Amicus Curiae Brief — Terry Pitchford, Petitioner v. Burl Cain, Commissioner, Mississippi Department of Corrections, et al.
Supreme Court briefMar 6, 2026
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No. 24-7351
In the Supreme Court of the United States
TERRY PITCHFORD, PETITIONER
v.
BURL CAIN, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN
SUPPORT OF RESPONDENTS
D. JOHN SAUER
Solicitor General
Counsel of Record
A. TYSEN DUVA
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
EMILY M. FERGUSON
Assistant to the
Solicitor General
WILLIAM A. GLASER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Mississippi Supreme Court, which determined that petitioner had failed to raise certain rebuttal arguments challenging the prosecutor’s stated
race-neutral reasons for exercising peremptory strikes
in the trial court, permissibly declined to consider those
arguments on appeal under the standards set forth in
the Antiterrorism and Effective Death Penalty Act of
1996, 28 U.S.C. 2254(d).
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Introduction................................................................................... 2
Statement ...................................................................................... 3
Summary of argument ............................................................... 12
Argument..................................................................................... 15
I. Courts reviewing a claim of racially biased juror
strikes are not required to consider unpreserved
arguments regarding pretext ....................................... 16
A. Appellate courts are not generally required to
consider issues and arguments that were not
raised below ............................................................. 16
B. Appellate courts are not, and should not be,
required to consider unpreserved pretext
arguments added to claims under Batson v.
Kentucky .................................................................. 21
II. Petitioner fails to justify setting aside the state
courts’ resolution of his case ......................................... 29
A. No legal error warrants relief................................ 30
B. No factual error warrants relief ............................ 31
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Batson v. Kentucky,
476 U.S. 79 (1986) ............................ 1, 2, 4, 12, 14, 15, 22-25
Cardinal Chem. Co. v. Morton Int’l, Inc.,
508 U.S. 83 (1993) ......................................................... 18, 30
Cardinale v. Louisiana, 394 U.S. 437 (1969)................ 17, 20
Castro v. United States, 540 U.S. 375 (2003) ...................... 16
Chamberlin v. Fisher, 885 F.3d 832
(5th Cir. 2018), cert. denied, 588 U.S. 920 (2019)....... 27, 28
Davis v. Ayala, 576 U.S. 257 (2015) ..................................... 31
(III)
IV
Cases—Continued:
Page
Davis v. United States, 411 U.S. 233 (1973) ................. 20, 26
Flowers v. Mississippi, 588 U.S. 284 (2019) ........... 10, 23, 25
Ford v. Georgia, 498 U.S. 411 (1991) ............11, 14, 23, 24, 30
Frazier v. United States, 335 U.S. 497 (1948) .................... 21
Harrington v. Richter, 562 U.S. 86 (2011) .......................... 30
Henderson v. Shinseki, 562 U.S. 428 (2011) ....................... 16
Hormel v. Helvering, 312 U.S. 552 (1941)..................... 16, 18
Johnson v. California, 545 U.S. 162 (2005) .................... 4, 15
Kohl v. Lehlback, 160 U.S. 293 (1895) ................................. 21
Kontrick v. Ryan, 540 U.S. 443 (2004) ................................ 31
Manning v. State, 735 So. 2d 323 (Miss. 1999) ..................... 9
McDaniels v. Kirkland,
813 F.3d 770 (9th Cir. 2015) ............................................... 28
Michel v. Louisiana, 350 U.S. 91 (1955) ............................. 19
Miller-El v. Dretke, 545 U.S. 231 (2005) ............. 4, 24, 28, 31
OBB Personenverkehr AG v. Sachs,
577 U.S. 27 (2015) ............................................................... 18
Puckett v. United States,
556 U.S. 129 (2009)............................................ 17, 19, 20, 26
Purkett v. Elem, 514 U.S. 765 (1995) ............14, 15, 22, 23, 32
Queen v. Hepburn, 11 U.S. (7 Cranch) 290 (1813) ............. 22
Ramey v. Lumpkin, 7 F.4th 271 (5th Cir. 2021),
cert. denied, 142 S. Ct. 1442 (2022) ................................... 12
Singleton v. Wulff, 428 U.S. 106 (1976) ......................... 17, 18
Snyder v. Louisiana, 552 U.S. 472 (2008)......3, 25, 26, 28, 29
Stechauner v. Smith, 852 F.3d 708 (7th Cir.),
cert. denied, 583 U.S. 876 (2017) ....................................... 18
United States v. Armstrong, 517 U.S. 456 (1996) ................ 1
United States v. Chase,
466 F.3d 310 (4th Cir. 2006) ............................................... 19
United States v. Gale, 109 U.S. 65 (1883) ............................ 22
V
Cases—Continued:
Page
United States v. Hill, 31 F.4th 1076 (8th Cir. 2022),
cert. denied, 143 S. Ct. 1036 (2023) ................................... 26
United States v. Jackson,
426 F.3d 301 (5th Cir. 2005) ............................................... 18
United States v. Sineneng-Smith,
590 U.S. 371 (2020).............................................................. 16
United States v. Williams, 504 U.S. 36 (1992) ................... 18
Upper Skagit Indian Trube v. Lundgren,
584 U.S. 554 (2018).............................................................. 17
Wainwright v. Sykes, 433 U.S. 72 (1977) ............................ 19
Weaver v. Massachusetts, 582 U.S. 286 (2017) ................... 26
Williams v. Georgia, 349 U.S. 375 (1955) ..................... 19, 30
Yakus v. United States, 321 U.S. 414 (1944) ............. 2, 13, 16
Yee v. City of Escondido, 503 U.S. 519 (1992) .................... 18
Constitution, statutes, and rules:
U.S. Const. Amend. V (Due Process Clause) ....................... 1
Act of Jan. 31, 1928, ch. 14, 45 Stat. 54 ................................ 21
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214
(28 U.S.C. 2254)........................................................... 2, 9, 29
28 U.S.C. 2254(b)(1)(A) ..................................................... 9
28 U.S.C. 2254(c) ............................................................... 9
28 U.S.C. 2254(d) ....................................................... 15, 30
28 U.S.C. 2254(d)(1) ............................................ 10, 29, 30
28 U.S.C. 2254(d)(2) ...................................... 10, 12, 29, 31
Fed. R. Crim. P.:
Rule 12 .............................................................................. 17
Rule 12(b)(3) .................................................................... 17
Rule 12(c)(3) ..................................................................... 17
Rule 51 (1946) .................................................................. 21
VI
Rules—Continued:
Page
Rule 51 .............................................................................. 21
Rule 51(b) ......................................................................... 17
Rule 52(b) ......................................................................... 17
Miscellaneous:
3 William Blackstone, Commentaries on the Laws of
England (1768).................................................................... 21
Rhett R. Dennerline, Pushing Aside the General
Rule in Order to Raise New Issues on Appeal,
64 Ind. L. J. 985 (1989) ....................................................... 20
Robert J. Martineau, Appellate Justice in England
and the United States: A Comparative Analysis
(1990) .................................................................................... 20
Thomas W. Powell, The Law of Appellate Proceedings (1872) ........................................................................... 21
In the Supreme Court of the United States
No. 24-7351
TERRY PITCHFORD, PETITIONER
v.
