Amicus Curiae Brief — Terry Pitchford, Petitioner v. Burl Cain, Commissioner, Mississippi Department of Corrections, et al.

No. 24-7351

Supreme Court of the United States

──────────────────────────

TERRY PITCHFORD,

Petitioner,

v.

BURL CAIN, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

─────────────

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

─────────────

BRIEF OF ALABAMA AND 19 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

──────────────────────────

Steve Marshall

Attorney General

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

Principal Deputy

Solicitor General

George L. Muirhead

Ass’t Solicitor General

Jordan Mauldin

Matthew J. Clark

Ass’t Attorneys General

STATE OF ALABAMA

OFFICE OF THE

ATTORNEY GENERAL

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov

Counsel for Amicus Curiae State of Alabama

(additional counsel listed on signature page)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI STATES.................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

I.

Waiver Rules Recognize and Preserve the

Singular Role of the Trial Judge to

Enforce Batson v. Kentucky. ..........................3

A. Batson Entrusts Trial Judges with

the Task of Identifying Racial

Discrimination. .........................................4

B. Waiver Rules Properly Channel

Claims to the Court Best Situated

to Decide Them. ...................................... 10

C. Reversal Would Disturb the

Sensible

Waiver

Rules

of

Numerous Jurisdictions. ........................ 13

II.

If Petitioner Succeeds, the Remedy Would

Not Be “Automatic” Release or Retrial. ...... 20

CONCLUSION .......................................................... 27

ADDITIONAL COUNSEL ........................................ 27

ii

TABLE OF AUTHORITIES

Cases

Adair v. State,

336 S.W.3d 680 (Tex. App. 2010)......................... 20

Alexander v. NAACP,

602 U.S. 1 (2024) ....................................................9

Amadeo v. Zant,

486 U.S. 214 (1988) ................................................5

Batson v. Kentucky,

476 U.S. 79 (1986) ..................................... 1-5, 7-23

Boyde v. Brown,

404 F.3d 1159 (9th Cir. 2005) .............................. 19

Brecht v. Abrahamson,

507 U.S. 619 (1993) ........................................ 21, 24

Brown v. Davenport,

596 U.S. 118 (2022) .............................21, 22, 24-26

Buck v. Commonwealth,

443 S.E.2d 414 (Va. 1994).................................... 19

Califano v. Yamasaki,

442 U.S. 682 (1979) .............................................. 23

Cavazos v. Smith,

565 U.S. 1 (2011) .................................................. 22

Chamberlin v. Fisher,

885 F.3d 832 (5th Cir. 2018) ................................ 14

Cody v. Mesmer,

No. 4:20-cv-857, 2023 WL 6214817,

(E.D. Mo. Sept. 25, 2023) ..................................... 27

iii

Coleman v. Thompson,

501 U.S. 722 (1992) .............................................. 23

Corley v. Blair,

No. 4:22-cv-250-SRC, 2023 WL 4261608,

(E.D. Mo. June 29, 2023) ..................................... 27

Crawford v. Cain,

68 F.4th 273, (5th Cir. 2023), vacated,

72 F.4th 109 (5th Cir. 2023) ................................ 27

Cullen v. Pinholster,

563 U.S. 170 (2011) .............................................. 13

Danforth v. Minnesota,

552 U.S. 264 (2008) .............................................. 24

Davila v. Davis,

582 U.S. 521 (2017) .............................................. 12

Davis v. Ayala,

576 U.S. 257 (2015) ........................................ 2, 4-9

Davis v. Baltimore Gas & Elec. Co.,

160 F.3d 1023 (4th Cir. 1998) .............................. 15

Doster v. State,

72 So. 3d 60 (Ala. Crim. App. 2010) ......................6

Edwards v. Vannoy,

593 U.S. 255 (2021) .............................................. 22

Ex parte Floyd,

190 So. 3d 972 (Ala. 2012) ................................... 17

Fay v. Noia,

372 U.S. 391 (1963) .............................................. 25

Felkner v. Jackson,

562 U.S. 594 (2011) ............................................ 4, 7

iv

Flowers v. Mississippi,

588 U.S. 284 (2019) .................................. 3, 5, 9, 11

Ford v. Georgia,

498 U.S. 411 (1991) .................................. 10, 12, 13

Francis v. Henderson,

425 U.S. 536 (1976) .............................................. 24

Garraway v. Phillips,

591 F.3d 72 (2nd Cir. 2010) ........................... 15-16

Glossip v. Oklahoma,

604 U.S. 226 (2025) ................................................5

Gordon v. State,

350 So. 3d 25 (Fla. 2022) ..................................... 18

Harrington v. Richter,

562 U.S. 86 (2011) .......................................... 22, 23

Harrison v. Ryan,

909 F.2d 84 (3d Cir. 1990) .....................................8

Hecht Co. v. Bowles,

321 U.S. 321 (1944) .............................................. 26

Henderson v. State,

2024 WL 1946585,

(Ala. Crim. App. May 3, 2024) ............................. 17

Hernandez v. New York,

500 U.S. 352 (1991) ................................ 2, 3, 5, 7, 8

Hilton v. Braunskill,

481 U.S. 770 (1987) .................................. 22, 23, 25

Hopson v. Fredericksen,

961 F.2d 1374 (8th Cir. 1992) .............................. 16

v

Hurst v. Adams,

No. 4:24-cv-1666, 2025 WL 3718303,

(E.D. Mo. Dec. 23, 2025) ................................ 22, 27

Jackson v. Denno,

378 U.S. 368 (1964) .............................................. 23

Johnson v. California,

545 U.S. 162 (2005) .......................................... 7, 10

Johnson v. State,

68 S.W.3d 644 (Tex. App. 2002) .......................... 20

Kaufman v. United States,

394 U.S. 217 (1969) .............................................. 27

Klein v. Martin,

No. 25-51, 2026 WL 189976

(U.S. Jan. 26, 2026) .............................................. 22

Knight v. State,

300 So. 3d 76 (Ala. Crim. App. 2018) .................. 17

Lewis v. Casey,

518 U.S. 343 (1996) .............................................. 23

Lisle v. Welborn,

933 F.3d 705 (7th Cir. 2019) ..................................9

McCleskey v. Zant,

499 U.S. 467 (1991) .............................................. 24

McCrory v. Henderson,

82 F.3d 1243 (2d Cir. 1996) ............................. 8, 11

Miller-El v. Cockrell,

537 U.S. 322 (2003) ................................................4

Miller-El v. Dretke, (Miller-El II),

545 U.S. 231 (2005) ........................................ 12, 13

vi

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) .............................................. 23

