Warren King v. Warden, Georgia Diagnostic Prison

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-12804

____________________

WARREN KING,

Petitioner-Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC PRISON,

Respondent- Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:12-cv-00119-LGW

____________________

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2 Opinion of the Court 20-12804

Before WILLIAM PRYOR, Chief Judge, and WILSON and GRANT, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

Warren King, a Georgia prisoner sentenced to death, ap-

peals the denial of his petition for a writ of habeas corpus. King

contends that the Georgia courts unreasonably adjudicated his ob-

jection that the prosecutor exercised discriminatory strikes during

jury selection, unreasonably concluded that King received effective

assistance of counsel in the investigation and presentation of his

mental-health and mitigation evidence, and unreasonably rejected

his challenge to the procedure for establishing intellectual disability

in capital cases. King also argues that the district court erred when

it ruled that he forfeited any further claim based on his alleged in-

tellectual disability. We affirm.

I. BACKGROUND

This background section contains four parts. First, we ex-

plain King’s crime of conviction. Second, we describe his counsel’s

preparation for trial, the trial itself, and sentencing. Third, we de-

scribe the jury selection and objections. Fourth, we describe King’s

unsuccessful appeal and state and federal habeas corpus petitions.

A. King’s Crime

A little after midnight on September 14, 1994, Karen Crosby

closed the convenience store where she worked and walked to her

car. But before she arrived there, Warren King and his cousin, Wal-

ter Smith, ordered her at gunpoint to surrender the keys to the

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store. See King v. State, 539 S.E.2d 783, 789 (Ga. 2000). Smith entered

the store to rob it and left King outside with Crosby and the gun.

Id. Smith set off the store’s alarm and ran from the store. Id. Ac-

cording to King’s testimony at sentencing, “Smith yelled at him re-

peatedly to shoot Crosby,” but he instead gave the gun back to

Smith, who killed Crosby. Id. Smith testified at trial that he heard

King shoot Crosby while he attempted to rob the store and saw her

already falling to the ground when he turned to look. Id.

A jury convicted King of malice murder, armed robbery,

burglary, aggravated assault, false imprisonment, and possession of

a firearm during the commission of a crime. At trial, King at-

tempted to paint Smith as the leader of the robbery and the

shooter, and, in the alternative, he sought a verdict of “guilty but

mentally retarded” to avoid a death sentence. See GA. CODE § 17-7-

131(c)(3), (j) (1998). But the jury found him “guilty” and eligible for

the death penalty. See King, 539 S.E.2d at 788 & n.1.

B. Pre-Trial Investigation and Presentation of Evidence Regarding Intel-

lectual Disability

After King’s arrest and indictment, the trial court appointed

George Terry Jackson and George Hagood to represent King. Jack-

son, the lead counsel, had participated in over 50 capital cases and

at least 15 capital trials. But Jackson provided ineffective assistance

in one of those capital cases, tried three years before King’s trial.

See Terry v. Jenkins, 627 S.E.2d 7, 8, 10 (Ga. 2006). King’s defense

team met “at least once a week” during the investigation to coordi-

nate. They acquired educational materials, attended seminars, and

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4 Opinion of the Court 20-12804

met with representatives from the Southern Center for Human

Rights and from the public defender’s office to discuss best prac-

tices for intellectual-disability defenses.

Counsel investigated and prepared two defense theories.

First, they sought to prove that Smith, not King, led the crime and

shot Crosby. Second, they sought to prove that King was intellectu-

ally disabled and ineligible for the death penalty.

To support these two theories, they collected records perti-

nent to King’s mental capacity, background, and disposition as a

“follower.” They interviewed King, who gave his account of events

and biographical information but denied receiving psychiatric

treatment or being abused by his parents. Counsel also interviewed

King’s sister, Juanita King, who later testified at sentencing. Juanita

informed King’s counsel about the King family’s poverty and their

lack of parental supervision and said that he “talk[ed] to himself ”

and “act[ed] strange,” especially after his mother passed away.

Counsel also secured records about King’s background and mental

health, including jail records, hospital files, youth detention center

records, and jail psychiatric records. But counsel did not obtain

King’s file from the Georgia Department of Family and Children’s

Services, a file that King now asserts had further helpful infor-

mation and the identity of other witnesses who knew him and his

family.

In 1995, jail officials found King lying in the fetal position and

in an unresponsive and psychotic state and sent him to a hospital

for inpatient psychiatric treatment. After he was discharged, the

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trial court granted the prosecutor’s motion to send King to a state

hospital for an evaluation of his competency to stand trial. One

doctor diagnosed King with schizophrenia; another doctor sus-

pected him of malingering and diagnosed him with an antisocial

personality disorder; a third doctor found him to be competent to

stand trial; and a fourth doctor summarized the results of the other

hospital evaluations. The records from these evaluations were not

presented at trial, nor did the doctors who attended to King testify

or explain the breakdown to the jury. Jackson could not recall later

whether he had called the doctors from the state hospital, but he

testified that his earlier experiences with the hospital convinced

him that the staff there were not helpful to capital defendants.

Two years later, in 1997, King saw Dr. C.E. Beck, a psychia-

trist working with inmates at the jail, who evaluated King in several

15-minute sessions. Dr. Beck diagnosed King with schizophrenia

and prescribed him corresponding medication. The records from

this treatment were not used at trial or in the preparation of the

defense’s expert witnesses.

King’s counsel hired forensic psychologist William Dickin-

son to evaluate King. Counsel provided Dr. Dickinson with the in-

dictment, King’s and Smith’s statements, medical records, jail rec-

ords, juvenile records, school records, and the state hospital rec-

ords. Dr. Dickinson performed several tests and testified that King

fell between being mildly intellectually disabled and the “borderline

defective range of measured intellectual functioning.” He testified

that people with King’s capacities, especially those who grow up

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6 Opinion of the Court 20-12804

without proper parental supervision, are easily led. He also stated

that King exhibited some symptoms of schizophrenia. He testified

that King was taking medication for schizophrenia, heard voices,

and had been huffing gas since he was a child. Dr. Dickinson con-

cluded that King was not malingering.

Counsel also hired Dr. Ernest Miller, a psychiatrist. Counsel

provided Dr. Miller with extensive records and Dr. Dickinson’s re-

port, and they prepared a letter describing King’s history and the

breakdown that he suffered in jail. Dr. Miller examined King and

diagnosed him with “a borderline intellectual handicap and a per-

sonality disorder of mixed type” but did not reach a conclusion as

to schizophrenia. He testified that King mentioned hallucinations

but that these hallucinations were likely exaggerated.

At Dickinson’s and Miller’s recommendation, counsel then

hired neurologist Dr. Ronald Schwartz. Dr. Schwartz evaluated

King and reported that he had a normal neurological examination.

But Dr. Schwartz struggled to assess King because he suspected

that King was not being completely honest in response to ques-

tions.

On Dr. Schwartz’s recommendation, counsel hired Dr.

Shirley Koehler for a neuropsychological examination, but Dr.

Koehler “turned out to be a disappointment,” as King’s counsel put

it during later habeas proceedings. Counsel provided Dr. Koehler

with records and medical reports. She administered a series of tests

and a CT scan and interviewed King. The CT scan was normal.

And based on the tests and interview, Dr. Koehler concluded that

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King was malingering. Dr. Koehler’s tests suggested that King was

not intellectually disabled. She testified against King at trial in sup-

port of the State’s theory that King was malingering.

At the close of evidence, King moved for a directed verdict

on the question whether he was “mentally retarded.” The trial

court denied the motion. The jury found King guilty of murder

and other charges related to the store robbery. See King, 539 S.E.2d

at 788 & n.1.

At sentencing, King’s counsel largely relied on mitigation ev-

idence about his difficult upbringing. They reminded the jury that

it could consider the guilt-stage evidence at sentencing. King testi-

fied that he participated in the robbery only out of fear and that

Smith was the murderer. He also apologized to the victim’s family.

Juanita King testified that she cared for King while their

mother worked and their father was absent. She explained that

their parents were alcoholics and that their father abused their

mother. She also testified to the condition of the home King grew

up in, which had no running water or telephone. Juanita testified

that King had difficulty with basic tasks and needed help to dress

himself and to make his bed. She asked the jury to have mercy.

Marjorie Cox, King’s former foster mother, spoke positively

about King and described him as a happy, respectful child who was

simply “very slow.” She testified that King never talked about his

parents and never wanted to visit them. She testified that King was

“definitely a follower,” not a leader. Miriam Mitchum, a social

worker who assisted King after he was expelled from Cox’s home,

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described King’s house as a dilapidated wooden structure. In her

visits to that house, she could not recall a time when King’s parents

were sober, and she witnessed domestic violence in the home on

one of her visits. She corroborated Cox’s testimony that King “did

much better” in Cox’s home than in his parents’ and that he was

more of a follower than a leader. King’s counsel unsuccessfully

tried to locate other mitigation witnesses.

King’s counsel asked for a sentence of life imprisonment or

life imprisonment without parole. Counsel highlighted King’s re-

morse over his crime and his being forced to grow up in a “house

of hate” with alcoholic parents. He also made a brief plea for

mercy. The jury sentenced King to death for the murder charge.

C. Jury Selection and King’s Batson and J.E.B. Objections

King objected to several of the prosecutor’s strikes under

Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994). He argued that the prosecutor discriminated

against the prospective jurors on the bases of race and sex. The trial

court sustained one of King’s objections but overruled the others.

After preliminary for-cause strikes of prospective jurors, the

parties used peremptory strikes to select 12 jurors out of a pool of

42. Georgia law provided the State with 10 peremptory strikes and

the defense with 20. With respect to the 12 potential alternate ju-

rors, the State had three peremptory strikes, and the defense had

six. One by one, each potential juror stood. The State marked ei-

ther “excuse” or “accept” on the strike sheet. If the State marked

“accept,” the defense could mark “excuse” or “accept.” If both the

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State and the defense marked accept, then the individual became a

member of the petit jury. Selection stopped when 12 jurors had

been selected.

Of the 42 members of the main jury pool, there were eight

black potential jurors: one black man and seven black women. The

State used seven of its peremptory strikes to strike black prospec-

tive jurors from this pool, which left only one black potential juror.

The State used its remaining three strikes against white women.

The State used the only alternate-juror strike it exercised against a

black woman. Although white men comprised 45% of the venire

pool, the prosecutor did not use any peremptory challenges to re-

move a white man. The petit jury consisted of seven white men,

four white women, and one black man. The three alternate jurors

were two white women and one black man.

