Weaver v. Bowersox

• Decision Date: 13 June 2000
• Docket Number: No. 99-3462,PETITIONER-APPELLE,V,RESPONDENT-APPELLANT,99-3462
• Citation: 241 F.3d 1024
• Parties: (8th Cir. 2001) WILLIAM WEAVER,MICHAEL BOWERSOX, . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1024

241 F.3d 1024 (8th Cir. 2001)

WILLIAM WEAVER,PETITIONER-APPELLEE,

V.

MICHAEL BOWERSOX,RESPONDENT-APPELLANT.

No. 99-3462.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: June 13, 2000.

Filed: February 23, 2001.

Appeal from the United States District Court for the Eastern District of Missouri

[Copyrighted Material Omitted] Before Bowman, Morris Sheppard Arnold, and Bye, Circuit Judges.

Bye, Circuit Judge

The State of Missouri appeals from the judgment of the district court granting William Weaver's petition for habeas corpus relief under 28 U.S.C. 2254. The district court determined that Weaver's Fourteenth Amendment rights under the Equal Protection Clause were violated when the state prosecutor exercised two peremptory strikes against black venirepersons during Weaver's murder trial. We reverse; we also remand to the district court to address the remaining twenty-one issues raised in Weaver's petition.

BACKGROUND

On July 19, 1988, a St. Louis County jury convicted Weaver, a black male, of first-degree murder for the death of Charles Taylor. The following day the jury sentenced Weaver to death.

During jury selection, the prosecutor exercised seven of his nine peremptory strikes on white venirepersons and the remaining two on black venirepersons, leaving a jury comprised of nine whites and three blacks. Weaver challenged the two strikes against black venirepersons, relying upon the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). The state trial court held a hearing at which the prosecutor explained his peremptory strikes by stating

there's not a pattern of discrimination or systematic exclusion. There are three blacks on the jury, which is 25% of the jury, which I think is significantly higher than the black population in St. Louis County.

The two blacks I struck with my peremptory strikes were not because the people were black but for other reasons. Let's see. Juror number 27, Ms. Burns, I struck her for a number of reasons: One, in the death penalty phase, although she said she could impose the death penalty, I wasn't persuaded that she could. I thought she said it with some reluctance and some hesitation. I also couldn't maintain eye contact with her. I know bad vibrations and bad chemistry between a lawyer and a prospective juror doesn't carry great weight with the Court or, at least, the Court of Appeals, but I think it's a legitimate reason for the attorney to strike someone.

In any event, I was not persuaded that she could give the death penalty, particularly to a fellow black person. I didn't think she was strong enough. I observed her a lot of times cutting up and talking to the black gentleman next to her, Mr. Innman, who I have left on the jury by way of my strikes. And I simply felt that she would not be a fair and impartial juror.

With regard to juror number 54, Ms. Newsome, I felt that she was a weak person, both during voir dire on the death penalty, and on the voir dire -just the general voir dire, although Ms. Black conducted most of it. My impression of her was that she was not particularly bright and I struck a couple of white people for that very same reason. I thought in a case like this I needed intelligent people. I didn't figure she qualified in that regard and I thought she took the whole matter rather frivolously.

But in any matter, Judge, of nine peremptory strikes, I have used only two to strike blacks. Seven were used to strike whites. I have left three blacks on the jury, even though I have enough peremptory strikes to attempt to remove all five.

Perhaps I misstated my case somewhat with Ms. Newsome when I say intellectually weak. What I really meant is her personality struck me -granted, she did try hard to get on the jury, which showed civic minded interest; but in those interviews with the Court, she just struck me as a person that was a weak personality where the death penalty is involved, and I didn't think she would be able to vote for the death penalty.

In evaluating the Batson claim, the state trial court observed that three of the jurors remaining on the panel were black, and also that the alternate juror was black. The trial court denied the Batson challenge stating that, "the court does find that no prima facie showing of discrimination in the jury selection has been made."

Weaver brought post-conviction motions for relief in state court, which were denied. He also appealed his conviction and sentence to the Missouri Supreme Court. Weaver's direct appeal was consolidated with his appeal from the denial of his post-conviction motions. On December 19, 1995, the Missouri Supreme Court affirmed the conviction and death sentence. See State v. Weaver, 912 S.W.2d 499 (Mo. 1995).

