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 

 

Before MURPHY, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and

KYLE, District Judge. 1

 

KYLE, District Judge.

Terry Gee (“Gee”) appeals the District Court’s denial of his

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.

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On April 18, 1990, Gee was convicted by a jury in Missouri Circuit

Court of three counts of first degree robbery and three counts of armed

criminal action. The trial court denied Gee’s motion for a new trial,

finding that there was no probable cause to believe that his trial counsel

had been ineffective. Gee then filed a timely notice of appeal; in

addition, he filed an motion for postconviction relief under Missouri

Supreme Court Rule 29.15, which was denied because of its untimely filing.

His consolidated appeal challenged his conviction, sentence, and the

denial of his Rule 29.15 motion. The Missouri Court of Appeals affirmed the

conviction and the denial of his Rule 29.15 motion, but remanded for a

correction of sentence. 

Gee then filed state habeas corpus petitions 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

dismissed 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 on the Batson claim 4

and issued his R & R recommending that the claim be denied. The District

Court adopted the R & R, and dismissed the case with prejudice. This

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).

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In support of his appeal, Gee alleges the following: 1) he was denied

his Sixth Amendment right 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-ruled

his Batson challenges; 3) he was denied his right to equal protection and

due process when the trial court dismissed his Rule 29.15 motion as

untimely; and 4) he was denied his right to effective assistance of

counsel.

The Applicable Law of Habeas

Before turning to Gee’s arguments, we must first address the issue

of the substantive law applicable to our review. On April 24, 1996, 28

U.S.C. § 2254 (“the Act”) was amended by the Antiterrorism and Effective

Death Penalty Act of 1996. Pub. L. No. 104-132, 110 Stat. 1214. Gee’s

5

appeal was pending at the time of 
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the modification. The parties disagree as to which version of the Act

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 (8th Cir. 1996) (“We have not

yet taken a position on whether the amendments to section 2254 apply to

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 (8th

Cir. 1996) (“We have not yet determined to what extent the new Act applies

to noncapital cases pending on appeal.”). Instead, we have been faced with

cases in which the claims presented were “either procedurally barred or

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 entitled to relief under the

prior more lenient habeas law, we do not address the state’s contention

that the [new] Act is applicable to this appeal and precludes relief.”) 

 The case 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 1996 amendments. Therefore, we need not reach the issue of the

amended Act’s applicability to cases pending on appeal. We will assess

Gee’s arguments under the old Act. 

Hearsay Statements
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Gee’s first argument concerns the admissibility of Detective Lewis

Clayton’s (“Clayton”) testimony. Clayton testified that he received a

dispatch informing him of the robberies and stating that a brown Cadillac

with Nebraska license plates had been used. He canvassed the area where the

robberies had occurred, noticed a brown Cadillac, and knocked on the doors

of homes near the Cadillac. He spoke with an unidentified woman who told

him that someone had parked the Cadillac around 1:00 am and then had walked

toward a neighboring building. She also stated that a man named Ralph

Jordan (“Jordan”) lived in that building. Clayton returned to the building

the next day and questioned Jordan.

In court, Clayton identified a photo of the Cadillac as “the car that

I observed parked ... that was found to have been stolen and used in the

three robberies.” He also testified that Jordan told him that Gee, a

friend of his, had committed the robberies. The court ordered this

testimony stricken and 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 was

inadmissible hearsay, the admission of which a) violated his Sixth

Amendment right to confrontation and cross-examination, and b) his

fundamental right to a fair trial. At the outset, we note that the jury

was instructed to disregard Clayton’s testimony that Jordan told him that

Gee was one of the robbers. We presume that the jury followed this

instruction. See, e.g., United States v. Farmer, 73 F.3d 836, 844 (8th

Cir.) (noting presumption that jury follows admonitions), cert. denied, 116

S. Ct. 2570 (1996); United States v. Thornberg, 844 F.2d 573, 579 (8th Cir.

1988) (“We presume that 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.

