The Honorable Jean C. Hamilton, Chief Judge, United States

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, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS

SHEPPARD ARNOLD, Circuit Judge.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

William K. Murray appeals the district court's denial of his

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petition for writ of habeas corpus. We affirm.

I.

In early 1987, a jury convicted William K. Murray on two counts of

first-degree murder and sentenced him to two consecutive life sentences

without parole. Murray filed a post-conviction motion pursuant to Mo. R.

Crim. 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 five grounds of error), and an appeal from the denial

of his Mo. R. Crim. P. 29.15 motion. In a combined proceeding, the

Missouri Court of Appeals affirmed the trial court's judgments in all

respects. Murray also filed a motion to recall the mandate, in which he

argued that his appellate counsel in the Missouri Court of Appeals was

ineffective. The appellate court denied the motion. 

Murray then filed the instant petition for federal habeas relief

pursuant to 28 U.S.C. § 2254(a), in which he alleged eight grounds for

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 originally asserted, among them

instructional errors, Batson errors, and evidentiary errors. 

 

II.

Murray first contends that the district court erred in ruling that

three of his claims were procedurally barred. Murray neglected to raise

his claim that the trial court failed to instruct the jury on a lesserincluded offense in his 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 motion to recall the mandate, however, is not the proper way to raise

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). Although 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 doubt 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 these allegations, he has procedurally defaulted them.

See Boyd v. Groose, 4 F.3d 669, 671
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(8th Cir. 1993). Murray 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. Whitley, 505 U.S. 333, 338-

39 (1992). The district court therefore correctly concluded that these

three claims were barred.

Murray next 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

court's finding of no discrimination was clearly erroneous. After a

careful review of the transcript, we reject both contentions. 

 

Whether the 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 Batson

jurisprudence, the appropriate question is not whether race was the sole

factor motivating a prosecutor's peremptory strike but, rather, whether

race caused the prosecutor 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 whether the prosecutor would have kept a particular juror

but for his race. Id. Murray argues that the trial court's statement that

the "strikes were not made on purely racial grounds only" demonstrates that

it did not apply the appropriate "but-for" test. Had the trial court not

clarified this statement, we might well be inclined to agree. In its

ruling on Murray's Mo. R. Crim. P. 29.15 motion, however, the trial court

stated that its prior statement was "in essence" a finding of "no

discrimination." This can only mean that the trial court found as a fact

that race did not enter 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. Either way, the trial court committed no legal error.

We are therefore satisfied that the trial court applied the correct

standard to Murray's Batson objections. 

Murray also argues that the state's proffered reasons for striking

African-American jurors were pretextual. The existence of pretext is a

question of fact, Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995) (per

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, the

prosecutor tendered specific, plausible, race-neutral explanations for his

peremptory strikes of seven African-American members of the venire. He

stated that he struck three of them because they were "weak death-penalty

jurors," two because they had relatives who had been charged with or

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 dire

that she did not like prosecutors. Although the burden of persuasion

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

transcript amply supports the prosecutor's reasoning, and under these

circumstances, we cannot say that the trial court's finding of no

discrimination is unsupported by the record. 

Murray also asserts that he was denied the effective assistance of

counsel because his trial attorney did not argue that the state's proffered

reasons for its peremptory strikes were pretextual. To prevail on this

claim, Murray must show that his counsel was deficient -- that is, that her

performance fell below an objective level of reasonableness -- and that her

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 assuming, arguendo, that Murray could demonstrate that his trial

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 counsel

done so. Murray's claim of ineffective assistance of counsel must

therefore fail, and the district court did not err in dismissing it. Id.;

Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996), cert. denied, 117

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 next 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 that

federal habeas courts may review only to determine if the alleged

evidentiary error infringed a specific federal constitutional right or was

so prejudicial 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 neither alleged that the contested pieces of evidence

infringed a federal constitutional right nor demonstrated that they were

so grossly prejudicial that they fatally infected his trial. The

photograph shows that one of the murder victims had been bound and gagged.

Because evidence of gagging is relevant to premeditation, an essential

element 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 contained

knife cuts, is likewise relevant because the knife marks corroborated trial

testimony. We see, moreover, no prospect whatever that the piece of

linoleum was unfairly prejudicial to Murray. 

 

Murray's final claim is that the trial court should have granted his

motion for a mistrial after the prosecutor referred to
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punishment during the closing argument in the guilt phase of Murray's

bifurcated trial. To resolve this claim, we must decide whether the

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 (1996). Ordinarily, the admission of prejudicial statements in a

closing argument can be cured by striking them and instructing the jury to

disregard them, and we see nothing in the record that would cause us to

deviate from the general rule. United States v. Elem, 845 F.2d 170, 172

(8th Cir. 1988). Because the trial court sustained Murray's objection to

the prosecutor's references to punishment and instructed the jury to

disregard them, the trial court correctly concluded that the statements

were not prejudicial enough to warrant a mistrial. 

III. 

For the foregoing reasons, we affirm the judgment of the district

court.

A true copy.

Attest:

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