                                 No. 96-2668



Terry Gee,                       *
                                           *
                        Appellant,     *       Appeal from the United States
                                           *    District Court for the Eastern
v.                                         *    District of Missouri.
                                           *
Michael Groose, et al.,                    *
                                           *
                        Appellees.     *


                        Submitted: January 17, 1997

                        Filed:    April 11, 1997


Before MURPHY, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and
KYLE,1 District Judge.



KYLE, District Judge.


     Terry   Gee   (“Gee”)   appeals   the      District   Court’s2 denial   of   his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
We affirm.



Background




     1
     The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota, sitting by designation.
     2
     The Honorable Edward L. Filippine, United States District
Judge for the Eastern District of Missouri.
     On April 18, 1990, Gee was convicted by a jury in Missouri Circuit
Court of three counts of first degree robbery and three counts of armed
criminal action. The trial court denied Gee’s motion for a new trial,
finding that there was no probable cause to believe that his trial counsel
had been ineffective. Gee then filed a timely notice of appeal; in
addition, he filed an motion for postconviction relief under Missouri
Supreme Court Rule 29.15, which was denied because of its untimely filing.



     His consolidated appeal challenged his conviction, sentence, and the
denial of his Rule 29.15 motion. The Missouri Court of Appeals affirmed the
conviction and the denial of his Rule 29.15 motion, but remanded for a
correction of sentence.


     Gee then filed state habeas corpus petitions in the Circuit Court of
Cole County, the Missouri Court of Appeals, and the Missouri Supreme Court.
Each was denied. He subsequently filed a federal habeas petition which was
dismissed    except   as   to   the   Batson issue,3 which   was   referred   to a
magistrate judge for a Report and Recommendation (“R & R”).


     The Magistrate Judge4 held an evidentiary hearing on the Batson claim
and issued his R & R recommending that the claim be denied. The District
Court adopted the R & R, and dismissed the case with prejudice.               This
appeal followed.


Discussion




     3
      Batson v. Kentucky, 476 U.S. 79 (1986).
     4
     The Honorable Thomas C. Mummert, United States Magistrate
Judge.

                                         -2-
     In support of his appeal, Gee alleges the following: 1) he was denied
his Sixth Amendment right to confrontation and cross-examination, as well
as his due process right to a fair trial when the trial court received a
detective’s hearsay testimony connecting him to the crimes being tried; 2)
he was denied his right to equal protection when the trial court over-ruled
his Batson challenges; 3) he was denied his right to equal protection and
due process when the trial court dismissed his Rule 29.15 motion as
untimely; and 4) he was denied his right to effective assistance of
counsel.


     The Applicable Law of Habeas


     Before turning to Gee’s arguments, we must first address the issue
of the substantive law applicable to our review.    On April 24, 1996, 28
U.S.C. § 2254 (“the Act”) was amended by the Antiterrorism and Effective
Death Penalty Act of 1996. Pub. L. No. 104-132, 110 Stat. 1214.5 Gee’s
appeal was pending at the time of


     5
     28 U.S.C. § 2254(d), as modified April 24, 1996, now
provides as follows:

     (d) An application for a writ of habeas corpus on
     behalf of a person in custody pursuant to the judgment
     of a State court shall not be granted with respect to
     any claim that was adjudicated on the merits in State
     court proceedings unless the adjudication of the
     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 in the State court
           proceeding.

           . . .

28 U.S.C. § 2254 (d)(1) & (2).

                                    -3-
the modification. The parties disagree as to which     version of the Act
applies.   The Government seeks application of the amended version of the
Act, while Gee maintains the amendment should not be applied.


     Our Circuit has not yet decided the issue of the applicability of the
new Act to cases pending on appeal at the time of its enactment.      See,
e.g., Preston v. Delo, 100 F.3d 596, 599 n.4 (8th Cir. 1996) (“We have not
yet taken a position on whether the amendments to section 2254 apply to
cases that were pending on April 24, 1996."), cert. denied, No. 96-7182,
1996 WL 745248 (Feb. 18, 1997); Oliver v. Wood, 96 F.3d 1106, 1108 n.2 (8th
Cir. 1996) (“We have not yet determined to what extent the new Act applies
to noncapital cases pending on appeal.”). Instead, we have been faced with
cases in which the claims presented were “either procedurally barred or
fail[ed] under the more lenient provisions of the old law.” Preston, 100
F.3d at 599 n.4; see also Bannister v. Delo, 100 F.3d 610, 612 (8th Cir.
1996) (“Because we hold that Bannister is not entitled to relief under the
prior more lenient habeas law, we do not address the state’s contention
that the [new] Act is applicable to this appeal and precludes relief.”)


