"Missouri executes man for jeweler's 1991 death," by Jim Salter. (January 29, 2014 11:02 pm)

A Missouri who killed a jeweler during a 1991 robbery was executed for the crime late Wednesday, marking the state's third lethal injection in as many months. Herbert Smulls was executed by a lethal injection of pentobarbital at the state prison in Bonne Terre, and pronounced dead at 10:20 p.m. Smulls showed no outward signs of distress. The 56-year-old had been convicted of killing Stephen Honickman and badly injuring his wife, Florence, during a robbery at their jewelry shop in suburban St. Louis on July 27, 1991.

Smulls' attorney filed numerous appeals challenging the state's refusal to disclose where it obtained its execution drug. The U.S. Supreme Court granted a stay late Tuesday, shortly before the scheduled 12:01 a.m. execution, and eventually cleared all appeals on Wednesday night _ even the one Smulls' attorney filed less than 30 minutes before he was pronounced dead; that denial of a stay of execution came about 30 minutes after his death.

Defense attorneys argued that the state's refusal to name the compounding pharmacy supplying the pentobarbital made it impossible to know whether the drug could cause pain and suffering during the execution. The state maintained that the company was part of the execution team, so its name was protected from public disclosure. Attorney General Chris Koster said in a statement after the execution: "My thoughts and prayers are with Florence Honickman and the family and friends of Stephen Honickman."

Prosecutors said the defense's arguments were simply a smoke screen aimed at sparing a murderer's life. "It was a horrific crime," St. Louis County prosecutor Bob McCulloch said on Tuesday. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

Smulls had already served time in prison for robbery when he went to F&M Crown Jewels in Chesterfield and told the Honickmans, who owned the store, that he wanted to buy a diamond for his fiancee. But Smulls planned to rob the couple, and took 15-year-old Norman Brown with him. "They planned it out, including killing people, whoever was there," McCulloch said. Smulls began shooting inside the shop, and he and Brown took rings and watches _ including those that Florence Honickman was wearing. She was shot in the side and the arm, and feigned death while lying in a pool of her own blood. Florence Honickman identified the assailants. Brown was convicted in 1993 of first-degree murder and other charges, and sentenced to life without parole. Smulls got the death penalty.

Smulls' execution was the state's third since it began using pentobarbital as its lethal injection drug. Missouri and other states had used a three-drug execution method for decades, but pharmaceutical companies stopped selling the drugs in recent years for use in executions. Missouri eventually switched to pentobarbital, which was used to execute serial killer Joseph Paul Franklin in November and Allen Nicklasson in December. Neither inmate showed outward signs of distress. The state said it obtained its supply of the drug from a compounding pharmacy, which custom-mix drugs for individual clients. They are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states.

Smulls' attorney, Cheryl Pilate, said she and her defense team used information obtained through open records requests and publicly available documents to determine that state obtained its drugs from The Apothecary Shoppe, a compounding pharmacy based in Tulsa, Okla. In a statement, the company would neither confirm nor deny that it made the Missouri drug. Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness. Missouri Senate Democratic Leader Jolie Justus introduced legislation this week that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

ReutersNews

KANSAS CITY, Missouri - (Reuters) - Missouri late on Wednesday executed a man convicted of killing a jewelry store owner during a robbery after the U.S. Supreme Court denied last-minute appeals that in part challenged the drug used in the execution. Herbert Smulls was pronounced dead at 10:20 p.m. local time at a state prison in Bonne Terre after receiving a lethal dose of pentobarbital, a fast-acting barbiturate, Missouri Department of Corrections spokesman Mike O'Connell said.

Smulls, 56, did not make a final statement, but asked which way he should look from the gurney to see his witnesses and nodded at them before being declared dead nine minutes after being injected with the drug, O'Connell said. Smulls was the sixth person executed in the United States in 2014 and the third in Missouri since November.

The U.S. Supreme Court on Wednesday lifted a temporary stay of execution for Smulls, denying last-minute appeals. The top court late Wednesday also vacated a stay from the Eighth Circuit U.S. Court of Appeals that had prevented the execution. Lawyers for Smulls filed another request with the Supreme Court on Wednesday evening, but Missouri went ahead with the execution before the midnight expiration of the state's death warrant. O'Connell said the state followed procedures to ensure it was clear of all legal impediments to the execution. Lawyers for Smulls did not respond to requests for comment.

Smulls was convicted of shooting Stephen Honickman while robbing his jewelry store in July 1991. Honickman's wife Florence, who was also shot during the attack, sustained permanent injuries. Smulls was originally scheduled to die after 12:01 a.m. Central Time on Wednesday and so had his final meal of fried chicken, steak, collard greens, macaroni and cheese, candied yams, corn bread, chocolate cake, and cola on Tuesday afternoon.

'UNDUE SUFFERING'

Lawyers for Smulls had sought to block his execution on multiple grounds, arguing in part that the compound drug Missouri used to kill him might not be as pure and as potent as it should be, which could cause undue suffering. Missouri and several other states have turned to compounding pharmacies, which are not regulated by the U.S. Food and Drug Administration, to prepare drugs for executions after an increasing number of pharmaceutical manufacturers objected to their drugs being used in capital punishment. The increasing use of in some cases untested compounded drugs has revived the debate over the death penalty in the United States.

In Oklahoma, an inmate said he felt burning through his body when the drugs used to kill him were injected during an execution in early January. Later in the month, an Ohio man gasped and convulsed during his execution with a two-drug mix never before used in the United States. In the Smulls case, the Eighth Circuit U.S. Court of Appeals found on Friday that his lawyers did not propose a feasible or more humane alternative than pentobarbital or showed that Missouri sought to cause him unnecessary pain by using the drug. The Eighth Circuit had separately granted a stay until the U.S. Supreme Court decided whether to hear the case.

The Supreme Court granted Smulls the temporary stay late Tuesday, hours before his execution was to be carried out, to consider his lawyer's arguments that prosecutors had improperly eliminated a black woman as a possible juror, leaving him with an all-white jury at trial. On Wednesday afternoon, the Supreme Court vacated the temporary stay and denied the request for a stay or to hear the appeal on the jury selection issue.

(Reporting by Carey Gillam and Kevin Murphy in Kansas City, Lawrence Hurley in Washington, and Heide Brandes in Oklahoma City; Writing by David Bailey and Eric M. Johnson; Editing by Eric Walsh, John Stonestreet)

MissouriDeathRow.Com

State of Missouri v. Herbert L. Smulls
935 S.W.2d 9 (Mo.banc 1996)

Case Facts: Stephen and Florence Honickman owned and operated a jewelry store. Typically, customers would make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as “Jeffrey Taylor” called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as Herbert Smulls. On July 22, 1991, Smulls and Norman Brown went to the Honickmans’ store. After viewing several diamonds, Smulls and Brown left the store without making a purchase.

On the afternoon of July 27, 1991, Smulls and Brown followed another customer into the store. Florence Honickman was unable to show any jewelry at that time but suggested she might be able to help them later. Smulls and Brown returned to the store that evening. After viewing some diamonds, Smulls and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence looked up and saw Smulls aiming a pistol at her. She then ran and hid behind a door. Smulls fired three shots at her, striking her arm and side. Smulls then fired several shots at Stephen Honickman, who was struck three times.

Smulls and Brown stole jewelry worn by Florence and other items in the store. After the two men left the store, Florence contacted the police. Stephen died from his wounds and Florence suffered permanent injuries from the attack. (This entry was posted in Current Death Row Inmates on December 4, 2008 by smays) P>

Missouri.Net

One of those who watched the state execute prison inmate Herbert Smulls late last night calls the execution “a travesty of justice.” The person making that charge is not one of Smulls’ supporters. It’s one of his victims. Herbert Smulls died 253 months aafter getting his death sentence for killing Chesterfield jeweler Stephen Honickman during a 1991 robbery. Although Honickman’s wife, Florence, was shot twice, she survived by playing dead. She says waiting more than twenty years to execute a murderer while the state spends millions of dolalrs on the inmate is a travesty of justice for her and her family. She says the state has not paid for any of her expenses to attend the execution.

She says there should be no reason, in a “just and a rational legal system” why appeals should continue longer than ten years. She says she and her family are the ones who have suffered cruel and unusal punishent; by having to wait so long for justice to be done. She says the system needs to spend more time thinking of the victims and less about the murderers.

AUDIO: post-execution news conference "Herbert Smulls to be executed by lethal injection Jan. 29," by Jessica Machetta. (12-09-13)

The Supreme Court has issued an execution date for Herbert Smulls, 56, who was sentenced to death for the 1991 shooting of Stephen and Florence Honickman at a St. Louis County jewelry store they owned and operated. The Supreme Court has issued an execution warrant, allowing the state to execute Smulls by lethal injection Jan. 29, 2014.

Typically, customers would make an appointment with the Honickmans to examine jewelry for sale. In July, 1991, a person identifying himself as Jeffrey Taylor called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as Herbert Smulls. July 22, 1991, Smulls and Norman Brown went to the Honickmans’ store. After viewing several diamonds, Smulls and Brown left the store without making a purchase. On the afternoon of July 27, 1991, Smulls and Brown followed another customer into the store. Florence Honickman was unable to show any jewelry at that time but suggested she might be able to help them later.

Smulls and Brown returned to the store that evening. After viewing some diamonds, Smulls and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence looked up and saw Smulls aiming a pistol at her. She then ran and hid behind a door. Smulls fired three shots at her, striking her arm and side. Smulls then fired several shots at Stephen Honickman, who was struck three times. Smulls and Brown stole jewelry worn by Florence as she lie on the floor with serious injuries, and then took other items in the store. After the two men fled, Florence called police. Stephen died from his wounds; Florence suffered permanent injuries from the attack. Brown remains in prison on two life sentences without the possibility of parole, plus 90 years. Brown is 37 years old.

Kansas City Star

"Missouri executes man for jeweler's 1991 death," by Jim Salter. (AP January 29, 2014)

BONNE TERRE, Mo. — A Missouri man who killed a jeweler during a 1991 robbery was executed for the crime late Wednesday, marking the state's third lethal injection in as many months. Herbert Smulls, 56, was executed by a lethal injection of pentobarbital at the state prison in Bonne Terre. He was convicted of killing Stephen Honickman and badly injuring his wife, Florence, during a robbery at their jewelry shop in suburban St. Louis on July 27, 1991.

Smulls did not have any final words. The process was brief, Smulls mouthed a few words to the two witnesses there for him, who were not identified, then breathed heavily twice and shut his eyes for good. He showed no outward signs of distress. He was pronounced dead at 10:20 p.m., nine minutes after the process began.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

Smulls' attorney, Cheryl Pilate, had filed numerous appeals challenging the state's refusal to disclose where it obtained its execution drug, pentobarbital, saying that refusal made it impossible to know whether the drug could cause pain and suffering during the execution. The U.S. Supreme Court had granted a stay late Tuesday, shortly before the scheduled 12:01 a.m. Wednesday execution, but the high court cleared numerous appeals on Wednesday night — even the one Pilate filed less than 30 minutes before Smulls was pronounced dead, though the final denial came about 30 minutes after his death.

When asked about the time between the appeal and the execution, Missouri Department of Corrections spokesman Mike O'Connell said, "I'm not familiar that." The state had maintained that the company was part of the execution team, so its name was protected from public disclosure.

Attorney General Chris Koster said in a statement after the execution: "My thoughts and prayers are with Florence Honickman and the family and friends of Stephen Honickman." Prosecutors said the defense's arguments were simply a smoke screen aimed at sparing a murderer's life. "It was a horrific crime," St. Louis County prosecutor Bob McCulloch said on Tuesday. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed." Smulls had already served time in prison for robbery when he went to F&M Crown Jewels in Chesterfield and told the Honickmans, who owned the store, that he wanted to buy a diamond for his fiancee. But Smulls planned to rob the couple, and took 15-year-old Norman Brown with him.

"They planned it out, including killing people, whoever was there," McCulloch said. Smulls began shooting inside the shop, and he and Brown took rings and watches — including those that Florence Honickman was wearing. She was shot in the side and the arm, and feigned death while lying in a pool of her own blood. "I felt pain and terror while I lay on the floor playing dead while the murderers ransacked our office," Florence Honickman said Wednesday night. She was the one to identify the assailants. Brown was convicted in 1993 of first-degree murder and other charges, and sentenced to life without parole. Smulls got the death penalty.

Smulls' execution was the state's third since it began using pentobarbital as its lethal injection drug. Missouri and other states had used a three-drug execution method for decades, but pharmaceutical companies stopped selling the drugs in recent years for use in executions. Missouri eventually switched to pentobarbital, which was used to execute serial killer Joseph Paul Franklin in November and Allen Nicklasson in December. Neither inmate showed outward signs of distress.

Honickman's daughter, Mindy Wilner, was critical of the media questioning whether the drug could cause suffering for Smulls, saying it was the victims who suffered. The state said it obtained its supply of the drug from a compounding pharmacy, which custom-mix drugs for individual clients. They are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states.

Pilate said she and her defense team used information obtained through open records requests and publicly available documents to determine that state obtained its drugs from The Apothecary Shoppe, a compounding pharmacy based in Tulsa, Okla. In a statement, the company would neither confirm nor deny that it made the Missouri drug. Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Missouri Senate Democratic Leader Jolie Justus introduced legislation this week that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

ProDeathPenalty.Com

Stephen and Florence Honickman owned and operated a jewelry business, F & M Crown Jewels in a basement level store below the American Bank building. Typically, customers would make an appointment to examine the jewelry for sale.

In early July 1991, a person identifying himself as Jeffrey Taylor called the Honickmans and made an appointment to buy a diamond. Jeffrey Taylor was later identified as Herbert L. Smulls. On July 22, 1991, Smulls and Norman Brown went to the Honickmans store. After viewing several diamonds, Smulls and Brown left the store without making a purchase. On the afternoon of July 27, 1991, Smulls and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later.

Smulls and Brown returned to the store late that evening. After viewing some diamonds, Smulls and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw Smulls aiming a pistol at her. Stephen Honickman pleaded with them not to shoot but to take whatever they wanted from the store. Florence ran and hid behind a door. Smulls fired three shots at her, striking her arm and side. Stephen again yelled at them, "Stop shooting, you can have anything you want!" Smulls then fired several shots at Stephen Honickman, who was struck three times. Smulls and Brown stole a bracelet, necklace and ring worn by Florence Honickman as she pretended to be dead and other items from under the glass counters in the store. Florence said she heard her husband moaning but didn't move at first for fear they were still in the store. After she was sure the two men left the store, Florence Honickman called the police. Stephen Honickman was taken to the hospital but died from his wounds around 1:00 am. Florence Honickman suffered permanent injuries from the attack.

A short time after the robbery, police stopped Smulls and Brown for speeding. While Smulls was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans store. Smulls and Brown fit the descriptions. The officer ordered Smulls to lie on the ground. Smulls then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown's possession.

The following morning police found a pistol on the shoulder of the road on which Smulls drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman. Roy Post, a neighbor and business associate of Stephen Honickman, said Stephen was president of STG Electrosystem, Inc. and had worked on a military contract to design radar systems for aircraft. The family had lived in Chesterfield for at least 17 years, neighbors said. Honickman ran the jewelry store as a sideline, Post said. He had set up the store for his wife and daughter, he said. Police said they had no reports of earlier robberies. The store had just opened in December of 1990. ''I never expected anything like this to happen, '' Post said. ''It was out of the blue, a hell of a shock.''

Smulls declined to take the stand at his retrial, and he presented no testimony in his defense. The jury found Smulls guilty as charged of first degree murder, first degree assault, first degree robbery and two counts of armed criminal action. In the punishment phase, the State presented evidence of Smulls's eleven prior felony convictions for robbery, stealing and operating a vehicle without the owner's consent, as well as evidence that Smulls had committed a prior robbery in a manner similar to that employed by him in the robbery and shooting of the Honickmans.

