                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-1380
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

  Daniel Lewis Lee, also known as Danny Lee, also known as D L Graham, also
                        known as Daniel Lewis Graham,

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: March 13, 2013
                              Filed: April 29, 2013
                                 ____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ____________

MURPHY, Circuit Judge.

       Daniel Lewis Lee and codefendant Chevie Kehoe were convicted of conspiring
to violate and violating the Racketeer Influenced and Corrupt Organizations (RICO)
statute, 18 U.S.C. §§ 1962(c)–(d), and of three murders in aid of racketeering in
violation of 18 U.S.C. § 1959. The government sought the death penalty for both Lee
and Kehoe, but only Lee received a death sentence. Kehoe was sentenced to life
imprisonment without the possibility of release. After Lee's conviction and sentence
were affirmed on direct appeal, United States v. Lee, 374 F.3d 637 (8th Cir. 2004),
cert. denied, 545 U.S. 1141 (2005), Lee brought this action seeking habeas corpus
relief under 28 U.S.C. § 2255. Lee claims in part that he received ineffective
assistance of counsel during voir dire and that his sentence violated the United States
Constitution. The district court1 denied his petition, but granted him a certificate of
appealability on "whether the death penalty is being unconstitutionally applied" in
this case. We then expanded Lee's certificate to include the question of whether he
received ineffective assistance based on counsel's use of peremptory strikes during
voir dire. We now affirm.

                                          I.

       The facts of the offenses for which Lee was convicted in this case are reported
in our affirming opinion. See Lee, 374 F.3d at 641–43. Lee was a member of the
Aryan Peoples' Republic or the Aryan Peoples' Resistance, a white supremacist
organization formed by codefendant Kehoe. Its goal was to establish an independent
nation of white members of the Christian Identity faith in the Pacific Northwest. With
robbery in mind, Lee and Kehoe traveled to the Arkansas home of gun dealer William
Mueller in January 1996. They waited there until Mueller returned home with his
wife and her eight year old daughter. Kehoe and Lee then incapacitated the couple
and asked the child where they could find cash, guns, and ammunition. After that
Kehoe and Lee killed Mueller and his wife, and Kehoe killed the young girl.

       Kehoe and Lee were indicted on several charges including racketeering in
violation of 18 U.S.C. § 1962(c), conspiracy to commit racketeering in violation of


      1
       The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas, presided over the trial as well as the postconviction
matters.

                                         -2-
18 U.S.C. § 1962(d), and three counts of murder in aid of racketeering in violation
of 18 U.S.C. § 1959(a)(1). The government noticed its intent to seek the death
penalty against both defendants. 18 U.S.C. § 3593(a). Lee and Kehoe were tried
together.

        Jury selection took place over five days in March 1999, and defense counsel
for Kehoe and Lee were given thirty peremptory strikes. A consultant assisted the
defense with "jury composition, selection and statistical breakdown." The record
does not reflect whether the jury consultant assisted counsel for both Lee and Kehoe.
It also does not conclusively show the extent to which counsel for the two defendants
worked together to create a jury selection strategy. The district court explained to the
jurors during voir dire that the defendants were alleged to "hold white supremacist,
white separatists and race-based opinions and attitudes." It advised the venire
members to "please raise [their] hand" if they had "such strong feelings against [a]
person who possesses such race-based beliefs or opinions that you could not give that
person a fair trial based upon the law and the evidence in the case." One venire
member was dismissed by the district court after he explained that "the racial
undertones of the case would bias [him] toward the state and [he] would not be able
to give [the defendants] a fair evaluation."

       Kehoe and Lee jointly exercised all of their thirty peremptory strikes against
Caucasian venire members, and the government exercised two of its twenty
peremptory strikes against African American venire members. The equal protection
clause forbids a prosecutor from exercising peremptory challenges based on race
because that harms the rights of defendants, the rights of excluded jurors, and the
integrity of the criminal justice system. Batson v. Kentucky, 476 U.S. 79, 89 (1986).
That prohibition has been extended to race based challenges made by defense counsel
because the exercise of a racially motivated peremptory challenge in a criminal case
by any party is state action which violates the United States Constitution. Georgia
v. McCollum, 505 U.S. 42, 54–55 (1992).

