MEMORANDUM OPINION AND ORDER
Richard Cox,*fn1 an Arkansas Department of Correction inmate, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1). In his response (docket entry #4), Respondent concedes that Petitioner is in his custody and has exhausted all nonfutile state remedies, see 28 U.S.C. § 2254(a) & (b), but asserts that the petition should be dismissed for other reasons. Petitioner has replied to the arguments for dismissal (docket entry #9). Because Petitioner's claims are without merit or procedurally barred, the petition must be dismissed in its entirety.
In the early morning hours of May 18, 1996, Kingrale Collins told Petitioner he was "going to get some money" that was owed him. They went to Collins's house in Wynne, Arkansas, and got Collins's twelve-gauge pump shotgun. The gun had one shell in it, and Petitioner loaded two more. He carried the shotgun until the two men crossed the railroad tracks, when he handed it to Collins.
They first stopped at a house trailer and knocked on the door. No one answered, and they left. According to Petitioner, Collins then stopped at two more residences by himself and knocked on the doors, while Petitioner watched from a distance. Two witnesses for the state confirmed that they had heard knocks on their doors during this time period. The first witness testified that she looked through a window and saw two young black males standing at her door, holding a gun between them. She did not answer the door. The second witness testified that at about 2:00 or 3:00 a.m. he heard someone beating on his door. He went to the door, and no one was there. Later, he heard shots and went out to his porch where he saw "two guys" running down the street with a shotgun.
According to Johnny Strickland, the husband of the murder victim, he was in the bathroom, having just arrived at a friend's house with his wife at around 2:30 a.m. He heard shots, ran out to the living room, and found his wife, Holly, on the floor in a pool of blood in front of the door. She showed no signs of life. A forensic pathologist with the state crime lab testified that she died of a single shotgun wound to the right arm and right chest.
In Petitioner's statement to the police, he denied going to the front door where Holly Strickland was killed but stated that he heard three shots and heard the victim scream. He admitted that his fingerprints would be on two of the loaded shells in the shotgun and on the trigger as well because he had checked to make sure it was on safety. He denied killing Ms. Strickland and was adamant that Collins had done it. He did admit to carrying and hiding the shotgun as he ran away from the crime scene with Collins. When asked what would have happened if the man in the trailer had opened his door, Petitioner answered, "I guess he would have shot him." He told interrogating police officers that Collins asked him to imitate the victim's scream, and when Petitioner did, Collins laughed.
Soon after the shooting, the police received information about Collins's involvement. A search warrant was issued for Collins's house where the police found a shotgun, which proved to be the murder weapon used in the Strickland slaying. A few days later, Petitioner was arrested and interrogated by Wynne police officers. In a videotaped interview, Petitioner answered questions implicating himself in the crime, then he signed a written statement that summarized his activity on the night of the crime.*fn2 He was sixteen years old at the time. Collins told police that Petitioner shot the victim, but he also told two other individuals that he (Collins) was the trigger-man. Both Collins and Petitioner were charged with capital murder, and the death penalty was requested.
Following a jury trial in the Cross County Circuit Court in August 1999, Petitioner was convicted of capital murder and was sentenced to life imprisonment without parole. (R. 140-42.) Collins, in a separate trial, was convicted of capital murder and sentenced to death. See Collins v. State, 991 S.W.2d 541 (Ark. 1999).
Petitioner appealed his conviction to the Arkansas Supreme Court, raising the following claims: (1) the trial evidence was insufficient to support his conviction; (2) the trial court erred in refusing to suppress his custodial statement; (3) the trial court erred in excluding Petitioner's co-defendant's statements that he committed the murder and proof that the co-defendant had been convicted of the murder; (4) the prosecuting attorney engaged in improper commentary in his closing argument; and (5) the trial court erred in not requiring a race-neutral explanation for the prosecution's peremptory challenge of venire member Dorothy Caddell. (Resp't Ex. 1.) The Arkansas Supreme Court affirmed Petitioner's conviction, and the United States Supreme Court denied his petition for a writ of certiorari. Cox v. State, 47 S.W.3d 244 (Ark.), cert. denied, 534 U.S. 1022 (2001). There is no evidence or allegation that he sought any post-conviction relief in state court.