Smulls adduced testimony from a psychologist and from several persons acquainted with or related to him in purported mitigation of punishment. Thereafter, the jury returned a sentence of death upon Smulls for his murder of Stephen Honickman, finding three statutory aggravating circumstances as a basis for consideration of capital punishment. Smulls was sentenced as a prior, persistent and class X offender to five concurrent life terms for his remaining offenses.

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

State v. Smulls, 71 S.W.3d 138 (Mo. 2002). (PCR)

Defendant moved for postconviction relief after he was convicted of first-degree murder and other crimes and was sentenced to death. The Circuit Court, St. Louis County, William M. Corrigan, J., denied relief, and defendant appealed. The Supreme Court, 935 S.W.2d 9, reversed and remanded in part. On remand, the trial court again denied postconviction relief, and defendant appealed. The Supreme Court, 10 S.W.3d 497, reversed. On remand, the Circuit Court, St. Louis County, Emmett O'Brien, J., overruled motion for postconviction relief, and defendant appealed. The Supreme Court, Limbaugh, C.J., held that: (1) successor judge could impartially hear postconviction relief motion; (2) evidence offered to establish racial bias of hearing judge was not admissible; and (3) trial counsel was not ineffective for failing to discover judge's alleged racial bias. Affirmed. Wolff, J., concurred and filed separate opinion. Laura Denvir Stith, J., concurred in part, dissented in part, and filed separate opinion in which White, J., concurred.

LIMBAUGH, Chief Justice.

Herbert Smulls was convicted in the Circuit Court of St. Louis County of first-degree murder and other crimes and was sentenced to death. On appeal, his convictions and sentence were affirmed, but the judgment on his Rule 29.15 post-conviction motion was reversed. State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). On remand, his post-conviction motion was overruled, but again the judgment was reversed on appeal. Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). On the latest remand, the post-conviction motion was again overruled. This Court has jurisdiction. Mo. Const. art. V, sec. 10. The judgment is affirmed.

I. Background

In 1991, Smulls was charged with first-degree murder, first-degree assault, two counts of first-degree robbery, and two counts of armed criminal action. The jury convicted Smulls of robbery but could not come to a verdict on the other charges. On retrial, Smulls was convicted on all the remaining counts. Judge William Corrigan presided at both trials. The facts surrounding the offenses, as reported in this Court's original opinion, are as follows: Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers wold make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as “Jeffrey Taylor” called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as defendant. On July 22, 1991, defendant and Norman Brown went to the Honickmans' store. After viewing several diamonds, defendant and Brown left the store without making a purchase.

On the afternoon of July 27, 1991, defendant and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later. Defendant and Brown returned to the store that evening. After viewing some diamonds, defendant and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw defendant aiming a pistol at her. She then ran and hid behind a door. Defendant fired three shots at her, striking her arm and side. Defendant then fired several shots at Stephen Honickman, who was struck three times. Defendant and Brown stole jewelry worn by Florence Honickman and other items in the store. After the two men left the store, Florence Honickman contacted the police. Stephen Honickman died from his wounds, and Florence Honickman suffered permanent injuries from the attack.

A short time after the robbery, police stopped defendant and Brown for speeding. While defendant was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans' store. Defendant and Brown fit the descriptions. The officer ordered defendant to lie on the ground. Defendant then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown's possession. The following morning police found a pistol on the shoulder of the road on which defendant drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman. State v. Smulls, 935 S.W.2d at 13.

In penalty phase, the jury found the existence of three statutory aggravating factors: [T]he murder of Stephen Honickman was committed while defendant was engaged in the attempted unlawful homicide of Florence Honickman; the defendant murdered Stephen Honickman for the purpose of defendant receiving money or any other thing of monetary value from Stephen Honickman; and, the murder of Stephen Honickman was committed while defendant was engaged in the perpetration of a robbery. Id. at 24. Additionally, the state introduced evidence of non-statutory aggravating circumstances including Smulls' eleven prior felony convictions. In affirming the judgment imposing the death sentence, this Court determined 1) that the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, 2) that the jury's finding of the statutory aggravating circumstance was supported by the record, and 3) that the sentence was not excessive or disproportionate to similar cases.

Despite the fact that Smulls' convictions and death sentence were affirmed, this Court held that certain comments Judge Corrigan made during a Batson hearing at voir dire provided “an objective basis upon which a reasonable person could base a doubt about the racial impartiality of the trial court.” Id. at 26. These comments, coupled with allegations of pre-trial out-of-court misconduct and Judge Corrigan's status as a potential witness on those allegations, required his disqualification from Smulls' Rule 29.15 hearing. Id. at 27. Accordingly, Judge Corrigan's denial of Rule 29.15 relief was reversed, and the case was remanded for a new hearing. On remand, Judge Emmett O'Brien, another member of the St. Louis County Circuit Court, was assigned to hear the motion. Smulls filed motions to voir dire and disqualify Judge O'Brien and all other past and present St. Louis County judges. Judge O'Brien overruled those motions and denied the Rule 29.15 motion on the merits. On appeal, this Court held that statements in a deposition taken of Judge Corrigan indicated that prior to taking the case, Judge O'Brien may have discussed the case with Judge Corrigan and should possibly have recused himself from the 29.15 hearing. Smulls v. State, 10 S.W.3d at 504. This Court remanded for determination of the recusal issue, but with the following proviso: [I]f ... the hearing court finds no basis for disqualification of Judge O'Brien, the Rule 29 proceedings may be reassigned to Judge O'Brien for re-entry of his judgment. Id. at 505.

On remand, the case was assigned to Judge James Hartenbach, yet another member of the St. Louis County Circuit Court, who, after an evidentiary hearing, determined that the motion to disqualify Judge O'Brien was properly overruled. Pursuant to this Court's directive, Judge Hartenbach ordered the case reassigned to Judge O'Brien, and Judge O'Brien then re-entered his judgment overruling Smulls' Rule 29.15 motion. Smulls now appeals the determination that Judge O'Brien could properly hear the motion as well as Judge O'Brien's denial on the merits of his Rule 29.15 motion.

II. Smulls' Motion to Disqualify All St. Louis County Judges

After the 1996 remand, Smulls filed a motion to disqualify all current and former judges of the St. Louis County Circuit. That motion was overruled. The issue was briefed on the second appeal to this Court and denied. Smulls v. State, 10 S.W.3d at 499–500. Smulls now attempts to raise the issue again. However, this Court's earlier resolution of the issue on the merits is the law of the case and the issue may not be raised again. Williams v. Kimes, 25 S.W.3d 150, 153–54 (Mo. banc 2000).

III. Motion to Disqualify Judge O'Brien
A. Exclusion of Evidence

Smulls first claims that Judge Hartenbach erred in excluding certain evidence from the hearing that pertained to Judge O'Brien's alleged bias: (1) the testimony of two judges from St. Louis City expressing concern that a campaign was being waged by other judges in favor of Judge Corrigan and against the author of this Court's first opinion; (2) letters sent to this Court by other judges on Judge Corrigan's behalf asking this Court to rehear Smulls' case; and (3) certain newspaper articles from the St. Louis Post–Dispatch harshly critical of Judge Corrigan. Smulls contends the evidence is relevant because it would engender sympathy for Judge Corrigan and pressure Judge O'Brien to vindicate his fellow judge. Additionally, Smulls points to this evidence to establish that Judge O'Brien was influenced by extra-judicial factors, giving rise to an appearance of impropriety. See State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992).

Judge Hartenbach rejected this evidence because it was irrelevant. This Court agrees. Smulls did not show that Judge O'Brien had been exposed to any of the specific evidence in question, nor did Smulls attempt to ask Judge O'Brien about it during O'Brien's testimony at the hearing before Judge Hartenbach. Although Judge O'Brien testified that he was generally aware of newspaper articles on the issue, he could not recall the content of any of them. As for the concern from the two St. Louis City judges and the letters to this Court, Judge O'Brien testified that he was not aware of any effort by the legal community to influence this Court's opinion. Because he had no knowledge of the rejected testimony, letters, and articles, they could not have influenced him. Even if Judge O'Brien had been aware of the evidence, this alone would not require his disqualification because judges are presumed to be able to set such evidence aside in deciding a case. See State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996).

B. Judge O'Brien's Impartiality

Smulls next claims Judge Hartenbach erred in his determination that Judge O'Brien could impartially hear Smulls' Rule 29.15 motion on remand. The basis of the claim, from Smulls' point relied on, is that “O'Brien was with Corrigan when Corrigan condemned this Court's calling him ‘a racist’ and O'Brien may have participated in criticizing language that produced lobbying against this Court thereby creating an appearance of impropriety....” This claim arises against the backdrop of this Court's revision of its original opinion in Smulls I by deleting certain language that was highly critical of Judge Corrigan. See Smulls v. State, 10 S.W.3d at 506, n. 2 (Limbaugh, J., dissenting).

The Due Process Clause of the United States and Missouri Constitutions guarantee a criminal defendant an impartial tribunal, permitting any litigant to remove a biased judge. State v. Taylor, 929 S.W.2d at 220. Canon 3(D)(1) of the Missouri Code of Judicial Conduct, Rule 2.03, requires a judge to recuse in a proceeding where a “reasonable person would have a factual basis to doubt the judge's impartiality.” Id. This standard does not require proof of actual bias, but is an objective standard that recognizes “justice must satisfy the appearance of justice.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1986). Under this standard, a “reasonable person” is one who gives due regard to the presumption “that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996). In addition, a “reasonable person” is one “who knows all that has been said and done in the presence of the judge.” Haynes v. State, 937 S.W.2d 199, 203 (Mo. banc 1996). Finally, as to due process challenges, the Supreme Court has made clear that “only in the most extreme of cases would disqualification on this basis be constitutionally required.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); see also State v. Jones, 979 S.W.2d 171, 177 (Mo. banc 1998).

In view of the allegations raised by Smulls, two cases are particularly helpful. In State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996), an issue presented was whether a resentencing judge from the same circuit as the original judge could “set aside his feelings for the original trial judge” and come to an independent sentencing determination. Similarly, in State v. Taylor, 929 S.W.2d at 220, the defendant argued that due to the collegial relationship between the resentencing judge and the original judge, the resentencing judge would want to “give[ ] the original judge a vote of confidence” by imposing the same sentence. In both Nunley and Taylor, this Court held that disqualification was not required absent evidence of a special relationship between the judges that might create an appearance of impropriety. Id.; Nunley, 923 S.W.2d at 918. Here, Smulls has failed to establish that such a special relationship existed.

More particularly, there is no basis for establishing that special relationship, much less an appearance of impropriety, through the allegation that O'Brien knew Corrigan condemned this Court for calling him “a racist,” and that O'Brien, himself, may have criticized this Court's original opinion. In that regard, the record of Judge O'Brien's interaction with Judge Corrigan shows the following: Judge Corrigan testified that he discussed this Court's decision with many judges on the St. Louis County Circuit bench; some of those judges criticized this Court's opinion, and he and Judge O'Brien discussed the case at some point between the issuance of this Court's original and modified opinions; however, Judge Corrigan was not sure whether his discussion with Judge O'Brien was superficial or even whether Judge O'Brien was one of the judges who criticized the opinion.

Judge O'Brien testified that he did not recall overhearing Judge Corrigan express any specific disagreement, including any specific disagreement with language used in this Court's original opinion. When asked if he and Judge Corrigan discussed the racial bias claim in Smulls, Judge O'Brien stated, “I've heard statements made by Judge Corrigan, none of which were after the modified opinion came out ... I don't think any of them dealt with specific issues within the opinion. I think it was just an overall displeasure with the opinion.” Judge O'Brien also testified that he did not have any contact with Judge Corrigan after the modified opinion was issued, and he avoided contact with anyone discussing the case because he knew it was possible that he would be assigned to hear the case. At most, he presumed the opinion “was not Judge Corrigan's favorite,” because it was critical of Judge Corrigan's fitness for the bench.

Finally, there is no evidence that Judge O'Brien “participated in criticizing language that produced lobbying against this Court,” nor, as noted, is there evidence that Judge O'Brien even knew of allegations to that effect. In fact, his only criticism on this record was that this Court's comments regarding Judge Corrigan's fitness for the bench was a matter better suited for the Commission on Retirement, Removal and Discipline. That criticism does not establish disqualifying bias, if for no other reason than that the criticism was validated when this Court deleted the comments regarding Judge Corrigan's fitness. In sum, Smulls failed to prove, either through the existence of a special relationship between Judge O'Brien and Judge Corrigan or through Judge O'Brien's comments and actions themselves, that a reasonable person would have reason to doubt Judge O'Brien's impartiality.

IV. Denial of Rule 29.15 Claims with Evidentiary Hearing

The effect of this Court's determination that Judge O'Brien could hear Smulls' Rule 29.15 hearing is that Judge O'Brien's denial on the merits is reinstated. Smulls' amended motion contained twenty-six claims. All but five were dismissed without an evidentiary hearing. An evidentiary hearing was granted on the five claims, as well as several from Smulls' pro se motion. These include ineffective assistance of counsel claims for (a) failure to move for Judge Corrigan's disqualification, (b) failure to present the results of gunshot residue tests performed on Smulls and his accomplice, (c) failure to present certain mitigating factors in penalty phase, and (d) discouraging Smulls from testifying at his second trial. All of these claims were denied. The standard of review is as follows: This Court's review is limited to determining whether the motion court clearly erred in its findings and conclusions. The findings and conclusions of the motion court are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made. Rousan v. State, 48 S.W.3d 576, 581 (Mo. banc 2001) (citations omitted).

A. Failure to Move for Judge Corrigan's Disqualification

The principal claim of this appeal is that Smulls' trial counsel was ineffective for failing to discover evidence of Judge Corrigan's racial bias and move for his disqualification. This claim is based essentially on the same allegations and conduct this Court considered in disqualifying Judge Corrigan from hearing the Rule 29.15 motion: 1) that prior to the case, Judge Corrigan told a racist joke to a group of judges, that judgment had been entered against him for sexual harassment, and that he discriminated against African–American defendants in the disposition of criminal cases; and 2) that during the case, he made racially insensitive comments at the Batson hearing.

Although the circumstances of the Batson hearing were reported extensively in the first Smulls opinion, they bear repeating here: The defendant noted that Ms. Sidney was the only remaining black venireperson and requested a Batson hearing. When the prosecutor stated his reasons for striking Ms. Sidney, Smulls' counsel claimed the reasons were pretextual and requested a mistrial. The court denied defendant's request. The next day, Smulls' counsel renewed the Batson challenge and stated for the record that Judge Corrigan would have been aware the victims were white and the defendant was black because he presided over the first trial. Judge Corrigan stated he did not remember who was black and who was white, but that he would accept the defendant's statement. He then reiterated his denial of the Batson claim. When the defendant again noted that Ms. Sidney was the last black venireperson, Judge Corrigan stated that he did not know what it meant to be black, that he never takes judicial notice of a person's race without direct evidence, and that it is counsel's responsibility to establish who is black and who is not. In this regard, he added: There were some dark complexioned people on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don't know what black means. Can somebody enlighten me of what black is? I don't know; I think of them as people.

1. Exclusion of Evidence

Initially, Smulls assigns error to Judge O'Brien's exclusion of certain evidence regarding Judge Corrigan's racial prejudice.

a. Unofficial Transcript

During the original 29.15 proceedings, Smulls directed a request for admissions to the prosecuting attorney seeking to establish that the defendant was black, the victims were white, and the jury panel selected was all white. Following longstanding custom and practice for non-evidentiary motion hearings in civil cases, Judge Corrigan did not provide the court's official reporter. Therefore, Smulls brought a private court reporter to the hearing who recorded and transcribed the following statements from Judge Corrigan:

This Court won't take the position that people are white or black. It is the Court's position that you can't look at people and determine what their race is .... If the lawyers don't want to ask the jurors whether the people are white or black or ask a witness if he's white or black, then I don't think that I—I can ask the parties to make that admission. At the 29.15 remand hearing before Judge O'Brien, Smulls tried to admit this transcript, arguing that the transcript demonstrates Judge Corrigan's professed inability to acknowledge a person's race. Smulls also wished to present testimony and an affidavit from his original 29.15 counsel that Judge Corrigan made statements indicating he could recognize a person's race when he so chose.

