### The Honorable Charles B. Kornmann, United States Distric t 1 

### Judge for the District of South Dakota. _____________ No. 95-3910

_____________ 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 * Joseph Class, Warden, South * [UNPUBLISHED] Dakota State Penitentiary; Mark * W. Barnett, Attorney General, * State of South Dakota, * * Defendants-Appellees. *

_____________ Submitted: June 14, 1996 Filed: June 24, 1996

_____________ Before LOKEN, ROSS, and HANSEN, Circuit Judges.

_____________
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 d istrict court erred by determining that the admission of hi s involuntary statements was constitutionally harmless. He also contend s that the district cou rt 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. Durin g trial, the trial court admitted into evidence certain statements made by Blue Thunder immediately after the incident givi ng rise to the charges, at a time when Blue Thunder was intoxicated and att empted to invoke his right to counsel. Also, in impanelling the jury, the trial court refused t o strike four jurors who had close ties to law enforcement officials and who m Blue Thunder challenged for cause. Blue Thunder had to exercise hi s peremptor ystrikes to remove them from the panel. The Supreme Court o f Sout h Dakota affirmed Blue Thunder's convictions. See State v. Blu e Thunder , 466 N.W.2d 613, 621 (S.D. 1991). Speci fically, the state supreme court held that the trial court erred by admitting Blue Thunder' s stateme nts but that the error was harmless beyond a reasonable doubt , because overwhelming testimony and physical evidence supported all of the convi ctions, and the statements were relevant to only one of the thre e charges. Id. at 619. Additionally, the state supreme court found tha t Blue Thunder failed to demonstrate any actual pr ejudice 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 cour t pursuant to 28 U.S.C. § 2254 on the same grounds. The district cour t agreed with the state supreme court, concluding that Blue Thunder' s stateme nts should have been excluded from trial because they were no t volu ntarybut that the error was harmless beyond a reasonable doubt
. Further, the district court concluded that the c hallenges for cause should have been allowed. N evertheless, Blue Thunder's Sixth Amendment right to an impartial jury was not violated, because he d id not exercise all of his available peremptory challenges, and Blue Thunde r made no showing that his jurywas not impartial. Thus, the district court denied Blue Thunder' s petition for a writ of habeas corpus.

### 3 Where har mless error review has first been applied by the stat e supreme court, our review is governed by the sta ndard enunciated in Brecht
v. Abrahamson , 507 U.S. 619, 623 (1993). See Maurer v. Minnesota Dep't of Correc tions , 32 F.3d 1286, 1291 n.4 (8th Cir. 1994) (citing Starr v
. Loc khart , 23 F.3d 1280, 1292 (8th Cir.), cert. denied , 115 S. Ct. 49 9 (1994))
. To determine whether habeas corpus relief should be grante d because of the errone ously admitted statements, we must determine whether the "e rror `had substantial and injurious effect or influence i n determining the jury's verdict.'" Brecht , 507 U.S. at 623 (quotin g Kotteakos v. United States , 328 U.S. 750, 776 (1 946)). Given the strength of the sta te's evidence in this case, we conclude that the statement s erron eouslyadmitted by the trial court did not have a substantial an d injurious effect or influence on the jury's decision.
Furthermore, while the trial court should have removed the fou r jurors t hat Blue Thunder challenged for cause, this error does no t consti tute a constitutional violation. The Supreme Court has "lon g recognized that peremptory challenges are not of constitutional dimension. " Ross v. Oklahoma , 487 U.S. 81, 88 (1988). In Ross , the Court squarel y "reject[ed] the notion that the loss of a peremp tory challenge constitutes
a violation of the constitutional right to an impartial jury. . . . So lon g as the jury that sits is impartial, the fact tha t the defendant had to use
a perempto ry challenge to achieve that result does not mean the Sixt h Amendme nt was violated." 487 U.S. at 88, quoted in Feltrop v. Delo , 4 6 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 actual ly 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.