s se habeas nor State, (Mo. e.g., Fields v. 468 S.W.2d 31 petition his amended by appointed filed 1971). exception One notable is Benson v. alleged counsel that he received ineffective State, (Mo.Ct.App. 611 S.W.2d assistance of counsel due to fail- counsel’s 1980). specifically rejected argu We Further, ure to call these two witnesses. Delo, Byrd ment now makes 942 Blair did pro not raise this issue in his se Cir.1991). (8th F.2d Byrd is briefs, counsel, briefs of motion for remand authority reject further direct court, petition or the second filed position that his 1991 for habeas with the district court and abey- held in corpus, which the Missouri Court ance. rejected procedural grounds, on removed Nevertheless, argues ap- that his procedural the state bar to this claim. Id. pointed habeas counsel was by ineffective failing to raise this issue so as to demon- says Blair also that we can review the Carrier, strate Murray cause under 477 merits of this claim under the “fundamen 478, 2639, U.S. 106 S.Ct. 91 L.Ed.2d 397 miscarriage justice” exception tal of noted (1986). The rejected district court this ar- 527, 537-38, Murray, Smith v. 477 U.S. gument, observing that the state trial and (1986). 106 S.Ct. 91 L.Ed.2d 434 appellate argument courts found the con- Blair, however, has failed to demonstrate cerning the failure to call these witnesses alleged that but for this constitutional er Slip op. meritless. at 14. ror, juror no reasonable would have found eligible penalty. him for the death Saw suggests Blair also that the testimo — at -, yer, U.S. 112 S.Ct. at 2517. ny of these pro two witnesses would have The single district court observed that the independent vided additional evidence to reference to the defendant’s race was al bolster other evidence that Ernest Jones ready jury.” Slip op. “obvious to the Allen, killed and the claim should be re 19-20. transcript Our review of the trial considered under the “fundamental miscar prosecutor does not show that encour riage justice” exception. of Factual find aged jury courts, to use ings however, race as factor in of the state indicate determining Blair’s conviction or sentence. that these witnesses were not called as a may This explain objection well of strategy, lack matter of trial testimony as their