Petrella v. MGM,

572 U.S. 663 (2014) .............................................. 26

Polk v. Dixie Ins. Co.,

972 F.2d 83 (5th Cir. 1992) ....................................8

Ramey v. Lumpkin,

7 F.4th 271 (5th Cir. 2021) .................................. 14

Rice v. Collins,

546 U.S. 333 (2006) ............................................ 4-9

Sharp v. State,

151 So. 3d 342 (Ala. Crim. App. 2010) ................ 17

Shinn v. Ramirez,

596 U.S. 366 (2022) ........................................ 13, 21

Sigler v. Parker,

396 U.S. 482 (1970) .............................................. 23

Snyder v. Louisiana,

552 U.S. 472 (2008) ................................ 4, 8, 10, 12

State v. Aziakanou,

498 P.3d 391 (Utah 2021 ..................................... 19

State v. Brown,

498 P.3d 167 (Kan. 2021) ..................................... 18

State v. Clark,

280 S.W.3d 625 (Mo. Ct. App. 2008) ................... 18

State v. Harris,

289 P.3d 591 (Utah 2012) ................................ 6, 18

vii

State v. Johnson,

295 So. 3d 710 (Fla. 2020) ................................... 17

State v. King,

735 A.2d 267 (Conn. 1999) ................................... 14

State v. Taylor,

944 S.W.2d 925 (Mo. 1997) .................................. 18

Stone v. Powell,

428 U.S. 465 (1976) .............................................. 24

Thomas v. State,

517 So. 2d 1285 (Miss. 1987) .................................8

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ........................................ 22, 23

United States v. Adams,

996 F.3d 514 (8th Cir. 2021) ................................ 16

United States v. Annigoni,

96 F.3d 1132 (9th Cir. 1996) ............................ 9, 10

United States v. Brown,

809 F.3d 371 (7th Cir. 2016) ................................ 16

United States v. Folk,

754 F.3d 905 (11th Cir. 2014) .............................. 20

United States v. Gooch,

665 F.3d 1318 (D.C. Cir. 2012) ............................ 16

United States v. Houston,

456 F.3d 1328 (11th Cir. 2006) ............................ 20

United States v. Jackson,

347 F.3d 598 (6th Cir. 2003) .......................... 15-16

viii

United States v. Joe,

928 F.2d 99 (4th Cir. 1991) ........................ 7, 10, 15

United States v. Lovies,

16 F.4th 493 (7th Cir. 2021) ................................ 16

United States v. McAllister,

693 F.3d 572 (6th Cir. 2012) ................................ 15

United States v. Prather,

279 F. App’x 761 (11th Cir. 2008)........................ 19

United States v. Rudas,

905 F.2d 38 (2nd Cir. 1990) ................................. 14

United States v. Scott,

26 F.3d 1458 (8th Cir. 1994) ................................ 16

United States v. Wiley,

93 F.4th 619 (4th Cir. 2024) ................................ 15

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ................................................5

Wainwright v. Sykes,

433 U.S. 72 (1977) ................................................ 24

Waller v. Georgia,

467 U.S. 39 (1984) .......................................... 20, 23

Whatley v. State,

146 So. 3d 437 (Ala. Crim. App. 2010) ..................7

Wiscart v. D’Auchy,

3 U.S. (3 Dall.) 321 (1796) ................................... 12

Wright v. State,

708 S.W.3d 888 (Mo. Ct. App. 2025) ................... 18

ix

Statutes

28 U.S.C. § 2241(a) .................................................... 25

28 U.S.C. § 2243 ............................................ 21, 25, 27

28 U.S.C. § 2254(d) ......................................................1

28 U.S.C. §2254(d)(1) ................................ 4, 10, 13, 20

28 U.S.C. § 2254(d)(2) ................................... 12, 13, 20

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA).............................. 2, 4, 21, 24

Other Authorities

1 J. Story, Commentaries on Equity Jurisprudence,

(4th ed. 1846).................................................. 25, 26

4 W. Blackstone, Commentaries on the Laws of

England (1769) .......................................................6

C. St. Germain, 1 The Doctor and Student (1518) ... 26

H. Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments,

38 U. Chi. L. Rev. 142 (1970)............................... 27

T. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative

Power of the States of the American Union

(1st ed. 1868) ........................................................ 13

1

INTEREST OF AMICI STATES

The States of Alabama, Alaska, Arkansas, Idaho,

Indiana, Iowa, Florida, Kansas, Louisiana, Montana,

Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee,

Texas, and West Virginia submit this brief in support

of Respondents.

Amici States have strong interests in the administration of criminal justice, the finality of their statecourt convictions, and the proper application of 28

U.S.C. § 2254(d). In our federal system, state courts

are trusted to identify and correct violations of a defendant’s federal rights. States facilitate their review

with varying procedures, which are presumptively

proper. Far from an outlier or an attempt to thwart

Petitioner’s rights, the waiver ruling challenged here

reflects a common mechanism for implementing Batson v. Kentucky, 476 U.S. 79 (1986). Because a Batson

claim turns on credibility determinations not easily

second-guessed on appeal, state and federal courts

have developed preservation doctrines that encourage

full litigation at trial. Those rules fall comfortably

within the discretion Batson left to the lower courts

for enforcing equal protection in jury selection. Amici

States have a vital interest in their continuing authority to adopt sensible procedural rules like the one at

issue here.

2

SUMMARY OF ARGUMENT

I. When reviewing a Batson challenge to the use of

peremptory strikes, the “credibility of the prosecutor’s

explanation goes to the heart of the equal protection

analysis, and once that has been settled, there seems

nothing left to review.” Hernandez v. New York, 500

U.S. 352, 367 (1991) (plurality). Because evaluating

“demeanor and credibility lies peculiarly within a trial

judge’s province,” id. at 365, appellate courts should

sustain a trial court’s ruling “in the absence of exceptional circumstances,” Davis v. Ayala, 576 U.S. 257,

274 (2015). Given this framework, it makes perfect

sense that many state and federal courts have

adopted waiver rules like Mississippi’s. These rules

encourage claims of purposeful discrimination to be

brought and developed before the decision-maker best

situated to identify and correct discrimination. Petitioner’s anti-waiver rule, by contrast, would encourage sandbagging, prejudice the prosecution, and force

appellate courts to make an all-or-nothing choice

years after the error could have been corrected. Some

jurisdictions may choose to hear new Batson arguments on appeal, but nothing in Batson or its progeny

suggests that course is required or even desirable.

II. Petitioner argues that if his claim survives

AEDPA’s relitigation bar, this Court should order that

he “be released” because “Batson is an ‘automatic reversal precedent.’” Pet. Br. 50-51. But habeas relief is

an exercise of equitable discretion, never “automatic.”

The Court should also reject the suggestion of Petitioner’s amici that equity means “mercy” and weighs

“in only one direction” “to the advantage of prisoners.”

Scholars Br. 7, 10, No. 24-7351 (Feb. 4, 2026).

3

ARGUMENT

I. Waiver Rules Recognize and Preserve the

Singular Role of the Trial Judge to Enforce

Batson v. Kentucky.

