Jones v. Jones, 90-1696

• Decision Date: 21 August 1991
• Docket Number: No. 90-1696,90-1696
• Citation: 938 F.2d 838
• Parties: Edwin JONES, Appellant, v. Jimmy JONES, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 838

938 F.2d 838

Edwin JONES, Appellant, v. Jimmy JONES, Appellee.

No. 90-1696.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1991.

Decided July 9, 1991.

Rehearing Denied Aug. 21, 1991.

Michael J. Marshall, St. Louis, Mo., for appellant.

William J. Bryan, argued, for appellee; William L. Webster and William J. Bryan, Jefferson City, Mo., on the brief.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Edwin Jones appeals from the district court's ¹ denial of his petition for writ of habeas corpus, raising claims of racial discrimination in the selection of the petit jury, prosecutorial misconduct, inconsistent jury verdicts, and ineffective assistance of counsel. We affirm the judgment of the district court.

On June 12, 1986, a jury found Jones guilty of first degree burglary, stealing without consent over $150.00, and resisting arrest. The Circuit Court of the City of St. Louis, Missouri, sentenced Jones to concurrent prison terms of twenty years on the burglary count and three years each on the other two counts. The Missouri Court of Appeals affirmed the conviction and sentence. State v. Jones, 748 S.W.2d 898 (Mo.Ct.App.1988).

On February 16, 1989, the trial court denied Jones's motion for post-conviction relief as out of time, Jones v. State, No. 2216 (Cir.Ct.Mo. Feb. 16, 1989), and on October 17, 1989, Jones filed a pro se petition for habeas corpus relief in district court. Jones' petition claimed that the prosecutor discriminated against Jones by improperly using all six peremptory challenges to remove blacks from the jury, that the prosecutor made improper characterizations about Jones during his closing argument to the jury, and that the trial court allowed the jury to return conflicting verdicts of both first and second degree burglary.

After the district court referred the matter to a United States Magistrate for review and recommendation, Jones filed a motion labeled "PETITIONER'S TRAVERSE AND SUPPLEMENTAL PETITION," in which he amended his original petition by raising, for the first time, an ineffective assistance of counsel claim and two new due process claims.

The magistrate's review addressed Jones' three original claims and the supplemental ineffective assistance of counsel claim all on the merits and recommended denial of the writ. ² Jones v. Jones, No. 89-1945C(1) (E.D.Mo. Feb. 14, 1990) (Magistrate's Review and Recommendation). On March 5, 1990, in a one sentence order, the district court adopted in full the magistrate's review and recommendation. Jones v. Jones, No. 89-1945C(1) (E.D.Mo. Mar. 5, 1990).

Jones claims that the district court erred when it denied habeas relief because: (1) the state court finding that the prosecutor offered sufficient, racially neutral explanations for his peremptory strikes is not fairly supported in the record; (2) the prosecutor's prejudicial closing statements were not supported by the evidence, and the trial judge failed to give the jury any curative instruction; (3) the trial court committed reversible error when it accepted inconsistent jury verdicts; and (4) the district court never held an evidentiary hearing or ruled on the merits of his ineffective assistance of counsel claim, despite the fact that the claim was properly before the court. Jones also requests that this court permit him to amend his district court pleading to raise issues he did not raise in district court or that the district court refused to recognize. We address appellant's arguments in order.

I.

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), confirmed that a state prosecutor violates the equal protection clause of the fourteenth amendment if he or she excludes venire members from the jury on the basis of race. Id. at 86, 106 S.Ct. at 1717 (citing Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1880)). In Batson, the Supreme Court explained that to establish a prima facie case of discrimination:

the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. 476 U.S. at 96, 106 S.Ct. at 1723 (citations omitted).

"After a defendant establishes a prima facie case, the burden then shifts to the government to 'articulate a neutral explanation related to the particular case to be tried.' 'The prosecutor must give a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' " United States v. Jimmie Wilson, 884 F.2d 1121, 1124 (8th Cir.1989) (en banc) (quoting Batson, 476 U.S. at 98 & n. 20, 106 S.Ct. at 1724 & n. 20).