       The case at bar is no different. We find that here, too, Gee’s
claims fail under even the less restrictive provisions of the    Act prior
to its 1996 amendments.    Therefore, we need not reach the issue of the
amended Act’s applicability to cases pending on appeal. We will assess
Gee’s arguments under the old Act.


     Hearsay Statements




                                     -4-
     Gee’s first argument concerns the admissibility of Detective Lewis
Clayton’s (“Clayton”) testimony.          Clayton testified that he received a
dispatch informing him of the robberies and stating that a brown Cadillac
with Nebraska license plates had been used. He canvassed the area where the
robberies had occurred, noticed a brown Cadillac, and knocked on the doors
of homes near the Cadillac.       He spoke with an       unidentified woman who told
him that someone had parked the Cadillac around 1:00 am and then had walked
toward a neighboring building. She also stated that a man named Ralph
Jordan (“Jordan”) lived in that building.            Clayton returned to the building
the next day and questioned Jordan.


     In court, Clayton identified a photo of the Cadillac as “the car that
I observed parked ... that was found to have been stolen and used in the
three robberies.”        He also testified that Jordan told him that Gee, a
friend   of his, had committed the robberies. The court ordered this
testimony   stricken and instructed the jury to disregard it.                 Jordan also
told Clayton that Gee had been driving the brown Cadillac. Jordan was not
called as a witness.


     Gee asserts that the testimony regarding Jordan’s statements was
inadmissible   hearsay,     the   admission     of    which   a)   violated    his   Sixth
Amendment   right   to    confrontation    and   cross-examination,       and     b)   his
fundamental right to a fair trial.         At the outset, we note that the jury
was instructed to disregard Clayton’s testimony that Jordan told him that
Gee was one of the robbers.           We presume that the jury followed this
instruction. See, e.g., United States v. Farmer, 73 F.3d 836, 844 (8th
Cir.) (noting presumption that jury follows admonitions), cert. denied, 116
S. Ct. 2570 (1996); United States v. Thornberg, 844 F.2d 573, 579 (8th Cir.
1988) (“We presume that the jury obeyed these limiting instructions...”).




                                          -5-
     The only remaining testimony relevant for our purposes is the
statement that Jordan told Clayton that Gee was driving the brown Cadillac
involved in the robberies.6 “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.   In
conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United
States.” Estelle v. McQuire, 502 U.S. 62, 67-68 (1991); see also Oliver v.
Wood, 96 F.3d 1106, 1108 (8th Cir. 1996) (“We will not re-examine whether
evidence was properly admitted under state law...Rather, we will only
consider whether Gee’s conviction was obtained in violation of the United
States Constitution.”)(citations omitted).   Thus, our inquiry here is not
whether the statement was properly admitted under the Missouri Rules of
Evidence, but whether its admission violated Gee’s constitutional rights.


           Sixth Amendment Violation


     Gee first argues that the admission of this testimony violated his
Sixth Amendment rights to confrontation and cross-examination. Our review
of the record satisfies us that, in light of the quantum of evidence
linking Gee to the Cadillac, and otherwise supporting his guilt, the
admission of this statement, even if hearsay, was harmless error.


     In Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438,
(1986), the United States Supreme Court noted that “the constitutionally
improper denial of a defendant’s opportunity to




     6
     While Gee did so in his petition to the District Court, he
no longer challenges the admission of the unidentified woman’s
statement to Clayton explaining that the brown Cadillac was
parked at a particular location, and that the occupant walked
toward Jordan’s building.

                                   -6-
impeach a witness for bias, like other Confrontation Clause errors, is
subject to . . . harmless-error analysis.” (emphasis added).         “The correct
inquiry is whether, assuming that the damaging potential of the cross-
examination were fully realized, a reviewing court might nonetheless say
that the error was harmless beyond a reasonable doubt.”        Id.   To make this
determination, courts should assess factors such as,           “the importance of
the witness’ testimony in the prosecution’s case, whether the testimony was
cumulative,    the   presence   or   absence   of   evidence    corroborating   or
contradicting” the witness’ testimony, and “the overall strength of the
prosecution’s case.” Id.


