Foster v. Chatman , 195 L. Ed. 2d 1 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FOSTER v. CHATMAN, WARDEN
CERTIORARI TO THE SUPREME COURT OF GEORGIA
No. 14–8349. Argued November 2, 2015—Decided May 23, 2016
Petitioner Timothy Foster was convicted of capital murder and sen-
tenced to death in a Georgia court. During jury selection at his trial,
the State used peremptory challenges to strike all four black prospec-
tive jurors qualified to serve on the jury. Foster argued that the
State’s use of those strikes was racially motivated, in violation of
Batson v. Kentucky, 476 U. S. 79. The trial court rejected that claim,
and the Georgia Supreme Court affirmed. Foster then renewed his
Batson claim in a state habeas proceeding. While that proceeding
was pending, Foster, through the Georgia Open Records Act, ob-
tained from the State copies of the file used by the prosecution during
his trial. Among other documents, the file contained (1) copies of the
jury venire list on which the names of each black prospective juror
were highlighted in bright green, with a legend indicating that the
highlighting “represents Blacks”; (2) a draft affidavit from an investi-
gator comparing black prospective jurors and concluding, “If it comes
down to having to pick one of the black jurors, [this one] might be
okay”; (3) notes identifying black prospective jurors as “B#1,” “B#2,”
and “B#3”; (4) notes with “N” (for “no”) appearing next to the names
of all black prospective jurors; (5) a list titled “[D]efinite NO’s” con-
taining six names, including the names of all of the qualified black
prospective jurors; (6) a document with notes on the Church of Christ
that was annotated “NO. No Black Church”; and (7) the question-
naires filled out by five prospective black jurors, on which each juror’s
response indicating his or her race had been circled.
The state habeas court denied relief. It noted that Foster’s Batson
claim had been adjudicated on direct appeal. Because Foster’s re-
newed Batson claim “fail[ed] to demonstrate purposeful discrimina-
tion,” the court concluded that he had failed to show “any change in
the facts sufficient to overcome” the state law doctrine of res judicata.
2 FOSTER v. CHATMAN
Syllabus
The Georgia Supreme Court denied Foster the Certificate of Probable
Cause necessary to file an appeal.
Held:
1. This Court has jurisdiction to review the judgment of the Geor-
gia Supreme Court denying Foster a Certificate of Probable Cause on
his Batson claim. Although this Court cannot ascertain the grounds
for that unelaborated judgment, there is no indication that it rested
on a state law ground that is both “independent of the merits” of Fos-
ter’s Batson claim and an “adequate basis” for that decision, so as to
preclude jurisdiction. Harris v. Reed, 489 U. S. 255, 260. The state
habeas court held that the state law doctrine of res judicata barred
Foster’s claim only by examining the entire record and determining
that Foster had not alleged a change in facts sufficient to overcome
the bar. Based on this lengthy “Batson analysis,” the state habeas
court concluded that Foster’s renewed Batson claim was “without
merit.” Because the state court’s application of res judicata thus “de-
pend[ed] on a federal constitutional ruling, [that] prong of the court’s
holding is not independent of federal law, and [this Court’s] jurisdic-
tion is not precluded.” Ake v. Oklahoma, 470 U. S. 68, 75; see also
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineer-
ing, P. C., 467 U. S. 138, 152. Pp. 6–9.
2. The decision that Foster failed to show purposeful discrimination
was clearly erroneous. Pp. 9–25.
(a) Batson provides a three-step process for adjudicating claims
such as Foster’s. “First, a defendant must make a prima facie show-
ing that a preemptory challenge has been exercised on the basis of
race; second, if that showing has been made, the prosecution must of-
fer a race-neutral basis for striking the juror in question; and third,
in light of the parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrimination.”
Snyder v. Louisiana, 552 U. S. 472, 477 (internal quotation marks
and brackets omitted). Only Batson’s third step is at issue here.
That step turns on factual findings made by the lower courts, and
this Court will defer to those findings unless they are clearly errone-
ous. See ibid. Pp. 9–10.