BURL CAIN, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN
SUPPORT OF RESPONDENTS
INTEREST OF THE UNITED STATES
This case presents the question whether an appellate
court, in reviewing a claim of racially biased peremptory
strikes of jurors under Batson v. Kentucky, 476 U.S. 79
(1986), is required to consider rebuttals to a prosecutor’s stated race-neutral justifications that the defendant did not present to the trial court. Batson’s framework applies in federal criminal proceedings through
the equal protection component of the Fifth Amendment’s Due Process Clause. Cf. United States v. Armstrong, 517 U.S. 456, 464 (1996). Accordingly, the United
States has a substantial interest in the resolution of this
case.
(1)
2
INTRODUCTION
During jury selection in petitioner’s case, the trial
court found that he had not carried his burden under
Batson v. Kentucky, 476 U.S. 79 (1986), to show that the
prosecution’s peremptory challenges were racially discriminatory. Petitioner then raised a claim of Batson
error on appeal, in which he made new arguments of
prosecutorial pretext—involving specific comparisons
between challenged and unchallenged jurors—that he
had not made in the trial court. Invoking a preexisting
procedural rule, the Mississippi Supreme Court declined to entertain those new arguments, on the ground
that they had not been presented for the trial court’s
consideration. The adoption of that rule was well within
the state supreme court’s authority—particularly when
subjected to deferential review under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (28 U.S.C. 2254).
The Batson context is no exception to the “familiar”
rule that “a constitutional right may be forfeited * * *
by the failure to make timely assertion of the right.”
Yakus v. United States, 321 U.S. 414, 444 (1944). The
proper functioning of the judicial system depends on
parties raising arguments—especially fact-dependent
ones—in the trial courts, which have the ability to consider those arguments in the first instance, build a
proper record on them, and take any potential corrective action at the time it would be most useful. Various
formal rules and doctrines have long enforced that salient practice. And even in the circumstances when appellate courts have discretion to consider unpreserved
arguments, they frequently refrain from doing so.
That tradition readily encompasses an appellate
court’s adoption of a rule under which Batson pretext
3
arguments must be raised in the trial court at the time
that the Batson objection is adjudicated. The trial court
is in a much better position than an appellate court to
evaluate the credibility of a prosecutor’s stated raceneutral reasons for his peremptory challenges, and to
address any problems before trial commences.
After-the-fact pretext arguments lack the benefit of
contemporaneous exploration, can be “very misleading”
when presented to an appellate court on a cold record,
Snyder v. Louisiana, 552 U.S. 472, 483 (2008), and attempt to undo a final conviction and sentence. Even if
he is not sandbagging, a defendant has no entitlement
to unravel the result of his trial based on an unpreserved pretext argument—let alone a right to relief in
the postconviction posture in which petitioner’s claim
comes to this Court.
There is no basis to conclude that the Mississippi Supreme Court’s decision was contrary to, or involved an
unreasonable application of, law clearly established by
this Court’s cases, or that it was based on an unreasonable determination of facts. This Court should affirm.
STATEMENT
1. In November 2004, petitioner and Eric Bullins
went to Crossroads Grocery in Grenada County, Mississippi, intending to rob it. J.A. 573-574. It was petitioner’s second attempt to rob the store. J.A. 574. During the robbery, Bullins shot and killed the store’s
owner, Reuben Britt, with a .22 caliber pistol. Ibid.
Britt also suffered wounds consistent with pellets from
a second firearm containing “rat shot” cartridges. Ibid.
Petitioner later confessed to his role in the fatal robbery, though he claimed to have fired his shots into the
floor. Ibid. A Mississippi grand jury indicted petitioner
for capital murder. J.A. 575.
4
a. Jury selection in petitioner’s capital case began in
February 2006. J.A. 575; see J.A. 5-176 (transcript of
jury selection). The voir dire began with a venire of 96
potential jurors, of whom 61 were white and 35 were
black. J.A. 575. Without objection from either party,
the trial judge struck 55 prospective jurors for cause or
other reasons, leaving 41, of whom 36 were white and
five were black. J.A. 575, 717.
Petitioner used all 12 of his peremptory strikes on
white venirepersons. J.A. 717. The prosecution used
only seven of its 12 peremptory challenges, striking
three white venirepersons and four black venirepersons. Ibid. In the midst of that process, after the prosecution had struck the fourth black venireperson, petitioner’s counsel raised a claim of racially biased jury selection pursuant to Batson v. Kentucky, 476 U.S. 79
(1986). Id. at 89; see J.A. 167.
This Court has instructed that evaluation of a defendant’s Batson claim consists of three stages. See,
e.g., Johnson v. California, 545 U.S. 162, 168 (2005).
First, the defendant must make out a prima facie case
of discrimination. Ibid. Second, if the defense has done
so, the prosecution must offer race-neutral reasons for
its strikes. Ibid. Third, the trial court must determine
whether, under the circumstances, the defendant has
met his burden to prove that the peremptory challenges
were in fact purposefully discriminatory. Ibid.
Here, petitioner’s counsel asserted “a pattern of
striking almost all of the available African-American jurors” from what she described as “already a disproportionally white jury for the population of this county.”
J.A. 167-168. Petitioner’s counsel also cited Miller-El
v. Dretke, 545 U.S. 231 (2005), as an example of a case
in which this Court had “reversed a conviction” even
5
though the prosecution “had left either one or two black
jurors on the venire.” J.A. 168.
The trial court, “given the number of black jurors
that were struck,” requested a response from the prosecution. J.A. 168. The prosecution accordingly explained each peremptory challenge of a black juror:
• One had been “15 minutes late” returning to
court and, according to the local police captain, “obviously has mental problems” observed during “numerous calls to her house.” J.A. 169.
• Another had “a brother that has been convicted of manslaughter,” which was a “similar offense[]” to the one at issue. J.A. 169.
• The third’s brother “was convicted in this court
of sexual battery” and was “now charged in a shooting case” and, “according to police officers, [the venireperson] is a known drug user.” J.A. 170.
• The fourth was “too closely related” to petitioner in that he was “approximately the age” of petitioner, had similarly “never been married,” and had
“a two-year-old child,” “about the same age” as petitioner’s child. J.A. 170. He also “had no opinion on
the death penalty” and had “numerous speeding violations.” Ibid.
The trial court found each of the prosecutor’s reasons
to be “race neutral.” J.A. 169-170.
Petitioner’s counsel did not respond with any attempt to rebut the prosecutor’s reasons for striking the
prospective jurors. See J.A. 170-171. Nor did counsel
argue that discriminatory intent could be inferred from
the presence of white jurors with similar backgrounds
or circumstances whom the prosecution had not challenged. See ibid.
