IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT JOSIAH S. WRIGHT, ) ) Appellant, ) ) v. ) WD86433 ) STATE OF MISSOURI, ) Opinion filed: January 21, 2025 ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE CHARLES H. MCKENZIE, JUDGE
Division Two: Alok Ahuja, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge
Josiah Wright (“Wright”) appeals from the motion court’s judgment denying
his amended Rule 29.15 motion for postconviction relief following an evidentiary
hearing.1 Wright raises one Point on Appeal. He claims the motion court clearly
erred in denying Claim 8/9(b) of his amended motion because “appellate counsel
renders ineffective assistance in failing to raise an apparent and nonfrivolous claim
on appeal, in that the Batson[2] claim as to Venireperson 47 was apparent from the
1 All rule references are to Missouri Supreme Court Rules (2021). 2 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). record, known to appellate counsel, and was nonfrivolous with a reasonable
likelihood of success on the merits.” We affirm.
Factual and Procedural History
Wright was convicted of attempted assault in the first degree following a jury
trial. Relevant to this appeal is the State’s peremptory strike of Venireperson 47
during the jury selection process. Following the State’s voir dire, defense counsel
questioned venirepersons who had yet to speak, including Venireperson 47:
[DEFENSE COUNSEL]: Juror No. 47, what do you like to do with your free time?
VENIREPERSON NO. 47: I watch a lot of TV, crossword puzzles and word searches.
[DEFENSE COUNSEL]: Do you have a favorite TV show?
VENIREPERSON NO. 47: Criminal Minds, Law and Order SVU.
When the State later exercised one of its peremptory strikes to remove
Venireperson 47, defense counsel raised a Batson objection and identified
Venireperson 47 as African-American. As its reason for striking Venireperson 47,
the State explained:
Juror No. 47 indicated that she reads criminal – watches Criminal Minds and Law & Order, SVU and those are her favorite TV shows. And I believe we had struck some other people who we didn’t know much about. And also we just knew that they read mystery books and crime books. I’m sorry, I don’t have the number right now.
Defense counsel responded by initially identifying Venirepersons 12 and 24 as
similarly situated Caucasian jurors that the State had not moved to strike, but after
correction by co-counsel, defense counsel identified only Venireperson 24:
2 [DEFENSE COUNSEL]: Judge, there were similarly-situated jurors that did not say anything other than they liked to read dramas, fantasies, or historical fiction. Those jurors are 12 and 24. I believe they are both Caucasian. The State did not move to strike either one. In fact, I believe they’re both on the jury panel.
[CO-COUNSEL]: No. 12 is not.
[DEFENSE COUNSEL]: Okay, just 24 then, Judge.
The State then added to its explanation for striking Venireperson 47: “I think
another thing we were worried about is we didn’t know anything about her other
than the fact that she likes to read books. That was the case with Juror 36 as well.
All we know is she likes to play softball.” In response, defense counsel pointed to
Venireperson 8 as a similarly situated non-struck Caucasian juror, stating “all I
have in my notes is that she likes to read novels. She has no favorite authors.” The
State then clarified:
[I]t was the fact that we didn’t know much about her, but the only thing we know about her is she reads crime novels that she watches Criminal Minds and she watches Law & Order, SVU. And that would probably put an unfair expectation on what she might see in this case.
Defense counsel offered no further arguments. The trial court overruled the
Batson challenge as to Venireperson 47. Venirepersons 8, 12, and 24 ultimately
served on the jury.
Following the jury’s verdict, Wright filed his Motion for Judgment of
Acquittal Notwithstanding the Verdict of the Jury or, in the Alternative, for a New
Trial and raised therein the strike of Venireperson 47 as a ground for a new trial.
The trial court denied the motion and sentenced Wright to eighteen years in the
Missouri Department of Corrections.
