Lyons v. Lee (203 F. Supp. 2d 512, 2002)

O-R-D-E-R

BULLOCK, District Judge.

On January 18, 2002, in accordance with 28 U.S.C. § 636(b), the Recommendation of the United States Magistrate Judge was filed and notice was served on the parties in this action and a copy was given to the court.

Within the time limitation set forth in the statute, counsel for Petitioner objected to the Recommendation.

The court has appropriately reviewed the portions of the Magistrate Judge’s report to which objection was made and has made a de novo determination which is in accord with the Magistrate Judge’s report. The court therefore adopts the Magistrate Judge’s recommendation.

IT IS THEREFORE ORDERED that Petitioner’s petition for writ of habeas corpus [Pleading no. 2] be DENIED and that this action be dismissed with prejudice. A judgment dismissing this action will be entered contemporaneously with this Order. A certificate of appealability is not issued, the court finding that no substantial issue is presented.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner Robbie James Lyons, a North Carolina death row inmate, has filed in this court a habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his 1994 state court conviction for first-degree murder. Lyons was given a sentence of death on the first-degree murder conviction. Lyons petitions this court for a writ of habeas corpus awarding him a new trial and/or sentencing hearing. Petitioner Lyons is represented in this habeas action by attorneys J. Kirk Osborn and Ernest L. Conner, Jr. Respondent R.C. Lee, the Warden of Central Prison (“the State”), is represented by the North Carolina Attorney General.

THE STATE COURT PROCEEDINGS

On January 31, 1994, the Forsyth County Grand Jury indicted Petitioner Lyons— under the name Robbie James Lyons — on one count of attempted armed robbery and one count of first-degree murder, both of the person of Stephen Wilson Stafford. Lyons was tried capitally at the April 25, 1994 Criminal Session in Forsyth County, the Honorable William H. Freeman presiding. Lyons was represented by attorneys Danny T. Ferguson and Urs R. Gsteiger. On May 3, 1994, the jury found Lyons guilty of (1) first-degree murder under the felony murder theory with the attempted armed robbery as the underlying felony, and (2) attempted armed robbery.

At the sentencing phase, the jury found as an aggravating factor that Lyons had been convicted previously of a felony involving the use or threat of violence. The State had introduced evidence of a 1993 conviction for common law robbery and a 1993 conviction for armed robbery to support the statutory aggravating factor.

The jury found the following statutory mitigating circumstances: (1) the murder was committed while Lyons was under the influence of a mental or emotional disturbance; and (2) the statutory catch-all mitigating circumstance. The jury found the following nonstatutory mitigating circumstances: (1) Lyons was emotionally abused as a child; (2) Lyons was abandoned by his mother as a child; (3) Lyons’ psychological disorders were related to his mother’s drug abuse; and (4) Lyons had a long history of alcohol and drug abuse.

On May 6, 1994, the jury recommended the death penalty for the first-degree murder conviction. The trial court imposed the death penalty and arrested judgment on the attempted armed robbery conviction. Lyons appealed to the North Carolina Supreme Court. On April 4, 1996, the Court affirmed Lyons’ convictions and death sentence. State v. Lyons, 343 N.C. 1, 468 S.E.2d 204 (1996). On October 7, 1996, the United States Supreme Court denied Lyons’ subsequent petition for a writ of certiorari. Lyons v. North Carolina, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996).

On October 31, 1996, the Forsyth County Superior Court appointed J. Kirk Osborn and Ernest L. Connor, Jr. to represent Lyons for state post-conviction purposes. On April 14, 1997, Petitioner filed two Motions for Appropriate Relief (hereinafter MARs), one for the 1993 common law robbery conviction and one for the 1994 first-degree murder conviction. On September 26, 1997, Lyons filed a motion for the recusal of Judge Freeman. On January 8, 1998, Judge Freeman recused himself, and the cases were assigned to the Honorable Peter M. McHugh.

The state court held evidentiary hearings on March 6, and April 27, 1998. On June 11, 1998 the court denied both MARs. On August 7, 1998, Lyons filed a petition for certiorari review in the North Carolina Supreme Court, but the court denied certiorari review on August 19, 1999. On November 15, 1999, Petitioner filed two petitions for certiorari review (one from the 1993 common law robbery conviction and one from the 1994 first-degree murder conviction) in the United States Supreme Court. On January 18, 2000 the Court denied both petitions.

On January 28, 2000 Petitioner filed two petitions for writ of habeas corpus in this court, one challenging his 1993 common law robbery conviction and one challenging his 1994 first-degree murder conviction and death sentence. By separate Recommendation filed today, the court has recommended dismissal of the petition relating to the 1993 common law robbery conviction on the ground that the court lacks jurisdiction because Petitioner is no longer in custody for that conviction. The petition relating to the 1994 first-degree murder conviction is now before the court for a ruling.

THE CLAIMS OF THE HABEAS CORPUS PETITION

Petitioner Lyons presents the following 21 claims in his habeas petition:

I. Petitioner’s death sentence was unconstitutional because it was based in part on an unconstitutional and invalid prior conviction for common law robbery.

II. Petitioner’s writings were admissible and relevant mitigating evidence and the court committed reversible constitutional error by preventing the jury from considering them.

III. The trial court violated Petitioner’s due process rights by failing to permit Petitioner to question prospective jurors concerning their conceptions of parole eligibility on a life sentence for first-degree murder.

IV. Petitioner’s death sentence was unconstitutional because the trial judge refused to allow defense counsel to question jurors as to their understandings of a sentence of life imprisonment.

V. The trial court denied Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by restricting his opportunity to conduct an adequate jury voir dire.

VI. Petitioner’s right to be tried by a jury selected without regard to race was violated by the State’s discriminatory use of peremptory challenges against potential jurors of minority descent where the prosecutor used five of the eleven peremptory challenges to excuse five of seven minority jurors, where the court’s Batson ruling on the first three minority jurors the prosecutors excused was clearly erroneous, and where the court’s findings on Petitioner’s Batson objections were inr adequate as a matter of law.

