Broom v. Denney

• Decision Date: 07 December 2011
• Docket Number: No. 10–2839.,10–2839.
• Citation: 659 F.3d 658
• Parties: Mark E. BROOM, Appellant,v.Larry DENNEY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

659 F.3d 658

Mark E. BROOM, Appellant,

v.Larry DENNEY, Appellee.

No. 10–2839.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Oct. 14, 2011.Rehearing and Rehearing En Banc Denied Dec. 7, 2011.

Kent E. Gipson, Law Offices of Kent Gipson, LLC, Kansas City, MO, argued, for appellant.Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.

Before MURPHY and SMITH, Circuit Judges, and SCHREIER, ¹ District Judge.SCHREIER, District Judge.

A Missouri jury convicted Mark E. Broom of first-degree murder, first-degree assault, and two counts of armed criminal action. After the Missouri Court of Appeals affirmed Broom's convictions on direct appeal and his application for state post-conviction relief was denied, Broom filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254. In his petition, Broom, a black man, alleged that the prosecution exercised peremptory challenges based on race during jury selection, in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court ² denied Broom's petition, and we affirm.

Broom was prosecuted for a murder committed in Kansas City, Missouri. On November 28, 1988, Broom and several others were at a Kansas City apartment when Broom confronted one of the victims. Broom and the victim walked to the door of the apartment and Broom told the victim he did not want to see him again at the apartment complex. When the victim said he would be around because his aunt owned the building, Broom pulled out a gun and shot him, wounding him in the stomach. Broom then shot and killed another man.

During jury selection, the prosecution exercised peremptory strikes against three black and three white members of the venire. Defense counsel, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objected to the strike against one black member of the venire, Patricia Wright, alleging the strike was motivated by her race and thus prohibited by the Equal Protection Clause. In response to the trial court's inquiry, the prosecutor stated he struck Wright because her son had been incarcerated. Defense counsel then observed that Mary Johnston and Linda Francis, two white members of the venire who were not struck, also had sons who had spent time in jail or prison. The prosecutor asserted that he did not strike Mary Johnston because her sons had been in the county jail for short sentences for vandalism and because she stated that jail had been a positive influence in their lives. The prosecutor did not strike Linda Francis because he liked the way she argued with defense counsel about the law. The trial court denied the Batson challenge and held that the prosecutor's reasons were race neutral.

After a trial, the jury found Broom guilty of the charges. On September 3, 1998, the court sentenced Broom to a term of life imprisonment without parole on the first-degree murder charge and thirty years' imprisonment on each of the other charges.

On April 4, 2000, the Missouri Court of Appeals affirmed the trial judge's denial of the Batson challenge and concluded that the prosecutor's basis for the strike was race neutral and that the prosecutor's explanations were not pretextual because Francis and Johnston were not similarly situated to Wright. The court observed that Francis's and Johnston's sons spent a shorter amount of time in jail than Wright's son and that Johnston had indicated jail was good for her sons. Broom's motion for post-conviction relief was denied by both the trial court and the Missouri Court of Appeals.

In Broom's federal petition for habeas corpus, he argues that the prosecutor's peremptory strikes were racially motivated and the Missouri state court misapplied clearly established federal law in resolving his Batson claim. Specifically, Broom argues that the prosecutor's proffered reason for striking Wright, that she had a son who had been in prison, was not race neutral because a disproportionate number of blacks are incarcerated in relation to their percentage of the general population. Broom also argues that the state court's determination that the prosecutor's reason for the strike was not a pretext for purposeful discrimination was an unreasonable determination of the facts in light of the evidence. The district court denied relief, but it granted a certificate of appealability on Broom's Batson claim.

This court reviews petitions for writ of habeas corpus under the standards set forth in the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the AEDPA, because Broom's claim was adjudicated on the merits in state court, he may obtain relief only if he shows that the adjudication was “contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 472, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

Under Batson, a reviewing court applies a three-step process to determine whether the prosecutor's use of a peremptory strike to exclude a black member of the venire violates the Equal Protection Clause. First, a defendant must present a prima facie case that the prosecutor exercised a peremptory challenge on the basis of race.³ Miller–El v. Cockrell (Miller–El I), 537 U.S. 322, 328–39, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The burden then shifts to the prosecutor to present a race-neutral reason for striking the venire member in question. Id. The court must then evaluate, in light of the purportedly race-neutral rationale for the strike, whether the defense has demonstrated that the prosecutor's reason for the strike was a pretext for purposeful discrimination. Id. Within this framework, the defendant may rely on “all of the circumstances that bear upon the issue of racial animosity” to show purposeful discrimination. Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

Broom claims that the Missouri court unreasonably determined at step two of the Batson process that the prosecutor's justification for the strike, that Wright had a son who had been incarcerated, was race neutral. This court has held that “the incarceration of a family member is a legitimate race-neutral reason justifying the use of a peremptory strike.” United States v. Wiggins, 104 F.3d 174, 176 (8th Cir.1997) (internal citations omitted). Because the incarceration of a family member is a racially neutral reason for a strike, the Missouri state court's determination that the prosecutor stated a race-neutral reason for striking Wright was not an unreasonable determination.

Next, Broom claims that under step three of the Batson process, the prosecutor's reason for striking Wright—that her son had been incarcerated—was a pretext for purposeful discrimination and that the Missouri state court's contrary holding was unreasonable in light of the evidence. Broom contends that the prosecutor failed to strike as jurors Johnston and Francis, two white women who also had sons who had spent time in jail or prison. “Striking a black panelist for reasons that apply as well to similar nonblacks who serve ‘is evidence tending to prove purposeful discrimination.’ ” Williams v. Norris, 576 F.3d 850, 864 (8th Cir.2009) (quoting Miller–El v. Dretke (Miller–El II), 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)).

The Missouri state court found that Francis was not similarly situated to Wright because Francis's son spent a short time in jail, while Wright's son was incarcerated for six months. The Missouri state court also found that Francis was vocal during voir dire, and the prosecutor liked that characteristic. Broom argues that the record does not support these findings.

Under § 2254, the Missouri state court's findings are presumed correct, and the petitioner has “ ‘the burden of rebutting the presumption of correctness by clear and convincing evidence.’ ” Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir.2011) (quoting 28 U.S.C. § 2254(e)(1)). The record reflects that Francis's son had been held in pretrial detention and was convicted on a drug charge for which he was sentenced to probation. Wright's son, on the other hand, was incarcerated for six months. The record also supports the prosecutor's contention that he did not strike Francis because he “liked the way she hung in there” against Broom's defense counsel concerning the law. During questioning by defense counsel, Francis raised her hand to ask whether the defendant would have to testify and indicated she would like to hear from the defendant. Thus, the record contradicts Broom's claim that the Missouri state court unreasonably determined the facts in light of the evidence in finding that the prosecutor's proffered reason for the strike was not a pretext for racial discrimination. The trial court overruled the Batson challenge and made “an implicit finding that the prosecutor's explanation was credible and that the strike was not motivated by purposeful discrimination.” Taylor v. Roper, 577 F.3d 848, 856 (8th Cir.2009). This finding is entitled to deference, and Broom has not presented clear and convincing evidence to overcome it.

With respect to Johnston, the Missouri state court found that Johnston was not similarly situated to Wright because her sons had spent a short time in the county jail five years earlier on vandalism charges, and she stated that jail had had a positive impact on their lives. Broom argues that Wright's responses regarding the incarceration of her sons were...