                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2323
                                     ___________

Lemuel Carter, Jr.,                    *
                                       *
                  Appellee,            *
                                       * Appeal from the United States
     v.                                * District Court for the Eastern
                                       * District of Missouri.
Michael Kemna; Jeremiah (Jay) W.       *
Nixon, Missouri Attorney General,      *
                                       *
                  Appellants.          *
                                  ___________

                              Submitted: March 15, 2001

                                   Filed: June 18, 2001 (corrected 7/3/01)
                                    ___________

Before RICHARD S. ARNOLD, FAGG, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

FAGG, Circuit Judge.

      The State of Missouri charged Lemuel Carter, Jr. with second-degree murder,
robbery, assault, and armed criminal action. During jury selection at Carter’s trial, the
prosecution used a peremptory challenge to exclude an African-American, Mr. Hurst,
from the pool of potential alternate jurors. Carter objected asserting the exclusion was
based solely on Hurst’s race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
At a Batson hearing, the prosecution stated Hurst was challenged because he did not
respond consistently to written and oral voir dire questions about being the victim of
a crime. Defense counsel asserted the prosecutor’s explanation was a pretext for
intentional discrimination because a similarly situated white potential juror, Mr. Weis,
was not removed. The court overruled Carter’s objection. The originally empaneled
jury convicted Carter. No alternate jurors joined deliberations.

       Carter renewed his Batson challenge on direct appeal. The Missouri Court of
Appeals affirmed Carter’s conviction, concluding that although Hurst and Weis were
similarly situated, the reason for excluding Hurst was immaterial. State v. Carter, 889
S.W.2d 106, 109 (Mo. Ct. App. 1994). The court reasoned that because Hurst was
rejected as an alternate juror, and no alternates deliberated on Carter’s case, Hurst’s
exclusion did not violate the Constitution. Id. Carter then filed a federal habeas
petition under 28 U.S.C. § 2254. The district court granted Carter habeas relief on his
Batson claim. The State appeals, and we reverse.

       The Antiterrorism and Effective Death Penalty Act (AEDPA) limits the power
of a federal habeas court to grant a state prisoner’s habeas petition on grounds decided
on the merits in state court. Williams v. Taylor, 529 U.S. 362, 412 (2000). A federal
court may not grant habeas relief to a state prisoner unless the state court’s rejection
of the prisoner’s claim was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 412-13. Here, the district
court concluded the state court’s decision was not contrary to Batson, but was an
unreasonable application of Batson to the facts of Carter’s case. We review the district
court’s conclusion de novo. Simmons v. Bowersox, 235 F.3d 1124, 1130 (8th Cir.
2001).




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       A state court’s decision is contrary to clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of law
or different than the Supreme Court’s conclusion on a set of materially indistinguishable
facts. Williams, 529 U.S. at 412-13. Batson holds the Equal Protection Clause
prevents a party from using peremptory challenges to exclude potential jurors solely
because of their race. Batson, 476 U.S. at 89. When the prosecution violates Batson,
the defendant’s conviction must be reversed. Id. at 100. The facts of Carter’s case are
materially distinguishable from those in Batson, however, because Batson did not
involve removal of potential alternate jurors where none ultimately deliberated. The
Supreme Court has not said whether or not Batson requires automatic reversal when
a prosecutor wrongly excludes an alternate juror, but no alternate joins deliberations.
The Supreme Court has held certain categories of constitutional errors are structural
defects that obviously affect the entire conduct of the trial from beginning to end, and
thus are not subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991). These include the unlawful exclusion of members of the defendant’s
race from a grand jury. Vasquez v. Hillery, 474 U.S. 254 (1986). Nevertheless, the
Supreme Court’s decisions do not dictate a result in Carter’s case. The state court’s
refusal to reverse Carter’s conviction based on his Batson claim is not opposite to the
Supreme Court’s conclusion on a question of law or different than the Supreme Court’s
conclusion on a set of materially indistinguishable facts. Thus, we agree with the
district court that the state court’s decision is not contrary to clearly established
Supreme Court precedent.

