United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-2456

___________

Herbert Smulls, *

*

Petitioner - Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Don Roper, Superintendent, Potosi *

Correctional Center, *

*

Respondent - Appellee. *

___________

Submitted: May 18, 2006

Filed: November 1, 2006

___________

Before BYE, HANSEN, and SMITH, Circuit Judges.

___________

BYE, Circuit Judge.

A Missouri jury convicted Herbert Smulls of first degree murder and other

crimes and sentenced him to death. His convictions and sentence were affirmed on

appeal and his motion for post-conviction relief was denied. Smulls then filed this 28

U.S.C. § 2254 petition raising numerous grounds for relief. The district court denied

the petition and this court granted a certificate of appealabiliy. We now affirm in part,

reverse in part, and remand for further proceedings.
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I

On July 27, 1991, Smulls and Norman Brown robbed a jewelry store owned by

Stephen and Florence Honickman. In the course of the robbery, Smulls shot Stephen

and Florence; Steven died from his wounds and Florence sustained permanent

injuries. Smulls was charged with first degree murder, first degree assault, two counts

of first degree robbery and two counts of armed criminal action. At his first trial, the

jury found Smulls guilty of first degree robbery but failed to reach verdicts as to the

remaining counts. Upon retrial, the jury found Smulls guilty of the five remaining

counts. 

During jury selection at Smulls's second trial, defense counsel objected to the

prosecutor's exercise of a peremptory challenge to remove Margaret Sidney from the

jury. Counsel identified Sidney as African-American and argued the prosecutor's

challenge violated Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor offered

the following explanation for the challenge:

Judge, I made nine strikes. I did strike the juror Ms. Sidney who, I

guess, for the record was a black female. My reasons for striking Ms.

Sidney are based both upon what I observed during our voir dire and

based upon my experience in trying criminal lawsuits, which has

exceeded 50 cases in this courthouse including several cases before this

Court in the nine years that I have been a prosecuting attorney. My

concerns with Ms. Sidney began yesterday. Ms. Sidney was very silent

during all of the questioning. I observed at one point during my

questioning concerning the death penalty a glare on her face as I was

questioning that area. She was seated in the back row, I believe,

yesterday. When I looked directly at her and asked that last row a

question, she averted her eyes and wouldn't answer my question and

wouldn't look at me. That made me very nervous. The only response I

was able to get out of Ms. Sidney today was when I asked her about her

occupation. At first she responded with what I though [sic] was a very

irritated answer. She indicated that she is a mail sorter for Monsanto
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Company. That she sorts mail for, I believe she said, 5000 people. And

her husband works for the post office. And I believe she listed him as a

custodian. It's been my experience in the nine years that I've been a

prosecutor that I treat people who work as mail sorters and as mail

carriers, letter carriers and people who work for the U.S. Post Office with

great suspicion in that they have generally – in my experience in many

of the trials that I've had – are very disgruntled, unhappy people with the

system and make every effort to strike back. In my experience as a

prosecutor, in trying cases where I've had several cases and left mail

people on the jury, had them result in a hung jury. The most recent of

which was a murder case in this courthouse last September, State versus

Dana Ruff (phonetically) where a mail carrier was the holdout for a hung

jury in that case. I also have several in-laws who are employees of the

postal department and even though they are somewhat relatives, I share

the same opinion of them. So I treat them with great suspicion. When

she glared at me and just her general attitude, which included her outfit

– which yesterday, I believe, included a beret and today was a ball cap

with sequins on it, I just felt that she wouldn't be a good states [sic] juror.

Certainly, not a strong juror in the consideration of death, should we get

to that part of the trial. And also I would point out for the Court that I

struck juror number eight, Ms. Dillard. I struck her for the very same

reason in that she is a letter carrier and works delivering mail. And I

though [sic] her attitude was also confrontational. And I did not feel that

her answers were ones that would give rise to me believing she would be

a strong states [sic] juror. Ms. Dillard, I would point out, is a white

female. And I struck her for virtually the same reasons. It's been my

experience that when I left postal workers on who seem to have an

attitude, based on my interpretation, that I've had bad results. And that's

why I struck her.

