The Honorable Warren K. Ur bom, United States District Judge for the District 1 of Nebraska, adopting the report and recommendation of the Honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the District of Nebraska.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3493

___________ George Carter, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Frank X. Hopkins, * * Appellee. *

___________ Submitted: April 13, 1998 Filed: August 11, 1998

___________ Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ WOLLMAN, Circuit Judge. George Carter

appeals from the district court’s denial of his 28 U.S.C. § 2254 1 petition for writ of habeas corpus. We affirm.Adetailed account of the facts underlying Carter’s convictions is set forth i n 2 State v. Carter , 413 N.W.2d 901, 903-05 (Neb. 1987). In Carter v. Hopkins , 92 F.3d 666 (8th Cir. 1996), ce rt. denied , 117 S. Ct. 1113 3 (1997), we affirmed the denial of habeas relief to Victor Carter, George Carter’ s brother , on his claim that his counsel had rendered ineffective assistance by failing to object to the prosecutor’s allegedly discriminatory use of peremptory challenges during the brothers’ joint trial. The Honorable David L. Piester, United States Magistrate Judge for the District 4 of Nebraska. -2- I.
In 1986, Carter wa s convicted in the State of Nebraska for first degree murder, use of a firearm in the commission of a felony, and being a habitual criminal. Carter 2
was se ntenced to life imprisonment on the murder count and to a consecutive term of ten years on the use of a firearm count. The Supreme Court of Nebraska affirmed his convictions. See State v. Carter , 413 N.W.2 d 901, 907 (Neb. 1987). Carter then filed
a petition for state postconviction relief. His petition was denied, and the Nebrask a Supreme Court subsequently affirmed the denial. See State v. Carter , 489 N.W.2d 846, 857 (Neb. 1992). 3
In 1994, Ca

rter filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 setting forth a myriad of arguments in support of his claim that his conviction was unlawful. Among these was an allegation that the State had improperly exercised peremptory challenges to strike three Afri can-American jurors on account of their race in violation of Batson v. Kentucky , 476 U.S. 79, 89 (1986). A m agistrate judge issued 4 a report and recommendati on rejecting the bulk of Carter’s claims but concluding that the Batson claim was worthy of more careful examination. In reviewing the Batso n claim, the magistrate judge noted that the voir dire proceeding s from Carter’s trial were not recorded and thus were not part of the record. However, because tes timony elicited during state postconviction proceedings indicated that the venire had contained four-3-

African-American individuals and that three of these individuals had been removed via perempt ory challenge while the other was successfully challenged for cause, th e magistrate judge concluded that Carter had set forth a prima facie case under Batson

. The magi strate judge concluded that Carter’s apparent failure to object to th e composition of the jury did not preclude his Batson claim becaus e the State had waived the defense of procedural default. The magistrate judge therefore recommended that
an evidentiary hearing be held in order to allow the State an opportunity to rebu t Carte r’s prima facie case by articulating a race-neutral explanation for its use o f pe remptory challenges. The district court adopted the report and recommendation in its entirety.
On April 25, 1997, Magistrate Judge Jaudzemis held an evidentiary hearing on the Batson claim, at which the prosecutor who had tried Carter’s case testified. The prosecuto r

recalled virtually nothing about the 1986 trial. He did not recall whethe r voir dire had been recorded or whether defense counsel had objected to his exercise of pe remptory challenges. Moreover, he had no recollection whatsoever regarding th e composition of the jury or his use of peremptory challeng es. Carter also testified at the hearing and reiterated his allegation that four African-American individuals had been on the venire and that each had been removed. In addition, Ca rter testified that his trial counsel had ignored his requests to object to the composition of the jury.

Follow ing the hearing, the magistrate judge issued a report recommending that Ca rter’s habeas petition be denied. The district court adopted the report withou t modification. Carter then appl ied to the district court for a certificate of appealability. Concluding that Carter had made a substantial showing of a denial of a constitutional right with respect to his Bat son claim, the court issued a certificate of appealability on that issue, but denied Carter’s application with respect to all other issues.In light of our holding, we deny as moot the sta te’s motion to strike that portion 5 of Carter’s brief that raises issues not specified in the district court’s certificate o f appealability. -4- II.