In Batson v. Kentucky, the Court interpreted the

Equal Protection Clause to prohibit “purposeful

discrimination” in the use of peremptory strikes. 476

U.S. 79, 98 (1986). Whether a prosecutor exercised

strikes with an illicit intent is a question of pure “fact”

that “largely will turn on evaluation of credibility.” Id.

at 98 n.21. “There will seldom be much evidence bearing on that issue, and the best evidence often will be

the demeanor of the attorney[.]” Hernandez v. New

York, 500 U.S. 352, 364-65 (1991) (plurality). Thus,

“the job of enforcing Batson” must “rest[ ] first and

foremost with trial judges.” Flowers v. Mississippi,

588 U.S. 284, 302 (2019). In turn, the job of the defendant must be “to present … evidence to support

[the] claim” to the person with “primary responsibility” to decide it. Id. at 301-02.

A regime that permits piecemeal Batson claims,

i.e., claims raised partly at trial and partly on appeal,

is strictly inferior to one that promotes complete

preservation. If the defendant withholds evidence or

arguments at trial, there will never be an opportunity

to weigh them alongside “the best evidence.” The only

decision-maker who has that evidence, the trial judge,

is deprived of “the totality of the relevant facts,” Hernandez, 500 U.S. at 363, and what the appeals court

gains from the defendant’s belated development of his

claim cannot substitute for firsthand observations of

the prosecutor and the potential juror. To be sure, appellate courts can hear piecemeal claims, but it

4

doesn’t follow that they “must.” Resp. Br. 29; contra

Pet. Br. 41-44. And there’s nothing in the Constitution

or the doctrine to commend a system that promotes

piecemeal claims, rather than encouraging the fullest

presentation possible when the claim arises at trial.

Accordingly, many state and federal jurisdictions

have adopted sensible preservation rules. These rules

fall well within the realm of discretion accorded to

lower courts for implementing Batson, 476 U.S. at 99

& n.24, and certainly within the realm of reasonability needed to satisfy AEDPA, 28 U.S.C. §2254(d)(1).

A. Batson Entrusts Trial Judges with the

Task of Identifying Racial Discrimination.

Analysis of Mississippi’s waiver rule should be

guided by the central role Batson and its progeny have

assigned to the trial judge. From the doctrine’s inception, this Court has had “confidence that trial judges,

experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s

use of peremptory challenges creates a prima facie

case of discrimination.” Batson, 476 U.S. at 97; see

also id. at 99 n.22 (similar). And in virtually every one

of its Batson cases, the Court has reaffirmed the

“peculiar[ ] … province” of the trial judge. See, e.g.,

Davis v. Ayala, 576 U.S. 257, 273-74 (2015); Felkner v.

Jackson, 562 U.S. 594, 598 (2011); Snyder v. Louisiana, 552 U.S. 472, 477 (2008); Rice v. Collins, 546 U.S.

333, 338-39 (2006); id. at 343-44 (Breyer, J., concurring); Miller-El v. Cockrell, 537 U.S. 322, 338-41

(2003). This aspect of the doctrine flows from the

nature of the claim, the differing strengths of trial and

appellate courts, and the high price of retrial, years

5

later, for an error that could have been corrected on

the first day of trial.

1. Very few constitutional claims require the court

to probe “the prosecutor’s state of mind.” Hernandez,

500 U.S. at 365. And unlike Brady or Napue claims,

which often seek to prove the prosecutor’s knowledge

by “inference,” e.g., Glossip v. Oklahoma, 604 U.S.

226, 248 (2025), the three-step Batson procedure

forces the prosecutor to “articulate” a “‘clear and reasonably specific’ explanation’” of his or her actual

motive for a challenged strike, 476 U.S. at 98 & n.20.

This feature distinguishes Batson even from other

claims of racial discrimination because “direct evidence of intent” (whether lawful or not) should always

be “available” by conducting step two at trial. Cf. Vill.

of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 266 (1977). Batson is therefore unique in

making one person produce the “best evidence” on the

spot and then reducing the “decisive question” to

whether that person “should be believed,” Hernandez,

500 U.S. at 365; see Flowers, 588 U.S. at 298 (“The

trial judge must determine whether the prosecutor’s

stated reasons were [his or her] actual reasons[.]”);

Ayala, 576 U.S. at 271; Collins, 546 U.S. at 341 (asking whether “a reasonable factfinder must conclude

the prosecutor lied”).

Because “the heart” of Batson is the prosecutor’s

“credibility,” Hernandez, 500 U.S. at 367, it should be

resolved at trial. “The reasons are structural. The trial

judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere.”

Collins, 546 U.S. at 343 (Breyer, J., concurring); cf.

Amadeo v. Zant, 486 U.S. 214, 223 (1988) (applying

6

more deferential standard to credibility findings than

even clear error). Only the trial judge has “the benefit

of observing the prosecutor firsthand” at the time of

the strike, at the time of its explanation, “over the

course of the proceedings,” id. at 336 (majority), and

“on a daily basis” in some cases, Doster v. State, 72 So.

3d 60, 74 (Ala. Crim. App. 2010). The judge can watch

“facial expressions or body language,” listen for “hesitation,” State v. Harris, 289 P.3d 591, 597 & n.10

(Utah 2012), and assess, “in a borderline case,”

whether any “hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision,” Collins, 546 U.S. at

343 (Breyer, J., concurring). Appeals courts “cannot

on the basis of a cold record easily second-guess” these

observations, so they “defer.” Ayala, 576 U.S. at 274.

The trial judge occupies an even more privileged

position when a strike rests on a “fine judgment call,”

such as “a comparison of [juror] responses that differ

in only nuanced respects” or “a sensitive assessment

of jurors’ demeanor.” Id. at 273. A prosecutor’s reasons

will “often invoke a juror’s demeanor,” and the trial

judge is “best situated”—indeed, singularly situated—

to confirm that the juror’s demeanor matched the

prosecutor’s description. Id. at 273-74. Especially

when attorneys strike a juror based on “instinct,” id.—

as they have for centuries, see 4 W. Blackstone,

Commentaries on the Laws of England *346-47 (1769)

(citing “impressions” created by “bare looks and gestures” as valid grounds for a challenge “even without

being able to assign a reason for such [ ] dislike”)—

only the trial judge can come close to seeing what may

be “invisible even to the [lawyer],” Collins, 546 U.S. at

343 (Breyer, J., concurring).

7

Accordingly, many of this Court’s Batson decisions

have rested on the defendant’s inability to overcome

the deference owed to the trial judge’s credibility

determination. See, e.g., Ayala, 578 U.S. at 271-85;

Jackson, 562 U.S. at 598; Collins, 546 U.S. at 339-42;

Hernandez, 500 U.S. at 369-70; see also id. at 372

(O’Connor, J., concurring in judgment). And “once that

has been settled, there seems nothing left to review.”

Hernandez, 500 U.S. at 367.