VII. The trial court committed constitutional error by failing to submit per N.C. Gen.Stat. § 15A-2000(f)(6) the statutory mitigating circumstance that Petitioner’s capacity to conform his conduct to the requirements of the law was impaired.

VIII. The trial court committed constitutional error by refusing the defendant’s request for a peremptory instruction on the statutory mitigating circumstance that the offense was committed while Petitioner was under the influence of a mental or emotional disturbance.

IX. The trial court committed constitutional error by instructing the sentencing jury that it must be unanimous in its answer on sentencing issue IV, contrary to North Carolina law and in violation of the Eighth and Fourteenth Amendments.

X. The trial court’s instructions defining the burden of proof applicable to mitigating circumstances violated the Fifth, Sixth, Eighth, and Fourteenth Amendments because they used the inherently ambiguous and vague terms “satisfaction” and “satisfy” to define the burden of proof, thus permitting jurors to establish for themselves the legal standard to be applied to the evidence.

XI. The trial court’s instructions permitted jurors to reject submitted mitigation on the basis that it had no mitigating value in violation of the Fifth, Sixth, Eighth, and Fourteenth amendments.

XII. The trial court’s use of the term “may” in sentencing Issues Three and Four made consideration of proven mitigation discretionary with the sentencing jurors, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.

XIIÍ. The trial court violated Petitioner’s rights under the Sixth, Eighth, ' and Fourteenth Amendments by denying Petitioner the right to examine each juror challenged by the State during death qualification prior to their excusal and by excusing jurors Petitioner was not permitted to question.

XIV. Petitioner’s death sentence was unconstitutionally obtained because his trial counsel failed to develop and present available mitigating evidence.

XV. Petitioner’s conviction for first-degree murder and [the resulting] death sentence were unconstitutional because they were based in part on the State tendering testimony of the co-defendant which the State knew to be false.

XVI. The trial court committed constitutional error by permitting the State to cross-examine Petitioner’s psychologist, who admitted that Petitioner suffered from a mood disorder characterized in part by explosiveness, concerning an incident in which he had attacked a prison guard during a prior incarceration, where Petitioner had not put Petitioner’s adjustment to prison in issue, had not raised an issue concerning Petitioner’s good character, and where the court did not limit the jury’s use of the evidence on the basis of the doctor’s opinion.

XVII.The trial court committed constitutional error by instructing the jury to consider, as one of two convictions potentially supporting the aggravating circumstance of prior conviction for a violent felony, Petitioner’s conviction for robbery with a dangerous weapon, where the conviction for robbery with a dangerous weapon occurred after Petitioner’s alleged commission of the offense in the case at bar, and was therefore not competent to prove the aggravating circumstance as defined at N.C. Gen.Stat. § 15A-2000(e)(3).

XVIII. The court’s failure to prevent the improper and inflammatory argument of the prosecutor in the penalty phase denied Petitioner due process of law, the right to be free of cruel and unusual punishment, and the right to the assistance of counsel.

XIX. Petitioner’s conviction and death sentence were unconstitutionally obtained because his counsel failed to establish a relationship of trust with him.

XX. Petitioner’s conviction and death sentence were unconstitutionally obtained because trial counsel conceded Petitioner’s guilt to felony murder and attempted armed robbery in counsel’s opening statement.

XXI. Petitioner’s conviction and death sentence were unconstitutionally obtained because the trial court failed to hold a hearing on Petitioner’s competency.

THE EVIDENCE PRESENTED AT TRIAL

The North Carolina Supreme Court summarized the evidence presented at Petitioner’s trial as follows:

Stephen Stafford, the victim, owned a small business known as Sam’s Curb Market (hereinafter referred to as “Sam’s”) in Winston-Salem, North Carolina. At trial, the State presented evidence tending to show that on 25 September 1993, Stafford was shot and killed in his place of business. Victoria Lytle witnessed the shooting.

Lytle testified that early in the afternoon of 25 September 1993, she drove to Sam’s and parked directly in front of the market. As Lytle got out of her car, she noticed two men across the street. Lytle went into the store, collected her purchases, and then remembered that she needed some diet soda. Lytle went to the store’s cooler. At that time, one of the men, Derick Hall, entered the store. As Lytle approached the counter, Hall told her to go ahead of him and pay for her items, but Lytle told him to go ahead of her instead. While waiting for Hall to pay for his purchases, Lytle noticed the defendant standing outside and looking into the store. Lytle then paid for her purchases, said goodbye to the victim and left the store.

Lytle further testified that she heard three gunshots as she closed her car door. At the time the shots were fired, Lytle was approximately three feet from the store. Lytle stated that upon hearing the shots she looked up and saw a flash. She then heard the victim moan and saw him fall forward over the counter and then backward to the floor. Ly-tle testified that immediately after she heard the shots and saw the victim fall, she saw the defendant run out of the store with a gun in his hand.

Derick Hall, the defendant’s accomplice, testified for the State that he had a long-barreled .22-caliber gun on the morning of Mr. Stafford’s murder. Hall stated that when he and the defendant went to Sam’s, the defendant had possession of the gun. Hall testified that as he and the defendant approached Sam’s, the defendant told him that he needed money and was going to rob the store. Hall did not believe the defendant was serious. After Victoria Lytle left the store, the defendant entered and told the victim to freeze and turn around. Hall also obeyed the command in order to demonstrate that he had no part in the robbery. Hall testified that he then heard five shots, and when he turned around, the defendant was gone and the victim was lying on the floor. Hall further testified that the victim was grunting in an effort to speak and that the victim reached up and pushed the burglar alarm before collapsing back on the floor. The next evening, Hall voluntarily turned himself in to the police.

