                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1234
                                    ___________

David Barnett,                           *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Don Roper,                               *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: May 14, 2008
                                 Filed: September 5, 2008
                                  ___________

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

        David Barnett was convicted by a jury of, among other things, two counts of
first degree murder, and sentenced to death. The facts surrounding the killings are set
forth fully in the decision of the Missouri Supreme Court affirming Barnett’s
conviction on direct appeal and will not be recounted here. See State v. Barnett, 980
S.W.2d 297 (Mo. 1998) (en banc). Following that decision, Barnett was denied post-
conviction relief. Barnett v. State, 103 S.W.3d 765 (Mo. 2003) (en banc). The district
court1 denied Barnett’s request for a writ of habeas corpus. Barnett has appealed,

      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
alleging that the post-conviction court should have granted him an evidentiary hearing
on his ineffective assistance of trial counsel claim, that the prosecutor used her
peremptory strikes to discriminate against women, and that the prosecutor violated
Barnett’s due process right by stating a personal opinion about the appropriateness of
the death penalty. We affirm.

       We review a district court’s conclusions of law de novo and its findings of fact
for clear error. Malcom v. Houston, 518 F.3d 624, 626 (8th Cir. 2008).

                       I. Timely Filing of the Habeas Petition

       As a preliminary matter, we address the state’s argument, raised for the first
time on appeal, that the district court’s judgment should be affirmed because Barnett’s
petition for a writ of habeas corpus was not timely filed as required by 28 U.S.C. §
2244(d). Barnett concedes that his application was filed twenty-five days late, but
argues that the state has waived this defense.2

      The Federal Rules of Civil Procedure govern habeas proceedings unless
superseded by the rules governing section 2254 or 2255 cases. Fed. R. Civ. P. Rule
81(a)(4). The Rules provide that limitations defenses are forfeited unless pleaded in
an answer or an amendment to the answer. Day v. McDonough, 547 U.S. 198, 207-08
(2006) (citing Rules 8(c), 12(b), and 15(a)). The Supreme Court has carved out an
exception in habeas cases that allows a district court to consider sua sponte the
timeliness of a state prisoner’s petition. Day, 547 U.S. at 209. Even if this exception


      2
       “[T]he issue in this case is more accurately described as one of forfeiture rather
than waiver. Although jurists often use the words interchangeably, forfeiture is the
failure to make the timely assertion of a right[;] waiver is the intentional
relinquishment or abandonment of a known right.” Kontrick v. Ryan, 540 U.S. 443,
458 n.13 (2004) (internal citations and quotations omitted) (second alteration in
original).

                                          -2-
extends to allowing district courts to consider a party’s belated motion alleging
untimeliness, we decline to extend it to the appellate level, in part because the
Supreme Court has also held that only an objection to subject matter jurisdiction may
be raised post-trial; objections to untimeliness can no longer be raised after the case
has been decided. Kontrick v. Ryan, 540 U.S. 443, 459-60 (2004).

      Because it raised no limitations-period objections to Barnett’s motion for an
extension of time to file his habeas petition, nor did it raise the issue in any responsive
pleading or at any other time before the district court, the state has forfeited the
objection and may not raise it for the first time on appeal.

                                II. Procedural Default

       Barnett’s motion for post-conviction relief under Missouri Supreme Court Rule
29.15 alleged, among other things, ineffective assistance of trial counsel. Barnett v.
State, 103 S.W.3d at 768. Barnett argued, in part, that his trial counsel was ineffective
for failing to failing to investigate and present the details of his childhood
circumstances and for failing to call a mental health expert that would have been more
persuasive than those who were actually called. In support of his assertions, Barnett
proposed to call several hundred witnesses, which were listed with the witness’s full
name (when known) and address (when known), but not the substance of that
witness’s testimony. The text preceding the list was purportedly an amalgamation of
what the roughly 450 witnesses would testify to. The Missouri post-conviction court
denied Barnett’s motion without an evidentiary hearing because the pleading failed
to comply with the procedural requirements of Rule 29.15. Id. at 769-70. The
Missouri Supreme Court upheld that court’s decision. Id.

      Federal courts will not review a state court decision that rests on “independent
and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729-
30 (1991). This rule applies to bar federal habeas claims that a state has declined to

                                           -3-
consider because of the prisoner’s failure to satisfy a state procedural requirement.
Id. A state procedural rule will not bar enforcement of a federal right, however, unless
the rule furthers a legitimate state interest. James v. Kentucky, 466 U.S. 341, 348-49
(1984); Henry v. Mississippi, 379 U.S. 443, 447-49 (1965). Likewise, a state
procedural rule will not bar enforcement of a federal right if, although independent
and adequate, the rule is applied in an “exorbitant” manner. Lee v. Kemna, 534 U.S.
362, 376 (2002). The adequacy of a state’s procedural rule “‘is itself a federal
question.’” Id. at 375 (quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965)).

