Ollie Williams v. Michael Groose ( 1996 )

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No. 94-3669EM
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Ollie Williams, *
*
Appellant, *
* Appeal From the United States
v. * District Court for the Eastern
* District of Missouri.
Michael Groose, *
*
Appellee. *
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Submitted: November 15, 1995
Filed: February 26, 1996
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Before RICHARD S. ARNOLD, Chief Judge, and BRIGHT and FAGG, Circuit
Judges.
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FAGG, Circuit Judge.
Ollie Williams appeals the district court's dismissal of his
habeas petition following his Missouri state jury conviction for
burglary. We affirm.
Williams first asserts the State used peremptory challenges to
remove prospective black jurors from the venire panel based on
their race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
After a defendant makes a prima facie showing of racial
discrimination in the Government's use of a peremptory challenge,
the Government must offer a race-neutral reason for the challenge.
Purkett v. Elem, 115 S. Ct. 1769, 1770 (1995). When the
Government's stated reason is race neutral, that is, discriminatory
intent is not inherent in the reason, id. at 1771, the defendant
may attempt to show the facially valid reason is pretextual.
McKeel v. City of Pine Bluff, No. 95-1084, 1996 WL 5205, at *1 (8th
Cir. Jan. 8, 1996). The trial court then decides whether the
Government was motivated by discriminatory intent. Elem, 115 S.
Ct. at 1770-71. We can reverse the trial court's decision only if
"`not fairly supported by the record.'" Id. at 1771 (quoting 28
U.S.C. § 2254(d)(8)).
After the prosecutor used peremptory challenges to remove
prospective black jurors from the venire panel, Williams objected
to their removal. The prosecutor explained he removed jurors Lacy
and Tillman because they are postal workers. This reason is race
neutral. See id. Williams did not argue the prosecutor's race-
neutral reason was pretextual. Thus, the record supports the
district court's finding of no discrimination in the removal of
Lacy and Tillman. See McKeel, 1996 WL 5205, at *2.
The prosecutor explained he removed juror Butler because
Butler's nephew "was arrested for assault [and found] not guilty
after a trial," so Butler might sympathize with Williams. In
response, Williams argued the prosecutor failed to strike a
similarly situated white juror, Brummet, whose daughter was
convicted of manslaughter. See Davidson v. Harris, 30 F.3d 963,
965 (8th Cir. 1994) (otherwise neutral explanation for removing
black juror may be pretextual if stated reason also applies to
white juror who is not removed), cert. denied, 115 S. Ct. 737
(1995). Here, the prosecutor believed Butler might be sympathetic
to Williams because his innocent nephew was wrongly accused. This
reasoning does not apply to Brummet's daughter, who was found
guilty. Thus, the record supports the district court's decision
that racial discrimination did not motivate the prosecutor's
removal of Butler.
Because Williams did not challenge the peremptory removal of
prospective juror Jordan in his direct state court appeal, the
Batson claim challenging Jordan's removal is procedurally
defaulted. Turner v. Delo, 69 F.3d 895, 896 (8th Cir. 1995).
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Williams has not asserted cause or prejudice to excuse his default,
or that a fundamental miscarriage of justice would occur if we do
not review the claim. See id. Thus, we need not consider
Williams's claim that Jordan's removal violated Batson. Id.
Williams next contends the trial court should have removed
potential juror Rucker for cause because of Rucker's statement
during voir dire that he would have to hear from both sides before
deciding the case. According to Williams, Rucker's statement shows
Rucker would be biased if Williams invoked his Fifth Amendment
right not to incriminate himself at trial, so the trial court's
failure to remove Rucker violated Williams's right to due process.
Williams's due process contention is procedurally defaulted because
Williams did not raise it in his direct state appeal. Williams
asserts his state appellate attorney's failure to raise the claim
amounted to ineffective assistance, and this is cause for his
default. We cannot consider ineffective assistance as cause
because Williams did not exhaust an independent ineffective
assistance claim in the state courts, however. Whitmill v.
Armontrout, 42 F.3d 1154, 1157 (8th Cir. 1994), cert. denied, 116
S. Ct. 249 (1995). Contrary to his assertion, Williams was
required to raise the claim in a motion to recall the mandate.
Hall v. Delo, 41 F.3d 1248, 1250 (8th Cir. 1994); Reuscher v.
State, 887 S.W.2d 588, 591 (Mo. 1994) (en banc), cert. denied, 115
S. Ct. 1982 (1995).
Because Williams failed to exhaust his independent ineffective
assistance claim in state court, the district court correctly
declined to consider the claim's merits, and did not abuse its
discretion in requiring Williams to choose between deleting the
claim from his federal habeas petition, or having the petition
dismissed without prejudice to permit exhaustion, see Gray v.
Hopkins, 986 F.2d 1236, 1237 (8th Cir.) (per curiam), cert. denied,
114 S. Ct. 122 (1993); Nottlemann v. Welding, 861 F.2d 1087, 1088
(8th Cir. 1988) (per curiam). We reject Williams's view that the
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district court was required to hold his habeas petition in abeyance
during exhaustion.
Williams also asserts the prosecutor's remarks about the
burden of proof and reasonable doubt during voir dire violated his
due process rights. Even if the remarks constitute trial error
warranting reversal under state law, the remarks did not deny
Williams due process under the Constitution. Given the jury
instructions correctly defining reasonable doubt, the prosecutor's
remarks did not make Williams's entire trial fundamentally unfair.
See Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995).
Williams's remaining contentions are procedurally defaulted.
In his direct state court appeal, Williams did not raise his claims
about the trial court's admission of his mug shots and the
prosecutor's reference to his alias and comment on his failure to
testify. Because Williams has not shown cause and prejudice or a
miscarriage of justice to excuse his procedural defaults, we do not
reach the merits of the defaulted contentions.
Accordingly, we affirm the denial of Williams's habeas
petition.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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