3 Our court affirmed the conviction in an order-memorandum, and we issued
our mandate on November 17, 2021. The only issue raised by Wright in his direct
appeal was that the trial court abused its discretion in overruling Wright’s
objections to, and not limiting, the testimony of two witnesses concerning the
victim’s condition in the months following the assault. Following the issuance of
our mandate, Wright timely filed a pro se Motion to Vacate, Set Aside or Correct
the Judgment or Sentence pursuant to Rule 29.15. Counsel was appointed on
February 8, 2022, and an amended motion was timely filed on June 8, 2022.3
Within the amended motion, Wright included Claim 8/9(b), which
challenged the effectiveness of his appellate counsel when she failed to raise a claim
on appeal challenging the trial court’s overruling of the Batson objection to the
peremptory strike of Venireperson 47. With respect to appellate counsel’s
performance, Wright argued that “[b]ecause the claim actually brought on appeal
was so weak, and because the Batson claim was meritorious, it was unreasonable
for appellate counsel not to have raised the Batson claim on appeal.” More
3 We acknowledge that pursuant to a recent decision from our Eastern District,
Smith v. State, 697 S.W.3d 617 (Mo. App. E.D. 2024), the version of Rule 29.15 in effect at the time of Wright’s sentencing would govern, which would render Wright’s amended motion untimely filed. However, for the reasons recently explained by our court in Scott v. State, No. WD86373, 2024 WL 4887460 (Mo. App. W.D. Nov. 26, 2024), we choose not to follow Smith and instead apply the version of Rule 29.15 that was in effect throughout the entirety of Wright’s postconviction proceedings. Id. at *5, n.5. This was the version in effect from November 4, 2021 through June 30, 2023. Under that version of Rule 29.15, Wright was required to file his amended motion by June 8, 2022, which he accomplished, making the filing of his amended motion timely. See also Nelson v. State, No. WD86556, 2024 WL 4940507, at *2 n.4 (Mo. App. W.D. Dec. 3, 2024). Because the opinion declines to follow the Court’s prior opinion in Smith v. State, 697 S.W.3d 617 (Mo. App. E.D. 2024), the opinion has been reviewed and approved by order of the Court en banc. See S.Ct. Operating Rule 22.01; Special Rule 31. 4 specifically, Wright contended that “appellate counsel cannot be said to have
strategically forgone the preserved Batson challenge for the strike against
Venireperson 47 in favor of presenting a stronger argument[,]” as the “argument
presented on appeal was precluded by longstanding Missouri caselaw, failed to
even acknowledge that caselaw, and made no argument for changing the rules
established by those cases.”
Concerning the merits of the Batson challenge, Wright first asserted that
“the State’s assertion of [Venireperson 47’s] affinity for crime novels cannot suffice
as a non-racial reason for the peremptory strike, because she did not state that she
reads crime novels.” Wright also argued that Venirepersons 12 and 24 were
similarly situated white jurors who were not struck. Wright thus argued,
The Batson claim for Venireperson 47’s dismissal was strong, preserved on appeal, and easily constructed from a review of the factual records of the case. By failing to brief the issue, appellate counsel’s performance fell below the objectively reasonable standard to which Mr. Wright was entitled, and she rendered deficient performance in his defense on appeal.
In arguing he was prejudiced by this deficient performance, Wright similarly
asserted that “the State’s justifications for the peremptory strike were clearly not
applied to similarly-situated white venirepeople.” He therefore claimed that “had
appellate counsel raised and briefed the Batson challenge to Venireperson 47’s
dismissal, it is likely that the Court of Appeals would have reversed the decision of
the trial court and remanded for a new trial.”
An evidentiary hearing on Wright’s amended motion was held on February
3, 2023. In pertinent part, appellate counsel testified she identified and considered
5 raising the preserved Batson issue, but did not do so “[b]ecause the prosecutor
gave a succinct race neutral reason for striking panelist No. 47.” She thought the
claim “lacked merit[.]” Appellate counsel testified she is familiar with Batson and
the legal principle it sets forth, having previously raised Batson claims that were
all ultimately unsuccessful. She explained the standard of review for Batson claims
is clear error, which is “a very deferential standard of review.” Appellate counsel
believed “some arguments can be better made than others” and she also believed
that she raised Wright’s “strongest claim on appeal.”
The motion court denied Wright’s amended motion. Wright appeals.
Standard of Review
Our review of the denial of a Rule 29.15 motion is “limited to a determination
of whether the findings and conclusions of the trial court are clearly erroneous.”