King challenged the State’s strikes as discriminatory because

it used seven of its strikes to remove seven of the eight black mem-

bers of the jury pool, the remaining three strikes to remove

women, and an alternate-juror strike against a black woman. The

trial court found that the defense had made a prima facie case of

unlawful discrimination and required the State to provide race- and

sex-neutral reasons for its strikes. See Batson, 476 U.S. at 96–97;

J.E.B., 511 U.S. at 144–45. Johnson objected to the use of statistical

information to establish a prima facie case of discrimination as un-

fair to the prosecution and, though acknowledging that binding

precedent dictated otherwise, “suggest[ed]” that a higher burden

be placed on defendants. But he immediately proceeded to provide

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10 Opinion of the Court 20-12804

the required race- and sex-neutral justifications. We recount only

those explanations relevant to this appeal.

The State used its second strike on Jacqueline Alderman, a

black woman. The prosecutor, Assistant District Attorney John

Johnson, stated that the “main reason . . . [for the strike was] that

this lady is a black female, she is from [King’s hometown of ] Sur-

rency, [and] she knows the defendant and his family.” At one point

during his justification of the Alderman strike, Johnson mentioned

that the State was investigating her husband in an unrelated case,

but he quickly backed off of that statement and said it was not the

main reason for the strike; the main reason was that she was from

Surrency and knew King’s family. The trial court concluded that

the strike violated Batson. It reasoned that Johnson’s rationales

were shifting and unreliable and that Alderman did not actually

know King’s family as Johnson had argued.

Johnson then delivered a “soliloquy,” in the words of the dis-

trict court. Johnson called it “improper” for the trial court to tell

him that he could not exercise a strike based on where the juror

was from. He said that “[i]f this lady were a white lady there . . .

would not be a question in this case” and “that’s the problem [he]

ha[d] with all of this.” Johnson criticized Batson as “not racially neu-

tral.” Before Batson, Johnson said, he “had to act . . . [in a racially

neutral] way when [he] was in Brunswick because it was a physical

impossibility if you wanted to strike every black off a jury for you

to do that.” But in Johnson’s view, “Batson now makes us look

whether people are black or not” and prevents legitimate strikes, so

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it was “improper and . . . wrong.” Although Johnson was “very an-

gry,” he suggested seating Alderman on the jury to avoid restarting

the striking process. The trial court agreed and seated Alderman.

The trial court overruled the rest of King’s objections, five

of which King cites for the purposes of this appeal. Johnson used

his sixth strike on Sarah McCall. He explained that “[s]he is a black

female. She indicated that the death penalty was not her first

choice. She had a lot of hesitancy about her.” Johnson mistakenly

stated that her husband, also in the jury pool, said that she opposed

the death penalty. But her husband said that they had never dis-

cussed the topic. The trial court left the strike in place.

Johnson used his seventh strike on Patricia McTier. He ex-

plained that “[s]he is a black female. I struck her because we have

prosecuted Wilma McTier for an aggravated assault.” Johnson ad-

mitted there was some confusion about Patricia McTier’s relation

to Wilma McTier: Johnson initially thought Wilma was Patricia

McTier’s brother-in-law instead of her husband’s uncle. The trial

court overruled King’s Batson objection.

Johnson used his eighth strike on Jane Ford. Johnson ex-

plained that “[s]he is a white female” with two problems as a po-

tential juror. First, “she was a single mother, had no family here,

[and] had children and no one to care for those children,” and sec-

ond, she said that she worked with special-education children and

enjoyed that work. The trial court overruled King’s J.E.B. objection

to Johnson’s strike of Ford.

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Johnson used his tenth strike on Lillie Burkett, a black

woman. Johnson provided two justifications for striking her. First,

he said that “[s]he is a minister” and he “do[es] not take people on

juries who are ministers” because they emphasize forgiveness and

tend to be overly lenient. Moreover, he said, she knew King’s family,

and King’s family background would be relevant to the trial. The

only other minister in the pool was Thomas Lightsey, a white min-

ister whom the parties did not reach because he was the 41st in the

lineup and the jury had been selected before he was called. The trial

court allowed the Burkett strike.

Finally, Johnson used his alternate-juror strike on Gwen Gil-

lis, a black woman. Gillis, he said, “lived very near” King’s aunt and

near Gary Andrews, who was Smith’s uncle and was the owner of

the house where the murder weapon was found. Johnson also as-

serted that he struck Gillis in order to reach and accept the more

favorable prospective alternate juror who followed her. The trial

court overruled King’s Batson objection.

D. King’s Appeal and Habeas Proceedings

King appealed to the Supreme Court of Georgia on several

grounds, two of which are relevant here. He argued that Georgia’s

requirement that a defendant prove his intellectual disability be-

yond a reasonable doubt in order to avoid the death penalty vio-

lated the federal and state constitutions. And he argued that the

trial court had allowed Batson and J.E.B. violations in his jury selec-

tion.

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The Supreme Court of Georgia affirmed his convictions and

sentence. It held that Georgia’s procedure for arriving at a “guilty

but mentally retarded” verdict was constitutional. King, 539 S.E.2d

at 798 (citing Palmer v. State, 517 S.E.2d 502, 506 (Ga. 1999)); see also

Mosher v. State, 491 S.E.2d 348, 353 (Ga. 1997). With respect to Bat-

son and J.E.B., the court acknowledged that King made his prima

facie case of discrimination and that the trial court ordered that Al-

derman be seated on the jury. King, 539 S.E.2d at 795. It reviewed

King’s Batson challenges with respect to McCall, Ford, Burkett, and

Gillis, but it did not discuss McTier because King did not challenge

that strike on direct appeal. Id. at 795–96.

As to McCall, the Supreme Court of Georgia found that

Johnson had misstated the record in the course of explaining his

strike, but it held that the trial court did not abuse its discretion in

overruling King’s Batson objection. Johnson erroneously said that

McCall’s husband characterized her as opposed to the death pen-

alty, but “this mistake does not show that the explanation was a

mere pretext” for racial discrimination, the court ruled. Id. at 796.

As to Ford, the Supreme Court of Georgia affirmed the trial

court’s decision to allow the strike. Ford was a single mother, so

jury service would be a “financial[] burden[],” the court reasoned.

Id. And it also held it reasonable to credit Johnson’s citation of

Ford’s positive relationship with intellectually disabled children. As

the court explained, “[a]lthough seven other jurors, four of them

women and one an African-American male, described some

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exposure to mentally retarded persons,” Ford “was the only person

who indicated that she enjoyed that relationship.” Id.

The Supreme Court of Georgia also held that it was not an

abuse of discretion to credit Johnson’s explanation of the Burkett

strike. Johnson “consistently questioned male and female jurors of

all races during voir dire about the roles they served in their places

of worship.” Id. at 795. Moreover, the court found, “none of the

other prospective jurors were ministers.” Id. The record confirmed

that Burkett “stated that she knew King’s family, a factor that

. . . the State was permitted to consider.” Id.

Finally, the Supreme Court of Georgia affirmed the trial

court’s ruling that Johnson’s strike of Gillis was not discriminatory.

The court assumed that, even though Gillis was a prospective alter-

nate juror, erroneously overruling an objection to striking her

would not be harmless. Id. at 796. But the court concluded that the

trial court did not abuse its discretion. Id. Gillis not only lived near

someone involved in the case but also had “specific personal ac-

quaintances that might have tended to make her sympathetic to the

defense.” Id. (citing Congdon v. State, 424 S.E.2d 630 (Ga. 1993)). The

court “carefully noted King’s argument that other jurors who knew

him or members of his family were not stricken by the State” but

did not conclude from this fact that Johnson’s strike was discrimi-

natory. Id. It found credible Johnson’s argument that “other factors,

which did not apply to those other jurors, contributed to” his deci-

sion to strike Gillis. Id. The Supreme Court of the United States

denied certiorari. King v. Georgia, 536 U.S. 957 (2002).

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Several years later, King filed a state petition for a writ of

habeas corpus. King alleged eight grounds for relief. Only some are

relevant to this appeal.

First, King argued that he was denied adequate assistance of

counsel at trial and sentencing. See Strickland v. Washington, 466 U.S.

668 (1984). In support of this claim, King presented affidavits, re-

ports, and testimony from his family members and psychological

experts. Competent counsel, King argued, could have more persua-

sively argued that he was schizophrenic and not malingering and

would have presented better mitigating evidence counseling

against a death sentence. In particular, he argued that the records

of Dr. Beck’s examination of King, which included a firmer schiz-

ophrenia diagnosis, or the Central State Hospital records should

have been provided to the experts used at trial or directly to the

jury. One of the hospital doctors testified that he would have testi-

fied that King was not malingering, and another said she would

have changed her malingering conclusion and testified in King’s fa-

vor if she had been provided with more records. Dr. Dickinson tes-

tified that testimony from one of King’s neighbors corroborated

King’s schizophrenia. And Dr. Miller testified that further records

persuaded him that King “perhaps” was “pre-psychotic” when Dr.

Miller evaluated him before trial. King also argued that counsel

should have obtained records from the Department of Family and

Children’s Services that would have provided more background in-

formation on King’s difficult family background and the behavior

of his family. And competent counsel would have developed and

presented evidence of his abuse as a child. Finally, King argued that

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16 Opinion of the Court 20-12804

Mitchum and Cox should have testified at the guilt stage and not

just at sentencing.

The superior court rejected King’s Strickland arguments in a

lengthy order. It reasoned that King had the benefit of experienced

counsel and that Jackson’s prior ineffectiveness in another case was

irrelevant to whether he was ineffective in this one. The court

found that there was no reliable information about King’s being

abused as a child or having a family history of mental illness that

should have alerted counsel to a need to investigate those issues

further. King’s experts were given ample records about King to

make their diagnoses; the additional materials he pointed to were

merely cumulative. The court determined that his experts’ testi-

mony that they now had more confidence in a schizophrenia diag-

nosis did not mean that counsel could have elicited better testi-

mony from them at trial by providing them with more of the same

kind of records that they received. The court considered King’s ci-

tation of Dr. Beck’s schizophrenia diagnosis unpersuasive, as Beck’s

sessions with King lasted only 15 minutes and counsel’s hired ex-

perts spent far more time with him. And the court ruled that it was

a reasonable strategic decision to avoid relying on the hospital that

negatively evaluated King and to decline to introduce childhood

records that could have opened up King’s character for attack by

the prosecution. The court concluded that reserving Mitchum’s

and Cox’s testimony for sentencing was a reasonable strategic de-

cision because they were lay witnesses who were not qualified to

opine on King’s mental capacity.

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The court ruled in the alternative that King had not estab-

lished prejudice from his counsel’s alleged errors. Instead, King

“merely assert[ed] trial counsel should have presented more wit-

nesses to testify at [his] trial and that those who did testify should

have testified to something different.” That argument, the court

found, was not sufficient to establish ineffective assistance of coun-

sel.

The state habeas court also rejected King’s renewed chal-

lenge to the state law, GA. CODE § 17-7-131(c)(3) (1998), that re-

quired a defendant seeking the “guilty but mentally retarded” ver-

dict to prove his intellectual disability beyond a reasonable doubt.