On objection by the state, Judge O'Brien properly excluded the transcript on the basis that the reporter was not the official court reporter, the reporter did not appear at the hearing to attempt to authenticate the transcript, and the transcript was not self-proving. In addition, Rule 57.03(f) states that after a deposition is taken and transcribed, it must be submitted to the deponent for his reading and signature. This was not done. Subsection (g) then provides for the signature of the officer transcribing the deposition, but in the absence of the signature of the deponent, that attestation does not guarantee the accuracy of the transcript. Coffel v. Spradley, 495 S.W.2d 735, 738 (Mo.App.1973). For all of these reasons, the transcript was inadmissible. Regardless, given the similarities between this transcript and Judge Corrigan's statements during the Batson hearing already in evidence, the transcript would have been cumulative.

b. Counsel's Race–Recognition Testimony

Smulls' former counsel attempted to testify via affidavit that during the initial Rule 29.15 hearing, Judge Corrigan referred to the woman who years before sued him for sexual discrimination as “white.” The state objected to the testimony on several grounds, including relevancy, and Judge O'Brien sustained the objection. Although the testimony was offered to show Judge Corrigan's possible bias or untruthfulness about race-recognition, it is irrelevant to show counsel's ineffectiveness for failing to discover that bias or untruthfulness. For this evidence to be relevant to that claim, the evidence must have been known to counsel or discoverable during reasonable investigation. White v. State, 939 S.W.2d 887, 895–96 (Mo. banc 1997). However, Judge Corrigan's statement was not made to counsel until the initial Rule 29.15 hearing, after trial. Smulls' counsel could not have presented this evidence in a motion to disqualify before or during trial, many months before the statement was made.

c. “ Barbecue Joke” Evidence

A Post–Dispatch article published in 1983 reported that Judge Corrigan said during a meeting of judges that, “We can't have a barbecue because we don't have a black judge to do the cooking.” Smulls claims he offered this article not to establish whether there were in fact any black judges in the St. Louis County Circuit, but to establish that Judge Corrigan was biased and that his bias was public knowledge. He claims his counsel knew or should have discovered this alleged evidence of bias, and that that contributed to counsel's ineffectiveness in failing to file a motion to disqualify Judge Corrigan. Judge O'Brien ruled the article was hearsay.

“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999). To the extent that the article was offered to prove bias, it was inadmissible. Contrary to defendant's position, the truth of the matter asserted is not that they could not have a barbecue because there were no black judges available, but that Judge Corrigan said they could not have a barbecue because there were no black judges available. See 3 STEPHEN A. SALTZBURG, ET AL., FEDERAL RULES OF EVIDENCE MANUAL 1466 (7th ed.1998). On the other hand, the article was admissible to show that the allegation that Judge Corrigan was biased was a matter of public knowledge, and, in fact, Judge O'Brien admitted the testimony for that limited purpose. Smulls also offered the deposition testimony of Judge Campbell, who related that he personally overheard Judge Corrigan making the joke. Judge O'Brien disallowed this evidence on hearsay grounds, but the state has made no effort in its brief to defend the ruling. Assuming the testimony should have been admitted, it is much less probative of what Smulls' counsel knew or should have discovered about the matter than the newspaper article. To the extent Judge O'Brien disallowed or discounted this evidence, Smulls was not prejudiced.

d. Gender Discrimination Suit Evidence

Smulls next claims the motion court erred in excluding certain evidence related to a 1982 gender discrimination suit against Judge Corrigan that resulted in a judgment against him as reported in Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541 (8th Cir.1984). The evidence consisted of: 1) an affidavit from the plaintiff in that case to the effect that Judge Corrigan accurately identified her as “white,” and 2) docket sheets reflecting that the case was heard by an African–American judge. The purported relevancy of this evidence was that it tended to show that Judge Corrigan could identify the race of a party when he so chose, and “demonstrat[ed] and prove[d] why Corrigan approximately one year later told the barbecue joke.” These matters were not pled as part of the Rule 29.15 motion, and the evidence was properly excluded for that reason. Even if those matters were properly pled, the relevancy of the evidence is tenuous, especially in light of this Court's holding in the original Smulls opinion that the gender discrimination suit in question did not disqualify Judge Corrigan from hearing gender- Batson claims. State v. Smulls, 935 S.W.2d at 16–17.

e. Exclusion of Dr. Galliher's testimony

Smulls called Dr. John Galliher, a professor of sociology who had reviewed Judge Corrigan's conduct during various trials in order to establish racial bias. Judge O'Brien excluded the evidence for a variety of reasons, ultimately concluding that the testimony was not credible. On appellate review, such a determination will rarely be overturned because a trial court is in the best position to assess the credibility and usefulness of expert testimony. Rousan v. State, 48 S.W.3d at 589. In an offer of proof, Dr. Galliher discussed at length the existence and effect of unconscious racial bias in our society, that people with such bias falsely claim not to be able to recognize race and will tell jokes to express their feelings, and that there is a correlation between gender bias and racial bias. He also commented on excerpts from Smulls' trial and several of Judge Corrigan's other cases. He concluded that “Judge Corrigan's behaviors viewed together were inconsistent with adhering to Batson's spirit and were relevant to Smulls' ability to have Batson fairly decided.”

Judge O'Brien rejected this testimony in part because it did not satisfy the Frye test that an expert opinion must be based upon a valid and accepted scientific methodology and assist the trier of fact in the determination of an issue. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993); Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Dr. Galliher admitted that his opinions were not based upon a random sampling of Judge Corrigan's cases or any first-hand observation of any of Judge Corrigan's cases. He testified that Judge Corrigan berates black defendants in a manner not found in cases with white defendants, but admitted that he did not look beyond the nine cases selected by Smulls (out of hundreds heard), and that the defendants were black in only six of those nine cases. The circumstances of these cases prove the point: In one case, Judge Corrigan referred to the defendant as an “animal,” but the defendant had been convicted of the brutal beating and rape of an elderly woman; in another case, Judge Corrigan called the defendant a “mad dog;” but the defendant was a serial rapist; in another case, he called the defendant a “flim-flam man,” but the defendant had been found guilty of forgery and defrauding his employer. The other cases are comparable. This is hardly proof of a pattern of racial bias. Moreover, Dr. Galliher was not able to identify any prejudice in the actual imposition of sentences and noted Judge Corrigan consistently followed the jury's recommendation. For these reasons, Judge O'Brien did not abuse his discretion in rejecting Dr. Galliher's testimony.

f. Smulls' Affidavits from Defense Attorneys

Next, Smulls complains that Judge O'Brien improperly excluded “evidence about an alleged policy of racial discrimination by St. Louis County prosecutors in voir dire.” This evidence was offered by way of affidavits from three local criminal defense lawyers and was designed to show that Smulls' counsel should have disqualified Judge Corrigan to avoid the combination of a biased prosecutor and a biased judge. This claim fails because it was determined in the initial appeal that no error occurred in deciding the merits of the Batson challenge. State v. Smulls, 935 S.W.2d at 14–16.

2. Stay of Judge O'Toole's Deposition

Smulls subpoenaed Judge Daniel O'Toole, claiming Judge O'Toole also heard Judge Corrigan tell the “barbecue joke.” At the state's request, Judge O'Brien stayed the deposition until he determined Smulls was entitled to an evidentiary hearing on the ineffective assistance of counsel claim to which the deposition related. Judge O'Brien lifted the stay on January 5, 1998, but he denied Smulls' motion for a continuance of the evidentiary hearing until the deposition could be taken. Nonetheless, he assured Smulls that additional time would be provided as necessary. Smulls scheduled the deposition for March 9, 1998, but Judge O'Toole died on that very day after an extended bout with cancer. Smulls first claims that the state had no standing to request the stay. Smulls is mistaken. The rules of civil procedure apply to Rule 29.15 motions. Rule 29.15(a). Rule 56.01(c) permits any party to file a motion for a protective order. A request for a stay order falls within that rule.

Smulls next claims that the trial court's stay of the deposition was improper because Smulls was denied access to a witness who had useful information. “Trial courts have broad discretion in administering rules of discovery, which this Court will not disturb absent an abuse of discretion.” State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998). As noted, the basis of the state's motion was that the deposition was premature and unduly burdensome until the motion court determined whether Smulls was entitled to an evidentiary hearing. The stay was proper under Rule 56.01(c), which permits the trial court to make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Smulls' citation to Rule 56.01(b)(1), which states that parties are entitled to discovery on any relevant matter, does not address the issue. Judge O'Brien's ruling was not a determination that Smulls was not entitled to the discovery. The stay was in place only until he granted an evidentiary hearing and was lifted three months prior to Judge O'Toole's death. There was no abuse of discretion. See State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000).

Smulls also argues that Judge O'Brien improperly refused to continue the evidentiary hearing until Judge O'Toole could be deposed. Smulls filed a motion requesting a continuance or, “at minimum,” that the court “hold open the evidence” until the deposition could be taken. In response, Judge O'Brien denied the motion, but stated he would grant a continuance at the close of Smulls' evidence if the deposition had not yet been secured. It is well settled that “[t]he decision to grant or deny a request for a continuance ... rests within the trial court's discretion and will not be reversed absent a clear showing of abuse of discretion.” State v. Barton, 998 S.W.2d 19, 27 (Mo. banc 1999). Because the court was willing to grant a continuance if Judge O'Toole's deposition was not taken by the time Smulls rested his case, there was no abuse of discretion.

3. Admission of Judge Corrigan's Character Witnesses

Smulls objected to the relevancy of the state's presentation of five prominent criminal defense attorneys who know Judge Corrigan and testified to his reputation as being free of bias when judging cases involving African–Americans. Smulls concedes that character evidence is relevant when put in issue by the nature of the proceeding, and his real complaint seems to be that character evidence has no bearing on racial bias. However, an inquiry into a judge's alleged racial bias cannot be conducted without an inquiry into the judge's character because the presence or absence of racial bias is part of a judge's character. Where, as here, a party has opened the door by introducing evidence of bad character as manifested by racial bias, the other party may introduce evidence of good character as manifested by the lack of racial bias. Citing Clemmons v. State, 785 S.W.2d 524, 531 (Mo. banc 1990), Smulls also argues that the character and reputation witnesses were not competent to testify because their testimony relates solely to “issues the motion court must decide.” It is clear from their testimony, however, that the witnesses were testifying not as experts on a matter of law, but as persons familiar with Judge Corrigan's judicial temperament. In Clemmons, the attorneys were impermissibly testifying regarding ineffective assistance of counsel, an issue of law. Id. In contrast, the witnesses here testified regarding bias, a factual determination. See State v. Kinder, 942 S.W.2d at 334 (Mo. banc 1996); State v. Thomas, 596 S.W.2d 409, 413 (Mo. banc 1980).

4. Analysis of the Evidence of Racial Bias

To succeed on the claim that trial counsel should have disqualified Judge Corrigan on the ground of racial bias, Smulls must show that there was evidence of such disqualifying bias that his trial counsel knew of or could have discovered with a reasonable amount of investigation. White v. State, 939 S.W.2d at 895–96; State v. Twenter, 818 S.W.2d 628, 640 (Mo. banc 1991). Smulls has not done so. Most of the pre-trial, out-of-court evidence that purportedly indicated Judge Corrigan's racial bias should not be considered because it was properly excluded from evidence at the Rule 29.15 hearing before Judge O'Brien. In particular, the newspaper article about the racist joke was hearsay, and the report from Dr. Galliher on Judge Corrigan's allegedly disparate treatment of black defendants was not based on scientific study and lacked credibility otherwise.

Even if that evidence had been properly admitted, it is not evidence that trial counsel knew of or could have discovered with a reasonable amount of investigation. To uncover evidence that Judge Corrigan allegedly told a single racist joke to an informal group of judges some ten years before trial, even when the joke was reported in the newspaper, is not required as part of any reasonable investigation. This is especially true considering trial counsel has only limited resources and must necessarily be given deference as to the target and scope of such investigation. See State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998). This conclusion applies all the more to the kind of investigation conducted by Dr. Galliher. More importantly, counsel would not know the need to conduct these investigations until the allegedly racially insensitive remarks were made during the Batson hearing after the trial had commenced. Only then did the issue of Judge Corrigan's racial prejudice clearly present itself.

Furthermore, even had counsel conducted the kind of pre-trial investigation that Smulls, in hindsight, now claims was required, the investigation would have likely turned up as much evidence that Judge Corrigan was not biased as evidence that he was biased. The five criminal defense lawyers who practice regularly before Judge Corrigan testified unequivocally that their African–American clients had been treated fairly, and even Judge Campbell, who testified that he overheard the racist joke years ago, qualified his statement by then testifying that during the many years he had served with Judge Corrigan, he had never heard of a claim or allegation of racial bias made against him. Under these circumstances, counsel cannot be faulted for failing to move for Judge Corrigan's disqualification before trial. Whether counsel should have moved to disqualify Judge Corrigan after his comments at the Batson hearing is perhaps another question, and ultimately, the issue to be resolved is whether counsel should have attempted to disqualify Judge Corrigan on the basis of his comments during the Batson hearing alone. Although this Court determined in the first Smulls opinion that those comments were racially insensitive, State v. Smulls, 935 S.W.2d at 26, Judge Corrigan's disqualification from the Rule 29.15 proceeding was required because those comments were coupled with the several allegations of pre-trial, out-of-court misconduct and the likelihood that Judge Corrigan, himself, would be a witness for those allegations. Id. at 27.

The decision to disqualify a judge is a matter of trial strategy. State v. Ayers, 911 S.W.2d 648, 652 (Mo. banc 1995); see also Wilson v. State, 626 S.W.2d 243, 248–49 (Mo. banc 1982). As with all matters of trial strategy, appellate courts are properly deferential to trial counsel's decisions. Lyons v. State, 39 S.W.3d 32, 36 (Mo. banc 2001). In that regard, it may well be that trial counsel perceived that Judge Corrigan's Batson comments were made innocuously. Further, counsel acknowledged that there was at least one important strategic reason to keep Judge Corrigan on this case: Judge Corrigan believed that the jury instruction that permitted the judge to impose the death penalty if the jury could not agree on punishment, MAI–CR3d 313.48B, was unconstitutional, and Judge Corrigan stated that he would have an extremely difficult time imposing the death penalty if the jury did not. On this record, counsel cannot be convicted of being ineffective for failing to disqualify Judge Corrigan.

Finally, hindsight shows that the decision not to disqualify Judge Corrigan did not result in prejudice. Smulls cannot point to any judicial decision that evidences Judge Corrigan's alleged bias or in which Judge Corrigan's alleged bias produced an unjust result. This Court expressed concern in its 1996 decision that Judge Corrigan's refusal to acknowledge race raises “serious questions about his willingness to do what Batson requires,” Smulls, 935 S.W.2d at 26, and this Court wrote: “The trial court cannot add subtle burdens to the Batson process by refusing to take note of race where trial counsel properly places it at issue.” Id. However, a careful review of the record shows that Smulls' Batson challenge was heard not once, but twice, and at the first hearing, Judge Corrigan did not dispute that Ms. Sidney was African–American. Indeed, the controversy did not arise until the second hearing on the second day when Judge Corrigan's memory had faded and Ms. Sidney and the other jurors who were not selected were no longer present. Ultimately, this Court determined in the original appeal that the prosecutor's peremptory strike of Ms. Sidney was not pretextual and that Judge Corrigan correctly denied the Batson challenge. Id. at 14–16. Smulls advances no evidence indicating otherwise. The simple fact is that Judge Corrigan's skepticism at Smulls' Batson hearing, whether honest or obstinate, did not prevent Smulls' claims from being heard and did not prove that the outcome of that hearing or the trial as a whole was the product of the judge's bias.

