Smulls v. Roper

• Decision Date: 29 July 2008
• Docket Number: No. 05-2456.,05-2456.
• Citation: 535 F.3d 853
• Parties: Herbert SMULLS, Appellant, v. Don ROPER, Superintendent, Potosi Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

535 F.3d 853

Herbert SMULLS, Appellant, v. Don ROPER, Superintendent, Potosi Correctional Center, Appellee.

No. 05-2456.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2007.

Filed: July 29, 2008.

Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, KS, argued (Charles M. Rogers, Jeremy S. Weis, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, on the brief), for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief), for appellee.

Before LOKEN, Chief Judge, WOLLMAN, HANSEN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges, En Banc.

HANSEN, Circuit Judge.

A Missouri jury found Herbert Smulls guilty of first degree murder, as well as other crimes, and he was sentenced to death. The Supreme Court of Missouri ultimately affirmed Smulls' convictions on direct appeal and denied his motions for postconviction relief. The district court¹ denied Smulls' 28 U.S.C. § 2254 petition, and this court granted a certificate of appealability on Smulls' Batson² — related claims. After a divided panel of this court affirmed in part and reversed and remanded in part, Smulls v. Roper, 467 F.3d 1108 (8th Cir.2006), we granted the State's petition for rehearing en banc and vacated the panel opinion. We now affirm the district court's denial of habeas relief.

I.

On July 27, 1991, Smulls and Norman Brown robbed a jewelry store owned by Stephen and Florence Honickman. In the course of the robbery, Smulls shot Stephen and Florence; Stephen died from his wounds, and Florence sustained permanent injuries. Smulls was charged with first degree murder, first degree assault, two counts of first degree robbery, and two counts of armed criminal action. At his first trial, the jury found Smulls guilty of first degree robbery but failed to reach verdicts on the remaining counts. Upon retrial, the jury found Smulls guilty of the remaining counts.

During jury selection at Smulls' second trial, his defense counsel objected to the prosecutor's exercise of a peremptory challenge to remove Margaret Sidney from the jury. The defense moved to quash the jury and moved for a mistrial on the basis of a Batson violation. Counsel identified Ms. Sidney as the only black person left on the 30-person venire panel from which peremptory challenges were made and argued that the prosecutor's removal of Ms. Sidney left Smulls, who was black, to face an all-white jury. Counsel "fe[lt] that the state struck her in a racially discriminatory manner." (Appellant's App. at 13.) The trial court asked the prosecutor to address the claim. The prosecutor recognized that Ms. Sidney was a black female and discussed his reasons for striking her from the panel. The prosecutor described Ms. Sidney's demeanor during his examination of the panel, particularly during the discussion of the potential death penalty, and he specifically recounted a glare on her face, an aversion of her eyes, and an irritated answer to one of his questions. He also discussed Ms. Sidney's occupation, which he described as a mail sorter for 5,000 people at Monsanto, and which, in his view, equated her with postal service workers. According to the prosecutor, he had negative experiences with postal workers who served as jurors in the past. He noted her general demeanor, which, in his discussion, included the fact that she wore a beret one day and a sequined cap the next. Finally, the prosecutor compared Ms. Sidney to another white juror, Ms. Dillard, whom he had struck because she was a postal worker with a confrontational attitude. Following the prosecutor's explanation for striking Ms. Sidney, the trial court overruled the request to quash the jury and denied the motion for a mistrial. Defense counsel then argued that the prosecutor's stated reasons were pretextual, addressing the various points made by the prosecutor and discussing several other venirepersons. The trial court, noting that it was ruling only on the Batson challenge to the strike of Ms. Sidney, again overruled the objection. Defense counsel then moved the court to disallow the strike of Ms. Sidney, to which the trial court responded, "Based upon what is before the Court that request will be denied." (Id. at 19.)

The next morning, defense counsel renewed the motion for a mistrial and the motion to quash the jury based on Batson, arguing "that the striking of Ms. Margaret Sidney the black female juror who was the only black remaining juror out of 30 we qualified, was struck on a racially discriminatory basis." (Id. at 22.) Defense counsel asked to supplement the record made the previous day, which the court allowed. The court allowed the prosecutor to respond and then denied the motion for a mistrial for the third time. Undeterred, defense counsel responded to the denial by stating, "Judge, I believe I stated on the record yesterday when I made my record that Ms. Sidney was the only black juror remaining out of the 30." (Id. at 26-27.) At this point, the trial judge's frustration became apparent.

THE COURT: You made that statement.

MS. KRAFT: Okay.

THE COURT: You see, I have a problem. I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eight persons are black.

That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't.

There were some dark complexioned people on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don't know what black means. Can somebody enlighten me of what black is? I don't know; I think of them as people.

I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit here and say to you that Ms. Sidney is not black. But I'm not going to make a judgment as to whether anybody else on the panel was, so in any event, I'm merely telling you that for the record.

I'd rather not even discuss it on the record. But, in any event, I'm going to deny your motion for a mistrial on the basis stated. Are we ready to proceed?

(Id. at 27-28.) Smulls was ultimately convicted by a jury containing no black jurors. On appeal, the Supreme Court of Missouri unanimously rejected Smulls' claim that the prosecutor violated Batson by improperly striking Ms. Sidney. State v. Smulls, 935 S.W.2d 9, 15-16 (Mo.1996) (en banc) (White, J.), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). Following numerous state postconviction proceedings concerning a motion to disqualify the state trial judge from presiding over the postconviction hearings, the Supreme Court of Missouri ultimately affirmed the denial of all postconviction relief. Smulls v. State, 71 S.W.3d 138 (Mo.2002) (en banc).

Smulls filed a 28 U.S.C. § 2254 petition for habeas review, which was denied by the district court. We granted a certificate of appealability to review Smulls' Batson — related claims.

II.

"On an appeal from a district court's denial of a petition for writ of habeas corpus, we review its findings of fact for clear error and its conclusions of law de novo." Chavez v. Weber, 497 F.3d 796, 801 (8th Cir.2007). Our review, as was the district court's, is strictly circumscribed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a state prisoner's claim has been adjudicated on the merits in state court, a federal court "shall not ... grant[ ]" an application for a writ of habeas corpus unless the state courts' adjudication of the prisoner's claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In ruling on an application for a writ of habeas corpus, "a determination of a factual issue made by a State court shall be presumed to be correct," unless rebutted "by clear and convincing evidence." § 2254(e)(1).

AEDPA's substantial limitations on collateral review reflect Congress's concern for federalism. "A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I); see also Rice v. Collins, 546 U.S. 333, 344, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (Breyer, J., concurring) ("[C]onsiderations of federalism require federal habeas courts to show yet further deference to state-court judgments."). The Supreme Court recently reiterated that AEDPA "create[d] an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007) (reversing Ninth Circuit's grant of habeas relief where the court "failed to respect the limited role ... prescribed by Congress" and the Court's precedent). With these restrictions in mind, we turn to Mr. Smulls' claims that he is entitled to habeas relief.

Peremptory strikes have long been a part of our jury trial system. Peremptory strikes date back to ancient Roman times and were eventually carried to...