United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2839
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Mark E. Broom, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Larry Denney, *
*
Appellee. *
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Submitted: June 17, 2011
Filed: October 14, 2011
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Before MURPHY and SMITH, Circuit Judges, and SCHREIER, District Judge.1
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SCHREIER, District Judge.
A Missouri jury convicted Mark E. Broom of first-degree murder, first-degree
assault, and two counts of armed criminal action. After the Missouri Court of Appeals
affirmed Broom’s convictions on direct appeal and his application for state post-
conviction relief was denied, Broom filed a federal petition for writ of habeas corpus
under 28 U.S.C. § 2254. In his petition, Broom, a black man, alleged that the
The Honorable Karen E. Schreier, Chief United States District Judge for the1
District of South Dakota, sitting by designation.

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prosecution exercised peremptory challenges based on race during jury selection, in
violation of the Equal Protection Clause of the Fourteenth Amendment. The district
court denied Broom’s petition, and we affirm.2
Broom was prosecuted for a murder committed in Kansas City, Missouri. On
November 28, 1988, Broom and several others were at a Kansas City apartment when
Broom confronted one of the victims. Broom and the victim walked to the door of the
apartment and Broom told the victim he did not want to see him again at the
apartment complex. When the victim said he would be around because his aunt
owned the building, Broom pulled out a gun and shot him, wounding him in the
stomach. Broom then shot and killed another man.
During jury selection, the prosecution exercised peremptory strikes against
three black and three white members of the venire. Defense counsel, citing Batson v.
Kentucky, 476 U.S. 79 (1986), objected to the strike against one black member of the
venire, Patricia Wright, alleging the strike was motivated by her race and thus
prohibited by the Equal Protection Clause. In response to the trial court’s inquiry, the
prosecutor stated he struck Wright because her son had been incarcerated. Defense
counsel then observed that Mary Johnston and Linda Francis, two white members of
the venire who were not struck, also had sons who had spent time in jail or prison.
The prosecutor asserted that he did not strike Mary Johnston because her sons had
been in the county jail for short sentences for vandalism and because she stated that
jail had been a positive influence in their lives. The prosecutor did not strike Linda
Francis because he liked the way she argued with defense counsel about the law. The
trial court denied the Batson challenge and held that the prosecutor’s reasons were
race neutral.
The Honorable Ortrie D. Smith, United States District Judge for the Western2
District of Missouri.
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After a trial, the jury found Broom guilty of the charges. On September 3,
1998, the court sentenced Broom to a term of life imprisonment without parole on the
first-degree murder charge and thirty years’ imprisonment on each of the other
charges.
On April 4, 2000, the Missouri Court of Appeals affirmed the trial judge’s
denial of the Batson challenge and concluded that the prosecutor’s basis for the strike
was race neutral and that the prosecutor’s explanations were not pretextual because
Francis and Johnston were not similarly situated to Wright. The court observed that
Francis’s and Johnston’s sons spent a shorter amount of time in jail than Wright’s son
and that Johnston had indicated jail was good for her sons. Broom’s motion for post-
conviction relief was denied by both the trial court and the Missouri Court of
Appeals.
In Broom’s federal petition for habeas corpus, he argues that the prosecutor’s
peremptory strikes were racially motivated and the Missouri state court misapplied
clearly established federal law in resolving his Batson claim. Specifically, Broom
argues that the prosecutor’s proffered reason for striking Wright, that she had a son
who had been in prison, was not race neutral because a disproportionate number of
blacks are incarcerated in relation to their percentage of the general population.
Broom also argues that the state court’s determination that the prosecutor’s reason for
the strike was not a pretext for purposeful discrimination was an unreasonable
determination of the facts in light of the evidence. The district court denied relief, but
it granted a certificate of appealability on Broom’s Batson claim.
This court reviews petitions for writ of habeas corpus under the standards set
forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under
the AEDPA, because Broom's claim was adjudicated on the merits in state court, he
may obtain relief only if he shows that the adjudication was “contrary to or involved
an unreasonable application of clearly established federal law, as determined by the
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Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Id. § 2254(d)(2). “The question under AEDPA is not whether a
federal court believes the state court's determination was incorrect but whether that
determination was unreasonable–a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 472 (2007).
