### The Honorable Richard H. Kyle, United States District Judge 1 

### for the District of Minnesota, sitting by designation. The Honorable Edward L. Filippine, United States District 2 

### Judge for the Eastern District of Missouri. No. 96-2668

Terry Gee, * * Appellant, * Appeal from the United States

* District Court for the Eastern v. * District of Missouri. * Michael Groose, et al., * * Appellees. *

Submitted: January 17, 1997 Filed: April 11, 1997

Bef ore MURPHY, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, an d KYLE, District Judge.

1

KYLE, District Judge.

Te rryGee (“Gee”) appeals the District Court’s denial of hi s 2 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

Background

### Batson v. Kentucky , 476 U.S. 79 (1986). 3 

### The Honorable Thomas C. Mummert, United States Magistrate 4 

### Judge.
-2- On Apr il 18, 1990, Gee was convicted by a jury in Missouri Circui t Court of three counts of first degree robbery and three counts of arme d criminal a ction. The trial court denied Gee’s motion for a new trial , finding that there was no probable cause to beli eve that his trial counsel had been ineffective. Gee then filed a timely notice of appeal; i n additi on, he filed an motion for postconviction relief under Missour i Supreme Court Rule 29.15, which was denied becau se of its untimely filing.

His consolidated appeal challenged h is conviction, sentence, and the denial of his Rule 29.15 motion. The Missouri Court of Appeals affirmed th e conviction and the denial of his Rule 29.15 motion, but remanded for a correction of sentence.
Gee then filed state habeas corpus p etitions in the Circuit Court of Cole County, the Missouri Court of Appeals, and the Missouri Supreme Court

. Each was denied. He subsequently filed a federal habeas petition which was dismisse d except as to the Batson issue, which was referred to a 3 magistrate judge for a Report and Recommendation (“R & R”).
The Magistrate Judge held an evidentiary hearing o n the Batson claim 4 and issued his R & R recommending that the claim be denied. The District Court ado pted the R & R, and dismissed the case with prejudice. Thi s appeal followed.

Discussion

### 28 U.S.C. § 2254(d), as modified April 24, 1996, now 5 

### provides as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the State court proceeding.

. . . 28 U.S.C. § 2254 (d)(1) & (2). -3- In support of his appeal, Gee alleges the following: 1) he was denied his Sixth Amendment r ight to confrontation and cross-examination, as well
as his due process right to a fair trial when the trial court received a detective’s hearsay testimony connecting him to the crimes being tried; 2) he was denied his right to equal protection when the trial court over-rule d his Batsonchallenges ; 3) he was denied his right to equal protection and due proce ss when the trial court dismissed his Rule 29.15 motion a s untimely; and 4) he was denied his right to effective assistance o f counsel.
The Applicable Law of Habeas

Before t urning to Gee’s arguments, we must first address the issu e of the substantive law applicable to our review. On April 24, 1996, 2 8 U.S.C. § 2254 (“the Act”) was amended by the Antiterrorism and Effective Death Penal ty Act of 1996. Pub. L. No. 104-132, 110 Stat. 1214. Gee’ s 5 appeal was pending at the time of

### -4-

the modification. The parties disagree as to which version of the Ac t applies. The Government seeks application of the amended version of the Act, while Gee maintains the amendment should not be applied.
Our Circuit has not yet decided the issue of the applicability of the
new Act to cases pending on appeal at the time of its enactment. See , e.g. , Preston v. Delo , 100 F.3d 596, 599 n.4 (8t h Cir. 1996) (“We have not yet taken a position on whether the amendments to section 2254 apply t o
cases that were pending on April 24, 1996."), cert. denied , No. 96-7182, 1996 WL 745248 (Feb. 18, 1997); Oliver v. Wood , 96 F.3d 1106, 1108 n.2 (8t h Cir. 1996) (“We have not yet determined to what extent the new Act applies to noncapital cases pending on appeal.”). Instea d, we have been faced with
cas es in which the claims presented were “either procedurally barred o r fail[ed] under the more lenient provisions of the old law.” Preston , 100 F.3d at 599 n.4; see also Bannister v. Delo , 100 F.3d 610, 612 (8th Cir. 1996) (“Because we hold that Bannister is not en titled to relief under the prior more lenient habeas law, we do not address the state’s contentio n that the [new] Act is applicable to this appeal and precludes relief.”)

The cas e at bar is no different. We find that here, too, Gee’ s claims fail under even the less restrictive provisions of the Act prior to its 1 996 amendments. Therefore, we need not reach the issue of th e amended Act’s applicability to cases pending on appeal. We will asses s Gee’s arguments under the old Act.

