## 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 senten ce 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 fo r 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.-2- I

On July 27, 1991, Smulls and Norman Brown robbed a jewe lry store owned by Stephen and Florence Honickman. In the c ourse of the robbery, Smulls shot Stephen and Florence; Steven died from his wounds and Florence sustained permanent injuries. Smulls was charged with first de gree 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 cha llenge to remove Marg aret 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 ha ve been a prosecuting attorney. My concerns with Ms. Sidney began yest erday. 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 s eated 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 t oday was when I as ked 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-3- Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe sh e 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 w ho 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 ve ry disgruntled, unhappy people with the system and make every effort to stri ke 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 se veral 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 gene ral attitude, which included her outfit – which yesterday, I believe, incl uded a beret and t oday was a ball cap with sequins on it, I just felt that sh e wouldn't be a good states [sic] juror. Certainly, not a strong juror in the c onsideration 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 confr ontational. And I did not feel that her answers were ones that would giverise to me believing she would be a strong states [sic] juror. Ms. Dillard, I would point out, is a white female. And I struck he r for virtually the same reasons. It's been my experience that when I left posta l workers on who seem to have an attitude, based on my interp retation, 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 attorn ey as long as he has, trying as many cases as he has and I didn't detect any type of attitude from Ms. Sidney.-4- Secondly, he said she remained s ilent 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 occ upation I did not de tect any kind of animosity on her part. I think the cl othing 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 [s ic] 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 work er, 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 th ey'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. Sh e also indicated she knew the victim in this case, Florence Honickman. And to be perfectly honest, I would think that the state might have c oncerns 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 be en 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:-5- MS. KRAFT: Judge, I believe I statedon the record yesterday when I made my record that Ms. Sidney wa s 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 pr oblem. I don't know what it is to be black. I don't know what constitutes bl ack. And I never, in this Court, no matter what any appellate court may say, I never takejudicial 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 appellatecourt 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 numbe r 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 bl ack. 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 respons es of Ms. Sidney. I watched her attitude very briefly as it may havebeen, 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 Cour t, 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 di d not clearly err[,]" and "[e]ven assuming-6-the prosecutor's reasons for challenging mail sorters and postal workers are nonsensical, this does not establish the reasons ar e 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 appealab ility. On appeal, Smulls argues 1) the prosecutor violated Batson by striking the lone black venireperson from the jury, 2) counsel was ineffective for faili ng 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 gove rned 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 Missour i courts unless the decision "was contrary to, or involved an unreasonable applicati on of, clearly established Federal law, as determined by the Supreme Court" or th e 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 interpre tation 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 th at 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 ne vertheless arrives at a result different from our preceden t." A state court decision will be an "unreasonable application of" our clearly established precedent if it "correctly identifies the governing le gal rule but applies it unreasonably to the facts of a particular prisoner's case."

. . .1 The state concedes the pros ecutor's claim was inaccurate.

-7- Distinguishing between an unreasonabl e and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applie d 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 deni al 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 pe remptory challenge of venireperson Sidney violated Batson . The Equal Protection Clause of the United States Constitution prohibits using peremptory cha llenges 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 defe ndant 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 r ace-neutral explanation is offered, the trial court must decide whether the party obj ecting 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 reas ons were pretextual because they were contrary to or unsupported by the record. Fo r example, Smulls claims the prosecutor's characterization of Sidney as a "mail sort er" or "mail carrier" was erroneous because the record shows Sidney was a member of management at Monsanto, and, among other duties, supervised employees res ponsible 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. 1-8- Both the trial court and the Missouri Supreme Court failed to analyze these factual disputes on the record. The distri ct court took note of them but concluded, based on its review of the record, the pr osecutor 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 convi ction. Therefore, the district court concluded the Missouri courts' applicati on 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 hi m or acted "irritated" by the questioning. According to Smulls, defense counsel dis puted 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 orthe Missouri Supreme Court chose to address these arguments on the record. The district court noted the lack of findings but rejected the arguments because defens e counsel's disagreement "neither confirms nor denies that Ms. Sidney had a poor dem eanor." Further, the district court concluded the lack of findi ngs 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 tr ial court, were r easonable 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 eviden ce 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 s hould 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 plausib ility 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 Batsonand its progeny. Notably, the court initially denied the challenge without ever afford ing defense counsel an opportunity to rebut the racially-neutral reasons offered by th e prosecutor. Despite these concerns, however, our decision today is not based sole ly 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 ters e, 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 exp licit adjudication of the credibility of the non-movant's race-neutral e xplanations 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 prosecu tor'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.-10- When defense counsel attemp ted to establish for the r ecord that Sidney was the only black juror remaining in the jury pool , the trial court inexplicably refused to acknowledge or consider the racial compos ition of the jury pool. "I don't know what constitutes black. And I never, in this C ourt, no matter what a ny 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 wh ite and who is or ange 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 Batsonchallenge, can purport to fulfill its obligation to properly ev aluate 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 Batsonby 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 refusa l to consider the race of other prospective jurors is irrelevant to this discussion. We be lieve, 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, th e complete lack of findings, and the trial-11- court's refusal to consider the race of pr ospective jurors absent "direct evidence," combine to demonstrate the court was from the outset antagonistic towards the Batson challenge and unwilling to e ngage 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 Miss ouri Supreme Court's affirmance of those findings. Any other conclu sion would render illusory th e 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 tria l court's apparent finding of no purposeful discrimination cannot be accorded the norma l presumption of correctness because of its refusal to consider all relevant circ umstances as required by clearly established federal law. Moreover, the Missouri Suprem e Court's conclusion that the trial court acted properly was an unreasonable appli cation of clearly established federal precedent. Accordingly, we reverse thatportion 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 r acially motivated. We rec ognize 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 unsatisfact ory. 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 (3d2 We find Smulls's remaining ineffectiv e assistance of counsel claims to be without merit and affirm the district court's dismissal of those claims.