Petitioner then filed this federal habeas petition, advancing the following claims:
1. He was denied due process, in violation of the Fourteenth Amendment to the United States Constitution, when the trial court failed to sustain his challenge to prospective juror Dorothy Caddell;
2. He was denied due process, in violation of the Fourteenth Amendment to the United States Constitution, because the evidence at trial was insufficient to support his conviction;
3. He was denied due process, in violation of the Fourteenth Amendment to the United States Constitution, when the trial court refused to admit the statements of his co-defendant, Collins, under Ark. R. Evid. 804(b)(3); and
4. He was denied due process, in violation of the Fourteenth Amendment to the United States Constitution, when the trial court failed to declare a mistrial due to improper comments of the prosecutor during closing argument.
Respondent contends that, pursuant to 28 U.S.C. § 2254(d), this Court must defer to the state courts' rulings on his claims as raised in Grounds 1, 2 and 4.
As an initial matter, Petitioner contends that § 2254(d)'s deferential standard is not applicable because his petition seeks relief pursuant to 28 U.S.C. § 2241, rather than § 2254. When a prisoner is in custody pursuant to a state court judgment, 28 U.S.C. § 2254 is the sole means for challenging the validity of his state conviction or sentence. Singleton v. Norris, 319 F.3d 1018, 1022-23 (8th Cir.), cert. denied, 540 U.S. 832 (2003) (§ 2254, not § 2241, is proper means for state prisoner to seek habeas relief). Petitioner is in custody pursuant to a state court judgment and he challenges his conviction; therefore, this petition must be construed as brought pursuant to § 2254, and § 2254(d) applies.
In the interests of finality and federalism, a federal habeas court is constrained by § 2254(d) to exercise only a "limited and deferential review of underlying state court decisions." Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003). Thus, where a state court has previously adjudicated a claim on the merits, a federal habeas court may grant habeas relief for the same claim in only three limited situations: where the state court adjudication (1) was "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) "involved an unreasonable application" of clearly established federal law, id.; or (3) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). In evaluating a state court decision, a federal habeas court must presume any factual findings made by the state court to be correct unless rebutted by clear and convincing evidence. Id. § 2254(e)(1).
A state court decision is "contrary to" federal law under § 2254(d)(1) if it applies a rule that contradicts the controlling Supreme Court authority or if it applies the controlling authority to a case involving facts "materially indistinguishable" from those in a Supreme Court case, but nonetheless reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court's decision involves an "unreasonable application" of federal law under § 2254(d)(1) if it "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The habeas court must "ask whether the state court's application of clearly established federal law was objectively unreasonable," and a state adjudication may not be found unreasonable "simply because [the federal habeas] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 409, 411.
Ground 1: Batson Challenge
Petitioner is an African-American, and the victim was white. Petitioner says that, of the fifty-four members of the venire panel who were questioned as potential jurors in his case, nine were African-Americans. Of those nine persons, seven were excused for cause by the trial court, and one was excused by agreement of the parties. The remaining African-American juror, Dorothy Caddell, was removed by the prosecutor's exercise of a peremptory challenge. As a result, Petitioner was tried and convicted by an all-white jury. For his first federal habeas claim, Petitioner argues that, because the prosecutor failed to provide a racially neutral reason for striking Ms. Caddell, his federal constitutional right to an impartial jury and fair trial was violated.
The law is clear that a state violates the Equal Protection Clause of the Fourteenth Amendment when it exercises peremptory challenges to strike potential jurors on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). To prove a Batson violation, a defendant must first make a prima facie showing "that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 93-94. Second, once the defendant has made out a prima facie case, the burden shifts to the state to come forward with a race-neutral justification for the strike. Id. at 94. Third, if a race-neutral explanation is tendered, the trial court must then decide "whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995).