Appellant's App. at 14-16.

Without waiting for a response from Smulls's lawyer, the trial court overruled

the Batson challenge. Defense counsel persisted, however, and argued:

First of all, I've been a trial attorney as long as he has, trying as many

cases as he has and I didn't detect any type of attitude from Ms. Sidney.
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Secondly, he said she remained silent during his questioning during the

death qualification. He didn't ask her a direct question. Numerous jurors

remained silent during his death question because he didn't ask them

direct questions. Ms. Beeson. He didn't ask Ms. Uhlmansiek questions

although he did strike her. Ms. Linn, who is a white female, she

remained totally silent. I'm the only one who talked to her at all other

than Mr. Copper asking her what municipality she lived in, but he did

not strike her. So numerous jurors and the record will reflect that,

remained silent during Mr. Waldemer's questioning. Once again today

when he asked her about her occupation I did not detect any kind of

animosity on her part. I think the clothing reasons are clearly pretextural

[sic]. I think that there is a case where there was a juror struck on the

basis of looking like what the prosecutor called a 'due debt.' And the

Court found that to be pretextural [sic] and sent it back. That occurred

in the City of St. Louis, but I don't have the name of the case. With

regard to her being a postal worker, Mr. Waldemer has mentioned that

they're at the bottom of the employment rung. I think a lot of postal

workers make more money, because they're federal employees, than a lot

of people who come in here for jury duty. He said he struck Ms. Dillard

because she was a postal worker. She also indicated she knew the victim

in this case, Florence Honickman. And to be perfectly honest, I would

think that the state might have concerns that she wouldn't like Mrs.

Honickman based on Mrs. Honickman's demeanor and based on

comments that Mr. Waldemer made about Mrs. Honickman. So that

could have very well been part of the reason for striking Ms. Dillard,

other than her being a postal employee. So I feel that his reasons were

pretextural [sic]. 

Id. at 16-18. 

Without making any on-the-record findings articulating its reasoning, the trial

court overruled the Batson challenge. The following morning, Smulls's attorney

renewed the Batson challenge and the following colloquy occurred: 
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MS. KRAFT: Judge, I believe I stated on the record yesterday when I

made my record that Ms. Sidney was the only black juror remaining out

of the 30. 

 THE COURT: You made that statement. 

 MS. KRAFT: Okay. 

 THE COURT: You see, I have a problem. I don't know what it is to be

black. I don't know what constitutes black. And I never, in this Court,

no matter what any appellate court may say, I never take judicial notice

that anybody is black or that only one person or four persons or eight

persons are black. That to me is something that I don't think this Court

is wise enough or any other appellate court is wise enough unless there

is direct evidence as to who is black and who is white and who is orange

and who is purple. I do not under any circumstances in this division ever

take judicial notice of the number of people who are black. And I

believe that's counsel's responsibility to prove who is black and who isn't

or who is a minority and who isn't. There were some dark complexioned

people on this jury. I don't know if that makes them black or white. As

I said, I don't know what constitutes black. Years ago they used to say

one drop of blood constitutes black. I don't know what black means. Can

somebody enlighten me of what black is? I don't know; I think of them

as people. I listened to the responses of Ms. Sidney. I watched her

attitude very briefly as it may have been, and I'm not going to sit here

and say to you that Ms. Sidney is not black. But I'm not going to make

a judgment as to whether anybody else on the panel was, so in any event,

I'm merely telling you that for the record. I'd rather not even discuss it on

the record. But, in any event, I'm going to deny your motion for a

mistrial on the basis stated. Are we ready to proceed?

Id. at 26-28.

