1The Honorable Jean C. Hamilton, Chief Judge, United States District Court for

the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1109

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Merrill Arnes Jacobs,

 Petitioner/Appellant, 

 v.

Dave Dormire, 

 Respondent/Appellee.

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Appeal from the United States

District Court for the

Eastern District of Missouri.

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Submitted: January 12, 2000

Filed: February 9, 2000

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Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD and

MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Merrill Jacobs was convicted in Missouri of three counts of sale of a controlled

substance and filed this petition for habeas relief. Four issues were raised in his

petition which was denied by the district court.1 The court granted a certificate of

appealability on two issues: whether the state court erred in overruling his objection
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during voir dire to a question by the prosecutor dealing with proof beyond a reasonable

doubt and whether his appellate counsel was ineffective for not raising a claim that his

right to a fair trial by an impartial jury was violated. We affirm. 

Jacobs alleges that his due process rights were violated during voir dire when

one of the prosecutor's questions made reference to the government's burden of

demonstrating the elements of the offense beyond a reasonable doubt. The question

about which he complains and to which he unsuccessfully objected was:

Q: Do you understand that the burden of reasonable doubt applies only to the

elements that are given in the instructions? You're going to have

witnesses here that are going to give you different testimony, and you

can't let that interfere. You need to consider the reasonable doubt

instruction as it – or the burden as it applies to the case, as it applies to

the elements that are charged in this case and not as to the conflicts in

evidence. Is that understood?

Tr. at 41.

On direct appeal the Missouri Court of Appeals held that the trial court erred in

overruling Jacobs' objection to the question because voir dire questions discussing

reasonable doubt tend to confuse a jury. See State v. Jacobs, 866 S.W.2d 919, 921-22

(Mo. Ct. App. 1993). The court held nevertheless that Jacobs had not been prejudiced

because the question was incomprehensible. See id. Morever, since the essential facts

of the drug sales were not seriously contested, any error resulting from the prosecutor's

question was harmless. See id. 

Because the Missouri Court of Appeals conducted a harmless error analysis, we

review the record to determine whether the error "'had substantial and injurious effect

or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U.S. 619,

637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)), and

conclude that it did not. The strength of the state's evidence is apparent, and the district
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court properly instructed the jury on the burden of proof. We agree that any error was

harmless and therefore need not reach the merits of Jacobs' constitutional claim. 

Jacobs alleges that his appellate counsel was ineffective for not raising a claim

that his right to a fair trial by an impartial jury was violated when a juror failed to

disclose during voir dire that he was aware of Jacobs' reputation for criminal activity.

The venire panel was asked whether any member knew Jacobs, but not about his

reputation. The prosecutor asked:

MR. FUSSELMAN: Okay. Are any of you here acquainted with Merrill

Jacobs, the Defendant in this case? Do any of you know Merrill from a prior

contact or any professional contact?

Tr. at 51. Juror David Yancey did not respond to the question. 

Following his conviction Jacobs filed a post conviction motion that raised a

biased juror claim. The court conducted an evidentiary hearing at which Jacobs,

Jacobs' trial counsel, and Yancey testified. Yancey testified that while he had heard

of Jacobs' reputation, he nonetheless had not considered it during deliberations and he

had followed the court's instructions and only considered the evidence presented at

trial. See Resp't Ex. B at 58-62. The court made findings after the hearing and

explicitly found that Jacobs had not shown that Yancey was biased or that the jury was

partial. See Resp't Ex. D at 4. The court also found that Jacobs could not raise an

improper jury selection claim for the first time in a post conviction motion because he

had not shown that he had no knowledge of the underlying facts until after trial. See

id. at 5. Jacobs appealed to the Missouri Court of Appeals. The appellate court

mentioned the post conviction court's finding that Yancey had not been biased, but

affirmed on the basis of Jacobs' failure to make the showing required for raising such

a claim by a post conviction motion. See Resp't Ex. G at 6. 
2As the district court noted, Jacobs is still free to pursue his unexhausted claim

in Missouri state court. See Memorandum and Order, Aug. 14, 1998 at 8 n.2.

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Jacobs argues he is entitled to habeas relief because his appellate counsel was

ineffective for not properly raising the biased juror claim before the Missouri Court of

Appeals. Jacobs has not exhausted his state remedies, however, because he has not

filed a motion to recall the mandate, see Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.

1994); State v. Rone, 603 S.W.2d 575, 578 (Mo. 1980) (en banc), or a state habeas

petition, see Mo. Sup. Ct. R. 91.2 In any event, the claim would appear to fail on the

merits since Jacobs has not shown that he was prejudiced or that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

The judgment of the district court is affirmed.

A true copy.

Attest:

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