                                      No. 96-1321


William K. Murray,                               *
                                                 *
      Appellant,                                 *
                                                 * Appeal from the United States
          v.        *                            District Court for the Eastern
                                                 * District of Missouri.
Michael Groose and Jeremiah W.                   *
(Jay) Nixon,                                     *
                                                 *
      Appellees.                                 *




                    Submitted:      November 19, 1996

                           Filed:    February 5, 1997


Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     William   K.       Murray   appeals   the    district   court's1 denial   of   his
petition for writ of habeas corpus.             We affirm.


                                           I.
     In early 1987, a jury convicted William K. Murray on two counts of
first-degree murder and sentenced him to two consecutive life sentences
without parole.     Murray filed a post-conviction motion pursuant to Mo. R.
Crim. P. 29.15 (in which he alleged twenty grounds of trial error), a
direct appeal of his conviction




      1
      The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.

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(in which he raised five grounds of error), and an appeal from the denial
of his Mo. R. Crim. P. 29.15 motion.         In a combined proceeding, the
Missouri Court of Appeals affirmed the trial court's judgments in all
respects.    Murray also filed a motion to recall the mandate, in which he
argued that his appellate counsel in the Missouri Court of Appeals was
ineffective.    The appellate court denied the motion.


     Murray then filed the instant petition for federal habeas relief
pursuant to 28 U.S.C. § 2254(a), in which he alleged eight grounds for
relief.     The district court, adopting the report and recommendation of a
magistrate judge, denied the petition.      Murray now appeals the denial of
his petition on all of the grounds that he originally asserted, among them
instructional errors, Batson errors, and evidentiary errors.


                                      II.
     Murray first contends that the district court erred in ruling that
three of his claims were procedurally barred.      Murray neglected to raise
his claim that the trial court failed to instruct the jury on a lesser-
included offense in his Mo. R. Crim. P. 29.15 motion and his consolidated
appeal, but he did raise this claim in his motion to recall the mandate.
A motion to recall the mandate, however, is not the proper way to raise
allegations of instructional error.    Williams v. Wyrick, 763 F.2d 363, 365
(8th Cir. 1985) (per curiam); State v. Thompson, 659 S.W.2d 766, 769 (Mo.
1983) (en banc).    Although in his Mo. R. Crim. P. 29.15 motion Murray did
raise both his claim that the trial court improperly instructed the jury
on the reasonable doubt standard and his claim that the trial court erred
in denying his motion for a directed verdict, he neglected to raise these
claims in his appeal from the denial of that motion.      Because Murray has
failed to preserve these allegations, he has procedurally defaulted them.
See Boyd v. Groose, 4 F.3d 669, 671




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(8th Cir. 1993).    Murray has failed, moreover, to make anything more than
conclusory allegations of cause and prejudice or actual innocence in his
effort to avoid the procedural bar.    Sawyer v. Whitley, 505 U.S. 333, 338-
39 (1992).     The district court therefore correctly concluded that these
three claims were barred.


     Murray next contests, under Batson v. Kentucky, 476 U.S. 79 (1986),
the district court's resolution of his challenge to the racial composition
of the jury that convicted him.     Murray argues that the trial court used
the wrong standard of review to assess his Batson objections and that the
court's finding of no discrimination was clearly erroneous.          After a
careful review of the transcript, we reject both contentions.


     Whether the trial court used the wrong standard of review to assess
Murray's Batson objections is a question of law which we review de novo.
Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996).        Under our Batson
jurisprudence, the appropriate question is not whether race was the sole
factor motivating a prosecutor's peremptory strike but, rather, whether
race caused the prosecutor to make a challenged strike.     United States v.
Darden, 70 F.3d 1507, 1531 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449,
2567 (1996).    We often frame the question as one of "but-for" causation,
that is, we ask whether the prosecutor would have kept a particular juror
but for his race.   Id.   Murray argues that the trial court's statement that
the "strikes were not made on purely racial grounds only" demonstrates that
it did not apply the appropriate "but-for" test.     Had the trial court not
clarified this statement, we might well be inclined to agree.         In its
ruling on Murray's Mo. R. Crim. P. 29.15 motion, however, the trial court
stated   that its prior statement was "in essence" a finding of "no
discrimination."    This can only mean that the trial court found as a fact
that race did not enter into the prosecutor's decisions to strike members
of the venire or, perhaps, that the prosecutor would




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have made the same decisions whether or not he took prospective jurors'
race into account.    Either way, the trial court committed no legal error.
We are therefore satisfied that the trial court applied the correct
standard to Murray's Batson objections.