Dr. Patrick Lantz, a forensic pathologist, performed an autopsy on the victim’s body on 26 September 1993. Dr. Lantz testified that one bullet entered the victim’s left hand and was recovered from the victim’s wrist. This wound was consistent with the victim’s having grasped the gun and would not in itself have been fatal. Two more bullet fragments were discovered in the victim’s upper arm. These bullet fragments fractured the humerus and caused considerable splintering of the bone. This wound would similarly not have been fatal in the short term. Finally, Dr. Lantz testified that the victim had been shot in the back and that bullet went into the victim’s chest through the lung and aorta. Dr. Lantz testified that this bullet wound caused the victim to bleed to death.

Special Agent Ronald Marrs, an expert in the field of firearms identification, testified that two of the bullets recovered from the victim’s body were .22-caliber. The two fragments were too deformed to yield a result. Although made by different manufacturers, the bullets were all consistent with having been fired from a .22-caliber weapon.

The defendant offered no evidence during the guilVinnocenee phase of the trial.

At the penalty phase of the trial, the State presented evidence supporting the submission of the aggravating circumstance that the defendant had previously been convicted of a felony involving the use or threat of violence to the person. This evidence tended to show that the defendant had been convicted of two prior felonies, one of which was an armed robbery, and one of which was a common law robbery.

The defendant’s evidence consisted of testimony from Dr. Gary Hoover, an expert in the field of psychology. Dr. Hoover testified that he conducted a forensic psychological evaluation of the defendant which included interviews with eleven individuals and records from nine sources covering defendant’s history as far back as age eight. Dr. Hoover also interviewed the defendant twice at Central Prison. Dr. Hoover diagnosed defendant as suffering from bipolar disorder, antisocial personality disorder and substance abuse.

State v. Lyons, 343 N.C. 1, 9-11, 468 S.E.2d 204, 206-08 (1996), cert. denied, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996).

THE HABEAS CORPUS STANDARD OF REVIEW

The Supreme Court of the United States has recently clarified the habeas corpus standard of review:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring.)

Under § 2254(d)(l)’s “unreasonable application” clause, then, 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. Rather, that application must also be unreasonable.

Id. at 411,120 S.Ct. 1495.

CLAIM I

As his first habeas claim, Petitioner challenges the validity of his 1994 death sentence as enhanced by his 1993 common law robbery conviction. The 1993 conviction was used in the sentencing phase of his first-degree murder trial as one of two prior felonies to support the finding of the statutory aggravating circumstance under N.C. Gen.Stat. § 15A-2000(e)(3), that Petitioner “had been previously convicted of a felony involving the use or threat of violence to the person.” Petitioner contends that the 1993 common law robbery conviction was invalid and his 1994 death sentence was therefore based on an invalid statutory aggravating factor.

The United States district courts have jurisdiction to entertain petitions for habeas relief only from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254. Courts have interpreted this statutory language to mean that the habeas petitioner must be “in custody” under the conviction or sentence under attack at the time of the petition. Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Even though Petitioner is no longer in custody for the 1993 common law robbery conviction, this court has jurisdiction to consider the claim that his 1994 sentence (for which he is in custody) was improperly enhanced by the 1993 conviction. See generally Maleng, at 493-94, 109 S.Ct. 1923. However, the scope of the court’s review of the 1993 conviction is extremely limited. The United States Supreme Court recently held that

[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to en- . hance a criminal sentence, [a § 2254 petitioner] generally may not challenge the enhanced sentence ... on the ground that the prior conviction was unconstitutionally obtained.

Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001) (citations omitted). An established exception to this rule is that a petitioner may challenge an enhanced sentence where the conviction used to enhance the sentence was obtained in violation of the petitioner’s Sixth Amendment right to counsel as recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Custis v. United States, 511 U.S. 485, 496-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). A further, rare exception may arise under Lackawanna if a petitioner can show that the state impeded his ability to obtain direct or collateral review of his underlying conviction or if he can show compelling evidence of actual innocence, which evidence was obtained only after the completion of the time for state court review. Lackawanna, 121 S.Ct. at 1575 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J.). These “Lackawanna” exceptions are limited to circumstances wherein the habeas proceedings are “effectively ... the first and only forum available for review of the prior conviction.” Id. Accordingly, under Lackawanna, this court may not reach the question of whether Lyons’ 1993 conviction was unconstitutionally obtained unless Lyons can meet one of these narrow exceptions.

Lyons cannot meet the “lack of counsel” exception because he was in fact represented by counsel in the 1993 proceeding that resulted in his guilty plea to common law robbery. Furthermore, Lyons does not argue and indeed cannot show that the State in any way impeded him from seeking review of his 1993 common law robbery conviction. (In fact, he sought MAR review, but his claims were denied on the merits.) Lyons does argue that he was “actually innocent” of the crime of common law robbery. Accordingly, the court will address his “actual innocence” argument.

Petitioner Lyons was originally charged with armed robbery under N.C. Gen.Stat. § 14-87. However, he was allowed to plead guilty to common law robbery pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The United States Supreme Court has stated that when a petitioner has pleaded guilty under Alford, in order to show “actual innocence” for habeas corpus purposes, he must show that he was factually innocent of the crime he pleaded to and the more serious charge originally brought by the State. Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The Bousley Court stated that, in the context of habeas corpus review,

[I]t is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency. In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make. Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before our decision in Bailey. In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.

Bousley, at 623-24, 118 S.Ct. 1604 (citations omitted). Accordingly, for this court to address Lyons’ claim on the merits, he must show that he was “actually innocent” of not only common law robbery, but also of the foregone, original charge of armed robbery. This he has failed to do for the reasons stated below.