Rule 29.15(k). “‘A judgment is clearly erroneous when, in light of the entire record,
the court is left with the definite and firm impression that a mistake has been
made.’” Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (quoting Swallow
v. State, 398 S.W.3d 1, 3 (Mo. banc 2013)). The findings of the motion court are
presumed correct. Id. (citing Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc
2013)). We also defer to “‘the motion court’s superior opportunity to judge the
credibility of witnesses.’” Id. (quoting Barton v. State, 432 S.W.3d 741, 760 (Mo.
banc 2014)). “The movant has the burden of proving the movant’s claims for relief
by a preponderance of the evidence.” Rule 29.15(i).
6 Analysis
In his Point, Wright claims the motion court clearly erred in denying Claim
8/9(b) of his amended motion “because appellate counsel renders ineffective
assistance in failing to raise an apparent and nonfrivolous claim on appeal, in that
the Batson claim as to Venireperson 47 was apparent from the record, known to
appellate counsel, and was nonfrivolous with a reasonable likelihood of success on
the merits.”
“To be entitled to post-conviction relief for ineffective assistance of counsel,
a movant must show by a preponderance of the evidence his or her . . . counsel
failed to meet the Strickland test to prove his or her claims.” Shockley, 579 S.W.3d
at 892 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984)). Specifically, “a movant must show by a preponderance of the evidence
that (1) his attorney failed to exercise the customary skill and diligence that a
reasonably competent attorney would perform under similar circumstances, and
(2) he was prejudiced thereby.” Tate v. State, 461 S.W.3d 15, 21 (Mo. App. E.D.
2015) (citing Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987)).
The standard for reviewing a claim of ineffective assistance of appellate counsel is essentially the same as that used in a claim against trial counsel. Mallett v. State, 769 S.W.2d 77, 83 (Mo. banc 1989). To satisfy the performance prong of the Strickland test, a movant must overcome the strong presumption that appellate counsel provided adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. McCain v. State, 317 S.W.3d 657, 660 (Mo. App. S.D. 2010). To overcome this presumption, a movant must show that appellate counsel “failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent
7 and effective attorney would have recognized and asserted it.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994).
Id. at 22. “Appellate counsel is granted considerable professional leeway in
deciding which issues to raise on appeal.” McAllister v. State, 643 S.W.3d 124, 131
(Mo. App. E.D. 2022) (citation omitted). In this instance, Wright must
demonstrate “that, in light of the circumstances, [appellate] counsel’s decision not
to raise a Batson claim on appeal was not a reasonable legal strategy.” Tate, 461
S.W.3d at 22 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2025). “[A]ppellate
counsel has no duty to raise every non-frivolous claim on appeal.” Id. (citing Jones
v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). “Further,
appellate counsel will not be held ineffective for failing to raise a meritless claim.”
McAllister, 643 S.W.3d at 136 (citing Tisius v. State, 519 S.W.3d 413, 432 (Mo.
banc 2017)).
“To satisfy the prejudice prong, the movant must demonstrate that the
claimed error was sufficiently serious that, if it had been raised, there is a
reasonable probability the outcome of the appeal would have been different.” Tate,
461 S.W.3d at 22 (citing Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006)). “‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” McAllister, 643 S.W.3d 131 (quoting Hays v. State, 360 S.W.3d 304,
309 (Mo. App. W.D. 2012)).
“A movant must satisfy both the performance prong and the prejudice prong
to prevail on an ineffective assistance of counsel claim. In reviewing such a claim,
we are not required to consider both prongs; if the movant fails to satisfy one 8 prong, we need not consider the other.” Tate, 461 S.W.3d at 22 (citing Sanders,
738 S.W.2d at 857).
In denying Claim 8/9(b), the motion court determined appellate counsel
was not ineffective because her “analysis of Movant’s Batson claim reasonably
concluded that it lacked merit, and her decision to forgo a meritless claim on
appeal does not constitute deficient performance.” In so holding, the motion court
found “Appellate Counsel’s testimony credible and supported by the record before
the Court.” The motion court further determined that Wright was not prejudiced,
as “the record supports Appellate Counsel’s determination that the Batson claim
was without merit.”