     Murray also argues that the state's proffered reasons for striking
African-American jurors were pretextual.          The existence of pretext is a
question of fact, Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995) (per
curiam), and a finding with respect to it may be set aside only if it is
not fairly supported by the record, id.              In the instant case, the
prosecutor tendered specific, plausible, race-neutral explanations for his
peremptory strikes of seven African-American members of the venire.                He
stated that he struck three of them because they were "weak death-penalty
jurors," two because they had relatives who had been charged with or
convicted of crimes and he felt that they would be "defendant's jurors,"
one because he stated that he "did not like capital punishment" and had a
cousin in the penitentiary, and one because she stated during voir dire
that she did not like prosecutors.           Although the burden of persuasion
rested with Murray at all times, id., he did not attempt to persuade the
court that the state's proffered reasons were pretextual.            The voir dire
transcript amply supports the prosecutor's reasoning, and under these
circumstances,   we   cannot   say   that   the   trial   court's   finding   of   no
discrimination is unsupported by the record.


     Murray also asserts that he was denied the effective assistance of
counsel because his trial attorney did not argue that the state's proffered
reasons for its peremptory strikes were pretextual.           To prevail on this
claim, Murray must show that his counsel was deficient -- that is, that her
performance fell below an objective level of reasonableness -- and that her
deficiencies were sufficiently severe to undermine our confidence in the
outcome of the trial.   Strickland v. Washington, 466 U.S. 668, 687 (1984).




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Even assuming, arguendo, that Murray could demonstrate that his trial
counsel was deficient in failing to attempt to rebut the prosecution's
race-neutral explanations for its peremptory strikes, he has not alleged
that the outcome of his trial would have been different had his counsel
done   so.      Murray's claim of ineffective assistance of counsel must
therefore fail, and the district court did not err in dismissing it.                Id.;
Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996), cert. denied, 117
S. Ct. 226 (1996).       See also Wright v. Nix, 928 F.2d 270, 274 (8th Cir.
1991) (Arnold, J., concurring), cert. denied, 502 U.S. 838 (1991).


       Murray next contends that he was denied due process of law when the
trial court admitted two pieces of evidence, namely, a photograph and a
piece of linoleum.       Evidentiary questions are matters of state law that
federal      habeas   courts   may   review   only   to   determine   if   the   alleged
evidentiary error infringed a specific federal constitutional right or was
so prejudicial that it fatally infected a trial's fairness.                      Ford v.
Armontrout, 916 F.2d 457, 460 (8th Cir. 1990), cert. denied, 499 U.S. 964
(1991).   Murray has neither alleged that the contested pieces of evidence
infringed a federal constitutional right nor demonstrated that they were
so   grossly    prejudicial    that   they    fatally     infected   his   trial.    The
photograph shows that one of the murder victims had been bound and gagged.
Because evidence of gagging is relevant to premeditation, an essential
element of first-degree murder, we cannot say that the photograph's
unfairly prejudicial effect outweighed its probative value.                The piece of
linoleum taken from the floor where the victims were found, which contained
knife cuts, is likewise relevant because the knife marks corroborated trial
testimony.       We see, moreover, no prospect whatever that the piece of
linoleum was unfairly prejudicial to Murray.


       Murray's final claim is that the trial court should have granted his
motion for a mistrial after the prosecutor referred to




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punishment during the closing argument in the guilt phase of Murray's
bifurcated trial.      To resolve this claim, we must decide whether the
prosecutor's statements fatally infected Murray's trial with unfairness.
Phea v. Benson, 95 F.3d 660, 661 (8th Cir. 1996), cert. denied, 117 S. Ct.
411 (1996).   Ordinarily, the admission of prejudicial statements in a
closing argument can be cured by striking them and instructing the jury to
disregard them, and we see nothing in the record that would cause us to
deviate from the general rule.     United States v. Elem, 845 F.2d 170, 172
(8th Cir. 1988).    Because the trial court sustained Murray's objection to
the prosecutor's references to punishment and instructed the jury to
disregard them, the trial court correctly concluded that the statements
were not prejudicial enough to warrant a mistrial.


                                    III.
     For the foregoing reasons, we affirm the judgment of the district
court.


     A true copy.


           Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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