                                          -3-
       Defense counsel in this case explained that while "the government struck two
African Americans" and the "defense struck none," it was choosing not to challenge
the constitutionality of the peremptory strikes under Batson. The district court
observed that there was "not any under-representation" because nine of the twelve
seated jurors were African American, as were three of the six alternates. The district
court nevertheless asked the government to provide a rationale for its two strikes of
African American venire members. The government explained that one had given
"relatively nonresponsive" answers at times and the other had "expressed deep
religious convictions." The district court accepted those explanations. The
government then noted that Kehoe and Lee had only stricken Caucasian venire
members and that under McCollum and Batson "the right being safeguarded . . . is
equal protection under the laws." The district court stated that it could "get into a
whole thing of having [the defendants] justify every white strike," but since "[n]o one
has made a Batson challenge," it was "not going to do it." The court concluded that
the trial "will just go forward."

       An attorney who represented Kehoe has since signed an affidavit explaining
that the Caucasian venire members were stricken from the jury as a strategic choice.
He explained that

      [s]electing a jury with as many black jurors as possible was a strategic
      decision made by defense counsel . . . because (1) blacks are more likely
      than whites to discredit government testimony, (2) research of attitudes
      indicates that blacks are generally less likely to give the death penalty,
      and (3) it was felt that blacks were less likely to give the death penalty
      than whites in this particular case.

       The case proceeded to trial before the seated jurors. Kehoe's mother testified
that Lee and Kehoe had confessed to the murders. She related that Kehoe had told
her that Lee had participated in murdering the adults, but that Kehoe had killed the
child himself because Lee refused to do it. The government also introduced physical

                                         -4-
evidence, including a hair similar to Lee's which had been found on a cap allegedly
used during the murders. Photographs of racially offensive tattoos on Lee's body
were also introduced by the government. At the close of trial the jury returned a
guilty verdict against both defendants on all counts.

       Lee and Kehoe had separate sentencing hearings before the same jury, and the
government indicated its intent to seek the death penalty for both. Under the Federal
Death Penalty Act, 18 U.S.C. §§ 3591–93, a jury may impose the death penalty only
if it determines that aggravating factors proved by the government sufficiently
outweigh any mitigating facts proved by the defense. See United States v. Purkey,
428 F.3d 738, 749 (8th Cir. 2005). At the hearings for both Kehoe and Lee the
government argued that five aggravating factors supported a death sentence: (1) the
murders had been committed for pecuniary gain, (2) more than one person had been
killed during a single criminal episode, (3) substantial planning and premeditation for
the murders had occurred, (4) each defendant would be a future danger, and (5) the
eight year old girl had been a vulnerable victim.

       Kehoe's sentencing proceeded first, and he argued that 16 mitigating
circumstances weighed against death. One or more jurors found the existence of each
of the 16 mitigating factors, including that Kehoe was the product of a dysfunctional
family, that he was influenced by his parents to accept extremist political views, and
that he could live a productive life in prison. The jury also rejected several of the
aggravating factors put forward by the government, including that Kehoe would be
a future danger and that he had committed the murders after substantial planning.
The jury unanimously decided against a death sentence for him and in favor of life
imprisonment without the possibility of release. Each juror certified that Kehoe's race
and religious beliefs had not influenced his or her decision. See 18 U.S.C. § 3593(f).

       The United States Attorney for the Eastern District of Arkansas then informed
the district court that she no longer wished to seek the death penalty for Lee, but the

                                         -5-
Department of Justice's death penalty protocol required the prosecutor to request
withdrawal of a death notice from the Attorney General's Review Committee on
Capital Cases. Since Attorney General Janet Reno was unavailable at that time,
Deputy Attorney General Eric Holder convened the other members of the review
committee and determined that the death notice against Lee would not be withdrawn.
Thereafter the government presented its position that death was the appropriate
sentence for Lee because he would be a future danger and he had a history of
committing other violent crimes. Lee cited 14 mitigating factors before the jury,
including that he suffered from mental impairment and had a troubled upbringing.
He also argued that he should not receive the death penalty because Kehoe was more
culpable than he and Kehoe had received a sentence of life imprisonment.