Petitioner’s guilty plea to common law robbery resulted from events that occurred on Stratford Road in Winston-Salem on June 23, 1993. The MAR court made the following findings regarding the June 23,1993 Stratford Road crime:

Valerie Hutchinson, a schoolgirl, testified that on the evening of 23 June 1993, she and some friends were standing talking in the parking lot of a local restaurant. A car with four men in it drove by and parked. The men got out. Several of Hutchinson’s friends saw that the men had a gun. They [Hutchinson’s friends] said, “Gun” and began to run towards their cars. Hutchinson did not hear them and continued to talk to one of her Mends. The men then approached Hutchinson; one began to talk to her when another one of them came up to her, put a gun to her head and told her to give him all her money. Hutchinson, although scared, looked at him and began to walk away. The men yelled after her, “Do you think we’re fucking playing, bitch[?]” Hutchinson kept on walking, got into her friend’s car and they drove away. They went to an Amoco station, where they met their other friends who had called the police for them. The police officers arrived shortly thereafter. Hutchinson identified a photograph of [Petitioner] as one of the men in the parking lot, although he was not the man with the gun. [Petitioner] was the man who first approached Hutchinson.

Brooke Fogg, another schoolgirl, was also at Stratford Road with Hutchinson and other Mends. She stated that she saw a burgundy car drive up and four men get out. One of the men pulled a gun. The young people began to run. Fogg identified [Petitioner] as one of the men in the burgundy car. Kimberly Hill, also a schoolgirl, corroborated Fogg’s testimony and identified [Petitioner] as one of the men in the burgundy car.

Officer B.K. Adams of the Winston-Salem Police Department testified that he received a call that an armed robbery had taken place on Stratford Road. He responded to the Amoco station, where he received information that the car ear-rying the four black male perpetrators was a burgundy Pontiac. Based on information received, Adams then went to a nearby Burger King where he saw the burgundy car and four black males. He then followed them to the same Amoco station where they were apprehended. [Petitioner] identified himself as Robby Johnson. (Adams found out later that [Petitioner’s] real name was Robbie Lyons). Adams searched the burgundy car, and found what appeared to be a large caliber semi-automatic pistol. This later turned out to be a CO-2 pellet pistol. For a short distance, the muzzle velocity is similar to that of a .22 caliber long rifle.

(State’s Br., Ex. V, Mem. Order and Final Op., at 18-19, ¶ 20.) The court presumes that these findings of fact are correct and Petitioner has offered no evidence to rebut the findings. 28 U.S.C. § 2254(e)(1).

The State originally charged Petitioner with armed robbery under N.C. Gen.Stat. § 14-87. Pursuant to the advice of defense counsel Pete Clary, and in response to a plea offer from the prosecutor, Petitioner pleaded guilty to common law robbery and was sentenced to three years supervised probation. The sentencing court was not aware that Petitioner had used an alias when arrested and that he had a prior criminal record, including an outstanding arrest warrant for an armed robbery of a Kentucky Fried Chicken restaurant. The plea agreement was greatly to Petitioner’s benefit, as he was able to avoid the prospect of a mandatory-minimum sentence of seven years for armed robbery in exchange for a common law robbery conviction that resulted in unsupervised probation. See N.C. Gen.Stat. § 14-87(d) (1993) (seven-year active minimum sentence for armed robbery).

About two months after Petitioner pleaded guilty to common law robbery, he committed the first-degree murder that led to the death sentence he now challenges. The common law robbery conviction was used in the sentencing phase of his first-degree murder trial as one of two prior felonies to support the finding of the statutory aggravating circumstance under N.C. Gen.Stat. § 15A-2000(e)(3), that Petitioner “had been previously convicted of a felony involving the use or threat of violence to the person.” Petitioner subsequently challenged both the common law robbery conviction and the first-degree murder conviction in state court MAR proceedings. In those proceedings, it was revealed that no property was taken from the victims of the Stratford Road incident. The elements of common law robbery in North Carolina include (1) the felonious, non-consensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of violence or fear. State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). Accordingly, one of the elements of common law robbery, a felonious taking, was not present. (State’s Br., Ex. P3, Tr. of MAR Hearing, at 11.)

At the same time, however, the MAR court found that the State had strong evidence of Petitioner’s guilt to the more serious, original charge of armed robbery under N.C. Gen.Stat. § 14-87. An armed robbery under N.C. Gen.Stat. § 14-87 occurs when an individual takes or attempts to take personal property from the person of another, or in his presence, by the use or threatened use of a dangerous weapon, whereby the life of a person is endangered or threatened. State v. Hunt, 297 N.C. 447, 255 S.E.2d 182 (1979) (emphasis added). Accordingly, in contrast to common law robbery, the offense under N.C. Gen.Stat. § 14-87 is complete even if no property is taken from the victim. Thus, the failure to take property from another is no defense to armed robbery under § 14-87. See State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988) (purpose of § 14-87 was to increase the punishment for common law robbery when firearms or other dangerous weapons were used to commit a robbery, whether or not the robber succeeded in the effort to take personal property).

Petitioner contends, however, that he was not guilty of the foregone original charge of armed robbery under N.C. Gen.Stat. § 14-87 because he was merely a bystander in the Stratford Road crime. He contends that he did not know that his co-defendant Steele had a pellet pistol and in any event the pellet pistol was not functional. These arguments fail. In North Carolina, all who are present at the place of a crime and are either aiding, abetting, assisting, or advising its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. State v. Dowd, 28 N.C.App. 32, 220 S.E.2d 393 (1975). The MAR court found as a fact that

With regard to the Stratford Road incident, the evidence presented at the murder trial indicates that defendant was the first out of the car and the first to approach the victim, Valerie Hutchinson. He stood with Scottie Steele when Steele produced the gun and threatened Hutchinson. As Hutchinson walked away, both men yelled at her, ‘Do you think we’re fucking playing, bitch[?]’ Immediately thereafter, the men ran back to Tracy Smith’s car and fled the scene.