2. But appellate courts “sometimes” elect to hear

new Batson claims or new arguments and evidence

not considered below. Resp. Br. 29. When they do,

there are two bad options if they cannot otherwise

deny the claim. One is remanding for the trial court to

conduct a Batson hearing, e.g., Whatley v. State, 146

So. 3d 437, 448 (Ala. Crim. App. 2010), or another Batson hearing, e.g., United States v. Joe, 928 F.2d 99,

103-04 (4th Cir. 1991). A remand respects the trial

judge’s “better position” having supervised jury selection, Whatley, 146 So. 3d at 448, and its ability to bring

the striking attorney before it “to judge [his or her]

credibility” and “further explore the validity of the

various arguments the parties may advance,” Joe, 928

F.2d at 104. Accord Johnson v. California, 545 U.S.

162, 172 (2005) (counseling “against engaging in needless and imperfect speculation when a direct answer

can be obtained by asking a simple question”).

But a remand adds delay, and “essentially requires

reconstructing the entire voir dire, something that

will be extremely difficult even if undertaken soon after the close of trial.” Cf. Batson, 476 U.S. at 132-33

(Burger, C.J., dissenting). In many cases, it might be

“impossible for the prosecutor … to recall” the reasons

8

for a strike, id. at 133 n.12, let alone the “nuanced”

differences among members of the venire, Ayala, 576

U.S. at 274. See Thomas v. State, 517 So. 2d 1285,

1287-88 (Miss. 1987). A belated hearing can force the

court to decide a Batson claim based on “nothing beyond ‘I do not remember’” from the prosecutor. Polk v.

Dixie Ins. Co., 972 F.2d 83, 85 (5th Cir. 1992) (describing Harrison v. Ryan, 909 F.2d 84, 87 (3d Cir. 1990)).

That courts reach divergent results in such cases, see

id. at 85-86, is as unsurprising as it is unfortunate, for

the “unfair prejudice to the prosecution” is “severe,”

McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir.

1996); cf. Snyder, 552 U.S. at 472 (no “possibility” of

“profitabl[e] … remand at this late date, more than a

decade after petitioner’s trial”).

A second bad option is for an appellate court to conduct its own review of the step-three circumstances

now raised together for the first time. It is “difficult[ ]”

even to “understand[ ] the nature of [this] review.” Cf.

Hernandez, 500 U.S. at 367. The court must ask

whether a trial judge clearly erred in failing to consider facts not brought to the judge’s attention. Then

it must accord strong deference to the trial judge’s

credibility finding—again, despite that the finding did

not consider the material raised on appeal. Trying to

square the circle, an appellate court might imagine

what the trial court would have found had it been presented with everything argued on appeal. But that

counterfactual question, for the “structural” reasons

described above, Collins, 546 U.S. at 343 (Breyer, J.,

concurring), is essentially impossible to answer.

The trial judge in Ayala, for example, had a “somewhat different” impression from that of the prosecutor

9

but ultimately agreed that a prospective juror seemed

“nervous.” 576 U.S. at 285. How can courts possibly

weigh new circumstances raised on appeal against

that “subjective impression”? Id. Or take Collins,

where the trial judge was willing to give the D.A. “the

benefit of the doubt” without having seen a juror

“roll[ ] her eyes in response to a question.” 546 U.S. at

336-37. It is hard to see how an appellate court, without “observing the prosecutor firsthand,” id., could

possibly infer “the prosecutor lied,” id. at 341. It has

“no way to know whether the attorneys were credible.”

Lisle v. Welborn, 933 F.3d 705, 715 (7th Cir. 2019).

When a Batson claim is not fully ventilated until

appeal, the court’s task is even more difficult and speculative than usual, for the appeals court isn’t even

considering “the same factors as the trial judge.” Flowers, 588 U.S. at 303. In theory, a reviewing court could

see new and “extraordinarily powerful circumstantial

evidence” that “betray[s] the [prosecutor’s] aim,” cf.

Alexander v. NAACP, 602 U.S. 1, 35 (2024), but “in the

absence of exceptional circumstances,” there can be no

“basis” to “second-guess,” Ayala, 576 U.S. at 274.

In addition to the inherent difficulty in answering

counterfactuals about credibility on a cold record,

review of Batson claims on direct appeal has the downside of forcing an “all-or-nothing” choice. United States

v. Annigoni, 96 F.3d 1132, 1150 (9th Cir. 1996) (en

banc) (Kozinski, J., dissenting). Because the trial

court “is no longer in a position to cure the violation

during the jury selection process …. [t]he sole remedy

remaining is the grant of a new trial, relief that requires an additional and unnecessary expenditure of

judicial and litigant resources since a new trial could

10

have been avoided by a timely decision.” Joe, 928 F.2d

at 103; accord Annigoni, 96 F.3d at 1150 (Kozinski, J.,

dissenting) (“We do not help the noble cause of peremptory challenges by making every error in this delicate process fatal.”). The purpose of Batson’s “threestep process” is to “encourage[ ] ‘prompt rulings on objections to peremptory challenges without substantial

disruption of the jury selection process.’” Johnson, 545

at 172-73. Retrial is both expensive and substantially

disruptive.

B. Waiver Rules Properly Channel Claims to

the Court Best Situated to Decide Them.

1. By adopting the three-step process and applying

a deferential standard of review, Batson and its progeny assigned the “pivotal role” to trial courts. Snyder,

552 U.S. at 477. In the forty years since Batson, state

and federal jurisdictions have “formulate[d]” more

procedures, Batson, 476 U.S. at 99, to facilitate that

assignment. Among these are rules that govern the

timeliness of a Batson challenge. “The appropriateness in general of looking to local rules for the law governing the timeliness of a constitutional claim is, of

course, clear. … Undoubtedly, [a State] can adopt a

general rule that a Batson claim is untimely if it is

raised for the first time on appeal, or after the jury is

sworn, or before its members are selected.” Ford v.

Georgia, 498 U.S. 411, 423 (1991). If States can deny

a Batson claim not preserved at trial, it follows that

they can also refuse to hear arguments “never mentioned” below. Pet. Br. 41. It’s certainly never been

“clearly established federal law” that waiver rules like

Mississippi’s are unconstitutional. See Resp. Br. 24-28

(discussing § 2254(d)(1)).

11

Far from clearly proscribed by Batson, waiver rules

vindicate Batson by directing claims to the decisionmaker with the best ability to evaluate them. Supra

§ I.A. If a defendant has a meritorious claim, there’s

no legitimate reason for him to sandbag the trial

court. If the claim is unmeritorious, then courts refusing the tactic of developing it piecemeal on appeal

works no prejudice against the defendant; it does,

however, spare potentially severe prejudice to the

prosecution, cf. McCrory, 82 F.3d at 1251.

