John Hudson v. Tony Gammon ( 1996 )

No. 95-2420
John Hudson, *
* Appeal from the United States
Appellant, * District Court for the
* Eastern District of Missouri.
v. *
* [UNPUBLISHED]
Tony Gammon, *
*
Appellee. *
Submitted: January 11, 1996
Filed: February 6, 1996
Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
In 1990, John Hudson was convicted of robbery in state court
in Missouri. His conviction was affirmed on direct appeal and
upheld in state postconviction relief proceedings. See State v.
Hudson, 822 S.W.2d 477 (Mo. Ct. App. 1991).
Mr. Hudson petitioned for habeas relief under 28 U.S.C.
§ 2254(a) in federal district court in 1993. The district court
adopted the report and recommendations of a magistrate without
de novo review and denied Mr. Hudson's petition. On appeal of that
denial, a panel of this court remanded the case for consideration
of Mr. Hudson's objections to the magistrate's report and
recommendations. See Hudson v. Gammon, 46 F.3d 785 (8th Cir.
1995). The district court, after de novo review, again denied
Mr. Hudson's petition for habeas relief. Mr. Hudson appeals; we
affirm the judgment of the district court.
I.
Mr. Hudson is black. The venire for his state trial included
six black people. The prosecutor used peremptory challenges to
strike three of those prospective jurors. Mr. Hudson concedes that
one of those strikes was for a race-neutral reason but argues that
the other two strikes were based on race and were therefore
impermissible under Batson v. Kentucky, 476 U.S. 79, 88 (1986).
We assume for the purposes of this opinion, without deciding,
that Mr. Hudson has shown sufficient "relevant circumstances [to]
raise an inference that the prosecutor used [the exercise of
peremptory challenges] to exclude the [two prospective jurors] from
the petit jury on account of their race." Id. at 96. That showing
precipitates an obligation upon the prosecutor "to come forward
with a neutral explanation for challenging [the] black jurors."
Id. at 97. That explanation must be "'clear and reasonably
specific.'" Id. at 98 n.20, quoting Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 258 (1981).
In Mr. Hudson's case, the prosecutor noted that the two
strikes were of postal employees and referred to his experience
with postal employees as jurors, witnesses, and members of his
family. Based on that experience, the prosecutor stated his
opinion that postal employees possess "an attitude instilled in
[them] ... [that] makes them much too liberal in their leanings,
and also much too tolerant of activities that could be considered
criminal[,] or [that makes them] poor jurors for the State." The
state trial court then found that the prosecutor's explanation was
"sufficient" and stated that the court was "satisfied" with that
explanation. The state appellate court held that the state trial
court "did not err [in] accepting the [prosecutor's] neutral
explanations as legitimate." State v. Hudson, 822 S.W.2d 477, 481
(Mo. Ct. App. 1991).
-2-
The district court examined the record of the state court
proceedings and concluded that the state court's findings relevant
to the prosecutor's explanations were "fairly supported" by the
record and were therefore entitled to the presumption of
correctness provided by 28 U.S.C. § 2254(d)(8). Because the
explanation given by the prosecutor was race-neutral, see, e.g.,
United States v. Miller, 939 F.2d 605, 607, 609 (8th Cir. 1991),
and United States v. Johnson, 905 F.2d 222, 222-23 (8th Cir. 1990),
cert. denied, 498 U.S. 924 (1990), see also United States v.
Johnson, 941 F.2d 1102, 1109-10 (10th Cir. 1991), we find no error
in the district court's treatment of Mr. Hudson's Batson claim.
II.
After the prosecutor's peremptory strikes, three black people
remained on the prospective jury. Mr. Hudson contends in his
appellate brief that two of those prospective jurors, both of them
men, indicated that they knew "a key prosecution witness" (a police
officer) and would "give ... [his] testimony more weight than [that
of] another witness," and yet Mr. Hudson's trial lawyer failed
either to move to strike those jurors for cause or to use
peremptory challenges to do so. Because of these failures,
Mr. Hudson argues that he suffered constitutionally significant
ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 686 (1984).
Each of the prospective jurors in question acknowledged that
it was "possible" that his acquaintanceship with the witness
"might" influence him to consider the witness's testimony "a little
more believab[le]" than the testimony of "somebody [the prospective
juror] didn't know." Upon further questioning, however, each
stated that he "would try to be fair" and felt that he could "set
aside ... the fact that [he knew] the sergeant and hold him to the
same level of credibility as anybody else."
-3-
At an evidentiary hearing in state court on Mr. Hudson's
application for postconviction relief, Mr. Hudson's trial lawyer
testified that he did not want an all-white jury and therefore
retained the two jurors in question in the hope that they would
show leniency in sentencing. (Actually, a black woman also
remained in the venire at that point, but since the jury
recommended that Mr. Hudson receive the minimum statutory sentence
on each count, we note that his trial lawyer's hope was evidently
not in vain.) The state court considering the application for
postconviction relief then found that the testimony of Mr. Hudson's
trial lawyer was credible with respect to his reasons for retaining
the two jurors in question and that those reasons were a matter of
trial strategy that was not unreasonable under the circumstances.
The state appellate court held that the findings of the state court
considering the application for postconviction relief were "not
clearly erroneous." State v. Hudson, 822 S.W.2d 477, 483 (Mo. Ct.
App. 1991).
The district court's examination of the state court record led
it to conclude that the state court's findings of fact with respect
to Mr. Hudson's trial lawyer's strikes were "fairly supported" in
the record, see 28 U.S.C. § 2254(d)(8), and we agree with that
assessment. We see nothing unreasonable about this strategy, given
the emphasis in recent Supreme Court jurisprudence on the need for
representational venires. See, e.g., J.E.B. v. Alabama ex rel.
T.B., 114 S. Ct. 1419, 1424, 1427-28, 1428 n.13, 1430, 1430 n.19
(1994). We hold, accordingly, that Mr. Hudson has failed to meet
his burden of showing that his trial lawyer's actions "fell below
an objective standard of reasonableness." Strickland, 466 U.S.
at 688.
-4-
III.
For the reasons stated, we affirm the judgment of the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-