On appeal, the Missouri Supreme Court, without commenting on the absence

of findings, upheld the trial court's denial of the Batson challenge. The Court

concluded the trial court did not clearly err because "[r]easons such as these have been

found to support a ruling that a trial court did not clearly err[,]" and "[e]ven assuming
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the prosecutor's reasons for challenging mail sorters and postal workers are nonsensical, this does not establish the reasons are inherently pretextual." State v. Smulls,

935 S.W.2d 9, 15-16 (Mo. S.Ct. 1996) (en banc).

Thereafter, Smulls filed his § 2254 petition. After the district court denied the

petition, we granted a certificate of appealability. On appeal, Smulls argues 1) the

prosecutor violated Batson by striking the lone black venireperson from the jury, 2)

counsel was ineffective for failing to fully develop the Batson challenge, and 3)

counsel was ineffective for failing to seek the disqualification of the trial judge.

II

Our review of Smulls's claims is governed by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA). We may not grant a writ of habeas corpus with

respect to any issue decided by the Missouri courts unless the decision "was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court" or the decision "was based on an unreasonable

determination of the facts in light of the evidence presented in the State court." 28

U.S.C. § 2254(d)(1), (2). In Penry v. Johnson, 532 U.S. 782 (2001), the Supreme

Court reiterated its interpretation of § 2254(d)(1)'s "contrary to" and "unreasonable

application of" federal law standards. 

A state court decision is "contrary to" clearly established precedent if the

state court either "applies a rule that contradicts the governing law set

forth in our cases," or "confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives

at a result different from our precedent." A state court decision will be

an "unreasonable application of" our clearly established precedent if it

"correctly identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner's case." 

. . . 
1

The state concedes the prosecutor's claim was inaccurate.

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Distinguishing between an unreasonable and an incorrect application of

federal law, we clarified that even if the federal habeas court concludes

that the state court decision applied clearly established federal law

incorrectly, relief is appropriate only if that application is also

objectively unreasonable. 

532 U.S. at 792-93 (citations omitted).

When reviewing a district court's denial of a § 2254 petition, we review the

court's findings of fact for clear error and conclusions of law de novo. King v.

Bowersox, 291 F.3d 539, 540 (8th Cir. 2002).

Smulls first argues the prosecutor's peremptory challenge of venireperson

Sidney violated Batson. The Equal Protection Clause of the United States

Constitution prohibits using peremptory challenges to exclude jurors on the basis of

race. Batson, 476 U.S. at 89. To prove purposeful discrimination in the use of a

peremptory challenge, a defendant must first make a prima facie case of racial

discrimination. If such a showing is made, the state must suggest a race-neutral

explanation for the strike. Finally, if a race-neutral explanation is offered, the trial

court must decide whether the party objecting to the strike has proved purposeful

discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995); United States v. Jones,

245 F.3d 990, 992 (8th Cir. 2001).

Smulls argues the prosecutor's stated reasons were pretextual because they were

contrary to or unsupported by the record. For example, Smulls claims the prosecutor's

characterization of Sidney as a "mail sorter" or "mail carrier" was erroneous because

the record shows Sidney was a member of management at Monsanto, and, among

other duties, supervised employees responsible for sorting and distributing mail.

Additionally, Smulls argues the prosecutor's claim that a previous jury had been hung

by a postal employee is factually inaccurate.1
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Both the trial court and the Missouri Supreme Court failed to analyze these

factual disputes on the record. The district court took note of them but concluded,

based on its review of the record, the prosecutor was aware of Sidney's actual job

description and, even though he was mistaken about his earlier trial, the prosecutor

believed a postal worker voted against conviction. Therefore, the district court

concluded the Missouri courts' application of federal law was not unreasonable. 

 

Smulls also argues the district court's rejection of his Batson challenge was

erroneous because the trial court failed to make any factual findings to support the

prosecutor's claim Sidney "glared" at him or acted "irritated" by the questioning.

According to Smulls, defense counsel disputed the prosecutor's alleged observations

and the trial court should have resolved the dispute on the record. Smulls also argues

the side-by-side comparison of Sidney and venireperson Dillard was improper because

Dillard knew the victim and was, therefore, not similarly situated. 