It first ruled that it was bound by the Supreme Court of Georgia’s

decision on the issue. See King, 539 S.E.2d at 798. And it also con-

cluded that the intervening decision by the Supreme Court of the

United States in Atkins v. Virginia, 536 U.S. 304 (2002), which held

that states may not execute intellectually disabled defendants, did

not change the outcome of King’s claim. In Atkins, the state court

explained, the “[Supreme] Court specifically referenced Georgia’s

statute requiring proof of mental retardation beyond a reasonable

doubt when it explicitly left to the states the task of developing

their own procedures.” Id. at 313–14, 317. The Supreme Court of

Georgia and Supreme Court of the United States denied King’s re-

quests for further review. King v. Humphrey, 567 U.S. 907 (2012).

King filed a federal petition that alleged nine grounds for re-

lief, and the district court rejected all nine. The district court ruled

that King could not overcome the deference federal courts owe to

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18 Opinion of the Court 20-12804

state-court adjudications under the Antiterrorism and Effective

Death Penalty Act, see 28 U.S.C. § 2254, as to his Batson and Strick-

land claims or his argument that Georgia’s burden of proof for an

intellectual-disability verdict was unconstitutional. It also deter-

mined that King had forfeited his other arguments based on his in-

tellectual disability, such as his argument that he was entitled to a

directed verdict as to his intellectual disability. The district court de-

nied King’s motion to alter or amend its judgment but granted a

certificate of appealability for King’s Batson claims. We later ex-

panded the certificate to include King’s Strickland claims, his chal-

lenge to the intellectual-disability burden of proof, and the deter-

mination that King had forfeited his other intellectual-disability ar-

guments.

II. STANDARDS OF REVIEW

We review the denial of a petition for a writ of habeas cor-

pus de novo. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th

Cir. 2005). Our review is governed by the Antiterrorism and Effec-

tive Death Penalty Act of 1996, 28 U.S.C. § 2254. Under that Act,

“state-court decisions [must] be given the benefit of the doubt.”

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citation omitted). If a

state court adjudicated a claim on the merits, we cannot set aside

that adjudication unless it was “either ‘contrary to, or involved an

unreasonable application of, clearly established federal law’” or was

an unreasonable determination of the facts in the light of the evi-

dence. Raulerson v. Warden, 928 F.3d 987, 995 (11th Cir. 2019) (alter-

ation adopted) (quoting 28 U.S.C. § 2254(d)(1)); see also 28 U.S.C.

§ 2254(d)(2).

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A state court unreasonably applies federal law “only if no

fairminded jurist could agree with the state court’s determination

or conclusion.” Raulerson, 928 F.3d at 995 (internal quotation marks

and citation omitted). We evaluate the reasons offered by the court,

but if we can justify those reasons on a basis the state court did not

explicate, the state-court decision must still stand. Pye v. Warden,

Ga. Diagnostic Prison, 50 F.4th 1025, 1036 (11th Cir. 2022) (en banc).

If the last state court to address an issue did not explain its decision,

we “look through” that decision and base our decision on the last

reasoned decision provided by a state court. Wilson v. Sellers, 138 S.

Ct. 1188, 1193–94 (2018). Factual determinations are “presumed to

be correct,” and that presumption can be overcome only by “clear

and convincing evidence.” 28 U.S.C. § 2254(e)(1). If a state court

unreasonably applied federal law or unreasonably determined the

facts in a case, we review the underlying claim de novo. Adkins v.

Warden, Holman CF, 710 F.3d 1241, 1250 (11th Cir. 2013).

III. DISCUSSION

We take each of King’s four claims in turn. First, we explain

that the Georgia courts reasonably adjudicated King’s Batson and

J.E.B. claims. Second, we explain that the Georgia courts reasonably

rejected King’s Strickland claims. Third, we explain that the Georgia

courts reasonably rejected King’s challenge to Georgia’s burden of

proof for a guilty-but-intellectually-disabled verdict. And fourth,

we affirm the ruling that King forfeited his other intellectual-disa-

bility arguments.

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20 Opinion of the Court 20-12804

A. King’s Batson Claims

The Supreme Court has established a three-step process for

evaluating objections that a prosecutor exercised his peremptory

strikes on the basis of race or sex. See J.E.B., 511 U.S. at 144–45. At

the first step, “the defendant must establish a prima facie case by

producing evidence sufficient to support the inference that the

prosecutor exercised peremptory challenges on the basis of race

[or sex].” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1199 (11th

Cir. 2013). At the second step, “the burden shifts to the State to

come forward with a neutral explanation” for its strikes. Id. (quot-

ing Batson, 476 U.S. at 97). At the third step, the trial court must

find, as a matter of fact, whether the defendant has established pur-

poseful discrimination. Id. Typically, “the decisive question will be

whether counsel’s race- [or sex-]neutral explanation for [the] per-

emptory challenge should be believed.” Id. (citation omitted).

The trial court must “consider all relevant circumstances” at

the third step, and the conviction cannot stand if even one of the

strikes was discriminatory. Id. at 1199–1200. When a court consid-

ers a Batson claim in an appeal or a state habeas proceeding, the

“state court’s written opinion is not required to mention every rel-

evant fact or argument” for its merits determination to receive def-

erence on review by a federal court. Id. at 1223. Instead, the peti-

tioner must prove that the state court failed to consider that argu-

ment or fact. See id. at 1222–23.

King has not met the high standard required to set aside the

Georgia courts’ adjudications of his objections. Although this

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20-12804 Opinion of the Court 21

appeal presents a troubling record and a prosecutor who exercised

one racially discriminatory strike and ranted against precedents of

the Supreme Court of the United States, King’s argument that the

Supreme Court of Georgia failed to consider all relevant circum-

stances fails. Moreover, the district court correctly found that King

failed to exhaust his challenge to the McTier strike when he de-

clined to raise those arguments on direct appeal. And a fairminded

jurist could agree with the decision to reject King’s challenges with

respect to prospective jurors McCall, Ford, Burkett, and Gillis.

There is no clear and convincing evidence to overcome the pre-

sumption that the factual determinations regarding those prospec-

tive jurors were correct.

1. King Has Not Established that the Georgia Courts Failed to

Consider All Relevant Circumstances.

King first argues that we should review the Georgia courts’

decisions de novo because they unreasonably applied Batson. See Ad-

kins, 710 F.3d at 1250. He cites our decision in McGahee v. Alabama

Department of Corrections, 560 F.3d 1252 (11th Cir. 2009), where we

explained that the “failure to consider ‘all relevant circumstances’

as required by Batson [is] an unreasonable application of law,” id. at

1262. King contends that the Supreme Court of Georgia failed to

consider the discriminatory Alderman strike, the statistical evi-

dence of discrimination by Johnson, Johnson’s speech about Batson,

and the racial overtones of a trial of a black defendant for the mur-

der of a white woman. To support his conclusion that the Supreme

Court of Georgia did not consider these circumstances, King points

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22 Opinion of the Court 20-12804

out that the court did not explicitly discuss them and argues that

consideration of those circumstances would lead any reasonable

court to accept his claims. We agree that these circumstances are

relevant to the Batson inquiry, but King has not established that the

Supreme Court of Georgia failed to consider them.

Neither McGahee nor any other of our precedents requires

state courts to show their work in Batson decisions by mentioning

every relevant circumstance. See Lee, 726 F.3d at 1219 (“The state

court’s unreasonable application of Batson [in McGahee] was not the

failure to mention, but the failure to even implicitly consider [rele-

vant circumstances.]”). A petitioner must do more than prove that

the state court failed to “mention” evidence in order to prove that

the state court failed to consider that evidence. Id. at 1223. This

“no-grading-papers, anti-flyspecking rule” stems from “‘the pre-

sumption that state courts know and follow the law’ and [section

2254(d)’s] ‘highly deferential standard for evaluating state-court rul-

ings, which demands that state-court decisions be given the benefit

of the doubt.’” Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d

1335, 1350 (11th Cir. 2019) (quoting Woodford v. Visciotti, 537 U.S.

19, 24 (2002)); see also Pye, 50 F.4th at 1036–38; Jones v. Sec’y, Fla.

Dep’t of Corr., 834 F.3d 1299, 1311–12 (11th Cir. 2016) (“[W]e will

not presume that a state court misapplied federal law, and absent

indication to the contrary will assume that state courts do under-

stand clearly established Federal law as determined by the Supreme

Court of the United States.”(internal quotation marks and citation

omitted)).

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20-12804 Opinion of the Court 23

King has also not established that “[t]he court clearly limited

its review” to some reasons and “did not implicitly review” the cir-

cumstances King proffers. Cf. McGahee, 560 F.3d at 1264. The Su-

preme Court of Georgia acknowledged the Alderman strike and

that King had established a prima facie case of discrimination based

on the pattern of strikes. See King, 539 S.E.2d at 795. Nothing in the

Supreme Court of Georgia’s opinion suggests that it did not con-

sider Johnson’s rant or the obvious racial overtones in King’s case,

so we must presume that the court did consider the circumstances

King cites.

The dissent’s conclusion that the Supreme Court of Georgia

did not reasonably apply the Batson framework relies on a misun-

derstanding of how we evaluate state-court Batson decisions. Ac-

cording to the dissent, the same circumstances on which King re-

lies, taken together, required that the Supreme Court of Georgia

find at least one, perhaps several, Batson violations. But the dissent

does not specify which adjudication was unreasonable and instead

evaluates King’s individual Batson claims de novo. Dissenting Op. at

8–15; cf. 28 U.S.C. § 2254(d)(1). Moreover, as the dissent at times

acknowledges, we do not review the reasonableness of state-court

Batson decisions in gross based on a judgment that the prosecutor

must have engaged in some discriminatory strike somewhere; in-

stead, “Batson violations are evaluated juror-by-juror.” Dissenting

Op. at 11. Neither McGahee nor Adkins, on which the dissent relies,

dictate otherwise.

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24 Opinion of the Court 20-12804

The dissent argues that the Alderman strike means that this

appeal is similar to McGahee, in which this Court held that the Ala-

bama Court of Criminal Appeals was not entitled to deference be-

cause it “fail[ed] . . . to consider the State’s articulation of an explic-

itly racial reason for striking” a juror, 560 F.3d at 1263–64. See Dis-

senting Op. at 10 (“[T]he trial court’s finding that Alderman was

struck for a racially discriminatory reason represents the sort of ex-

plicit racial discrimination evidence that was dispositive in McGa-

hee.”) But this case is nothing like McGahee. There, the Alabama

court’s opinion, by its own terms, clearly limited its analysis to ex-

clude the explicitly racial rationale for a strike. See McGahee, 560

F.3d at 1264 (quoting from the Alabama court’s opinion, which

“read the record as providing two reasons,” and not the racially ex-

plicit reason, for the strike). The Supreme Court of Georgia, in

contrast, never said that it considered only the facts that it explicitly

mentioned in its Batson analysis. And in McGahee, the state appellate

court’s error was ignoring crucial evidence about a strike that the

trial court upheld at Batson step three. McGahee, 560 F.3d at 1264.