H37 Slip op. jury panel. Jury theory. Commissioner of with the defense conflicted 31, 1984). testified, County describing These (Mo.Ct.App. July Jackson at 25 presumption summoning to a of findings process jury panels are entitled 2254(d); under 28 U.S.C. registration correctness lists. § voter 1377, Armontrout, 863 F.2d 1381 Laws v. The trial court denied Blair’s motion to 1040, Cir.1988), denied, (8th 490 U.S. cert. quash, and Blair’s counsel raised the issue (1989). L.Ed.2d 415 S.Ct. again in his motion for trial. At new least Thus, say trial counsel act we cannot regis- two witnesses testified about a voter to unreasonably ed or that the failure call tration drive to increase the number of prejudice un demonstrates these witnesses voters, registered there black Washington, 466 U.S. der Strickland v. very large unregistered were numbers of 2052, 2065-69, 668, 690-96, City, voters in six wards in Kansas Mis- Further, (1984). we doubt that L.Ed.2d 674 souri, population primarily whose was the failure to call these witnesses demon black. under strates actual innocence Saw at -, Following the trial court’s S.Ct. at denial of yer. U.S. trial, testimony, by argued as found the Blair’s motion for new 2517-19. Their courts, systematic inconsistent with Blair’s there was exclusion of state was jurors, figures trial defense. in that census black showed population County, Mis- rejecting The district court did not err in souri, black, percent be and that the these two abusive claims. representation juries of blacks on in Jack- percentage. son was not this He IV. 30,000 argued unregistered black prosecution Blair contends that the vio- jury qualify duty voters who could but protection by using right lated his by failing register, had not done so peremptory challenges its to remove all making established the exclusion. In jury venire from the black members argument, Taylor Blair’s counsel relied on Alabama, 380 violation of Swain v. Louisiana, 419 U.S. L.Ed.2d (1975), Missouri, and Duren v. ninety-four panel There were mem trial. bers called for Blair’s Seventeen black, and these members were twelve of held that jurors these were excused on the issues of composition Blair’s evidence of the sequestration penal and views on the death petit inadequate to jury panel jury was ty. remaining jurors, one Of the five group, representation show that the of this struck the defense because he knew was whole, not fair as a venires Blair. The state used four Taylor and Duren. reasonable under challenges remaining to strike the four Blair, Although Blair at 753. 638 S.W.2d blacks, leaving jury. an all-white Swain, did not cite quash jury panel, Blair moved to had “failed to that Blair Court concluded proportion alleging that the of blacks repeatedly, in the state has establish that county greatly in excess of the num- was case, utilized its case after jurors A bers of summoned. record juries from challenges to exclude blacks specific reference to the was made with sys- thereby failed to establish the has jury panel. called for each Blair blacks (citing exclusion of blacks.” Id. tematic argued jurors selection 829). Swain, U.S. at 85 S.Ct. at Missouri, was County, unconstitu- Thereafter, post- Blair filed a motion for jurors in that were not called in tional 27.26. Blair possible relief under Rule nearly equal numbers as from vot- conviction not receive a fair trial precincts, required. argued as is that he did ing wards and represent jury did not a fair impaneling jury, the trial court because the Before community. The Mis- quash motion to cross-section of the hearing held a on Blair’s Appeals affirmed the circuit ment souri Court and the Fourteenth Amendment’s due court, process ruling that the issue had been decid- clause.8 appeal and could not be ed on direct raised It pro is evident that neither Blair’s se post-conviction proceedings. 683 S.W.2d petition appointed nor his counsel’s amend- (Mo.App.1984). petition ed raised a Swain issue. After the petition district court denied Blair’s for ha- record, Under this there can be no dis- corpus beas and while Blair’s pute that Blair raised and exhausted this pending court, pro before this Blair filed se proceedings. claim in his state court The pleadings with this court and the district finding. district court did not err so court, including a motion to this court seek- preserved Whether Blair a issue ing a remand to the district court so that proceedings in his federal court is not so the district court could consider all claims exhausting clear. After his state court exhausted in the state In court. his motion remedies, court, pro peti- to remand filed urged Blair filed a se habeas with this that his case should be remanded to tion. Blair claimed that he was “denied a district court for consideration of additional jury represented a full and fair cross- presented by court-appointed claims not his community” section of the and that he was specifically habeas counsel. He com- by guilty prone jury.” “tried He com- plained improperly that the State used its plained that the state was allowed death- jury strikes to remove all blacks from the qualify jury and strike for cause all jury.9 argued court-ap- He also that his jurors potential impose those who could not pointed attorney violated his constitutional penalty they the death even if found him right to effective assistance of counsel guilty. petition The also stated that it did failing to raise all issues exhausted in state points not contain all of error known courts. Blair, and that he was denied access to his argues appointed that his legal papers and could not counsel submit a com- abandoned valid claims of constitutional er plete petition. petition The states that raising only ror in points five such in his rely upon appointed “Movant will also petition. first habeas He claims that coun properly present counsel to word and all sel’s actions were knowledge, without his appointed claims.”7 The district court consent, or authorization. Blair contends counsel, petition. who filed a first amended that there can be no abuse of if the writ only petition issue raised this relat- the first habeas is filed without his ing quali- to the concerned the “death particular authorization or consent. Blair jury, propriety fication” of the and the ly Lockhart, relies on Williams moral, asking jury panel whether con- (8th Cir.1988), and Simmons v. Lock scientious, religious scruples pre- or would hart, (8th Cir.1990). 915 F.2d 372 bringing vent them from in a sentence of jurors death if the were convinced that considering In Blair’s claim that his coun- just. peti- such verdict was fair and sel had omitted the Swain claim without tion claimed consent, denied Blair an im- knowledge the district court partial jury in violation of the Sixth Amend- held that habeas counsel’s actions were specifically pleaded argue The other issues include: 9.Blair does not that this motion filed give first-degree the trial court’s failure felony Indeed, with this court raised a Swain claim. instruction; judge’s murder the trial im- alleged appears violation to be a claim based and, proper jury; prose- discussion with the Kentucky, on Batson v. plea agreement cution’s failure to disclose a 1712, (1986). reject 90 L.Ed.2d 69 We could between the State and witness Ernest Jones. Blair’s claim on the basis that a Swain claim presented, pro was not or that his se motion to plea 8. Other issues raised include: the Jones remand in this court must be treated as a suc bargain; attorney the exclusion of Blair's after is, therefore, petition procedurally cessive police the two had seen in the each other station Nevertheless, reject arrest; barred. we hallway Blair’s Swain following Blair’s the failure to Infra, charge der; and, claim on the merits. first-degree felony Part IV. instruct on mur- prosecutor's closing argument the making overreaching plea an for death. Cornman v. Armon proceedings. did See actions Blair and counsel’s binding on (8th Cir.1992); McCleskey trout, v. F.2d under cause not constitute — -, Delo, n. 3 111 S.Ct. 326-27 Zant, Rapheld v. U.S. — (1991), denied, U.S. -, counsel’s aban- Cir.1991), (8th because L.Ed.2d cert. rise to the (1992). claim did not donment 117 L.Ed.2d 147 Fur of counsel assistance of ineffective thermore, opinion level in our earlier we ac Strickland, under no knowledged that there is constitutional court 10-12. The district Slip op. at of counsel in a right to effective assistance rea- counsel acted that habeas concluded Blair, 916 F.2d at 1332. habeas action. claim, abandoning the sonably in Swain Second, Supreme Court has trial occurred several reasoning that appel rejected argument that squarely mak- petition, the first habeas years before duty every counsel has a to raise non- late prove systematic a exclu- ing it difficult requests: issue his client frivolous Further, op. at 11. Slip sion of blacks. time Experienced advocates since be- if Blair had stated that even district court memory emphasized the im- yond have peti- in his first claim presented the Swain winnowing argu- portance of out weaker Slip tion, was not meritorious. the claim focusing on on one ments The court observed op. at 11. possible, if or at most on a central issue to the district presented statistics key first issues. Blair filed his few not exist when court did if a new and even habeas overwhelming evi- justified, the