     Gee was convicted based on the identification of three eyewitnesses
to the robberies.    More than one testified to seeing a brown Cadillac used
in the robberies. Additionally, identification by Gee’s friend and former
employer, Joe Davis, who had known Gee since he was eight years old, placed
Gee in the very brown Cadillac used in the robberies on the day of the
robberies.    Thus, we find that Clayton’s testimony regarding Jordan’s
statements linking Gee to the Cadillac was merely cumulative. It did not
constitute the only evidence on an essential element of the prosecution’s
case, nor did it constitute the only evidence linking Gee to the Cadillac.
In light of the overall strength of the prosecution’s case, the admission
of this testimony was harmless error beyond a reasonable doubt.


             Fundamental Right to a Fair Trial
     Gee also argues that the admission of these statements violated his
right to a fair trial.     This argument is also without merit.         We grant
habeas relief on a state court evidentiary ruling only “if the alleged
error was so conspicuously bad that it fatally infected the trial and
rendered it fundamentally unfair.”      Troupe




                                       -7-
v. Groose, 72 F.3d 75, 76 (8th Cir. 1995). “To carry that burden, the
petitioner must show that there is a reasonable probability that the error
complained of affected the outcome of the trial -- i.e., that absent the
alleged impropriety the verdict probably would have been different.”
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.   1995). In assessing whether
this burden has been met, the following are of “particular importance”:
“the frequency and pervasiveness of the alleged misconduct in the context
of the entire trial”; “the weight of the evidence supporting guilt”; and
“whether the trial judge gave a cautionary instruction to the jury.” Id.



     Gee has failed to demonstrate that the verdict would have been
different but for the admission of Clayton’s statement.        The conduct
complained of is the admission of a single, arguably cumulative, statement
connecting Gee to the vehicle used in the robberies. While the trial court
did not give a cautionary instruction on this particular statement, the
weight of the other evidence strongly linked Gee to the vehicle and
supported a finding of his guilt.   Based on our review of the record, we
cannot say that the admission of Clayton’s statement rose to the level of
a constitutional violation.


     Batson Challenge


     Gee asserts that the Government improperly removed African-American
jurors from the venire panel based on their race, in violation of Batson
v. Kentucky, 476 U.S. 79 (1986).      The Magistrate Judge conducted an
evidentiary hearing on this issue, and the District Court adopted his
report and recommendation, determining that the Government had not violated
Batson.




                                    -8-
     The   equal   protection   clause   prohibits   a   prosecutor    from    using
preemptory challenges to exclude otherwise qualified persons from the jury
panel solely because of their race.      See Devose v. Norris, 53 F.3d 201, 204
(8th Cir. 1995) (citing Batson, 476 U.S. at 96.)          Under Batson, after a
defendant makes a prima facie case of racial discrimination in the
government’s use of preemptory challenges, the burden shifts to the
government to offer a race-neutral reason for the strikes.        See Troupe, 72
F.3d at 76 (citing Purkett v. Elem, 115 S. Ct. 1769, 1770 (1995)).            If the
government gives a race-neutral reason, the reviewing court must decide
whether the defendant has proven purposeful discrimination by evaluating
the persuasiveness of the proffered reason. See id. (citations omitted).


     Prosecutors need only support their actions with reasons that are not
inherently discriminatory, regardless of whether the reasons makes sense.
Elem v. Purkett, 64 F.3d 1195, 1198 (8th Cir. 1995).            The prosecutor’s
explanation   “may   be   ‘implausible      or   fantastic,’    even   ‘silly     or
superstitious,’ and yet still be ‘legitimate,’” but “cannot be a mere
denial of racial motive or mere affirmation of good faith.” Id.
     Whether a race-neutral explanation is a pretext for discrimination
is a question of fact. Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir.)
(citing Jones v. Jones, 938 F.2d 838, 841 (8th Cir. 1991)), cert. denied,
117 S. Ct. 158 (1996). While in habeas proceedings in federal courts,
factual findings of the state court are presumed to be correct if they are
“fairly supported by the record”, id., we review the District Court’s
findings of fact under the clearly erroneous standard.         Sawheny v. Pioneer
Hi-Bred Int’l, Inc., 93 F.3d 1401, 1407 (8th Cir. 1996).                Since the
District Court conducted the evidentiary hearing in this case, we review
its factual findings under the clearly erroneous standard. See Reeves




                                      -9-
v. Hopkins, 102 F.3d 977, 979 (8th Cir. 1996) (“In this section 2254 habeas
corpus action, we review the district court’s factual findings for clear
error and its legal conclusions de novo.”)