Under Batson, a reviewing court applies a three-step process to determine
whether the prosecutor’s use of a peremptory strike to exclude a black member of the
venire violates the Equal Protection Clause. First, a defendant must present a prima
facie case that the prosecutor exercised a peremptory challenge on the basis of race.3
Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 328-39 (2003). The burden then
shifts to the prosecutor to present a race-neutral reason for striking the venire member
in question. Id. The court must then evaluate, in light of the purportedly race-neutral
rationale for the strike, whether the defense has demonstrated that the prosecutor’s
reason for the strike was a pretext for purposeful discrimination. Id. Within this
framework, the defendant may rely on “all of the circumstances that bear upon the
issue of racial animosity” to show purposeful discrimination. Snyder v. Louisiana,
552 U.S. 472, 478 (2008).
Broom claims that the Missouri court unreasonably determined at step two of
the Batson process that the prosecutor’s justification for the strike, that Wright had
a son who had been incarcerated, was race neutral. This court has held that “the
incarceration of a family member is a legitimate race-neutral reason justifying the use
of a peremptory strike.” United States v. Wiggins, 104 F.3d 174, 176 (8th Cir. 1997)
(internal citations omitted). Because the incarceration of a family member is a racially
neutral reason for a strike, the Missouri state court’s determination that the prosecutor
The first part of the Batson test, the prima facie case, was conceded in prior3
proceedings. Thus, we consider only the second and third parts of the test.
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stated a race-neutral reason for striking Wright was not an unreasonable
determination.
Next, Broom claims that under step three of the Batson process, the
prosecutor’s reason for striking Wright—that her son had been incarcerated—was a
pretext for purposeful discrimination and that the Missouri state court’s contrary
holding was unreasonable in light of the evidence. Broom contends that the
prosecutor failed to strike as jurors Johnston and Francis, two white women who also
had sons who had spent time in jail or prison. “Striking a black panelist for reasons
that apply as well to similar nonblacks who serve ‘is evidence tending to prove
purposeful discrimination.’ ” Williams v. Norris, 576 F.3d 850, 864 (8th Cir. 2009)
(quoting Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 241 (2005)).
The Missouri state court found that Francis was not similarly situated to Wright
because Francis’s son spent a short time in jail, while Wright’s son was incarcerated
for six months. The Missouri state court also found that Francis was vocal during voir
dire, and the prosecutor liked that characteristic. Broom argues that the record does
not support these findings.
Under § 2254, the Missouri state court’s findings are presumed correct, and the
petitioner has “ ‘the burden of rebutting the presumption of correctness by clear and
convincing evidence.’ ” Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir. 2011)
(quoting 28 U.S.C. § 2254(e)(1)). The record reflects that Francis’s son had been held
in pretrial detention and was convicted on a drug charge for which he was sentenced
to probation. Wright’s son, on the other hand, was incarcerated for six months. The
record also supports the prosecutor’s contention that he did not strike Francis because
he “liked the way she hung in there” against Broom’s defense counsel concerning the
law. During questioning by defense counsel, Francis raised her hand to ask whether
the defendant would have to testify and indicated she would like to hear from the
defendant. Thus, the record contradicts Broom’s claim that the Missouri state court
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unreasonably determined the facts in light of the evidence in finding that the
prosecutor’s proffered reason for the strike was not a pretext for racial discrimination.
The trial court overruled the Batson challenge and made “an implicit finding that the
prosecutor’s explanation was credible and that the strike was not motivated by
purposeful discrimination.” Taylor v. Roper, 577 F.3d 848, 856 (8th Cir. 2009). This
finding is entitled to deference, and Broom has not presented clear and convincing
evidence to overcome it.
With respect to Johnston, the Missouri state court found that Johnston was not
similarly situated to Wright because her sons had spent a short time in the county jail
five years earlier on vandalism charges, and she stated that jail had had a positive
impact on their lives. Broom argues that Wright’s responses regarding the
incarceration of her sons were similar to Johnston’s responses because Wright did not
reveal any animosity towards the system, and she specifically stated her son had been
treated fairly. The record reflects that Johnston’s sons were in jail in Dallas for “not
a very long” period of time on vandalism charges five years earlier. Johnston stated
that she thought her sons’ prosecutions were handled very well, were life changing,
and were good for them. Wright’s son, on the other hand, was incarcerated in prison
for six months on drug charges. Wright stated that she did not feel he was treated
unfairly or that his conviction would affect her decision in Broom’s case.
“[A] federal habeas court can only grant a petition if it was unreasonable to
credit the prosecutor’s race-neutral explanation for a Batson challenge.” Smulls v.