Alt hough the district court clearly limited the scope of Carter’s certificate o f appealability to the Batson issue only, Carter co ntends that he is entitled to argue other claims as well.

Habeas appeal procedures were amended by the Antiterrorism and Effectiv e Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 1217-18 (April 24, 1996). Under th e new procedures, we may not review an order in a habeas proceeding involving a challenge to a detention arising out of process issued by state court unless a certificate of appealability is first issued. See 28 U.S.C. § 2253(c)(1)(A). A certi ficate of appealability may issue only if the applicant has made a substantia l showing of the denial of a constitutional right. See28 U.S.C . § 2253(c)(2). Moreover, the certificate must specify which of the applicant’s claims satisfy the foregoing test. See 28 U.S.C. § 2253(c)(3). Because Carter’s noticeof appeal was filed well after the AEDPA’s effective date, his argument that the AEDPA’s requirement of a certificate of appealability is inappl icable in his case is foreclosed by our holding in Tiedeman v. Benson , 122 F.3d 518, 520-21 (8th Cir. 1997).
Alternatively, Carter contends that our review is not limited to those issue s identified in the district court’s certificate of appealability and that we are free t o conside r any and all issues so long as a certificate has issued. This argument fails , howe ver, in light of our recent holding that appellate review is limited to the issue s specified in the certificate of appealability. See Ramsey v. Bowersox , No. 97-1576, slip op. at 13 (June 10, 1998) (citing Lackey v. Johnson , 116 F.3d 149 (5th Cir. 1997)); see also Murray v. United States , 1998 WL 374952 (11th Cir. July 7, 1998). 5Alth oughthe AEDPA altered the substantive standards under which federa l 6 courts review state court

determinations of law and fact, these substantive changes do not apply retroactively to cases filed prior to the AEDPA’s effective date. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997); Tiedeman , 122 F.3d at 521; Henderson v. Norris , 118 F.3d 1283, 1288 n.2 (8th Cir. 1997), cert. denied , 118 S. Ct. 1081 (1998). Because Cart er’s habeas petition was filed more than two years before the AEDPA’s effecti ve date, the Act’s more deferential standards of review, now codified at 2 8 U.S.C. § 2254 (1998), are not applicable to this case. Although Batson

was decided twenty days after theconclusion of Carter’s trial, 7 the Supreme Court has held that Batson applies “retroactively to all cases, state o r federal, pending on direct review or not yet final” at the time of the decision. Griffith v. Kentucky , 479 U.S. 314, 328 (1987). Thus, because Carter had not been sentenced at the time Batson was decided, its mandates are applicable to his case. -5- III.

We t urn, then, to Carter’s Batson claim. We review the district court’ s co nclusions of law de novo and its findings of fact for clear error. See Knox v. State of Iowa , 131 F.3d 1278, 1280-81 (8th Cir. 1997). 6

In Batso n , the Supreme Court held that the Equal Protection Clause is violated when the government exerc ises peremptory challenges to strike potential jurors solely on account of their race. 476 U.S. at 89. Under Batson , a defendant carries the initial 7 burden of ma king a prima facie case of purposeful discrimination in the use o f peremptory challenges. See United States v. Orti z-Martinez , 1 F.3d 662, 672 (8th Cir. 1993). The burden then shifts to the government to articulate a race-neut ral explanation for th e strikes. See id. The defendant may then demonstrate that the government’ s explanation is pretextual. See United State s v. Carr , 67 F.3d 171, 175 (8th Cir. 1995). As in any Equal Protection case, the ultimate burden of persuasion is on the defendant to prove the existence of purposeful discrimination. See Batson , 476 U.S. at 93; see also United States v. Feemster , 98 F.3d 1089, 1091-92 (8th Cir. 1996).Ordi narily, a claim that peremptory challenges have been exercised in a 8 discriminatory mann er is procedurally defaulted if there has been no timely objection. See United State s v. Parham , 16 F.3d 844, 847 (8th Cir. 1994); Sledd v. McKune , 71 F.3d 797, 799 (10th Cir. 1995); Jones v. Butl er , 864 F.2d 348, 369-70 (5th Cir. 1988); Governmen t