       The jury unanimously sentenced Lee to death for each of the capital murders.
Each juror certified that Lee's race and religious beliefs had not influenced his or her
decision. See 18 U.S.C. § 3593(f). Although the jury did not find that Lee had
committed the murders after substantial planning and preparation, it did find that Lee
would be a future danger, that he had committed the offenses with the expectation of
receiving something of pecuniary value, and that he had killed more than one person
in a single criminal episode. The jury also largely rejected Lee's mitigation case,
deciding that Lee could not appreciate the wrongfulness of his conduct and that he
could not conform his conduct to the requirements of the law. The district court
granted Lee's motion for a new sentencing phase after concluding that Lee could
force the Department of Justice "to comply with [its] death penalty protocol" and
reconsider the prosecutor's request to withdraw Lee's death notice. We reversed after
concluding that the government's death penalty protocol was unenforceable by
individuals. United States v. Lee, 274 F.3d 485, 493 (8th Cir. 2001). We also
decided that it had not been improper for the district court to permit the government
to elicit testimony at sentencing from mental health experts regarding Lee's past acts
and his future dangerousness. Id. at 496.



                                          -6-
       Lee directly appealed his conviction and sentence on a number of grounds,
including that his sentence violated his constitutional rights. Lee did not raise any
allegations in his direct appeal relating to counsel's racially motivated strategy in
selecting a jury. We affirmed after concluding in relevant part that Lee had cited "no
case indicating that imposition of the death penalty on one defendant but not the other
violates § 3595(c)(1)." Lee, 374 F.3d at 653. Citing United States v. Paul, 217 F.3d
989, 999–1000 (8th Cir. 2000), we also concluded that the death penalty had not been
arbitrarily imposed on Lee despite the jury's refusal to consider Kehoe's sentence of
life imprisonment as a mitigating factor. Lee, 374 F.3d at 653. We pointed out that
"Lee [had] not provided support for his claim that the death penalty was arbitrarily
imposed on him." Id. The Supreme Court then denied Lee's certiorari petition. Lee
v. United States, 545 U.S. 1141 (2005).

       Lee then moved for postconviction relief under 28 U.S.C. § 2255, arguing
among other points that he had received ineffective assistance of counsel during voir
dire and that his sentence of death was unconstitutional. He also presented
information about mitochondrial DNA testing on a hair the government had used
against him at trial. Lee explained that the analytical report on that hair had
concluded that the "mitochondrial DNA sequence data from the hair . . . differs from
that of the hair from Danny [Lee]." The district court denied Lee's petition for
postconviction relief without a hearing, concluding there was an "abundance of
evidence supporting the guilt phase convictions." The court also stated that it was
"highly unlikely that counsel for Kehoe and Lee would not have consulted on jury
selection strategies." While such a strategy offends the jurors' constitutional rights,
McCollum, 505 U.S. at 48–49, Lee had not shown that his counsel was ineffective
because of it or that any prejudice had resulted. The district court also concluded that
Lee could not raise a constitutional challenge to his death sentence because that
argument had already been rejected on his direct appeal.




                                          -7-
       Lee then moved under Federal Rule of Civil Procedure 59(e) to alter and
amend the district court's judgment denying his motion for post conviction relief
pursuant to 28 U.S.C. § 2255. For the first time in that motion he argued that his
counsel's use of a race based jury selection strategy was a "structural defect" that
affected the "entire conduct of the trial from beginning to end." Arizona v.
Fulminante, 499 U.S. 279, 309 (1991). He contended that prejudice against him by
trial counsel's errors could thus be presumed. The district court denied his Rule 59
motion in its entirety.