Petitioner offers a few examples of courts electing

to allow new step-three arguments on appeal, but he

has no serious argument for why they should. In a single paragraph, he speculates that defense counsel lack

the “opportunity” to raise “granular comparisons” during jury selection. Pet. Br. 45-46. Aside from lacking

any support in precedent, this argument proves too

much: If Batson claims cannot “realistic[ally]” be completed at trial, id., then the trial judge’s credibility

findings are necessarily incomplete too. Endorsing

that proposition would strike at the heart of the deference owed to trial judges. Behind the reluctance to

“second-guess” a credibility finding is the assumption

that the trial judge is “best situated.” 576 U.S. at

273-74. But Petitioner implies almost the opposite—

that the trial judge is never well situated to evaluate

one of the primary “variet[ies] of evidence” in Batson

cases. Flowers, 588 U.S. at 301-02. In effect, the antiwaiver rule would license relitigation of every Batson

claim on appeal, and it would seemingly justify appellate review without the usual dose of deference. The

Court should not create new incentives for defendants

to sandbag, which is antithetical to all the structural

reasons that Batson claims must be resolved at trial.

12

It would also ill fit the absence of a constitutional right

to appeal, e.g., Davila v. Davis, 582 U.S. 521, 529

(2017), if the Court held that criminal defendants

must be allowed to raise new arguments on appeal. Cf.

Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321, 329 (1796)

(opinion of Elsworth, C.J.) (“[J]ustice is satisfied” by

“one opportunity for the trial of all parts of his case.”).

2. Petitioner tries to derive an anti-waiver rule

from two cases: Snyder v. Louisiana and Miller-El v.

Dretke, 545 U.S. 231 (2005) (Miller-El II). Pet. Br. 4144. Neither decision even purported to address “the

local power to set procedure.” Ford, 498 U.S. at 423.

Snyder focused on the prosecutor’s “highly speculative,” “suspicious,” and ultimately “implausib[le]” and

“pretextual” reasons for striking a single prospective

juror. 552 U.S. at 482, 483, 485. And if anything, the

Snyder Court reaffirmed the importance of airing

step-three arguments at trial—taking pains to explain

that the Court’s juror comparison (1) rested on an attribute that had been “thoroughly explored by the trial

court,” (2) had been addressed by the state high court,

and (3) was not “procedurally defaulted.” Id. at 484 &

n.2; contra Pet. Br. 42 (suggesting that Snyder

adopted a constitutional rule that arguments “evident

on the face of the record” need not be preserved).

Nor did Miller-El II establish a constitutional rule

that any and all “theories about th[e] evidence” can be

withheld until appeal. Pet Br. 43 (quoting 545 U.S. at

241 n.2). Mississippi is exactly right that Miller-El II

was a § 2254(d)(2) case, so the Court’s holding rested

on the facts—not on any procedural rule purportedly

required by Batson. And while the majority rejected

the dissent’s complaint that some of the facts relied

13

upon were not “before the Texas courts,” it did so by

(1) interpreting § 2254(d)(2), not Batson or the Constitution; (2) insisting that the key “evidence … on which

we base our result[ ] was before the state courts”; and

(3) sowing doubt “about what was [or was not] before

the state courts.” 545 U.S. at 241 n.2. To the extent

the Miller-El II Court reached any legal conclusion—

rather than a factual one about what was in the record—it did not adopt a new anti-waiver rule but

merely rejected § 2254(d)(2) as a bar to its consideration of certain evidence. That footnote in Miller-El II

probably does not hold up in light of cases like Cullen

v. Pinholster, 563 U.S. 170, 182 (2011), and Shinn v.

Ramirez, 596 U.S. 366, 388-89 (2022), but it’s neither

here nor there for the question presented—whether

the Mississippi court was clearly bound by federal law

to ignore its waiver rule. Without a case from this

Court on all fours with this one, Petitioner cannot succeed under § 2254(d)(1).

C. Reversal Would Disturb the Sensible

Waiver Rules of Numerous Jurisdictions.

Mississippi’s waiver rule is not a “[n]ovelty.” Ford,

498 U.S. at 423. It is a bedrock rule of procedure that

“an irregularity may be waived.” T. Cooley, A Treatise

on the Constitutional Limitations Which Rest Upon

the Legislative Power of the States of the American

Union 409 (1st ed. 1868). Accordingly, many jurisdictions have applied general waiver principles to Batson

claims, encouraging defendants to develop claims of

purposeful discrimination in the trial court. In some

jurisdictions, a Batson claim that is not completed at

trial is waived; its denial cannot be appealed. In others, failure to rebut the prosecutor’s proffered reasons

14

for a strike precludes raising that rebuttal on appeal.

Even in jurisdictions that will consider a Batson challenge for the first time on appeal, a defendant’s failure

to rebut the prosecutor’s motives is considered a failure to satisfy the defendant’s ultimate burden. Courts

have no general duty to scour the record for arguments supporting the defendant’s claim. See JA72829 (citing Ramey v. Lumpkin, 7 F.4th 271, 280 (5th

Cir. 2021); Chamberlin v. Fisher, 885 F.3d 832, 838

(5th Cir. 2018) (en banc)).

Amici States do not exalt one approach to waiver

in the Batson context because this Court has left it to

lower state and federal courts to “formulate particular

procedures.” Batson, 476 U.S. at 99; id. at 99 & n.24

(declining “to instruct [ ] courts how best to implement” Batson). If the Court endorses Petitioner’s antiwaiver rule, it will upend the settled rules of many jurisdictions that have relied on Batson’s leeway to

make the doctrine a workable tool for both trial and

appellate courts. For example:

Second Circuit. The Second Circuit requires that

federal defendants “expressly indicate” a continuing

objection once the government offers reasons for its

peremptory challenges. United States v. Rudas, 905

F.2d 38, 41 (2nd Cir. 1990); see also State v. King, 735

A.2d 267, 281 (Conn. 1999) (citing Rudas) (failure to

“advance[ ] reasons that are salient to a showing of

pretext … may be treated as acquiescence”). The “failure to make any response” at step three—after the

government explains its strikes—“indicate[s] to the

court that [the defendant] no longer dispute[s]” them.

Rudas, 905 F.2d at 41. In Garraway v. Phillips, for

example, the trial court agreed the defendant had

15

made a prima facie case under Batson and required

the prosecution to offer race-neutral reasons. 591 F.3d

72, 73 (2nd Cir. 2010). When the prosecution failed to

proffer an explanation for one of the strikes, the defendant neither objected nor brought it to the court’s

attention. Id. at 74. “[B]y failing to advise the prosecutor or the court that explanations were offered as to

fewer than all of several challenged strikes,” the defendant forfeited his Batson claim. Id. at 76. In order

to create a record on which courts can rule, the defendant must continue “to press the objection.” Id.

Fourth Circuit. In the Fourth Circuit, “once a

neutral explanation is presented, the complaining

party must prove purposeful discrimination.” Davis v.

Baltimore Gas & Elec. Co., 160 F.3d 1023, 1026 (4th

Cir. 1998) (emphasis added). The rule stems from the

Fourth Circuit’s recognition that an appellate court is

poorly suited to review Batson claims on a cold record.