6
Instead, the trial court and the parties proceeded
with the peremptory-challenge process, during which
the prosecution used two more peremptory strikes,
each to remove a white venireperson. J.A. 171-174.
The final set of 14 jurors, who would form the 12member jury along with two alternates, consisted of 13
white members and one black member. J.A. 689, 717.
b. A short time after the conclusion of the
peremptory-challenge process, before the jury was
sworn, petitioner’s counsel asked to approach the
bench, and the following exchange took place outside
the jury venire’s hearing:
[DEFENSE COUNSEL #1]: At some point the
defense is going to want to reserve both its Batson
objection and a straight [Fourteenth] Amendment
racial discrimination.
THE COURT: You have already made it in the
record so I am of the opinion it is in the record.
[DEFENSE COUNSEL #1]: I don’t want to let
the paneling of the jury go by without having those
objections.
THE COURT: I think you already made those,
and they are clear in the record. For the reasons
previously stated, first the Court finds there to be
no—well, all the reasons were race neutral as to
members that were struck by the district attorney’s
office. And so the, the Court finds there to be no Batson violation.
And then as to the other issues, the Court has already ruled that based on prior rulings from the
United States Supreme Court and the State of Mississippi that jury selection was appropriate.
7
As I say, they are noted for the record.
[DEFENSE COUNSEL #1]: Allow us to state
into the record there is one of 12—of [14] jurors, are
non-white, whereas this county is approximately,
what, 40 percent?
[DEFENSE COUNSEL #2]: The county is 40
percent black.
THE COURT: I don’t know about the racial
makeup, but I will note for the record there is one
regular member of the panel that is black, AfricanAmerican race.
[DEFENSE COUNSEL #1]: And only one.
THE COURT: Right. There is one[,] period.
[DEFENSE COUNSEL #1]: Right. Thank you.
J.A. 175-176.
Petitioner’s counsel again made no mention of comparable white jurors who were not struck. J.A. 176.
The jury was subsequently sworn in, and the trial (bifurcated into guilt and penalty phases) proceeded without any further argument with respect to the Batson
challenge. J.A. 176, 576. The jury found petitioner
guilty of capital murder. Ibid. A sentence of death was
imposed. Ibid.
2. After the trial proceedings had concluded,
petitioner filed a motion for a new trial, which raised 27
claims of error. J.A. 177-181. The motion included a
single-sentence argument in support of a renewed
Batson claim, in which petitioner asserted solely that
the prosecution had used its peremptory challenges to
obtain a jury “composed of less than 10% AfricanAmerican citizens selected from a county with nearly a
45% African-American population.” J.A. 179.
8
In an amended motion filed a week later, petitioner
added a second sentence, asserting—without further
elaboration—that the prosecution “deselected black
people from the jury panel who had the same familial,
living, social or marital circumstances as whites who
were not deselected.” J.A. 184; see J.A. 182-187. The
district court denied the motion for new trial without
opinion. J.A. 3.
3. On appeal, petitioner again raised a Batson claim.
J.A. 200-225. The Mississippi Supreme Court rejected
that claim on the ground that it relied on arguments
that petitioner had not raised before. J.A. 577-585.
Petitioner asserted on appeal that the prosecution’s
proffered race-neutral reasons for its peremptory challenges were pretextual on the theory that “some of the
reasons the State proffered for its strikes of blacks were
also true of whites the State did not strike.” J.A. 584.
He sought to bolster that theory by arguing for the first
time that, inter alia, the prosecution had accepted 11
white venirepersons who shared at least one demographic similarity with the fourth black venireperson
challenged by the prosecution , J.A. 212 & n.9, and had
accepted two white jurors with relatives who had been
convicted of non-homicide felonies, J.A. 220, 222 & n.12.
Observing that petitioner “did not present these arguments to the trial court during the voir dire process
or during post-trial motions,” the Mississippi Supreme
Court declined to “now fault the trial judge with failing
to discern whether the State’s race-neutral reasons
were overcome by rebuttal evidence and argument
never presented.” J.A. 584-585. The Mississippi Supreme Court also quoted precedent in which it had held
that the failure to raise a Batson pretext argument in
9
the trial court “constitutes waiver.” J.A. 584 n.16 (quoting Manning v. State, 735 So. 2d 323, 329 (Miss. 1999)).
The Mississippi Supreme Court additionally found
petitioner’s argument that “the totality of the circumstances show[ed] that the State’s peremptory challenges were exercised in a discriminatory manner” to
be an “attempt to present his pretext argument in another package.” J.A. 585. And it explained that because
petitioner “failed to provide any argument concerning
pretext during the Batson hearing,” it would “not entertain those arguments” on appeal. Ibid.
Presiding Justice Graves dissented, joined by Justice Kitchens. J.A. 659-676. In Justice Graves’s view,
petitioner had “made a pretext argument by virtue of
his Batson objection,” J.A. 672, and the trial court had
committed clear error in accepting the prosecution’s
race-neutral explanations for its strikes, J.A. 673-676.
4. Under 28 U.S.C. 2254, state prisoners who have
exhausted available state remedies may file an application for a writ of habeas corpus in federal district court.
See 28 U.S.C. 2254(b)(1)(A) and (c). In 2018, petitioner
sought federal habeas relief in the United States District Court for the Northern District of Mississippi on
26 potential grounds, including a renewed Batson claim.
See D. Ct. Doc. 36 (Sep. 17, 2018). The district court
granted relief on that claim. See J.A. 687-711.
Under the AEDPA, a federal court may not grant
habeas relief on a claim that was previously adjudicated
on the merits by the state courts unless one of two conditions is met. Specifically, the state adjudication of the
claim must have “resulted in a decision” either “contrary
to, or [that] involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States,” 28 U.S.C.
10
2254(d)(1), or “based on unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding,” 28 U.S.C. 2254(d)(2).
Here, the district court deemed the Mississippi Supreme Court’s “rejection of [petitioner’s] Batson claim”
to have been “contrary to or an unreasonable application of clearly established federal law.” J.A. 711. The
district court acknowledged that the Mississippi Supreme Court had found that petitioner “waived any argument regarding pretext,” J.A. 702, but the district
court took the view that petitioner “did object to the
[prosecutor’s] explanations” at the bench conference.
J.A. 704. The district court criticized the state trial
court for “seemingly fail[ing] to conduct the third Batson inquiry.” J.A. 703. And it reasoned that, in any
event, “a defendant’s failure to rebut the State’s raceneutral reasons does not constitute waiver of a comparative analysis in capital cases.” J.A. 708.
The district court additionally faulted the Mississippi Supreme Court for failing to address that court’s
own conclusion, in an appeal that it had resolved after
the trial in petitioner’s case, that the same prosecutor
had committed a Batson violation with respect to a different defendant, Curtis Flowers. J.A. 708-710; cf.
Flowers v. Mississippi, 588 U.S. 284 (2019) (decision
postdating state proceedings in petitioner’s case finding
Batson error by same prosecutor during a later retrial
of Flowers). Although the district court acknowledged
that Flowers’s case was not “dispositive” of petitioner’s
Batson claim, it deemed the case “informative” and a
factor that “should have been examined in the state appellate court’s consideration of [petitioner]’s Batson argument.” J.A. 710.