(State’s Br., Ex. V at 24, ¶ 3; State’s Br., Ex. A5, Tr. of Sentencing Phase Vol. IV at 28.) The court presumes that these findings of fact are correct. Petitioner has not offered clear and convincing evidence to rebut these findings. 28 U.S.C. § 2254(e)(1). Accordingly, the evidence simply does not show that Lyons was merely a bystander during the armed robbery. To the contrary, this specific finding by the MAR court, seen in the context of all of the evidence concerning the armed robbery, constitutes strong evidence that Petitioner participated in the armed robbery. Furthermore, the fact that the pistol may not have been functioning properly does not preclude it from being a “dangerous weapon” for purposes of § 14-87. Whether an instrument can be a dangerous weapon depends on the nature of the instrument, the manner in which the defendant used it or threatened to use it, and in some cases the victim’s perception of the instrument. State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985). See State v. Joyner, 67 N.C.App. 134, 312 S.E.2d 681 (1984), aff'd, 312 N.C. 779, 324 S.E.2d 841 (1985) (purpose of N.C. Gen.Stat. § 14-87(a) would be frustrated or defeated if court accepted defendant’s contention that in absence of a firing pin a rifle was not a firearm under this section; a robbery victim should not have to force the issue of whether an instrument actually possesses a firing pin, whether an instrument is loaded, or whether an instrument is real). North Carolina courts have stated that where there is evidence that an instrument used in a robbery appeared to be a firearm capable of endangering or threatening the life of the victim, and there is also evidence that the instrument was either a cap pistol or an inoperative firearm, it is for the jury to determine the -nature of the weapon. State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986). Here, the MAR court found that Hutchinson testified that Steele put a gun to her head and told her to give him all the money. The court also found as fact from an officer’s testimony that for a short distance, the muzzle velocity of a CO-2 pellet pistol is similar to that of a .22 caliber long rifle. The court presumes that these findings are correct and Petitioner has offered no evidence to rebut the findings. 28 U.S.C. § 2254(e)(1). Thus, Petitioner’s argument that the pistol could not be a “dangerous weapon” under § 14-87 fails.

Finally, Petitioner cannot meet the “actual innocence” exception under Lackawanna for another reason. The Lackawanna “actual innocence” exception calls for “compelling evidence ... which [the petitioner] could not have uncovered in a timely manner.” Lackawanna, 121 S.Ct. at 1575 (emphasis added). The evidence upon which Petitioner relies to argue that he was actually innocent of armed robbery under § 14-87 was available well before the completion of the time for state court review.

In sum, Petitioner has failed to show that he was actually innocent of the more serious, foregone charge of armed robbery under N.C. Gen.Stat. § 14-87. Accordingly, Lyons has no cognizable claim of “actual innocence” despite his argument that there was no factual basis for one element of the common law robbery charge to which he pleaded guilty. Bousley, 523 U.S. at 623-24, 118 S.Ct. 1604. Under these circumstances, Petitioner’s assertion of “actual innocence” in order to fall within the Lackawanna exception is to no avail. Thus, this court may not address the merits of Petitioner’s claim that the 1993 common law robbery conviction was unconstitutionally obtained.

Petitioner also argues that his trial counsel were ineffective because they failed to investigate the prior common law robbery conviction to confirm whether that conviction was valid. Nonetheless, the MAR court’s determination that the conviction was valid turns on determinations of state law that this court must respect. Certainly, the MAR court’s determination that trial counsel were not ineffective includes no unreasonable application of clearly established federal law, as there was no Supreme Court authority that was inconsistent with the reasoning of Bousley or stood for the proposition that a plea to a lesser offense as a part of a plea agreement is constitutionally invalid due to the absence of evidence to support an element of the lesser offense, where there is evidence to support every element of the original, foregone charge. Accordingly, Petitioner cannot make out a claim of ineffective assistance of his trial counsel for not challenging the common law robbery conviction.

For the reasons set forth above, Petitioner’s Claim I does not entitle him to habeas corpus relief.

CLAIM II

In Claim II of the Petition, Petitioner contends that the trial court committed constitutional error by refusing to admit as mitigating evidence certain poetry and essays allegedly written by Petitioner.

At the sentencing phase of Petitioner’s first-degree murder trial, Petitioner’s counsel called psychologist Dr. Gary Hoover to the stand. Petitioner’s counsel asked Dr. Hoover to identify a series of poems and writings allegedly written by Petitioner. The State objected and defense counsel attempted to lay a foundation for the introduction of the writings into evidence. (State’s Br., Ex. A5 at 66.) Dr. Hoover testified that he had not used the writings to form his opinion as to the Petitioner’s specific psychiatric diagnoses, but that the writings lent “a great deal of understanding to the life of [the Petitioner]” and were part of his “ultimate” opinion. Id. at 67. The trial judge stated that he would allow the writings into evidence but that the jury could not read them and Petitioner’s counsel could not mention them during closing arguments. Id. at 69-70. The judge further stated, however, that defense counsel could present to the jury any writings that Dr. Hoover had used specifically to form a basis for his opinion. Id. at 70. Petitioner’s counsel subsequently did not attempt to introduce any part of the writings to the jury.

The United States Supreme Court has held that a defendant must be permitted to introduce any mitigating evidence at the sentencing phase of a capital case if the evidence relates to the defendant’s character, record, or the circumstances of the particular offense. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In this case, Petitioner apparently wanted to introduce the writings as mitigating evidence of Petitioner’s character to show that he expressed remorse for killing Stephen Stafford or to “humanize” Petitioner generally by showing that he grew up in a crime-infested, poverty-stricken neighborhood. Petitioner does seem to express general remorse for his “mistakes” and “sins” in at least one of his poems:

A wise man learns from his mistakes/I’ve learned and realized/And I’ve opened my eyes/And acknowledged that my mistake was greai/By this mistake I often regret/And many times my eyes became wet/And to God I have often prayed/To take away my sins/And to make me whole again/Because only God knows how much I am afraid.

(State’s Br., Ex. L., Petitioner’s MAR at Tab 6.) However, in the same poem Petitioner writes:

I’m just one of the many, that was led astray/But has what I’ve done is so wrong/To make everyone’s ill feeling so strong/To make you want to take my life away.