Joe, 928 F.2d at 103-04. Accordingly, “the movant’s

failure to argue pretext constitutes a waiver of his initial objection.” Davis, 160 F.3d at 1027. A defendant

in the Fourth Circuit cannot stand “mute” after opposing counsel asserts race-neutral reasons and then find

his voice on appeal. Id; see also United States v. Wiley,

93 F.4th 619, 629 n.3 (4th Cir. 2024) (“Wiley didn’t

make this [pretext] argument at trial, which likely

means he forfeited it.”).

Sixth Circuit. Likewise, the Sixth Circuit applies

a burden-shifting framework such that “once the proponent of the peremptory strike proffers a race-neutral explanation, the opposing party has the burden to

rebut those reasons for the record.” United States v.

McAllister, 693 F.3d 572 (6th Cir. 2012) (citing United

16

States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003)).

Thus, some step-three argument, or at least a continuing objection, is required to preserve rebuttal arguments on appeal. Jackson, 347 F.3d at 605.

Seventh Circuit. The Seventh Circuit stresses

that an appellate court can only conduct a meaningful

review when the record is complete. United States v.

Lovies, 16 F.4th 493, 502 (7th Cir. 2021) (“Lovies forfeited these juror-comparison arguments by not presenting them to the district court.”). “During jury selection, ‘it is the defendant’s burden to raise specific

arguments that the government’s justification for a

peremptory strike was pretextual so that the court

can properly address them.’” Id. (quoting United

States v. Brown, 809 F.3d 371, 374 (7th Cir. 2016)).

The defendant must raise specific challenges in the

trial court; otherwise, “the appellate court ‘loses the

benefit’ of the trial judge’s firsthand evaluation of

[the] jurors.” Lovies, 16 F.4th at 502 (quoting United

States v. Gooch, 665 F.3d 1318, 1331 (D.C. Cir. 2012)).

Eighth Circuit. If a defendant fails to renew a

Batson challenge after the prosecutor offers race-neutral reasons, the Eighth Circuit treats the issue as forfeited and reviews only for plain error. United States

v. Adams, 996 F.3d 514, 520 (8th Cir. 2021) (citing

Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir.

1992)). In United States v. Scott, a defendant’s “‘failure to follow up on his Batson objection could have

been reasonably construed by the trial judge as an

agreement that the expressed reasons were racially

neutral.’” 26 F.3d 1458, 1466 (8th Cir. 1994) (quoting

Hopson, 961 F.2d at 1378).

17

Alabama. Once the State provides race-neutral

reasons for a strike, the burden shifts to the defendant

“to make a showing that those reasons were a sham or

pretextual.” Knight v. State, 300 So. 3d 76, 98 (Ala.

Crim. App. 2018). If defense counsel “made no such

showing” at trial, and “pretext[ ] [is] being raised for

the first time on appeal,” the record will not support

the claim. Id. The absence of a trial record cuts

against the defendant because he “maintains at all

times … the ultimate burden of proving intentional

discrimination,” Sharp v. State, 151 So. 3d 342, 360

(Ala. Crim. App. 2010).1

Florida. In Florida, a defendant “cannot simply sit

silent—failing to respond to a proffered facially raceneutral reason and failing to object as to why the trial

court should not accept that explanation—yet challenge that reason as a pretext for discrimination and

the trial court’s ruling as insufficient for the first time

on appeal.” State v. Johnson, 295 So. 3d 710, 716 (Fla.

2020). Because a court has no independent duty “to

create a record of otherwise unpreserved error,” id. at

715, the defendant must raise “a reason to doubt the

genuineness of the State’s proffered race-neutral reasons for a strike, for it is the genuineness of the reason

1 For many years, Alabama courts entertained new Batson

claims on appeal in capital cases, but reversed course after

judges repeatedly “questioned the propriety” of this practice.

Henderson v. State, 2024 WL 1946585, at *31 (Ala. Crim. App.

May 3, 2024); see, e.g., Ex parte Floyd, 190 So. 3d 972, 979, 980,

982 (Ala. 2012) (Murdock, J., concurring in the result) (reasoning, inter alia, that Batson did not require appellate review of

new claims, that an “accurate record” is “crucial on appeal,” and

that waiver rules “deter[ ] ‘sandbagging’”).

18

upon which the trial court must rule.” Gordon v. State,

350 So. 3d 25, 34 (Fla. 2022).

Kansas. Kansas courts reject a “duty to investigate

… sua sponte” factors that may support a Batson

claim. State v. Brown, 498 P.3d 167, 176 (Kan. 2021).

The defendant has the burden to create the record

needed to prove his claim, which comes with the duty

“to draw the [trial] court’s attention to any relevant

evidence of pretext and purposeful racial discrimination.” Id. Accordingly, Kansas courts will not credit

Batson arguments raised on appeal where “no further

evidence of purposeful discrimination” was “presented

… to the district court.” Id. at 177.

Missouri. Appellate courts in Missouri will not

consider grounds for Batson challenges that were not

raised in the trial court. Wright v. State, 708 S.W.3d

888, 897 (Mo. Ct. App. 2025). The rule covers new

step-three arguments purporting to show pretext.

State v. Clark, 280 S.W.3d 625, 630-31 (Mo. Ct. App.

2008). “A defendant’s failure to challenge the State’s

race-neutral explanation in any way waives any future complaint that the State’s reasons were racially

motivated, and leaves nothing for this Court to review.” State v. Taylor, 944 S.W.2d 925, 934 (Mo. 1997).

Utah. Batson claims in Utah are subject to a strict

time bar and an absolute duty on the party objecting

to bring evidence of purposeful discrimination to the

trial court. State v. Harris, 289 P.3d 591, 595 (Utah

2012). The Utah Supreme Court has recognized that

“[i]t is not enough [ ] for a party to raise a Batson challenge and expect opposing counsel and the court to

complete the heavy lifting.” Id. Because Batson claims

should be resolved “while the iron is hot,” the

19

obligation to press the issue is imposed on the moving

party and the failure to do so constitutes waiver. State

v. Aziakanou, 498 P.3d 391, 405 (Utah 2021).

Virginia. In Buck v. Commonwealth, a defendant

argued pretext for the first time on appeal with new

juror comparisons. 443 S.E.2d 414, 415-16 (Va. 1994).

The Supreme Court of Virginia held that those arguments were waived because Batson assigns “the defense [ ] the burden,” and a trial court has no duty “to

seek out and evaluate information or evidence not utilized by either party.” Id. In “the absence of defense

counsel’s identification of a false or pretextual reason

for peremptory strikes,” the trial court does not err in

denying a claim of purposeful discrimination. Id.

*

*

*

Each of these jurisdictions has adopted some form

of a waiver rule like Mississippi’s. Each of these

regimes would need to be re-evaluated if the Court

adopts the position that new step-three arguments

can be raised for the first time on appeal.

Even those jurisdictions without strict waiver

rules could be affected if Batson’s step three becomes

a searching inquiry for the court in which “all” possible

circumstances “must be consulted,” Pet. Br. 47. In the

Ninth Circuit, for example, a defendant who does not

technically waive his step-three arguments may still

fail to carry his “ultimate burden” if the trial court

lacked “information … at the time” of trial.” Boyde v.