       The district court first declined to grant Lee a certificate of appealability on any
issue, and Lee sought reconsideration. The court then granted him a certificate on the
question of "whether the death penalty is being unconstitutionally applied" in this
case. We later expanded Lee's certificate of appealability to include the question of
whether he received ineffective assistance when his trial counsel exercised
peremptory challenges based on race in violation of the Constitution. We declined
to expand Lee's certificate to include other issues, including whether he received
ineffective assistance of counsel relating to the submission of aggravating factors to
the jury to support his death sentence. We review de novo the denial of a § 2255
motion and review any underlying factual findings for clear error. Davis v. United
States, 673 F.3d 849, 852 (8th Cir. 2012).

                                           II.

      Lee argues that he received ineffective assistance when defense counsel
exercised peremptory challenges based on race. Ineffective assistance of counsel
claims are governed by Strickland v. Washington, 466 U.S. 668 (1984), which
generally requires proof that trial counsel’s representation "fell below an objective
standard of reasonableness" and that the deficient representation prejudiced the
defense. Id. at 688–92. "The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the

                                           -8-
adversarial process that the trial cannot be relied on as having produced a just result."
Id. at 686. "Failure to establish either Strickland prong is fatal to an
ineffective-assistance claim." Worthington v. Roper, 631 F.3d 487, 498 (8th Cir.
2011) (citation omitted). We need not "address the performance prong if petitioner
does not affirmatively prove prejudice." Boysiewick v. Schriro, 179 F.3d 616, 620
(8th Cir. 1999) (citation omitted).

       The district court determined that it was unclear on the record whether Lee's
counsel had joined the racially motivated jury selection strategy, but it "appear[ed]
highly unlikely that counsel for Kehoe and Lee would not have consulted on jury
selection strategies." The district court found it unnecessary to resolve the issue,
however, because it concluded that the use of race based peremptory challenges by
defense counsel did "not offend Petitioner's constitutional rights." To the extent that
Lee's attorney approved of the jury selection strategy, the district court concluded that
counsel's performance did not fall below an objective standard of reasonableness. To
the extent that Lee's counsel did not participate in or authorize the strategy, the
district court concluded that Lee could not show that he was prejudiced because no
evidence suggested that "a jury with a different racial composition would have
returned a different verdict."

        Lee concedes in his brief that his counsel joined Kehoe's counsel in exercising
all thirty peremptory strikes based on the racial stereotype that "African-American
jurors are less likely to impose death and are more distrustful of the Government than
white jurors." Lee cites Supreme Court case law which indicates that a strategy by
defense counsel to choose jurors on the basis of race offends the equal protection
clause of the United States Constitution by harming the rights of defendants, the
rights of excluded jurors, and the integrity of the criminal justice system. See
McCollum, 505 U.S. at 55. He further contends that when counsel violates
McCollum by choosing jurors on the basis of race, it amounts to a "structural error"
in the trial where we presume that counsel's actions prejudiced the defendant. See

                                          -9-
Neder v. United States, 527 U.S. 1, 7 (1999). That is because such a structural error
corrupts the entire fact finding process by raising a question about the composition
and integrity of the jury.

      Codefendant Kehoe's petition for postconviction relief under § 2255 raised the
same McCollum issue as Lee does on appeal, arguing that "prejudice should be
presumed because his trial counsel's decision to purposefully strike only Caucasian
venire members in violation of McCollum was a 'structural error.'" United States v.
Kehoe, No. 11-1382, 2013 WL 1707338, at *2 (8th Cir. Apr. 22, 2013). We
disagreed, citing Young v. Bowersox, 161 F.3d 1159, 1160–61 (8th Cir. 1998), where
we had rejected the argument that an ineffective assistance of counsel claim premised
on a Batson error should be considered a structural error entitled to a presumption of
prejudice. Kehoe, 2013 WL 1707338, at *2–3. Although Young had addressed the
requisite proof for an ineffective assistance claim related to a Batson violation, we
concluded "that the holding of Young must apply with equal force to a claim
premised on a McCollum violation." Id. at *2. We noted that the Seventh Circuit had
concluded that a McCollum violation was a structural error, id. at *4 n.4 (citing
Winston v. Boatwright, 649 F.3d 618, 632–34 (7th Cir. 2011)),2 and that the Eleventh
Circuit had acknowledged the "troubling application of the Strickland prejudice
prong to Batson-type claims," id. (quoting Eagle v. Linahan, 279 F.3d 926, 943–44
n.22 (11th Cir. 2001)). We concluded in Kehoe however that "whether defense
counsel's decision to select the jury in a racially discriminatory manner should result
in a presumption of prejudice is a question that is foreclosed by our holding in
Young." Id. at *4.