The error was not failing to infer another Batson violation from a

discriminatory strike that was remedied, as the Alderman strike was.

Adkins likewise does not support the dissent’s argument.

Like McGahee, the Adkins decision held only that the application of

Batson to a specific prospective juror was unreasonable. See Adkins,

710 F.3d at 1251–52. And in Lee, we cautioned that “a significant

part of the . . . rationale and analysis in Adkins [was] inconsistent

with Supreme Court and our Circuit precedent.” Lee, 726 F.3d at

1220–21. The holding was acceptable only because in Atkins “[e]ven

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20-12804 Opinion of the Court 25

if we were to indulge every maximum factual inference from th[e]

evidentiary record and credit every reason given, it would not be

good enough to make the no-discrimination ruling reasonable.” Id.

at 1223.

The dissent purports to review whether the Supreme Court

of Georgia properly applied the Batson framework, but in sub-

stance it only disagrees with the factual determination about John-

son’s credibility. Contrary to the dissent’s framing, we must review

the reasonableness of the state courts’ bottom-line factual finding

about Johnson’s reasons for his strikes under the standards Con-

gress has prescribed in section 2254(d)(2). Contra Dissenting Op. at

9–10 (applying section 2254(d)(1) instead of section 2254(d)(2)). We

address that argument in the following section, keeping in mind of

course, the background facts about Johnson’s other strikes. Cf.

Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019) (explaining that a

prosecutor’s past discriminatory behavior is relevant to evaluating

the credibility of race-neutral explanations for strikes).

2. The Supreme Court of Georgia Reasonably Adjudicated the

Facts.

We now turn to King’s arguments that the state courts “ac-

cepted demonstrably false reasons as legitimate grounds for the re-

moval of qualified black jurors and white female jurors” and so

made unreasonable determinations of fact. See 28 U.S.C.

§ 2254(d)(2). King faces a high hurdle at this stage. We cannot re-

view King’s arguments de novo unless he has provided “clear and

convincing evidence” that the state court was wrong to credit

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26 Opinion of the Court 20-12804

Johnson’s non-discriminatory justifications for his strikes. Id.

§ 2254(e)(1); see also Rice v. Collins, 546 U.S. 333, 338–39 (2006) (ex-

plaining that a state court’s decision at Batson step three is a pre-

sumptively correct factual determination).

As Batson requires, we evaluate the state-court decision in

the light of all the relevant circumstances, including the four that

we have already discussed, but we emphasize that two of them, the

Alderman strike and Johnson’s rants, cannot bear the weight that

the dissent places on them, especially when the trial court was wit-

ness to both. The trial court found the Alderman strike discrimina-

tory but found the other strikes lawful, and we should hesitate to

second-guess its distinction among the strikes. Likewise, unlike the

dissent, we do not treat Johnson’s rants as decisive evidence that

Johnson would discriminate against black jurors if Batson did not

stop him. See Dissenting Op. at 12–13. We must draw inferences in

favor of the state court’s adjudication, and if we do, the rants, while

inappropriate, do not prove that Johnson wanted to discriminate

based on race. Johnson complained that statistics should be used

evenhandedly to show discrimination by both the prosecution and

the defense. And he complained that Batson required him to focus

on a juror’s race to address a potential Batson challenge, though be-

fore Batson he could ignore race. These—to be clear, misplaced and

futile—arguments attack the procedures that the Supreme Court

of the United States has crafted to detect and remedy racial dis-

crimination in jury selection, but they do not necessarily support

an inference that the prosecutor wanted to be free to racially dis-

criminate in jury selection.

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20-12804 Opinion of the Court 27

We do not reach the merits of overruling King’s objection to

the McTier strike. The district court ruled that King did not exhaust

his state remedies for his objection to the McTier strike, although

it incorrectly labeled King’s failure to exhaust as “procedural de-

fault.” See 28 U.S.C. § 2254(b)(1)(A). That ruling is not properly be-

fore us. The district court did not include it in its certificate of ap-

pealability, and although we granted King’s request to expand that

certificate, our expansion did not reach the McTier strike because

King did not mention it in his request. King now asks in his brief

for a second expansion of the certificate of appealability, but he does

not argue that this appeal is an “extraordinary” situation that war-

rants expanding the certificate of appealability after briefing. See

Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1341 (11th Cir. 2007).

Nonetheless, the facts of the McTier strike are relevant background

when assessing the reasonableness of the Georgia courts’ other

Batson adjudications.

The Georgia courts reasonably rejected King’s objection re-

garding McCall. King points to white jurors who had reservations

about the death penalty but were not rejected. But the prospective

jurors he identifies said little more than that they would want to

see all the evidence in a case before imposing the death penalty. It

was reasonable for the Supreme Court of Georgia to conclude that,

although Johnson was mistaken about an aspect of the record re-

garding McCall’s husband’s voir dire, he was not inventing a pretext

for a racial motive. King, 539 S.E.2d at 796; cf. Lee, 726 F.3d at 1226

(holding it reasonable to conclude that “an honestly mistaken but

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28 Opinion of the Court 20-12804

race-neutral reason for striking [a potential juror] did not violate

Batson”).

We also hold that the state courts reasonably addressed the

Ford strike. The Supreme Court of Georgia credited Johnson’s ex-

planation that Ford’s status as a single mother would make jury

service a burden on her and that Ford was the only person who said

she enjoyed working with intellectually disabled people. King, 539

S.E.2d at 796. King has provided no clear and convincing evidence

that the Georgia courts were wrong to accept this explanation.

King is correct that at the Batson hearing Johnson focused on the

burdens of jury service on Ford’s childcare, not the financial con-

cerns that the Supreme Court of Georgia identified. But that dif-

ference does not make the Georgia court’s decision unreasonable.

It was reasonable for the court to infer that the financial burdens of

jury service would affect a single parent disproportionally. And

Johnson’s primary rationale for the strike, in any event, was that

Ford enjoyed her work with special-needs children. This rationale,

which the Supreme Court of Georgia also considered, id., is all the

more plausible because King mostly compared Ford to other women

who also worked with intellectually disabled people but did not say

that they enjoyed that work. The Supreme Court of Georgia was

reasonable to reject the argument that Ford’s sex was the reason for

the strike.

Johnson said that he struck Burkett based on his strict rule

against having ministers on juries and because she knew King’s

family. The Supreme Court of Georgia affirmed the trial court’s

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20-12804 Opinion of the Court 29

acceptance of these rationales and explained that Johnson “consist-

ently questioned male and female jurors of all races during voir

dire about the roles they served in their places of worship” and that

“none of the other prospective jurors were ministers.” Id. at 795.

The Supreme Court of Georgia also stated that although her con-

nections were not uniquely close as compared to other prospective

jurors, Burkett had connections to King’s family. Id.

The Georgia courts reasonably applied Batson. King does not

provide any evidence that the family connections played no role in

the strike; he can only prove what the Georgia court acknowl-

edged: that Burkett’s connections were not unique enough, stand-

ing alone, to explain striking her. Id. But the family connections

were not the only explanation for the strike.

King argues that Johnson did not save a strike to use against

Thomas Lightsey, a white member of the venire pool who was also

a minister. So, according to King, Lightsey must have been accepta-

ble to Johnson. The Supreme Court of Georgia, he argues, was

wrong to say that “none of the other prospective jurors were min-

isters,” and we should conclude that Johnson’s no-minister rule was

pretextual. Id. We disagree.

As the district court correctly explained, Lightsey was the

41st juror in the venire list, the second to last, so it was highly un-

likely that he would be reached before 12 jurors were selected. And

he was not reached. If we give the Supreme Court of Georgia the

benefit of the doubt, as we must, Meders, 911 F.3d at 1350, it might

not have considered Lightsey a “prospective” juror because of how

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30 Opinion of the Court 20-12804

unlikely it was that he would be reached and selected. But even if

the Supreme Court of Georgia misread the record, that error

would not entitle King to relief. As we explained recently, we re-

view not “the particular justifications that the state court provided”

but the broader “reasons” for the decision. Pye, 50 F.4th at 1036. The

district court was correct to supply an alternative justification—

Lightsey’s place in the list of potential jurors—for the state court’s

reason for the decision: that it was not an abuse of discretion for the

trial court to accept Johnson’s explanation of the strike. We cannot

rely on a possible misstatement by the Supreme Court of Georgia

to set aside its decision when King has otherwise failed to prove

that the no-minister rule was pretextual.

Finally, we affirm the ruling as to prospective alternate juror

Gillis. Gillis, Johnson explained, was neighbor to both King’s aunt

and Smith’s uncle. King argues that Gillis’s residence could not have

been the real reason for her strike because Johnson did not strike

white jurors who also had connections to King and his family. He

suggests that a prosecutor concerned about family or personal con-

nections would have struck other prospective jurors who, respec-

tively, ran a video store at which King was a customer, conducted a

medical procedure on King, went to school with King’s sister but

had no contact with King, worked at the lunchroom at King’s mid-

dle school, and possibly taught King and his sister in middle school.

We consider it reasonable to distinguish between, on the one hand,

living close to King’s close family member and a close family mem-

ber of his co-defendant and, on the other hand, any of the acquaint-

ances the other prospective jurors had. Cf. King, 539 S.E.2d at 796.

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20-12804 Opinion of the Court 31

And even if drawing those distinctions was not sound trial strategy

on Johnson’s part, it was reasonable for the Georgia courts to have

credited them as Johnson’s sincere, if misguided, reason for striking

Gillis. We lack authority to set aside that decision.

King’s Batson challenges fail. “[H]abeas corpus is a guard

against extreme malfunctions in the state criminal justice systems,

not a substitute for ordinary error correction through appeal.” Har-

rington v. Richter, 562 U.S. 86, 102–03 (2011) (internal quotation

marks and citation omitted). The Georgia courts reasonably ap-

plied Batson when they rejected King’s remaining objections after

sustaining one of them, which was corrected by seating the im-

properly stricken juror. King has not proved that the Georgia courts

generated an “extreme malfunction” in his case.

B. The Georgia State Court Reasonably Rejected King’s Strickland

Claims.