11
5. The court of appeals reversed the grant of habeas
relief, J.A. 716-732, identifying several errors in the district court’s reasoning.
First, the court of appeals found that the district
court had “erred in finding the trial court skipped Batson’s third step.” J.A. 723. The court of appeals explained that no decision from this Court required the
trial court “to make explicit findings concerning the validity of the State’s proffered race-neutral reasons.”
J.A. 724. And the court of appeals observed that the
state trial court had “implicitly found” no discrimination
during the bench conference in which it “f [ou]nd[] there
to be no Batson violation” and concluded that “jury selection was appropriate.” J.A. 725.
Second, the court of appeals found that the district
court had “erred by finding that [petitioner] did not
‘waive’ his pretext argument.” J.A. 725. The court of
appeals observed that this Court “has held that state
courts may adopt rules concerning when Batson challenges may be raised.” J.A. 726 (citing Ford v. Georgia,
498 U.S. 411, 423 (1991)). The court found no case law
indicating that “relying on such waiver principles” in
this case “was an unreasonable application of (or even
inconsistent with) Batson.” J.A. 727. And the court observed that petitioner’s objection at the bench conference that the county was 40% black “was not remotely
sufficient to raise an objection to the State’s race-neutral reasons.” Ibid.
Third, the court of appeals found that the district
court had “erred by suggesting the Mississippi courts
were obliged to consider the ‘totality’ of the facts bearing on [petitioner]’s pretext claims, including the facts
in the Flowers litigation.” J.A. 728. The court of appeals observed that “it is not clearly established that ha-
12
beas courts must, of their own accord, uncover and resolve all facts and circumstances that may bear on
whether a peremptory strike was racially motivated
when the strike’s challenger has not identified those
facts and circumstances.’ ” Ibid. (quoting Ramey v.
Lumpkin, 7 F.4th 271, 280 (5th Cir. 2021), cert. denied,
142 S. Ct. 1442 (2022)).
The court of appeals noted that while this Court had
found a Batson violation in the course of the Flowers
litigation, it had done so “nine years after the Mississippi Supreme Court rejected [petitioner]’s Batson
claim.” J.A. 729. And it explained that “to the extent
the district court thought the Mississippi courts should
have considered the relevance of state-court decisions
in Flowers, those are irrelevant under AEDPA.” J.A.
730.
Finally, the court of appeals found that the district
court had erred to the extent that it had viewed the
state courts as making factual findings that would be
unreasonable under 28 U.S.C. 2254(d)(2). The court of
appeals emphasized that “[a]ll the [trial] judge had
available to weigh against the State’s race-neutral reasons was [petitioner]’s conclusory argument that 40% of
the county was black” and his citation to Miller-El. J.A.
731. And the court of appeals observed that it “was not
clearly unreasonable for the judge to find that such bare
assertions failed to overcome the State’s race-neutral
reasons.” J.A. 731-732.
SUMMARY OF ARGUMENT
Nothing in this Court’s decisions, the Constitution,
or sound principles of judicial administration requires
an appellate court to entertain arguments of pretextual
juror challenges under Batson v. Kentucky, 476 U.S. 79
(1986), that were not raised during the Batson proceed-
13
ings in the trial court. Instead, such arguments may
properly—and beneficially—be held to the same type of
preservation rules that courts apply to all sorts of constitutional and nonconstitutional claims. As the decision
below correctly recognized, the Mississippi Supreme
Court’s invocation of such a rule here provides no basis
for federal habeas relief from his state judgment.
I. Perhaps “[n]o procedural principle is more familiar” than the rule that “a constitutional right may be
forfeited * * * by the failure to make timely assertion
of the right.” Yakus v. United States, 321 U.S. 414, 444
(1944). In keeping with that principle, federal and state
appellate courts routinely decline to consider issues and
arguments that were not presented to the trial courts
below. This Court likewise frequently refuses to entertain new issues and arguments that have not been
passed upon by courts below. Although appellate courts
sometimes have discretion to consider such questions,
that does not give parties an entitlement to such belated
consideration.
The general practice of requiring parties to preserve
issues and arguments serves important purposes, is
consistent with the Constitution, and comports with historical practice. Such preservation requirements ensure that an appropriate record is made in the trial
court and encourage the timely raising of issues before
the trial court, where they may be resolved before—not
after—the continuation of the litigation in the trial
court. This Court’s precedents make clear that such
preservation rules are generally within the discretion of
federal and state courts and raise no due-process concerns. Indeed, such rules are historically grounded,
tracking centuries of legal tradition.
14
Pretext arguments under Batson, supra, fit squarely
within that tradition. As this Court has explained, “the
ultimate burden of persuasion” that the prosecution has
struck prospective jurors for racially motivated reasons
“rests with, and never shifts from, the opponent of the
[peremptory] strike.” Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam). Appellate courts may properly decline to consider arguments that the defendant did not
marshal in the first instance in attempting to meet that
burden of persuasion. A trial court’s determination regarding the pretextual nature of the prosecution’s
stated race-neutral justifications for its strikes is fundamentally a credibility determination, which appellate
courts are often ill-suited to second-guess on a cold record. Requiring contemporaneous objections ensures a
fuller record for review, incentivizes parties to raise
their objections before the court has conducted a trial,
and eliminates the need for prosecutors or trial courts
to preemptively rebut every argument a defendant
could potentially later make.
Although this Court at times has conducted juror
comparisons not presented below, it has never indicated
that appellate courts are required to conduct such analyses where the objecting party has not preserved the
argument. To the contrary, the Court has observed that
“[u]ndoubtedly” a “state court may adopt a general rule
that a Batson claim is untimely if it is raised for the first
time on appeal.” Ford v. Georgia, 498 U.S. 411, 423
(1991). And simply establishing a prima facie case under Batson is insufficient to timely preserve a Batson
claim that depends on new assertions of pretext in the
prosecution’s facially plausible race-neutral reasons for
its strikes.
15
II. For those reasons, the Mississippi Supreme
Court did not unreasonably apply or contravene this
Court’s clearly established law, or unreasonably determine the facts, as would be required for relief under 28
U.S.C. 2254(d). Its procedural rule requiring preservation of Batson pretext arguments is both permissible
and practical. Petitioner fails to show that the rule has
any legal infirmity, or that it resulted in the denial of a
forum for his Batson claim. Nor does he show that it
was unreasonable for the state supreme court to find
that he had failed to preserve his pretext arguments in
this case. This Court should affirm the denial of habeas
relief.
