No. 95-2420

 

John Hudson, *

* Appeal from the United States

 Appellant, * District Court for the

* Eastern District of Missouri.

 v. *

 * [UNPUBLISHED]

Tony Gammon, *

*

 Appellee. *

 

Submitted: January 11, 1996

Filed: February 6, 1996 

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

PER CURIAM.

In 1990, John Hudson was convicted of robbery in state court

in Missouri. His conviction was affirmed on direct appeal and

upheld in state postconviction relief proceedings. See State v.

Hudson, 822 S.W.2d 477 (Mo. Ct. App. 1991).

Mr. Hudson petitioned for habeas relief under 28 U.S.C.

§ 2254(a) in federal district court in 1993. The district court

adopted the report and recommendations of a magistrate without

de novo review and denied Mr. Hudson's petition. On appeal of that

denial, a panel of this court remanded the case for consideration

of Mr. Hudson's objections to the magistrate's report and

recommendations. See Hudson v. Gammon, 46 F.3d 785 (8th Cir.

1995). The district court, after de novo review, again denied

Mr. Hudson's petition for habeas relief. Mr. Hudson appeals; we

affirm the judgment of the district court.
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I.

Mr. Hudson is black. The venire for his state trial included

six black people. The prosecutor used peremptory challenges to

strike three of those prospective jurors. Mr. Hudson concedes that

one of those strikes was for a race-neutral reason but argues that

the other two strikes were based on race and were therefore

impermissible under Batson v. Kentucky, 476 U.S. 79, 88 (1986).

We assume for the purposes of this opinion, without deciding,

that Mr. Hudson has shown sufficient "relevant circumstances [to]

raise an inference that the prosecutor used [the exercise of

peremptory challenges] to exclude the [two prospective jurors] from

the petit jury on account of their race." Id. at 96. That showing

precipitates an obligation upon the prosecutor "to come forward

with a neutral explanation for challenging [the] black jurors."

Id. at 97. That explanation must be "'clear and reasonably

specific.'" Id. at 98 n.20, quoting Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 258 (1981).

In Mr. Hudson's case, the prosecutor noted that the two

strikes were of postal employees and referred to his experience

with postal employees as jurors, witnesses, and members of his

family. Based on that experience, the prosecutor stated his

opinion that postal employees possess "an attitude instilled in

[them] ... [that] makes them much too liberal in their leanings,

and also much too tolerant of activities that could be considered

criminal[,] or [that makes them] poor jurors for the State." The

state trial court then found that the prosecutor's explanation was

"sufficient" and stated that the court was "satisfied" with that

explanation. The state appellate court held that the state trial

court "did not err [in] accepting the [prosecutor's] neutral

explanations as legitimate." State v. Hudson, 822 S.W.2d 477, 481

(Mo. Ct. App. 1991).
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The district court examined the record of the state court

proceedings and concluded that the state court's findings relevant

to the prosecutor's explanations were "fairly supported" by the

record and were therefore entitled to the presumption of

correctness provided by 28 U.S.C. § 2254(d)(8). Because the

explanation given by the prosecutor was race-neutral, see, e.g.,

United States v. Miller, 939 F.2d 605, 607, 609 (8th Cir. 1991),

and United States v. Johnson, 905 F.2d 222, 222-23 (8th Cir. 1990),

cert. denied, 498 U.S. 924 (1990), see also United States v.

Johnson, 941 F.2d 1102, 1109-10 (10th Cir. 1991), we find no error

in the district court's treatment of Mr. Hudson's Batson claim.

II.

After the prosecutor's peremptory strikes, three black people

remained on the prospective jury. Mr. Hudson contends in his

appellate brief that two of those prospective jurors, both of them

men, indicated that they knew "a key prosecution witness" (a police

officer) and would "give ... [his] testimony more weight than [that

of] another witness," and yet Mr. Hudson's trial lawyer failed

either to move to strike those jurors for cause or to use

peremptory challenges to do so. Because of these failures,

Mr. Hudson argues that he suffered constitutionally significant

ineffective assistance of counsel under Strickland v. Washington,

466 U.S. 668, 686 (1984).

Each of the prospective jurors in question acknowledged that

it was "possible" that his acquaintanceship with the witness

"might" influence him to consider the witness's testimony "a little

more believab[le]" than the testimony of "somebody [the prospective

juror] didn't know." Upon further questioning, however, each

stated that he "would try to be fair" and felt that he could "set

aside ... the fact that [he knew] the sergeant and hold him to the

same level of credibility as anybody else."
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At an evidentiary hearing in state court on Mr. Hudson's

application for postconviction relief, Mr. Hudson's trial lawyer

testified that he did not want an all-white jury and therefore

retained the two jurors in question in the hope that they would

show leniency in sentencing. (Actually, a black woman also

remained in the venire at that point, but since the jury

recommended that Mr. Hudson receive the minimum statutory sentence

on each count, we note that his trial lawyer's hope was evidently

not in vain.) The state court considering the application for

postconviction relief then found that the testimony of Mr. Hudson's

trial lawyer was credible with respect to his reasons for retaining

the two jurors in question and that those reasons were a matter of

trial strategy that was not unreasonable under the circumstances.

The state appellate court held that the findings of the state court

considering the application for postconviction relief were "not

clearly erroneous." State v. Hudson, 822 S.W.2d 477, 483 (Mo. Ct.

App. 1991).

The district court's examination of the state court record led

it to conclude that the state court's findings of fact with respect

to Mr. Hudson's trial lawyer's strikes were "fairly supported" in

the record, see 28 U.S.C. § 2254(d)(8), and we agree with that

assessment. We see nothing unreasonable about this strategy, given

the emphasis in recent Supreme Court jurisprudence on the need for

representational venires. See, e.g., J.E.B. v. Alabama ex rel.

T.B., 114 S. Ct. 1419, 1424, 1427-28, 1428 n.13, 1430, 1430 n.19

(1994). We hold, accordingly, that Mr. Hudson has failed to meet

his burden of showing that his trial lawyer's actions "fell below

an objective standard of reasonableness." Strickland, 466 U.S.

at 688.
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III.

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

court.

A true copy.

Attest:

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