To prevail on a claim of ineffective assistance of counsel,

King must prove that his counsel’s performance was objectively de-

ficient and that this deficient performance prejudiced him. Strick-

land, 466 U.S. at 687. King argued that his trial counsel inadequately

investigated and presented evidence of his mental illness at trial and

mitigating childhood-adversity evidence at sentencing. The state

court rejected these arguments on the merits, so we must defer to

the state court’s decision—here, that of the Georgia superior court

because it gave the last reasoned decision on the merits, see Wilson,

138 S. Ct. at 1193–94—unless it was “not only erroneous, but ob-

jectively unreasonable,” Yarborough v. Gentry, 540 U.S. 1, 5 (2003); see

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32 Opinion of the Court 20-12804

28 U.S.C. § 2254(d). And Supreme Court precedents “require that

the federal court use a doubly deferential standard of review that

gives both the state court and the defense attorney the benefit of

the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation

marks and citation omitted).

The superior court applied the correct legal standards and

reasonably found that King’s counsel conducted an extensive inves-

tigation to prepare for trial and adequately presented a case for in-

tellectual disability, mental illness, and mitigating circumstances.

King’s criticisms of his counsel’s trial decisions do not establish that

“no fairminded jurist,” Raulerson, 928 F.3d at 995 (internal quota-

tion marks and citation omitted), could find that King’s counsel per-

formed at “an objective standard of reasonableness,” see Strickland,

466 U.S. at 688. Because we defer to the state court’s reasonable

determination that King’s counsel performed competently, we

need not address whether better assistance of counsel would have

changed the outcome of King’s trial. See Carey v. Dep’t of Corr., 57

F.4th 985, 989 (11th Cir. 2023) (“Because a petitioner must prove

both deficient performance and prejudice, a court need not address

one element if it determines that the petitioner has failed to prove

the other.”).

1. The State Court Applied the Correct Legal Standards.

King’s criticisms of the Georgia court’s understanding of the

governing law fail. To begin, it was not unreasonable for the supe-

rior court to count Jackson’s extensive capital-defense experience in

his favor. When we evaluate counsel’s performance, the

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20-12804 Opinion of the Court 33

presumption in favor of trial counsel “is even stronger” for “an ex-

perienced trial counsel.” See Lawrence v. Sec’y, Fla. Dep’t of Corr., 700

F.3d 464, 478 (11th Cir. 2012) (citation omitted). Of course, “even

the very best lawyer could have a bad day,” id. (citation omitted), so

the superior court could not afford Jackson’s experience conclusive

weight. But it did not do so; it took that experience into considera-

tion as the background for its evaluation. That deference to coun-

sel’s experience, required of federal courts in our Circuit, was not

an unreasonable application of Strickland.

King also argues that the court should have considered that

Johnson was found ineffective under Strickland in another case. Fail-

ure to do so, he argues, unreasonably disregarded Strickland’s com-

mand that courts consider “all the circumstances” when evaluating

deficient performance. 466 U.S. at 688. And it is not fair, King ar-

gues, to consider an attorney’s experience as a factor weighing

against a finding of ineffective assistance while refusing to consider

past failures as a factor weighing in favor of such a finding. We dis-

agree.

The state court could have reasonably read Strickland’s refer-

ence to “all the circumstances” in the light of the requirement that

reasonableness must be evaluated “on the facts of the particular

case.” Id. at 690. One past instance of ineffective assistance does

little to establish whether King’s rights were violated, so it was not

an unreasonable application of Strickland for the state court not to

consider it. Nor does Supreme Court precedent foreclose taking

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34 Opinion of the Court 20-12804

extensive past experience into account while ignoring a single fail-

ure on counsel’s part.

Finally, King argues that “the fact that [his] counsel con-

ducted some mitigation [investigation] cannot, on its own, pre-

clude a finding of ineffectiveness.” By “focusing on what trial coun-

sel presented,” he says, “the state habeas court’s analysis was also

unreasonable” because it ignored what counsel “could have pre-

sented to King’s sentencing jury.” Again, King’s argument is mis-

placed.

The state court did not apply the wrong standard. Counsel’s

investigation before trial “need not be exhaustive” but only “ade-

quate.” Raulerson, 928 F.3d at 997. So “[t]o determine whether trial

counsel should have done something more in their investigation,

we first look at what the lawyers did in fact.” Id. (alteration

adopted) (internal quotation marks and citation omitted). The su-

perior court correctly considered King’s criticisms of his counsel’s

performance in the light of counsel’s actions and not based on

King’s suggestions of ideal trial strategy.

2. The State Court’s Conclusions Were Reasonable.

King challenges the superior court’s treatment of his Strick-

land claims regarding both deficient performance and prejudice. He

argues that the state court “unreasonably discounted” his evidence

of mental illness. King contends that counsel could have presented

a stronger case for schizophrenia at trial and rebutted charges of

malingering. And competent counsel could have presented a more

sympathetic mitigation case by highlighting other aspects of King’s

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20-12804 Opinion of the Court 35

difficult childhood. He argues that the state court unreasonably de-

termined that he was not prejudiced at sentencing by the lack of

mitigating evidence. And he argues that the state court unreasona-

bly found that he was not prejudiced by the presentation of certain

witnesses only at the sentencing phase and not at the guilt stage.

Because King’s arguments about deficient performance fail, we

need not reach his arguments about prejudice.

Fairminded jurists could agree with the conclusion that

King’s counsel performed in a constitutionally adequate manner.

See Richter, 562 U.S. at 102. As to King’s family and background,

counsel conducted a lengthy background investigation, and the su-

perior court reasonably discounted King’s argument that counsel

should have presented evidence of childhood abuse or familial

mental illness. Although counsel may have been vaguely aware of

mental illness in King’s family, counsel reasonably focused their

limited resources on King’s mental health, especially because nei-

ther King nor his sister revealed any parental abuse in their inter-

views, nor any specific family history of mental illness. “An attor-

ney does not render ineffective assistance by failing to discover and

develop evidence of childhood abuse that his client does not men-

tion to him.” Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999).

King also takes issue with the amount of detail the jury was pro-

vided regarding King’s childhood, but the superior court reasona-

bly concluded that the jury was informed that King had an ex-

tremely difficult background and that King had not proved that his

counsel performed inadequately by “not presenting evidence that

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36 Opinion of the Court 20-12804

could be potentially aggravating . . . [or] cumulative.” See Rhode v.

Hall, 582 F.3d 1273, 1287 (11th Cir. 2009).

It was also reasonable to reject King’s argument that counsel

should have employed additional expert witnesses or supplied the

expert witnesses with more records. Jackson could reasonably de-

cline to rely on hospital records and doctors from a source that he

had found unreliable in the past and that had evaluated King nega-

tively. And King does not explain why the records that he presented

to the experts in relation to his state habeas petition are fundamen-

tally different from what his experts reviewed in preparation for

trial, so he cannot prove that counsel’s performance was the reason

for the weaker schizophrenia case he made at trial.

King had to prove that “from counsel’s perspective at the

time,” a competent attorney would have crafted a better case for

schizophrenia. See Strickland, 466 U.S. at 689. At most, King brought

evidence that some doctors were more confident of King’s schizo-

phrenia in 2012, but the possibility of proving schizophrenia in 2012

does not establish that counsel unreasonably failed to provide bet-

ter evidence of schizophrenia at trial in 1998. The superior court

reasonably found that King failed to satisfy his Strickland burden

and instead merely “later secured a more favorable opinion of an

expert than the opinion” his trial counsel presented. See McClain v.

Hall, 552 F.3d 1245, 1253 (11th Cir. 2008). And although King now

argues that counsel should have called Dr. Beck, who was more

confident about King’s schizophrenia during the relevant, pre-trial

period, the superior court correctly rejected that argument. King’s

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20-12804 Opinion of the Court 37

counsel was reasonably concerned that Dr. Beck, who had spent so

little time with King compared to his other experts, was vulnerable

to credibility attacks by the prosecution. And regardless, counsel is

not ineffective whenever more witnesses could have been called.

See Rhode, 582 F.3d at 1285.

Contrary to King’s arguments, the superior court did not

reach its conclusion based on an unreasonable categorical rule

against affidavit evidence. The court weighed those affidavits

against the live testimony of King’s counsel that they could not

have secured further mitigation or mental-illness witnesses and

chose to give trial counsel’s testimony greater weight. That deci-

sion was reasonable, especially in the light of the often-recognized

tendency of petitioners to submit self-serving affidavits that do not

accurately reflect the circumstances at the time of trial. See Waters

v. Thomas, 46 F.3d 1506, 1513–14 (11th Cir. 1995) (en banc) (“It is

common practice for petitioners attacking their death sentences to

submit affidavits from witnesses who say they could have supplied

additional mitigating circumstance evidence . . . . But the existence

of such affidavits . . . usually proves little of significance.”).

King falls far short of establishing that a reasonable court

would have been compelled to find that his counsel conducted a

“profoundly incomplete investigation” that deprived him of his

Sixth Amendment rights. Cf. Ferrell v. Hall, 640 F.3d 1199, 1227 (11th

Cir. 2011). As the district court observed, King does little more in

his federal habeas petition than reiterate the arguments that he

made before the state court and contend that the state court should

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38 Opinion of the Court 20-12804

have accepted them. And those arguments, as the superior court

concluded, do little more than suggest “that other witnesses might

have been available or that other testimony might have been elic-

ited from those who testified.” (Quoting Williams, 185 F.3d at

1236). These arguments are “not . . . sufficient ground[s] to prove

ineffectiveness of counsel.” Williams, 185 F.3d at 1236 (citation

omitted).

We need not reach King’s argument about the rejection of

his contention that trial counsel should have called Cox and

Mitchum at the guilt phase of trial and not only at sentencing. The

superior court found that the decision “was a reasonable strategic

decision made after a thorough investigation.” The state court ad-

dressed prejudice in the alternative. But King addresses only the

prejudice ruling and makes no argument about deficient perfor-

mance. Because King does not argue that the performance ruling

was unreasonable, we lack power to disturb the state court’s adju-

dication of this issue. See Shinn v. Kayer, 141 S. Ct. 517, 524 (2020)

(“Federal courts may not disturb the judgments of state courts un-

less each ground supporting the state court decision is examined

and found to be unreasonable.” (internal quotation marks and cita-

tion omitted)).

C. The Georgia Courts Reasonably Rejected King’s Challenge to Geor-

gia’s “Guilty but Mentally Retarded” Statute.

King contends that it is unconstitutional for Georgia to re-

quire a defendant to prove his intellectual disability beyond a rea-

sonable doubt in order to secure the immunity from the death

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20-12804 Opinion of the Court 39

penalty that the “guilty but mentally retarded” verdict provides. See

GA. CODE § 17-7-131(c)(3), (j) (1988). King argues that he is entitled

to de novo review of this claim because, he contends, it was not ad-

judicated on the merits by the state courts. Cf. 28 U.S.C. § 2254(d)

(requiring deference only to state court adjudications on the mer-

its). The Supreme Court of Georgia rejected King’s direct appeal

before the Supreme Court of the United States decided in Atkins v.