trial were every A that raises colorable is- brief suggested that Blair would guilt of dence good argu- burying the risk of sue runs The district convicted. Id. have been still that, in ments —those the words of met the that Blair had not court concluded Davis, “go for great John W. advocate demonstrating in- standard for Strickland made jugular,” a verbal mound —in and, of counsel there- effective assistance up strong and weak contentions. fore, prejudice. failed to show cause 745, 751-53, Barnes, v. Jones there was 12. It also concluded that Id. at (1983) (ci- 3308, 3313, 77 L.Ed.2d 987 miscarriage justice fundamental no omitted). tations default. Id. procedural excuse nearly a identi- This court has considered the district are satisfied We 895 F.2d 497 Trickey, cal issue Horne concluding that habeas court did not err case, Cir.1990). rejected a (8th In that we deciding not ineffective in counsel was not appellate counsel was appointed claim that First, may to raise a claim. Swain argue failing to brief ineffective “cause” based on ineffective not establish only under that was sustainable claim counsel in a federal habeas assistance of Swain, reasoning: limits “cause” to Murray case. v. Carrier in the Horne’s case Counsel evaluated exter showing objective “some factor as it existed at context of the law impeded defense” that counsel’s nal to the determined appeal and time of Horne’s 106 S.Ct. at 2645. efforts. 477 U.S. a viable Horne did not have counsel, agent petitioner, as for the Habeas “To hold under protection claim Swain. external to the defense. cannot be a factor we need was not ineffective that counsel recently held that inef Supreme Court possible made the find that he best not could of habeas counsel fective assistance choice, made a reasonable that he but cause, there was no con constitute not “[Strategic choices made after one.” right to effective assistance stitutional investigation facts thorough of law and cases. Coleman counsel virtually plausible options are relevant to U.S. -, -, Thompson, Here, ap- unchallengeable_” Horne’s Al is- considered the pellate counsel right though dealt with Coleman raise it since sue and decided not to proceedings, we in state habeas counsel evidence not contain sufficient record did applied principle federal habeas have support such a claim. His decision not ed suffering counsel from Alzheimer’s dis- to raise an issue in unwinnable Horne’s ease. 935 F.2d at 146-47. Appeals to the Missouri Court of Finally, argues “probably that he is does not constitute constitutional ineffec- actually innocent” due to the Swain claim. contrary, To the

tiveness. his winnow- says He that when this claim is combined ing of the issues to eliminate a sure loser above, with the other errors discussed he performance is the kind of that courts makes a showing colorable of actual inno- expect competent counsel. cence. He directs us to a recent district (alteration decision, original) (cita- at court Jones, Id. 499-500 Hamilton v. omitted). F.Supp. (E.D.Mo.1992), tions 300-01 which the district court for the Eastern Third, Simmons, Blair’s reliance on District of Missouri held that a Batson Williams, F.2d and 862 F.2d is violation could be raised in a successive misplaced. specifically Simmons recog petition. habeas Id. at 300-01. In Hamil- nizes the difference between claims omitted ton, the district granted writ, court during process selecting the most concluding that Hamilton established an in- promising grounds appeal, for and those tervening change in law and a probability clearly claims which appear from the tran of factual innocence. Id. at 301. The dis- script. 915 F.2d at 377. The Swain issue trict court ruled that Hamilton met his distinguishable here is readily from the ap showing burden of factual innocence be- parent conflict of interest issue in Sim “ cause ‘racial discrimination in the selec- Simmons, mons. See afso 915 F.2d at 377 jurors tion of “casts doubt on integrity (a conflict-of-interest claim “is the kind of judicial process” places ... and rarely abandoned”). claim that should be fairness of a criminal proceeding in Likewise, reasoning in Williams does ” — (quoting doubt.’ Ohio, Id. Powers v. apply not to the facts in this case because -, -, petition Blair filed a corpus pro (1991)). se, raising points four stating and considered, We have rely upon rejected, “Movant will also appointed specific arguments properly counsel to present word and earlier in opinion. all this Williams, Adding all alleged claims.” In of these together counsel filed a errors habe- does not make petitioner’s without the a colorable showing knowl of actu edge. al 862 F.2d innocence. say at 159-60. We Suffice it to cannot that under conclude that habeas counsel definition of actual was innocence ineffec an nounced in failing Sawyer, U.S. -, tive for to raise a Swain issue so as to constitute Blair has Murray by cause under failed to v. Carri show clear er, convincing and we need not consider evidence that but for the issue of consti errors, tutional prejudice. juror no reasonable would have found him eligible penal for the death urges Blair also that we can ty consid applicable under Indeed, state law. Id. er his Swain claim on the merits under the as the opinion miscarriage “fundamental justice” ex opinion demonstrate, our first the evidence ception enunciated in Smith v. Murray, against Blair strong. Blair, was 916 F.2d 537-38, 477 U.S. at 106 S.Ct. at 1313-16; Blair, 2667-68. at 638 S.W.2d at 758-59. For support, points to our recent deci The district court also referred to the over sion in Camper, Pilchak v. whelming guilt aggrava evidence of and of (8th Cir.1991). Here, the district court ting con Slip op. circumstances. cluded that there was no fundamental mis 22. The factual opinion discussion in the carriage justice and specifically referred the Missouri Court and our first argument to Blair’s based on fully support Simmons. decision conclusion Slip op. at 11-12. Pilchak is of help Thus, no the district court. the district court Blair. The facts in unique— Pilchak are did not err in concluding that Blair’s Swain involving appoint- hand-selected claim procedurally barred. alleged County the is an in