                                          A.

       A state procedural rule is adequate only if it is a “firmly established and
regularly followed state practice.” James v. Kentucky, 466 U.S. 341, 348-49 (1984).
Barnett argues that the rule announced in Morrow v. State, 21 S.W.3d 819 (Mo. 2000)
(en banc), which was decided after Barnett filed his petition, was not firmly
established by prior Missouri case law, nor was it a regularly followed state practice.

       In general, to obtain an evidentiary hearing on a Rule 29.15 motion, “the
movant must allege facts [not conclusions], not refuted by the record, showing that
counsel’s performance did not conform to the degree of skill, care, and diligence of
a reasonably competent attorney and that the movant was thereby prejudiced.” State
v. Jones, 979 S.W.2d 171, 180 (Mo. 1998) (en banc); see White v. State, 939 S.W.2d
887 (Mo. 1997) (en banc); State v. Williams, 945 S.W.2d 575, 582 (Mo. Ct. App.
1997), abrogated on other grounds by Deck v. State, 68 S.W.3d 418, 427 (Mo. 2002)
(en banc); State v. Simmons, 875 S.W.2d 919, 923 (Mo. Ct. App. 1994); State v.
Pendas, 855 S.W.2d 512 (Mo. Ct. App. 1993); State v. Dudley, 819 S.W.2d 51, 56
(Mo. Ct. App. 1991); State v. Jennings, 815 S.W.2d 434 (Mo. Ct. App. 1991); State
v. Fitzgerald, 781 S.W.2d 174, 188 (Mo. Ct. App. 1989).




                                          -4-
       When the claim of ineffective assistance relates to counsel’s failure to
investigate or call witnesses, Rule 29.15 does not require an evidentiary hearing if the
movant does not “identify who the witnesses were, what their testimony would have
been, whether or not counsel was informed of their existence, and whether or not they
were available to testify.” Dudley, 819 S.W.2d at 56; see Williams, 945 S.W.2d at
582; Simmons, 875 S.W.2d at 923; Pendas, 855 S.W.2d at 516; Childress-Bey v.
State, 779 S.W.2d 697, 699 (Mo. Ct. App. 1989). See also Jennings, 815 S.W.2d at
448-49 (requiring that the motion “state the facts to which the unproduced witness
would have testified” before an evidentiary hearing is granted); Barton v. State, 802
S.W.2d 561, 562 (Mo. Ct. App. 1991) (same); Fitzgerald, 781 S.W.2d at 188 (movant
must allege the facts to which the witness would testify and must make the witness
known to counsel); Johnson v. State, 776 S.W.2d 456, 458 (Mo. Ct. App. 1989)
(movant must allege the facts to which the witness would testify). The Missouri
Supreme Court upheld the post-conviction court’s decision because the pleading “did
not connect a specific portion of the narrative to a particular witness, did not allege
that counsel was informed of their existence, and did not state that any of the
witnesses were available to testify.” Barnett, 103 S.W.3d at 770. Although this
phrasing of the rule is not a verbatim repetition from earlier cases, it accurately sets
forth the essential elements of the rule, which we conclude was firmly established at
the time Barnett filed his Rule 29.15 motion.

      These pleading requirements have been regularly applied in Missouri courts.
Barnett points to several Missouri cases that he believes show that the standard has not
been applied consistently and that his pleadings were sufficient. In two of those cases,
the appellate court remanded for an evidentiary hearing in light of a motion that
alleged the name, the testimony, and the willingness to testify of a witness whom
counsel should have called. See State v. Sublett, 887 S.W.2d 618, 621-22 (Mo. Ct.
App. 1994); Jones v. State, 760 S.W.2d 176, 177 (Mo. Ct. App. 1988). Another case
was remanded for an evidentiary hearing on a motion that met the pleading
requirements but in which the post-conviction court inadvertently overlooked the valid

