                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3462
                                   ___________

William Weaver,                      *
                                     *
           Petitioner-Appellee,      *
                                     * Appeal from the United States
     v.                              * District Court for the Eastern
                                     * District of Missouri
Michael Bowersox,                    *
                                     *
           Respondent-Appellant.     *
                                ___________

                             Submitted: June 13, 2000

                                  Filed: February 23, 2001
                                   ___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

       The State of Missouri appeals from the judgment of the district court granting
William Weaver's petition for habeas corpus relief under 28 U.S.C. § 2254. The
district court determined that Weaver's Fourteenth Amendment rights under the Equal
Protection Clause were violated when the state prosecutor exercised two peremptory
strikes against black venirepersons during Weaver's murder trial. We reverse; we also
remand to the district court to address the remaining twenty-one issues raised in
Weaver's petition.
                                 BACKGROUND

       On July 19, 1988, a St. Louis County jury convicted Weaver, a black male, of
first-degree murder for the death of Charles Taylor. The following day the jury
sentenced Weaver to death.

       During jury selection, the prosecutor exercised seven of his nine peremptory
strikes on white venirepersons and the remaining two on black venirepersons, leaving
a jury comprised of nine whites and three blacks. Weaver challenged the two strikes
against black venirepersons, relying upon the Supreme Court's decision in Batson v.
Kentucky, 476 U.S. 79 (1986). The state trial court held a hearing at which the
prosecutor explained his peremptory strikes by stating

      there's not a pattern of discrimination or systematic exclusion. There are
      three blacks on the jury, which is 25% of the jury, which I think is
      significantly higher than the black population in St. Louis County.

      The two blacks I struck with my peremptory strikes were not because the
      people were black but for other reasons. Let's see. Juror number 27, Ms.
      Burns, I struck her for a number of reasons: One, in the death penalty
      phase, although she said she could impose the death penalty, I wasn't
      persuaded that she could. I thought she said it with some reluctance and
      some hesitation. I also couldn't maintain eye contact with her. I know
      bad vibrations and bad chemistry between a lawyer and a prospective
      juror doesn't carry great weight with the Court or, at least, the Court of
      Appeals, but I think it's a legitimate reason for the attorney to strike
      someone.

      In any event, I was not persuaded that she could give the death penalty,
      particularly to a fellow black person. I didn't think she was strong
      enough. I observed her a lot of times cutting up and talking to the black
      gentleman next to her, Mr. Innman, who I have left on the jury by way of
      my strikes. And I simply felt that she would not be a fair and impartial
      juror.

                                         -2-
      With regard to juror number 54, Ms. Newsome, I felt that she was a weak
      person, both during voir dire on the death penalty, and on the voir dire –
      just the general voir dire, although Ms. Black conducted most of it. My
      impression of her was that she was not particularly bright and I struck a
      couple of white people for that very same reason. I thought in a case like
      this I needed intelligent people. I didn't figure she qualified in that regard
      and I thought she took the whole matter rather frivolously.

      But in any matter, Judge, of nine peremptory strikes, I have used only two
      to strike blacks. Seven were used to strike whites. I have left three
      blacks on the jury, even though I have enough peremptory strikes to
      attempt to remove all five.

      ...

      Perhaps I misstated my case somewhat with Ms. Newsome when I say
      intellectually weak. What I really meant is her personality struck me –
      granted, she did try hard to get on the jury, which showed civic minded
      interest; but in those interviews with the Court, she just struck me as a
      person that was a weak personality where the death penalty is involved,
      and I didn't think she would be able to vote for the death penalty.

       In evaluating the Batson claim, the state trial court observed that three of the
jurors remaining on the panel were black, and also that the alternate juror was black.
The trial court denied the Batson challenge stating that, "the court does find that no
prima facie showing of discrimination in the jury selection has been made."

      Weaver brought post-conviction motions for relief in state court, which were
denied. He also appealed his conviction and sentence to the Missouri Supreme Court.
Weaver's direct appeal was consolidated with his appeal from the denial of his post-
conviction motions. On December 19, 1995, the Missouri Supreme Court affirmed the
conviction and death sentence. See State v. Weaver, 912 S.W.2d 499 (Mo. 1995).




                                           -3-
       The Missouri Supreme Court analyzed the Batson claim differently than the trial
court. Rather than reviewing the trial court's determination that the defendant had not
established a prima facie showing of discrimination, on appeal the court focused on
whether the prosecutor had offered race-neutral explanations for his peremptory strikes.
The Missouri Supreme Court concluded that the prosecutor's stated reasons for striking
venireperson Burns were race-neutral, and that no Batson violation occurred.