      In addressing Kehoe's postconviction petition we concluded that under Young,
a McCollum violation is not a structural error and that a showing of prejudice is thus
required to make out an ineffective assistance claim. Id. That conclusion also applies


      2
          But see United States v. Boyd, 86 F.3d 719, 725 (7th Cir. 1996).

                                         -10-
in Lee's case. Kehoe and Lee were tried together, and their counsel jointly decided
to use all thirty of their peremptory strikes against Caucasian venire members. We
agree with the district court that in these circumstances it would be highly unlikely
that counsel for Lee and Kehoe did not work together to create the racially motivated
jury selection strategy. As Lee points out in his briefing before this court, it "is not
in dispute" that his counsel "engaged in racial discrimination when selecting his jury."
Lee, like Kehoe, must thus show that he was prejudiced by counsel's racially
motivated jury selection strategy in order to succeed on his ineffective assistance
claim.

       The term "prejudice" is defined as "a reasonable probability that the outcome
of the trial would have been different." White v. Al Luebbers, 307 F.3d 722, 728 (8th
Cir. 2002) (citing Strickland, 466 U.S. 668). Such a reasonable probability "is shown
if the reviewing court, after surveying the entire record, lacks confidence in the
outcome." Id. "In articulating the prejudice component of the Strickland analysis,
the Supreme Court provided that in certain circumstances the requisite showing of
prejudice may be presumed due to the nature of the deficient performance." McGurk
v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998). In Kehoe we concluded that no
prejudice could be shown because Kehoe had not been "denied counsel entirely, nor
was the assistance of counsel denied entirely during a critical stage of the
proceeding." 2013 WL 1707338, at *3. While we acknowledged that "trial counsel's
strategy may have been misguided," we concluded that it could not "be said that it
denied entirely Kehoe the assistance of counsel during voir dire." Id.

       Lee argues that he can establish prejudice by counsel's decision to use all his
peremptory strikes against Caucasian venire members. He contends that throughout
"the guilt and penalty phases of [his] trial, the jury was subjected to an unrelenting
barrage of accusations of abhorrent racist beliefs." He argues that in light of the
"overwhelming amount of evidence of [his] particular antipathy towards people of
color, the inference that the nine African-American members of the jury were affected

                                         -11-
by that evidence and that it influenced their decision to convict [him] and sentence
him to death is inescapable." Lee finally contends that he can prove prejudice
because he was sentenced to death while Kehoe was only sentenced to life
imprisonment.

       The record evidence does not show that any of the jurors who served were
biased by trial counsel's decision to strike Caucasian venire members. See Sanders
v. Norris, 529 F.3d 787, 794 (8th Cir. 2008). Bias will not be presumed simply
because some jurors were of a different race than the defendant. See United States
v. Pospisil, 186 F.3d 1023, 1028 (8th Cir. 1999). One venire member in Lee's case
was excused after he expressed concern that he would be biased by the defendants'
racism, but the other empaneled jurors confirmed their impartiality. While some of
Lee's body tattoos were visible to the jury and the government introduced
photographs of others, the record does not indicate that "the individual jurors who
tried [Lee] were not impartial." Young, 161 F.3d at 1161 (citation omitted). Nothing
in the record shows that the jury made its decisions on anything other than the
evidence presented. Lee's counsel was "present and active" during voir dire and
actively involved throughout trial. Kehoe, 2013 WL 1707338, at *3. Lee has not
shown that his defense counsel's use of racially motivated peremptory strikes entirely
denied him of the assistance of counsel. We conclude that Lee has not shown that his
counsel's offensive use of peremptory strikes during voir dire resulted in prejudice to
him.