ARGUMENT
This Court’s decision in Batson v. Kentucky, 476
U.S. 79, 96 (1986), sets forth a three-part procedure for
evaluating a defendant’s claim of racially discriminatory juror strikes. See id. at 96-98. “The first two Batson steps govern the production of evidence,” Johnson
v. California, 545 U.S. 162, 171 (2005), and the third
governs the evaluation of that evidence—with the burden of persuasion at all times resting squarely on the
defendant. See, e.g., Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam). Nothing requires an appellate
court to find fault with the denial of a Batson claim
based on third-step arguments that were not presented
to the trial court. As this Court has made clear, a defendant’s Batson claim is not immune to procedural
rules, under which appellate courts may, and frequently
do, decline to consider arguments not raised below. The
court of appeals correctly determined that the Mississippi Supreme Court’s decision easily withstands deferential review under 28 U.S.C. 2254(d).
16
I. COURTS REVIEWING A CLAIM OF RACIALLY BIASED
JUROR STRIKES ARE NOT REQUIRED TO CONSIDER
UNPRESERVED ARGUMENTS REGARDING PRETEXT
A. Appellate Courts Are Not Generally Required To Consider Issues And Arguments That Were Not Raised Below
1. “For purposes of efficiency and fairness, our legal
system is replete with rules requiring that certain matters be raised at particular times.” Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). Indeed, “[n]o procedural principle is more familiar * * * than that a constitutional right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the
right.” Yakus v. United States, 321 U.S. 414, 444 (1944).
“Courts may for that reason refuse to consider a constitutional objection even though a like objection had previously been sustained in a case in which it was properly
taken.” Ibid.
That is especially true for appellate courts presented
with issues and arguments not raised in the trial court.
“[A]s a general rule, our system ‘is designed around the
premise that parties * * * are responsible for advancing
the facts and argument entitling them to relief.’ ”
United States v. Sineneng-Smith, 590 U.S. 371, 375-376
(2020) (brackets omitted) (quoting Castro v. United
States, 540 U.S. 375, 386 (2003) (Scalia, J. concurring in
part and concurring in the judgment)). And the “procedural scheme contemplates that parties shall come to
issue in the trial forum vested with authority to determine questions of fact.” Hormel v. Helvering, 312 U.S.
552, 556 (1941). Among other things, “[q]uestions not
raised below are ones on which the record is very likely
to be inadequate, since it certainly was not compiled
17
with those questions in mind.” Cardinale v. Louisiana,
394 U.S. 437, 439 (1969).
2. In some circumstances, a statute or rule may foreclose appellate consideration of an issue or argument
not properly preserved in the trial court. “In federal
criminal cases,” for example, “Rule 51(b)” of the Federal Rules of Criminal Procedure “tells parties how to
preserve claims of error: ‘by informing the court—
when the court ruling is made or sought—of the action
the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.’ ” Puckett v. United States, 556 U.S. 129, 135 (2009)
(quoting Fed. R. Crim. P. 51(b)). “Failure to abide by
this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of
trial error,” unless the demanding requirements for
plain-error relief under Rule 52(b) are satisfied. Ibid.
Similarly, under Rule 12, failure to raise certain issues—including certain constitutional issues—in a
timely pretrial motion forecloses later consideration of
those issues by “a court” unless “good cause” is shown.
Fed. R. Crim. P. 12(c)(3); see Fed. R. Crim. P. 12(b)(3).
In other circumstances, “[t]he matter of what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the
courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976).
It is well settled, for example, that appellate courts
“have discretion to affirm on any ground supported by
the law and the record that will not expand the relief
granted below.” Upper Skagit Indian Tribe v. Lundgren,
584 U.S. 554, 560 (2018). There can also be “circumstances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the
18
proper resolution is beyond any doubt or where ‘injustice might otherwise result.’ ” Singleton, 428 U.S. at
121. And, at least in this Court, a party that has
“properly presented” a “federal claim” is “not limited to
the precise arguments they made below.” Yee v. City of
Escondido, 503 U.S. 519, 534 (1992).
But an appellate court’s discretion to consider an issue or argument not raised below does not give rise to
any general entitlement to such consideration. See, e.g.,
Yee, 503 U.S. at 538 (declining to consider new argument). To the contrary, in some circumstances, consideration of a new issue or argument will be an abuse of
discretion. See, e.g., Singleton, 428 U.S. at 121. Even
outside of that, it is “[o]rdinarily” the case that “an appellate court does not give consideration to issues not
raised below.” Hormel, 312 U.S. at 556. And for recurrent scenarios, courts will sometimes crystallize that
practice into a rule. See Cardinal Chem. Co. v. Morton
Int’l, Inc., 508 U.S. 83, 99 (1993) (“The courts of appeals
have significant authority to fashion rules to govern
their own procedures.”).
This Court, for example, has adopted a “traditional
rule” that “precludes a grant of certiorari” when “ ‘the
question presented was not pressed or passed upon below.’ ” United States v. Williams, 504 U.S. 36, 41 (1992)
(citation omitted). And it “will not entertain arguments
not made below” absent “unusual circumstances.” OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 38 (2015).
Courts of appeals have adopted similar forfeiture rules,
such as the common rule against considering arguments
raised for the first time in a reply brief. See, e.g., Stechauner v. Smith, 852 F.3d 708, 721 (7th Cir.), cert. denied, 583 U.S. 876 (2017); United States v. Jackson, 426
F.3d 301, 304 n.2 (5th Cir. 2005) (per curiam); United
19
States v. Chase, 466 F.3d 310, 314 n.2 (4th Cir. 2006).
And the Court has recognized that similar state preservation rules are “a valid exercise of state power.” Williams v. Georgia, 349 U.S. 375, 383 (1955); see id. at 383
n.6 (citing examples).
3. Such preservation rules are generally consistent
with the Constitution, as evidenced by this Court’s repeated endorsements of “state procedural rule[s] which
forbid[] the raising of federal questions at late stages in
the case, or by any other than a prescribed method.”
Williams, 349 U.S. at 382-383; see id. at 383 n.6 (citing
cases). In Michel v. Louisiana, 350 U.S. 91 (1955), for
example, this Court upheld a state law that required
challenges to a grand jury to be raised within three days
of the grand jury’s term ending or before trial, whichever was earlier. Id. at 92-93. The Court found it “beyond question that, under the Due Process Clause of the
Fourteenth Amendment, Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights.” Id. at 97. Similarly, in Wainwright v.
Sykes, 433 U.S. 72, 86 (1977), the Court held that a State
could, “consistently with the United States Constitution, require that [the defendant’s] confession be challenged at trial or not at all.” Id. at 86.
Far from being constitutionally problematic, this
Court has recognized that preservation rules, applied in
the context of constitutional claims or otherwise, are a
boon to the system. The Court has explained, for example, that “[t]here is good reason” why “[i]f an error is
not properly preserved, appellate-court authority to
remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed.”
Puckett, 556 U.S. at 134. “[A]nyone familiar with the
work of courts understands that * * * a reflexive incli-
20
nation by appellate courts to reverse because of unpreserved error would be fatal.” Ibid. (citation and internal quotation marks omitted).