                                          -5-
claim set forth midway in an invalid claim. Griffin v. State, 937 S.W.2d 400, 400-01
(Mo. Ct. App. 1997). In two of the cited cases, the state agreed with the movant that
the matters should be remanded for an evidentiary hearing. See Teaster v. State, 986
S.W.2d 175, 175-76 (Mo. Ct. App. 1999); Webster v. State, 837 S.W.2d 585, 587-88
(Mo. Ct. App. 1992) (pleading requirements satisfied, and the circuit court
fundamentally misunderstood movant’s theory of the case and consequently the
importance of the witness that his attorney should have called). One court remanded
for an evidentiary hearing despite its finding that the pleadings were factually
insufficient, with the decision to do so being based on the extenuating circumstances
that the movant’s guilty plea was equivocal and the allegation that the movant would
not have pleaded guilty but for his counsel’s ineffective assistance. Sederes v. State,
776 S.W.2d 479, 480-81 (Mo. Ct. App. 1989). None of the grounds for reversal in
any of these cases indicate that Missouri arbitrarily or irregularly applies the pleading
requirements for a Rule 29.15 motion.

       Barnett argues that any such requirements are not firmly established because
the Missouri Supreme Court has since held in Wilkes v. State, 82 S.W.3d 925 (Mo.
2002) (en banc), that Rule 29.15 hearing petitions are not held to any special pleading
requirements. Although Wilkes contains a statement to that effect, id. at 929, it does
so only after reiterating both the general pleading requirements and the requirements
specific to claims alleging ineffective assistance for failure to call a witness. Barnett
further argues that Wilkes shows that the pleading requirements have not been
regularly applied because Wilkes’s motion did not state what the content of the
witness’s testimony would have been or that the witness was available to testify. See
Wilkes, 82 S.W.3d at 929. The witness had testified at Wilkes’s first trial, however,
which had resulted in a hung jury, and Wilkes claimed that his counsel had been
ineffective by not calling that witness at his second trial. 82 S.W.3d at 927-29. In
those circumstances, the content of the witness’s testimony was already fully known
because it had already been given under oath. See id. at 928-29. Further, there was
no reason to believe that the witness would not be available at the second trial, and

                                          -6-
that even if he was not, his former testimony could have been introduced as evidence.
See id. Moreover, the Wilkes court found that the allegations in the motion contained
the necessary implication that the witness was available to testify. See id. at 929.
The unique factual circumstances present in Wilkes justify the outcome reached
therein and do not indicate that Missouri does not regularly apply its pleading
requirements.

      In sum, we conclude that Missouri’s procedural rule is firmly established and
regularly applied and constitutes an independent and adequate ground that bars our
review of Barnett’s claims.

                                            B.

       A state procedural rule will bar federal review only if it serves a legitimate state
interest. Henry, 379 U.S. at 447-49. Missouri has a legitimate state interest in not
conducting evidentiary hearings in the face of insufficient pleadings because in the
absence of sufficiently specific allegations, “finality is undermined and scarce public
resources will be expended to investigate vague and often illusory claims, followed
by unwarranted courtroom hearings.” White, 939 S.W.2d at 893.

        A state has an especially strong interest in enforcing the requirement of
specificity in pleadings in cases involving numerous allegations because of the
additional expenditure of needless time and effort required to winnow out whatever
valid, substantive claims may be worthy of review. Barnett appears to contend that
his trial counsel was ineffective for failing to call approximately 450 witnesses. One
cannot fault the state court for concluding that such a broad, undifferentiated pleading
does not comply with the state’s procedural rules.




                                           -7-
                                          C.

        Even if a state procedural rule is firmly established and regularly applied and
thus constitutes an adequate and independent state ground that precludes federal
review, federal courts may review “exorbitant” applications of such rules. Lee v.
Kemna, 534 U.S. 362, 376 (2002). In Lee, the Supreme Court relied upon several
considerations in holding that a state’s procedural rule requiring that a motion for a
continuance be in written form and supported by an affidavit was not adequate to
block adjudication of Lee’s federal claim. Id. at 372, 381. The first of these was the
trial judge’s unusual scheduling conflict. Id. at 381. Second, three critical defense
witnesses unexpectedly disappeared on what became the last day of trial, a situation
the procedural rule was apparently neither designed to address nor to which it had ever
been applied. Id. at 382. Indeed, the arguments advanced on appeal as the basis for
faulting counsel’s alleged failure fully to comply with the rules were not raised until
long after the trial. Id. at 380. Finally, given those unique circumstances, trial
counsel’s oral motion constituted substantial compliance with the applicable rule. Id.
at 382-83. Because no similar unforeseeable circumstances justifying a relaxation of
the pleading requirements were present in Barnett’s case, we cannot say that the
Missouri Supreme Court’s application of Rule 29.15 was “exorbitant.”