Virginia that the Eighth Amendment prohibits the execution of in-

tellectually disabled defendants. See Atkins, 536 U.S. at 321. But the

superior court denied King’s petition for a writ of habeas corpus

ten years after Atkins was decided. And although the superior court

addressed King’s challenge under Georgia law as an issue of res ju-

dicata, it also rejected King’s federal-law Atkins argument on the

merits because the Atkins Court implicitly approved Georgia’s stat-

ute by citing it favorably. See id. at 313–14, 317.

King admits, as he must, that his challenge fails if the state

court adjudicated his claim on the merits. We have already held that

a state-court rejection of an Atkins challenge to the Georgia statute

is reasonable. See Raulerson, 928 F.3d at 1001–03; Hill v. Humphrey,

662 F.3d 1335, 1347 (11th Cir. 2011) (en banc). Atkins “did not ad-

dress the burden of proof to prove intellectual disability, much less

clearly establish that a state may not require a defendant to prove

his intellectual disability beyond a reasonable doubt.” Raulerson,

928 F.3d at 1001.

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40 Opinion of the Court 20-12804

D. King Forfeited Any Direct Challenge to His Conviction Based on His

Intellectual Disability.

The district court correctly rejected King’s other arguments

based on his intellectual disability. The district court found that

those arguments “were not briefed, and thus King cannot satisfy his

burden.” King challenges this forfeiture ruling. He argues that he

presented the basic facts supporting his claim in his petition for fed-

eral relief, if not in his actual brief, and contends that he did not

have to brief his claim to preserve it. King is mistaken: ordinary

forfeiture rules, under which a party forfeits an argument by failing

to adequately brief it, apply to habeas proceedings in the district

court. See Butts v. GDCP Warden, 850 F.3d 1201, 1208 (11th Cir. 2017).

So King had to make more than the skeletal argument in his peti-

tion to preserve these issues. Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678, 681 (11th Cir. 2014). The district court had the discretion

to reject King’s arguments without reaching the merits. See United

States v. Campbell, 26 F.4th 860, 872–73 (11th Cir. 2022) (en banc).

IV. CONCLUSION

We AFFIRM the denial of King’s petition for a writ of ha-

beas corpus.

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20-12804 WILSON, J., Dissenting 1

WILSON, Circuit Judge, dissenting:

The majority correctly notes that a state court need not “dis-

cuss every fact or argument to be a reasonable application of Batson

under § 2254(d).” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172,

1214 (11th Cir. 2013). But Lee also notes that when there is truly an

“abundan[ce of ] racial discrimination evidence” in the record, we

may find the state court’s Batson decision was indeed unreasonable.

Id. This is one of those cases.

There were eight black potential jurors in King’s venire. As-

sistant District Attorney (ADA) John Johnson struck seven of them.

When King argued that ADA Johnson’s strikes reflected racial bias

in violation of the Supreme Court’s decision in Batson v. Kentucky,

476 U.S. 79 (1986), ADA Johnson launched into two lengthy solilo-

quies suggesting his open disdain and outright contempt for Batson.

King made a prima facie case of racial bias as to each of ADA John-

son’s strikes. The trial court found that ADA Johnson acted im-

properly when he struck Jacqueline Alderman because she was: “a

black female from Surrency.” This is clear evidence of racial dis-

crimination. According to Lee, we can and should find that the Su-

preme Court of Georgia unreasonably applied Batson.

In my view, because King overcomes the Antiterrorism and

Effective Death Penalty Act (AEDPA) deference, he is entitled to de

novo review of his claim. Adkins v. Warden, Holman CF, 710 F.3d

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2 WILSON, J., Dissenting 20-12804

1241, 1250 (11th Cir. 2013). Consequently, I would find that he has

proven a Batson violation, and thus King is entitled to habeas relief.1

First, I will highlight some relevant facts from jury selection.

Second, I will address the relevant circumstances that the Supreme

Court of Georgia failed to consider in conjunction with one an-

other and thus unreasonably applied Batson. Lastly, because I be-

lieve King overcomes AEDPA deference, I will review the record de

novo.

I.

Jury selection began with a pool of 168 potential jurors from

which fifteen would be selected: twelve as members of the petit

jury and three as alternate jurors. Ultimately, fifty-four potential

jurors were found qualified to serve, and the remaining potential

jurors were excused.

Before the peremptory strikes, the racial makeup of the ve-

nire included thirty-four white potential jurors and eight black po-

tential jurors.2 Of the forty-two potential jurors, seven jurors

raised their hand indicating they knew King, knew who King was,

knew of King, or knew of any member of King’s family. Four of

1 Because I would reverse on King’s Batson claim, I would not decide King’s

remaining claims. See Conner v. Hall, 645 F.3d 1277, 1294 (11th Cir. 2011).

2 In the alternate pool, there were ten white jurors and two black jurors. Based

on the striking sheet, ADA Johnson accepted seven white jurors and one black

juror. ADA Johnson did not excuse any white jurors but struck one black ju-

ror, Gwen Gillis.

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20-12804 WILSON, J., Dissenting 3

those jurors were white—Rebecca Griffin, Martha Vaughn, James

Edwards, and Connie Arnold. Three of those jurors were black—

Jacqueline Alderman, Lillie Burkett, and Maurice Vann.

Of the forty-two potential jurors, twenty-four raised their

hand showing they held various positions of leadership in their

church. Sixteen of those jurors were white, including James Orvin

and Aubrey Lynch, who were deacons, and Thomas Lightsey, a

minister. Eight of those jurors were black, including Jaqueline Al-

derman, a deaconess, and Lillie Burkett, a minister.

In total, ADA Johnson used only three of his ten strikes for

white potential jurors and the remaining seven strikes for black po-

tential jurors. He did not strike a single white potential juror who

raised their hand to indicate that they knew of King and his family,

but he struck all three black jurors who did the same. ADA Johnson

accepted fourteen white jurors who held leadership positions in

their church. The two remaining white jurors were not reached

during the selection process. ADA Johnson struck seven black ju-

rors who held a position of leadership within their church. Follow-

ing the exercise of the peremptory strikes, the petit jury consisted

of eleven white jurors and one black juror.

In asserting a Batson challenge, King argued that ADA John-

son’s use of peremptory strikes supported a prima facie case of dis-

crimination because ADA Johnson struck seven of eight black qual-

ified jurors. King brought juror-specific Batson challenges to each

of the seven black qualified jurors.

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4 WILSON, J., Dissenting 20-12804

At Batson Step One, the trial judge found that King estab-

lished a prima facie case of discrimination for ADA Johnson’s exer-

cise of his peremptory strikes. ADA Johnson responded:

First, let me say this, Your Honor: that I object to the

Court finding that, and I object to the Court’s finding

based on the fact that it’s simply on statistical analysis

that the State struck eight blacks and three whites,

and that has no rational basis on whether a prima fa-

cie case of discrimination has been established in this

particular case. I state that for the record. I know the

Court’s ruling, and I know the issue that has been de-

cided by the Supreme Court of Georgia. I do state

for the record that the Supreme Court of Georgia of

course does not know how I strike, and that it is im-

proper for them to involve themselves in this unless

defense counsel can point to a specific reason why

some particular juror was qualified to serve and that

I struck them. I have always objected to the use of

statistics to establish the fact that a prima facie case

has been laid. If I wanted to point to statistics, I could

show and point out that defense counsel struck only

white people. That’s all he ever struck. He had the

option, the ability, to strike two in the main panel, in

the alternates, to strike two people who were black,

and he did not do so, one of which, Mr. Carzell

Rooks[,] sat there and said over and over and over and

over and over again that if a certain set of facts were

established he’d have to vote for the death penalty,

which, I would assume, be the reason, if I raised the

issue, he would have struck a lot of other people, and

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20-12804 WILSON, J., Dissenting 5

I might be able to show that his strikes therefore

would be pretextual. And I point that out merely to

support the fact that statistics can never make a prima

facie showing. The Supreme Court of Georgia has

said that it does, and I just take exception to that, and

I do so for the record.

We would suggest, Your Honor, that there is a better

approach to this matter, and that is that, if a side

wants to raise the Batson issue, that that side that

raises it should first have to show that their strikes

were absolutely non-racially motivated or sexually- or

gender-motivated, and only if they did that would it

shift to the opposite side to make their strikes known

to the Court. I think that becomes very unwieldy, and

that’s why neither this Court nor the Supreme Court

nor the defense should be involved in deciding

whether or not the State has accurately or effectively

performed its strikes.

After ADA Johnson expressed his views about Batson, he

proffered nondiscriminatory, race-neutral reasons for exercising

each of his peremptory strikes under Batson Step Two. The trial

judge found that the strike of Jaqueline Alderman was improper

but the remaining strikes, including Sarah McCall and Lillie

Burkett, were proper.

As to the strike of Alderman, the record demonstrates that

the trial court found ADA Johnson’s reasons to be dubious, and that

Alderman did not really know King’s family and she did not know

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6 WILSON, J., Dissenting 20-12804

King. The trial judge further found that ADA Johnson engaged in

purposeful discrimination under Batson Step Three.

Upon the trial judge’s finding that ADA Johnson’s strike of

Alderman was discriminatory, the following exchange occurred:

Mr. Johnson: [W]hy should we do that? Why not

just—I mean I don’t have—first of all, I have a prob-

lem that if I say, find out that somebody knows the

family and I can’t—excuse me—give me a moment.

The Court: Calm down. Get yourself, your thoughts

proper and then tell me what you want to tell me.

After taking a moment, ADA Johnson again started on his views

about having to comply with Batson:

I find it improper for this Court to tell me that I can-

not decide, when I listen to what somebody says and

look at them, that they know the family, that they’ve

been living in this community for 35 years, that that’s

not a justifiable strike. If that’s the case, then 90 per-

cent of the strikes that I’ve taken, and 100 percent of

the strikes the defense takes in a case are irrelevant.

If this lady were a white lady there would not be a

reason—there would not be a question in this case.

And that’s the problem I have with all of this is that

it’s not racially neutral. There was a time when it was

racially neutral and that was before Batson. Because I

had to act that way when I was in Brunswick because

it was a physical impossibility if you wanted to strike

every black off a jury for you to do that. And we had

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20-12804 WILSON, J., Dissenting 7

an issue just—you had to reform your whole ideas and

then Batson came out. And Batson now makes us look

[at] whether people are black or not. Not whether

they’re black or white, but black or not. And I may be

arguing for the Supreme Court in this particular case

and not for this [C]ourt, which I probably am, but it

just, it is uncalled for to require people to be reseated

on a jury that I have a problem with in this case.