Brown, 404 F.3d 1159, 1171 (9th Cir. 2005). Likewise,

in the Eleventh Circuit, appellants do not meet their

burden at step three in “the absence of any additional

argument or evidence.” United States v. Prather, 279

F. App’x 761, 767 (11th Cir. 2008); see, e.g., United

20

States v. Folk, 754 F.3d 905, 914-15 (11th Cir. 2014);

United States v. Houston, 456 F.3d 1328, 1338 (11th

Cir. 2006) (requiring juror comparison to have been

“brought to the attention of the court” for further “explanation” from the prosecutor and “a finding by the

trial judge”). Several States apply similar rules, focusing on the defendant’s burden “to put the court on notice” of his rebuttal or pretext arguments in order to

develop the record. See, e.g., Adair v. State, 336

S.W.3d 680, 689 & n.6 (Tex. App. 2010); Johnson v.

State, 68 S.W.3d 644, 649 (Tex. App. 2002). Whether

characterized as waiver rules or not, these rules would

also be threatened by a suggestion of a constitutional

duty to hear new step-three arguments on appeal.

II. If Petitioner Succeeds, the Remedy Would

Not Be “Automatic” Release or Retrial.

Petitioner urges that if he’s satisfied “subsection

(d)(1) or (d)(2),” he must “be released or tried” because

Batson is an “‘automatic reversal precedent[].’” Pet.

Br. 50-51. The amicus brief of two academics reaches

the same result by a different path, asserting that

courts are “required … to discharge prisoners” upon

finding a violation of federal law because equity flows

“in only one direction: toward mitigation.” Scholars

Br. 3, 10, No. 24-7351 (Feb. 4, 2026); id. at 20 (asserting “obligat[ion] to order the prisoner’s release”).

Both arguments are foreclosed by precedent, and

Mississippi is correct (at 3, 42-43) that if Petitioner

succeeds, ordering his release or retrial would not be

“appropriate to the violation.” Waller v. Georgia, 467

U.S. 39, 50 (1984).

A. Petitioner conflates the usual Batson remedy on

direct appeal with the remedial analysis in habeas. A

21

habeas petitioner—even one who “overcomes all of

th[e] limits” of AEDPA and all of the limits this Court

“ha[s] prescribed”—is “never entitled to habeas relief,”

let alone vacatur of his conviction. Shinn v. Ramirez,

596 U.S. 366, 377 (2022). He “must still ‘persuade a

federal habeas court that law and justice require [the

requested relief].’” Id. (quoting Brown v. Davenport,

596 U.S. 118, 134 (2022)). This burden flows from both

the text of 28 U.S.C. § 2243 and “the equitable discretion traditionally invested in federal courts by preexisting habeas statutes.” Davenport, 596 U.S. at 134.

Insisting that retrial would be “the only just and

equitable result,” Petitioner relies primarily on Batson decisions arising on direct appeal. Pet. Br. 51. But

“undoing a final state-court judgment” is “different in

kind from providing relief on direct appeal.” Davenport, 596 U.S. at 133. Granting the writ for a state

prisoner is an “extraordinary remedy.” Id. An order on

appeal from a conviction obtained in a court of the

United States is not. Relief on collateral review is

“reserved for only ‘extreme malfunctions in the state

criminal justice system.’” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1992)). Reversal on direct review is not.

Eliding these basic distinctions, Petitioner notes

“the judicial obligation” to enforce Batson. Pet. Br. 52.

To be sure, the goal of “eliminat[ing] the taint of racial

discrimination” in jury selection is important. Id. But

all constitutional rights are important, and there is no

special class of claims that demand “automatic” relief

in habeas. AEDPA itself reflects the judgment that

not all constitutional violations must be corrected;

only a result so egregiously wrong as to be beyond

22

fairminded disagreement is open to collateral attack.

Harrington v. Richter, 562 U.S. 86, 103 (2011). “Faithful application of those standards sometimes puts federal district courts and courts of appeals in the disagreeable position of having to deny relief in cases they

would have analyzed differently if they had been in

the shoes of the relevant state court.” Klein v. Martin,

No. 25-51, 2026 WL 189976, at *1 (U.S. Jan. 26, 2026)

(per curiam); see also Cavazos v. Smith, 565 U.S. 1, 2

(2011) (per curiam) (“[J]udges will sometimes encounter convictions that they believe to be mistaken, but

that they must nevertheless uphold.”). Consequently,

there’s nothing novel about “this idea” (Scholars Br. 2)

that habeas petitioners, unlike some appellants, must

prove more than the existence of a trial error. See

Ramirez, 596 U.S. at 377; Davenport, 596 U.S. at

133-34; Edwards v. Vannoy, 593 U.S. 255, 289 (2021)

(Gorsuch, J., concurring); Hurst v. Adams, No. 4:24cv-1666, 2025 WL 3718303, at *3-4 & n.1 (E.D. Mo.

Dec. 23, 2025).

B. In response to Petitioner’s plea for “automatic

reversal,” Pet. Br. 50-52, Mississippi offers an alternative, Resp. Br. 42-43. Contra Scholars Br. 5-6 (asserting the absence of “adversarial presentation” as to

the “claimant’s entitlement to remedies”). If Petitioner succeeds, the Court may instruct the issuance

of a conditional writ “allowing the state supreme court

to reassess petitioner’s Batson claim in light of his rebuttal arguments.” Resp. Br. 43-42. Rather than a

redo of his trial, the State could afford Petitioner a

redo of his appeal. In equity, just because a court “can

award” certain relief “is not to say that it should.” Cf.

Trump v. CASA, Inc., 606 U.S. 831, 853-54 (2025); Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (noting

23

“broad discretion in conditioning a judgment granting

habeas relief … ‘as law and justice require.’”).

Mississippi’s alternative has much to commend it.

First, a new appeal would be complete relief for the

alleged violation—that the state appellate courts

would not hear Petitioner’s unpreserved arguments—

whereas “a new trial … would be a windfall for the

defendant, and not in the public interest.” Waller, 467

U.S. at 50; see Jackson v. Denno, 378 U.S. 368, 394-96

(1964); Sigler v. Parker, 396 U.S. 482, 484 (1970)

(“permitting a [state] court” “a reasonable time to

make an error-free determination”). Indeed, Batson itself “remand[ed] … for further proceedings” to apply

the proper framework to the defendant’s claim. 476

U.S. at 100. Here, if Petitioner’s complaint is valid and

can be cured by assessing his Batson claim without

the waiver rule, then a new trial would be greater relief “than necessary.” Cf. CASA, 606 U.S. at 852 (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).

Only Mississippi’s proposal is “limited to … the nature

and scope of the constitutional violation.” Lewis v. Casey, 518 U.S. 343, 357 (1996).