      Accordingly, we conclude that Rule 29.15 constituted an independent and
adequate basis for the denial of Barnett’s request for an evidentiary hearing, and thus
we are precluded from considering that claim on habeas review.

                               III. Batson and J.E.B.

       A federal court must grant a state prisoner a writ of habeas corpus only if the
state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law,” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

                                         -8-
§ 2254(d). Thus, the state court’s decision must be objectively unreasonable, and not
merely incorrect, for us to grant the writ. Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003); Forsyth v. Ault, No. 07-2839, 2008 WL 3166272, at *3 (8th Cir. Aug. 8,
2008). We presume that the state court’s findings of fact are correct, and the prisoner
has “the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).

       The Equal Protection Clause prohibits the use of race-based peremptory strikes
against a person. Batson v. Kentucky, 476 U.S. 79, 90-91 (1986). Under J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 141-42 (1994), this rule also applies to
peremptory strikes based on the potential juror’s sex. Once a prima facie case has
been made that a Batson or J.E.B. violation has occurred, the burden shifts to the state
to offer a race- or sex-neutral explanation for the strike. Swope v. Razzaq, 428 F.3d
1152, 1154 (8th Cir. 2005) (per curiam). The burden then returns to the defendant to
prove that the state’s explanation was pretextual. See id. at 1154-55. The court
should consider all the relevant circumstances in resolving this issue. See Miller-El
v. Dretke, 545 U.S. 231, 265-66 (2005).

      Barnett argues that the Missouri Supreme Court’s application of J.E.B. was
unreasonable regarding two female potential jurors, Donna Straub and Paula Moore.
The prosecutor stated that she struck Straub because Straub was “a very young female
who is single,” and that Straub was “weak” and “would not be a good state’s juror.”
The Missouri Supreme Court upheld the strike because the “prosecutor’s response, in
context, is that Ms. Straub was struck because she was ‘very young’ and ‘single,’ not
because she was ‘female.’” State v. Barnett, 980 S.W.2d at 302. The prosecutor’s
motive in striking a juror is a factual issue, Shurn v. Delo, 177 F.3d 662, 665 (8th Cir.
1999), and so is entitled to the presumption of correctness required by 28 U.S.C. §
2254(e)(1), which can be rebutted only by clear and convincing evidence.




                                          -9-
        Barnett argues that the Missouri Supreme Court’s decision is unreasonable
because the prosecutor used all of her eleven peremptory strikes against women and
none against similarly situated men. Barnett compares his case favorably to the facts
in Miller-El, which was decided subsequent to the denial of his petition for habeas
relief. In Miller-El, prosecutors shuffled the jury twice and offered no reason to rebut
the defendant’s evidence that this was done to limit the number of black persons on
the jury. Id. at 26. Ten of the eleven qualified black persons were peremptorily
struck; two of those who were allegedly struck for being hesitant about applying the
death penalty actually gave answers that any unbiased prosecutor seeking the death
penalty would have readily accepted. Id. Half of the blacks but only 3% of the non-
blacks were subject to a strike-justifying script designed to elicit hesitation about
imposing the death penalty. Id. All of the blacks but only about a quarter of the non-
blacks were asked a trick question. Id. at 265-66. “The prosecutors’ chosen
race-neutral reasons for the strikes do not hold up and are so far at odds with the
evidence that pretext is the fair conclusion . . . .” Id. at 265.

       Although the use of the strikes against only women may constitute some
evidence of a discriminatory motive, Barnett does not point to the presence of any
young, single males in the jury pool whom the prosecutor should have struck.
Further, the egregious facts present in Miller-El were not present during Barnett’s
trial. There was no jury shuffling, and no different forms of questioning were posed
to the male and female members of the jury pool. Accordingly, any differences
between the justification for the strike and the answers given by Straub are not
sufficient to rebut by clear and convincing evidence the sex-neutral explanation
offered by the prosecutor.

       The prosecutor stated that she struck Moore because Moore had not answered
any of her questions, with the result that she felt like Moore was an unknown. Barnett
makes much of the fact that Moore did actually answer one of the prosecutor’s
questions with a “yes,” contending that this demonstrates the prosecutor’s

                                         -10-
discriminatory intent. Barnett also argues that two male jurors had been similarly
silent during voir dire but were not struck. While this may constitute some evidence
of a J.E.B. violation, silence during general questions to the venire is a race- and sex-
neutral reason for a strike. Also, the prosecutor’s failure to recall that one juror did
in fact answer one question does not constitute clear and convincing evidence of
discriminatory intent.