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The only remaining testimony relevant for our purposes is the

statement that Jordan told Clayton that Gee was driving the brown Cadillac

involved in the robberies. “[I]t is not the province of a federal habeas 6

court to reexamine state-court determinations on state-law questions. In

conducting habeas review, a federal court is limited to deciding whether

a conviction violated the Constitution, laws, or treaties of the United

States.” Estelle v. McQuire, 502 U.S. 62, 67-68 (1991); see also Oliver v.

Wood, 96 F.3d 1106, 1108 (8th Cir. 1996) (“We will not re-examine whether

evidence was properly admitted under state law...Rather, we will only

consider whether Gee’s conviction was obtained in violation of the United

States Constitution.”)(citations omitted). Thus, our inquiry here is not

whether the statement was properly admitted under the Missouri Rules of

Evidence, but whether its admission violated Gee’s constitutional rights.

Sixth Amendment Violation

Gee first argues that the admission of this testimony violated his

Sixth Amendment rights to confrontation and cross-examination. Our review

of the record satisfies us that, in light of the quantum of evidence

linking Gee to the Cadillac, and otherwise supporting his guilt, the

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 
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impeach a witness for bias, like other Confrontation Clause errors, is

subject to . . . harmless-error analysis.” (emphasis added). “The correct

inquiry is whether, assuming that the damaging potential of the crossexamination 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 was

cumulative, the presence or absence of evidence corroborating or

contradicting” the witness’ testimony, and “the overall strength of the

prosecution’s case.” Id.

Gee was convicted based on the identification of three eyewitnesses

to the robberies. More than one testified to seeing a brown Cadillac used

in the robberies. Additionally, identification by Gee’s friend and former

employer, Joe Davis, who had known Gee since he was eight years old, placed

Gee in the very brown Cadillac used in the robberies on the day of the

robberies. 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 evidence on an essential element of the prosecution’s

case, nor did it constitute the only evidence linking Gee to the Cadillac.

In light of the overall 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

right to a fair trial. This argument is also without merit. We grant

habeas relief on a state court evidentiary ruling only “if the alleged

error was so conspicuously bad that it fatally infected the trial and

rendered it fundamentally unfair.” Troupe 
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v. Groose, 72 F.3d 75, 76 (8th Cir. 1995). “To carry that burden, the

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

alleged impropriety the verdict probably would have been different.”

Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). In assessing whether

this burden has been met, the following are of “particular importance”:

“the frequency and pervasiveness 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 has failed to demonstrate that the verdict would have been

different but for the admission of Clayton’s statement. The conduct

complained of is the admission of a single, arguably cumulative, statement

connecting Gee to the vehicle used in the robberies. While the trial court

did not give a cautionary instruction on this particular statement, the

weight of the other evidence strongly linked Gee to the vehicle and

supported a finding of his guilt. Based on our review of the record, we

cannot say that the admission of Clayton’s statement rose to the level of

a constitutional violation. 

Batson Challenge

Gee asserts that the Government improperly removed African-American

jurors from the venire panel based on their race, in violation of Batson

v. Kentucky, 476 U.S. 79 (1986). The Magistrate Judge conducted an

evidentiary hearing on this issue, and the District Court adopted his

report and recommendation, determining that the Government had not violated

Batson.
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The equal protection clause prohibits a prosecutor from using

preemptory challenges to exclude otherwise qualified persons from the jury

panel solely because of their race. See Devose v. Norris, 53 F.3d 201, 204

(8th Cir. 1995) (citing Batson, 476 U.S. at 96.) Under Batson, after a

defendant makes a prima facie case of racial discrimination in the

government’s use of preemptory challenges, the burden shifts to the

government to offer a race-neutral reason for the strikes. See Troupe, 72

F.3d at 76 (citing Purkett v. Elem, 115 S. Ct. 1769, 1770 (1995)). If the

government gives a race-neutral reason, the reviewing court must decide

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 are not

inherently discriminatory, regardless of whether the reasons makes sense.

