Opinion
No. 55222.
March 14, 1989. Motion for Rehearing and/or Transfer to Supreme Court Denied April 12, 1989. Application to Transfer Denied May 16, 1989.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, ROBERT W. SAITZ, J.
Janis C. Good, St. Louis, for appellant.
William L. Webster, Atty. Gen., John Munson Morris, John P. Pollard, Asst. Attys. Gen., Jefferson City, for respondent.
Movant appeals from the denial of his Rule 27.26 motion without an evidentiary hearing. We affirm.
Movant was convicted of three counts of burglary in the second degree and three counts of stealing on April 3, 1986. He was sentenced as a persistent offender to a total of thirty years' imprisonment. This conviction was affirmed in State v. Smith, 743 S.W.2d 416 (Mo.App. 1987).
Movant asserts he was entitled to an evidentiary hearing on one of his allegations of ineffective assistance of counsel. More specifically movant claims his counsel was ineffective for failing to present objections to the systematic exclusion of blacks from the jury panel at anytime after Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided.
Batson was decided April 30, 1986, after movant's conviction but prior to his sentencing. We need not determine whether Batson would apply retroactively to movant's case because his allegation contains insufficient facts to warrant an evidentiary hearing in any event. Felton v. State, 753 S.W.2d 34, 35[4] (Mo.App. 1988) (conclusionary statement that State's attorney systematically excluded blacks from jury panel does not entitle movant to an evidentiary hearing on allegation of ineffective assistance of counsel for failure to preserve issue). Movant failed to allege how many blacks were excluded from the panel, how many remained on the panel or the circumstances surrounding their exclusion. Therefore, movant failed to allege facts warranting relief, not refuted by the record which resulted in prejudice to him. Id.
JUDGMENT AFFIRMED.
CRANDALL, P.J., and REINHARD, J., concur.