Hearsay Statements

### -5- Ge e’s first argument concerns the admissibility of Detective Lewi s Clayto n’s (“Clayton”) testimony. Clayton testified that he received a dispatch informing hi m of the robberies and stating that a brown Cadillac with Nebraska license plates had been used. He canvassed the area where th e robberies had occurred, noticed a brown Cadillac , and knocked on the doors of homes near the Cadillac. He spoke with an u nidentified woman who told him that someone had parked the Cadillac around 1:00 am and then had walke d toward a n eighboring building. She also stated that a man named Ralp h Jordan (“Jordan”) lived in that building. Clayton returned to the buildin g the next day and questioned Jordan.
In court, Clayton identified a photo of the Cadillac as “the ca r that I observed parked ... that was found to have been stolen and used in the thr ee robberies.” He also testified that Jordan told him that Gee, a friend o f his, had committed the robberies. The court ordered thi s testimony stricken a nd instructed the jury to disregard it. Jordan also told Clayton that Gee had been driving the brown Cadillac. Jordan was not called as a witness.

Gee asserts that the testimony regarding Jordan’s statements wa s inadmi ssible hearsay, the admission of which a) violated his Sixt h Amendment right to confrontation and cross-examination, and b) hi s fundamental right to a fair trial. At the outset, we note that the jury was instructed to dis regard Clayton’s testimony that Jordan told him that Gee was one of the robbers. We presume that the jury followed thi s instr uction. See, e.g. , United States v. Farmer , 73 F.3d 836, 844 (8t h Cir.) (noting presumption that jury follows admonitions), cert. denied , 11 6 S. Ct. 2570 (1996); United States v. Thornberg , 844 F.2d 573, 579 (8th Cir

. 1988) (“We presume th at the jury obeyed these limiting instructions...”).

### While Gee did so in his petition to the District Court, he 6 

### no longer challenges the admission of the unidentified woman’s statement to Clayton explaining that the brown Cadillac was parked at a particular location, and that the occupant walked toward Jordan’s building. -6- The only remaining testimony relevant for our purposes is th e statement that Jordan told Clayton that Gee was driving the brown Cadillac involved i n the robberies. “[I]t is not the province of a federal habeas 6 court to reexamine st ate-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether
a c onviction violated the Constitution, laws, or treaties of the Unite d States.” Estelle v. McQuire , 502 U.S. 62, 67-68 (1991); see also Oliver v. Wood , 96 F.3d 1106, 1 108 (8th Cir. 1996) (“We will not re-examine whether eviden ce was properly admitted under state law...Rather, we will onl y consider whether Gee’ s conviction was obtained in violation of the United States Constitution.” )(citations omitted). Thus, our inquiry here is not whe ther the statement was properly admitted under the Missouri Rules o f Evidence, but whether its admission violated Gee’s constitutional rights.

Sixth Amendment Violation

Gee firs t argues that the admission of this testimony violated hi s Sixth Amendment right s to confrontation and cross-examination. Our review of the record satisfies us that, in light of the quantum of evidenc e link ing Gee to the Cadillac, and otherwise supporting his guilt, th e admission of this statement, even if hearsay, was harmless error.

In Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, (1986), the United States Supreme Court noted that “the constitutionally improper denial of a defendant’s opportunity to

### -7-

impeacha witness for bias, like other Confrontation Clause errors , i s subject to . . . harmless-error analysis.” (emph asis added). “The correct inquiryis whether, assuming that the damaging potential of the cross

examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Id. To make this determination, courts should assess factors such as, “the importance of the witness’ testimony in the prosecution’s case, whether the testimony wa s cumula tive, the presence or absence of evidence corroborating o r contra dicting” the witness’ testimony, and “the overall strength of th e prosecution’s case.” Id.

Gee was c onvicted based on the identification of three eyewitnesses to the robberies. More than one testified to se eing a brown Cadillac used in the robberies. Add itionally, identification by Gee’s friend and former employer, Joe Davis, who had known Gee since he was eight years old, place d Gee in the very brown Cadillac used in the robberies on the day of th e robber ies. Thus, we find that Clayton’s testimony regarding Jordan’ s statements linking Gee to the Cadillac was merely cumulative. It did not constitute the only e vidence on an essential element of the prosecution’s case, nor did it constitute the only evidence li nking Gee to the Cadillac. In light of the overa ll strength of the prosecution’s case, the admission of this testimony was harmless error beyond a reasonable doubt.