B. Disqualification Because of Retention Vote

Smulls next claims that his counsel was ineffective for failing to have Judge Corrigan disqualified because Judge Corrigan was worried about his upcoming retention vote in the 1992 general election. Smulls explains that given that concern, Judge Corrigan would be unwilling to consider a life sentence instead of the death penalty because a willingness to consider a life sentence might erode support at the polls. This claim is frivolous. The 1992 general election was held before Smulls' trial.

C. Failure to Present Gunshot Residue Evidence

Gunshot residue tests were performed on Smulls and his accomplice. No residue was detected on Smulls, and the test on his accomplice was inconclusive. During the first trial, the state's expert, Dr. Rothove, was unavailable, and the parties agreed to a short stipulation regarding the test results. At the second trial, Smulls' counsel subpoenaed Rothove, but did not call him, having just learned that he would not support the theory that the accomplice fired the shots. As we understand it, Smulls' claim is that counsel did not interview Rothove in time to adjust strategy and that counsel was ineffective for failing to present the stipulation. Smulls now concedes that the stipulation was not available on retrial and claims his counsel should have obtained an independent expert. This claim was not pled. Nevertheless, Smulls attempted to present the testimony of Donald Smith, a criminologist. Judge O'Brien gratuitously reviewed the claim, but rejected Smith's testimony because Smith could not identify which of the two suspects was the shooter, did not sufficiently duplicate the state's test, and was not otherwise credible.

Smulls must establish that his counsel was ineffective in failing to obtain an independent expert and that it is reasonably probable that the deficiency affected the outcome. White v. State, 939 S.W.2d at 895–96; State v. Twenter, 818 S.W.2d at 640. Smith testified that either one of the defendants could have been the shooter. However, in conducting his own tests, Smith did not attempt to obtain the same weapon used in the crime, and he admitted that different weapons of the same make and model can “kick off” different residues. In addition, Smith was not certain he and the state used the same machine to conduct the tests. He also was unaware that Smulls struggled in wet grass with the police and continuously wiped his hands, which can remove residue. See Wainwright v. Lockhart, 80 F.3d 1226, 1230 (8th Cir.1996). Based upon these factors it cannot be said that it was clear error for the motion court to find Smith's evidence lacking in credibility. See State v. Hall, 982 S.W.2d 675, 687–88 (Mo. banc 1998); Wainwright, 80 F.3d at 1230

D. Failure to Present Mitigating Circumstances

Smulls claims Judge O'Brien clearly erred in denying his claim that his counsel was ineffective for failing to interview and present certain mitigating witnesses during penalty phase. These witnesses would allegedly have testified that he was nonviolent, amicable, abandoned at childhood, impoverished, cared for his children, and that he was helpful to friends and relatives.

While counsel is required to investigate possible mitigating circumstances, Nunley, 923 S.W.2d at 924, there is no absolute duty to present mitigating evidence. State v. Shurn, 866 S.W.2d 447, 472 (Mo. banc 1993). Furthermore, “[c]ounsel is not ineffective for not putting on cumulative evidence.” Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc 2000). Smulls presented five witnesses during the penalty phase: Dr. Wells Hively, a psychologist; Smulls' pastor, who had known him since he was a child; a supervisor and a corrections officer at the jail where Smulls was incarcerated; and Smulls' adopted father, who had raised him since he was a year and a half old. Dr. Hively explained that Smulls is depressed, has a dependent personality, and is not violent unless he is coerced. The pastor testified that Smulls is polite, respectful and not violent. The corrections supervisor and guard testified that he was a good worker and that he did not cause trouble. His father testified that Smulls was abandoned as a child and did not finish high school, and that he still cared for Smulls as he would his own blood.

Most of the witnesses and testimony Smulls claims his counsel should have presented would be cumulative of testimony that had already been presented. In addition, the motion court, which is in the best position to evaluate credibility, found that a number of these witnesses were not credible. They include Randy Edwards and Dennis Brown, who both arrived in court to testify with a list of typed questions with parenthetical answers; Crispin Smith, who had a “close relationship” with Smulls but supposedly did not know he was on parole; Maggie Cain, who knew Smulls only from church; and Patricia Lee, who knew him only in passing. The motion court's findings on this matter were not clearly erroneous. Rousan v. State, 48 S.W.3d at 589. Furthermore, in light of the aggravating factors found by the jury, Smulls has not shown that the additional mitigating testimony would have produced a different result had it been presented at trial.

E. Smulls' Decision Not to Testify

Smulls claims his counsel was ineffective for not advising him to testify. Smulls testified at his first trial, and the jury could not reach a verdict on the murder count. He claims this gives rise to a “reasonable probability” that he would not have been convicted had he testified at his second trial. See Rousan v. State, 48 S.W.3d at 581–82. “Advice of counsel that a defendant not testify, without more, is not incompetent when it might be considered sound trial strategy.” State v. Powell, 798 S.W.2d 709, 718 (Mo. banc 1990). Smulls has an extensive criminal history, which was a subject of cross-examination during the first trial and a probable subject of cross-examination during the second trial. This would have undercut his theory that he was not the ringleader of the robbery. In addition, the trial court discussed with him his decision not to testify. The argument that his testimony at the first trial caused the hung jury is speculative, and he has not demonstrated that his counsel's decision was anything other than sound trial strategy. See State v. Chambers, 891 S.W.2d 93, 112 (Mo. banc 1994).

V. Denial of Rule 29.15 Claims Without an Evidentiary Hearing

In post-conviction relief motions, [a]n appellant is entitled to an evidentiary hearing only if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice. Morrow v. State, 21 S.W.3d 819, 823 (Mo.2000).

A. Prosecutor's Motive to Seek the Death Penalty

Smulls claims his trial counsel was ineffective for failing to investigate and challenge the prosecutor's motive to seek the death penalty. Again, to establish ineffective assistance, Smulls must describe the information his attorney failed to discover, allege that a reasonable investigation would have uncovered the information, and prove the information would have aided his position. White v. State, 939 S.W.2d at 895–96; State v. Twenter, 818 S.W.2d at 640. Further, “[t]o show that the prosecutor sought the death penalty for racially discriminatory reasons,” defendant must prove that the prosecutor's decision had “a discriminatory effect” on defendant and that the decision was “motivated by a discriminatory purpose.” Morrow v. State, 21 S.W.3d at 825. Finally, movant “must offer clear proof of discrimination in his own case.” State v. Brooks, 960 S.W.2d at 499.

Smulls' motion alleged that: (1) he is an economically disadvantaged African–American, (2) his victims were Caucasian and the crime occurred in an affluent Caucasian suburb, (3) evidence would be presented that in factually similar homicide cases with Caucasian defendants the state did not seek the death penalty, (4) the death penalty was sought in his case because he is African–American, (5) reasonably competent counsel would have investigated and raised this matter, and (6) he was prejudiced. Smulls claims that fear of African–American males because they are “causally linked to crime” motivated the prosecutor to seek the death penalty. Smulls' evidence in support of these allegations consisted of a “Task Force Report on the Status of the African–American Male in Missouri” attached to his pleadings, which purportedly showed in capital cases a “glaring racial difference” that “results from the discretionary decisions of prosecutors.” This evidence fails to prove purposeful discrimination specific to his case. Morrow v. State, 21 S.W.3d at 825. Furthermore, where, as here, the facts of the case strongly support the existence of statutory aggravating factors, not to mention Smulls' extensive criminal history, the likely motivation for seeking the death penalty is the strength of the prosecution's case. See id.; State v. Brooks, 960 S.W.2d at 499–500. The record does not warrant an evidentiary hearing, much less a finding of ineffective assistance of counsel.

Smulls also takes issue with the motion court's refusal to allow interrogatories on this claim. Because the determination to deny the claim without an evidentiary hearing was properly made solely on “the motion and the files and records of the case,” discovery before the determination of which claims warrant an evidentiary hearing would be premature. See State v. Ferguson, 20 S.W.3d at 504. Discovery after denial of such a claim is unwarranted because the discovery is no longer “relevant to the subject matter involved in the pending action.” Id.

B. Dr. Hively's Testimony

Smulls claims his counsel erred in calling Dr. Wells Hively during penalty phase because Dr. Hively was not the author of Smulls' psychological report, which was prepared as evidence in mitigation. The expert who prepared the report was unavailable, and Dr. Hively, who worked with the expert on the case, was called as a replacement. Counsel cannot be faulted because she had little choice but to call another witness familiar with the report. In addition, trial counsel's testimony to the contrary notwithstanding, it is unlikely that Smulls suffered prejudice from counsel's choice to present a different expert than the one who prepared the report. Doctor Hively testified that his entire office, including himself, was involved in the preparation of the report, that he examined Smulls four times, and that his opinion was based upon those examinations as well as the results of psychological tests and police reports. The motion court's denial of this claim was not clearly erroneous. Smulls also alleges that instead of calling Dr. Hively, his counsel should have called a “comprehensive mental health expert.” Counsel is not ineffective for failing to shop around for additional experts. Lyons v. State, 39 S.W.3d at 41.

C. Penalty Phase Opening Statement

Smulls claims his counsel was ineffective for commenting, during opening statement in penalty phase, that Smulls could not find a job because of a disability and turned to a life of crime as an easy way out. Smulls' eleven prior felony convictions were admissible to impeach his credibility if he took the stand and admissible regardless as an aggravating factor in penalty phase. It is a common and proper defense strategy to mention convictions first in order to soften the blow. See Richardson v. State, 577 S.W.2d 653, 655 (Mo. banc 1979). Counsel was not ineffective in this regard.

D. Failure to Object to Instructions

Smulls claims his counsel was ineffective for failing to object to allegedly confusing punishment phase instructions and to present survey data on the accuracy of juror comprehension. Smulls concedes that this Court has recently rejected such a claim in State v. Deck, 994 S.W.2d 527, 542–43 (Mo. banc 1999). The claim is denied on that basis.

E. Voir Dire

Smulls claims his counsel was ineffective for failing to object when the trial court stated that, “theoretically” speaking, the defendant does not have the burden to prove that he should not be put to death. The record reflects an extensive dialogue with the juror in question, during which the trial court made it clear that the state bore the burden. Taken in context, and considering the person did not serve on the jury, the court's explanation did not misallocate the burden, and any claim the jury was tainted is speculative.

VI. Claims Denied on Direct Appeal

Smulls' motion also raises a number of ineffective assistance of counsel claims in which the underlying issues were denied by this court on direct appeal: (1) failure to prove the prosecutor's reasons for striking Ms. Sidney were pretextual, State v. Smulls, 935 S.W.2d at 14–16; (2) failure to move to quash the entire venire because a juror who had been stricken was permitted to stay and answer questions, id. at 19; (3) failure to present as a mitigating factor that the accomplice admitted to shooting the victims, id. at 20–21; (4) failing to move for a mistrial when the jury expressed concern for its safety in notes sent to the court during guilt phase deliberations, id. at 22. Counsel cannot be ineffective for failing to raise non-meritorious claims.

VII. Conclusion

The judgment is affirmed. HOLSTEIN, BENTON and PRICE, JJ., concur. WOLFF, J., concurs in separate opinion filed. LAURA DENVIR STITH, J., concurs in part and dissents in part in separate opinion filed. WHITE, J., concurs in opinion of LAURA DENVIR STITH, J.

WOLFF, Judge, concurring.

I concur in the principal opinion, but write separately only to raise the question of the wisdom of allowing each side nine peremptory challenges. Our system of peremptory challenges greatly encourages the racial discrimination in jury selection that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), attempted to end. Moreover, jury selection is susceptible to being manipulated by either prosecution or defense to the extent that the resulting jury does not appear to be drawn from a reasonable cross-section of the community. The road to Hell, it is said, is paved with good intentions. Batson was decided with the best of intentions—eliminating racial discrimination in the use of peremptory challenges. The present case, with its tormented history, shows that good intentions may not have led to Hades, but the road surely has been fraught with difficulty. Justice Thurgood Marshall predicted that the protections provided for in Batson would be largely illusory. Batson, 476 U.S. at 106, 106 S.Ct. 1712 (Marshall, concurring). He was right, of course, for reasons that lawyers may find uncomfortable to acknowledge.

Our discomfort arises from the essential truth about jury selection—it is based on generalizations about a venireperson's race, ethnicity, religion, sex, socioeconomic status, occupation, neighborhood, among other factors. Those who study jury behavior and teach trial advocacy tell us that certain types of people are preferred jurors depending on the particular type of case. For instance, it is commonly believed that plaintiffs in personal injury cases prefer jurors with ethnic backgrounds such as African–Americans, Hispanics, Irish, Jews, French, Italians, and other Mediterraneans. It is claimed that these people respond well to the emotional appeal in cases. 1 Irving Goldstein & Fred Lane, Goldstein Trial Technique, Ch 9, 86 (3d ed.2001). On the other hand, those of German, English, and Scandinavian descent are considered to be best for the defense in personal injury cases. Id. at Ch 9, 87. Practitioners in criminal cases make similar generalizations based on such factors. It is commonly believed, for instance, that African–American jurors view the death penalty less favorably than their white counterparts.FN1

FN1. The Gallup Poll last year noted, in reporting on public support for the death penalty: “Traditionally, non-whites have been much less supportive than whites, which is not surprising given the attention that has been paid to racial disparities in death sentencing. Roughly 70% of whites favor the death penalty in recent polls, while less than a majority of non-whites do.” Jeffrey M. Jones, Two–Thirds of Americans Support the Death Penalty, Gallup Poll News Service (March 2001) available at www.gallup.com. The point is not to say that these generalizations are evil or even inaccurate. But it suffices to say that racial profiling, while not exactly invented by trial lawyers, is alive and well in the jury selection process.

Historically the peremptory challenge allowed a lawyer to strike a certain number of prospective jurors without having to state a reason. The peremptory challenge in the United States is said to have been used by states to resist the desegregation forced upon them by the federal government. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, 64 U. Chi. L.Rev. 809, 849 (Summer 1997). The original purpose of the peremptory challenge in England was to balance the playing field against the Crown's unlimited ability to eliminate prospective jurors. However, Judge Hoffman argues, the peremptory challenge in America has no such noble purpose because of our racial history. Id. at 844. Once the civil rights movement resulted in elimination of Jim Crow laws enforcing segregation, Judge Hoffman contends, the peremptory challenge continued to serve as an efficient final racial filter to ensure all-white juries. Id. at 829. The case against peremptory challenges on racial grounds may be a bit overstated because, irrespective of its use in some jurisdictions to deny African–Americans full participation in the legal system, it remains well entrenched in jurisdictions that have no history of resistance to civil rights.

Perhaps we are comfortable with our generalizations. What if a trial lawyer infers from the social sciences that members of certain racial or ethnic or religious groups are, on average, more likely than not to be favorably disposed to a client's kind of cause? As a zealous advocate in an adversary system, the lawyer may, and arguably should, consider that characteristic in determining which potential jurors to strike. This is especially true where, as in Missouri, little trial time is given to allow the lawyers to question jurors extensively to determine their actual individual attitudes. The lawyers gain some minimal information about jurors' attitudes and perceptions in the voir dire examination, but usually not enough to counter the preconceived notions that the lawyer brings to the courtroom.

The peremptory challenge brings up a tension between two of a prosecuting attorney's ethical duties—the duty zealously to represent the client FN2 and the duty to seek justice, not merely to convict.FN3 If the enforcement of Batson is lax, then it is fairly easy for the prosecuting attorney to let the duty zealously to represent the client override the duty to seek justice. Preventing racial discrimination in jury selection is part of seeing that justice is done. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). But this part of justice may not be done where the prosecutor believes that justice requires conviction of the defendant, although this belief should not trump other ethical norms.