Although this conclusion employed racially dis- decision, prosecutor’s office are our we dependent basis jury practices selection criminatory estab that Blair has not satisfied further in “case after case” of Blair’s trial and require The violation. lished Swain Blair subse- criminal defendants. set forth within are best ments of Swain nine from quently submitted affidavits used in that language that the Court the attorneys who all stated criminal defense opinion: Batson, prosecutor’s of- prior to the any particular case presumption systematically utilized consistently fice using the prosecutor is must that the be peremptory challenges to remove African challenges to a fair and obtain State’s jury panels. from Blair also Americans try the case before the impartial jury to the district court with a tran- presented presumption is not overcome court. The testimony of several Jackson script of the to subjected therefore prosecutor and the attorneys defense who re- County criminal in the by allegations that examination specific prosecu- cases in which the called. removed Negroes hand all were case at in Blair’s trial struck black veniremen. tor they removed jury the or that were from Finally, presented the district court Negroes. Any other they because were statistical evidence based on records with result, think, a rule would establish we by the Jackson Public Defend- kept peremptory chal- wholly at odds with the during showing er’s office 1985 and 1986 know it. lenge system as we dispro- used a prosecutor’s that the office at 837. The Court at peremptory portionate number of strikes explained: jury panels in cases- remove blacks from permissible to decided that it is haveWe involving Blair did not black defendants. (cid:127) inquiry removal of Ne- the insulate any in his state court offer of this evidence particular jury on the as- groes from a proceed- or his first habeas proceedings acting on prosecutor is sumption ings. to the acceptable considerations related Although court held that the district particular defen- trying, he is case pro- “serious claim suffered Swain crime particular and the dant involved problems,” the court considered cedural in a prosecutor charged. But when Slip op. at 16. The merits of the claim. case, county, in case after whatever the that the 1985 and court concluded district circumstances, the crime and whatever enough for 1986 statistics were not decisive may the defendant or the victim whoever disregard court to the Swain the district Ne- be, responsible for the removal of is prosecutor per- used presumption that the quali-. selected as groes who have been a fair and challenges to obtain emptory commissioners jurors fied The district impartial jury. at 18-19. Id. challenges for survived and who have require did not court reasoned Swain Negroes cause, the result that no with challenges peremptory prosecutors to use juries, petit on the Fourteenth ever serve their against in a number blacks signifi- claim takes on added Amendment jury pool. Id. proportion of cance. procedural barriers In addition to the at 837. The Court Id. considering Blair’s preventing us from that to establish a Swain explained further claim, yet another obstacle there is defendant must “show violation the claim. of this to our considération systematic use of prosecutor’s recently held that a federal' Supreme Court period challenges against Negroes over a develop fully petitioner must 227, 85 at 839. time.” Id. at in his he relies upon which factual record Keeney v. Ta proceedings. the trial court relat- The evidence before state court -, -, (1) jury selection mayo-Reyes, two issues: ed to 1719-20, case; makeup of particular can develop those facts registration lists. Failure venires from voter showing of cause and 60(b)(6) 13, only on a May be excused Rule motion filed In Blair’s prejudice miscarriage or a fundamental systematically of and removed African Ameri- — at -, justice. Id. U.S. jury panel cans from Blair’s jury panels at 1719-21. S.Ct. in County period Jackson over a of time. Most of the affidavits conclusory were Blair did not offer evidence recount personal reflected the beliefs of former ed above in state court proceedings. public defenders. Even those affidavits responds He Keeney announced a which contained strongly information most “new rule” meaning within the of Teague suggesting violation, a Swain conceded Lane, 1060, 489 U.S. 109 S.Ct. that black veniremen challenged were not 1070, 103 (1989)(plurality opin they appeared when “pro-prosecution.” ion), Keeney and that cannot be retroac Thus, evidence, even if we were to tively applied to him. We do not read it, consider support is insufficient to relief Teague apply to here. Teague addresses under Swain. As arguments to Blair’s question petitioner of when a can seek concerning the makeup jury venires as a of a “new rule” of criminal benefit whole, they and whether are fair and rea- 299, procedure. at 489 U.S. sonable, these are go issues that more to 1068. Blair does not demonstrate cause Taylor, 522, 95 S.Ct. prejudice miscarriage or a fundamental Duren, they but Thus, justice.10 light of Keeney, we consequence are of no to Swain. question whether we can now consider the presented evidence in the district court. argues that he is particularly disad- Notwithstanding vantaged proce- multitude of that he is not entitled to the evidentiary problems procedures dural and preventing in Batson. Supreme Court, our claim, however, consideration of Blair’s Swain has made clear that Bat- considering claim, even principles we cannot con- son will retroactively not be ap- clude that plied Blair has established to pending a Swain cases at that time on col- violation. The taken in particu- strikes this lateral review. Allen v. Hardy, 478 U.S. satisfy prima 259-61, lar case do not facie 2880-81, case Indeed, outlined in curiam). Swain. L.Ed.2d (per Missouri Although agree Court so held in Blair’s direct we that this circumstance is disad- appeal. 638 at 753. vantageous Blair, S.W.2d We may observe to we still review makeup only statistical evidence of the principles issue under of Swain. jury panels and the by strikes made Id. prosecutors during occurred the 1985 and We affirm judgment of the district period. The trial of this case took denying court the writ. stay of execu- place in the fall of 1980. The 1985-1986 tion shall continue until either the time evidence has no relevance to the earlier runs filing for the of petition for writ of period. accepting Even the evidence at certiorari with the United States value, face we still conclude that the evi- petition Court and such filed, is not or if dence is prose- insufficient to show that the filed, such is by until final action cutor in case, Jackson in case after the United States Supreme Court. circumstances, whatever the whatever the victim, crime and whoever defendant or HEANEY, Judge, Senior Circuit responsible was removing African concurring part dissenting part. period Americans over a of time. Like- wise, several of the affidavits Blair submits Walter Blair’s conviction has been taint- period question, do not relate to the time Blair, ed racial prejudice. twenty- testimony presented and the in the year-old affida- man, charged with mur- hearing vits and the transcripts do not com- dering a young Experience white woman. pel a conclusion that the County, juries especially indicates that likely are prosecutor’s office intentionally impose penalty the death under these cir- simply general request makes a prejudice for a show or a cause and fundamental attempt remand to the district court for an miscarriage justice.

