UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-20962
ROBERT L BELCHER,
Petitioner - Appellant,
VERSUS
GARY L JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(H-96-CV-1373)
May 14, 1998
Before REAVLEY, DEMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
A Texas jury convicted Robert L. Belcher of solicitation to
commit capital murder and sentenced him to life imprisonment.
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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Belcher was arrested after he and his son forcibly kidnaped a
fourteen-year-old girl, K.S., from her home in Missouri. They took
K.S. to a hotel room where they forced her to smoke crack cocaine
and pose nude for Polaroid photos and in front of a video camera.
Belcher and his son then raped and sodomized K.S. Later, they put
her in the trunk of their car and drove her to the Missouri River.
They took her out of the trunk and shocked her with a stun gun.
K.S. started screaming, so Belcher and son put her back into the
trunk. After driving around for several hours, they returned to
the river and took K.S. out again. This time, they sprayed a
chemical in her face so that she could not see and threw her in the
river. The river water washed the chemicals out of K.S.’s eyes,
and she attempted to get out of the river. Belcher reached out for
her, but once he grabbed K.S. by the hand, he used his other hand
to beat K.S.’s head with an metal pipe. As K.S.’s body floated
down the river, Belcher’s son shot her in the back. Miraculously,
K.S. survived, escaped, and reported the incident to authorities.
Belcher was arrested in Texas on outstanding Missouri warrants
for kidnaping, rape, aggravated assault, and unlawful flight to
avoid prosecution. While awaiting extradition to Missouri, Belcher
met Donald Myles, another inmate. Belcher offered Myles $30,000 to
murder K.S. and her mother, or to arrange to have them murdered.
Myles contacted G.C. Kembla, a Fort Bend County sheriff, and
reported the solicitation. Kembla posed as a hit man named
“Greywolf” and met with Belcher regarding the proposed murders.
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The conversations between Kembla and Belcher were recorded. Based
on these recordings, Texas prosecuted and convicted Belcher for
solicitation of capital murder. The conviction was affirmed on
appeal, and the Court of Criminal Appeals declined to review the
case.
Belcher now seeks relief in federal court under 28 U.S.C.
§ 2254. He alleges that his constitutional rights were violated
because the prosecution impermissibly used a peremptory strike to
exclude a juror because of his race and the state failed to produce
sufficient evidence to support the conviction.
In the district court, respondent Gary L. Johnson conceded
exhaustion of state remedies, denied Belcher’s allegations, and
moved for summary judgment. The district court granted summary
judgment, denying Belcher’s petition for habeas relief.
This Court granted Belcher a certificate of appealability
(COA), limited to review of his claim challenging the composition
of the jury under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712
(1986). Belcher filed his § 2254 petition before the Antiterrorism
and Effective Death Penalty Act (AEDPA) was signed into law, so we
review his claim under pre-AEDPA standards. See Lindh v. Murphy,
117 S. Ct. 2059 (1997). We construe our Court’s previous grant of
COA on the Batson issue as a grant of a certificate of probable
cause, see, e.g., Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.
1997), which, according to pre-AEDPA standards, permits us to
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consider all arguments raised in the district court, see Sherman v.
Scott, 62 F.3d 136, 138-39 (5th Cir. 1995), cert. denied, 516 U.S.
1093 (1996). We now turn to Belcher’s claims.
I. Batson challenge
Belcher contests the exclusion of Juror #2, John Harris.
Harris was one of six blacks on the venire panel. During voir
dire, Belcher articulated a Batson objection to the prosecution’s
use of all four of its peremptory challenges to exclude black
members from the venire. The trial court held a Batson hearing, at
which time the prosecutor gave three reasons for using a peremptory
strike on Harris: (1) he is a postal worker; (2) he lives in a
trailer; (3) he lives in a violent part of town.
A three-step procedure is utilized for reviewing Batson
claims:
(1) a defendant must make a prima facie showing
that the prosecutor has exercised his peremptory
challenges on the basis of race, (2) the burden
then shifts to the prosecutor to articulate a
race-neutral reason for excusing the juror in
question, and (3) the trial court must determine
whether the defendant has carried his burden of
proving purposeful discrimination.
United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997)
(quoting United States v. Clemons, 941 F.2d 321, 324 (5th Cir.
1991)). In this case, the trial court found that Belcher had made
the initial prima facie showing. At that point, the court held a
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Batson hearing. The prosecutor articulated three racially-neutral
reasons for excluding Harris. It was then the duty of the trial
court to weigh the credibility of the prosecutor and the reasons
articulated for using the peremptory strike. The trial court found
that the prosecutor was credible and overruled Belcher’s objection.
Because the prosecutor offered racially-neutral justifications
for striking Harris, the only remaining question is whether Belcher
carried his burden of proving purposeful discrimination. As noted
by the federal district court, the trial court’s finding with
respect to the propriety of the prosecution’s use of peremptory
challenges is afforded a presumption of correctness. See 28
U.S.C.A. § 2254(d) (West 1994), amended 28 U.S.C.A. § 2254 (West
Supp. 1998). The record supports the trial court’s determination,
and we are bound to respect it.
Belcher points out that another venireman was a postal worker
yet was not stricken, arguing that this undercuts the prosecution’s
argument that it struck Harris because he is a postal worker.