 

Once again, neither the trial court or the Missouri Supreme Court chose to

address these arguments on the record. The district court noted the lack of findings

but rejected the arguments because defense counsel's disagreement "neither confirms

nor denies that Ms. Sidney had a poor demeanor." Further, the district court

concluded the lack of findings did not make the trial court's decision unreasonable.

Instead, it concluded the trial court's rejection of the Batson challenge, and the

Missouri Supreme Court's reliance upon the trial court, were reasonable based on the

record.

We are concerned with the perfunctory manner in which the trial court handled

Smulls's Batson challenge. We have previously emphasized the need to "make[]

detailed findings on the record in support of a ruling on a peremptory challenge under

Batson." Moran v. Clarke, 443 F.3d 646, 653 (8th Cir. 2006) (citing U.S. Xpress

Enter., Inc., v. J.B. Hunt Transp., Inc., 320 F3d 809, 814 (8th Cir. 2003)). Such a
-9-

view is entirely consistent with clearly established Supreme Court precedent stressing

the importance for trial courts to carefully consider all evidence bearing on the issue.

See Batson, 476 U.S. at 96 ("In deciding whether the defendant has made the requisite

[prima facie] showing, the trial court should consider all relevant circumstances.").

As to the issue of discriminatory intent – the third step in a Batson challenge, "Batson

. . . requires the judge to assess the plausibility of [the prosecutor's] reason in light of

all evidence with a bearing on it." Miller-El v. Dretke, 125 S.Ct. 2317, 2331-32

(2005) (citation omitted). "In deciding if the defendant has carried his burden of

persuasion, a court must undertake a 'sensitive inquiry into such circumstantial and

direct evidence of intent as may be available.'" Batson, 476 U.S. at 93 (quoting

Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977)). 

The record before us offers little to suggest the trial court engaged in the

evaluative process anticipated by Batson and its progeny. Notably, the court initially

denied the challenge without ever affording defense counsel an opportunity to rebut

the racially-neutral reasons offered by the prosecutor. Despite these concerns,

however, our decision today is not based solely upon what the trial court failed to say

on the record. But see Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) ('[S]ome

engagement with the evidence considered is necessary as part of step three of the

Batson inquiry,' and requires 'more than a terse, abrupt comment that the prosecutor

has satisfied Batson.') (quoting Riley v. Taylor, 277 F.3d 262, 290-91 (3d Cir. 2001)

(en banc)); Barnes v. Anderson, 202 F.3d 150, 156 (2d Cir. 1999) (ordering a new trial

where the trial court denied a Batson challenge "without explicit adjudication of the

credibility of the non-movant's race-neutral explanations for the challenged strikes.");

and United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) (remanding where "the

record . . . indicates nothing about the district court's thought processes . . . apart from

its abrupt conclusion . . . that the prosecutor's asserted justification outweighed [the

defendant's] showing under the totality of the circumstances."). Rather, we reverse

because trial court refused to recognize and assess all relevant circumstances as

required by clearly established federal law. 
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When defense counsel attempted to establish for the record that Sidney was the

only black juror remaining in the jury pool, the trial court inexplicably refused to

acknowledge or consider the racial composition of the jury pool. "I don't know what

constitutes black. And I never, in this Court, no matter what any appellate court may

say, I never take judicial notice that anyone is black or that only one person or four

persons or eight persons are black." Instead of considering the composition of the jury

pool, as mandated by Supreme Court precedent, the trial court imposed upon the

defendant an unprecedented, if not impossible, burden: 

That to me is something that I don't think this Court is wise enough or

any other appellate court is wise enough unless there is direct evidence

as to who is black and who is white and who is orange and who is

purple. I do not under any circumstances in this division ever take

judicial notice of the number of people who are black. And I believe

that's counsel's responsibility to prove who is black and who isn't or who

is a minority and who isn't.

Appellant's App. at 27.

We fail to comprehend how a trial court, faced with a Batson challenge, can

purport to fulfill its obligation to properly evaluate the merits of such a claim without

taking the race of prospective jurors into account. Further, we do not believe a trial

court may simply avoid Batson by demanding the proponent of the challenge meet a

burden of proof which finds no support in Supreme Court precedent. 