H43 cumstances,1 Caspari, Walton so it was essential denied, fairly prosecutor, (8th Cir.1990), be selected. The cert. U.S. -, d however, peremptory challenges used his 113 L.Ed.2 268 qualified strike four blacks from the way One to do this is to show that “the petit jury panel racially charged in this prosecution systematically has excluded case, leaving jury strong an all-white and a petit juries blacks from period over a- of Morris, discriminatory purpose. inference of time.” Garrett v. 509, 815 F.2d prosecutor’s discriminatory denied, (8th Cir.), intent was also 511 cert. 898, 484 U.S. plain closing argument appeal- in he when 108 S.Ct. (1987); 98 L.Ed.2d 191 Unit Pollard, prejudices jury by ed to the of this ed States v. all-white (8th 483 F.2d 930 asking Cir.1973), them to consider the “attrac- denied, cert. what 414 U.S. 94 thought tive” white victim “when she woke (1974). 38 L.Ed.2d 762 Although up staring gun of a ... into the muzzle pattern a of exclusion over a few weeks held man.” insufficient, black might be petitioner the “is not required to al prosecutor show that the light prosecutor’s In discriminato- ways struck every black venireman offered behavior, ry say we cannot that Blair re- Zant, v. Willis to him.” Moreover, ceived a fair trial. the record (11th Cir.1983), denied, cert. 467 U.S. prosecutor’s reveals that the action in 104 S.Ct. part long pattern Blair’s case was of a Here, presented the district court City striking jurors Kansas of black with proving substantial evidence criminal cases with black defendants. County prosecutor’s has, Jackson office presented Blair has more than sufficient over many peremptory used its years, support to his claim under Swain evidence strikes systematically to ju exclude black v. Alabama. Accordingly, I dissent from petit rors from juries county. in that Hav part IV of the opinion. court’s ing proved prima violation, facie Swain a Blair is regardless entitled to a new trial of Merits Blair’s Swain Claim of strength of the state’s case.2 circuit, Under the law of our a defendant prima purpose- claim, can establish a facie case his Swain prove of To Blair submit- under (1) ful discrimination by proving attorneys ted affidavits from nine who prosecutor peremp- practiced used his or h'er criminal defense in Jackson Coun- (1) tory challenges 1980s; to ty during (2) exclude blacks from the 1970s and jury for reasons unrelated to the out- County 1986 statistics from Jackson crimi- trial, (2) particular come of the regarding case on or prosecution’s nal cases use deny right oppor- to blacks the same blacks; challenges against tunity participate (3) in the administration testimony sworn from Jackson justice enjoyed by population. County white lawyers regarding criminal defense 279, 286-87, McCleskey Kemp, 1. See support capital v. 481 U.S. dence to a murder conviction 1756, 1763-64, (1987) event, L.Ed.2d significantly was wéaker. In either 2,000 (study of over murder convictions in applying district court was incorrect in a harm (cid:127) Georgia penalty shows that the death was as- analysis. requirement less error There is no twenty-two percent sessed in ing of the cases involv- prejudice jury in a claim: if se Swain/Batson victims; eight black defendants and white procedures equal protection lection violate the percent involving of the cases white defendants clause, a conviction must be reversed whether victims; percent and white three of the cases against strong the case defendant or victims; involving white defendants and black 559, 561, Avery Georgia, weak. See percent involving and one of the cases black (where 97 L.Ed. 1244 victims). defendants and black procedures operated selection to discrimi grounds, violating nate on racial thus 2. The district court found that the "overwhelm- clause, protection the conviction must be re ing guilt suggested evidence of that Blair would strong versed "no matter how the evidence of still have been convicted." What the district petitioner’s guilt”); Vasquez Hillery, say see also court did not is whether Blair would have 254, 260-61, 617, 621-22, felony capital been convicted of murder mur- (1986) (same Although strong applied grand der. support there was L.Ed.2d rule evidence to conviction, felony jury proceedings). murder the evi- (cid:127) Fletcher, prosecutor specific cases which James Fletcher affidavit. case, attorney eighteen criminal defense Dakopolis, struck Robert years, ninety jury tried about trials addition, emphasizes In jurors. against County prosecutor’s the Jackson racially discriminatory may intent we infer public office. Fletcher was assistant de- County prosecutor's re- Jackson County fender in Jackson from 1974 to closing argument during the marks public chief mid-1979 and was defender Blair’s case. through from 1981 1984. Based on his support evidence in strongest observation, personal Fletcher stated from six of the affidavits of Blair’s claim is County prosecutors system- lawyers practiced had who criminal defense atically petit juries excluded blacks from before, during, and im- in Jackson by using peremptory challenges exer- 1980 trial. Accord- mediately after Blair’s race, only particu- cised on the basis of ing attorneys, the trial staff of the to these larly when the defendant was black. Ac- office County prosecutor’s consis- Jackson Fletcher, cording practice to had the peremptory used tently systematically appearance being policy of the Jack- challenges many to exclude as blacks as County prosecutor’s son office it because cases, in possible petit juries criminal from happened regardless prosecu- of which in so until Batson was announced did trying tors were the case. several On I forth below the contents of set occasions, prosecuting assistant attor- these six affidavits: neys told Fletcher they that the reason (cid:127) Rogers Rogers Charles jury panels struck blacks was be- affidavit. from defense in practiced criminal Jackson they cause did not want blacks on the County 1976 to 1989. He tried from juries, particularly when black defen- felony jury during trials more than 100 charged were with committing dants period against members Jack- against whites. Fletcher tried offenses County prosecuting attorney’s son staff. against Dakopolis cases Robert on nu- Rogers, prosecuting According to tri- trials, merous In occasions. those Dak- consistently systematically al staff opolis peremptory challenges used his to challenges peremptory used to exclude many strike as black members of the possible, especially many affidavit, blacks as in jury panel as he could. In his gave cases where the defendant was black and Fletcher the names of three cases complaining in happened. witness decedent was which this (cid:127) European According Rog- descent. to Locke, Kevin Locke an as- affidavit. observation, he personal ers’s believed public sistant in defender Jackson Coun- prosecutors’ peremptory strikes ty mid-1986, from 1977 to involved was solely were on the race of the based forty forty-five jury about trials to of Eu- excluded veniremen. Veniremen against County prosecutor’s the Jackson gave responses ropean descent who less during According office to time. prosecution Locke, to the than those favorable virtually every of these one given by per- cases, veniremen were not prosecutors peremp- their used if emptorily tory excluded blacks remained on challenges on the to exclude blacks Rogers stated the venire. that based on basis of their race. Locke believed the personal practice observation in cases policy where was a of the office be- observer, regardless he counsel or an cause it happened was defense who was trying prosecutor Dakopolis “espe- Robert was case. (cid:127)