This part of the poem seems to indicate that Petitioner minimizes the gravity of his actions. In fact, he does not mention his victim’s name or otherwise refer to the 1993 murder once in the series of poems and essays.

Other poems demonstrate an utter lack of remorse and an intent to repeat his criminal behavior. In a poem titled “The Jungle Creed Is My Creed,” Petitioner writes:

As a beast I know no sin/And as a beast I know I don’t have any friend/Because this is the jungle and the beasts de-eree/Yeah the Jungle creed/Said the strong must feed/on any prey at hand/So branded as beasi/I sat down at the feast/Already knowing that my prey is man/So all take heed/As a beast I upholds this creed/Straight from the start/I would never change/Because to me it would be so strange/So forever I’ll stay a beast in soul and heart.

In a cage of iron & stone/In the jungle I no longer roam/But I will again one day/That day may be longAnd all I’m going to do is get real strong/Until I once again have you all as my prey.

Id. The court finds no imaginable mitigating qualities in this poem. Another poem, titled “Children of the Ghetto,” in which Petitioner writes about an abused and abandoned child, is arguably mitigating in the broadest sense. However, it is not clear that Petitioner is writing from personal experience because the entire poem is written in the third person. In any event, this mitigating evidence would merely be cumulative because the jury found as a mitigating circumstance that Petitioner was abused as a child and abandoned by his mother.

After a careful review of the essays and poetry, the court finds that these writings lack significant mitigating force not provided by other evidence offered by Petitioner, and, if admitted into evidence, may very well have detracted from counsel’s attempt to humanize Petitioner. The court further notes that the trial court ruled that Petitioner could show to the jury any part of the writings on which Dr. Hoover relied in his diagnosis, but Petitioner’s counsel chose — perhaps wisely — not to ask Dr. Hoover about specific writings or their effect on his opinions.

Accordingly, the trial court’s exclusion of the writings in this case was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.1996), aff'd, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Huffington v. Nuth, 140 F.3d 572 (4th Cir.), cert. denied, 525 U.S. 981, 119 S.Ct. 444, 142 L.Ed.2d 399 (1998). Even if this court were to conclude that the trial court committed error in preventing the jury from seeing all of Petitioner’s alleged writings, it is abundantly clear that the error did not have a substantial or injurious effect on the jury’s determination that Petitioner should be sentenced to death. Cf. Boyd v. French, 147 F.3d 319, 327 (4th Cir.1998), cert. denied, 525 U.S. 1150, 119 S.Ct. 1050, 143 L.Ed.2d 56 (1999). Petitioner conceded at trial that he killed Stephen Stafford while attempting an armed robbery. He had previously committed another armed robbery and a common law robbery. His attorney presented the available evidence about Petitioner being abused and abandoned as a child and suffering from psychological conditions. There is simply no shred of possibility that the jury could have been influenced in Petitioner’s favor and in its sentencing recommendation had it been permitted to view the poetry allegedly written by Petitioner.

For the reasons set forth above, the court finds that Petitioner’s Claim II is without merit.

CLAIM III

In Claim III of the Petition, Petitioner contends that the trial court violated his due process rights by failing to permit him to question prospective jurors about their conceptions of parole eligibility on a life sentence for first-degree murder. This claim was raised and rejected on direct review.

The record shows that Petitioner would have been eligible for parole if he had received a life sentence. The United States Supreme Court in Simmons held that where a defendant is ineligible for parole and the prosecutor argues future dangerousness, Due Process entitles the defendant to inform the jury that he is ineligible for parole. Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). However, Simmons did not recognize a constitutional Due Process right for a defendant to question jurors about parole eligibility in cases in which the defendant is eligible for parole. The Simmons Court expressly stated, “[I]n a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact.” Simmons, 512 U.S. at 176, 114 S.Ct. 2187.

Accordingly, the court finds that the state court’s decision denying this claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See Keel v. French, 162 F.3d 263 (4th Cir.1998) (“We have repeatedly rejected attempts to expand the Simmons rule to apply to prisoners who are eligible for parole.”), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999). See also Joseph v. Angelone, 184 F.3d 320 (4th Cir.) (holding that the Due Process clause did not entitle Petitioner to inform the jury that although he would be eligible for parole if a life sentence were imposed he would not be eligible for a number of years), cert denied, 528 U.S. 959, 120 S.Ct. 392, 145 L.Ed.2d 305 (1999); Roach v. Angelone, 176 F.3d 210 (4th Cir.) (same), cert. denied; 528 U.S. 965, 120 S.Ct. 401, 145 L.Ed.2d 313 (1999).

For the reasons set forth above, the court finds that Petitioner’s Claim III is without merit.

CLAIM IV

In Claim IV of the Petition, Petitioner contends that his death sentence was unconstitutional because the trial judge refused to allow defense counsel to question prospective jurors as to their understandings of a sentence of life imprisonment. Here, Petitioner merely restates Claim III and asserts the same argument under Simmons. For the reasons set forth in the discussion of Petitioner’s Claim III above, the court finds that Petitioner’s Claim IV is without merit.

CLAIM V

In Claim V of the Petition, Petitioner contends that the trial court denied Petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by restricting his opportunity to conduct an adequate jury voir dire. Nonetheless, Petitioner’s “Corrected Brief’ (Pleading no. 17) contains no argument on Claim V, but relies wholly on the petition. In any event, Petitioner has articulated no basis for this claim, and the court’s review reveals none. Generalized and conclusory allegations of impairment of defense counsel’s ability to conduct a meaningful voir dire will not suffice. Claim V should be dismissed.

CLAIM VI

In Claim VI of the Petition, Petitioner contends that the prosecutor violated Bat-son v. Kentucky by using peremptory challenges to strike three minority jurors from the jury panel because of their race. Petitioner contends (A) that the evidence was insufficient to support the prosecutor’s stated reasons for the strike; and (B) that the trial court did not apply the third prong of the Batson analysis.