Fundamental Right to a Fair Trial Gee also argues that the admission of these statements violated his rig ht to a fair trial. This argument is also without merit. We gran t habea s relief on a state court evidentiary ruling only “if the allege d
error was so conspicuously bad that it fatally infected the trial an d rendered it fundamentally unfair.” Troupe

### -8-

v. Groose , 72 F.3d 75, 76 (8th Cir. 1995). “To carry that burden, th e petitioner must show that there is a reasonable probability that the error complained of affected the outcome of the trial -- i.e., that absent the al leged impropriety the verdict probably would have been different. ” Anderson v. Goeke , 44 F.3d 675, 679 (8th Cir. 1 995). In assessing whether thi s burden has been met, the following are of “particular importance” : “the frequency and pe rvasiveness of the alleged misconduct in the context of the entire trial”; “the weight of the evidence supporting guilt”; and “whether the trial judge gave a cautionary instruction to the jury.” Id.

Gee ha s failed to demonstrate that the verdict would have bee n diff erent but for the admission of Clayton’s statement. The conduc t complained of is the admission of a single, argu ably cumulative, statement connecting Gee to the vehicle used in the robber ies. While the trial court did not give a cautionary instruction on this particular statement, th e weight of the other evidence strongly linked Gee to the vehicle an d supported a finding of his guilt. Based on our review of the record, we cannot say that the a dmission of Clayton’s statement rose to the level of a constitutional violation.

Batson Challenge

Gee asser ts that the Government improperly removed African-American jurors from the venire panel based on their race, in violation of Batson
v. Kentuc ky , 476 U.S. 79 (1986). The Magistrate Judge conducted a n evident iaryhearing on this issue, and the District Court adopted hi s report and recommendation, determining that the Government had not violate d Batson
.

### -9- The equal protection clause prohibits a prosecutor from usin g preemptory challenges to exclude otherwise quali fied persons from the jury panel solely because of their race. See Devose v. Norris , 53 F.3d 201, 20 4 (8th Ci r. 1995) (citing Batson , 476 U.S. at 96.) Under Batson , after a defendan t makes a prima facie case of racial discrimination in th e govern ment’s use of preemptory challenges, the burden shifts to th e government to offer a race-neutral reason for th e strikes. See Troupe , 72 F.3d at 76 (citing Purkett v. Elem , 115 S. Ct. 1 769, 1770 (1995)). If the govern ment gives a race-neutral reason, the reviewing court must decid e whether the defendant has proven purposeful discrimination by evaluating the persuasiveness of the proffered reason. See id. (citations omitted).
Prosecutors need only support their actions with reasons that a re not inherently discrimina tory, regardless of whether the reasons makes sense. Elemv. Purkett , 64 F.3d 1195, 1198 (8th Cir. 1995). The prosecutor’ s expl anation “may be ‘implausible or fantastic,’ even ‘silly o r superst itious,’ and yet still be ‘legitimate,’” but “cannot be a mer e denial of racial motive or mere affirmation of good faith.” Id. Wh ether a race-neutral explanation is a pretext for discriminatio n is a que stion of fact. Gibson v. Bowersox , 78 F.3d 372, 374 (8th Cir. ) (citing Jones v. Jone s , 938 F.2d 838, 841 (8th Cir. 1991)), cert. denied , 117 S. Ct. 158 (1996). While in habeas proceedings in federal courts , factual findings of the state court are presumedto be correct if they are “fairly supported by the record”, id. , we review the District Court’ s findings of fact under the clearly erroneous sta ndard. Sawheny v. Pioneer Hi-Bred I nt’l, Inc. , 93 F.3d 1401, 1407 (8th Cir. 1996). Since th e District Court conducted the evidentiary hearing in this case, we review its factual findings under the clearly erroneous standard. See Reeves

### -10-

v. Hopkins , 102 F.3d 977, 979 (8th Cir. 1996) (“In this section 2254 habea s corpus action, we review the district court’s factual findings for clear error and its legal conclusions de novo.”)

Ge e complains that three stricken African-American panel member s (Adams, Ba rnes, and Butler) shared a common trait with a white membe r (Kueker) w ho was not stricken -- each had a relative in jail. At th e evidentiaryhearing, the prosecutor stated that Kueker had qualities not shar ed with the other stricken jurors: Kueker knew a law enforcemen t office r that the prosecutor knew; she held her incarcerated brothe r responsibl e for his confinement; and both she and her mother had bee n vic tims of a crime similar to that for which Gee was on trial. Thes e
reasons made her a more desirable juror for the prosecution. Moreover , Butler and Barnes hadlaughed in response to voir dire questions, and the prosecutor did not co nsider Adams to be a “pro-state” juror. The defense peremptorily struck Kueker.