Roper, 535 F.3d 853, 864 (8th Cir. 2008) (citing Rice v. Collins, 546 U.S. 333, 338
(2006)). While both Wright’s and Johnston’s answers to the prosecutor’s questions
indicated that they felt their sons had been treated fairly, the Missouri state court
credited the prosecutor’s argument that Wright and Johnston were not similarly
situated because their sons had been incarcerated for different offenses and for
different periods of time.
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Broom contends that the Missouri state court’s decision in effect imposes an
insurmountable barrier on petitioners to show that white members of the venire must
have exactly the same characteristics as black members of the venire in order to be
similarly situated. Broom contends this misapplies Miller-El II. “A per se rule that a
defendant cannot win a Batson claim unless there is an exactly identical white juror
would leave Batson inoperable; potential jurors are not the products of a set of cookie
cutters.” Miller-El II, 545 U.S. at 247 n.6. Broom’s reliance on Miller-El II is
misplaced, however, because the Supreme Court’s “finding of a Batson violation did
not hinge entirely on the closeness of the excluded black juror’s testimony to that of
the white, but on the ‘totality of the relevant facts’ pertaining to the prosecutor’s
conduct during the defendant’s trial.” Nicklasson v. Roper, 491 F.3d 830, 842 (8th
Cir. 2007) (citing Miller-El II, 545 U.S. at 239). In Miller-El II, in addition to the
similarity between the testimony of the excluded black panelist and the testimony of
the white panelist, there was also evidence in the record that the State excluded
91 percent of the eligible black panelists, mischaracterized a black panelist’s
testimony in order to make it appear objectionable, failed to ask follow-up voir dire
questions to clarify the claimed distinctions between the white and black panelists’
responses, and exhibited a pattern and practice of manipulating Texas voir dire
panelist dismissal rules to automatically dismiss black venirepersons. Miller-El II,
545 U.S. at 240-66. The evidence here does not rise to that level.
Moreover, Miller-El II had not been decided at the time of Broom’s trial and
appeal. Thus, Broom’s contention that the Missouri state court unreasonably applied
federal law “as decided by the Supreme Court of the United States” is without merit.
See Cole v. Roper, 623 F.3d 1183, 1189 (8th Cir. 2010) (“[Petitioner] cannot argue
the trial court or Missouri Supreme Court unreasonably applied either Miller-El or
Snyder because neither had been decided at the time the state courts adjudicated his
Batson issue.”).
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Broom also argues that the prosecutor’s proffered reason for the strike had a
disparate impact upon black venire members because more blacks are in prison than
whites. As a result, Broom claims that the fact that Wright’s son was in prison was
a mere proxy or pretext for purposeful discrimination. Broom’s evidence of pretext
is his request ,while on direct appeal to the Missouri Court of Appeals, to take judicial
notice of statistical evidence that “shows that 9.3% of the black population was
incarcerated while 2% of the white population was incarcerated, i.e. blacks are 465%
more likely to have been incarcerated than whites.” Broom’s request to take judicial
notice was based on statistics from both the Sourcebook of Criminal Justice Statistics,
1997, and the Census Bureau.
While the statistics cited by Broom provide some evidence that the
prosecutor’s stated race-neutral explanation for his peremptory challenge, namely that
the venire member’s son was incarcerated, might be a pretext for purposeful
discrimination, these statistics are insufficient to show that the Missouri state court
unreasonably and incorrectly applied federal law. Unlike the statistics and the
evidence of the State’s pattern and practice of excluding blacks from the venire panel
that was shown in Miller-El II, which directly involved the prosecutors in that case,
Broom’s statistics do not specifically relate to the prosecutors in this case. Further,
because Broom’s statistics are national statistics, it is unknown whether Broom’s
cited statistics accurately reflect the ratio of incarceration of blacks to whites in
Jackson County, Missouri. After considering “all of the circumstances that bear upon
the issue of racial animosity,” this court concludes that the evidence presented to the
Missouri state court is not sufficient to show purposeful discrimination. Snyder, 552
U.S. at 478.
Furthermore, for purposes of review under § 2254(d)(1), an “unreasonable
application of federal law is different from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410 (2000). State courts are entitled to deference
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and, accordingly, this court will grant relief only if “the state court decision is both
incorrect and unreasonable.” McGehee v. Norris, 588 F.3d 1185, 1193 (8th Cir.
2009). “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fair minded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Because Broom has not
demonstrated that fair minded jurists could disagree on the correctness of the
Missouri state court’s resolution of his argument, he is not entitled to relief.
Accordingly, the judgment of the district court is affirmed.
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