cially using peremptory adamant” about Chapman Chapman Susan affidavit. challenges to exclude black veniremen. public an assistant defender Jack- Rogers single could not recall a instance through County son from mid-1978 mid- Dakopolis where used a chal- and handled conflict cases for the lenge Europe- County public to remove a venireman of Jackson defender from an descent remained on the through while black mid-1981 to 1985. From 1985 Chapman venire. tried cases Jackson

H45 (1988)(evidence public County first assistant defend- from six local as a many felony Chapman tried cases lawyers). prior er. Nor do our cases state that during period, County this kind of evidence is insufficient to dem- County prose- she observed the Jackson onstrate a violation. simply There systematically employ per- cutor’s office is no basis for the court to dismiss these challenges exclude emptory blacks support six affidavits as insufficient to re- panels, apparently solely petit jury lief under Swain. One is left with the According of their race. because feeling that the prepared court is not Chapman, prosecuting one assistant at- give affidavits from criminal defense law- torney epithet a racial used to describe yers any weight, and that the court would challenged. had black veniremen he accept nothing less than a sworn statement (cid:127) Lentz Lentz was a William affidavit. Dakopolis admitting from Robert that he attorney in Jackson criminal defense struck blacks in Blair’s case for a discrimi- During from 1976 to 1986. natory purpose. forty jury time Lentz defended about majority criticizes Blair’s other evi- against County prose- trials the Jackson discrimination, including dence of sworn cutor’s office. Lentz believed that office case, testimony from the systematically Antwine statis- petit excluded blacks from using peremptory challenges juries by concerning prosecutors’ tics solely race, exercised on the basis of in strikes 1985 and and three addi- practice continued until the Su- tional affidavits. It is true that this evi- preme Court decided Batson. Lentz also prosecutorial dence relates to behavior af- prosecutor’s believed that the office ex- trial, ter Blair’s and thus would not be cluded blacks to facilitate convictions more, enough, support without to Blair’s prejudice on racial and to based allow evidence, claim. Blair offers this Swain petit jury comfortably white members to however, merely support as additional for express prejudices among their racial very strong prima the facie case he estab- themselves. lished the six with affidavits summarized (cid:127) John Kurtz Kurtz was a affidavit. above. public defender from testimony The sworn from the Antwine private practice 1979 to 1981 and was examples specific case included from cases doing some criminal work until 1986. Dakopolis per- in which Robert used his approximately jury Kurtz had ten trials emptory challenges to eliminate all or most against County prosecutor’s the Jackson qualified jurors petit of the black from the during office time. According that to Kurtz, jury. example, Gary For the case County prosecutor’s the Jackson office, defendant, Dakopolis or exception Lovelady, with the a black Fred Bellem- III, systematically ere excluded num- disproportionate blacks his assistant used a juries by peremptory blacks, use of striking chal- challenges ber of their on lenges solely exercised on the basis of remaining in qualified five of the six blacks their race. Phillips, a the In the case of Aaron venire. defendant, assistant Dakopolis black or his disregarded Such evidence cannot be from the qualified struck five blacks all together, weak or irrelevant. Taken these In the case of James McCon- venire. pattern affidavits establish of discrimina defendant, nell, thirty there were a white tory by County prose behavior the Jackson having nine qualified each side jurors, with during period cutor’s office the when Blair In first strikes. McConnell’s peremptory was convicted. Other courts have found mistrial, trial, Dakopolis in a ended which similar evidence from as few as three local qualified struck all six or his lawyers sufficient to establish a Swain vio assistant Jones, the venire. At McConnell’s blacks from lation. Love v. 923 F.2d 818-20 trial, (11th Cir.1991); Dakopolis Davis, struck all three see also second Jones v. (11th Cir.), qualified These 838-40 blacks from the venire. cert. de nied, examples give Dakop- lie to the notion improper appeal to race does not fur- kind tor’s case was some in Blair’s olis’s actions relief, ground it independent nish an of aberration. certainly supports Blair’s claim under proof is from the Jack- Blair’s statistical Swain. This defender’s office. County public son in cases involv- evidence demonstrates the Jackson ing black defendants to Swain Claim Procedural Obstacles forty- office used over County prosecutor’s Although procedural erect- obstacles available eight percent of its years in recent ed jurors even black challenges to exclude petitioners made it more difficult for have qualified jurors was pool of though the hearing in federal get a full and fair Put another percent black. only nineteen court, persuasive there are I believe that involving defendants in black