While the Government argues here that Gee has failed to demonstrate even a prima facie case of discrimination, we ne ed not reach that issue as
we fi nd that the Government successfully articulated non-discriminator y
reasons for its conduct. There is nothing in the record to convince us tha t the District Court’s factual findings on this issue were clearly erroneous

. We concur with the Di strict Court’s finding that the race neutral reasons proffered by the prosecution were non-pretextual.
Dismissal of Rule 29.15 Motion as Untimely

Gee argue s that he was denied his right to equal protection and due process when the trial court dismissed his Rule 29.15

### Missouri Rule 29.15 (b) states that a motion to vacate, set 7 

### aside, or correct judgment or sentence is due within thirty days from the filing of the transcript of the trial for purposes of the appeal.
-11- motion as u ntimely. He alleges that he deposited his papers with th e 7 proper prison authorities in a timely fashion. The papers, however, did no t reach the court in ti me. When he learned that the court had not received them, he submitted an affidavit explaining that he had timely deposited hi s motion papers with prison officials. Nevertheless, the state cour t dismissed his motion as untimely. Gee alleges that such a rigid applicatio n of the rule operates to “suspend the writ of habeas.”
Gee’s argument on this point is without merit. As the District Court correctly pointed out, “an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habea s petition.” Jolly v. Gammon , 28 F.3d 51, 54 (8th Cir.)(quoting Williams-Bey
v. Trickey , 894 F.2d 314, 317 (8th Cir. 1990)), cert. denied , 115 S. Ct. 462 (1994).

Ineffective Assistance of Counsel
Last, Gee argues that he was denied his right to effective assi stance of appellate counsel because his attorney failed to argue that the trial court e rred in allowing the prosecutor to “elicit” the statement fro m detective Clayton that the brown Cadillac was “stolen.” The trial court offered to instruct the jury to disregard this statement, but defens e
cou nsel never accepted the offer. Gee did not raise this argument i n either of his motions for a new trial. In orde r to obtain relief for a claim of ineffective assistance o f counsel, Gee must demonstrate both that his

### This conclusion is bolstered by our determination that the 8 

### admission of Clayton’s statement itself was not a constitutional violation.
-12- at torney’s representation fell below an objective standard o f reasonableness and that he was prejudiced by this deficient performance. See Parker v. Bowersox , 94 F.3d 458, 461 (8th Cir. 1996) (citing Stricklan d
v. Wa shington , 466 U.S. 668, 687-88, 194 S. Ct. 2052, 2064-65 (1984)) , petition for cert. fi led , No. 96-7729 (Jan. 13, 1997); see also Harris v. Missouri , 960 F.2d 738, 740 (8th Cir. 1992) (applying Strickland test to complaint of ineffective appellate counsel). A ppellate counsel’s conduct is to be evaluated inlight of the circumstances of the case. Pollard v. Delo , 28 F.3d 887, 889-90 (8th Cir.), cert. deni ed , 115 S. Ct. 518 (1994). Reasonable appellate strategy requires an attorney to limit the appeal to those issues counsel determines have the highest likelihood of success. Se e Parker , 94 F.3d at 462.

Bec ause Gee did not raise the issue of the admissibility o f Clayton’s statement in either of his motions for a new trial, the appellat e court’s review of the statement would have been limited to plain error. Se e State v. Smart , 907 S .W.2d 275, 277 (Mo. Ct. App. 1995) (“This failure to include the issues in his motion for new trial means that we can revie w themon ly as plain error . . .”) Moreover, not having sought a curativ e instruction, see State v. Miller , 870 S.W.2d 242 , 245 (Mo. Ct. App. 1994), it is unlikely that a ppellate counsel would have prevailed on this issue.

In l ight of these circumstances, Gee has not demonstrated eithe r that his appellate counsel’s conduct was objecti vely unreasonable, or that it a ffected the outcome of his appeal. See Reese v. Delo , 94 F.3d 1177 , 8 1185 (8 th Cir. 1996) (noting that appellate counsel’s conduct was no t unreasonable when counsel

### -13-

fai led to raise issue that would have been reviewed at the court’ s discretion and for pl ain error.) As he is required to demonstrate both to prevail on this argument, he cannot succeed here.
The judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.