 We are aware the parties focus their arguments only on Sidney and there is no

contention other jurors were improperly struck from the jury pool. Thus, it could be

argued the trial court's refusal to consider the race of other prospective jurors is

irrelevant to this discussion. We believe, however, under the unusual circumstances

of this case, the trial court's actions and comments are indicative of a deeper problem.

The trial court's initial failure to afford defense counsel an opportunity to respond to

the prosecutor's racially-neutral reasons, the complete lack of findings, and the trial
-11-

court's refusal to consider the race of prospective jurors absent "direct evidence,"

combine to demonstrate the court was from the outset antagonistic towards the Batson

challenge and unwilling to engage in the sensitive inquiry into circumstantial and

direct evidence as required. See U.S. Xpress Enter., Inc., 320 F.3d at 814 n.4 (noting

that under certain circumstances the "lack of specificity in a trial court record to

demonstrate compliance with the Batson analysis may require remand for further

findings."). Thus, we are not bound by the normal presumption of correctness in favor

of the trial court's findings or the Missouri Supreme Court's affirmance of those

findings. Any other conclusion would render illusory the already tenuous protections

afforded under Batson. 

We do not hold that, had the trial court accepted and applied controlling

Supreme Court precedent, Smulls's Batson challenge would necessarily have been

successful. Instead, we conclude the trial court's apparent finding of no purposeful

discrimination cannot be accorded the normal presumption of correctness because of

its refusal to consider all relevant circumstances as required by clearly established

federal law. Moreover, the Missouri Supreme Court's conclusion that the trial court

acted properly was an unreasonable application of clearly established federal

precedent. Accordingly, we reverse that portion of the district court's judgment

denying Smulls's habeas petition based on a violation of Batson, and remand with

instructions to, in the district court's discretion, reconstruct the circumstances

surrounding Smulls's Batson challenge to determine whether the prosecutor's strike

of venireperson Sidney was racially motivated. We recognize the passage of time and

other circumstances, e.g., the disqualification of the trial court from post-conviction

proceedings, may make such a task impossible or unsatisfactory. If that proves true,

we direct the district court to grant the writ. See Batson, 476 U.S. at 100 (remanding

for further analysis of the Batson claim); Brinson v. Vaughn, 398 F.3d 225, 235 (3d
2

We find Smulls's remaining ineffective assistance of counsel claims to be

without merit and affirm the district court's dismissal of those claims.

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Cir. 2005) (same); Hardcastle, 368 F.3d at 261-62 (same); and Garlarza v. Keane, 252

F.3d 630, 640-41 (2d Cir. 2001) (same).2

 

III

For the reasons stated herein, the district court's dismissal of the petition is

reversed, and the case is remanded for further proceedings in accordance with this

opinion. We affirm the district court in all other respects. 

HANSEN, Circuit Judge, dissenting in part and concurring in part.

While the court recites the proper standard for reviewing the state court

proceedings, in my view it fails to adhere to that standard, and I therefore respectfully

dissent from the court's disposition of the Batson claim. I concur in the court's

disposition of Smulls’ ineffective assistance of counsel claims. 

It bears repeating that a federal court "shall not . . . grant[]" an application for

a writ of habeas corpus to a prisoner in state custody unless the State courts'

adjudication of the prisoner's 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 presented in the State

court proceeding.
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28 U.S.C. § 2254(d). In ruling on an application for a writ of habeas corpus, "a

determination of a factual issue made by a State court shall be presumed to be

correct," unless rebutted "by clear and convincing evidence." § 2254(e)(1). "[A]

federal habeas court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must also be

unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000) (O'Connor, J.,

concurring).