In addition to ensuring that an appropriate record is
made, see Cardinale, 394 U.S. at 439, preservation rules
also “induce the timely raising of claims and objections,
which gives the [trial] court the opportunity to consider
and resolve them.” Puckett, 556 U.S. at 134. “That
court is ordinarily in the best position to determine the
relevant facts and adjudicate the dispute.” Ibid. If an
objection is properly made in the trial court, “inquiry
into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial.”
Davis v. United States, 411 U.S. 233, 241 (1973). “And
of course the contemporaneous-objection rule prevents
a litigant from sandbagging the court—remaining silent
about his objection and belatedly raising the error only
if the case does not conclude in his favor.” Puckett, 556
U.S. at 134 (internal quotation marks omitted).
4. Preservation requirements also have deep historical roots. “The rule against considering new issues on
appeal developed from the writ of error model of appellate review as it was handed down from eighteenth century English common law.” Rhett R. Dennerline, Pushing Aside the General Rule in Order to Raise New Issues on Appeal, 64 Ind. L. J. 985, 985-986 (1989). Because “the only purpose of appellate review” under that
model “was to ascertain whether the judge made a mistake in a legal ruling,” the “issue on which the writ of
error was based had to have been presented to the trial
judge.” Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis 6
21
(1990); see 3 William Blackstone, Commentaries on the
Laws of England 405-406 (1768).
As one 19th-century commentator explained, a contemporaneous objection was required in order “to suggest to the court the objection, so that the court does
not pass upon it inadvertently, and that the court or the
party may have an opportunity to correct or obviate it.”
Thomas W. Powell, The Law of Appellate Proceedings
124 (1872). Such preservation rules applied in full force
to challenges regarding jury composition. Although
Congress eventually dispensed with writs of error in favor of appeals in 1928, Act of Jan. 31, 1928, ch. 14, 45
Stat. 54, and made formal “[e]xceptions to rulings or orders of the court * * * unnecessary” in 1946, Fed. R.
Crim. P. 51 (1946), parties still had an obligation to preserve arguments on jury composition and other issues.
See, e.g., Frazier v. United States, 335 U.S. 497, 513
(1948) (holding that defendant “could not challenge” jurors for actual bias “in a motion for a new trial,” when
he had not challenged them before).
Indeed, as noted above, Federal Rule of Criminal
Procedure 51—which requires a party to identify the
“grounds” for an objection—was adopted in 1946 and
continues in force today. Applying Rule 51, other
preservation rules, and sound exercises of discretion to
limit consideration of unpreserved arguments remains
a permissible, valuable, and ubiquitous feature of the judicial system.
B. Appellate Courts Are Not, And Should Not Be, Required
To Consider Unpreserved Pretext Arguments Added To
Claims Under Batson v. Kentucky
As noted above, the lengthy pedigree of preservation
rules includes the application of such rules to objections
to jury composition. See, e.g., Kohl v. Lehlback, 160
22
U.S. 293, 299 (1895) (noting that objection to juror’s citizenship “may have been raised after verdict, and overruled because coming too late”); United States v. Gale,
109 U.S. 65, 69 (1883) (applying common-law rule requiring pretrial objections to grand-jury composition);
Queen v. Hepburn, 11 U.S. (7 Cranch) 290, 297 (1813)
(Marshall, C.J.) (applying rule that objection based on
juror’s county of residence “ought to have been made[]
before the juror was sworn”). Both this Court’s precedents and the commonsense administrative concerns
that underlie other preservation rules allow for their
application in the context of a claim of racially biased
jury strikes under Batson.
1. As explained, a defendant’s Batson claim proceeds in three stages. The first stage requires the defendant to make out a prima facie case by showing that
the “relevant circumstances raise an inference that the
prosecutor used” peremptory challenges “to exclude
the veniremen from the petit jury on account of their
race.” Batson, 476 U.S. at 96. If he is able to do so, the
second stage requires the prosecution to “come forward
with a neutral explanation for challenging [allegedly
targeted] jurors.” Id. at 97. Finally, at the third stage,
the trial court “ha[s] the duty to determine if the defendant has established purposeful discrimination.” Id.
at 98. And notwithstanding the shifting burdens of production, “the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from,” the
defendant who is “the opponent of the strike.” Purkett,
514 U.S. at 768.
It is critical that the district court be apprised of, and
thus able to consider, the facts and arguments by the
time the inquiry reaches the third stage. At the first
stage, a defendant need only raise an “inference” of
23
race-based peremptory strikes. Batson, 476 U.S. at 96.
And at the second stage, the prosecutor’s explanation
need only be facially race-neutral, even if it is not “plausible” or “minimally persuasive.” Purkett, 514 U.S. at
768. “It is not until the third step” that the trial court
considers “the persuasiveness of the justification” and
“determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.”
Ibid. Accordingly, it is incumbent on the defendant to
ensure that the trial court is aware of any facts or arguments that should form part of its consideration.
It is the defendant, not the trial court, who bears “the
ultimate burden of persuasion.” Purkett, 514 U.S. at
768. He cannot simply assume that the trial court will
carry that burden for him, by coming up with and considering on its own any variety of arguments that might
be posited in his favor. The duty of the trial judge is to
“determine whether the prosecutor’s proffered reasons
are the actual reasons, or whether the proffered reasons are pretextual,” Flowers v. Mississippi, 588 U.S.
284, 303 (2019), not to derive arguments on a defendant’s behalf.
2. A defendant whose Batson claim was denied has
no entitlement to appellate review of pretext arguments
that he did not raise at the time. Although Batson protects the important right to be free from racial discrimination in jury selection, the Batson context is no exception to the general principle that courts may decline to
consider unpreserved arguments. To the contrary, “[i]n
Batson itself,” the Court “imposed no new procedural
rules and declined either ‘to formulate particular procedures to be followed upon a defendant’s timely objection
to a prosecutor’s challenges,’ or to decide when an objection must be made to be timely.” Ford v. Georgia,
24
498 U.S. 411, 423 (1991) (quoting Batson, 476 U.S. at 99100). The Court instead “recognized that local practices
would indicate the proper deadlines in the contexts of
the various procedures used to try criminal cases.”
Ibid. (quoting Batson, 476 U.S., at 99 n.24).
“Undoubtedly, then, a state court may adopt a
general rule that a Batson claim is untimely if it is
raised for the first time on appeal.” Ford, 418 U.S. at
423. Courts may likewise decline, either as a general
matter or in specific cases, to consider new pretext
arguments—like
arguments
that
comparable
venirepersons went unchallenged—that were not
identified to the trial court during that court’s
consideration of the Batson claim. A simple Batson
objection, standing alone, is not inherently sufficient to
preserve such a belated argument. A Batson claim that
reaches the third stage necessitates a fact-intensive
inquiry into pretext. The belated injection—on appeal,
after trial and conviction—of a new argument that was
not provided to the trial court at the time of its factintensive ruling disserves the interest of justice.
Such late-introduced arguments implicate all of the
traditional reasons why appellate courts may, and typically do, decline to entertain new arguments on appeal.