way, in cases disregarding any procedural reasons for sixty struck more than prosecutor might apply to Blair’s bars (49 qualified jurors percent of the claim. 78), percent fifteen only about but (48 329). The jurors qualified nonblack First, sandbag not tried has This evi- for 1986.3 figures were similar respect court district court and this with dence, affidavits cov- along with the three equal protection claim. Blair tried to trial, Blair's further ering period after equal protection claim and other raise the pervasiveness of demonstrates original pro pro in his claims se discriminatory practices. Any prosecutor’s ceeding. pleadings He filed with the dis affidavits, sta- three weaknesses stating this court that his trict court and testimony the sworn does proof, and tistical had claims appointed counsel abandoned strength of the six from the not detract If, as the record that he wished to raise. particularity describe with affidavits that indicates, appointed previous coun during practices and be- prosecutor’s filed the first habeas without sel trial. time of Blair’s fore the consent, knowledge, or authoriza prosecutor’s appeals to racial Finally, the tion, doctrine is en the abuse of the writ closing argument demonstrate prejudice at inappropriate. precisely We made tirely I intent in Blair’s case. discriminatory Lockhart, 862 point this in v. Williams pre- extensively my this issue discussed Cir.1988),where, here, 155, 160(8th F.2d Blair, dissenting opinion. vious petitioner’s attorney peti filed a the to believe that the I continue 1351-52. knowledge, petitioner’s tion without the proper the bounds of