A. Evidence Insufficient to Support the Findings

After examining the first twelve jurors called, the State peremptorily challenged three minority jurors: Zandra Segers, Patsy Hairston, and Sandra Clavijo. (Docket no. 8, Ex A2, Tr. of jury selection Vol. I at 21, 105.) Petitioner raised a Batson objection to the challenges. Id. at 106. The court asked the prosecutor to explain why he excused the three minority jurors. This court repeats the North Carolina Supreme Court’s recital of the explanations:

With regard to prospective juror Seg-ers, the prosecutor provided the following explanation:

Judge, we felt that Ms. Segers in her response to the death penalty questions, she stated that the death penalty was simply an option and that [we] felt that she was not absolutely unequivocal on her ability to impose the death penalty. That she leaned her body language that she was leaning away from the entire jury selection process.... [H]er body language was the worst of any of the jurors as she was leaning away trying to get as far away from the table as possible. Then she had no responses to the group questions when we would ask questions of the group. That she would just remain silent and not participate in the selection.

With regard to prospective juror Hairston, the prosecutor explained:

Your Honor, we noted that on Ms. Hairston’s juror questionnaire that she was ... a nurse. That ... we did not want those folks with an absolute nurturing type of personality. We also note that she didn’t understand on literally every question that we asked that all other eleven jurors answered almost immediately [and] she was evasive in her answers. She had difficulty following the questions and that she repeatedly asked me to repeat the questions. That at the first time that I talked about whether one could sign their name on the death penalty verdict, she looked shocked .... That when we tried to explain things to her, she looked puzzled and she couldn’t apparently understand when I talked about some of the issues that some of the other jurors were able to grasp.

Finally, with regard to prospective juror Clavijo, the prosecutor explained:

Judge, we felt that she — on her questionnaire she put that she had only been employed for four months and that she had only lived in this county for four months. That she was single. That she had not voted in an election since 1989. We felt that she didn’t have a sufficient stake in the community to warrant for the State sitting on a death penalty case.

State v. Lyons, 343 N.C. 1, 12-13, 468 S.E.2d 204, 208-09 (1996). After counsel gave their explanation, the trial court made the following verbal finding:

Well, the Court will find that based on the questions asked and the jurors interviewed, the defendant has failed to establish a prima facie pattern of discriminatory use of challenges on behalf of the district attorney but out of an abundance of caution the Court has asked the district attorney to articulate reasons and the district attorney has articulated valid reasonable and satisfactory reasons for his use of challenges which are totally aside from race and the Court will deny the challenge under Batson.

(State’s Br., Ex. A2 at 110-11.)

Petitioner contends that the record does not support the prosecutor’s explanations for why he struck jurors Segers and Hair-ston. Specifically, Petitioner contends that the record shows that juror Segers’ responses to death qualification were “unequivocal” and the “prosecutor’s assertion that she was not responsive to group questions is unsupported by the record.” Petitioner further contends that the record discloses that juror Hairston was not confused or incapable of comprehending the questions. Petitioner contends that juror Hairston, “was clear on what the prosecutor was asking, her answers were clear and direct.... In no instance was Ms. Hairston ‘evasive.’ ” (Petitioner’s Corrected Br. at 24-27.)

Under 28 U.S.C. § 2254(d)(2), an application for a writ of habeas corpus shall not be granted unless the state court’s adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Thus, this court may not grant relief as long as the state court’s decision is determined to have been a reasonable determination of facts in light of the evidence and as long as the decision was not contrary to or an unreasonable application of clearly established law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d). Furthermore, 28 U.S.C. § 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant [for habeas relief] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”

The United States Supreme Court in Batson v. Kentucky set forth a three-step evidentiary framework for evaluating claims of racial discrimination in jury selection. 476 U.S. 79, 93-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). First, the defendant must make out a prima facie case that the prosecutor exercised peremptory challenges in a racially discriminatory manner. See id. at 96-97, 106 S.Ct. 1712. Second, if the defendant has made a prima facie showing, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id. at 97, 106 S.Ct. 1712. The prosecutor must then give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges. Id. at 98 n. 20, 106 S.Ct. 1712. Yet the explanation “need not rise to the level justifying exercise of a challenge for cause.” Id. at 97,106 S.Ct. 1712. The second step of this process does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). The trial court then must determine if the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. 1712. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. The defendant at all times bears the ultimate burden of persuasion as to the existence of purposeful discrimination.

In addition, Batson cautions that “great deference” should be given to the trial judge’s determination that the peremptory strike was not racially motivated. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. Deference is particularly warranted where the proffered race-neutral explanation centers on the juror’s “body language” and “mannerisms” that signaled inattentiveness, behaviors that are especially given to on-the-spot interpretation by the trial judge. United States v. Cordoba-Mosquera, 212 F.3d 1194, 1197 (11th Cir.2000), cert. denied, 531 U.S. 1131, 121 S.Ct. 893, 148 L.Ed.2d 800 (2001); United States v. Hinton, 94 F.3d 396, 397 (7th Cir.1996); Caldwell v. Maloney, 159 F.3d 639, 649 (1st Cir.1998) (“The conclusion of the federal district court that juror 4-1 was not equivocating, or was just being thoughtful, gives insufficient weight to considerations of body language, intonation, demeanor, pacing and the like and to the trial judge’s superior ability to evaluate these considerations.”), cert. denied, 526 U.S. 1009, 119 S.Ct. 1152, 143 L.Ed.2d 218 (1999). Finally, a federal habeas court has “no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them,” and must “more than simply disagree with the state court” in order to reach a different result. Id. at 650 (citing Marshall v. Lonberger, 459 U.S. 422, 432-34, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)).