As noted above, requiring contemporaneous airing of
pretext arguments ensures that the trial court can make
fully informed factual findings about the credibility of
the prosecutor’s race-neutral explanations for his peremptory challenges. This Court has made clear that the
ultimate question of discriminatory intent under Batson
is a “ ‘finding of fact.’ ” Batson, 476 U.S. at 98 n.21 (citation omitted). Once a prosecutor provides his “reason
for striking the juror,” the trial judge must “assess the
plausibility of that reason.” Miller-El v. Dretke, 545
25
U.S. 231, 251-252 (2005). That will often depend on
“[t]he trial judge’s assessment[s] of the prosecutor’s
credibility.” Flowers, 588 U.S. at 302.
“ [D]eterminations of credibility and demeanor lie
‘peculiarly within a trial judge’s’ ”—not an appellate
court’s—“ ‘province.’ ” Flowers, 588 U.S. at 303 (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).
Even when a basic Batson objection has been preserved, a trial court’s credibility determinations are
owed “great deference.” Batson, 476 U.S. at 98 n.21.
When the defendant fails to raise specific pretext arguments, he deprives the trial court of the opportunity to
consider those arguments alongside other demeanor evidence—and to make an explicit record on which an appellate court might later rely. Among other things, a
trial court, but not an appellate court, would be in position to simply ask the prosecutor to elaborate on his
race-neutral explanation in light of the pretext argument raised by the defendant, and then evaluate the
contemporaneous credibility of that elaboration.
Second-guessing of trial judges’ credibility determinations based on arguments never called to those judges’
attention is incurably speculative, and appellate courts
have sound reason to avoid it. A defendant’s failure to
raise a pretext argument at trial can also give rise to
other deficiencies in the appellate record. For example,
a common pretext argument is that the prosecution did
not strike jurors who were similarly situated to stricken
jurors. See, e.g., Flowers, 588 U.S. at 302. But unless
the issue was raised in the trial court, the appellate
court may lack a developed record for making the necessary comparison.
Even when the record might provide some basis for
comparison between challenged and unchallenged veni-
26
repersons, it remains the case that “a retrospective
comparison of jurors based on a cold appellate record
may be very misleading when alleged similarities were
not raised at trial.” Snyder, 552 U.S. at 483. Because
“an exploration of the alleged similarities at the time of
trial might have shown that the jurors in question were
not really comparable,” ibid., an appellate court may
lack confidence that it has the full picture of the situation. As petitioner notes (Br. 41-42), this Court in
Snyder engaged in post hoc comparison, where “the
shared characteristic” was “thoroughly explored by the
trial court when the relevant jurors asked to be excused
for cause.” 522 U.S. at 483. But many cases are not like
that, and an appellate court may appropriately demur
from an analysis for which a defendant did not lay
enough foundation.
Requiring appellate courts to make post hoc determinations in every case would also create perverse incentives for defendants. Without the possibility of forfeiture, “[s]trong tactical considerations would militate
in favor of delaying the raising of the claim in hopes of
an acquittal,” and “the claim could be used to upset an
otherwise valid conviction at a time when reprosecution
might well be difficult.” Davis, 411 U.S. at 241; see, e.g.,
Puckett, 556 U.S. at 134. Such sandbagging concerns
are particularly pronounced in the Batson context,
given that successful Batson claimants are entitled to
“automatic relief” without showing any prejudicial effect on the trial. Weaver v. Massachusetts, 582 U.S.
286, 301 (2017); see United States v. Hill, 31 F.4th 1076,
1084 (8th Cir. 2022) (noting the “unique opportunities
for sandbagging” in this context), cert. denied, 143 S. Ct.
1036 (2023). And even for defendants who would not intend to sandbag, it is important to maintain affirmative
27
incentives to air arguments fully at the most appropriate time.
Consideration of unpreserved pretext arguments on
appeal also puts an unreasonable burden on prosecutors
and trial courts. To fend off later-developed juror comparison arguments, “the prosecution w[ould] have to explain,” for example, “why it kept every white juror, because it does not know which white jurors will be selected as comparators at some later date.” Chamberlin
v. Fisher, 885 F.3d 832, 843 (5th Cir. 2018), cert. denied,
588 U.S. 920 (2019). And a trial court would need to sua
sponte conduct a time-consuming comparison between
jurors who were struck and jurors who were retained,
perhaps asking the prosecutor to explain his reasons for
retaining specific jurors. Failing to do so could leave
room for the defense to later conduct its own comparative analysis and potentially show error on appeal that
would require a new trial and further expenditure of judicial resources.
3. Petitioner provides no sound reason, as either a
legal or a practical matter, for such an undesirable outcome. He identifies no case in which this Court considered arguments that compared struck and non-struck
jurors in the face of an explicit determination by a lower
court that a defendant had failed to preserve such an
argument. See Pet. Br. 41-44. This Court has never
held that federal or state courts are required to consider unpreserved pretext arguments in Batson cases,
and nothing precludes a court of appeals from exercising its discretion to do so.
Petitioner’s reliance (Br. 41-42) on Snyder is misplaced. In that case—which involved a particularly full
record, see p. 26, supra—the Court “reinforced” its conclusions about pretext by comparing the prosecutor’s
28
stated reasons for a strike with the prosecutor’s “acceptance of white jurors” who were similarly situated,
even though those jurors “were never mentioned in the
argument before the trial court.” Snyder, 552 U.S. at
483, 489 (Thomas, J., dissenting). But the Court explicitly observed that “[t]he Louisiana Supreme Court did
not hold that petitioner had procedurally defaulted reliance on a comparison of the African-American jurors
whom the prosecution struck with white jurors whom
the prosecution accepted.” Id. at 483 n.2. “On the contrary,” the Court explained, “the State Supreme Court
itself made such a comparison.” Ibid.
Petitioner also notes (Br. 42-43) that the Court in
Miller-El v. Dretke rejected the dissent’s view that
“comparisons of black and nonblack venire panelists”
were “not properly before th[e] Court, not having been
‘put before the Texas courts.’ ” 545 U.S. at 241 n.2 (citation omitted). In doing so, the Court found “no dispute
that the Batson claim was fairly presen[ted]” to the
state courts, and observed that the “evidence on which”
the comparison argument was based “was before the
state courts” in the voir dire transcript, even if the defendant had not presented the same “theories about
that evidence.” Ibid. (citation and internal quotation
marks omitted). But the Court did not hold that an
appellate court has an obligation—as opposed to the
discretion—to review such an unpreserved argument.
See Chamberlin, 885 F.3d at 839 (“Nowhere in MillerEl II did the Supreme Court imply—let alone clearly
establish—that a state court must conduct a comparative juror analysis sua sponte.”); McDaniels v. Kirkland, 813 F.3d 770, 782-785 (9th Cir. 2015) (Ikuta, J.,
concurring) (observing that Miller-El “did not discuss,
let alone squarely establish, a new procedural rule that
29
state courts must conduct comparative juror analysis
when evaluating a Batson claim”).