FN2. State v. Johnson, 702 S.W.2d 65, 69 (Mo. banc 1985). FN3. See generally Comment to Missouri Rule 4–3.8. (Rules of Professional Conduct).

When prosecutors use their peremptory challenges to strike African–Americans from the jury panel, a Batson challenge frequently results. The burden is placed upon a prosecutor to give a racially neutral reason for the strike. State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998). Accepted racially neutral reasons may include that a juror seemed “uncommunicative,” or “never cracked a smile.” Batson, 476 U.S. at 106, 106 S.Ct. 1712, (Marshall, concurring opinion). If such reasons are sufficient to justify the prosecutor's strikes, then the protection of Batson is illusory, just as Justice Marshall predicted. Id. Moreover, the question of race may be inextricably bound up in other attributes of a prospective juror, employment status, for example, that may justify the strike. Appellate decisions, to illustrate the example, have upheld exclusion of African–Americans because of employment as postal workers. See State v. Pepper, 855 S.W.2d 500, 503 (Mo.App.1993), and State v. Hudson, 822 S.W.2d 477, 481 (Mo.App.1991). I am not sure I understand what an attorney would have against postal workers, but it is a more or less race-neutral reason.

Examining this Court's death penalty cases from the state's three largest jurisdictions, the city of St. Louis, St. Louis County, and Jackson County since the death penalty was reinstated in 1977, the following are found: 12 of 26 cases in the City of St. Louis, seven of 17 cases in St. Louis County, and four of 12 cases in Jackson County contained Batson challenges. None of Batson challenges were successful on appeal. In examining all reported criminal appeals since 1995 that contain Batson challenges, it appears that there have been about 100 such cases. Of those concerning race, two were remanded to the trial court to conduct a proper Batson hearing.FN4 Only one reported case was found that was remanded for new trial because the appellate court sustained the Batson challenge.FN5 If Batson has any effect in this state, it is simply trial court law where even rumors of sustained Batson challenges are hard to come by.

FN4. State v. Nathan, 992 S.W.2d 908 (Mo.App.1999), and State v. Dunn, 889 S.W.2d 65 (Mo.App.1994). FN5. State v. Davis, 894 S.W.2d 703 (Mo.App.1995).

Large-scale empirical studies seem to be lacking as to the effect of Batson on racial discrimination. But studies examined to date show either no effect or only a very limited effect on the use of peremptory challenges to discriminate. David C. Baldus, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, U. Pa. J. Const. L., February, 2001, at 34. A study of capital murder cases tried by juries over a 16–year period in Philadelphia found that Batson had no effect on prosecutorial strikes against African–American venire members. Id. at 70. Apparently the most substantial effect of Batson in Missouri, I regret to say, has been to call into question the actions of the two trial judges in this case. In addition to the opinions in this case, see State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996) and Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). It is a matter of unfortunate irony that Batson apparently has had little or no effect on preventing racial discrimination in the use of peremptory challenges.

The only way to eliminate completely racial profiling in jury selection is to eliminate the peremptory challenge. Justice Marshall advocated this position in Batson, 476 U.S. at 107, 106 S.Ct. 1712, and Justice Goldberg hinted at elimination of the peremptory challenge in his dissent in Swain v. Alabama, 380 U.S. 202, 244, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Complete elimination of the peremptory challenge is a drastic remedy, and one that I am reluctant to espouse. Instead of complete elimination, the legislature might consider at least a drastic curtailment of the number of peremptory challenges. Section 494.480 allows nine peremptory challenges per side in death penalty cases. These strikes occur after the challenges for cause remove any prospective jurors who would not impose capital punishment. FN6 So, in each case there is a panel of citizens who have indicated that they will be able to impose the death penalty if the facts justify it. Then, from that “death penalty qualified” group, the state is permitted to strike nine of the prospective jurors for no reason. This may eliminate just about everyone who might even look like they could give a capital defendant the benefit of a reasonable doubt. Does the state really need to strike nine of its citizens in order for the state to receive a fair trial, even after a jury panel is “death penalty qualified?”

FN6. A prospective juror is removed for cause if his or her views would “prevent or substantially impair the performance of his duties as a juror ....” State v. Six, 805 S.W.2d 159, 166 (Mo. banc 1991), citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). A system that allows many peremptory challenges is open to manipulation by the defense as well. The popular press has many examples. See Dominick Dunne, Justice: Crimes, Trials and Punishments (2001). Perhaps, as Dunne reports, the prosecutor wants “twelve fascists,” and defense counsel wants “twelve bleeding-heart liberals or weirdos, with the assumption that they will arrive somewhere in between.” Id. at 15. Is the result really a fair trial before a jury drawn from a reasonable cross-section of the community?

In cases that may involve imprisonment, but not death, each side is given six peremptory challenges, and two per side where there would be no prison sentence. In a death penalty case, at least 18 citizens FN7 show up and undergo voir dire examination and are sent away for no stated reason. This is a waste of time. For a juror to discern that his or her race may have been a factor is to add insult to the waste-of-time injury. This is not a proper way for the state to treat its citizens, especially those who come when summoned for service. If we, as a democratic society, believe the jury system is essential, then we ought to foster respect for this service. See State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo banc 2001) (separate opinion of Wolff, J.).

FN7. The number is usually more than 18 because peremptory challenges are also allowed when alternate jurors are being selected. It is possible, but not likely, that some peremptory challenges will be unused.

We depend on the challenge for cause to remove prospective jurors who are biased or otherwise unsuitable for a particular case. The benefit of the peremptory strike is that it helps ensure a fair trial when the trial judge is wrong in overruling a challenge for cause. In light of the deference appropriately given to trial court rulings, a trial judge can be incorrect in overruling a challenge for cause without committing reversible error. But how many safety valves are needed for a fair trial? Nine or even six peremptory challenges seem wildly excessive. On challenges for cause, as in many other trial events, the correctness of trial court rulings is appropriately assumed. One or two peremptory challenges should be enough. If the number of peremptory challenges were reduced to one or two, juries in racially diverse counties would more likely be representative of the community. More importantly, such a move would drastically reduce the often subtle yet always insidious racial discrimination inherent in many peremptory challenges.

LAURA DENVIR STITH, Judge, concurring in part and dissenting in part.

I agree with the principal opinion's determination that Mr. Smulls has not shown that counsel was ineffective in failing to present gunshot residue evidence or further evidence of mitigating circumstances, or in advising Mr. Smulls not to testify. I also agree that he has not shown an entitlement to an evidentiary hearing on the post-conviction claims as to which no hearing was granted. I disagree with the principal opinion's determination whether to grant Mr. Smulls post-conviction relief due to the appearance of impropriety created by the comments of Judge Corrigan at the trial and following this Court's initial opinion in this case, State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996) ( Smulls I ). As set out below, whether or not Judge Corrigan was in fact biased, his comments themselves caused an appearance of impropriety. This should have led this Court to order post-conviction relief in Smulls I rather than remanding for a further hearing, for, as Smulls I itself noted, the standard for whether a judge should recuse himself or herself is not whether the judge is shown to be biased in fact, but whether, based on the judge's conduct or comments: a reasonable person would have factual grounds to find an appearance of impropriety and doubt the impartiality of the court. 935 S.W.2d at 17. FN1. Accord, State v. Jones, 979 S.W.2d 171, 177–78 (Mo. banc 1998); State v. Kinder, 942 S.W.2d 313, 322 (Mo. banc 1996); State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996); State v. Dodd, 944 S.W.2d 584, 586 (Mo.App. S.D.1997); Graham v. State, 11 S.W.3d 807, 813 (Mo.App. S.D.1999).

Judge Corrigan's comments have been set out at length above, and no purpose would be served by repeating them here. What can be said is that, assuming that Judge Corrigan's subjective intent in making the remarks was an innocuous one, his remarks nonetheless provide factual grounds on which a reasonable person could find the appearance of impropriety and doubt the impartiality of the judge. To suggest otherwise simply ignores the fact, as stated in Smulls I, that: It is not the judge to whom we should afford the benefit of the doubt. The rights and due process based expectations of the parties are the court's proper focus. Smulls I, 935 S.W.2d at 26. It also ignores the wisdom, amply demonstrated by the subsequent history of this very litigation, of strictly adhering to a standard of recusal based solely on the reasonable appearance of impropriety. That is why a “judicial statement—on the record or off—that raises a genuine doubt as to the judge's willingness to follow the law, provides a basis for recusal or, if the judge refuses to recuse, reversal on appeal.” State v. Kinder, 942 S.W.2d 313, 322 (Mo. banc 1996).

Applying these principles here, no one familiar with the continuing saga of this case could deny that the June 1996 decision in Smulls I, and the subsequent history of this case, have engendered great controversy. Immediately following the initial decision, members of the bar took conflicting positions as to whether the facts created an appearance of impropriety of Judge Corrigan and whether he was being treated fairly by this Court. Over the following three and one-half years, a new hearing was held before Judge O'Brien on the issues presented by Mr. Smulls' Rule 29.15 hearing, and the judge concluded that Judge Corrigan was not biased and Mr. Smulls was not entitled to post-conviction relief. On appeal, Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000) ( Smulls II ), did not reach the issue of Mr. Smulls' entitlement to post-conviction relief, or even directly address Judge Corrigan's alleged improper comments at the trial. Smulls II addressed issues raised by the very publicity that surrounded this Court's decision in Smulls I, to wit, whether allowing Judge O'Brien to preside over the Rule 29.15 hearing itself created an appearance of impropriety because of Judge Corrigan's public statements castigating members of this Court and stating that he had discussed Smulls I with all the judges of the circuit, including Judge O'Brien, and they had agreed with him that it was wrong.

This Court held in Smulls II that these conversations provided a basis on which “a reasonable person could doubt the impartiality of” Judge O'Brien. 10 S.W.3d at 504. The ensuing controversy among members of the bar and community confirmed that this was the case. While Judge O'Brien indicated that he could be impartial, and many in the community said they thought he could be impartial, and that they believed that Judge Corrigan himself was not biased and had not shown bias by his comments, others publicly disagreed. But, whether Judge O'Brien or Judge Corrigan were in fact impartial or believed themselves to be is not the issue. A judge cannot judge his own impartiality and the appearance of impropriety cannot be determined by a show of hands. The standard for recusal is whether the facts give reasonable people grounds for doubting the court's impartiality.

Now Mr. Smulls' appeal is before this Court yet a third time, some two years after the decision in Smulls II and five and one-half years after the decision in Smulls I. Yet, most of the principal opinion is again directed not to the issue of Mr. Smulls' guilt or punishment, but to the issues of (1) the propriety and appearance of propriety of Judge Corrigan; (2) the propriety and appearance of propriety of Judge O'Brien in presiding over a hearing into the propriety of his colleague's conduct; and (3) the propriety of the rulings of Judge Hartenbach in presiding over the hearing into the propriety of the conduct of Judge O'Brien in presiding over the hearing into the propriety of Judge Corrigan's conduct.

The route this case took to get here is more circuitous than the most complex tongue-twister. Whatever else this series of events serves to show, it demonstrates the wisdom of the teachings of prior cases that doubts as to the appearance of impropriety should be resolved in favor of recusal. Otherwise, as occurred here, the focus will become the conduct and character of the judge, whereas the focus should be fairness of the trial of the defendant. Due to this loss of focus, both the reputations of various judges and Mr. Smulls' right to a new trial have unfairly been left in doubt for over five years, and the fairness and impartiality of the Missouri judicial system has been repeatedly called into question. It is to avoid just this type of situation that recusal should be ordered where the facts raise even the appearance of impropriety in the eyes of a reasonable person. This Court should have directed in Smulls I that Mr. Smulls' Rule 29.15 motion be granted. I would so hold now, and remand so that a new trial can be held. This fact scenario simply should not be permitted to continue.FN2

FN2. I also disagree with the principal opinion's statement that in order to disqualify Judge O'Brien, Mr. Smulls was required to show that Judges O'Brien and Corrigan had a “special relationship.” While a special relationship would, of course, give a reasonable person “factual grounds to find an appearance of impropriety and doubt the impartiality of the court,” Smulls I, 935 S.W.2d at 17, so, too, would the presence of other facts that reasonably called into question the judge's impartiality. I believe the principal opinion really intends to espouse a narrower principle: that merely being a member of the same circuit as another judge is not a basis for recusal. To create doubt as to impartiality, there must be some “plus factor,” such as, but not limited to, a special relationship of the judges. With this narrower principle, I fully agree.

For the reasons set out above, I concur in part and dissent in part.

Smulls v. Roper, 535 F.3d 853 (8th Cir. Mo. 2008). (Federal Habeas)

HANSEN, Circuit Judge.

A Missouri jury found Herbert Smulls guilty of first degree murder, as well as other crimes, and he was sentenced to death. The Supreme Court of Missouri ultimately affirmed Smulls' convictions on direct appeal and denied his motions for postconviction relief. The district court FN1 denied Smulls' 28 U.S.C. § 2254 petition, and this court granted a certificate of appealability on Smulls' BatsonFN2—related claims. After a divided panel of this court affirmed in part and reversed and remanded in part, Smulls v. Roper, 467 F.3d 1108 (8th Cir.2006), we granted the State's petition for rehearing en banc and vacated the panel opinion. We now affirm the district court's denial of habeas relief.

FN1. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. FN2. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I.

On July 27, 1991, Smulls and Norman Brown robbed a jewelry store owned by Stephen and Florence Honickman. In the course of the robbery, Smulls shot Stephen and Florence; Stephen died from his wounds, and Florence sustained permanent injuries. Smulls was charged with first degree murder, first degree assault, two counts of first degree robbery, and two counts of armed criminal action. At his first trial, the jury found Smulls guilty of first degree robbery but failed to reach verdicts on the remaining counts. Upon retrial, the jury found Smulls guilty of the remaining counts.

During jury selection at Smulls' second trial, his defense counsel objected to the prosecutor's exercise of a peremptory challenge to remove Margaret Sidney from the jury. The defense moved to quash the jury and moved for a mistrial on the basis of a Batson violation. Counsel identified Ms. Sidney as the only black person left on the 30–person venire panel from which peremptory challenges were made and argued that the prosecutor's removal of Ms. Sidney left Smulls, who was black, to face an all-white jury. Counsel “fe[lt] that the state struck her in a racially discriminatory manner.” (Appellant's App. at 13.) The trial court asked the prosecutor to address the claim. The prosecutor recognized that Ms. Sidney was a black female and discussed his reasons for striking her from the panel. The prosecutor described Ms. Sidney's demeanor during his examination of the panel, particularly during the discussion of the potential death penalty, and he specifically recounted a glare on her face, an aversion of her eyes, and an irritated answer to one of his questions. He also discussed Ms. Sidney's occupation, which he described as a mail sorter for 5,000 people at Monsanto, and which, in his view, equated her with postal service workers. According to the prosecutor, he had negative experiences with postal workers who served as jurors in the past. He noted her general demeanor, which, in his discussion, included the fact that she wore a beret one day and a sequined cap the next. Finally, the prosecutor compared Ms. Sidney to another white juror, Ms. Dillard, whom he had struck because she was a postal worker with a confrontational attitude. Following the prosecutor's explanation for striking Ms. Sidney, the trial court overruled the request to quash the jury and denied the motion for a mistrial. Defense counsel then argued that the prosecutor's stated reasons were pretextual, addressing the various points made by the prosecutor and discussing several other venirepersons. The trial court, noting that it was ruling only on the Batson challenge to the strike of Ms. Sidney, again overruled the objection. Defense counsel then moved the court to disallow the strike of Ms. Sidney, to which the trial court responded, “Based upon what is before the Court that request will be denied.” ( Id. at 19.)