(b) Foster established purposeful discrimination in the State’s
strikes of two black prospective jurors: Marilyn Garrett and Eddie
Hood. Though the trial court accepted the prosecution’s justifications
for both strikes, the record belies much of the prosecution’s reason-
ing. Pp. 10–22.
(i) The prosecution explained to the trial court that it made a
last-minute decision to strike Garrett only after another juror,
Shirley Powell, was excused for cause on the morning that the strikes
were exercised. That explanation is flatly contradicted by evidence
Cite as: 578 U. S. ____ (2016) 3
Syllabus
showing that Garrett’s name appeared on the prosecution’s list of
“[D]efinite NO’s”—the six prospective jurors whom the prosecution
was intent on striking from the outset. The record also refutes sever-
al of the reasons the prosecution gave for striking Garrett instead of
Arlene Blackmon, a white prospective juror. For example, while the
State told the trial court that it struck Garrett because the defense
did not ask her for her thoughts about such pertinent trial issues as
insanity, alcohol, or pre-trial publicity, the record reveals that the de-
fense asked Garrett multiple questions on each topic. And though
the State gave other facially reasonable justifications for striking
Garrett, those are difficult to credit because of the State’s willingness
to accept white jurors with the same characteristics. For example,
the prosecution claims that it struck Garrett because she was di-
vorced and, at age 34, too young, but three out of four divorced white
prospective jurors and eight white prospective jurors under age 36
were allowed to serve. Pp. 11–17.
(ii) With regard to prospective juror Hood, the record similarly
undermines the justifications proffered by the State to the trial court
for the strike. For example, the prosecution alleged in response to
Foster’s pretrial Batson challenge that its only concern with Hood
was the fact that his son was the same age as the defendant. But
then, at a subsequent hearing, the State told the court that its chief
concern was with Hood’s membership in the Church of Christ. In the
end, neither of those reasons for striking Hood withstands scrutiny.
As to the age of Hood’s son, the prosecution allowed white prospective
jurors with sons of similar age to serve, including one who, in con-
trast to Hood, equivocated when asked whether Foster’s age would be
a factor at sentencing. And as to Hood’s religion, the prosecution er-
roneously claimed that three white Church of Christ members were
excused for cause because of their opposition to the death penalty,
when in fact the record shows that those jurors were excused for rea-
sons unrelated to their views on the death penalty. Moreover, a doc-
ument acquired from the State’s file contains a handwritten note
stating, “NO. NO Black Church,” while asserting that the Church of
Christ does not take a stand on the death penalty. Other justifica-
tions for striking Hood fail to withstand scrutiny because no concerns
were expressed with regard to similar white prospective jurors.
Pp. 17–23.
(c) Evidence that a prosecutor’s reasons for striking a black pro-
spective juror apply equally to an otherwise similar nonblack pro-
spective juror who is allowed to serve tends to suggest purposeful dis-
crimination. Miller-El v. Dretke, 545 U. S. 231, 241. Such evidence is
compelling with respect to Garrett and Hood and, along with the
prosecution’s shifting explanations, misrepresentations of the record,
4 FOSTER v. CHATMAN
Syllabus
and persistent focus on race, leads to the conclusion that the striking
of those prospective jurors was “motivated in substantial part by dis-
criminatory intent.” Snyder, 552 U. S., at 485. P. 23.
(d) Because Batson was decided only months before Foster’s trial,
the State asserts that the focus on black prospective jurors in the
prosecution’s file was an effort to develop and maintain a detailed ac-
count should the prosecution need a defense against any suggestion
that its reasons were pretextual. That argument, having never be-
fore been raised in the 30 years since Foster’s trial, “reeks of after-
thought.” Miller-El, 545 U. S., at 246. And the focus on race in the
prosecution’s file plainly demonstrates a concerted effort to keep
black prospective jurors off the jury. Pp. 23–25.
Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed
an opinion concurring in the judgment. THOMAS, J., filed a dissenting
opinion.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
GEORGIA
[May 23, 2016]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Petitioner Timothy Foster was convicted of capital
murder and sentenced to death in a Georgia court. During
jury selection at his trial, the State exercised peremptory
strikes against all four black prospective jurors qualified
to serve. Foster argued that the State’s use of those
strikes was racially motivated, in violation of our decision
in Batson v. Kentucky, 476 U. S. 79 (1986). The trial court
and the Georgia Supreme Court rejected Foster’s Batson
claim.