of the Virgin Islands v. Forte , 806 F.2d 73, 75-76 (3d Cir. 1986 ) (subsequent history omitted). Howe ver, because the state failed to raise the defense of procedural default in

its answer to Carter’s habeas petition, the district court held that any such defense had been waived. -6- As the magistrate judge’s report noted, applying Batson ’s burden-shiftin g framework to the facts of this case is difficult because of the lack of an objection to the composition of the jury during trial. The ensuing delay in raising a challenge to the jury sele ction process has resulted in diminished recollections, as demonstrated by th e prosecutor’s failure to recall anything of significance with re spect to Carter’s trial. The matter is further complicated by the fact that voir dire was not recorded. 8
We are thus faced with the question wh ether Carter is entitled to postconviction relief simply because a lengthy delay of hi s own making has dulled recollections to the extent that th e State can no longer recall the reasons for its use of peremptory strikes. The district court concluded that he was not so entitled. Relying upon the reasoning of the Second Circuit in McCrory v. Henderson , 82 F.3d 1243, 1251 (2d Cir. 1996), the court held that although Carter’s Batson claim was not precluded entirely, the long del ay between jury selection and the filing of Carter’s Batson claim rendere d ap plication of the burden-shifting framework inappropriate. The court accordingl y de niedthe petition, concluding that Carter had failed to carry his ultimate burden o f proving purposeful discrimination.
We agree with the

district court’s conclusion. In formulating Batson ’s burdenshifting framework, the

Supreme Court clearly “envisioned a ‘timely objection’ to the governme nt’s use of peremptory challenges.” United States v. Dobynes , 905 F.2 d 1192, 1196 (8th Cir. 1990) (quoting Batson , 476 U.S. at 99). A timely objection-7-

allows the trial court to remedy the discrimination prior to the commencement of trial and ensures the

creation of an adequate record for review. See Dobynes , 905 F.2d at 1196-97. T he purposes served by a timely objection are frustrated when th e government is put in the position of having to explain the reasons for its use o f peremptory strikes after it is no lon ger reasonable or practicable to expect it to be able to do so. As the Second Circuit recognized in McCrory :

Batson ’ s burden-shifting formula makes sense when applied to a n ob jection raised sufficiently promptly that the attorney exercising th e cha llenges can reasonably be expected to remember the reasons for th e challe nges. On the other hand, it would be altogether unreasonable t o shift the burden of explanation if the objection is so tardily made that the challenging attorney cannot be reasonably expected to remember.
The rea sons lawyers prefer one juror over another can involve subtl e fleeting impressions. During jury selection, lawyers can observe a large num ber of jurors (here 40) over a relatively short time, and form th e impressions that will determine which ones they challenge. While th e jurors selected for trial remain und er the lawyer’s scrutiny throughout the trial, those challenged disappear from view after only a brief observation. Lawyers, excepting those possessing remarkable capacity for memo ry, are unlikely to remember the challenged jurors or the decision to ch allenge for very long.

82 F.3d at 1251.

In this case, the consequences of Carter’s tardiness are substantial. The stat e was not confronted with the burden of articulating race-neutral explanations for its use of p eremptory strikes until approximately eleven years after the completion of trial

. Hamstrung b y the effects of the passage of time, the state could not reasonably b e ex pected to remember the reasons for its challenges. We therefore conclude that i t would be inappropriate to apply Batson ’s burden-shifting framework in this case.-8-

Because Carter did not meet h is ultimate burden of proving purposeful discrimination, the district court properly denied his petition for writ of habeas corpus.
The judgment is affirmed.
A true copy.

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