The next morning, defense counsel renewed the motion for a mistrial and the motion to quash the jury based on Batson, arguing “that the striking of Ms. Margaret Sidney the black female juror who was the only black remaining juror out of 30 we qualified, was struck on a racially discriminatory basis.” ( Id. at 22.) Defense counsel asked to supplement the record made the previous day, which the court allowed. The court allowed the prosecutor to respond and then denied the motion for a mistrial for the third time. Undeterred, defense counsel responded to the denial by stating, “Judge, I believe I stated on the record yesterday when I made my record that Ms. Sidney was the only black juror remaining out of the 30.” ( Id. at 26–27.) At this point, the trial judge's frustration became apparent.

THE COURT: You made that statement. MS. KRAFT: Okay. THE COURT: You see, I have a problem. I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eight persons are black. That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't. There were some dark complexioned people on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don't know what black means. Can somebody enlighten me of what black is? I don't know; I think of them as people.

I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit here and say to you that Ms. Sidney is not black. But I'm not going to make a judgment as to whether anybody else on the panel was, so in any event, I'm merely telling you that for the record. I'd rather not even discuss it on the record. But, in any event, I'm going to deny your motion for a mistrial on the basis stated. Are we ready to proceed? ( Id. at 27–28.)

Smulls was ultimately convicted by a jury containing no black jurors. On appeal, the Supreme Court of Missouri unanimously rejected Smulls' claim that the prosecutor violated Batson by improperly striking Ms. Sidney. State v. Smulls, 935 S.W.2d 9, 15–16 (Mo.1996) (en banc) (White, J.), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). Following numerous state postconviction proceedings concerning a motion to disqualify the state trial judge from presiding over the postconviction hearings, the Supreme Court of Missouri ultimately affirmed the denial of all postconviction relief. Smulls v. State, 71 S.W.3d 138 (Mo.2002) (en banc). Smulls filed a 28 U.S.C. § 2254 petition for habeas review, which was denied by the district court. We granted a certificate of appealability to review Smulls' Batson—related claims.

II.

“On an appeal from a district court's denial of a petition for writ of habeas corpus, we review its findings of fact for clear error and its conclusions of law de novo.” Chavez v. Weber, 497 F.3d 796, 801 (8th Cir.2007). Our review, as was the district court's, is strictly circumscribed by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a state prisoner's claim has been adjudicated on the merits in state court, a federal court “shall not ... grant[ ]” an application for a writ of habeas corpus unless the state courts' adjudication of the prisoner's claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In ruling on an application for a writ of habeas corpus, “a determination of a factual issue made by a State court shall be presumed to be correct,” unless rebutted “by clear and convincing evidence.” § 2254(e)(1).

AEDPA's substantial limitations on collateral review reflect Congress's concern for federalism. “A federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ( Miller–El I); see also Rice v. Collins, 546 U.S. 333, 344, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (Breyer, J., concurring) (“[C]onsiderations of federalism require federal habeas courts to show yet further deference to state-court judgments.”). The Supreme Court recently reiterated that AEDPA “create[d] an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007) (reversing Ninth Circuit's grant of habeas relief where the court “failed to respect the limited role ... prescribed by Congress” and the Court's precedent). With these restrictions in mind, we turn to Mr. Smulls' claims that he is entitled to habeas relief.

Peremptory strikes have long been a part of our jury trial system. Peremptory strikes date back to ancient Roman times and were eventually carried to this country when the colonists separated from England. See generally Roger Enriquez & John W. Clark III, The Social Psychology of Peremptory Challenges: An Examination of Latino Jurors, 13 Tex. Hisp. J.L. & Pol'y 25, 28–30 (2007) (discussing the history of peremptory challenges). The nature of a peremptory strike, which, by definition means “[n]ot requiring any shown cause; arbitrary,” Black's Law Dictionary 1157 (7th ed.1999), allows both the prosecutor and the defense counsel to remove a potential juror from the panel based entirely on his or her instinct or gut feeling that an individual would not be a favorable juror. While peremptory strikes are an important part of our jury system, see Batson, 476 U.S. at 91, 106 S.Ct. 1712 (noting that peremptory “challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury”); Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) (deeming peremptory strikes a necessary component of a litigant's right to a fair trial), their arbitrary nature has allowed prosecutors to use the strikes to purposely remove a venireperson from the jury solely on the basis of the venireperson's race. Race discrimination within the judicial process at any stage, including the selection of jurors, “raises serious questions” as to the fairness of the process itself. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). “Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality.” Id. Not only do racially motivated strikes violate the defendant's Constitutional right to equal protection, see Batson, 476 U.S. at 84–85, 106 S.Ct. 1712 (discussing the Court's century-old holding in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), that “the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded”), they violate the venireperson's own right to equal protection by “denying the excluded venireperson the honor and privilege of participating in our system of justice,” Edmonson, 500 U.S. at 619, 111 S.Ct. 2077 (holding that Batson applies to jury selection in private, civil litigation). The Court has engaged in “unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn.” Batson, 476 U.S. at 85, 106 S.Ct. 1712; see also id. at 85–86, 106 S.Ct. 1712 (discussing the Court's jurisprudence since Strauder); Powers v. Ohio, 499 U.S. 400, 404, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that a defendant may challenge a racially motivated strike of a venireperson not of the defendant's race based on the defendant's “right to be tried by a jury whose members are selected by nondiscriminatory criteria”).

Despite the important protections afforded defendants by Batson, a Batson challenge can be difficult to resolve because the Batson analysis requires a court to assess the prosecutor's subjective motivation for exercising a peremptory strike. See id. at 93–95, 106 S.Ct. 1712 (discussing the Court's equal protection jurisprudence concerning jury selection). Because a peremptory strike can be instinctive (indeed perhaps even subliminal) to begin with, it is difficult for a defendant to establish, as is his burden when challenging a strike as discriminatory, that the prosecutor had an unstated, impermissible, unconstitutional discriminatory motive for exercising the strike. See Rice, 546 U.S. at 343, 126 S.Ct. 969 (Breyer, J., concurring) (“How can trial judges second-guess an instinctive judgment the underlying basis for which may be a form of stereotyping invisible even to the prosecutor?”); Miller–El v. Dretke, 545 U.S. 231, 238, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ( Miller–El II ) (“The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected.”); Batson, 476 U.S. at 106, 106 S.Ct. 1712 (Marshall, J., concurring) (discussing the fact that a prosecutor may not even recognize his own subconscious racism).

These difficulties notwithstanding, peremptory challenges remain a significant part of our jury trial process, and the Supreme Court continues to stand by the Batson framework as the proper method to determine whether a prosecutor has engaged in purposeful unconstitutional discrimination in exercising peremptory challenges. Under Batson, a trial court must engage in a three-step inquiry. The trial court first determines whether the defendant has made a prima facie showing that a prosecutor's peremptory strike was based on race. Rice, 546 U.S. at 338, 126 S.Ct. 969. If the defendant satisfies the first step, the burden then shifts to the prosecutor to present a race-neutral explanation for striking the juror. The prosecutor's stated reason need not be “ ‘persuasive, or even plausible’ ” as long as it is not inherently discriminatory. Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)). The burden then shifts back to the defendant at the third step to shoulder his ultimate burden of establishing purposeful discrimination. The “final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor.” Id. (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769).

A. AEDPA's “Unreasonable Application of Clearly Established Federal Law” Requirement

Smulls first argues that the Missouri trial court made no findings concerning the validity of the prosecutor's claimed race-neutral reasons for the strike, and therefore the court unreasonably applied federal law. Smulls fails to direct us to any Supreme Court case holding that the Constitution requires a trial court to make specific fact-findings in reviewing a Batson challenge. See Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (“ ‘[C]learly established Federal law’ in § 2254(d)(1) ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.’ ”) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In fact, federal law has never required explicit fact-findings following a Batson challenge, especially where a prima facie case is acknowledged and the prosecution presents specific nondiscriminatory reasons on the record. See Miller–El I, 537 U.S. at 347, 123 S.Ct. 1029 (“We adhere to the proposition that a state court need not make detailed findings addressing all the evidence before it.”); see also McKinney v. Artuz, 326 F.3d 87, 100 (2d Cir.2003) (“Although reviewing courts might have preferred the trial court to provide express reasons for each credibility determination, no clearly established federal law required the trial court to do so.”). A trial court's ruling on a Batson challenge is itself a factual determination, and we have repeatedly upheld rulings made without additional reasoning. See U.S. Xpress Enters., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 814 (8th Cir.2003) (concluding that the trial court engaged in “a full Batson analysis” where the objector made a Batson challenge, the proponent of the strike offered a race-neutral explanation, both parties were allowed to argue their positions, and the trial court granted the motion without making any specific findings, implicitly finding the proponent's reasons to be racially motivated); see also Wainwright v. Witt, 469 U.S. 412, 430, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (upholding a state trial court's dismissal of a juror for cause and noting “that the judge was [not] required to announce for the record his conclusion that [the] juror ... was biased, or his reasoning” because the finding was evident from the record).

We do not read the Supreme Court's most recent case addressing Batson to hold otherwise. See Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). In Snyder, the Court refused to presume that the trial court credited the prosecutor's representation that he struck the challenged juror based on the juror's demeanor because the trial court had made no determination concerning the juror's demeanor. Id. at 1209. But, a number of factors led the Court to that conclusion. First, the trial court in Snyder did not state whether it based its ruling on the first proffered reason (claimed nervousness on the part of the juror), the second reason (other pressing time constraints—student teaching responsibilities), or on both, and the Court was unwilling to assume the trial court relied on the first reason when the Court found that the second reason did not stand up to scrutiny under the deferential standard. Id. at 1209, 1212. Notably, the Court applied the deferential standard to the second proffered reason, which it found lacking, even though the trial court made no findings concerning the second reason other than allowing the strike. Id. at 1209. Second, the Court rejected the second reason offered by the prosecutor, leaving the juror's alleged nervousness as the only potentially valid basis for the strike, and there was no evidence in the record that the prosecutor would have pre-emptively challenged the juror based on his nervousness alone. Id. at 1212. Third, the Court rejected the second reason for the strike because it was “highly speculative” and because the same reasoning would have applied with more force to specific white jurors, whom the prosecutor did not strike. Id. at 1211–12. Despite the reversal of the trial court in Snyder, the Court continues to “recognize[ ] that ... determinations of credibility and demeanor lie peculiarly within a trial judge's province,” and, “in the absence of exceptional circumstances, [the Court will] defer to the trial court.” Id. at 1208 (internal marks omitted). In our case, both proffered reasons withstand scrutiny, as discussed in more detail infra, such that we are not left to surmise whether one of the two reasons alone would support the strike as nondiscriminatory. There is no evidence here that the prosecutor's proffered reasons applied with greater force to white jurors who were not struck; in fact, the prosecutor used the same reasons—occupation and demeanor—to strike a white juror. In any event, Snyder was not clearly established law at the time of the state courts' rejection of Smulls' Batson claim and cannot provide the basis for habeas relief under § 2254(d)(1). See Williams, 529 U.S. at 412, 120 S.Ct. 1495.

In a related context involving the dismissal of jurors for cause who are “substantially impaired” in their ability to impose the death penalty, the Supreme Court recently explained that “there is no requirement in a case involving the Witherspoon–Witt rule that a state appellate court make particular reference to the excusal of each juror. It is the trial court's ruling that counts.” Uttecht, 127 S.Ct. at 2228 (internal citations omitted). Here, by denying the Batson challenge, the trial court implicitly found that the prosecution's proffered nondiscriminatory reasons were credible. No further fact-finding was required. The absence of additional findings is certainly not a misapplication of clearly established Supreme Court precedent as required for relief under § 2254(d)(1).

Nor does the trial court's failure to make explicit findings relieve this court of its obligation to view the state trial court's findings as presumptively correct FN3 or empower us to order the federal district court to reconstruct the record.FN4 Prior to AEDPA, the presumption of correctness was contained in § 2254(d), which listed eight exceptions to the presumption. See 28 U.S.C. § 2254(d) (1994), amended by Antiterrorism & Effective Death Penalty Act of 1996, Pub.L. No. 104–132, § 104(4), 110 Stat. 1214, 1219 (1996). AEDPA's amendments to § 2254 “jettisoned ... [the] situations which previously swept aside the presumption.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir.2001), cert. denied, 537 U.S. 883, 123 S.Ct. 106, 154 L.Ed.2d 141 (2002). “The presumption of correctness erected in its place at § 2254(e)(1), now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct.” Id.; see also Miller–El I, 537 U.S. at 358–59, 123 S.Ct. 1029 (Thomas, J., dissenting) (“ Section 2254(e)(1) does not, as its predecessor did, create exceptions to factual deference for procedural infirmities.... Section 2254(e)(1) simply cannot be read to contain an implied sliding scale of deference.”) (noting that the majority opinion does not appear to conflict with this view). Thus, regardless of the extent of the evidence considered by the state trial court, we may reject the trial court's factual findings only if those findings are proven incorrect “by clear and convincing evidence.” § 2254(e)(1); see also Hall v. Luebbers, 341 F.3d 706, 713 (8th Cir.2003) (“Each step of the Batson inquiry involves a factual determination entitled to a presumption of correctness unless overcome by clear and convincing evidence.”), cert. denied, 541 U.S. 996, 124 S.Ct. 2031, 158 L.Ed.2d 505 (2004). Our suggestions to federal trial judges that they are well advised to articulate their findings concerning the validity of the prosecutor's asserted race-neutral reasons, see, e.g., Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir.1992) (“We strongly suggest ... that trial judges [addressing a Batson challenge] make an on-the-record ruling stating their reasoning with appropriate references to the underlying facts as they determine them to be.”), are, of course, not binding on state court judges. We therefore will presume the trial court's fact-findings to be correct unless Smulls can present “clear and convincing evidence” otherwise. § 2254(e)(1).

FN3. Snyder, which was a direct appeal from the Supreme Court of Louisiana, does not change the respect owed to state court findings as mandated by AEDPA. On review of a direct appeal, the Supreme Court is not bound by the presumption of correctness required by § 2254(e)(1). FN4. As recently noted by the Supreme Court, such a remand, more than a decade later, would be futile. See Snyder, 128 S.Ct. at 1212 (“Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner's trial.”).

B. AEDPA's “Contrary to Clearly Established Federal Law” Requirement

Smulls next claims that the state supreme court's analysis of the Batson claim is contrary to clearly established federal law because the supreme court conflated the second and third steps of the Batson analysis. In reviewing state court proceedings for compliance with federal law, we consider the entirety of the state proceedings. Even if the trial court made a legal error, the error does not support habeas relief if the state appellate court correctly applied federal law. See Boyd v. Newland, 467 F.3d 1139, 1144 (9th Cir.2006) (giving deference to a California Court of Appeals decision that correctly applied Batson even though the trial court had applied a higher state court standard for making out a prima facie Batson claim), cert. denied, 550 U.S. 933, 127 S.Ct. 2249, 167 L.Ed.2d 1089 (2007); see also Elem v. Purkett, 64 F.3d 1195, 1200–01 (8th Cir.1995) (reviewing state appellate court findings on remand from the Supreme Court).