       We thus turn to whether the state court’s decision was an unreasonable
application of Supreme Court precedent. A state court decision involves an
unreasonable application of Supreme Court precedent when the state court
unreasonably refuses to extend a legal principle to a new context where it should apply.
 Williams, 529 U.S. at 407. Federal habeas relief is warranted only when the refusal
was “objectively unreasonable,” not when it was merely erroneous or incorrect. Id.
at 410-11.

                                          -3-
       Missouri argues the state court’s refusal to grant Carter relief based on Batson
was reasonable. We agree. In the absence of controlling Supreme Court precedent,
lower courts disagree about whether Batson requires reversal of a conviction when an
alternate juror is improperly excluded, but no alternate joins the deliberating jury.
Compare United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999) (holding Batson
error involving alternate juror is not subject to harmless error review), with United
States v. Canoy, 38 F.3d 893, 899 n.6 (7th Cir. 1994) (noting some authority for holding
Batson error regarding alternate juror harmless when no alternate juror deliberates);
United States v. Lane, 866 F.2d 103, 106 n.3 (4th Cir. 1989) (noting defendant would
not be prejudiced if no alternate juror deliberated); Nevius v. Sumner, 852 F.2d 463,
468 (9th Cir. 1988) (holding Batson error harmless when no alternate jurors
deliberated). See also Ford v. Norris, 67 F.3d 162, 170-71 (8th Cir. 1995)
(constitutional error involving racial discrimination in jury selection is a structural
defect that is not subject to harmless error analysis).

      We need not, and do not, decide which view is correct. Penry v. Johnson, No.
00-6677, 2001 WL 589086, at *8 (U.S. 2001). If presented with the question on direct
appeal, we might disagree with the state court’s decision and hold a conviction should
be reversed because of a Batson violation in removing a potential alternate juror, even
though no alternate deliberates on the verdict. No bright-line rules are necessary today,
however. “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411.
For the writ to issue, “that application must also be unreasonable.” Id. Although
possibly incorrect, it is reasonable to perceive an analytic distinction between racial
discrimination in selecting the petit jury, the body that decides a criminal defendant’s
guilt or innocence, and racial discrimination in selecting alternate jurors, who decide
nothing unless one of the petit jurors is dismissed. Cf. Ford, 67 F.3d at 171 (finding
no analytic distinction between racial discrimination in composing grand jury and
selecting petit jury). If an alternate is called to deliberate on the verdict, we do not

                                          -4-
doubt Batson and Ford would require reversal because the discrimination in selecting
the alternate jurors would affect the petit jury’s composition. But if no alternate
deliberates on the verdict, a court could reasonably believe the improper exclusion of
an alternate juror is not a structural error because it is clear the error never affected the
makeup of the petit jury that decided to convict the defendant. See Canoy, 38 F.3d at
899; Lane, 866 F.2d at 106; Nevius, 852 F.2d at 468.

       Because we conclude the state court’s refusal to reverse Carter’s conviction
based on Batson was objectively reasonable, we reverse the district court’s grant of
habeas relief to Carter. See Williams, 529 U.S. at 407-08; Penry, 2001 WL 589086,
at *8.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

       I would affirm. We have to assume for present purposes (and the Court does
assume) that Mr. Hurst was kept off the jury because he was black. Alternates are an
important part of the trial process, and, at the time the unconstitutional strike was
exercised, no one could know for sure that Mr. Hurst would not turn out to be a
deliberating juror. The whole process was tainted by racial discrimination as and from
that time.

       I believe that this is a structural error, and that interpreting Batson to allow a
state to ignore it is unreasonable. Batson seeks not only to protect the rights of
litigants, but also to vindicate the interests of potential jurors. It is true that the appellee
cannot show that the unconstitutional discrimination had any effect on the outcome of
his case. But more is at stake here than the rights of just one person. For one thing,
Mr. Hurst has been deprived of an important public office because of his race. And,
for another, the integrity of the judicial system itself has been compromised. The public
deserves better than that, even if the appellee does not.


                                              -5-
A true copy.

      Attest:

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




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