### The Honorable Jean C. Hamilton, Chief Judge, United State s 1 

### District Court for the Eastern District of Missouri.
1 No. 96-1321
William K. Murray, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Michael Groose and Jeremiah W. * (Jay) Nixon, * * Appellees. *

Submitted: November 19, 1996 Filed: February 5, 1997

Before McMILLIAN, Cir cuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge. Wi lliamK. Murray appeals the district court's denial of hi s 1 petition for writ of habeas corpus. We affirm.

I. In ear ly 1987, a jury convicted William K. Murray on two counts o f first- degree murder and sentenced him to two consecutive life sentence s without parole. Murr ay filed a post-conviction motion pursuant to Mo. R. Cri m. P. 29.15 (in which he alleged twenty grounds of trial error), a direct appeal of his conviction

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(in which he raised f ive grounds of error), and an appeal from the denial of his Mo. R. Crim. P. 29.15 motion. In a combined proceeding, th e Missour i Court of Appeals affirmed the trial court's judgments in al l respects. Murray also filed a motion to recall the mandate, in which he argue d that his appellate counsel in the Missouri Court of Appeals wa s ineffective. The appellate court denied the motion.

Murray then filed the instant petition for federal habeas relie f pursuant to 28 U.S.C. § 2254(a), in which he alleged eight grounds fo r relief. The district court, adopting the report and recommendation of a magistrate judge, denied the petition. Murray now appeals the denial of his petition on all of the grounds that he origi nally asserted, among them instructional errors, Batson errors, and evidentiary errors.

II. Murray f irst contends that the district court erred in ruling tha t three of his claims were procedurally barred. Murray neglected to raise his cla im that the trial court failed to instruct the jury on a lesser

included offense in h is Mo. R. Crim. P. 29.15 motion and his consolidated appeal, but he did raise this claim in his motion to recall the mandate. A motio n to recall the mandate, however, is not the proper way to rais e allegations of instructional error. Williams v. Wyrick , 763 F.2d 363, 365 (8th Cir. 1985) ( per curiam ); State v. Thompson , 659 S.W.2d 766, 769 (Mo. 1983) ( en banc ). Alt hough in his Mo. R. Crim. P. 29.15 motion Murray did raise both his claim that the trial court improperly instructed the jury on the reasonable dou bt standard and his claim that the trial court erred in denying his motion for a directed verdict, he neglected to raise these claims in his appeal from the denial of that motion. Because Murray has failed to preserve th ese allegations, he has procedurally defaulted them. See Boyd v. Groose , 4 F.3d 669, 671

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(8th Cir. 1993). Mur ray has failed, moreover, to make anything more than conclusory allegations of cause and prejudice or actual innocence in his effort to avoid the procedural bar. Sawyer v. W hitley , 505 U.S. 333, 338- 39 (1992). The district court therefore correctly concluded that thes e three claims were barred.

Murray ne xt contests, under Batson v. Kentucky , 476 U.S. 79 (1986), the district court's resolution of his challenge to the racial composition of the jury that convicted him. Murray argues that the trial court used the wrong standard of review to assess his Batson objections and that the
cour t's finding of no discrimination was clearly erroneous. After a careful review of the transcript, we reject both contentions.

Whether t he trial court used the wrong standard of review to assess Murray's Batson objections is a question of law which we review de novo . Hendrix v. Norris , 81 F.3d 805, 807 (8th Cir. 1996). Under our Batso n jurisprudence, the appropriate question is not whether race was the sole factor motivating a prosecutor's peremptory strike but, rather, whethe r race caused the prose cutor to make a challenged strike. United States v. Darden , 70 F.3d 1507, 1531 (8th Cir. 1995), cert
. denied , 116 S. Ct. 1449, 2567 (1996). We often frame the question as one of "but-for" causation, that is, we ask wheth er the prosecutor would have kept a particular juror but for his race. Id. Murray argues that the trial court's statement tha t the "strikes were not made on purely racial grounds only" demonstrates tha t it did not apply the appropriate "but-for" test. Had the trial court not cla rified this statement, we might well be inclined to agree. In it s ruling on Murray's Mo . R. Crim. P. 29.15 motion, however, the trial court stated t hat its prior statement was "in essence" a finding of "n o discrimination." Thi s can only mean that the trial court found as a fact that race did not ent er into the prosecutor's decisions to strike members of the venire or, perhaps, that the prosecutor would

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have made the same decisions whether or not he took prospective jurors ' race into account. E ither way, the trial court committed no legal error. We are therefore satisfied that the trial court applied the correc t standard to Murray's Batson objections.