The first Batson step is at issue in this case. A prima facie Batson violation can be established by showing (1) that the defendant is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the jury members of the defendant's race, (2) that the peremptory challenges constitute a jury selection process that permits "those to discriminate who are of a mind to discriminate," and (3) that these facts and "all relevant circumstances" give rise to an inference that the prosecutor used peremptory challenges to exclude jurors on account of their race. Batson, 476 U.S. at 96-97. Circumstances raising an inference of discrimination could be, among other things, a pattern of strikes or the prosecutor's questions and statements during jury selection. Id.
The Batson framework makes clear that, if no prima facie case has been made at the first threshold step, the burden never shifts to the prosecutor to articulate a race-neutral explanation for the disputed strike. United States v. Lewis, 892 F.2d 735, 737 (8th Cir. 1989) ("Because no prima facie case was shown, the government was not required to provide an explanation for its strike[.]"); see Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir. 2000) ("[T]he establishment of a prima facie case is an absolute precondition to further inquiry into the motivation behind the challenged strike.").
With these clearly established principles in mind, the Court turns to the underlying state court record in Petitioner's case. The relevant facts, as summarized by the Arkansas Supreme Court, are undisputed:
When Ms. Caddell was being questioned by the circuit court as part of voir dire, she admitted to having been the victim of a crime. In answer to the prosecutor's questions, she initially said that she could impose either the death sentence or life without parole on [Petitioner] and that she could also follow an instruction on accomplice liability. However, she later stated in response to the prosecutor's questions that she could not sentence a sixteen-year-old to death. She also advised defense counsel that she had previously served on a jury where the defendant was found not guilty. She further stated that her son-in-law was a policeman in Forrest City.
At the time that Dorothy Caddell was questioned as part of voir dire and then struck by the prosecutor, only seven jurors had been seated. Four African-Americans had been excluded by the circuit court or by agreement of the parties. Four additional African-Americans remained to be questioned. Defense counsel made his Batson motion and argued that a prima facie case had been made because there were no African-Americans on the jury and no racially neutral reason had been given to exclude Ms. Caddell. The circuit court responded that it found that a prima facie case showing a Batson violation had not been made. The prosecutor added that there had been no pattern of discrimination, which Batson requires for a violation. Defense counsel's retort was that the only black juror the prosecutor had a chance to strike, he struck. The circuit court then ruled:
Well, in the event Mr. Long [prosecutor] explained it based on the answers to the questions, the Court would not find that she was subject to cause but there's ample reason to exercise peremptory based on the responses to the questions she was asked and whether he chooses to explain that or not, the Court would have to find that to be the case, and in any event it wouldn't matter.
Cox, 47 S.W.3d at 255. Petitioner argued in his direct appeal that the trial court erred in not requiring the prosecutor to give a racially neutral reason for striking Ms. Caddell. In rejecting this argument, the Arkansas Supreme Court stated:
The essence of [Petitioner]'s argument appears to be that a prima facie case was made under Batson when the prosecutor struck Ms. Caddell. Under the facts of this case, we disagree. This court has defined what must occur in order for a prima facie case to be made:
The strike's opponent must present facts, at this initial step, to raise an inference of purposeful discrimination. According to the Batson decision, that is done by showing (1) that the strike's opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. In deciding whether a prima facie case has been made, the trial court should consider all relevant circumstances. Should the trial court determine that a prima facie case has been made, the inquiry proceeds to [Batson's] Step Two. However, if the determination by the trial court is to the contrary, that ends the inquiry. MacKintrush v. State, 978 S.W.2d 293, 296 ([Ark.] 1998).
Certainly, Ms. Caddell, as an African-American, was part of a racially identifiable group. However, the circumstances at this stage of the voir dire do not support a finding that the strike was part of a process or pattern designed to discriminate or that the strike was used to exclude jurors because of their race. The prosecutor had made no other strikes of African-Americans at this stage and there were four more African-Americans left on the venire. The mere striking of one African-American venire person does not automatically equate to a prima facie case for a Batson violation. Cf. Wooten v. State, 931 S.W.2d 408 ([Ark.] 1996) (striking sole black person on venire may establish prima facie case; case did not say a prima facie case automatically was made).
