Richard Cox v. Larry Norris , 177 F. App'x 516 ( 2006 )


Menu:
  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-3406
    ___________
    Richard Cox,                          *
    *
    Appellant,         *
    * Appeal from the United States
    v.                              * District Court for the Eastern
    * District of Arkansas.
    Larry Norris, Director, Arkansas      *
    Department of Correction,             *      [UNPUBLISHED]
    *
    Appellee.          *
    ___________
    Submitted: April 18, 2006
    Filed: April 24, 2006
    ___________
    Before ARNOLD, FAGG, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    During jury voir dire before Richard Cox’s capital murder trial in Arkansas
    state court, prospective juror Dorothy Caddell, an African-American woman, was
    removed by peremptory challenge. Caddell had stated she could not impose the death
    penalty on a sixteen-year old, Cox’s age at the time, and stated she had previously
    served on a jury that had acquitted a defendant after a trial involving the same
    prosecutor. White prospective jurors who expressed reluctance about imposing the
    death penalty were likewise removed. At the time Caddell was stricken, only seven
    jurors had been seated. Four African-Americans had been excluded by the court or
    by agreement of the parties, and four more remained to be questioned. When defense
    counsel challenged the removal of Caddell under Batson v. Kentucky, 
    476 U.S. 79
    (1986), the court stated Cox had not made a prima facie showing of discrimination,
    so the prosecutor was not required to articulate a race-neutral reason for the strike.
    See 
    Batson, 476 U.S. at 96-98
    . The court observed there was no reason to draw an
    inference of discriminatory intent in the prosecutor’s peremptory challenge. On the
    contrary, there was ample reason for the peremptory strike based on Caddell’s
    responses during voir dire.
    An all-White jury convicted Cox of capital murder. Cox appealed his conviction
    to the Arkansas Supreme Court, claiming the trial court committed error in not
    requiring a race-neutral explanation for the prosecution’s peremptory challenge of
    Caddell. The Arkansas Supreme Court rejected the claim on the merits and affirmed
    Cox’s conviction, holding the striking of Caddell was insufficient to prove a pattern
    or process to exclude jurors because of their race. Cox v. State, 
    47 S.W.3d 244
    , 255-
    56 (Ark. 2001).
    Cox then filed this 28 U.S.C. § 2254 habeas action asserting he was denied due
    process when the trial court rejected his challenge to Caddell’s removal. In a thorough
    published opinion, the district court* denied relief. Cox v. Norris, No.
    5:02CV00234JWC, 
    2005 WL 1922634
    (E.D. Ark. July 19, 2005). The court
    concluded Cox had not rebutted the state courts’ decision that he failed to establish a
    prima facie case of discrimination, so the prosecutor was not obliged to offer a race-
    neutral explanation for the strike. 
    Id. at *9.
    The court held the Arkansas Supreme
    Court’s decision was not based on an unreasonable determination of the facts, and was
    not contrary to or an unreasonable application of Batson v. Kentucky, or any other
    Supreme Court precedent. 
    Id. Thus, Cox
    was not entitled to habeas relief. Id.; see
    28 U.S.C. § 2254(d).
    *
    The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
    Eastern District of Arkansas.
    -2-
    Cox now appeals the denial of his habeas petition. We review the district
    court’s factual findings for clear error and its legal conclusions de novo. Hall v.
    Luebbers, 
    341 F.3d 706
    , 712 (8th Cir. 2003). Cox does not challenge the pertinent
    facts and law set forth by the district court. Instead, Cox disputes only whether the
    trial court should have drawn an inference that the challenge to Caddell was based on
    race. The state court’s finding that no inference was warranted is a factual
    determination entitled to a presumption of correctness unless overcome by clear and
    convincing evidence. 
    Id. at 713.
    We agree with the district court that Cox failed to
    overcome the presumption. Thus, Cox’s Batson claim fails, and Cox is not entitled
    to habeas relief on the claim.
    We decline to consider Cox’s remaining arguments, which were not raised in
    the district court or included in the certificate of appealability. Accordingly, we affirm
    the denial of Cox’s habeas petition.
    ______________________________
    -3-
    

Document Info

Docket Number: 05-3406

Citation Numbers: 177 F. App'x 516

Filed Date: 4/24/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023