Murray also argues that the state's proffered reasons for strikin g Afr ican-American jurors were pretextual. The existence of pretext is a questi on of fact, Purkett v. Elem , 115 S. Ct. 1769, 1771 (1995) ( pe r curiam ), and a finding with respect to it may be set aside only if it is not fairly supported by the record, id. In the instant case, th e prosecutor tendered specific, plausible, race-ne utral explanations for his per emptory strikes of seven African-American members of the venire. H e stated that he struck three of them because they were "weak death-penalty juro rs," two because they had relatives who had been charged with o r convicted of crimes and he felt that they would be "defendant's jurors," one because he stated that he "did not like capital punishment" and had a cousin in the penitentiary, and one because she stated during voir dir e that she d id not like prosecutors. Although the burden of persuasio n rested with Murray at all times, id. , he did not attempt to persuade the court that the state's proffered reasons were pretextual. The voir dire transcr ipt amply supports the prosecutor's reasoning, and under thes e circu mstances, we cannot say that the trial court's finding of n o discrimination is unsupported by the record.

Murray a lso asserts that he was denied the effective assistance o f counsel because his trial attorney did not argue that the state's proffere d
reasons for its peremptory strikes were pretextual. To prevail on thi s claim, Murray must show that his counsel was deficient -- that is, that he r performance fell below an objective level of reasonableness -- and that he r deficiencies were sufficiently severe to undermine our confidence in the outcome of the trial. Strickland v. Washington , 466 U.S. 668, 687 (1984).

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Even a ssuming, arguendo , that Murray could demonstrate that his tria l counsel was deficient in failing to attempt to rebut the prosecution' s race-neutral explanations for its peremptory strikes, he has not alleged that the outcome of his trial would have been different had his counse l done so. Murray's claim of ineffective assistance of counsel mus t therefore fail, and the district court did not e rr in dismissing it. Id. ; Ruff v. A rmontrout , 77 F.3d 265, 268 (8th Cir. 1996), cert. denied , 11 7 S. Ct. 226 (1996). See also Wright v. Nix , 928 F.2d 270, 274 (8th Cir

. 1991) (Arnold, J., concurring), cert. denied , 502 U.S. 838 (1991).

Murray ne xt contends that he was denied due process of law when the trial court admitted two pieces of evidence, namely, a photograph and a piece of linoleum. Evidentiary questions are matters of state law tha t feder al habeas courts may review only to determine if the allege d evidentiary error infringed a specific federal c onstitutional right or was
so p rejudicial that it fatally infected a trial's fairness. Ford v

. Armontrout , 916 F.2d 457, 460 (8th Cir. 1990), cert. denied , 499 U.S. 964 (1991). Murray has n either alleged that the contested pieces of evidence infringed a federal constitutional right nor demonstrated that they were
so gr ossly prejudicial that they fatally infected his trial. Th e photograph shows that one of the murder victims had been bound and gagged. Becaus e evidence of gagging is relevant to premeditation, an essentia l elemen t of first-degree murder, we cannot say that the photograph' s unfairly prejudicial effect outweighed its probative value. The piece of linoleum taken from the floor where the victims were found, which containe d knife cuts, is likewise relevant because the knife marks corroborated tria l test imony. We see, moreover, no prospect whatever that the piece o f linoleum was unfairly prejudicial to Murray.
Murray's final claim is that the tri al court should have granted his motion for a mistrial after the prosecutor referred to

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punishm ent during the closing argument in the guilt phase of Murray' s bifu rcated trial. To resolve this claim, we must decide whether th e prosecutor's statements fatally infected Murray's trial with unfairness. Phea v. Benson , 95 F.3d 660, 661 (8th Cir. 1996) , cert. denied , 117 S. Ct. 411 (19 96). Ordinarily, the admission of prejudicial statements in a closing argument can be cured by striking them a nd instructing the jury to disrega rd them, and we see nothing in the record that would cause us t o deviate from the general rule. United States v. Elem , 845 F.2d 170, 172 (8th Cir. 1988). Bec ause the trial court sustained Murray's objection to the pr osecutor's references to punishment and instructed the jury t o disreg ard them, the trial court correctly concluded that the statement s were not prejudicial enough to warrant a mistrial.

III. For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

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