Elem v. Purkett, 64 F.3d 1195, 1198 (8th Cir. 1995). The prosecutor’s

explanation “may be ‘implausible or fantastic,’ even ‘silly or

superstitious,’ and yet still be ‘legitimate,’” but “cannot be a mere

denial of racial motive or mere affirmation of good faith.” Id. 

Whether a race-neutral explanation is a pretext for discrimination

is a question of fact. Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.)

(citing Jones v. Jones, 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 presumed to be correct if they are

“fairly supported by the record”, id., we review the District Court’s

findings of fact under the clearly erroneous standard. Sawheny v. Pioneer

Hi-Bred Int’l, Inc., 93 F.3d 1401, 1407 (8th Cir. 1996). Since the

District Court conducted the evidentiary hearing in this case, we review

its factual findings under the clearly erroneous standard. See Reeves 
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v. Hopkins, 102 F.3d 977, 979 (8th Cir. 1996) (“In this section 2254 habeas

corpus action, we review the district court’s factual findings for clear

error and its legal conclusions de novo.”)

Gee complains that three stricken African-American panel members

(Adams, Barnes, and Butler) shared a common trait with a white member

(Kueker) who was not stricken -- each had a relative in jail. At the

evidentiary hearing, the prosecutor stated that Kueker had qualities not

shared with the other stricken jurors: Kueker knew a law enforcement

officer that the prosecutor knew; she held her incarcerated brother

responsible for his confinement; and both she and her mother had been

victims of a crime similar to that for which Gee was on trial. These

reasons made her a more desirable juror for the prosecution. Moreover,

Butler and Barnes had laughed in response to voir dire questions, and the

prosecutor did not consider 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 need not reach that issue as

we find that the Government successfully articulated non-discriminatory

reasons for its conduct. There is nothing in the record to convince us that

the District Court’s factual findings on this issue were clearly erroneous.

We concur with the District Court’s finding that the race neutral reasons

proffered by the prosecution were non-pretextual.

Dismissal of Rule 29.15 Motion as Untimely

Gee argues 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.

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motion as untimely. He alleges that he deposited his papers with the

7

proper prison authorities in a timely fashion. The papers, however, did not

reach the court in time. When he learned that the court had not received

them, he submitted an affidavit explaining that he had timely deposited his

motion papers with prison officials. Nevertheless, the state court

dismissed his motion as untimely. Gee alleges that such a rigid application

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 habeas

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 assistance

of appellate counsel because his attorney failed to argue that the trial

court erred in allowing the prosecutor to “elicit” the statement from

detective Clayton that the brown Cadillac was “stolen.” The trial court

offered to instruct the jury to disregard this statement, but defense

counsel never accepted the offer. Gee did not raise this argument in

either of his motions for a new trial. 

In order to obtain relief for a claim of ineffective assistance of

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.

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attorney’s representation fell below an objective standard of

reasonableness and that he was prejudiced by this deficient performance.

See Parker v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996) (citing Strickland

v. Washington, 466 U.S. 668, 687-88, 194 S. Ct. 2052, 2064-65 (1984)),

petition for cert. filed, 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). Appellate counsel’s conduct

is to be evaluated in light of the circumstances of the case. Pollard v.

Delo, 28 F.3d 887, 889-90 (8th Cir.), cert. denied, 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. See

Parker, 94 F.3d at 462.

 Because Gee did not raise the issue of the admissibility of

Clayton’s statement in either of his motions for a new trial, the appellate

court’s review of the statement would have been limited to plain error. See

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 review

them only as plain error . . .”) Moreover, not having sought a curative

instruction, see State v. Miller, 870 S.W.2d 242, 245 (Mo. Ct. App. 1994),

it is unlikely that appellate counsel would have prevailed on this issue.

 In light of these circumstances, Gee has not demonstrated either

that his appellate counsel’s conduct was objectively unreasonable, or that

it affected the outcome of his appeal. See Reese v. Delo, 94 F.3d 1177,

8

1185 (8th Cir. 1996) (noting that appellate counsel’s conduct was not

unreasonable when counsel 
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failed to raise issue that would have been reviewed at the court’s

discretion and for plain 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.