Foster then sought a writ of habeas corpus from the
Superior Court of Butts County, Georgia, renewing his
Batson objection. That court denied relief, and the Geor-
gia Supreme Court declined to issue the Certificate of
Probable Cause necessary under Georgia law for Foster to
pursue an appeal. We granted certiorari and now reverse.
I
On the morning of August 28, 1986, police found Queen
Madge White dead on the floor of her home in Rome,
Georgia. White, a 79-year-old widow, had been beaten,
2 FOSTER v. CHATMAN
Opinion of the Court
sexually assaulted, and strangled to death. Her home had
been burglarized. Timothy Foster subsequently confessed
to killing White, and White’s possessions were recovered
from Foster’s home and from Foster’s two sisters. The
State indicted Foster on charges of malice murder and
burglary. He faced the death penalty. Foster v. State, 258
Ga. 736, 374 S. E. 2d 188 (1988).
District Attorney Stephen Lanier and Assistant District
Attorney Douglas Pullen represented the State at trial.
Jury selection proceeded in two phases: removals for cause
and peremptory strikes. In the first phase, each prospec-
tive juror completed a detailed questionnaire, which the
prosecution and defense reviewed. The trial court then
conducted a juror-by-juror voir dire of approximately 90
prospective jurors. Throughout this process, both parties
had the opportunity to question the prospective jurors and
lodge challenges for cause. This first phase whittled the
list down to 42 “qualified” prospective jurors. Five were
black.
In the second phase, known as the “striking of the jury,”
both parties had the opportunity to exercise peremptory
strikes against the array of qualified jurors. Pursuant to
state law, the prosecution had ten such strikes; Foster
twenty. See Ga. Code Ann. §15–12–165 (1985). The pro-
cess worked as follows: The clerk of the court called the
qualified prospective jurors one by one, and the State had
the option to exercise one of its peremptory strikes. If the
State declined to strike a particular prospective juror,
Foster then had the opportunity to do so. If neither party
exercised a peremptory strike, the prospective juror was
selected for service. This second phase continued until 12
jurors had been accepted.
The morning the second phase began, Shirley Powell,
one of the five qualified black prospective jurors, notified
the court that she had just learned that one of her close
friends was related to Foster. The court removed Powell
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
for cause. That left four black prospective jurors: Eddie
Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.
The striking of the jury then commenced. The State
exercised nine of its ten allotted peremptory strikes, re-
moving all four of the remaining black prospective jurors.
Foster immediately lodged a Batson challenge. The trial
court rejected the objection and empaneled the jury. The
jury convicted Foster and sentenced him to death.
Following sentencing, Foster renewed his Batson claim
in a motion for a new trial. After an evidentiary hearing,
the trial court denied the motion. The Georgia Supreme
Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and
we denied certiorari, Foster v. Georgia, 490 U. S. 1085(1989).
Foster subsequently sought a writ of habeas corpus from
the Superior Court of Butts County, Georgia, again press-
ing his Batson claim. While the state habeas proceeding
was pending, Foster filed a series of requests under the
Georgia Open Records Act, see Ga. Code Ann. §§50–18–70
to 50–18–77 (2002), seeking access to the State’s file from
his 1987 trial. In response, the State disclosed documents
related to the jury selection at that trial. Over the State’s
objections, the state habeas court admitted those docu-
ments into evidence. They included the following:
(1) Four copies of the jury venire list. On each copy, the
names of the black prospective jurors were highlighted in
bright green. A legend in the upper right corner of the
lists indicated that the green highlighting “represents
Blacks.” See, e.g., App. 253. The letter “B” also appeared
next to each black prospective juror’s name. See, e.g., ibid.According to the testimony of Clayton Lundy, an investi-
gator who assisted the prosecution during jury selection,
these highlighted venire lists were circulated in the dis-
trict attorney’s office during jury selection. That allowed
“everybody in the office”—approximately “10 to 12 people,”
including “[s]ecretaries, investigators, [and] district attor-
4 FOSTER v. CHATMAN
Opinion of the Court
neys”—to look at them, share information, and contribute
thoughts on whether the prosecution should strike a par-
ticular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposi-
tion) (hereinafter Tr.). The documents, Lundy testified,
were returned to Lanier before jury selection. Id., at 220.