      What a prosecutor observes about a potential juror in voir dire, as well as
      what is said, may form a legitimate nondiscriminatory basis for exercising
      a peremptory strike. See Purkett, ___ U.S. ___, 115 S. Ct. at 1771.
      Those observations here included reluctance and hesitation in answering
      questions, lack of eye contact with the prosecutor, lack of strength, and
      "cutting up" and talking during voir dire. The prosecutor's explanation
      here was specific, race-neutral, and free of any racially discriminatory
      purpose. The trial court had the opportunity to observe the juror in
      question, listen to the manner in which she answered the questions, and
      to assess the prosecutor's demeanor and reasons for striking the juror.

Weaver, 912 S.W.2d at 509.

       The Missouri Supreme Court also concluded that no Batson violation occurred
with respect to venireperson Newsome:

      As to [Newsome], the state's reason for striking her was race neutral. By
      her words and conduct, [Newsome] led the prosecutor to believe that she
      was frivolous, had a weak personality or was intellectually weak,
      particularly where the death penalty was concerned. It is not inherently
      pretextual to say that in a capital case a prosecutor would want serious
      jurors that are of above average intelligence and not reluctant to impose
      the death penalty when appropriate.

Id. at 509-10.



                                          -4-
                             PROCEDURAL HISTORY

       On April 18, 1996, Weaver filed a pro se habeas corpus petition in federal
district court. At that time, Weaver had not yet petitioned the United States Supreme
Court for review of the Missouri Supreme Court's decision affirming his conviction and
death sentence. The district court dismissed Weaver's petition without prejudice so that
he could fully exhaust his state remedies. Weaver petitioned the Supreme Court for a
writ of certiorari, which the Court denied on October 7, 1996. Weaver v. Missouri,
519 U.S. 856 (1996).

       On November 12, 1996, Weaver filed a second pro se habeas corpus petition in
federal court. After the district court appointed counsel to assist Weaver in presenting
his petition, Weaver filed an amended petition raising the Batson claim and twenty-one
other issues.

       Weaver's two petitions straddled the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA)
(effective April 24, 1996), which set new standards that curtail the federal courts'
review of constitutional challenges to state custody. See generally, Williams v. Taylor,
529 U.S. 362, ___, 120 S. Ct. 1495, 1518 (2000) (O'Connor, J., concurring, writing for
five Justices on this point).

      On August 9, 1999, the district court granted Weaver a writ of habeas corpus.
The district court held that the state trial court improperly applied Batson's three-step
process for analyzing a prosecutor's use of peremptory strikes.1 Citing Hernandez v.


       1
        Batson's three-step process first requires the defendant to make a prima facie
showing that the prosecution exercised one or more peremptory challenges based on
race. Second, after a prima facie showing is made, the burden shifts to the prosecutor
to give a racially neutral explanation for the challenge. Third, the trial court must decide

                                            -5-
New York, 500 U.S. 352 (1991), the district court decided that the state trial court
applied Batson unreasonably — instead of considering whether the prosecutor's
articulated reasons for the peremptory strikes were race neutral, the state trial court
merely found that the defendant had made no prima facie showing. Hernandez holds
that a defendant's prima facie requirement becomes moot if a prosecutor offers a race-
neutral explanation before the court rules that the defendant made a prima facie
showing. See Hernandez, 500 U.S. at 359.

       In addition, the district court independently analyzed the prosecutor's stated
reasons for striking venireperson Burns. The district court found that the prosecutor
struck Burns for reasons which were not race neutral.

       The district court did not specifically address whether Weaver's petition should
be analyzed under AEDPA, concluding that a Batson violation had occurred even if
the state trial court's actions were examined under the heightened standard. In addition,
the district court addressed only the state trial court's decision, and did not consider
whether the Missouri Supreme Court decision was contrary to, or involved an
unreasonable application of Batson. After granting Weaver a writ based upon the
Batson claim, the district court declined to address Weaver's remaining twenty-one
claims.




whether the defendant has established purposeful discrimination. See Batson, 476 U.S.
at 96-98.


                                          -6-
                                    DISCUSSION

I.    Application of AEDPA

       As a threshold matter, we must decide whether AEDPA, and its new standard
of review, applies to Weaver's habeas petition. Weaver asks us to apply the pre-
AEDPA standard. He filed his first petition on April 18, 1996, six days before AEDPA
took effect. That petition was dismissed without prejudice for failure to exhaust state
remedies. After exhausting state remedies, Weaver returned to federal court on
November 12, 1996. He notes that, under pre-AEDPA law, the second filing
constituted a mere continuation of the first filing, because the first was not adjudicated
on the merits. See Sanders v. United States, 373 U.S. 1, 17 (1963). Thus he argues
that the standard in effect when he filed his first petition applies.