Belcher also relies on United States v. Bishop, 959 F.2d 820 (9th
Cir. 1992), for the proposition that a venireman’s residence in a
poor or violent area is not a racially-neutral reason for
exercising a peremptory strike.
These points are not well-taken. As the Supreme Court has
made clear, when evaluating a prosecutor’s reasons for exercising
a peremptory strike at “step 2” of the Batson analysis, the
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prosecution’s sole burden is the articulation of a
nondiscriminatory reason for the strike. Being a postal worker is
not a characteristic that is peculiar to any race. Living in a
trailer is not a characteristic that is peculiar to any race.
Living in a violent neighborhood is not a characteristic that is
peculiar to any race. Cf. Purkett v. Elem, 514 U.S. 765, 768, 115
S. Ct. 1769, 1771 (1995) (“The wearing of beards is not a
characteristic that is peculiar to any race.” (quoting EEOC v.
Greyhound Lines, Inc., 635 F.2d 188, 190, n.3 (3d Cir. 1980))).
The prosecution plainly satisfied step 2 of the Batson analysis.
At that point, all that remains is step 3, where “the factual
findings of the state courts are presumed to be correct, and may be
set aside, absent procedural error, only if they are not ‘fairly
supported by the record.’” Id. (citing 28 U.S.C. § 2254(d)(8),
amended 28 U.S.C.A. § 2254 (West Supp. 1998); Marshall v.
Lonberger, 459 U.S. 422, 432, 103 S. Ct. 843, 949 (1983)). As we
have noted, we agree with the district court that the trial court’s
original determination is entitled to that presumption of
correctness.
Additionally, Bishop is distinguishable from this case because
the petitioner in that case alleged and demonstrated that the area
that the “poor and violent” area that the stricken venireman lived
in was in fact predominately a black neighborhood. See Bishop, 959
F.2d at 822 & n.2. There is no such showing in this record that
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Harris’s neighborhood is predominately black, such that a
peremptory strike exercised on the basis of his neighborhood might
be inferred to be racially-motivated. We decline to assume, as
Belcher seems to suggest, that a strike based on the fact that
Harris lives in a trailer located in a violent neighborhood is
necessarily a pretext for striking him on the basis of his race.
We conclude that Belcher is not entitled to habeas relief
based on the overruling of his Batson challenge.
II. Sufficiency of the evidence
Belcher also seeks § 2254 relief based on his allegation that
his conviction was not supported by sufficient evidence. These
arguments are not substantial.
Belcher contends that the evidence does not support a
conviction for solicitation of capital murder. This is supposedly
so because there is no evidence that Belcher solicited Myles to
murder K.S. and her mother. Rather, Belcher argues, the evidence
shows that he solicited Myles to find another person to commit the
murder.
The law of Texas supports Belcher’s conviction under his view
of the evidence. The statute defining criminal solicitation
provides:
A person commits an offense if, with intent that a
capital felony or felony of the first degree be
committed, he requests, commands, or attempts to
induce another to engage in specific conduct that,
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under the circumstances surrounding his conduct as
the actor believes them to be, would constitute the
felony or make the other a party to its commission.
TEX. PENAL CODE ANN. § 15.03(a) (Vernon 1994). Belcher concedes that
the evidence shows that he solicited Myles to solicit a hit man.
“A person commits [murder] if he . . . intentionally or knowingly
causes the death of an individual.” Id. § 19.02(b)(1). If Myles
carried out Belcher’s mission, he would be intentionally or
knowingly causing the death of an individual. This conclusion is
supported by the text of the capital murder statute, which defines
that offense as a murder in which the perpetrator “employs another
to commit the murder for remuneration or the promise of
remuneration.” Id. § 19.03(a)(3). Thus, because Myles would be
guilty of capital murder if he carried out Belcher’s plot, the
evidence showing that Belcher attempted to hire Myles to hire
another to commit murders supports a conviction of solicitation of
capital murder.
That said, the evidence plainly is sufficient to support
Belcher’s conviction. Belcher admits that he solicited Myles to
arrange the murder of K.S. and her mother, and that the evidence
presented at trial established this. The record contains evidence
that Belcher solicited Myles to either commit the murders himself
or to hire another to do it. Viewing this evidence in the light
most favorable to the prosecution, see Alexander v. McCotter, 775
F.2d 595, 597 (5th Cir. 1985), the jury could have found beyond a
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reasonable doubt that Belcher committed the essential elements of
the crime alleged in the indictment and described in the jury
instructions.
Belcher finally contends that under Texas law, Myles’s
uncorroborated testimony is insufficient evidence to support his
conviction. Whether or not that is so, no constitutional violation
has occurred in this respect. “[T]he Constitution imposes no
requirement that the testimony of an accomplice-witness be
corroborated by independent evidence.” Brown v. Collins, 937 F.2d
175, 182 n.12 (5th Cir. 1991).
We conclude that Belcher’s conviction is supported by
sufficient evidence, and the district court properly denied habeas
relief on this ground.
III. Conclusion
The judgment of the district court, denying Belcher habeas
corpus relief under 28 U.S.C. § 2254, is AFFIRMED.
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