(2) A draft of an affidavit that had been prepared by
Lundy “at Lanier’s request” for submission to the state
trial court in response to Foster’s motion for a new trial.
Id., at 203. The typed draft detailed Lundy’s views on ten
black prospective jurors, stating “[m]y evaluation of the
jurors are a[s] follows.” App. 343. Under the name of one
of those jurors, Lundy had written:
“If it comes down to having to pick one of the black ju-
rors, [this one] might be okay. This is solely my opin-
ion. . . . Upon picking of the jury after listening to all
of the jurors we had to pick, if we had to pick a black
juror I recommend that [this juror] be one of the ju-
rors.” Id., at 345 (paragraph break omitted).
That text had been crossed out by hand; the version of the
affidavit filed with the trial court did not contain the
crossed-out language. See id., at 127–129. Lundy testi-
fied that he “guess[ed]” the redactions had been done by
Lanier. Tr. 203.
(3) Three handwritten notes on black prospective jurors
Eddie Hood, Louise Wilson, and Corrie Hinds. Annota-
tions denoted those individuals as “B#1,” “B#2,” and
“B#3,” respectively. App. 295–297. Lundy testified that
these were examples of the type of “notes that the team—
the State would take down during voir dire to help select
the jury in Mr. Foster’s case.” Tr. 208–210.
(4) A typed list of the qualified jurors remaining after
voir dire. App. 287–290. It included “Ns” next to ten
jurors’ names, which Lundy told the state habeas court
“signif[ied] the ten jurors that the State had strikes for
during jury selection.” Tr. 211. Such an “N” appeared
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
alongside the names of all five qualified black prospective
jurors. See App. 287–290. The file also included a hand-
written version of the same list, with the same markings.
Id., at 299–300; see Tr. 212. Lundy testified that he was
unsure who had prepared or marked the two lists.
(5) A handwritten document titled “definite NO’s,”
listing six names. The first five were those of the five
qualified black prospective jurors. App. 301. The State
concedes that either Lanier or Pullen compiled the list,
which Lundy testified was “used for preparation in jury
selection.” Tr. 215; Tr. of Oral Arg. 45.
(6) A handwritten document titled “Church of Christ.”
A notation on the document read: “NO. No Black Church.”
App. 302.
(7) The questionnaires that had been completed by
several of the black prospective jurors. On each one, the
juror’s response indicating his or her race had been cir-
cled. Id., at 311, 317, 323, 329, 334.
In response to the admission of this evidence, the State
introduced short affidavits from Lanier and Pullen. La-
nier’s affidavit stated:
“I did not make any of the highlighted marks on the
jury venire list. It was common practice in the office
to highlight in yellow those jurors who had prior case
experience. I did not instruct anyone to make the
green highlighted marks. I reaffirm my testimony
made during the motion for new trial hearing as to
how I used my peremptory jury strikes and the basis
and reasons for those strikes.” Id., at 169 (paragraph
numeral omitted).
Pullen’s affidavit averred:
“I did not make any of the highlighted marks on the
jury venire list, and I did not instruct anyone else to
make the highlighted marks. I did not rely on the
highlighted jury venire list in making my decision on
6 FOSTER v. CHATMAN
Opinion of the Court
how to use my peremptory strikes.” Id., at 170–171
(paragraph numeral omitted).
Neither affidavit provided further explanation of the
documents, and neither Lanier nor Pullen testified in the
habeas proceeding.
