United States v. Nathan Walker , 276 F. App'x 538 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1431
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Nathan Walker, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: April 25, 2008
Filed: May 6, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
A jury found Nathan Walker guilty of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), based on evidence that police officers found a
gun on Walker’s person while arresting him. The district court1 entered judgment
upon the verdict and sentenced him to 120 months in prison and 2 years of supervised
release. Walker appeals, and his counsel has moved to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967), raising an issue under Batson v.
Kentucky, 476 U.S. 79 (1986). For the reasons that follow, we affirm.
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
The matter proceeded to trial in November 2006. As relevant, during voir dire
the government exercised peremptory strikes against two of four black venire
members, all female, remaining in the venire pool after the strikes for cause had been
exercised. The defense challenged the strikes under Batson. Government counsel
then explained that he struck one venireperson because she said her son had been
arrested for a drug crime, and she appeared to take umbrage when a marshal asked her
to remove her hat. Defense counsel responded that she did not see the hat incident and
had no comment on the son’s arrest. Government counsel stated he struck the other
venireperson because she did not list any employment on the information form, and,
more important, she had a sister who was a correctional officer. When defense
counsel argued that unemployed white persons remained in the venire pool,
government counsel clarified that the venireperson he struck had orally stated she was
employed after failing to answer the written question about her employment, and in
any event it was her sister in corrections that distinguished her from the remaining
venirepersons. The district court then found the government’s explanations race
neutral and overruled the Batson objection. We conclude that the court did not clearly
err in finding there was no purposeful discrimination. See United States v. Blaylock,
421 F.3d 758, 769-70 (8th Cir. 2005) (standard of review; great deference given to
district court’s discrimination findings); see also Snyder v. Louisiana, 128 S. Ct. 1203,
1207-08 (2008) (discussing importance of trial court’s evaluation of prosecutor’s
credibility and demeanor, and juror’s demeanor).
Turning to arguments raised in Walker’s pro se appellate filings, we disagree
with his position that the police lacked probable cause to arrest him, and thereafter to
search him: the officers testified that during an investigative stop, Walker admitted
he had an outstanding warrant, pushed an officer, fled, and resisted arrest. See United
States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995) (person’s response to even an
invalid arrest or stop may constitute independent grounds for arrest). To the extent
Walker wishes to challenge trial counsel’s effectiveness, he must do so in a
proceeding under 28 U.S.C. § 2255, where the record can be developed properly. See
-2-
United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998). In addition, he cannot
succeed on a claim under Brady v. Maryland, 373 U.S. 83 (1963), based on his
contention that exculpatory evidence might exist. Last, Walker has not shown that the
district court was biased against him, or that the trial judge committed plain error in
not sua sponte recusing himself. See United States v. Sypolt, 346 F.3d 838, 839-40
(8th Cir. 2003) (unpreserved issue of judicial bias reviewed for plain error; defendant
failed to show district court’s failure to recuse was clearly improper and affected
defendant’s substantial rights).
Finally, we have reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues.
Accordingly, we affirm the judgment of the district court and grant counsel’s
motion to withdraw on condition that counsel inform appellant about the procedures
for filing petitions for rehearing and for certiorari. We deny Walker’s pro se motion.
______________________________
-3-