Specifically, the motion court found “the State provided a legitimate, race-
neutral explanation for striking Venireperson 47.” The court noted that trial
counsel attempted to show pretext by initially identifying two Caucasian
venirepersons who were similarly situated, but that his co-counsel corrected him
as to one of these venirepersons. Significantly, the motion court found that “[o]f
the two who he initially argued were similarly situated Caucasians, only one
Venireperson 24, was indeed a Caucasian who Trial Counsel was arguing was
similarly situated to Venireperson 47 but was not stricken by the State.” The court
then found:
Movant’s Trial Counsel was unable to show that the State’s decision to strike [V]enireperson 47 was racially motivated because the State had provided a race neutral explanation and because Venireperson 24 was not similarly situated based on a comparison of the answers [Venirepersons] 24 and 47 provided during voir dire.
9 The motion court thus held that “[b]ecause Movant has not shown a reasonable
probability the Batson claim would have been meritorious on appeal had Appellate
Counsel raised it, he has established neither deficient performance nor resulting
prejudice.” We agree.
“The Equal Protection Clause of the United States Constitution prohibits a
party from using a peremptory challenge to remove a potential jury member solely
on the basis of gender, ethnic origin, or race.” Tate, 461 S.W.3d at 23 (citing United
States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 145 L.Ed.2d 792
(2000)). In making a Batson challenge, the following procedure must be followed:
First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.
State v. Bateman, 318 S.W.3d 681, 689 (Mo. banc 2010) (quoting State v. Parker,
836 S.W.2d 930, 939 (Mo. banc 1992)) (other citation omitted).
“The ultimate issue to be decided under Batson is whether defendant has
shown pretext[.]” Id. at 690. This issue “is determined by the prosecutor’s stated
reasons for the strike at the time of the Batson inquiry.” Id. This means “looking
at ‘the plausibility of the prosecutor’s explanations in light of the totality of the facts
and circumstances surrounding the case[.]’” Id. (quoting Parker, 836 S.W.2d at
939). As such, a “variety of factors” must be considered “[i]n determining whether
the defendant has carried the burden of proof and established the existence of 10 purposeful discrimination.” Id. (alteration in original) (quoting Parker, 836
S.W.2d at 939) (other citation omitted). “[O]ne of the most telling and common
means of showing pretext is by showing that similarly situated venirepersons are
treated differently[.]” Id. at 689 (citing State v. McFadden, 191 S.W.3d 648, 651
(Mo. banc 2006)). “Evidence of purposeful discrimination is established when the
stated reason for striking an African-American venireperson applies to an
otherwise-similar member of another race who is permitted to serve.” Id. at 689-
90 (quoting McFadden, 191 S.W.3d at 651). However, “proof of a similarly situated
Caucasian juror is not required in order to make a successful Batson challenge.”
Id. at 690. Indeed, “[t]he lack of a similarly situated Caucasian juror is not
dispositive.” Id.
Other factors the court considers include the logical relevance between the State’s proffered explanation and the case to be tried, the prosecutor’s credibility based on his or her demeanor or statements during voir dire and the court’s past experiences with the prosecutor, and the demeanor of the excluded venireperson. Finally, the court can consider objective factors bearing on the State’s motive to discriminate on the basis of race, such as conditions prevailing in the community and the race of the defendant, the victim, and the material witnesses.
State v. Johnson, 207 S.W.3d 24, 35 (Mo. banc 2006) (internal citations omitted).
Importantly, “‘[o]n appeal, we do not consider grounds for Batson
challenges that were not raised in the trial court.’” State v. Murray, 428 S.W.3d
705, 712 (Mo. App. E.D. 2014) (quoting State v. Broom, 281 S.W.3d 353, 356 (Mo.
App. E.D. 2009)) (other citation omitted); see also State v. Johnson, 220 S.W.3d
377, 383 (Mo. App. E.D. 2007). This includes declining to review arguments of
pretext raised for the first time on appeal. See State v. Collins, 290 S.W.3d 736, 11 742 n.4 (Mo. App. E.D. 2009). See also State v. Jackson, 636 S.W.3d 908, 917
(Mo. App. W.D. 2021) (citing State v. Harris, 516 S.W.3d 461, 467 (Mo. App. E.D.