     Gee complains that three stricken African-American panel members
(Adams, Barnes, and Butler) shared a common trait with a white member
(Kueker) who was not stricken -- each had a relative in jail. At the
evidentiary hearing, the prosecutor stated that Kueker had qualities not
shared with the other stricken jurors: Kueker knew a law enforcement
officer that the prosecutor knew; she held her incarcerated brother
responsible for his confinement; and both she and her mother had been
victims of a crime similar to that for which Gee was on trial.       These
reasons made her a more desirable juror for the prosecution. Moreover,
Butler and Barnes had laughed in response to voir dire questions, and the
prosecutor did not consider Adams to be a “pro-state” juror.   The defense
peremptorily struck Kueker.


     While the Government argues here that Gee has failed to demonstrate
even a prima facie case of discrimination, we need not reach that issue as
we find that the Government successfully articulated non-discriminatory
reasons for its conduct. There is nothing in the record to convince us that
the District Court’s factual findings on this issue were clearly erroneous.
We concur with the District Court’s finding that the race neutral reasons
proffered by the prosecution were non-pretextual.


     Dismissal of Rule 29.15 Motion as Untimely


     Gee argues that he was denied his right to equal protection and due
process when the trial court dismissed his Rule 29.15




                                   -10-
motion as untimely.7   He alleges that he deposited his papers with the
proper prison authorities in a timely fashion. The papers, however, did not
reach the court in time.   When he learned that the court had not received
them, he submitted an affidavit explaining that he had timely deposited his
motion papers with prison officials.       Nevertheless, the state court
dismissed his motion as untimely. Gee alleges that such a rigid application
of the rule operates to “suspend the writ of habeas.”


     Gee’s argument on this point is without merit.   As the District Court
correctly pointed out, “an infirmity in a state post-conviction proceeding
does not raise a constitutional issue cognizable in a federal habeas
petition.” Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir.)(quoting Williams-Bey
v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990)), cert. denied, 115 S. Ct.
462 (1994).


     Ineffective Assistance of Counsel


     Last, Gee argues that he was denied his right to effective assistance
of appellate counsel because his attorney failed to argue that the trial
court erred in allowing the prosecutor to “elicit” the statement from
detective Clayton that the brown Cadillac was “stolen.”    The trial court
offered to instruct the jury to disregard this statement, but defense
counsel never accepted the offer.     Gee did not raise this argument in
either of his motions for a new trial.
     In order to obtain relief for a claim of ineffective assistance of
counsel, Gee must demonstrate both that his




     7
     Missouri Rule 29.15 (b) states that a motion to vacate, set
aside, or correct judgment or sentence is due within thirty days
from the filing of the transcript of the trial for purposes of
the appeal.

                                   -11-
attorney’s    representation   fell    below   an   objective   standard   of
reasonableness and that he was prejudiced by this deficient performance.
See Parker v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996) (citing Strickland
v. Washington, 466 U.S. 668, 687-88, 194 S. Ct. 2052, 2064-65 (1984)),
petition for cert. filed, No. 96-7729 (Jan. 13, 1997); see also Harris v.
Missouri, 960 F.2d 738, 740 (8th Cir. 1992) (applying Strickland test to
complaint of ineffective appellate counsel).    Appellate counsel’s conduct
is to be evaluated in light of the circumstances of the case.     Pollard v.
Delo, 28 F.3d 887, 889-90 (8th Cir.), cert. denied, 115 S. Ct. 518 (1994).
Reasonable appellate strategy requires an attorney to limit the appeal to
those issues counsel determines have the highest likelihood of success. See
Parker, 94 F.3d at 462.


         Because Gee did not raise the issue of the admissibility of
Clayton’s statement in either of his motions for a new trial, the appellate
court’s review of the statement would have been limited to plain error. See
State v. Smart, 907 S.W.2d 275, 277 (Mo. Ct. App. 1995) (“This failure to
include the issues in his motion for new trial means that we can review
them only as plain error . . .”) Moreover, not having sought a curative
instruction, see State v. Miller, 870 S.W.2d 242, 245 (Mo. Ct. App. 1994),
it is unlikely that appellate counsel would have prevailed on this issue.


         In light of these circumstances, Gee has not demonstrated either
that his appellate counsel’s conduct was objectively unreasonable, or that
it affected the outcome of his appeal.8 See Reese v. Delo, 94 F.3d 1177,
1185 (8th Cir. 1996) (noting that appellate counsel’s conduct was not
unreasonable when counsel




     8
     This conclusion is bolstered by our determination that the
admission of Clayton’s statement itself was not a constitutional
violation.

                                      -12-
failed to raise issue that would have been reviewed at the court’s
discretion and for plain error.) As he is required to demonstrate both to
prevail on this argument, he cannot succeed here.


     The judgment of the District Court is affirmed.


           A true copy.


                Attest:


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




                                  -13-