After considering the evidence, the state habeas court
denied relief. The court first stated that, “[a]s a prelimi-
nary matter,” Foster’s Batson claim was “not reviewable
based on the doctrine of res judicata” because it had been
“raised and litigated adversely to [Foster] on his direct
appeal to the Georgia Supreme Court.” App. 175. The
court nonetheless announced that it would “mak[e] find-
ings of fact and conclusions of law” on that claim. Id., at
191. Based on what it referred to as a “Batson . . . analy-
sis,” the court concluded that Foster’s “renewed Batson
claim is without merit,” because he had “fail[ed] to demon-
strate purposeful discrimination.” Id., at 192, 195, 196.
The Georgia Supreme Court denied Foster the “Certifi-
cate of Probable Cause” necessary under state law for him
to pursue an appeal, determining that his claim had no
“arguable merit.” Id., at 246; see Ga. Code Ann. §9–14–52
(2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari.
575 U. S. ___ (2015).
II
Before turning to the merits of Foster’s Batson claim, we
address a threshold issue. Neither party contests our
jurisdiction to review Foster’s claims, but we “have an
independent obligation to determine whether subject-
matter jurisdiction exists, even in the absence of a chal-
lenge from any party.” Arbaugh v. Y & H Corp., 546 U. S.
500, 514 (2006).
This Court lacks jurisdiction to entertain a federal claim
on review of a state court judgment “if that judgment rests
on a state law ground that is both ‘independent’ of the
merits of the federal claim and an ‘adequate’ basis for the
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
court’s decision.” Harris v. Reed, 489 U. S. 255, 260
(1989).
The state habeas court noted that Foster’s Batson claim
was “not reviewable based on the doctrine of res judicata”
under Georgia law. App. 175. The Georgia Supreme
Court’s unelaborated order on review provides no reason-
ing for its decision.1 That raises the question whether the
Georgia Supreme Court’s order—the judgment from which
Foster sought certiorari2—rests on an adequate and inde-
pendent state law ground so as to preclude our jurisdiction
over Foster’s federal claim.
We conclude that it does not. When application of a
state law bar “depends on a federal constitutional ruling,
the state-law prong of the court’s holding is not independ-
ent of federal law, and our jurisdiction is not precluded.”
Ake v. Oklahoma, 470 U. S. 68, 75 (1985); see also Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U. S. 138, 152 (1984).
——————
1 The order stated, in its entirety: “Upon consideration of the Applica-
tion for Certificate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied. All the Justices concur,
except Benham, J., who dissents.” App. 246.
2 We construe Foster’s petition for writ of certiorari as seeking review
of the Georgia Supreme Court’s order denying him a “Certificate of
Probable Cause.” App. 246. The Georgia Supreme Court Rules provide
that such a certificate “will be issued where there is arguable merit.”
Rule 36 (emphasis added); see also Hittson v. GDCP Warden, 759 F. 3d
1210, 1231–1232 (CA11 2014). A decision by the Georgia Supreme
Court that Foster’s appeal had no “arguable merit” would seem to be a
decision on the merits of his claim. In such circumstances the Georgia
Supreme Court’s order is subject to review in this Court pursuant to a
writ of certiorari under 28 U. S. C. §1257(a). R. J. Reynolds Tobacco
Co. v. Durham County, 479 U. S. 130, 138–139 (1986); see Sears v.
Upton, 561 U. S. 945 (2010) ( per curiam) (exercising jurisdiction over
order from Georgia Supreme Court denying a Certificate of Probable
Cause). We reach the conclusion that such an order is a decision on the
merits “in the absence of positive assurance to the contrary” from the
Georgia Supreme Court. R. J. Reynolds, 479 U. S., at 138.
8 FOSTER v. CHATMAN
Opinion of the Court
In this case, the Georgia habeas court’s analysis in the
section of its opinion labeled “Batson claim” proceeded as
follows:
“The [State] argues that this claim is not reviewable
due to the doctrine of res judicata. However, because
[Foster] claims that additional evidence allegedly
supporting this ground was discovered subsequent to
the Georgia Supreme Court’s ruling [on direct appeal],
this court will review the Batson claim as to whether
[Foster] has shown any change in the facts sufficient
to overcome the res judicata bar.” App. 192.