2017)); State v. Nylon, 311 S.W.3d 869, 882-83 (Mo. App. E.D. 2010); State v.
Clark, 280 S.W.3d 625, 631 (Mo. App. W.D. 2008) (holding that new pretext
arguments will not be considered for the first time on appeal).
Here, the record clearly reflects that the Batson claim, if raised, would not
have been meritorious. In striking Venireperson 47, the State initially provided
two race-neutral explanations, stating first that Venireperson 47 “watches
Criminal Minds and Law & Order, SVU and those are her favorite TV shows[,]”
and second, that the State “had struck some other people who we didn’t know
much about. And also we just knew that they read mystery books and crime
books.” The burden then shifted to Wright to demonstrate that the State’s
proffered reasons were merely pretextual and that the strike was racially
motivated. Subsequently, the following exchange took place:
[DEFENSE COUNSEL]: Judge, there were similarly-situated jurors that did not say anything other than they liked to read dramas, fantasies, or historical fiction. Those jurors are 12 and 24. I believe they are both Caucasian. The State did not move to strike either one. In fact, I believe they’re both on the jury panel.
[THE STATE]: Your Honor, sorry. If I may add something to it?
THE COURT: If you’re still making your explanation yes, sir.
[THE STATE]: Yes, Your Honor. I think another thing we were worried about is we didn’t know anything about her other than the fact that
12 she likes to read books. That was the case with Juror 36 as well. All we know is she likes to play softball.
[DEFENSE COUNSEL]: Judge, [Venireperson] 8, white female, all I have in my notes is that she likes to read novels. She has no favorite authors.
[THE STATE]: To clarify, it was the fact that we didn’t know much about her, but the only thing we know about her is she reads crime novels that she watches Criminal Minds and she watches Law & Order, SVU. And that would probably put an unfair expectation on what she might see in this case.
THE COURT: Okay. Anything else from counsel to challenge the explanation?
[DEFENSE COUNSEL]: No.
Accordingly, the only grounds for pretext raised by Wright below were that
similarly situated Caucasian venirepersons, Venireperson 24 and Venireperson 8,
were not struck.4 However, despite discussing both said venirepersons in his
argument here on appeal, Wright did not raise Venireperson 8 as a similarly
situated venireperson in his amended Rule 29.15 motion.5 “‘In actions under Rule
4 On appeal, Wright raises additional arguments for pretext, including that (1) the
State’s concern about people who consume crime or mystery media is unrelated to the case at bar, (2) the State’s reasons were not clear and reasonably specific, and (3) the State’s reasoning was not legitimate, because one of its stated reasons for striking Venireperson 47 – the concern about what type of books she reads – does not apply to Venireperson 47. While this latter argument was raised in Wright’s amended motion and appears to be supported by the record, none of these arguments were raised in the trial court. We therefore decline to consider them. See Johnson, 220 S.W.3d at 383; Collins, 290 S.W.3d at 742 n.4. Notably, because Wright failed to raise these particular arguments at trial, they also would not have been considered on his direct appeal if asserted by appellate counsel, as courts “decline to review an argument of pretext for the first time on appeal.” Collins, 290 S.W.3d at 742 n.4 (citations omitted). 5 Instead, Wright pointed to Venireperson 12, alongside Venireperson 24, as a
similarly situated Caucasian venireperson who was not struck. In doing so, Wright argued that co-counsel had been mistaken in his correction concerning Venireperson 12 during the Batson hearing. Even if this were true, defense counsel proceeded only with Venireperson 24 at trial. Indeed, the motion court found that “[o]f the two who he initially argued were similarly situated Caucasians, only one Venireperson 24, was indeed a 13 29.15, any allegations or issues that are not raised in the Rule 29.15 motion are
waived on appeal.’” Shockley, 579 S.W.3d at 899 (quoting Johnson v. State, 333
S.W.3d 459, 471 (Mo. banc 2011)). Indeed, “‘[p]leading defects cannot be remedied
by the presentation of evidence and refinement of a claim on appeal.’” Id. (quoting
Johnson, 333 S.W.3d at 471). To the extent Wright now attempts to demonstrate
pretext by pointing to Venireperson 8 as a similarly situated Caucasian
venireperson who was not struck, his argument is not preserved for appeal.