-12- 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 fu rther 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 "s hall not . . . grant[]" an application for a writ of habeas corpus to a prisoner in state cust ody 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 thatwas based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.-13- 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 evid ence." § 2254(e)(1). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment th at the relevant state-court deci sion 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 Suprem e Court precedent, and the court cites to none, that the Supreme Court of Missouri acted contrary to or unreasonably applied in rejecting Smulls’ Batsonchallenge. 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 defere nce 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 sta ndard). 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 fo r the strike, and that the defense argued that the stated reasons we re 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 th at 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 Batsonor its progeny by applying an in correct 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-14- prima facie case rather than just an 'inferen ce' 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 Batsonanalysis" 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 tr ial 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 Batsonthird-step analysis "by expressing a clear intent to uphold or reject a strike after listening to the challenge, the race-neutral explanation, and th e arguments of the parties").

I similarly find no unreasonable determination of the facts in light of the evidence presented in state court. Our c ourt 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 circumstan ces (as we can do in the quiet of an appellate chambers, far removed from the press of an ongoing trial). However, fe deral law has never required explicit fact-findings, especially where a prima facie case is acknowledged and the prosecution is required to presen t 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 ma ke detailed findings addressing all the evidence before it."). A tria l 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 hi s reasoning. The finding is evident from the record."). "Moreover, . . . our defere nce to trial court fact-finding is doubly great when considering Batson challenges because of the uni que awareness [on the part of-15- 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 dem eanor, not her race. No other f act-findings were required. Our suggestions to federal trial judges that they are well advi sed 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 c ourt'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) (subseque nt 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), "Sumnerrequires 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 fro m 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 ch allenge. 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 we re 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 reasons3 Our court's description of events is so mewhat 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 morni ng. 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 ag ain 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.

-16- were pretextual. The trial court did not limit the defense, but a llowed it to make the record it chose to make, cons idered 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 partie s to address the issue and supplement the record. The trial court once again denied the challenge. Given this extensive r ecord, the trial court cannot be criticized for failing to afford th e 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 tria l 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 troubledby 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 thatour court improperly permits its judicial indignation at their content to cloud its revi ew of the state court proceedings. The majority interprets the trial court's stat ements 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 allegedl y 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 re newed the challenge the following morning,-17- and at no time did the prosecution ever dispute that fact. In short, the trial court did not make its rulings without consideri ng the race of the prospective jurors or otherwise "avoid Batson " (supraat 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 c iting any authority, that the trial court's purported "refusal to consider a ll 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. AE DPA'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 findi ngs of fact through clear and convincing evidence, those findings of fact ar e 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 opi nion 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 i gnored–the race of each of the potential jurors–could support an inference that the pr osecutor's stated reasons were pretextual, where the prosecution struck the only blackjuror. That fact alone, however, when-18- 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, particul arly 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 c ourt's acceptance of the prosecutor's explanation for striking ten of the eleven qualified black venire persons was shown to be erroneous by clear a nd convincing evidence, including the prosecution's use of the "jury shuffle," disparate venire ques tions posed to black and white jurors, comparison of similarly situated black a nd white jurors, and the admitted practice of the Dallas County Prosecutor's Office of re moving 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 info rmed the trial court that Ms. Sidney was the only black venire person, a fact not di sputed 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 a ny less race neutral or not asserted in good faith.

In summary, the court today fails to a dhere 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 c itation to any Supreme Court case, that the Supreme Court of-19- Missouri's Batson analysis was an unreasonable application of clearly established Supreme Court precedent or an unreasonable de termination of the f acts. Further, our court points to no evidence, let alone clear and convincing evidence, that contradicts the state courts' findings; we are th erefore 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 pr oceedings, as was the districtcourt'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 instan ce (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, supraat 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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