      We disagree. AEDPA's provisions apply to all habeas corpus petitions filed after
the Act's effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). We hold that this
rule applies even when a prisoner's original petition was filed prior to AEDPA's
effective date and dismissed without prejudice for failure to exhaust state remedies.
See Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir. 2000); see also Mancuso v.
Herbert, 166 F.3d 97, 101 (2nd Cir. 1999).

       Weaver's argument proves a different point. We agree that Weaver's second,
post-AEDPA filing isn't a second or successive petition. See Slack v. McDaniel, 529
U.S. 473, ___, 120 S. Ct. 1595, 1604-05 (2000). But "whether a petition is a 'second
or successive' application under the AEDPA is an entirely different question" than
whether AEDPA applies to a petition filed after the Act's effective date. Mancuso, 166
F.3d at 101 n.4; see Barrientes, 221 F.3d at 751 ("Whether the petition at issue will be
considered 'second or successive' within the meaning of the Act is immaterial to the
analysis"). For present purposes, then, the question is whether AEDPA applies; we
hold that it does because Weaver's petition was filed after AEDPA's effective date.

                                           -7-
II.   Standard of Review

      A state prisoner may seek a writ of habeas corpus in federal court if his
confinement violates the federal Constitution or federal law. 28 U.S.C. § 2254(a).
Under AEDPA, a federal court may grant such a writ only if the state court proceedings

      (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.

Id. § 2254 (d)(1) & (2).

       Section 2254(d) distinguishes between two types of erroneous decisions —
those of law and those of fact — and treats each in separate subparagraphs. Claims
of legal error, whose review is governed by § 2254(d)(1), admit of even finer
gradations. See Williams, 120 S. Ct. at 1519-20 (delineating four separate categories
of § 2254(d)(1) cases). Claims of factual error are subjected to the standard enunciated
in § 2254(d)(2); section 2254(e)(1) then establishes a presumption of correctness in
favor of state court findings of fact.

       As a preliminary matter, then, we must identify the particular statutory provision
that governs Weaver's case. Weaver challenges the state court's disposition of his
Batson claim. We have held that each of the three steps of the Batson inquiry involves
a determination of fact. See United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)
(step one: prima facie showing); Shurn v. Delo, 177 F.3d 662, 665 (8th Cir. 1999) (step
two: prosecutor's race-neutral explanations); United States v. Fuller, 887 F.2d 144, 146
(8th Cir. 1989) (step three: court's ultimate finding on purposeful discrimination).

                                          -8-
Because Weaver's challenge necessarily involves a question of fact, we must review
his claim under § 2254(d)(2). Accordingly, our review presumes that the Missouri
courts found the facts correctly, unless Weaver rebuts that presumption with clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1). It bears repeating that even
erroneous fact-finding by the Missouri courts will not justify granting a writ if those
courts erred "reasonably." Cf. Williams, 120 S. Ct. at 1522 (discussing the meaning
of the word "unreasonable" as employed in § 2254(d)(1)).

III.   The Batson Claim

       A.    The State Trial Court Decision

       The state trial court rejected Weaver's Batson challenge, explaining that "no
prima facie showing of discrimination in the jury selection has been made." We
regularly defer to the fact-findings of trial courts because those courts are uniquely
positioned to observe the manner and presentation of evidence. Our deference to trial
court fact-finding is doubly great in the present circumstance because of the "unique
awareness of the totality of the circumstances surrounding voir dire," Moore, 895 F.2d
at 486, and because of the statutory restraints on the scope of federal habeas review.

       First, a trial court's determination of the Batson prima facie step is highly fact-
intensive. The determination is based largely upon information "that will not be evident
from a reading of the record," such as the ability to "evaluate general demeanor; to
observe attention span, alertness, and interest; and to assess reactions indicating
hostility or sympathy towards or fear of the parties." Id. at 485-86. Second, on habeas
review, we accord state trial courts broad latitude in determining questions of fact by
virtue of the statutory presumption in favor of state court fact-findings, see 28 U.S.C.
§ 2254(e)(1).