The Supreme Court of Missouri correctly articulated the Batson three-step standard, found that the prosecutor's proffered reasons concerning Ms. Sidney's occupation and demeanor were race neutral, and concluded that the trial court did not clearly err in overruling the Batson challenge. See Smulls, 935 S.W.2d at 14–15. Smulls focuses on the Supreme Court of Missouri's citation to Purkett in its discussion of the third Batson step to support his assertion that the court improperly conflated steps two and three. See id. at 15–16 (noting that “[a] legitimate reason for exercising peremptory challenges is not one ‘that makes sense’ but one ‘that does not deny equal protection,’ ” quoting Purkett, 514 U.S. at 769, 115 S.Ct. 1769, where the Court had explained why the Eighth Circuit had erred in holding the prosecution to too high of a burden at the second step). We do not construe the Supreme Court of Missouri's discussion or consideration of the issue as stopping at step two or inappropriately applying the step-two standard to step three. Step three requires balancing the defendant's prima facie case from step one against the race-neutral justifications offered in step two to determine whether the defendant has met his ultimate burden at step three of proving that the prosecutor's motives were in fact discriminatory. Although the Supreme Court of Missouri quoted from Purkett's discussion of the step-two analysis, the court concluded that even if it assumed that some of the prosecutor's reasons for the strike were nonsensical, that did not establish that the prosecutor's justifications were inherently pretextual, which is the defendant's burden at step three. See Rice, 546 U.S. at 338, 126 S.Ct. 969 (noting that a federal habeas court can grant a § 2254 petition based on Batson only if it was unreasonable for the state court to credit the prosecutor's race-neutral explanations); Bell–Bey v. Roper, 499 F.3d 752, 757–58 (8th Cir.2007) (“[T]he trial court's conclusion [that] the state attorney's nondiscriminatory rationale was persuasive (without further argument [from the defense] ) was not contrary to clearly established federal law.... [W]hen the trial court makes the necessary credibility determination, we defer to that ruling and there is ‘nothing left to review.’ ” (quoting Miller–El I, 537 U.S. at 339–40, 123 S.Ct. 1029)).

As we discussed above, the denial of a Batson challenge is itself a finding at the third step that the defendant failed to carry his burden of establishing that the strike was motivated by purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“In Batson, [the Supreme Court] explained that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact ....”) (plurality opinion); Messiah v. Duncan, 435 F.3d 186, 189 (2d Cir.2006) (holding that the trial court fulfills its “duty to rule” on the Batson third-step analysis “by expressing a clear intention to uphold or reject a strike after listening to the challenge, the race-neutral explanation and the arguments of the parties”); Hightower v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir.2006) (rejecting a claim that the state courts failed to apply the third Batson step and concluding that the trial court's rejection of the challenge was itself a step-three finding), cert. denied, 550 U.S. 952, 127 S.Ct. 2254, 167 L.Ed.2d 1123 (2007). By finding that the trial court did not clearly err in accepting the prosecutor's reasons, the Supreme Court of Missouri properly applied the third step of the Batson analysis.

In a related argument, Smulls claims that the trial court violated clearly established federal law by placing an undue burden on the defendant to establish the race of each venireperson and then avoiding the Batson challenge when the defense failed to meet the allegedly imposed burden. However, it is evident from the record that the state trial court was informed that Ms. Sidney was the only black venireperson when it first rejected the Batson challenge. The defense represented to the court that she was the only black person in the qualified group of 30 venirepersons when it first challenged the strike and again when it renewed the challenge the following morning, and at no time did the prosecution ever dispute that fact. The record shows that when the trial court ruled on the Batson objection, it did so based on “what was presented to this Court,” which included defense counsel's representation about the racial composition of the qualified venire. (Appellant's App. at 18.) In short, the trial court considered the challenge and the related circumstances and arguments, including its observations of Ms. Sidney, and made its ruling, a ruling it made four times in two days. To the extent Smulls claims that the trial court violated federal law by placing too high a burden on the defendant to establish the race of the other venirepersons, we respectfully reject the claim.

Further, the defense was allowed to respond to the prosecutor's proffered reasons and argue that the stated reasons were pretextual. While the trial court did initially deny the motion for a mistrial following the prosecutor's proffered race-neutral reasons for striking Ms. Sidney, the trial court immediately allowed the defense ample opportunity to make its argument that the proffered reasons were pretextual. The trial court did not limit the defense. Rather, it allowed the defense to make the record it chose to make, considered the arguments, and then denied the motion. The defense then asked that the peremptory strike be disallowed, which the trial court overruled. The following day, the defense again raised the Batson challenge. The trial court allowed both parties to address the issue and supplement the record. The trial court once again denied the challenge, but only after once again listening to the arguments made by counsel. Given this extensive record, the trial court cannot be criticized for failing to afford the defense an opportunity to respond, nor can it be fairly criticized for failing to consider the relevant circumstances raised by the attorneys.

C. AEDPA's “Unreasonable Determination of the Facts” Requirement

Smulls also claims that the Missouri courts' denial of his Batson claim involves an unreasonable determination of the facts based on the evidence contained in the record. The deference owed to the state trial court pursuant to § 2254(e)(1) includes deference to its credibility determinations. A federal court can only grant habeas relief if the state court's credibility determinations were objectively unreasonable based on the record. See Rice, 546 U.S. at 338–39, 126 S.Ct. 969. “Thus, a federal habeas court can only grant [a] petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge.” Id. at 338, 126 S.Ct. 969. “Moreover, ... our deference to trial court fact-finding is doubly great when considering Batson challenges because of the unique awareness [on the part of the trial court] of the totality of the circumstances surrounding voir dire.” Simmons v. Luebbers, 299 F.3d 929, 942 (8th Cir.2002) (internal marks omitted), cert. denied, 538 U.S. 923, 123 S.Ct. 1582, 155 L.Ed.2d 314 (2003); see also Uttecht, 127 S.Ct. at 2224 (noting the deference due a trial court in assessing “the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors”); Hightower v. Schofield, 365 F.3d 1008, 1034–35 (11th Cir.2004) (accepting the Georgia trial court's finding, without further elaboration, that the defendant failed to “establish purposeful discrimination” where the defendant provided no evidence to the trial court to discredit the prosecutor's proffered justifications, leaving the trial court free to accept the prosecutor's reasons at face value (internal marks and brackets omitted)), vacated by 545 U.S. 1124, 125 S.Ct. 2929, 162 L.Ed.2d 863 (2005), reinstated by 459 F.3d 1067, 1072 (11th Cir.2006).

Under AEDPA, it is not just the trial court's findings that are presumed to be correct. The presumption, codified pre-AEDPA in § 2254(d), applies to factual determinations made by the appellate court as well. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (subsequent history omitted). The statute “makes no distinction between the factual determinations of a state trial court and those of a state appellate court.” Id. at 546, 101 S.Ct. 764. As we noted in Jones v. Jones, 938 F.2d 838, 842–43 (8th Cir.1991), “ Sumner requires us to also consider whether the [appellate court] made any finding of fact regarding the prosecutor's peremptory challenges.” See also Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th Cir.2001) (noting that factual findings made by state appellate courts are entitled to the same presumption of correctness as findings of state trial courts). The Supreme Court of Missouri considered the circumstances shown by the trial court record and concluded that the prosecutor's reasons were the type typically found to be race neutral and that the trial court did not clearly err in denying the challenge. The supreme court also noted that the prosecutor's strike of Ms. Sidney was supported by his strike of Ms. Dillard, a similarly situated white venireperson struck on the basis of her occupation as a postal worker and her confrontational demeanor. In addition to the trial court's findings, these unanimous findings by the Supreme Court of Missouri are likewise entitled to substantial deference, and are presumed to be correct unless rebutted by clear and convincing evidence to the contrary.

Smulls points to evidence in the record that allegedly indicates that the prosecutor's proffered reasons were pretextual. Specifically, Smulls points out that Ms. Sidney worked as a manager in Monsanto Corporation's mail distribution department rather than as a postal service worker as allegedly characterized by the prosecutor. A close examination of the record reveals that Smulls overstates his case. For instance, the prosecutor recognized that Ms. Sidney worked for Monsanto when he first explained his reasons for striking her. He also noted that she worked in the mail department, which he equated with postal service workers who he asserted generally lack ambition. ( See Appellant's App. at 14–15 (“[Ms. Sidney] indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5,000 people.... It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mail carriers, letter carriers and people who work for the U.S. Post Office with great suspicion....”).) Thus, the prosecutor did not falsely state that Ms. Sidney was a postal service worker, but accurately recognized that she worked for Monsanto.

The prosecutor also compared Ms. Sidney to Ms. Dillard, a white juror whom he struck based on her mail-related occupation. The Supreme Court of Missouri found this comparison to support the trial court's determination that the prosecutor had a valid race-neutral justification for striking Ms. Sidney. Although Smulls points to differences between the two jurors, “similarly situated” for purposes of justifying the use of peremptory strikes does not require similarity in all respects. “[P]otential jurors are not products of a set of cookie cutters.” Miller–El II, 545 U.S. at 247 n. 6, 125 S.Ct. 2317 (“None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one.”). The two jurors are similar enough that we cannot say on this record that the prosecutor's stated reason—Ms. Sidney's occupation—was a pretext for racial discrimination.

In addition to Ms. Sidney's occupation, the prosecutor listed her demeanor, which he interpreted from a glare on her face and an irritated answer, as further justification for the strike. Smulls cites no Supreme Court case requiring that a prosecutor's justification based on demeanor must be supported by evidence on the record before the trial judge can accept the justification. In Rice, the trial court accepted the prosecutor's justification based on the challenged juror's demeanor (a rolling of the eyes in response to a question from the court) even though the court itself did not witness the negative demeanor. On appeal, the Ninth Circuit determined that the trial court unreasonably credited the prosecutor's justification for a strike where the claimed negative demeanor was not corroborated by the record. Collins v. Rice, 348 F.3d 1082, 1095–96 (9th Cir.2003). In reversing, the Supreme Court held that “the most generous reading [of the record] would suggest only that the trial court had reason to question the prosecutor's credibility regarding Juror 16's alleged improper demeanor.” Rice, 546 U.S. at 341, 126 S.Ct. 969. Where “[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, ... habeas review ... does not suffice to supersede the trial court's credibility determination.” Id. at 341–42, 126 S.Ct. 969.

Smulls also claims that the prosecutor lied when he said that he had previous problems with postal service workers serving on juries, when in fact a postal service worker in the case he specifically referred to voted to convict, even though the case ended in a hung jury. Regardless of whether the prosecutor lied or instead was merely mistaken about the postal service worker's actions in the specific prior case to which he referred, it was up to the trial court to judge his credibility and determine whether to accept his proffered reasons for striking Ms. Sidney. While this discrepancy disclosed by the later established record may give a reviewing court reason to question the prosecutor's justifications, it does not compel such a conclusion. “[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike.” Miller–El I, 537 U.S. at 338–39, 123 S.Ct. 1029. Typically, the decisive question is whether the judge should believe the prosecutor's race-neutral explanations. There is seldom much evidence on the issue, “and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge's province.’ ” Id. at 339, 123 S.Ct. 1029 (quoting Witt, 469 U.S. at 428, 105 S.Ct. 844).

From the perspective of the deference given to the state trial court in assessing the prosecutor's credibility, this case is indistinguishable from Rice and Hernandez. In Hernandez,FN5 the prosecutor said he struck Spanish-speaking veniremembers because an interpreter would be used at trial, and he was afraid that Spanish-speaking jurors would not defer to the interpreter's translations. 500 U.S. at 356, 111 S.Ct. 1859. The strikes resulted in the removal of several Latinos from the jury of a Latino defendant. Although the defendant argued that the prosecutor's reasons were merely an excuse for striking Latinos, the Supreme Court refused to overturn the state trial court's acceptance of the prosecutor's justification for the strikes or its ultimate determination that the prosecutor's strikes were not racially motivated. Id. at 369, 111 S.Ct. 1859 (“[W]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” (internal marks omitted)). FN5. Hernandez was a direct criminal review of the New York Court of Appeals' rejection of the defendant's Batson claim. 500 U.S. at 355, 111 S.Ct. 1859. The respect owed to state court findings in the habeas context is greater than the deference owed them in a direct criminal appeal. Cf. Miller–El I, 537 U.S. at 359 n. 4, 123 S.Ct. 1029 (Thomas, J., dissenting) (“ Hernandez's clear-error standard is less demanding of a criminal defendant than § 2254(e)(1) is of a habeas applicant.”).

In Rice, the Ninth Circuit determined that a state court clearly erred in accepting the prosecutor's race-neutral justifications, in part because the prosecutor's reliance on the juror's young age was contradicted by the record, which established that one of the stricken jurors was a grandmother, and also because the prosecutor originally relied on gender, an impermissible basis in itself. See 348 F.3d at 1094–95. Despite these misgivings about whether the prosecutor had a race-based motive for striking the jurors, the Supreme Court reversed the Ninth Circuit's rejection of the trial court's credibility assessment. “Reasonable minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.” Rice, 546 U.S. at 341–42, 126 S.Ct. 969. The same is true here. While discrepancies in the record may raise a question about the prosecutor's motive, they are not so overwhelming in this case that they “leave us with a definite and firm conviction that a mistake has been committed.” Hernandez, 500 U.S. at 370, 111 S.Ct. 1859 (plurality opinion) (internal marks omitted). The state trial court's credibility determination concerning the prosecutor's stated reasons must stand on habeas review.

Smulls argues that the fact that the prosecution struck the only black juror establishes that the prosecutor's stated reasons were pretextual. That fact alone, however, when considered together with the record as a whole, does not provide the clear and convincing evidence necessary to rebut the presumption of correctness afforded to the state courts' determinations, particularly the state supreme court's conclusion that the prosecution's strike was race neutral. Cf. Miller–El II, 545 U.S. at 262–66, 125 S.Ct. 2317 (holding that the state court's acceptance of the prosecutor's explanation for striking ten of the eleven qualified black venirepersons was shown to be erroneous by clear and convincing evidence, including the prosecution's use of the “jury shuffle,” disparate venire questions posed to black and white jurors, comparison of similarly situated black and white jurors, and the admitted practice of the Dallas County Prosecutor's Office of removing minorities from juries). This case contains nowhere near the strong circumstantial evidence present in Miller–El II that compelled the Supreme Court to conclude that the trial court made an unreasonable determination of the facts when it upheld the ten peremptory strikes.

The purpose of Batson and its progeny is to insure that trial attorneys do not strike prospective jurors for unconstitutional reasons. The state trial court's ill-advised comments made on the second day do not make the prosecutor's proffered reasons any less race neutral, and they have no bearing on whether those reasons were asserted in good faith. Cf. id. at 252, 125 S.Ct. 2317 (noting that it is the prosecutor's actual reason for the strike that is relevant in a Batson challenge, and the fact that the Court of Appeals could come up with a substitute reason to justify the strikes “does nothing to satisfy the prosecutor[']s burden of stating a racially neutral explanation for [his] own actions.” (emphasis added)). We note that the prosecutor never wavered from the initial reasons he presented to the trial court. From the first time he was asked to justify the strike of Ms. Sidney, the prosecutor stated that he struck Ms. Sidney based on her occupation and her demeanor, reasons he also used to strike a white juror. The record supports the trial court's and the Supreme Court of Missouri's acceptance of these reasons, Smulls has failed to present clear and convincing evidence to the contrary, and the trial court's regrettable subsequent statements do not change that fact.

In summary, the state courts' Batson ruling was not contrary to and did not involve an unreasonable application of clearly established Supreme Court precedent, nor was it based on an unreasonable determination of the facts in light of the evidence presented to the state courts. We are not permitted to grant habeas relief to a state prisoner because we might have ruled differently on the Batson objection, nor do we sit as a court of initial review over state trial judges. Applying AEDPA's restrictive review provisions (both as to the law applicable and as to the facts found by the state courts), the district court correctly denied Smulls' § 2254 petition based on the Batson challenge. As for Smulls' Batson—related ineffective assistance of counsel claims, the original panel unanimously agreed that those claims were without merit, and we reinstate the panel opinion to the extent that it affirmed the dismissal of those claims. See Smulls, 467 F.3d at 1116 n. 2.

III.

The district court's judgment denying Smulls' § 2254 petition is affirmed.

BYE, Circuit Judge, with whom SMITH, Circuit Judge, joins, concurring in part and dissenting in part.

