State v. Brown, 443 S.W.2d 805 (Mo. en banc 1969). Points E and F were decided adversely to petitioner by the Supreme Court of Missouri in his appeal from a denial of a motion for post-conviction relief under Missouri Supreme Court Rule 27.26 (V.A.M.R.). Brown v. State, 470 S.W.2d 543 (Mo. 1971). Therefore, as to these issues, petitioner has exhausted all available state remedies as required by 28 U.S.C. § 2254(b).
Blair had the choice of raising his Swain claim either on direct appeal to the Missouri Supreme Court or in a post-conviction proceeding under Missouri Supreme Court Rule 27.26. See, e.g., Brown v. State, 470 S.W.2d 543, 544 (Mo. 1971) ( Swain claim raised in Rule 27.26 motion). There would have been good reason to raise the Swain claim in a post-conviction proceeding rather than direct appeal: a Swain claim requires exhaustive proof, proof that might not easily be marshalled under the tight deadlines of a direct appeal.
Neither does he dispute that the State may use its peremptory challenges to remove Negroes from the jury in a particular case. See, e. g., Brown v. State, 470 S.W.2d 543 (Mo. 1971); State v. Davison, 457 S.W.2d 674 (Mo. 1970). Appellant's charges of abuse of discretion in this case are based upon a quotation from Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965), where the Court said:
[(C) Negroes were systematically prevented from serving as jurors ....] From the record presented, we are unable to consider this sub-point. Defendant's first complaint was registered after several witnesses had testified, and an offer of the court to make a record as to the method by which prospective jurors had been selected was not accepted or pursued in any manner. Brown v. State, Mo., 470 S.W.2d 543; State v. Strawther, Mo., 476 S.W.2d 576. [(D) Limiting the number of peremptory challenges to 12.] Under this sub-point, defendant concedes that he and the state were given the proper number of challenges as provided in Section 546.180, V.A.M.S. The relevant portion of said section, pertaining to peremptory challenges, reads: "(1) If the offense charged is punishable by death or by imprisonment in the penitentiary for life, the state shall have the right to challenge six and the defendant twelve, ...
Further, the complaint is groundless. There is not even an attempt to show the action of the trial court was the result of an improper basis. Brown v. State, 470 S.W.2d 543 (Mo. 1971); State v. Dodson, 595 S.W.2d 59 (Mo.App. 1980); State v. Upshaw, 619 S.W.2d 925 (Mo.App. 1981). For his last complaint concerning the jury, the defendant asserts reversible error because Doug Matthews did not appear for the panel. He buttresses this conclusion by the fact Doug Matthews is black.
" The rule so formulated in Swain was acknowledged and adopted by the Missouri Supreme Court in State v. Davison, 457 S.W.2d 674 (Mo. 1970) and has been followed by the Missouri courts consistently ever since: State v. Bradford, 462 S.W.2d 664 (Mo. 1971); State v. Huddleston, 462 S.W.2d 691 (Mo. 1971); State v. Smith, 465 S.W.2d 482 (Mo. 1971); Clark v. State, 465 S.W.2d 557 (Mo. 1971); State v. Brookins, 468 S.W.2d 42 (Mo. 1971); Brown v. State, 470 S.W.2d 543 (Mo. 1971); State v. Carter, 478 S.W.2d 358 (Mo. 1972); State v. Johnson, 499 S.W.2d 371 (Mo. 1973); State v. Collor, 502 S.W.2d 258 (Mo. 1973); State v. Baker, 524 S.W.2d 122 (Mo.banc 1975); State v. Kelly, 506 S.W.2d 61 (Mo.App. 1974); State v. Dinkins, 508 S.W.2d 1 (Mo.App. 1974); State v. Langston, 515 S.W.2d 852 (Mo.App. 1974); State v. Booker, 517 S.W.2d 937 (Mo.App. 1974); State v. Brown, 527 S.W.2d 15 (Mo.App. 1975); State v. Davis, 529 S.W.2d 10 (Mo.App. 1975); Edwards v. State, Mo.App., 535 S.W.2d 124. Defendant has made no claim by objection in the trial court or by his Point on appeal in this court that the prosecutor in Jackson County has discriminated by use of peremptory challenges to remove all Negroes from petit juries "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be ..." Absent such allegation, defendant has wholly failed to bring himself within the line of cases cited above.
6. State's use of peremptory challenges to strike all black jurors, absent showing of systematic practice. Brown v. State, 470 S.W.2d 543, 544 (Mo. 1971) 7. Validity of extradition proceedings.
The only argument of fact in support of appellant's objection is that the state used 60% of its peremptory challenges to strike 100% of the Negro jurors, who constituted 18% of the jury panel. Clearly, the presumption protecting the prosecutor's use of peremptory challenges as provided in Section 546.180 RSMo 1969, V.A.M.S., may only be overcome upon proof of facts showing discriminatory, systematic exclusion of Negroes. Swain v. Alabama, supra [See also: Brown v. State, 470 S.W.2d 543 (Mo. 1971); State v. Smith, 465 S.W.2d 482 (Mo. 1971); Clark v. State, 465 S.W.2d 557 (Mo. 1971); State v. Davison, 457 S.W.2d 674 (Mo. 1970); State v. Selman, 433 S.W.2d 572, 577 (Mo. 1968)]. Such presumption survives a close and critical scrutiny of the record before us.