We will therefore only consider Wright’s argument for pretext that
Venireperson 24 is a similarly situated venireperson who was not struck. As with
Venireperson 47, Venireperson 24 was questioned by defense counsel as a
venireperson who had yet to speak. Defense counsel asked Venireperson 24 what
she likes to do, to which she responded, “I like to read.” When asked if she liked to
read a particular type of book, Venireperson 24 answered, “Anything from sort of
fiction or fantasy or anything in between. I just love to read.” Venireperson 24
only spoke one other time during voir dire, which was to ask defense counsel to
repeat a statement he had made.
We agree with the motion court that based on their respective answers,
Venireperson 24 was not similarly situated to Venireperson 47. While relatively
Caucasian who Trial Counsel was arguing was similarly situated to Venireperson 47 but was not stricken by the State.” “The motion court’s findings are presumed correct.” Shockley, 579 S.W.3d at 892 (citing Johnson, 406 S.W.3d at 898). This is especially true here, where Wright offers no challenge on appeal to this finding of the motion court, who also happens to be the same judge as the trial court judge. In fact, Wright forgoes any argument on appeal concerning Venireperson 12 as a similarly situated venireperson who was not struck. Venireperson 12 is thus not at issue on this appeal. 14 little information was known about both venirepersons, their respective answers
to defense counsel were not comparable, in that Venireperson 47’s answers
demonstrated a preference for crime-based entertainment while Venireperson 24’s
did not. Venireperson 47 stated that in her free time, she “watch[es] a lot of TV,”
her favorite shows being “Criminal Minds, [and] Law and Order SVU.” On the
other hand, Venireperson 24 indicated no preference for crime-based television
shows, media, or entertainment. Instead, she stated she likes to read books “from
sort of fiction or fantasy or anything in between.” Put another way, having little
information concerning Venireperson 47 besides her enjoyment of crime-based
television is simply not the same as knowing nothing about Venireperson 24 other
than her enjoyment of reading fiction, fantasy, and other non-specified genres.
Moreover, the State explained during the Batson hearing why this
consumption of crime-related entertainment by Venireperson 47 was concerning:
“[T]hat would probably put an unfair expectation on what she might see in this
case.” Such a concern is well-taken. See State v. Taylor, 317 S.W.3d 89, 95 n.2
(Mo. App. E.D. 2010) (“Given the prevalence of television shows such as CSI and
Law and Order, a trend exists wherein juries expect the State to present physical
evidence on every issue. The trial court does not err in allowing the State to ferret
out such juror biases during voir dire.”). Wright challenges this particular
explanation here on appeal as being “unrelated to the case at bar,” but significantly,
he offered no such arguments at trial. In fact, the record reflects Wright willingly
chose not to challenge this explanation. “[W]e will not find error based on an
15 argument that the trial court was not afforded an opportunity to consider.” State
v. Dominguez-Rodriguez, 471 S.W.3d 337, 347 (Mo. App. E.D. 2015) (citing
Murray, 428 S.W.3d at 714). As such, the record demonstrates Wright failed to
show pretext.
Accordingly, the Batson claim would have been meritless. Appellate counsel
recognized this, credibly testifying she identified and considered raising the
Batson issue, but did not do so because she thought the claim “lacked merit[.]”
This decision was clearly based on reasonable legal strategy, which “is virtually
unchallengeable[.]” Tate, 461 S.W.3d at 22 (citations omitted). Additionally,
“appellate counsel will not be held ineffective for failing to raise a meritless claim.”
McAllister, 643 S.W.3d at 136 (citing Tisius, 519 S.W.3d at 432). This lack of merit
also prevents a finding of prejudice, as Wright cannot demonstrate that “there is a
reasonable probability the outcome of the appeal would have been different” had
the Batson claim been raised. Tate, 461 S.W.3d at 22 (citing Tisius, 183 S.W.3d at
215). Having failed to satisfy both the performance prong and prejudice prong,
Wright’s claim of ineffective assistance of counsel fails.
Wright’s sole Point on Appeal is denied.
Conclusion
For the foregoing reasons, the judgment of the motion court is affirmed.
______________________________ W. DOUGLAS THOMSON, JUDGE All concur.