Elem v. Purkett

Citation25 F.3d 679
Decision Date28 July 1994
Docket NumberNo. 93-1793,93-1793
PartiesJimmy ELEM, Appellant, v. James PURKETT, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

David E. Woods, O'Fallon, MO, argued, for appellant.

Stephen Hawke, Asst. Atty. Gen., Jefferson City, MO, argued, (Ronald Jurgeson, Asst. Atty. Gen., appeared on the brief), for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

McMILLIAN, Circuit Judge.

In this habeas action brought pursuant to 28 U.S.C. Sec. 2254, petitioner Jimmy Elem appeals from a final order entered in the United States District Court for the Eastern District of Missouri denying his petition for a writ of habeas corpus. For reversal, petitioner argues that the district court erred in holding: (1) he failed to prove either cause and prejudice or a fundamental miscarriage of justice to overcome his procedural default of all but two of his claims; (2) he failed on the merits of his equal protection claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson); and (3) he failed on the merits of his due process claim. For the reasons discussed below, we affirm in part and reverse in part and remand the matter to the district court with directions.

In July of 1986, petitioner was convicted of second degree robbery following a jury trial in Missouri state court. The underlying offense involved an assault and robbery of an African-American woman who identified her assailant as an African-American man with "french-braided" hair and wearing a gray sweatsuit. Petitioner, who fit the description of the robber, was apprehended near the scene of the robbery. The victim identified him as her assailant. During jury selection, petitioner objected to the prosecutor's use of peremptory challenges to strike two African-American men from the jury panel. The prosecutor indicated that his reasons for the strikes were, in part, based upon the jurors' appearance. The state trial court overruled the objection. At trial, a gray sweatsuit was admitted into evidence. The victim identified the sweatsuit as the one worn by the robber. 1 During deliberations, the jury inadvertently discovered what appeared to be a marijuana cigarette, or "joint," in the sweatsuit. Petitioner moved for a mistrial on grounds that the "joint" was evidence of a crime for which petitioner had not been charged. The trial court denied the motion. After the jury returned a verdict of guilty, petitioner moved for a new trial on the same grounds. The state trial court heard testimony of the jury foreperson, who stated that the jury placed no emphasis on the "joint" in its deliberations. The trial court denied petitioner's motion for a new trial.

Petitioner was sentenced as a persistent offender and received a twenty-five year sentence. He appealed his conviction asserting two grounds: (1) the prosecutor's use of peremptory challenges to strike two African-American jurors violated Batson; and (2) the jury's inadvertent discovery of the apparent "joint" in the gray sweatsuit violated his due process rights. The Missouri Court of Appeals affirmed his conviction. State v. Elem, 747 S.W.2d 772 (Mo.Ct.App.1988). Petitioner did not bring a state court action seeking post-conviction relief. He next filed a petition for writ of habeas corpus pro se in federal district court. The matter was referred to a United States magistrate judge, who recommended that the petition be denied without a hearing. Elem v. Purkett, No. 4:92CV1927 (E.D.Mo. Jan. 19, 1993) (report and recommendation). The district court adopted the magistrate judge's report and recommendation and denied the petition. Id. (Feb. 18, 1993) (order). This appeal followed.

Procedural default

Petitioner first argues on appeal that the district court erred in holding that he is not entitled to habeas review of claims which he failed to raise on direct appeal. Of the ten claims asserted by petitioner, the district court declined to consider eight on grounds of procedural default not excused by cause and prejudice or amounting to a fundamental miscarriage of justice. 2 Petitioner now contends that his procedural default should be excused on grounds that a fundamental miscarriage of justice will result if his claims are not considered on their merits. Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (applying fundamental miscarriage of justice standard to penalty phase of capital murder case). In Sawyer v. Whitley, the Supreme Court considered whether the petitioner was eligible for habeas review of his death sentence under the fundamental miscarriage of justice doctrine, despite the procedural default of his constitutional claims. The Court explained, in that context, that "to show 'actual innocence' one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Id. --- U.S. at ----, 112 S.Ct. at 2517. Having reviewed the petition in the present case, the district court held that petitioner "has not shown any facts to warrant concern about a fundamental miscarriage of justice." Slip op. at 4. Upon careful review, we agree. None of petitioner's procedurally defaulted claims, even if proven, would establish by clear and convincing evidence that petitioner is "actually innocent" of the offense such that no reasonable juror would have found him guilty. Accordingly, we affirm this aspect of the district court's order. 3

Batson violation

Petitioner next argues that the district court erred in holding that his equal protection rights under Batson were not violated as a result of the prosecutor's use of peremptory challenges to strike two African-American jurors from the jury panel. Petitioner challenges the legitimacy of the prosecutor's explanation for striking jurors 22 and 24. 4 The prosecutor stated that he struck juror 22 because that juror had long curly hair, a mustache and a goatee-type beard. He also noted that juror 24 had a mustache and a goatee-type beard. Apparently they were the only two with facial hair on the panel. The prosecutor stated "I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me." He then further noted that juror 24 had been a witness in a supermarket robbery and had a sawed-off shotgun pointed at his face. The prosecutor stated "I didn't want him on the jury as this case does not involve a shotgun, and maybe he would feel to have a robbery you have to have a gun, and there is no gun in this case." Trial Transcript at 61.

In Batson, the Supreme Court held that purposeful racial discrimination in the jury selection process violates a criminal defendant's constitutional rights. "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his [or her] race from the jury venire on account of race, ... or on the false assumption that members of his [or her] race as a group are not qualified to serve as jurors." 476 U.S. at 86, 106 S.Ct. at 1717 (citations omitted). Batson requires the criminal defendant to establish a prima facie case of racial discrimination in the jury selection process by showing: (1) he or she is a member of a cognizable racial group; (2) the prosecutor exercised peremptory challenges to remove members of the defendant's race from the venire panel; and (3) these facts and any other relevant circumstances raise an inference that the prosecutor purposefully excluded the venire persons from the petit jury because of their race. Id. at 96, 106 S.Ct. at 1723. Once the defendant makes a prima facie showing, the burden shifts to the prosecution to come forward with a neutral explanation for the peremptory strikes. On that point, the Court further explained that blacks may not be excluded on the assumption that they, as a group, are not qualified to serve as jurors, or that they will be biased simply because the defendant is black. Id. at 97, 106 S.Ct. at 2245. Notably, "the prosecutor must give a 'clear and reasonably specific' explanation of his [or her] 'legitimate reasons' for exercising the challenges." Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)) (emphasis added). Finally, the trial court must ultimately decide whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. As a practical matter, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (Hernandez). At that point, the only question is whether the prosecution exercised its peremptory challenge with a racial animus. The trial court's ultimate finding on this issue is to be set aside only if clearly erroneous. Id. 500 U.S. at 369, 111 S.Ct. at 1871.

Our review in the present case focuses on whether the state trial court clearly erred in its ultimate determination that the prosecution's actions were not racially motivated with respect to jurors 22 and 24. We are mindful of the presumption of correctness that is due the state courts' factual findings on habeas review. As to juror 24, we find no clear error. As to juror 22, however, we hold that a Batson violation did occur and reverse the district court's holding to the contrary.

The Missouri Court of Appeals and the district court both reached the conclusion that no Batson error occurred in this case by relying on the Missouri Supreme Court's...

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