prosecutor exceeded consent, Although coun or authorization. jury the all-white advocacy he asked when expected sel can be to winnow out weaker vic- what the “attractive” white to consider arguments appeal, attorney misconduct on up star- thought “when she woke ... tim “winnowing” cannot considered a decis be gun held ing muzzle of a into the ion.5 jus- This statement cannot be black man.” Second, pro- may consider otherwise we plays a far too influential tified.4 Race petitions petitioner if the cedurally barred sentencing for us to assume capital role in a fundamental miscar- appeal preju- can demonstrate a racial that such blatant 477 prosecu- riage justice. Murray, if of v. Even Smith dice was harmless. true, certainly involving might does not excuse be but it black defendants 3. In cases County prosecutor's ugly appeal jury. office used for- prosecutor's racial to the Jackson ty-four percent its available chal- of jurors though lenges black even to exclude Armontrout, v. F.2d at 1335 5.See also Blair 916 only per- pool jurors nineteen qualified of J., (Blair (Heaney, dissenting) requested n. 3 prosecutor struck more than cent black. The n state first habeas counsel to raise all exhausted jurors qualified fifty-seven percent of the black agreed, those claims. Counsel claims, but did not raise 173), (99 only percent about seventeen but lulling presenting thus into not (127 732). jurors qualified nonblack exhausted the district omitted claims before argued race must have been court.) It is that Blair’s jury,” supra This "obvious to the see at 1136. H47 527, 537, 2661, 2667, U.S. 106 91 souri post-conviction Court or in a (1986). Here, prosecutor’s proceeding L.Ed.2d 434 under Missouri See, racial discrimination in Rule 27.26. ju- e.g., State, the selection of Brown v. rors, (Mo.1971) along (Swain S.W.2d appeals with his preju- racial claim motion). raised Rule closing argument, dice in 27.26 likely make it There would good have been reason to raise actually that Blair is capital innocent of Swain claim in post-conviction proceeding Jones, In rather murder. Hamilton than appeal: direct a Swain claim requires F.Supp. (E.D.Mo.1992), Judge Gunn proof, proof exhaustive might not easi- petitioner’s considered the merits of a suc- ly be marshalled under the tight deadlines petition raising cessive a Swain claim be- appeal. of a direct cause Thus, probability petitioner’s there is a fac- Blair’s attorney omitted the Swain tual innocence because “racial claim on appeal, arguing discrimi- direct only nation in the method of jurors selecting jury the selection of ‘casts venires in integrity doubt on the from voter judicial pro- registration qualified lists excluded jurors. places cess’ ... and fairness of a Supreme Court, however, proceeding criminal reached doubt.” out and decided the claim sua (quoting Ohio, Id. at 301 Powers v. sponte. That court’s conclusion—that -, -, Blair failed to systematic establish the ex (1991)). Nor is racial discrimi- clusion of through blacks peremptory chal only nation the shadow over this case: lenges only correct because Blair had —was prosecutor’s there also was the knowing present not chosen to evidence of such dis perjured testimony use of and the trial crimination appeal. on direct The court’s court’s erroneous refusal to instruct gratuitous precluded action Blair from felony on murder. See at n. 6. infra making any kind of support record to circumstances, Under these Blair has dem- Swain claim in post-conviction a Missouri onstrated that probably he is innocent of hearing, law, because under Missouri “a murder, capital and thus is entitled to a full matter decided on direct may not be hearing and fair on the merits of his claim. relitigated post-conviction proceed relief Finally, I believe that Blair’s failure to ings.” State, Schlup 758 S.W.2d fully develop the record for his Swain (Mo.1988) (quoting State, Gilmore v. claim in state court is excusable. The ma (Mo.App.), S.W.2d cert. de jority suggests that Blair must demon nied, prejudice strate cause and for his failure to (1987)). It would have been fully develop the factual record in state futile for Blair to raise his Swain claim proceedings. Supra (cit court at 1141-42 during post-conviction proceedings, and it ing Keeney Tamayo-Reyes, is well settled petitioners that need not -, -, 1715, 1719-20, raise claims when it would be futile to do (1992)). true, If this were so. Supreme The Missouri Court’s action proper course would be to remand the certainly “objective is an factor external to ease so that the district court can consider defense,” thus constituting cause for prove whether Blair can preju cause and develop Blair’s failure to regard the record importantly, dice for this failure. More ing his claim in Swain the Missouri courts. Court reached out and decided the Swain issue on Blair’s direct Other Claims appeal though even Blair had not raised in I concur the majority’s decision to point. issue at that The record does dem affirm the district court’s denial of Blair’s onstrate, therefore, external cause for claims, other but a few additional words develop Blair’s failure to Swain record are order. As the explains, court the Missouri courts. panel majority in previous our opinion re- raising jected

Blair had the choice of claims, Swain two of remaining Blair’s (1) claim holding either on direct to the Mis- that prove Blair had failed to per knowingly used prosecution that the Jones, and America, Ernest testimony from

jured STATES UNITED af testimony have Plaintiff-Appellee, perjured could that the judgment; and jury’s fected jury on to instruct the court’s failure trial WELLIVER, Defendant- Dennis did not violate felony murder Appellant. Armontrout, clause. Blair v. protection (8th 1310, 1316-20, Cir.19 1325-30 No. 91-3794. 90). Although I continue believe Appeals, States Court United two iss wrongly these our court decided Eighth Circuit. pres ues,6 Blair has I do not believe that reopening justify enough evidence to ented May Submitted 1992. them. Decided Oct.

Conclusion court, disagree I can

Although I with why it has ruled that

understand procedurally barred. claim is

Swain complex are issues this case

procedural interpre- susceptible more than one however, understand, why I cannot

tation. presented insuffi- holds that Blair

the court support his claim. evidence to

cient de- experienced criminal

The affidavits of County present attorneys in Jackson

fense exclusion con- picture systematic racial by the Swain.

demned sharpens this simply evidence

Blair’s other

picture. capital Blair of

The evidence to convict overwhelming; far from

murder was

fact, likely innocent of trial free

charge. He is entitled to a new prose-

of the racial discrimination deliberately injected into this case.

cutors dissent, first-degree support my explained sufficient evidence to I earlier there 6. As case, per- ample that Ernest Jones evidence to show in Blair’s and the Mis- murder instruction prosecutor jured at trial inconsistently applied himself its Court souri deliberately deceived the trial court and first-degree precedent when it held that own impeachment minimize the of Jones. defense to was not a lesser included offense murder dis- remanded the case to the We should have capital when Blair was tried. As Justice murder materiality consider the trict court to issue, court noted on this Welliver of that knowing perjured testimony. use of state’s similarly “treated situ- J., Blair, (Heaney, dissent- 1335-41 differently transparent in a ef- ated defendants Moreover, ing). trial court's fail- the Missouri giving them new trials." State v. fort to avoid give felony violated murder instruction ure to (Mo.1983) (Welliv- Holland, 653 S.W.2d right equal protection both and due Blair’s process. er, J., dissenting). Certainly there was Id. at 1341-47.

Case Details

Case Name: Walter J. Blair v. Bill Armontrout, Walter J. Blair v. William Armontrout William Webster

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 3, 1992

Citation: 976 F.2d 1130

Docket Number: 92-1734

Court Abbreviation: 8th Cir.