Juror Segers

With regard to juror Segers, a reading of the voir dire transcript reveals that she did answer some of the questions clearly and that her responses to questions about the death penalty were direct. The prosecutor’s explanation for Segers being “equivocal” seems to be based on her statement that the death penalty was “a necessary option” and on her body language, i.e., visible signs of inatteiitiveness and hesitancy in cooperating with the process, none of which can be revealed by a review of the cold transcript.

However, the fact that the written transcript before the court does not reveal juror Segers’ body language does not mandate a finding that the evidence fails to support the prosecutor’s stated reasons for excusing juror Segers. In the context of challenges for cause based'on juror inability to follow the law in death penalty cases, the United States Supreme Court has noted that reviewing courts must defer to the trial court’s judgment, which is based on the recognition that sometimes it is just as important how something is said as what is said, and that a person’s demeanor may not be readily gleaned from a cold record. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144, reh’g denied, 478 U.S. 1036, 107 S.Ct. 24, 92 L.Ed.2d 774 (1986).

The prosecutor’s explanation for why he struck juror Segers related primarily to Ms. Segers’ non-verbal communication— that she was leaning far away from the table, that she did not respond to group questions, and that she had the worst body language of all of the potential jurors. The prosecutor explained that during a break he had discussed with law enforcement representatives and the victim/witness coordinator the fact that juror Segers was leaning as far away from the prosecutor’s table as was possible. The trial judge was in a position to witness juror Segers’ body language also, and to make a determination based on his own observations whether the prosecutor’s statement that juror Segers was inattentive had any objective basis. The court reiterates that the ultimate burden of proof is on the party making the Batson challenge. Accordingly, inadequacies in the record which preclude a determination of whether facts exist to support the prosecutor’s reasoning work to Petitioner’s disadvantage. Caldwell, 159 F.3d at 652-53. Petitioner has not established by clear and convincing evidence that there was no support for the prosecutor’s reasons for excusing juror Segers.

Juror Hairston

Petitioner next contends that the evidence does not support the prosecutor’s statement that juror Hairston seemed confused at times and incapable of comprehending the questions. Petitioner contends that juror Hairston, “was clear on what the prosecutor was asking, her answers were clear and direct... .In no instance was Ms. Hairston ‘evasive.’ ” (Petitioner’s Corrected Br. at 27.)

During the voir dire, the following exchanges, among others, occurred between juror Hairston and the prosecutor:

MR. LANG: The fact that you have participated in this jury system before would not make it difficult to sit on this one. You could put all that aside and start fresh and clean the slate off and take this evidence and this law?

MS. HAIRSTON: There are different type cases. It was criminal, you know. Isn’t it criminal when it’s like assault?

MR. LANG: Was it in this courtroom?

MS. HAIRSTON: It’s been too long to remember.

(State’s Br., Ex. A2 at 46.)

MR. LANG: Anybody been to court with a close friend, family member, neighbor that has been charged with any type of criminal conduct? Okay, Ms. Hairston.

MS. HAIRSTON: What do you mean been to court before? If somebody asked you to come?

Id. at 53.

MR. LANG: Ms. Hairston. How do you feel about the death penalty?

MS. HAIRSTON: How do I feel about it? It’s a shame that a person would do something to warrant the death penalty. I never have really thought about it seriously.

MR. LANG: Do you feel that the death penalty is a necessary part of the law?

MS. HAIRSTON: Yes, I do.

MR. LANG: Do you think it would be difficult for you to be on a jury that involved the death penalty?

MS. HAIRSTON: If it came to that point and we had enough evidence to warrant the death penalty, no.

MR. LANG: You understand this two phase thing again? The guilt/innocence phase of the trial and then the sentencing phase?

MS. HAIRSTON: Right.

MR. LANG: And as the judge explained earlier, first you will look at the guilt/innocence portion and then if the defendant is found guilty of first-degree murder you move on to the sentencing phase. Do you understand that? The way it works?

MS. HAIRSTON: Right.

MR. LANG: If you were satisfied, Ms. Hairston, beyond a reasonable doubt that the defendant is guilty of first degree murder, do you feel you could find him guilty?

MS. HAIRSTON: (No audible response.)

MR. LANG: Do you want me to repeat that?

MS. HAIRSTON: Yes.

MR. LANG: If you were satisfied beyond a reasonable doubt, which is the legal standard the judge is going to tell you about that is the burden of proof that the State has, if you are satisfied beyond a reasonable doubt that the defendant is guilty of first degree murder, can you find him guilty?

MS. HAIRSTON: If I’m satisfied that he is from the evidence, yes, I could.

Id. at 81-83.

MR. LANG: What I’m getting at is if you have some kind of personal belief or something that would make it difficult for you to impose the death penalty .... Does everybody understand what I’m trying to say? Does anybody think that the — yes, ma’am?

MS. HAIRSTON: What did you say?

MR. LANG: What I’m saying is that this case involves the death penalty and as a possible option if the defendant is found guilty of first-degree murder. You understand that? We’ve been through that.

MS. HAIRSTON: Yes.

MR. LANG: But the fact that it is involved and I was asking everybody if they feel that maybe because they may have some misgivings about the death penalty itself, that during the guilt/innocence determination it would make it difficult to determine guilt/innocence of first degree murder or any other charges the judge instruct[s] you on?

MS. HAIRSTON: Are you trying to say would I believe the death penalty would affect our determination of whether the person was guilty or not and cause us to change our verdict because — -

Id. at 96-97.

Based on these interactions, there was fair evidence in the record to support the prosecutor’s assertion that juror Hairston was confused by some of the questions. The court further notes that the prosecutor gave another reason for striking juror Hairston — that she was a nurse and that he did not want the nurturing type on the jury. The United States Supreme Court has made clear that “the second step of [the Batson ] process does not demand an explanation that is persuasive, or even plausible” and “[ujnless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett, 514 U.S. at 767, 115 S.Ct. 1769 (where the prosecutor stated that h