Contrary to petitioner’s suggestion (Pet. 20), the requirement that “in considering a Batson objection, or in
reviewing a ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity must be consulted,” Snyder, 552 U.S. at 478, does not
override normal principles of party presentation and
preservation. This Court made clear (in the very same
case on which petitioner relies) that “the trial court
must determine whether the defendant has shown purposeful discrimination” “in light of the parties’ submissions.” Id. at 477 (emphasis added; citation omitted).
And nothing in this Court’s precedents, or sound principles of judicial administration, requires an appellate
court to find fault with a trial court’s determination—
and undo a conviction—based on an argument that was
absent from those submissions.
II.
PETITIONER PROVIDES NO JUSTIFICATION FOR
SETTING ASIDE THE STATE COURTS’ RESOLUTION
OF HIS CASE
Petitioner identifies no sound basis for overturning
the Mississippi Supreme Court’s application of its rule
precluding consideration of unpreserved pretext arguments in the context of a Batson claim. Under the
AEDPA, petitioner is entitled to relief only if he shows
under 28 U.S.C. 2254(d)(1) that the state court’s resolution of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or shows under
28 U.S.C. 2254(d)(2) that resolution of the claim “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence pre-
30
sented in the State court proceeding.” 28 U.S.C.
2254(d). He falls well short of that demanding standard.
A. No Legal Error Warrants Relief
Petitioner does not show any legal error, let alone
the type of error required under Section 2254(d)(1)—
namely, “an error * * * beyond any possibility for fairminded disagreement,” Harrington v. Richter, 562 U.S.
86, 103 (2011). For the reasons explained above, the
Mississippi Supreme Court was not required to consider pretext arguments that petitioner did not raise
during the trial court’s consideration of his Batson
claim.
As explained above, this Court has recognized as
“clear” the “appropriateness in general of looking to local rules for the law governing the timeliness of a constitutional claim.” Ford, 498 U.S. at 423. Even more
specifically, it has recognized that a state court may
“[u]ndoubtedly * * * adopt a general rule that a Batson
claim is untimely if it is raised for the first time on appeal.” Ibid. No decision of this Court forecloses a state,
or federal, appellate court from exercising its discretion
to adopt and apply a rule under which it will not consider Batson pretext arguments that were not aired in
a timely manner. See Cardinal Chem. Co., 508 U.S. at
99; Williams, 349 U.S. at 382-383.
Even if petitioner were correct in asserting (Br. 3233) that the Mississippi Supreme Court’s preexisting
rule does not cover his case, he cannot show that the
appellate court was required to consider forfeited arguments. Petitioner errs in contending (Br. 26) that the
Mississippi Supreme Court exceeded the bounds of its
procedural discretion by referring to trial-court omission as a “waiver.” While this Court has in recent decisions distinguished between waiver (“the ‘intentional
31
relinquishment or abandonment of a known right’ ”) and
forfeiture (“the failure to make the timely assertion of a
right”), it has recognized that “jurists often use the
words interchangeably.” Kontrick v. Ryan, 540 U.S.
443, 458 n.13 (2004) (citation omitted). Any imprecision
in the Mississippi Supreme Court’s terminology does
not undermine its discretion to decline to consider arguments raised for the first time on appeal.
Petitioner also errs in asserting (Br. 20) that the
Mississippi Supreme Court committed legal error by
“depriv[ing] [him] of any state forum to consider all
three steps of his Batson claim.” Even if some forfeiture rule could be so unreasonable either on its face, or
in its application, as to have that effect, that did not happen here. As even the state-court dissenters recognized, “the trial court ruled on the ultimate question of
intentional discrimination.” J.A. 663 n.139 (Graves,
P.J., dissenting); see J.A. 674 (“The trial court then
made its [step three] determination, and [petitioner] appeals that determination.”). And petitioner identifies no
decision of this Court requiring the trial court to have
given him additional opportunities to make Batson pretext arguments. Cf. Davis v. Ayala, 576 U.S. 257, 267
(2015) (declining to decide whether a defendant’s “federal constitutional rights were violated when the trial
court heard the prosecution’s justifications for its
strikes outside the presence of the defense”).
B. No Factual Error Warrants Relief
On the facts, petitioner has failed to “rebut[] the presumption of correctness by clear and convincing evidence,” Miller-El, 545 U.S. at 240, as Section 2254(d)(2)
requires.
Contrary to the dissenting state justices’ view, J.A.
672, petitioner did not “ma[k]e a pretext argument by
32
virtue of his Batson objection.” Pointing out a pattern
of striking black jurors, as petitioner did here, can suffice to make out a prima facie case under Batson. And
it may even suffice to show intentional discrimination, if
the prosecutor provides reasons for his strikes that are
not facially race-neutral, are ultimately implausible, or
are otherwise not credible. See Purkett, 514 U.S. at 768.
But it does not in itself preserve specific arguments
about why those reasons might be pretextual. Petitioner’s pretext arguments on appeal—in which he posited that “some of the reasons the State proffered for
its strikes of blacks were also true of whites the State
did not strike,” J.A. 584—were not presented in the trial
court. As the court of appeals observed, petitioner’s
bare assertion that the county population was 40% black
“was not remotely sufficient to raise an objection to the
State’s race-neutral reasons” for its peremptory challenges. J.A. 727.
The record also does not support petitioner’s claim
(Br. 32-33), that the trial court deprived him of a “meaningful opportunity” to timely raise the arguments that
he ultimately raised on appeal. Petitioner asserts (Br.
45) that he “was turned away when he tried to explain”
why the prosecutor’s reasons should not have been
credited. But the record does not reflect an attempt to
rebut those reasons after the prosecutor offered them.
See J.A. 169-170. Nor did the trial court “refuse[] to
hear further argument” (Br. 2) when it returned to the
Batson issue a short while later. Instead, the court
merely observed that petitioner’s initial Batson objection was “clear in the record,” J.A. 175, and then allowed
petitioner’s counsel to make the additional argument
that the jury was not reflective of the county’s racial
population, J.A. 176. The record does not show that the
33
trial court either cut off petitioner’s counsel or prohibited counsel from making more arguments.
Petitioner suggests (Pet. Br. 45) that he could not
“have presented a long-form juror analysis any sooner”
because voir dire proceeded too quickly. But petitioner’s
counsel did not request an opportunity to present such
an analysis. See J.A. 169-176. Moreover, petitioner’s
amended motion for a new trial, which clearly did provide an opportunity to “present[] a long-form juror
analysis,” did not include one, but instead simply alluded to a juror-comparison argument without identifying any of the purported comparators. J.A. 184 (asserting, without elaboration, that “the prosecution’s state of
mind was clearly discriminatory as it deselected black
people from the jury panel who had the same familial,
living, social or marital circumstances as whites who
were not deselected”). Those purported comparators
cannot be the basis for setting aside his conviction now.
CONCLUSION
This Court should affirm the judgment of the court
of appeals.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
A. TYSEN DUVA
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
EMILY M. FERGUSON
Assistant to the
Solicitor General
WILLIAM A. GLASER
Attorney
MARCH 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.