This lady sits on this jury and all of a sudden out

comes the fact that back during the life of this man’s

mother and father they were alcoholics, they beat

him, or they ignored him, or they—and she sits there

and says well I remember that. Then I’m screwed, to

use the vernacular. Not because I know that’s what’s

going to happen because my experience is anyone

who knows the family and has that much time in-

volved in the community, those are the people that

hang up a jury. That’s my experience. And when I

base it on my experience and then this Court says

that’s not a good enough reason, then I take issue

with this entire whole process, both to this Court and

to the Supreme Court of Georgia. It’s improper and

it’s wrong.

What I would suggest this Court to do now that I’ve

had my say, and I’m sorry, I’m very angry right now.

(emphasis added). Next, ADA Johnson stated that he would not

change his strikes, but the parties agreed to remove the selected

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8 WILSON, J., Dissenting 20-12804

twelfth juror and reseat Alderman to remedy ADA Johnson’s dis-

criminatory strike.

The jury convicted King of malice murder. King v. State, 539

S.E.2d 783, 788–89 (Ga. 2000). The next day, the trial judge ac-

cepted the jury’s recommendation to sentence King to death. Id.

at 788 n.1. On November 30, 2000, the Supreme Court of Georgia

denied King’s Batson claims on direct appeal and affirmed King’s

convictions and sentence. Id. at 795–96, 802.

When addressing King’s Batson claims, the Supreme Court

of Georgia noted that the trial judge found King met the prima fa-

cie showing of discrimination but then found that “the trial court

did not abuse its discretion in finding that King failed to carry his

burden of persuasion as to the jurors challenged in this appeal.” Id.

at 795. Despite King arguing that the trial court failed to consider

relevant circumstances, the Supreme Court of Georgia neglected

to discuss how those relevant circumstances did or did not support

King’s Batson claim. Next, the Supreme Court of Georgia pointed

to the race-neutral reasons provided by ADA Johnson related to

each challenged juror to support its holding. Id. at 795–96.

II.

King argues that the Supreme Court of Georgia unreasona-

bly applied Batson by failing to consider: (1) ADA Johnson’s discrim-

inatory strike against Alderman—the reseated black juror; (2) ADA

Johnson’s statements, comments, and actions during the Batson

hearing; and (3) a racially disproportionate striking pattern.

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20-12804 WILSON, J., Dissenting 9

In Batson, the Supreme Court ruled that “the Equal Protec-

tion Clause forbids the prosecutor to challenge potential jurors

solely on account of their race.” 476 U.S. at 89. In turn, to protect

the core guarantee of equal protection, Batson established a three-

step inquiry to evaluate the prosecutor’s use of peremptory

strikes. 3 Id. at 96–98.

King’s appeal focuses predominately on Batson Step Three.

This step requires the trial judge to determine whether the defend-

ant has established purposeful discrimination, “the decisive ques-

tion will be whether [the prosecutor’s] race-neutral explanation . . .

should be believed.” Hernandez v. New York, 500 U.S. 352, 365 (1991)

(plurality opinion).

Since “the concern is that a state court failed to follow Bat-

son’s three steps,” my analysis is under AEDPA § 2254(d)(1). McGa-

hee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1256 (11th Cir. 2009). An

“unreasonable application” results where there are “explicit racial

statements and strong evidence of discriminatory purpose,” such

3 The Supreme Court summarized the three steps of Batson’s inquiry in Miller-

El v. Cockrell:

First, a defendant must make a prima facie showing that a per-

emptory challenge has been exercised on the basis of race.

Second, if that showing has been made, the prosecution must

offer a race-neutral basis for striking the juror in question.

Third, in light of the parties’ submissions, the trial court must

determine whether the defendant has shown purposeful dis-

crimination.

537 U.S. 322, 328–29 (2003) (Miller-El I) (internal citations omitted).

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10 WILSON, J., Dissenting 20-12804

that no reasonable and fairminded jurist could have considered “all

relevant circumstances” and still found no Batson violation. See Lee,

726 F.3d at 1213.

Applying this framework, I would hold that the Supreme

Court of Georgia’s decision was an unreasonable application of

Batson and its progeny because the Supreme Court of Georgia

failed to consider all relevant circumstances. See Batson, 476 U.S. at

96. Particularly, the trial court’s finding that Alderman was struck

for a racially discriminatory reason represents the sort of explicit

racial discrimination evidence that was dispositive in McGahee. And

further, in my view, the trial transcript showing ADA Johnson’s

clear hostility to Batson and the statistical evidence of racial bias is

“strong evidence” of a discriminatory purpose infecting ADA John-

son’s whole scheme of striking. Adkins, 710 F.3d at 1253. Taking

all that together and even deferentially reviewing the Supreme

Court of Georgia’s opinion, no reasonable jurist could have re-

viewed this record—replete with evidence of racial discrimina-

tion—and not found a Batson violation. Accordingly, King has car-

ried his burden under AEDPA.

First, the Supreme Court tells us that Batson challengers may

present evidence of a “relevant history of [the prosecutor’s] per-

emptory strikes in past cases.” Flowers v. Mississippi, 139 S. Ct. 2228,

2243 (2019). Relevant history of prior peremptory strikes based on

race bears on the question of present discrimination. See id. Yet

even in the absence of a history of unconstitutional strikes, any dis-

criminatory strikes within the same case are highly relevant

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20-12804 WILSON, J., Dissenting 11

evidence bearing on discriminatory intent and provide strong evi-

dence that the prosecutor may have struck other jurors for discrim-

inatory reasons as well. See id. And we have discussed how the

articulation of an “explicitly racial reason for striking” a juror fac-

tors into the relevant circumstances analysis at Batson Step Three.

McGahee, 560 F.3d at 1264.

King points to ADA Johnson’s strike of Alderman. The trial

court concluded that ADA Johnson’s proffered reason for striking

Alderman was not credible and ruled that this strike was unconsti-

tutional under Batson. I am unpersuaded by the State’s contention,

advanced at oral argument, that the trial court did not find Alder-

man was struck for an explicitly racial reason. Once the prima facie

case of discrimination has been made at Batson Step One, the State

has only one obligation if it in-fact acted for a nondiscriminatory

purpose: proffer its truthful reason for striking the juror. See Miller-

El I, 537 U.S. at 328. If the trial court concludes, as it did for Alder-

man, that the State is being untruthful, then that is a finding that

the State acted for a discriminatory reason. See McGahee, 560 F.3d

at 1264.

Because Batson violations are evaluated juror-by-juror, I do

not suggest that one Batson violation in a case necessarily renders

all other jury strikes Batson violations. But just as a prosecutor’s

discriminatory strikes in other cases can suggest they acted discrim-

inatorily in this case, a finding of discriminatory intent within the

same trial is also probative. See Miller-El I, 537 U.S. at 346. It is very

strong evidence and must be considered when evaluating

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12 WILSON, J., Dissenting 20-12804

challenges to the other strikes at Batson Step Three. As a result,

ADA Johnson’s improper strike of Alderman within the same case

is a relevant circumstance to be considered.

Second, “[i]n the typical peremptory challenge inquiry, the

decisive question will be whether counsel’s race-neutral explana-

tion for a peremptory challenge should be believed.” Hernandez,

500 U.S. at 365. But the Supreme Court noted that “[t]here will

seldom be much evidence bearing on that issue.” Id. So “the best

evidence often will be the demeanor of the attorney who exercises

the challenge.” Id.

There is ample evidence here of ADA Johnson’s demeanor.

As excerpted above, ADA Johnson’s two separate soliloquies show

his hostility and disdain for having to comply with Batson. After the

trial court found a prima facie case of discrimination, ADA John-

son’s prolonged speech ended with the fact that he believed the

courts should not “be involved in deciding whether or not the State

has accurately or effectively performed its strikes.” Then, after the

trial court found ADA Johnson’s strike of Alderman was improper

because it amounted to purposeful discrimination, ADA Johnson

again launched into a speech about why he finds it improper for the

court to tell him who he can and cannot strike from the jury be-

cause “Batson now makes us look [at] whether people are black or

not.”

ADA Johnson’s rants demonstrated, at a minimum, that he

was reluctant to abide by the requirements of Batson. Further,

those speeches strongly suggested that ADA Johnson would

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20-12804 WILSON, J., Dissenting 13

continue to violate Batson if it weren’t for the enforcement mecha-

nisms put in place by the courts. ADA Johnson’s demeanor, as

demonstrated by his lengthy speeches, is highly probative evidence

when considering all the relevant circumstances at Batson Step

Three.

Lastly, as Batson explained: “total or seriously disproportion-

ate exclusion of [blacks] from jury venires is itself such an unequal

application of the law . . . as to show intentional discrimination.”

476 U.S. at 93 (internal quotations and citation omitted). Further,

“a ‘pattern’ of strikes against black jurors included in the particular

venire might give rise to an inference of discrimination.” Id. at 97;

see also Miller-El I, 537 U.S. at 342 (finding that “the statistical evi-

dence alone raises some debate as to whether the prosecution acted

with a race-based reason” where the prosecution struck 91% of the

eligible black venire members with ten of their fourteen peremp-

tory strikes). “[I]n the statistical analysis courts must consider the

statistics in the context of other factors in a case, such as: the racial

composition of the venire from which the jurors were struck, the

racial composition of the ultimate jury, the substance of the voir

dire answers of jurors struck by the State, and any other evidence

in the record.” Lee, 726 F.3d at 1224.

The racial composition of King’s jury pool (not including

the alternates) consisted of eight black jurors and thirty-four white

jurors. During the peremptory striking process, ADA Johnson used

seven of the State’s ten peremptory strikes to remove seven quali-

fied black jurors while striking only three qualified white jurors.

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14 WILSON, J., Dissenting 20-12804

Statistically, when looking at the composition of the jury pool

(again without alternates), 19% of the jurors were black and 81%

were white. But after ADA Johnson’s strikes, 8% of the jurors were

black (i.e., only one black juror) and 92% were white (i.e., eleven

white jurors). ADA Johnson struck 87.5% of the qualified black

jurors while striking only 8.8% of the qualified white jurors. As a

result, the percentage of black jurors in the pool decreased by 57%

while the number of white jurors increased.

This pattern constitutes strong evidence that qualified black

jurors were removed far more often than qualified white jurors. See

McGahee, 560 F.3d at 1265. Moreover, the statistical information

about ADA Johnson’s race-based striking also provides strong evi-

dence of the disproportionate exclusion of black jurors against

which Batson cautioned. This statistical evidence is highly relevant

when conducting the Batson Step Three analysis.