Second, a writ conditioned on the State’s right to

rehear Petitioner’s Batson claim would respect the

State’s authority “correct alleged violations of a state

prisoner’s federal rights.” Coleman v. Thompson, 501

U.S. 722, 731 (1992). Comity counsels against extending the federal “intrusion on state sovereignty,” Richter, 562 U.S. at 103, when the state courts are equally

“obliged to enforce federal law” and will “provide any

necessary relief” flowing from this Court’s decree,

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see

Hilton, 481 U.S. at 775 (observing use of conditional

24

writ “to provide the State an opportunity to correct the

constitutional violation”). These “equitable and prudential considerations” have often led the Court “to

adjust the scope of the writ.” Danforth v. Minnesota,

552 U.S. 264, 278 (2008); accord Francis v. Henderson,

425 U.S. 536, 538-42 (1976).

C. Two scholars urge the Court not to decide more

than the AEDPA issue, which would mean ignoring

pages 18-29 and 50-52 of the opening brief. But if the

Court addresses Petitioner’s remedial arguments, the

professors would have the Court reconsider its precedent on the equitable discretion exercised in habeas.

They argue that although equity is “flexible,” it must

be exercised always “in aid of prisoners” and never in

favor of the government. Scholars Br. 8, 12. Equity in

early modern England, they write, was “an exercise of

mercy.” Id. at 8-10.

1. Despite casting this Court’s “recent opinions” as

departures, id. at 2, it is the academics who would rework habeas as we know it. Davenport and Ramirez

did not invent “the idea that federal courts possess equitable discretion to deny habeas relief to otherwise

eligible prisoners.” Id. at 2-3. They simply surveyed

the path tread by Danforth v. Minnesota, 552 U.S. 264

(2008); Brecht v. Abrahamson, 507 U.S. 619 (1993);

McCleskey v. Zant, 499 U.S. 467 (1991); Wainwright

v. Sykes, 433 U.S. 72 (1977); and Stone v. Powell, 428

U.S. 465 (1976)—to name a few. Many of these decisions expressly invoked the history of equity. The doctrines of abuse of the writ and procedural default, for

example, were derived from the defense of unclean

hands. See McCleskey, 499 U.S. at 484-85, 490.

25

The professors make no attempt to reconcile these

longstanding equitable doctrines with their belief that

equity flows “in only one direction.” Scholars Br. 10.

They say that courts lack “discretion to deny habeas

relief to otherwise eligible prisoners,” but this Court

has long recognized the “discretion … to deny relief,”

Fay v. Noia, 372 U.S. 391, 438 (1963), or to “condition[ ]” relief in a way that promotes state interests,

Hilton, 481 U.S. at 775. The issue in Davenport, for

example—whether a prisoner must “satisf[y] both this

Court’s equitable precedents and Congress’s statute,”

596 U.S. at 145—would have been incoherent if equity

could never favor the State; the prisoner could not

have an equitable burden at all.

For similar reasons, the argument from legislative

history (at 15-22) is defeated by this exception: The

scholars admit that the “‘law and justice’ language of

§ 2243 and the word ‘may’ in § 2241(a)” not only allow

courts to deny habeas relief on equitable grounds but

“require” that “lower courts” deny relief (if “this Court”

has prescribed “narrow rules”). Scholars Br. 22.

Courts may apply “harmless error, procedural default,

and retroactivity,” on this view, but any other exercise

of equitable discretion is forbidden. Id. The brief offers

no reason to interpret the statute this way. Its plainly

“permissive rather than mandatory language,” Davenport, 596 U.S. at 128, did not invest courts with

exactly and only the discretion to apply a static set of

“judicially crafted, narrow rules.” Scholars Br. 22.

2. The scholars also fixate on a definition of equity

from early modern England. But equity is not reducible to “mercy.” “In the most general sense,” “Equity …

is founded in natural justice.” 1 J. Story,

26

Commentaries on Equity Jurisprudence § 1 (4th ed.

1846). Blackstone defined equity as “synonymous with

justice,” by which he meant “the true and sound interpretation of the rule.” Id. § 6; cf. Petrella v. MGM, 572

U.S. 663, 688 (2014) (Breyer, J., dissenting) (defining

equity, per Aristotle, as the “correction of law”). Thus,

equity is not only “mitigation,” Scholars Br. 10, but

“correcting, mitigating, or interpreting the law” as

“reason and justice requireth,” 1 J. Story, supra, § 8

(quoting C. St. Germain, 1 The Doctor and Student

(1518), Dialogue 1, ch. 16). The Court’s basic point in

Davenport—that a prisoner bears the burden to persuade a court that “justice require[s]” disturbing his

final state conviction, 596 U.S. at 134—is not out of

step with any of these historic conceptions of equity.

Contra Scholars Br. 2.

When this Court has mentioned “mercy” in the

context of equity, it has referred to the “qualities of

mercy and practicality that have made equity the

instrument for nice adjustment and reconciliation

between the public interest and private needs.” Hecht

Co. v. Bowles, 321 U.S. 321, 329 (1944) (emphasis

added). Mercy might be an equitable factor in some

cases, but that doesn’t make the “exercise of equitable

power … by definition, an exercise of mercy.” Scholars

Br. 10. Rather, the “essence” of equity is the “power …

to mould each decree to the necessities of the particular case.” Hecht Co., 321 U.S. at 329.

It does not follow from the “mercy” argument that

courts lack the equitable authority to deny or restrict

habeas relief. To the contrary, it would make perfect

sense for courts to ask whether a prisoner deserves

mercy—a question the amici do not address. And if in

27

England, “habeas corpus was to be used only ‘to the

general benefit of the people …,’” Scholars Br. 11 (emphasis added), courts may ask whether issuing the

writ would serve the common good—not merely the

interests of a particular prisoner. A natural answer to

these questions is the practice of some jurists to count

the prisoner’s guilt against him in the equitable balance. See, e.g., Crawford v. Cain, 68 F.4th 273, 287

(5th Cir. 2023), vacated, 72 F.4th 109 (5th Cir. 2023);

Hurst, 2025 WL 3718303, at *4-5; Cody v. Mesmer, No.

4:20-cv-857, 2023 WL 6214817, at *4-5 (E.D. Mo. Sept.

25, 2023); Corley v. Blair, No. 4:22-cv-250-SRC, 2023

WL 4261608, at *5 (E.D. Mo. June 29, 2023); see also

Kaufman v. United States, 394 U.S. 217, 233-35 (1969)

(Black J., dissenting); H. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38

U. Chi. L. Rev. 142, 157 n.81 (1970). If “‘to do justice’

means ‘to shield the innocent and punish the guilty,”

Cody, 2023 WL 6214817, at *5, then the prisoner’s

guilt bears directly on the equities and the answer to

what “law and justice require,” 28 U.S.C. § 2243.

CONCLUSION

The Court should affirm.

STATE OF ALABAMA

OFFICE OF THE ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov

Respectfully submitted,

Steve Marshall

Attorney General

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

George L. Muirhead

Jordan Mauldin

Matthew J. Clark

28

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