The deferential standard of review called for by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA) neither requires nor permits us to sacrifice fidelity to constitutional principles at the altar of federalism. Today the majority eschews this bedrock principle and deems the state trial court's flagrant disregard of Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), constitutionally sound. In so doing, the court places its imprimatur upon a constitutionally flawed process which will ultimately lead to Herbert Smulls's death. Because I cannot condone the actions of the Missouri courts, I respectfully dissent from the decision affirming the denial of Smulls's Batson challenge. I concur in the majority's denial of his claim of ineffective assistance of counsel.

I

During jury selection at Smulls's trial, defense counsel objected to the prosecutor's exercise of a peremptory challenge to remove Margaret Sidney from the jury. Counsel identified Sidney as African–American and argued the prosecutor's challenge violated Batson. The prosecutor offered the following explanation for the challenge:

Judge, I made nine strikes. I did strike the juror Ms. Sidney who, I guess, for the record was a black female. My reasons for striking Ms. Sidney are based both upon what I observed during our voir dire and based upon my experience in trying criminal lawsuits, which has exceeded 50 cases in this courthouse including several cases before this Court in the nine years that I have been a prosecuting attorney. My concerns with Ms. Sidney began yesterday. Ms. Sidney was very silent during all of the questioning. I observed at one point during my questioning concerning the death penalty a glare on her face as I was questioning that area. She was seated in the back row, I believe, yesterday. When I looked directly at her and asked that last row a question, she averted her eyes and wouldn't answer my question and wouldn't look at me. That made me very nervous. The only response I was able to get out of Ms. Sidney today was when I asked her about her occupation. At first she responded with what I though [sic] was a very irritated answer. She indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian. It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mail carriers, letter carriers and people who work for the U.S. Post Office with great suspicion in that they have generally—in my experience in many of the trials that I've had—are very disgruntled, unhappy people with the system and make every effort to strike back. In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case. I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion. When she glared at me and just her general attitude, which included her outfit—which yesterday, I believe, included a beret and today was a ball cap with sequins on it, I just felt that she wouldn't be a good states [sic] juror. Certainly, not a strong juror in the consideration of death, should we get to that part of the trial. And also I would point out for the Court that I struck juror number eight, Ms. Dillard. I struck her for the very same reason in that she is a letter carrier and works delivering mail. And I though [sic] her attitude was also confrontational. And I did not feel that her answers were ones that would give rise to me believing she would be a strong states [sic] juror. Ms. Dillard, I would point out, is a white female. And I struck her for virtually the same reasons. It's been my experience that when I left postal workers on who seem to have an attitude, based on my interpretation, that I've had bad results. And that's why I struck her. Appellant's App. at 14–16.

Without permitting any response from Smulls's lawyer, the trial court overruled the Batson challenge. Defense counsel persisted, however, and argued: First of all, I've been a trial attorney as long as he has, trying as many cases as he has and I didn't detect any type of attitude from Ms. Sidney. Secondly, he said she remained silent during his questioning during the death qualification. He didn't ask her a direct question. Numerous jurors remained silent during his death question because he didn't ask them direct questions. Ms. Beeson. He didn't ask Ms. Uhlmansiek questions although he did strike her. Ms. Linn, who is a white female, she remained totally silent. I'm the only one who talked to her at all other than Mr. Copper asking her what municipality she lived in, but he did not strike her. So numerous jurors and the record will reflect that, remained silent during Mr. Waldemer's questioning. Once again today when he asked her about her occupation I did not detect any kind of animosity on her part. I think the clothing reasons are clearly pretextural [sic]. I think that there is a case where there was a juror struck on the basis of looking like what the prosecutor called a ‘due debt.’ And the Court found that to be pretextural [sic] and sent it back. That occurred in the City of St. Louis, but I don't have the name of the case. With regard to her being a postal worker, Mr. Waldemer has mentioned that they're at the bottom of the employment rung. I think a lot of postal workers make more money, because they're federal employees, than a lot of people who come in here for jury duty. He said he struck Ms. Dillard because she was a postal worker. She also indicated she knew the victim in this case, Florence Honickman. And to be perfectly honest, I would think that the state might have concerns that she wouldn't like Mrs. Honickman based on Mrs. Honickman's demeanor and based on comments that Mr. Waldemer made about Mrs. Honickman. So that could have very well been part of the reason for striking Ms. Dillard, other than her being a postal employee. So I feel that his reasons were pretextural [sic]. Id. at 16–18.

In a decision shorn of findings articulating any reasoned basis, the trial court overruled the Batson challenge. The following morning, Smulls's attorney renewed the Batson challenge and the following colloquy occurred: MS. KRAFT: Judge, I believe I stated on the record yesterday when I made my record that Ms. Sidney was the only black juror remaining out of the 30. THE COURT: You made that statement. MS. KRAFT: Okay. THE COURT: You see, I have a problem. I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eight persons are black. That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't. There were some dark complexioned people on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don't know what black means. Can somebody enlighten me of what black is? I don't know; I think of them as people. I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit here and say to you that Ms. Sidney is not black. But I'm not going to make a judgment as to whether anybody else on the panel was, so in any event, I'm merely telling you that for the record. I'd rather not even discuss it on the record. But, in any event, I'm going to deny your motion for a mistrial on the basis stated. Are we ready to proceed? Id. at 26–28.

On appeal, the Missouri Supreme Court, without commenting on the absence of findings to support the trial court's decision, upheld the denial of the Batson challenge. The court concluded the trial court did not clearly err because “[r]easons such as these have been found to support a ruling that a trial court did not clearly err[,]” and “[e]ven assuming the prosecutor's reasons for challenging mail sorters and postal workers are non-sensical, this does not establish the reasons are inherently pretextual.” State v. Smulls, 935 S.W.2d 9, 15 (Mo.1996) (en banc).

II

As the majority correctly notes, our review of Smulls's claims is governed by AEDPA, and we may not grant a writ of habeas corpus with respect to any issue decided by the Missouri courts unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1), (2). The majority also correctly identifies Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as clearly established federal precedent. I part company, however, with the majority's application of these salutary precepts to the issues of this case. The Equal Protection Clause of the United States Constitution prohibits using peremptory challenges to exclude jurors on the basis of race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. To prove purposeful discrimination in the use of a peremptory challenge, a defendant must first make a prima facie case of racial discrimination. If such a showing is made, the state must suggest a race-neutral explanation for the strike and if a race-neutral explanation is offered, the trial court must decide whether the party objecting to the strike has proved purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); United States v. Jones, 245 F.3d 990, 992 (8th Cir.2001).

Smulls argues the prosecutor's stated reasons were pretextual because they were contrary to or unsupported by the record. He claims the prosecutor's characterization of Sidney as a “mail sorter” or “mail carrier” was erroneous because the record shows Sidney was a member of management at Monsanto, and, among other duties, supervised employees responsible for sorting and distributing mail. Additionally, Smulls argues the prosecutor's claim that a previous jury had been hung by a postal employee is factually inaccurate. FN6. The state concedes the prosecutor's claim was inaccurate. Both the trial court and the Missouri Supreme Court failed to analyze these factual disputes on the record. The district court took note of the lack of findings but concluded the prosecutor was aware of Sidney's actual job description and, even though he was mistaken about his earlier trial, believed a postal worker voted against conviction. Therefore, the district court concluded the Missouri courts' application of federal law was not unreasonable.

Smulls also argues the district court's rejection of his Batson challenge was erroneous because the trial court failed to make any factual findings to support the prosecutor's claim Sidney “glared” at him or acted “irritated” by the questioning. According to Smulls, defense counsel disputed the prosecutor's alleged observations and the trial court should have resolved the dispute on the record. Smulls also argues the side-by-side comparison of Sidney and venireperson Dillard was improper because Dillard knew the victim and was, therefore, not similarly situated. Once again, neither the trial court nor the Missouri Supreme Court chose to address these arguments on the record. The district court noted the lack of findings but rejected the arguments because defense counsel's disagreement “neither confirms nor denies that Ms. Sidney had a poor demeanor.” The district court concluded the barren record did not make the trial court's decision or the Missouri Supreme Court's affirmance unreasonable. I disagree.

I am dismayed at the perfunctory and cavalier manner in which the trial court dismissed Smulls's Batson challenge. “In deciding whether the defendant has made the requisite [prima facie] showing, the trial court should consider all relevant circumstances.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. We have emphasized the need to “make[ ] detailed findings on the record in support of a ruling on a peremptory challenge under Batson.” Moran v. Clarke, 443 F.3d 646, 653 (8th Cir.2006) (citing U.S. Xpress Enter., Inc., v. J.B. Hunt Transp., Inc., 320 F.3d 809, 814 (8th Cir.2003)). Such a view is entirely consistent with clearly established Supreme Court precedent stressing the importance for trial courts to carefully consider all evidence bearing on the issue. Batson, 476 U.S. at 96, 106 S.Ct. 1712. Further, as to the issue of discriminatory intent, “ Batson ... requires the judge to assess the plausibility of [the prosecutor's] reason in light of all evidence with a bearing on it.” Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331–32, 162 L.Ed.2d 196 (2005) (citation omitted). “In deciding if the defendant has carried his burden of persuasion, a court must undertake a ‘sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ ” Batson, 476 U.S. at 93, 106 S.Ct. 1712 (quoting Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). The majority's invocation of AEDPA's deferential standard of review does not alter the fact that nothing of the sort occurred in this instance. Because the trial record is bereft of reasoning, any meaningful review by our court is impossible.

Any doubt about the impact the failure to make findings has on our ability to conduct meaningful appellate review is confirmed by the Supreme Court's recent decision in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). There the Court refused to “presume that the trial judge credited the prosecutor's [asserted reasons for striking a juror]” because no record findings had been made. Id. at 1209. The majority's attempt to blunt the effect of Snyder is singularly unpersuasive. It argues Snyder is distinguishable because the prosecutor offered two reasons for striking a juror and the record did not reveal whether the trial court credited one, the other, or a combination of both. The distinction is irrelevant. Snyder teaches that an appellate court “cannot presume” a trial court correctly analyzed a Batson challenge when it is impossible to divine the court's reasoning. Id. In Snyder, the prosecutor offered two reasons for striking the juror—nervousness and pressing time constraints, id. at 1208, and the trial court rejected a Batson challenge without explanation, id. at 1209. The Supreme Court concluded it was unable to conduct any meaningful review of the first proffered reason (nervousness) because “the record does not show that the trial judge actually made a determination concerning [the juror's] demeanor.” Id. at 1209. Unlike today's decision, the Court recognized that a paucity of findings by the trial court made judicial review impossible, and refused to engage in the perverse reasoning enshrined by today's decision which concludes an unreasoned, unexplained denial implies a deliberative process.

The majority attempts to avoid Snyder by arguing it need not decide in this case what reasons the trial court credited because all would justify the challenge. This argument ignores Snyder. The issue is not whether the proffered reason, if verified, would withstand a Batson challenge. Indeed, had the Court been able to confirm the juror in Snyder appeared nervous, the trial court's denial of the challenge would likely have been affirmed. Rather, the inquiry is whether the trial court found the proffered reasons had a basis in fact. If an otherwise adequate reason has no factual basis, the strike is pretextual. The record here reflects the competing views offered by the prosecution and defense but is of no assistance in determining which was factually correct. In adhering to these principles, I refuse to ignore the lack of findings and the trial court's stubborn refusal to apply Batson.

Finally, the majority brushes aside Snyder by finding it was not clearly established law at the time of the state courts' decisions. Nothing in Snyder, however, suggests the Court intended to establish new standards for reviewing Batson challenges. Thus, Snyder changed nothing; it simply recognizes the unremarkable principle that an appellate court cannot review a decision or findings a trial court never made.

Here the record conclusively establishes the trial court refused to make findings and engage in the evaluative process anticipated by Batson and its progeny. Initially, the court denied the challenge without affording defense counsel an opportunity to rebut the racially-neutral reasons offered by the prosecutor. Later, in unequivocal language, the court refused to consider the racial composition of the jury pool, issuing a direct challenge to any appellate court possessed of the temerity to suggest it should. Finally, the dearth of reasoning reflected in the trial court's decision leaves nothing to review. See Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir.2004) (‘[S]ome engagement with the evidence considered is necessary as part of step three of the Batson inquiry,’ and requires ‘more than a terse, abrupt comment that the prosecutor has satisfied Batson.’ ) (quoting Riley v. Taylor, 277 F.3d 261, 290–91 (3d Cir.2001) (en banc)); Barnes v. Anderson, 202 F.3d 150, 156 (2d Cir.1999) (ordering a new trial where the trial court denied a Batson challenge “without explicit adjudication of the credibility of the non-movant's race-neutral explanations for the challenged strikes.”); and United States v. Hill, 146 F.3d 337, 342 (6th Cir.1998) (remanding where “the record ... indicates nothing about the district court's thought processes ... apart from its abrupt conclusion ... that the prosecutor's asserted justification outweighed [the defendant's] showing under the totality of the circumstances.”). For these reasons, I would reverse the district court's denial of habeas relief.

My disapproval of today's decision is not based solely upon what the trial court failed to say on the record. Rather, I would also reverse because the trial court expressly refused to recognize and assess all relevant circumstances as required by clearly established federal law. When defense counsel attempted to establish for the record Sidney was the only black juror remaining in the jury pool, the trial court inexplicably refused to acknowledge or consider the racial composition of the jury pool. “I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anyone is black or that only one person or four persons or eight persons are black.” Instead of considering the composition of the jury pool, as mandated by Supreme Court precedent, the trial court imposed upon the defendant an unprecedented, if not impossible, burden:

That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't. Appellant's App. at 27.

I fail to comprehend how a trial court, faced with a Batson challenge, can purport to fulfill its obligation to properly evaluate the merits of such a claim without taking the race of prospective jurors into account. Further, a trial court may not avoid Batson by demanding the proponent of the challenge meet a burden of proof which finds no support in Supreme Court precedent. The trial court stated, in unmistakable language, it would not analyze Smulls's Batson challenge and dared any appellate court to hold it accountable. Remarkably, the majority shrinks from the challenge, concluding the trial court's clearly expressed contempt for constitutional principles proves it found the prosecutor's reasons credible. The evidence is unshakable—the trial court abdicated its responsibilities under Batson and I find no comfort in the majority's difficult reasoning. I will not align myself with a view that brushes aside the repugnant treatment of Smulls's Batson challenge and excuses the trial court's conduct and comments as justified, albeit “ill-advised,” expressions of “frustration.”

The trial court's actions and comments are indicative of a deeper problem. The trial court's initial failure to afford defense counsel an opportunity to respond to the prosecutor's racially-neutral reasons, the complete lack of findings, and the trial court's refusal to consider the race of prospective jurors absent “direct evidence,” combine to demonstrate the court was openly hostile towards the Batson challenge and unwilling to engage in the sensitive inquiry into circumstantial and direct evidence as required. See U.S. Xpress Enter., Inc., 320 F.3d at 814 n. 4 (noting under certain circumstances the “lack of specificity in a trial court record to demonstrate compliance with the Batson analysis may require remand for further findings.”). Thus, our court is not constrained by the normal presumption of correctness in favor of the trial court. Nor must we overlook the Missouri Supreme Court's resort to judicial alchemy in transforming the trial court's refusal to consider the claim into a reasoned basis for affirming. Today's decision incorrectly affirms the state's privation of Smulls's constitutional rights and renders illusory the already tenuous protections afforded under Batson.

III

Because the trial court refused to consider all relevant circumstances as required by clearly established federal law, its unreasoned and unexplained decision cannot be accorded the normal presumption of correctness. Moreover, the Missouri Supreme Court's conclusion the trial court acted properly was an unreasonable application of clearly established federal precedent. To hold otherwise renders our role a sham and I refuse to accept an interpretation of appellate review which relegates us to the role of a legal rubber stamp. Therefore, I respectfully dissent and would reverse the district court's judgment denying Smulls's petition for habeas corpus.