The Missouri Supreme Court analyzed the Batson claim differently than the trial court. Rather than reviewing the trial court's determination that the defendant had not established a prima facie showing of discrimination, on appeal the court focused on whether the prosecutor had offered race-neutral explanations for his peremptory strikes. The Missouri Supreme Court concluded that the prosecutor's stated reasons for striking venireperson Burns were race-neutral, and that no Batson violation occurred.

What a prosecutor observes about a potential juror in voir dire, as well as what is said, may form a legitimate nondiscriminatory basis for exercising a peremptory strike. See Purkett, , 115 S. Ct. at 1771. Those observations here included reluctance and hesitation in answering questions, lack of eye contact with the prosecutor, lack of strength, and "cutting up" and talking during voir dire. The prosecutor's explanation here was specific, race-neutral, and free of any racially discriminatory purpose. The trial court had the opportunity to observe the juror in question, listen to the manner in which she answered the questions, and to assess the prosecutor's demeanor and reasons for striking the juror.

Weaver, 912 S.W.2d at 509.

The Missouri Supreme Court also concluded that no Batson violation occurred with respect to venireperson Newsome:

As to [Newsome], the state's reason for striking her was race neutral. By her words and conduct, [Newsome] led the prosecutor to believe that she was frivolous, had a weak personality or was intellectually weak, particularly where the death penalty was concerned. It is not inherently pretextual to say that in a capital case a prosecutor would want serious jurors that are of above average intelligence and not reluctant to impose the death penalty when appropriate.

Id. at 509-10.

PROCEDURAL HISTORY

On April 18, 1996, Weaver filed a pro se habeas corpus petition in federal district court. At that time, Weaver had not yet petitioned the United States Supreme Court for review of the Missouri Supreme Court's decision affirming his conviction and death sentence. The district court dismissed Weaver's petition without prejudice so that he could fully exhaust his state remedies. Weaver petitioned the Supreme Court for a writ of certiorari, which the Court denied on October 7, 1996. Weaver v. Missouri, 519 U.S. 856 (1996).

On November 12, 1996, Weaver filed a second pro se habeas corpus petition in federal court. After the district court appointed counsel to assist Weaver in presenting his petition, Weaver filed an amended petition raising the Batson claim and twenty-one other issues.

Weaver's two petitions straddled the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA) (effective April 24, 1996), which set new standards that curtail the federal courts' review of constitutional challenges to state custody. See generally, Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1518 (2000) (O'Connor, J., concurring, writing for five Justices on this point).

On August 9, 1999, the district court granted Weaver a writ of habeas corpus. The district court held that the state trial court improperly applied Batson's three-step process for analyzing a prosecutor's use of peremptory strikes. ¹ Citing Hernandez v. New York, 500 U.S. 352 (1991), the district court decided that the state trial court applied Batson unreasonably -- instead of considering whether the prosecutor's articulated reasons for the peremptory strikes were race neutral, the state trial court merely found that the defendant had made no prima facie showing. Hernandez holds that a defendant's prima facie requirement becomes moot if a prosecutor offers a race-neutral explanation before the court rules that the defendant made a prima facie showing. See Hernandez, 500 U.S. at 359.

In addition, the district court independently analyzed the prosecutor's stated reasons for striking venireperson Burns. The district court found that the prosecutor struck Burns for reasons which were not race neutral.

The district court did not specifically address whether Weaver's petition should be analyzed under AEDPA, concluding that a Batson violation had occurred even if the state trial court's actions were examined under the heightened standard. In addition, the district court addressed only the state trial court's decision, and did not consider whether the Missouri Supreme Court decision was contrary to, or involved an unreasonable application of Batson. After granting Weaver a writ based upon the Batson claim, the district court declined to address Weaver's remaining twenty-one claims.

DISCUSSION

I. Application of AEDPA

As a threshold matter, we must decide whether AEDPA, and its new standard of review, applies to Weaver's habeas petition. Weaver asks us to apply the pre-AEDPA standard. He filed his first petition on April 18, 1996, six days before AEDPA took effect. That petition was dismissed without prejudice for failure to exhaust state remedies. After exhausting state remedies, Weaver returned to federal court on November 12, 1996. He notes that, under pre-AEDPA law, the second filing...