I can find no clearly established Supreme Court precedent, and the court cites

to none, that the Supreme Court of Missouri acted contrary to or unreasonably applied

in rejecting Smulls’ Batson challenge. See Boyd v. Newland, 455 F.3d 897, 902 (9th

Cir. 2006) (holding that the state appellate court's determination that appellant failed

to establish a prima facie Batson case was entitled to deference even though the state

trial court applied a more onerous state standard, where the state appellate court

analyzed the Batson claim under the proper federal standard). The state trial court

applied the Batson standard and rejected Smulls’ claim. On direct appeal, the

Supreme Court of Missouri unanimously affirmed on the Batson claim, finding that

Smulls objected to the prosecutor's strike of Ms. Sidney as racially discriminatory, that

the prosecutor offered race-neutral reasons for the strike, and that the defense argued

that the stated reasons were pretextual. The Supreme Court of Missouri correctly

articulated the Batson three-step standard, found that the prosecutor's proffered

reasons related to Ms. Sidney's occupation and demeanor are reasons that have been

found to be race neutral, and concluded that the trial court did not clearly err in

overruling the Batson challenge. See State v. Smulls, 935 S.W.2d 9, 14-15 (Mo.

1996) (en banc), cert. denied, 520 U.S. 1254 (1997). This is not a case where the state

courts misapplied Batson or its progeny by applying an incorrect legal standard. Cf.

Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.) (remanding for an evidentiary

hearing where the California state courts, following state law, "erroneously required

a defendant to show a 'strong likelihood' of discrimination in order to establish a
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prima facie case rather than just an 'inference' of discrimination as required by

Batson"), cert. denied, 537 U.S. 1000 (2002). There is nothing in the Supreme Court

of Missouri's analysis that is contrary to Batson. See U.S. Xpress Enterprs., Inc. v.

J.B. Hunt Transp., Inc., 320 F.3d 809, 814 (8th Cir. 2003) (concluding that the trial

court engaged in "a full Batson analysis" where the objector made a Batson challenge,

the proponent of the strike offered race-neutral explanations, both parties were

allowed to argue their positions, and the trial court granted the motion without making

any specific findings, implicitly finding the proponent's reasons to be racially

motivated); see also Messiah v. Duncan, 435 F.3d 186, 189 (2d Cir. 2006) (holding

that the trial court fulfills its "duty to rule" on the Batson third-step analysis "by

expressing a clear intent to uphold or reject a strike after listening to the challenge, the

race-neutral explanation, and the arguments of the parties"). 

I similarly find no unreasonable determination of the facts in light of the

evidence presented in state court. Our court is disturbed by the absence of specific

fact-findings, as well as the state trial court's purported refusal to recognize and assess

all of the relevant circumstances (as we can do in the quiet of an appellate chambers,

far removed from the press of an ongoing trial). However, federal law has never

required explicit fact-findings, especially where a prima facie case is acknowledged

and the prosecution is required to present specific nondiscriminatory reasons on the

record. See Miller-El v. Cockrell, 537 U.S. 322, 347 (2003) ("We adhere to the

proposition that a state court need not make detailed findings addressing all the

evidence before it."). A trial court's ruling on a Batson challenge is itself a factfinding, and we have repeatedly upheld rulings made without additional reasoning.

See U.S. Xpress Enterprs., Inc., 320 F.3d at 814; see also Wainwright v. Witt, 469

U.S. 412, 430 (1985) (upholding state trial court's dismissal of juror for cause and

noting "that the judge was [not] required to announce for the record his conclusion

that [the] juror . . . was biased, or his reasoning. The finding is evident from the

record."). "Moreover, . . . our deference to trial court fact-finding is doubly great

when considering Batson challenges because of the unique awareness [on the part of
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the trial court] of the totality of the circumstances surrounding voir dire." Simmons

v. Luebbers, 299 F.3d 929, 942 (8th Cir. 2002) (internal marks omitted), cert. denied,

538 U.S. 923 (2003). By denying the Batson challenge, the trial court implicitly

found that the prosecution's strike was based on its concern with Ms. Sidney's

occupation and her demeanor, not her race. No other fact-findings were required. Our

suggestions to federal trial judges that they are well advised to articulate their findings

concerning the validity of the prosecutor's asserted race neutral reasons are, of course,

not binding on state court judges.

