The Honorable Charles B. Kornmann, United States District

1

Judge for the District of South Dakota. 

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No. 95-3910

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Leonard L. Blue Thunder, *

also known as Leo Blue Thunder, *

 *

Plaintiff-Appellant, * Appeal from the United States

* District Court for the

v. * District of South Dakota. 

 * 

Joseph Class, Warden, South * [UNPUBLISHED]

Dakota State Penitentiary; Mark *

W. Barnett, Attorney General, *

State of South Dakota, *

*

Defendants-Appellees. *

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 Submitted: June 14, 1996

 Filed: June 24, 1996

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Before LOKEN, ROSS, and HANSEN, Circuit Judges.

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PER CURIAM.

Leonard L. Blue Thunder appeals the district court's denial of his 1

28 U.S.C. § 2254 petition for a writ of habeas corpus. He contends that

the district court erred by determining that the admission of his

involuntary statements was constitutionally harmless. He also contends

that the district court erred by determining that no constitutional error

resulted from the jury selection process. We affirm. 
2

Blue Thunder was convicted in South Dakota on state charges of first

degree murder, first degree burglary, and aggravated assault. During

trial, the trial court admitted into evidence certain statements made by

Blue Thunder immediately after the incident giving rise to the charges, at

a time when Blue Thunder was intoxicated and attempted to invoke his right

to counsel. Also, in impanelling the jury, the trial court refused to

strike four jurors who had close ties to law enforcement officials and whom

Blue Thunder challenged for cause. Blue Thunder had to exercise his

peremptory strikes to remove them from the panel. The Supreme Court of

South Dakota affirmed Blue Thunder's convictions. See State v. Blue

Thunder, 466 N.W.2d 613, 621 (S.D. 1991). Specifically, the state supreme

court held that the trial court erred by admitting Blue Thunder's

statements but that the error was harmless beyond a reasonable doubt,

because overwhelming testimony and physical evidence supported all of the

convictions, and the statements were relevant to only one of the three

charges. Id. at 619. Additionally, the state supreme court found that

Blue Thunder failed to demonstrate any actual prejudice resulting from the

trial court's refusal to strike the four jurors he challenged for cause.

Id. at 620. 

Blue Thunder sought habeas corpus relief from the district court

pursuant to 28 U.S.C. § 2254 on the same grounds. The district court

agreed with the state supreme court, concluding that Blue Thunder's

statements should have been excluded from trial because they were not

voluntary but that the error was harmless beyond a reasonable doubt.

Further, the district court concluded that the challenges for cause should

have been allowed. Nevertheless, Blue Thunder's Sixth Amendment right to

an impartial jury was not violated, because he did not exercise all of his

available peremptory challenges, and Blue Thunder made no showing that his

jury was not impartial. Thus, the district court denied Blue Thunder's

petition for a writ of habeas corpus. 
3

Where harmless error review has first been applied by the state

supreme court, our review is governed by the standard enunciated in Brecht

v. Abrahamson, 507 U.S. 619, 623 (1993). See Maurer v. Minnesota Dep't

of Corrections, 32 F.3d 1286, 1291 n.4 (8th Cir. 1994) (citing Starr v.

Lockhart, 23 F.3d 1280, 1292 (8th Cir.), cert. denied, 115 S. Ct. 499

(1994)). To determine whether habeas corpus relief should be granted

because of the erroneously admitted statements, we must determine whether

the "error `had substantial and injurious effect or influence in

determining the jury's verdict.'" Brecht, 507 U.S. at 623 (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Given the strength

of the state's evidence in this case, we conclude that the statements

erroneously admitted by the trial court did not have a substantial and

injurious effect or influence on the jury's decision. 

Furthermore, while the trial court should have removed the four

jurors that Blue Thunder challenged for cause, this error does not

constitute a constitutional violation. The Supreme Court has "long

recognized that peremptory challenges are not of constitutional dimension."

Ross v. Oklahoma, 487 U.S. 81, 88 (1988). In Ross, the Court squarely

"reject[ed] the notion that the loss of a peremptory challenge constitutes

a violation of the constitutional right to an impartial jury. . . . So long

as the jury that sits is impartial, the fact that the defendant had to use

a peremptory challenge to achieve that result does not mean the Sixth

Amendment was violated." 487 U.S. at 88, quoted in Feltrop v. Delo, 46

F.3d 766, 774 (8th Cir. 1995). See also Sloan v. Delo, 54 F.3d 1371, 1387

n.16 (8th Cir. 1995) ("Any sixth amendment claim must focus exclusively on

the jurors who actually sat . . ."), cert. denied, 116 S. Ct. 728 (1996).

Blue Thunder made no showing that the actual jury that heard his case was

not impartial. 

Accordingly, we affirm the judgment of the district court. 
4

A true copy.

Attest:

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