052456P.pdf   07/29/2008  Herbert Smulls  v.  Donald Roper
   U.S. Court of Appeals Case No:  05-2456
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Hansen, Author, for the Court En Banc]
   Prisoner case - habeas. For the panel's opinion in the matter, see Smulls
   v. Roper, 467 F.3d 1108 (8th Cir. 2006). By denying Smulls's Batson
   challenge, the state trial judge implicitly found that the prosecution's
   proffered nondiscriminatory reasons for his decision to strike the juror
   were credible, and the absence of any further fact-finding is not a
   misapplication of established Supreme Court precedent; nor does the
   absence of explicit findings change this court's obligation to view the
   state trial court's findings as presumptively correct; Missouri Supreme
   Court's analysis of the Batson claim was not procedurally flawed, as the
   court announced and applied the correct standards of review; Missouri
   courts' analysis of the Batson issue does not constitute an unreasonable
   determination of the facts based on the evidence contained in the record;
   that portion of the panel opinion which rejected Smulls' ineffective
   assistance of counsel claims is reinstated. Judge Bye, concurring in part
   and dissenting in part, joined by Judge Smith: The dissent asserts that the
   trial court failed to make the findings and engage in the evaluative
   process anticipated by Batson and its progeny.
  
052456P.pdf   11/01/2006  Herbert Smulls  v.  Donald Roper
   U.S. Court of Appeals Case No:  05-2456
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Bye, Author, with Hansen and Smith, Circuit Judges]
   Prisoner case - habeas. In ruling on and denying Smulls' Batson
   challenge, the state court refused to recognize and assess all
   relevant circumstances as required by clearly established federal
   law; case is remanded to the district court with instructions to,
   in the district court's discretion, reconstruct the circumstances
   surrounding Smulls' Batson challenge to determine whether the
   prosecution's action in striking the only black venireperson was
   racially motivated; if this proves impossible due the passage of
   time and other circumstances, the district court should grant
   Smulls' petition for habeas relief. Judge Hansen, concurring in part
   and dissenting in part.