Under AEDPA, it is not just the trial court's fact-findings that are presumed to

be correct. The presumption, codified pre-AEDPA in § 2254(d), "applies to factual

determinations made by state courts, whether the court be a trial court or an appellate

court." Sumner v. Mata, 449 U.S. 539, 547 (1981) (subsequent history omitted). The

statute "makes no distinction between the factual determinations of a state trial court

and those of a state appellate court." Id. at 546. As we noted in Jones v. Jones, 938

F.2d 838, 842-43 (8th Cir. 1991), "Sumner requires us to also consider whether the

[appellate court] made any finding of fact regarding the prosecutor's peremptory

challenges." See also Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th Cir. 2001)

(noting that factual findings made by state appellate courts are entitled to the same

presumption of correctness as findings of state trial courts). The Supreme Court of

Missouri considered the circumstances from the trial court record and found the

prosecutor's reasons to be the type typically found to be race neutral, and that the trial

court did not clearly err in denying the challenge. These findings are supported by the

state court record and are not unreasonable.

Further, the defense was allowed to respond to the prosecutor's proffered

reasons and argue that the stated reasons were pretextual. While the trial court did

initially deny the motion for a mistrial immediately following the prosecutor's

proffered race-neutral reasons for striking Ms. Sidney, the trial court subsequently

allowed the defense ample opportunity to make its argument that the proffered reasons
3

Our court's description of events is somewhat puzzling to the extent it suggests

that the state trial court made its "I don't know what it means to be black" remarks

upon the renewal of the Batson challenge the following morning. In fact, four pages

of transcript (Appellant's App. at 22-26), during which the court allowed both parties

to address the renewed Batson challenge and the court again overruled the challenge,

precede the trial judge's ill-advised comments. Only after the defense ignored the

ruling and sought to insure that the record reflected that Ms. Sidney was the only

black venire person did the trial court make the criticized remarks.

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were pretextual. The trial court did not limit the defense, but allowed it to make the

record it chose to make, considered the arguments, and then denied the motion. The

defense then asked that the peremptory strike be disallowed, which the trial court

overruled. The following day, the defense again raised the Batson challenge.3

 The

trial court allowed both parties to address the issue and supplement the record. The

trial court once again denied the challenge. Given this extensive record, the trial court

cannot be criticized for failing to afford the defense an opportunity to respond, nor do

I think it can be fairly criticized for failing to consider the relevant circumstances the

attorneys pressed upon it. 

Our court also finds that the state trial court refused to consider all of the

relevant evidence, particularly the race of the other prospective jurors. As I

understand our court's reasoning, it is troubled by the trial court's remarks about "what

it means to be black." While I certainly do not condone or agree with the comments

made by the state trial judge, I believe that our court improperly permits its judicial

indignation at their content to cloud its review of the state court proceedings. The

majority interprets the trial court's statements as having placed an undue burden on the

defense to establish the race of each venire person and then avoiding the Batson

challenge when the defense failed to meet the allegedly imposed burden. However,

it is evident from the record that the state trial court was aware that Ms. Sidney was

the only black venire person when it first rejected the Batson challenge. The defense

represented to the court that she was the only black venire person when it first

challenged the strike and again when it renewed the challenge the following morning,
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and at no time did the prosecution ever dispute that fact. In short, the trial court did

not make its rulings without considering the race of the prospective jurors or

otherwise "avoid Batson" (supra at 10) at all, but, to the contrary, it considered the

challenge and the related evidence and arguments and made its ruling.

Our court appears to conclude, without citing any authority, that the trial court's

purported "refusal to consider all relevant circumstances" (supra at 11) relieves a

habeas court of its obligation to apply the presumption of correctness to state court

fact-findings as required by § 2254(e)(1). I must respectfully disagree. Prior to

AEDPA, the presumption of correctness was contained in § 2254(d), which listed

eight exceptions to the presumption. AEDPA's amendments to § 2254 "jettisoned all

. . . [the] situations which previously swept aside the presumption." Valdez v.