We will reverse a circuit court's Batson findings only when they are clearly against the preponderance of the evidence. Sanford v. State, [962 S.W.2d 335 (Ark. 1998)]; Green v. State, 956 S.W.2d 849 ([Ark.] 1997). The circumstances of this case do not show that the circuit court clearly erred. Cox, 47 S.W.3d at 256 (parallel citations omitted).
Here, Petitioner argues that this holding was an unreasonable application of clearly established federal law pursuant to § 2254(d)(1), based on the reasoning of the dissenting opinion in his direct appeal. The dissent questioned the trial court's ruling that Petitioner failed to make a prima facie Batson showing and that no race-neutral explanation was required from the prosecution. The dissent pointed to Arkansas case law indicating that the exclusion of the sole minority juror is sufficient to a make a prima facie case of discriminatory use of a peremptory challenge. The dissent also stated that, under the Supreme Court's analysis in Batson and Purkett, "a prima facie case can be established when only one juror is peremptorily struck because of race." Cox, 47 S.W.3d at 256-59 (Thornton, J., dissenting).
A trial court's determination of the Batson prima facie step presents a factual question; therefore, this Court's review is governed by § 2254(d)(2) (whether the state court decision was based on an "unreasonable determination of the facts"), rather than § 2254(d)(1) (whether the state court decision involved an "unreasonable application" of federal law). Hall v. Luebbers, 341 F.3d 706, 713 (8th Cir. 2003), cert. denied, 541 U.S. 996 (2004); Weaver v. Bowersox, 241 F.3d 1024, 1030-31 & n.2 (8th Cir. 2001). Furthermore, this Court must presume that the state courts resolved the factual question correctly under § 2254(e)(1) unless Petitioner rebuts that presumption with clear and convincing evidence. Weaver, 241 F.3d at 1030.
A trial court's determination of the Batson prima facie step is "highly fact-intensive" and "is based largely upon information that will not be evident from a reading of the record," such as the ability to "evaluate general demeanor; to observe attention span, alertness, and interest; and to assess reactions indicating hostility or sympathy towards or fear of the parties." Id. The trial court has "the unique opportunity to observe the entirety of voir dire," including not only the demeanor of the potential jurors, but also the demeanor of the prosecutor while questioning the prospective jurors, exercising the disputed peremptory strikes, and engaging in any in-court discussions. Id. at 1030-31.
It is undisputed that Petitioner is an African-American, that the prosecutor used a peremptory strike to exclude an African-American from the jury, and that this method of jury selection could lend itself to purposeful discrimination. It is also undisputed that Petitioner was tried and convicted by an all-white jury. This Court agrees with the general principle, expressed in the Arkansas Supreme Court dissent, that there may be cases where the exclusion of one juror is sufficient to establish a prima facie case under Batson. However, although the number of minority jurors excluded is certainly relevant, numbers alone are "insufficient to negate or create [a prima facie case]." Luckett v. Kemna, 203 F.3d 1052, 1054 (8th Cir. 2000); see United States v. Wolk, 333 F.3d 997, 1007 (8th Cir. 2003) ("The mere recitation of the fact that black jurors were struck from the jury cannot alone establish a prima facie case."). Indeed, Batson requires examination of "all relevant circumstances" in determining whether a prima facie case has been demonstrated, and other factors in this case negate an inference of discrimination.
First, nothing in the record suggests any kind of pattern by the prosecutor, in this case or any others, of peremptorily striking African-American jurors. Out of eleven prospective African-American jurors,*fn3 Ms. Caddell was the only one stricken by the prosecutor. At the time of the strike, the prosecutor had exercised only one other strike, on a non-African-American in the same group as Ms. Caddell, (R. 762), and seven jurors had been seated. Three African-Americans had been excused by the court for cause, and one by agreement of the parties. Six other African-Americans were on the panel to be questioned, so the possibility still existed that others would be selected. After Ms. Caddell, the ...