Deficient performance will only be found where counsel's performance fell below an objective standard of reasonableness. Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991), cert. denied, 504 U.S. 920 (1992). We evaluate counsel's performance not with the clarity of hindsight, but in light of the facts and circumstances at the time of trial.
Ineffective assistance of counsel can also constitute cause to excuse a procedural default. Carrier, 477 U.S. at 488; Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991), cert. denied, 504 U.S. 920 (1992). Ruff claims his counsel rendered ineffective assistance in failing to object to the prosecution's use of peremptory challenges at trial.
Respondent concedes that petitioner's trial counsel performed deficiently in not making a Batson objection three years after Batson had been decided. As a general rule, the failure of trial counsel to make a Batson objection cannot be deemed deficient per se. Like any other objection, a Batson objection can be forgone for strategic or tactical reasons, Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991); Scott v. Gomez, No. C-91-2181-SBA, 1993 WL 303728 *2 (N.D.Cal. July 29, 1993), but in this case it can be assumed that petitioner has met the deficiency prong of Strickland by showing that his counsel did not know that an objection could be made. The more difficult question is the appropriate application of Strickland's prejudice requirement.
We concluded that Kornahrens' trial counsel was not constitutionally deficient "because he followed a long-standing and well-settled rule of South Carolina criminal law — even when that rule was under attack in the United States Supreme Court at the time of trial." Id. See also Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir. 1983) (holding that defendant's trial counsel was not ineffective for failing to object to instruction regarding presumptions of malice and unlawfulness, where Supreme Court decisions supporting challenges to such presumptions had not yet been rendered at time of trial); Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), cert. denied, 113 S.Ct. 1289 (1993) (holding that Nickerson's trial counsel could not have been expected to object to the State's peremptory challenges, despite that certiorari in Batson had been granted six months before trial, since Nickerson's trial predated the Batson decision by several months); Randolph v. Delo, 952 F.2d 243 (8th Cir. 1991), cert. denied, 504 U.S. 920 (1992) (ruling that trial counsel was not ineffective by failing to raise Batson challenge two days before Batson was decided). We find Kornahrens directs this case's disposition.
Id. Skipper was on appeal to the Supreme Court at the time of Kornahrens's trial, and Runyon testified that he was aware of that fact. Nevertheless, the case law is clear that an attorney's assistance is not rendered ineffective because he failed to anticipate a new rule of law. See Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir. 1983); see also Walker v. Jones, 10 F.3d 1569, 1573 (11th Cir.) (holding that trial counsel's performance under a similar situation was reasonable "[b]ecause Alabama courts had rejected similar claims and the Supreme Court had not yet decided Cage [v. Louisiana, 498 U.S. 39 (1990)], trial counsel had no basis for objecting to the trial court's instruction on reasonable doubt"), cert. denied, 114 S. Ct. 2111 (1994);Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991) (ruling that trial counsel was not ineffective by failing to raise Batson challenge two days before Batson was decided), cert. denied, 504 U.S. 920 (1992);Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir.) (stating that "counsel's failure to anticipate a change in existing law is not ineffective assistance of counsel."),cert. denied, 502 U.S. 831 (1991); Honeycutt v. Mahoney, 698 F.2d 213, 216-17 (4th Cir. 1983) (deciding that trial counsel was not ineffective for failing to object to subsequently-overruled, but then long-standing, North Carolina law where such objection would have been based on a recent, non-binding First Circuit decision). Based on this clear precedent, we cannot say that, under the facts of this case, Runyon's trial performance was constitutionally deficient because he followed a long-standing and well-settled rule of South Carolina criminal law — even when that rule was under attack in the United States Supreme Court at the time of trial. Additionally, we note th
We have since held, however, that such numerical calculations are not sufficient to disprove the existence of a Batson violation. See Randolph v. Delo, 952 F.2d 243, 245 n. 3 (8th Cir. 1991) (per curiam), cert. denied, 504 U.S. 920, 112 S. Ct. 1967, 118 L.Ed.2d 568 (1992). It is undisputed in the present case that after the prosecution offered its reasons for striking jurors 22 and 24, petitioner made no attempt to persuade the trial court that the prosecutor's reasons for striking juror 22 were merely a pretext for purposeful discrimination.
Counsel could not be expected to make a Johnson-type of argument before Johnson was decided; counsel's performance is not deficient by failing to predict future developments in the law. See Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991) (counsel not ineffective by failing to make Batson challenges before Batson was the law), cert. denied, 112 S. Ct. 1967, 118 L.Ed.2d 568 (1992); Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir.) (counsel not ineffective by failing to make Batson claim on appeal when brief filed before Batson was decided; counsel not expected to anticipate future changes in the law), cert. denied, 502 U.S. 831, 112 S.Ct. 106, 116 L.Ed.2d 75 (1991). In any event, Wajda has failed to demonstrate any prejudice as a result of his counsel's alleged shortcomings.
Because we reach the merits of these claims, any error the district court may have committed by adopting the report before Sumlin's time extension had expired is harmless. See Randolph v. Delo, 952 F.2d 243, 247 (8th Cir. 1991) (per curiam), cert. denied, ___ U.S. ___, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992). In her objections and appellate brief, Sumlin also challenges the sufficiency of the evidence supporting her convictions, and her sentence.
We have held that such numerical calculations are not sufficient to disprove the existence of a Batson violation. See Randolph v. Delo, 952 F.2d 243, 245 n. 3 (8th Cir. 1991) (per curiam). We believe that the Missouri Court of Appeals, and the district court on habeas review, took the Missouri Supreme Court's reference to "a prosecutor's legitimate `hunches'" in Antwine out of context and, as a result, misapplied the standard intended in Batson.
Whether Nickerson's attorney's failure to raise the Batson claim in his direct appeal constituted deficient performance is a closer question, but that claim is problematic as well. See Randolph v. Delo, 952 F.2d 243, 246-47 (8th Cir. 1991) ( per curiam) (no deficient performance where counsel failed to raise Batson claim when jury returned verdict, which was on day Batson was decided; when new trial motion was filed, which was three weeks after Batson was decided; and on direct appeal, which was decided eleven months after Batson was decided), cert. denied, ___ U.S. ___, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992); Johnson v. Armontrout, 923 F.2d 107, 108 n. 3 (8th Cir.) (no deficient performance where counsel failed to raise Batson claim on direct appeal, even though conviction was affirmed three months after Batson was decided), cert. denied, ___ U.S. ___, 112 S.Ct. 106, 116 L.Ed.2d 75 (1991). If the performance of Nickerson's counsel was not deficient on account of his failure to raise a Batson claim, it was a fortiori not deficient on account of his failure to raise a claim under Cofield.