These three relevant factors play off and reinforce each other

and provide strong evidence of racial discrimination. Even allow-

ing for AEDPA deference afforded to the Supreme Court of Geor-

gia, a reasonable and fair-minded jurist could not have considered

all of this evidence under the totality of the circumstances and con-

cluded that Batson was not violated. See Lee, 726 F.3d at 1213 (ex-

plaining that this court’s decisions in McGahee and Adkins held that

a state court’s decision denying Batson relief was an unreasonable

application of Batson due to “the explicit racial statements and

strong evidence of discriminatory purpose in each case”). Con-

sider, ADA Johnson was found to have purposefully discriminated

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20-12804 WILSON, J., Dissenting 15

in striking Alderman. That finding on its own does not categori-

cally invalidate the rest of his strikes, but then ADA Johnson went

on not one, but two unprompted rants critiquing Batson. Those

rants were not mere complaints or objections about a trial judge’s

ruling ADA Johnson didn’t like but instead rants demonstrating his

hostility to Batson as a rule of law that he had to follow. His rants

make the explicit finding of racial discrimination in striking Alder-

man all the more relevant to each and every Batson analysis for the

other stricken jurors. Further, the statistics showing that ADA

Johnson struck 87.5% of all qualified black jurors provides strong

confirmatory evidence of Johnson’s racially discriminatory intent.

Since this record consists of an “abundan[ce of ] racial discrimina-

tion evidence,” I would find the state court’s Batson decision was

indeed unreasonable. Lee, 726 F.3d at 1214.

The Supreme Court of Georgia is required, under Batson, to

consider “all relevant circumstances.” See id. at 1212. Based on this

record and considering all the evidence that was before that court

(including the pretextual nature for excluding other black jurors),

no reasonable and fairminded jurist could have considered all of

this evidence and found that Batson was not violated as to the other

black jurors stricken from King’s jury pool. Thus, I would con-

clude that the Supreme Court of Georgia unreasonably applied

clearly established federal law.

III.

Because I would have determined that the Supreme Court

of Georgia’s decision is an unreasonable application of federal law

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16 WILSON, J., Dissenting 20-12804

under AEDPA, I would review the record de novo to determine

whether ADA Johnson violated Batson during jury selection. I con-

sider the following: (1) ADA Johnson’s striking of potential black

jurors because of their familiarity with King or his family; (2) the

relevant circumstances discussed above; and (3) the lack of support

for ADA Johnson’s proffered neutral reasons for striking black ju-

rors. Lastly, I review ADA Johnson’s reasons for striking Lillie

Burkett, finding that strike was motivated by discriminatory intent.

First, of the potential jurors who knew of King or his family,

only black potential jurors were struck. ADA Johnson asked the

familiarity-related questions to panels of jurors in a broad manner,

asking whether they knew “of ” King or his family. Three white

potential jurors—Griffin, Vaughn, and Edwards—discussed their

familiarity with King or his family, but ADA Johnson did not strike

any of them. ADA Johnson only struck a juror for familiarity with

King when the potential juror was both familiar and black. No

white jurors who were familiar with King were struck, but all black

jurors who were familiar with King were struck. See Miller–El I, 537

U.S. at 344–45 (discussing the evidence of a prosecutor’s disparate

questioning and investigation of black and white potential jurors in

the case).

Next, as I discussed above, the record contains several rele-

vant circumstances that weigh against ADA Johnson’s proffered

race-neutral reasons for exercising a challenged peremptory strike.

See id. at 342 (considering the statistical evidence about a prosecu-

tor’s strikes of black potential jurors versus white potential jurors);

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20-12804 WILSON, J., Dissenting 17

Hernandez, 500 U.S. at 365 (explaining that “the best evidence often

will be the demeanor of the attorney who exercises the chal-

lenge”); Flowers, 139 S. Ct. at 2243 (finding that the relevant history

of the State’s peremptory strikes supports a Batson claim).

Furthermore, ADA Johnson’s proffered neutral reasons for

striking black jurors are not supported by the record. Take, for in-

stance, Sarah McCall. ADA Johnson said he struck Sarah McCall

because “[s]he indicated that the death penalty was not her first

choice. She had a lot of hesitancy about her. I did not make up my

mind about [Sarah] McCall until after we voir-dired her husband,

who was Richard McCall and in the next panel.”

But Richard McCall testified that he did not know his wife’s

position on the death penalty. Without checking the record, the

trial judge found no discrimination in the strike of Sarah McCall.

But the strike of Sarah McCall is another instance where ADA John-

son misstated the record to support his strike of a black potential

juror. See Snyder v. Louisiana, 552 U.S. 472, 482–83 (2008) (consider-

ing when the record contradicts a prosecutor’s explanations for

striking jurors).

A de novo review of the record also reveals the pretextual

nature of ADA Johnson’s explanations for striking Lillie Burkett.4

4 I would also conclude that the record reveals that ADA Johnson impermis-

sibly struck alternate juror Gwen Gillis in violation of Batson. Simply put, the

race-neutral reasons proffered by ADA Johnson, as well as his further explana-

tions of the Gillis strike, are unfounded.

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18 WILSON, J., Dissenting 20-12804

Burkett explained that she lived in Surrency, and that she knew both

the families of King and Crosby, but that she did not personally

know King. Burkett also served as a minister in her church.

During the Batson hearing, ADA Johnson explained:

I said that this lady fell into the same category like Ms.

Alderman does, that she knew the family and knew

the defendant in this case, and I did not feel that, be-

cause of that relationship and the fact that she’s a min-

ister and my feeling about ministers and what their

position in the community is, that that would make

her a fair juror, and that’s why she was struck. Two

reasons, not just one.

First, ADA Johnson claimed that he struck Burkett, in part,

because she knew King’s family. Although Burkett stated that she

knew King’s family, ADA Johnson did not ask Burkett a single ques-

tion about her familiarity with King’s family nor about how that

relationship might impact her ability to serve as a juror. Indeed,

ADA Johnson’s failure to engage in any meaningful voir dire exam-

ination on a subject about which he allegedly was concerned is ev-

idence suggesting that the proffered race-neutral explanation is pre-

text for discrimination. Miller-El v. Dretke, 545 U.S. 231, 246 (2005)

(Miller-El II) (finding it “difficult to credit” a prosecutor’s reasons for

striking a juror because they “reek[ed] of afterthought” and had

“pretextual timing”). Burkett’s testimony, elicited by the trial

judge, indicated that she knew King’s family, but she specifically

stated that she did not know King “personally.”

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20-12804 WILSON, J., Dissenting 19

But later, when further defending his strike of Burkett in

light of the record and the outcome of the Batson hearing, ADA

Johnson made a peculiar comparison between Burkett and Alder-

man as excerpted above. The comparison appears to me that ADA

Johnson sought to use familiarity with King or his family as a way

to cover up his striking of black jurors.

Furthermore, many white potential jurors were familiar

with King, his family, or both, but these ties only warranted a peremptory strike

when the potential juror was black. For instance, 5 white qualified juror Re-

becca Griffin, who was accepted by both ADA Johnson and King’s

counsel and served on the jury, went to school with one of King’s

sisters, and King went to school with Griffin’s brother. Like

Burkett, Griffin agreed with the prosecutor that it would be fair to

say that she had no personal contact with King himself, but the rec-

ord does show familiarity with King’s family—far more than what

was elicited from Burkett by the trial judge or ADA Johnson during

individual voir dire.

Second, ADA Johnson claimed that he struck Burkett, in

part, because she was a minister. But the record shows that there

was another minister among the potential jurors: Thomas Lightsey.

5 Other examples include two qualified white jurors who were accepted by

ADA Johnson but struck by King: Martha Vaughn explained that she knew

King “when he was coming through” middle school because she worked in

his middle school’s lunchroom and had contact with King during the lunch

period, and James Edwards believed he had possibly taught King during mid-

dle school.

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20 WILSON, J., Dissenting 20-12804

During the parties’ preemptory strike process, Lightsey was the

forty-first juror out of forty-two who were qualified to sit on the

petit jury. In exercising their strikes, the parties considered thirty-

nine jurors. In exercising all of his ten strikes to seat the jury, ADA

Johnson—despite his adamant refusal to accept ministers—left it to

chance whether Lightsey would be reached.

Thus, while ADA Johnson technically had no opportunity to

“accept” Lightsey as a juror, his exhaustion of State peremptory

challenges during jury selection suggests Lightsey was likely ac-

ceptable to him. This is reinforced by the fact that ADA Johnson

did not ask Lightsey, a minister at Big Creek Primitive Baptist

Church (a fact elicited by King’s counsel, not ADA Johnson), about

the leadership position that he held in a church. In fact, during the

general voir dire, when ADA Johnson asked Lightsey’s panel

whether anyone held a position in the church, Lightsey raised his

hand. The record shows that ADA Johnson asked Lightsey only

one follow-up question, whether he had any opinion about which

way the case should go, a fact reflecting that Lightsey’s position in

the church was inconsequential to ADA Johnson.

ADA Johnson’s (and the majority’s) argument that Lightsey

does not matter because he was not reached during striking is nei-

ther here nor there. The point is, ADA Johnson offered as his race-

neutral reason for striking Burkett that he adamantly refused to

seat ministers. The fact that ADA Johnson appeared indifferent to

a white minister on the jury undercuts that race-neutral reason.

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20-12804 WILSON, J., Dissenting 21

Moreover, there were many other potential jurors with lead-

ership positions in the church. Specifically, two white jurors who

were deacons sat on the jury: James Orvin and Aubrey Lynch. Or-

vin was “the deacon and chairman of [his] deacon board.” Lynch,

who served as the jury foreperson, testified that he was a deacon at

Satilla Baptist Church. ADA Johnson never asked any other poten-

tial juror the details of and how long they had served in their re-

spective church leadership positions. Thus, the contention that

ADA Johnson cared about Burkett’s position as a minister is dimin-

ished. The record reflects that ADA Johnson was aware of white

individuals who participated in their respective church communi-

ties, and yet ADA Johnson did not appear to have an issue with

them serving on the jury.

When “[c]onsidering all of the circumstantial evidence that

‘bear[s] upon the issue of racial animosity,’ [I am] left with the firm

conviction that [ADA Johnson’s strike of Burkett was] ‘motivated

in substantial part by discriminatory intent.’” Foster v. Chatman, 578

U.S. 488, 512–13 (2016) (quoting Snyder, 552 U.S. at 478, 485).

ADA Johnson used seven out of his ten peremptory strikes

to exclude seven out of the eight black jurors from the jury venire.

A side-by-side comparison of individual reasons for striking black

jurors with white jurors who were not struck reveals a substantial

likelihood of race-based considerations in the exercise of those

strikes. Thus, the overwhelming evidence in this record compels a

finding that ADA Johnson’s use of its peremptory strikes to dismiss

Burkett constituted purposeful discrimination and violated King’s

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22 WILSON, J., Dissenting 20-12804

rights under the Equal Protection Clause and clearly established

federal law under Batson. “Equal justice under law requires a crim-

inal trial free of racial discrimination in the jury selection process.”

Flowers, 139 S. Ct. at 2242.

IV.

For these reasons, I would reverse the district court’s order

denying King’s federal habeas petition.

I respectfully dissent.