      Accordingly, the district court did not err in ruling that the Missouri Supreme
Court’s decision denying Barnett’s challenge to the jury-selection process was neither
contrary to, nor an unreasonable application of, federal law. In reaching this
conclusion, we have taken into account the Supreme Court’s recent decision in Snyder
v. Louisiana, 128 S. Ct. 1203 (2008), and find that none of the factors that warranted
habeas relief in that case were present in Barnett’s case.

          IV. Prosecutor’s Opening Argument During the Penalty Phase

       Barnett argues that the prosecutor improperly stated her personal opinion during
her opening argument during the penalty phase of the trial. Our review of this issue
is also governed by 28 U.S.C. § 2254, as discussed above.

       Improper remarks by the prosecutor can violate the Fourteenth Amendment if
they “so infected the trial with unfairness as to make the resulting conviction a denial
of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “The court
should only grant habeas corpus relief if the state’s ‘closing argument was so
inflammatory and so outrageous that any reasonable trial judge would have sua sponte
declared a mistrial.’” Weaver v. Bowersox, 438 F.3d 832, 840 (8th Cir. 2006), cert.
dismissed sub nom Roper v. Weaver, 127 S. Ct. 2022 (2007), (quoting James v.
Bowersox, 187 F.3d 866, 869 (8th Cir.1999)). Relief will be granted only upon a
showing of a reasonable probability that the outcome would have been different but
for the improper statement. Shurn v. Delo, 177 F.3d 662, 667 (8th Cir. 1999).

                                          -11-
      The prosecutor in Barnett’s case stated:

      The judge read to you the instructions about the aggravating
      circumstances. And I think you’ll find that the very nature of the crime
      itself constitutes the aggravating circumstances that you are to consider.
      I submit to you that those have already been proven beyond a reasonable
      doubt. The decisions that are left for you to make are whether you
      believe that those murders warrant the imposition of the death penalty.
      And if those don’t, I don’t know what does.

Add. 119 (emphasis added). Barnett’s contemporaneous objection was later forfeited,
so the Missouri Supreme Court reviewed the challenged statement for plain error and
found none. The district court thought the statement improper, but found that the
Missouri Supreme Court had not unreasonably applied federal law.

        Barnett contends that under Weaver, Shurn, and Newlon v. Armontrout, 885
F.2d 1328 (8th Cir. 1989), the prosecutor’s statement mandates a new penalty phase
trial. In Newlon,

      the prosecutor (1) expressed his personal belief in the propriety of the
      death sentence and implied that he had special knowledge outside the
      record; (2) emphasized his position of authority as prosecuting attorney
      of St. Louis County; (3) attempted to link petitioner with several
      well-known mass murderers; (4) appealed to the jurors' personal fears
      and emotions; and (5) asked the jurors to “kill him now. Kill him now.”

885 F.2d at 1335. In Shurn, the prosecutor made arguments nearly identical to those
made in Newlon. Shurn, 177 F.3d at 665-66. The improper statements made in
Weaver can be placed into five categories:

      (1) an analogy that the role of a juror is like that of a soldier who must
      do his or her duty and have the courage to kill; (2) statements by the
      prosecutor about his personal belief in the death penalty; (3) statements

                                        -12-
      that executing Weaver was necessary to sustain a societal effort as part
      of the “war on drugs”; (4) assertions that the prosecutor had a special
      position of authority and decided whether to seek the death penalty; and
      (5) arguments that were designed to appeal to the emotions of the jury
      (culminating in a statement that the jury should “kill [Weaver] now”).

438 F.3d at 840. Although in each of these cases statements of personal belief about
the applicability of the death penalty were made, the prosecutors also made a number
of additional improper statements, including commands that the jury “kill [the
defendant] now” and assertions of special authority over the circumstances in which
the death penalty should be applied. We conclude that the complained-of comment
made by Barnett’s prosecutor does not compare in polemical stridency with those
described above and was not so outrageous or prejudicial as to warrant a sua sponte
declaration by the trial court of a mistrial, nor did it inject such unfairness into the
penalty phase that Barnett was denied due process of law. Accordingly, the district
court did not err in ruling that the Missouri Supreme Court’s decision rejecting
Barnett’s challenge to the argument was neither contrary to nor an unreasonable
application of federal law.

                                    V. Conclusion

      Given the deferential standard of review that we are required to apply during
federal review of a state prisoner’s petition for a writ of habeas corpus, we conclude
that Barnett is not entitled to habeas relief.

      Accordingly, the judgment is affirmed.
                      ______________________________




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