                                           -9-
        Weaver's showing falls short of rebutting the presumptive correctness of the state
trial court's determination that Batson wasn't violated. Weaver points to the fact that
the state trial court's express findings were limited to comments about the racial
composition of the jury — a "numbers analysis." He directs us to our earlier precedent
that a numbers analysis cannot, on its own, negate a prima facie case. See United
States v. Johnson, 873 F.2d 1137, 1139-40 (8th Cir. 1989). But Weaver advances no
additional support for his claim that the state trial court determined the facts
"unreasonably" in light of the totality of the evidence presented. See 28 U.S.C. § 2254
(d)(2).

      Contrary to Weaver's assertions, we believe that the district court's numbers
analysis entails precisely the opposite conclusion. Our early Batson cases (decided
during roughly the same time period as the instant state court decision) suggest that a
numbers analysis is relevant in determining whether a defendant has established a prima
facie case. E.g., Moore, 895 F.2d at 486 n.5; United States v. Fuller, 887 F.2d 144,
146 (8th Cir. 1989). Of course, the trial court's decision does not stand or fall on a
numbers analysis alone. The state trial judge personally observed the venirepersons'
demeanor during voir dire, and doubtless developed a sense for those their acumen.
Likewise, the state trial judge personally observed the prosecutor during the exercise
of peremptory strikes, and later when he explained his conduct.

      In addition, we agree with the State of Missouri's contention that Weaver failed
to provide additional evidence at the Batson hearing to establish a prima facie case.
Weaver argued only against the weight of the race-neutral reasons proffered by the
prosecutor, without demonstrating that the prosecutor's reasons were pretextual.

        In sum, the trial court's use of numbers analysis (a relevant factor), coupled with
the court's unique opportunity to observe the entirety of voir dire, coupled with
Weaver's failure to provide additional evidence at the Batson hearing, supports the state
trial court's decision to deny Weaver's Batson claim. See Luckett v. Kemna, 203 F.3d

                                           -10-
1052, 1054 (8th Cir. 2000). Weaver has failed to overcome the statutory presumption
of correctness afforded the state court's fact-finding. Because he cannot denigrate the
state trial court's factual determinations, we cannot conclude that the state trial court's
decision was "based on an unreasonable determination of the facts." 28 U.S.C. §
2254(d)(2).2

      B.     The Missouri Supreme Court Decision

       We also examine the Missouri Supreme Court's decision because it was based
on different grounds than the state trial court decision. Cf. Ward v. French, 989 F.
Supp. 752, 761 (E.D.N.C. 1997) (addressing the presumptive correctness of factual
findings made by both a state trial court and the North Carolina Supreme Court). The
Missouri Supreme Court did not review the trial court's prima facie determination, but
instead made its own express factual finding that the prosecutor gave race-neutral
explanations for his two peremptory strikes. See Weaver, 912 S.W.2d at 509.


      2
         The district court concluded that Weaver's petition raised a § 2254(d)(1)
challenge, namely, the state trial court’s "unreasonable application of" Batson. The
district court faulted the state trial court for analyzing the alleged violation under step
one of the Batson analysis (prima facie showing), instead of moving to step two when
the prosecutor gave race-neutral explanations for striking the black venirepersons. The
district court erred in this respect. Weaver's petition raised Batson claims, which
require factual determinations. As we explained above, § 2254(d)(2) governs federal
review of state court factual determinations.
       Even if subsection (d)(1) had applied, however, the district court's analysis was
flawed. Weaver was tried in July 1988, nearly three years before the Supreme Court
decided Hernandez v. New York, which holds that a defendant’s prima facie showing
is mooted when the prosecutor explains his strikes before the court can rule on the
prima facie step. 500 U.S. at 359. The state trial court can hardly be faulted for failing
to follow a Supreme Court decision that didn't exist at the time of Weaver's murder
trial. Cf. Luckett, 203 F.3d at 1053 & 1055 n.8 (involving habeas review of a pre-
Hernandez Batson decision, declining to apply the Hernandez rule, and analyzing the
state court's decision under step one of Batson instead).

                                           -11-
      Findings of fact made by state appellate courts have the same presumptive
correctness as findings of fact made by state trial courts. Cf. Sumner v. Mata, 449 U.S.
539, 546-47 (1981) (applying the pre-AEDPA version of 28 U.S.C. § 2254 (e)(1));
Jones v. Jones, 938 F.2d 838, 842-43 (8th Cir. 1991) (citing Sumner v. Mata and
addressing findings of fact made by Missouri appellate courts on a Batson claim).