      The difference between Lee's sentence of death and Kehoe's sentence of life
imprisonment does not show that Lee was prejudiced by counsel's actions. The
evidence against Lee and Kehoe was not identical, and the fact that the jury sentenced
the two defendants differently supports that the jury was not simply motivated by
racism to impose the death penalty. The jury accepted Kehoe's mitigation case,
believing that he had been indoctrinated from a young age and would not be a future
danger. By contrast, the jury rejected Lee's arguments for mitigation and instead

                                         -12-
found that he would be a future danger. The district court explained to the jury that
both defendants had strong racist beliefs, and the differing sentences for the two men
shows that the jury impartially weighed the aggravating and mitigating factors to
determine the appropriate sentence for each defendant.

      Counsel's race based jury selection strategy was designed to produce a jury that
would closely scrutinize the government's case and be less likely to impose the death
penalty. While this strategy did not create the desired result, no evidence has been
provided to show that the resulting jury was biased against Lee. We therefore
conclude that Lee's claim for ineffective assistance of counsel fails.

                                         III.

       Lee also argues in his § 2255 petition that the district court should have set
aside his death sentence because it was imposed in violation of the United States
Constitution and the laws of the United States. Lee contends that the disparity
between his sentence and that of Kehoe shows that his sentence of death was
arbitrarily imposed. Lee further argues that the finding of his guilt was undercut
because (1) DNA testing after the trial concluded that the hair at the crime scene was
not his and (2) the jury was tainted by the government's multiple references to his
tattoos. Whether a sentence violates the Eighth Amendment is reviewed de novo.
United States v. Martin, 677 F.3d 818, 821 (8th Cir. 2012). Claims that "were raised
and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to
28 U.S.C. § 2255." Davis v. United States, 673 F.3d 849, 852 (8th Cir. 2012) (citing
Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003)).

       We have already rejected Lee's constitutional challenges to his sentence. In
ruling on his direct appeal, we concluded that Lee had "not provided support for his
claim that the death penalty was arbitrarily imposed on him." Lee, 374 F.3d at 653.
Lee had not cited any case which indicated that "imposition of the death penalty on

                                        -13-
one defendant but not the other violates § 3595(c)(1)." Id. Nothing in the Federal
Death Penalty Act "require[s] proportional review of sentences." Id. We observed
that the death penalty is not "arbitrarily imposed on a capital defendant despite the
jury's refusal to consider the accomplice's sentence of life imprisonment as a
mitigating factor." Id. (citing United States v. Paul, 217 F.3d 989, 999–1000 (8th Cir.
2000)). Since this claim was "raised and decided on direct appeal," it cannot be
relitigated by Lee in his petition for postconviction relief under § 2255. Davis, 673
F.3d at 852.

       Lee also challenges the government's reliance on three aggravating factors
which were accepted by the jury. Lee argues that the pecuniary gain aggravating
factor was inappropriate because he did not expect pecuniary gain from the murders,
the multiple murder aggravating factor was improper because it was not part of 18
U.S.C. § 3592 until three months after the murders, and the government's evidence
of future dangerousness was premised on junk science. Lee raised these arguments
in his motion to expand his certificate of appealability, but we declined to grant him
a certificate on the issues.

        In "the collateral context of a § 2255 motion," the issues "are limited by the
grant and scope of a certificate of appealability." United States v. Alaniz, 413 F.3d
877, 879 (8th Cir. 2005). These issues raised by Lee are beyond the scope of our
certificate of appealability and are therefore not properly before the court. See Fields
v. United States, 201 F.3d 1025, 1026 n.2 (8th Cir. 2000). Furthermore, we have
previously concluded that there was no "threat of unfair prejudice" from the
elicitation in this case of psychopathy evidence by the government during sentencing.
Lee, 274 F.3d at 495. We conclude that the jury properly considered the aggravating
factors advanced by the government in determining that Lee should be sentenced to
death.




                                         -14-
                                          IV.

          Accordingly, we affirm the order dismissing the petition for habeas corpus
relief.
                         ______________________________




                                         -15-