At the close of Jones' voir dire, the prosecutor moved to exercise all six of his peremptory challenges against black venire persons, leaving only one black person to serve on the jury. When Jones' counsel objected to the peremptory challenges, the court asked the prosecutor to state his reasons for the strikes on the record, which he did. Jones' attorney then moved to quash the jury panel, ³ and the court said only one word, "overruled."

Jones appealed the trial court's refusal to quash the jury, but the Missouri Court of Appeals treated the trial court's statement, "overruled," as an implicit factual finding that there had been no purposeful discrimination. The appeals court reviewed the ruling under the clearly erroneous standard and affirmed, holding that the record supported the trial court's implicit finding. Jones, 748 S.W.2d at 900-01. The court also found that the prosecutor's explanations were, on their face, neutral and not frivolous and that defense counsel had made no effort to persuade the trial court that the prosecutor's rebuttal was merely a pretext. Id.

On habeas review, the district court adopted the magistrate's review and recommendation, which stated: "[F]Actual [sic] findings reliably and specifically made by a state court are presumed to be correct and are entitled to deference by a federal court." Magistrate's Review at 3.

Jones argues two main points: first, that the state court's Batson determinations were mixed findings of law and fact and therefore should not be presumed correct under 28 U.S.C. Sec. 2254(d) (1988); and second, that even if the Batson questions are issues of fact, the state court factual finding of no discrimination is not entitled to the section 2254(d) presumption because it is not fairly supported in the record. See section 2254(d)(8) (creating an exception to the general presumption of correctness when petitioner shows "that such factual determination is not fairly supported by the record").

The State makes three arguments. First, it asks this court to hold that Jones' Batson claim is not cognizable on federal habeas corpus review because the claim is unrelated to Jones' guilt or innocence and does not question the justness of his incarceration. Second, the State argues that the Missouri Court of Appeals' finding, that the prosecutor's explanations for the strikes were legitimate and neutral, was a finding of historical fact entitled to the section 2254(d) presumption. Third, the State argues that the prosecutor's explanations were neutral and rationally related to the case, and, as such, they are sufficient to rebut Jones' prima facie case of racial discrimination.

A.

We begin by dispensing with two arguments summarily. We reject Jones' claim that a state court Batson determination is a mixed finding of law and fact. This argument contradicts plain statements in controlling Supreme Court cases, ⁴ and is contrary to our frequent conclusion, on direct appeal, that district court Batson findings are factual determinations subject to review under the clearly erroneous standard. ⁵ Jones offers no reason why this court should treat the identical question--whether trial court Batson determinations are findings of fact or mixed findings of law and fact--differently on habeas review than we do on direct appeal.

We also reject the State's contention that this court should refuse to consider Batson claims on habeas review. In Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the Supreme Court declined to apply the Batson rule retroactively to a case on federal habeas review. Id. at 259-61, 106 S.Ct. at 2880-81. See Garrett v. Morris, 815 F.2d 509, 511 (8th Cir.1987). While Allen is decided in a different context, the Supreme Court's analysis presupposes the availability of habeas review of Batson claims.

B.

Section 2254(d) sets out the habeas standard for reviewing state court findings of fact. ⁶ These findings are presumed to be correct unless one of eight conditions is met. The presumption, however, only applies to state court findings of fact. A habeas court is free to conduct an independent review of state court conclusions of law, or determinations on mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) (mixed determinations of law and fact are reviewable on collateral attack); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (mixed questions of law and fact are not subject to section 2254(d) presumption). The most pressing question is whether there have been any state court factual findings in this case.

The Missouri Court of Appeals gleaned, from the word "overruled," an implicit trial court finding that: (1) Jones made out a prima facie case of intentional discrimination, and (2) the prosecutor's...