       As with the state trial court's fact-finding, Weaver has failed to rebut the
presumptive correctness of the Missouri Supreme Court's determination that the
prosecutor gave race-neutral reasons for striking two venirepersons. The only point
that bears elaboration is the prosecutor's comment that "[i]n any event, I was not
persuaded that [Burns] could give the death penalty, particularly to a fellow black
person." (Emphasis added). Weaver argues that this statement is racially
discriminatory on its face, and requires a finding of a Batson violation. The Missouri
Supreme Court held that this comment did not violate Batson because it was clear that
the "prosecutor's decision to strike B[urns] was not based solely upon race or upon any
assumptions about persons of [Burns's] race but was based upon the way she behaved
and answered questions, that is, hesitation, lack of eye contact, flippancy and other
intangibles observed only by those present in the courtroom." Weaver, 912 S.W.2d at
509 (emphasis added).

       The Missouri Supreme Court's analysis is consistent with the dual motivation
analysis that we have recognized. See United States v. Darden, 70 F.3d 1507, 1531
(8th Cir. 1995). In Darden, we rejected a Batson claim where the prosecutor gave
several race-neutral reasons for striking a venireperson before adding one reason that
was discriminatory. The district court did not expressly find that the prosecutor's
peremptory strike was based solely on the race-neutral reasons, but said "the other
reasons you expressed give cause that are . . . racially neutral – the other reasons you
stated. . . . For that reason I'm allowing the strike. . . . [T]he other reasons you gave
give the basis for being a strike." Id. (quoting the trial transcript). We held that the
district court's decision "was equivalent to a finding that the prosecutor would have

                                          -12-
exercised the strike even without the one non-racially neutral motive." Id. (emphasis
added).

       Here, the Missouri Supreme Court found that the peremptory strike "was based"
upon the several race-neutral reasons given by the prosecutor. Weaver, 912 S.W.2d
at 509. That decision, as in Darden, is equivalent to a finding (and necessarily implies)
that the prosecutor would have exercised the strike even if he hadn't expressed a
facially discriminatory motive. Thus, we find no "unreasonable" error in the Missouri
Supreme Court's factual determination. See 28 U.S.C. § 2254(d)(2); cf. Williams, 120
S. Ct. at 1522.

IV.    The Remaining Claims

       After determining that a Batson violation occurred, the district court failed to
address the remaining twenty-one issues raised by Weaver in his petition. We have
instructed district courts to decide all issues raised in a habeas petition, particularly in
death penalty cases, on the grounds that "the allowance of piecemeal litigation cannot
possibly serve the interests of society, the defendant or the crime victim." Hulsey v.
Sargent, 15 F.3d 115, 119 (8th Cir. 1994). On remand, the district court must address
all of Weaver's remaining claims at the same time, regardless of their disposition.

                                    CONCLUSION

      For the reasons stated above, we reverse and remand for further proceedings
consistent with this opinion.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

     Because the prosecutor's open admission that he based his decision to strike
Ms. Burns partly upon her race constitutes direct evidence of unconstitutional

                                           -13-
discrimination, the state trial court was, in my view, required to make an inquiry into
whether the prosecutor would have made the same decision absent the illegal animus.
The state trial court never made the necessary finding on this crucial factual matter,
however, nor did the Missouri Supreme Court, because it applied the wrong legal
standard. The Supreme Court of Missouri merely held that "the prosecutor's decision
to strike [Ms. Burns] was not based solely upon race or upon any assumptions about
persons of her race." See Weaver, 912 S.W.2d at 509 (emphasis supplied). This
holding begs the question because the relevant issue is not whether the prosecutor
based his strike solely on race, but whether he would have stricken Ms. Burns had race
not been a motivation. See United States v. Darden, 70 F.3d 1507, 1531-32 (8th Cir.
1995). I believe that this legal error involved at the very least an unreasonable
application of Batson.

       I also think, moreover, that the district court erred in holding, essentially, that it
would be unreasonable to find on the record before the state trial court that the
prosecutor would have made the same decision absent the unconstitutional animus. For
that reason, I would remand to the district court with directions to issue a writ of
habeas corpus ordering Mr. Weaver's release unless within 120 days the state court
makes a finding in accordance with the principles laid down in Batson. See Coulter v.
Gilmore, 155 F.3d 912 (7th Cir. 1998). In other words, on remand, the state court
would be obliged to decide whether the prosecutor would have stricken Ms. Burns but
for her color. If he would not have, Mr. Weaver would be entitled to relief.

       I therefore respectfully dissent.




                                            -14-
A true copy.

      Attest:

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




                          -15-