Cockrell, 274 F.3d 941, 949 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). "The

presumption of correctness erected in its place at § 2254(e)(1), now simply provides

that unless the petitioner can rebut the findings of fact through clear and convincing

evidence, those findings of fact are presumed to be correct." Id. See also Miller-El,

537 U.S. at 358-59 (Thomas, J., dissenting) ("Section 2254(e)(1) does not, as its

predecessor did, create exceptions to factual deference for procedural infirmities. . .

. Section 2254(e)(1) simply cannot be read to contain an implied sliding scale of

deference.") (noting that the majority opinion does not appear to conflict with this

view). Thus, regardless of the court's dispute with the extent of the evidence

considered by the state trial court, we may reject the state court's factual findings only

if those findings are proven incorrect "by clear and convincing evidence."

§ 2254(e)(1); see also Hall v. Luebbers, 342 F.3d 706, 713 (8th Cir. 2003) ("Each step

of the Batson inquiry involves a factual determination entitled to a presumption of

correctness unless overcome by clear and convincing evidence."). 

The circumstance that was purportedly ignored–the race of each of the potential

jurors–could support an inference that the prosecutor's stated reasons were pretextual,

where the prosecution struck the only black juror. That fact alone, however, when
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considered together with the record as a whole, does not in this case provide the clear

and convincing evidence necessary to rebut the presumption of correctness afforded

to the state courts' determination, particularly the state supreme court's finding, that

the prosecution's strike was race neutral. Cf. Miller-El v. Dretke, 125 S. Ct. 2317,

2339-40 (2005) (holding that the state court's acceptance of the prosecutor's

explanation for striking ten of the eleven qualified black venire persons was shown

to be erroneous by clear and convincing evidence, including the prosecution's use of

the "jury shuffle," disparate venire questions posed to black and white jurors,

comparison of similarly situated black and white jurors, and the admitted practice of

the Dallas County Prosecutor's Office of removing minorities from juries). Nor does

the court today suggest that it does. Further, the trial court's objectionable comments

were made after the defense had again informed the trial court that Ms. Sidney was

the only black venire person, a fact not disputed by the prosecution at any time, and

after the court had thrice rejected the Batson challenge. Batson is concerned with the

prosecutor's reasons for striking a juror, and the state trial court's comments do not

make the prosecutor's proffered reasons any less race neutral or not asserted in good

faith. 

In summary, the court today fails to adhere to the narrow AEDPA standard by

which we are bound. We are not permitted to grant habeas relief to a state prisoner

because we would have ruled the objection differently had we been the state trial

court, nor do we sit as a court of initial review over state trial judges. The state trial

court permitted a full Batson inquiry and denied the objection after hearing the

prosecution's race-neutral reasons and the defense's arguments of pretext. The

Supreme Court of Missouri properly applied Batson, examined in detail the

prosecutor's reasons and found the race-neutral justifications for the strike to be

credible, and affirmed. The Supreme Court of Missouri also found that the prosecutor

had exercised a strike against a white juror that the court found was similarly situated,

a finding that is not unreasonable. In my opinion, our court errs in summarily

concluding, without citation to any Supreme Court case, that the Supreme Court of
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Missouri's Batson analysis was an unreasonable application of clearly established

Supreme Court precedent or an unreasonable determination of the facts. Further, our

court points to no evidence, let alone clear and convincing evidence, that contradicts

the state courts' findings; we are therefore bound by the congressionally-created

presumption that those findings are correct.

Finally, the court's remand instructions are both perplexing and troubling. In

my view, our duty in habeas proceedings, as was the district court's duty, is to review

the state court record as it stands, not to "reconstruct" the surrounding circumstances

to determine anew, as in the first instance (but actually 14 years after the event),

whether a strike was racially motivated. Each of the cases cited by the court that

ordered a remand, supra at 12, involved state courts that failed to make a Batson

ruling. The same is not true here. Under the strict standard governing this appeal, I

would affirm outright the district court's well reasoned denial of the § 2254 petition.

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