To determine whether Foster had alleged a sufficient
“change in the facts,” the habeas court engaged in four
pages of what it termed a “Batson . . . analysis,” in which
it evaluated the original trial record and habeas record,
including the newly uncovered prosecution file. Id., at
192–196. Ultimately, that court concluded that Foster’s
“renewed Batson claim is without merit.” Id., at 196 (em-
phasis added).
In light of the foregoing, it is apparent that the state
habeas court’s application of res judicata to Foster’s Bat-
son claim was not independent of the merits of his federal
constitutional challenge.3 That court’s invocation of res
——————
3 Contraryto the dissent’s assertion, see post, at 6–8, it is perfectly
consistent with this Court’s past practices to review a lower court
decision—in this case, that of the Georgia habeas court—in order to
ascertain whether a federal question may be implicated in an unrea-
soned summary order from a higher court. See, e.g., R. J. Reynolds, 479
U. S., at 136–139 (exercising §1257 jurisdiction over unreasoned
judgment by the North Carolina Supreme Court after examining
grounds of decision posited by North Carolina Court of Appeal); see also
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A.
Hartnett, Dan Himmelfarb, Supreme Court Practice 211 (10th ed.
2013) (“[W]here the state court opinion fails to yield precise answers as
to the grounds of decision, the Court may be forced to turn to other
parts of the record, such as pleadings, motions, and trial court rulings,
to determine if a federal claim is so central to the controversy as to
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
judicata therefore poses no impediment to our review of
Foster’s Batson claim. See Ake, 470 U. S., at 75.4
III
A
The “Constitution forbids striking even a single prospec-
tive juror for a discriminatory purpose.” Snyder v. Louisi-
ana, 552 U. S. 472, 478 (2008) (internal quotation marks
omitted). Our decision in Batson v. Kentucky, 476 U. S.
79, provides a three-step process for determining when a
strike is discriminatory:
“First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race; second, if that showing has been made,
the prosecution must offer a race-neutral basis for
striking the juror in question; and third, in light of the
parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrim-
ination.” Snyder, 552 U. S., at 476–477 (internal quo-
tation marks and brackets omitted).
——————
preclude resting the judgment on independent and adequate state
grounds.”). And even the dissent does not follow its own rule. It too
goes beyond the unreasoned order of the Georgia Supreme Court in
determining that the “likely explanation for the court’s denial of habeas
relief is that Foster’s claim is procedurally barred.” Post, at 2. There
would be no way to know this, of course, from the face of the Georgia
Supreme Court’s summary order.
4 The concurrence notes that the “res judicata rule applied by the
Superior Court in this case is quite different” from the state procedural
bar at issue in Ake, which was “entirely dependent on federal law.”
Post, at 8. But whether a state law determination is characterized as
“entirely dependent on,” ibid., “resting primarily on,” Stewart v. Smith,
536 U. S. 856, 860 (2002) ( per curiam), or “influenced by” a question of
federal law, Three Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U. S. 138, 152 (1984), the result is the same: the
state law determination is not independent of federal law and thus
poses no bar to our jurisdiction.
10 FOSTER v. CHATMAN
Opinion of the Court
Both parties agree that Foster has demonstrated a
prima facie case, and that the prosecutors have offered
race-neutral reasons for their strikes. We therefore ad-
dress only Batson’s third step. That step turns on factual
determinations, and, “in the absence of exceptional cir-
cumstances,” we defer to state court factual findings un-
less we conclude that they are clearly erroneous. Synder,
552 U. S., at 477.
Before reviewing the factual record in this case, a brief
word is in order regarding the contents of the prosecu-
tion’s file that Foster obtained through his Georgia Open
Records Act requests. Pursuant to those requests, Foster
received a “certif[ied] . . . true and correct copy of 103
pages of the State’s case file” from his 1987 trial. App.
247. The State argues that “because [Foster] did not call
either of the prosecutors to the stand” to testify in his
state habeas proceedings, “he can only speculate as to the
meaning of various markings and writings” on those
pages, “the author of many of them, and whether the two
prosecutors at trial (District Attorney Lanier and Assis-
tant District Attorney Pullen) even saw many of them.”
Brief for Respondent 20. For these reasons, the State
argues, “none of the specific pieces of new evidence [found
in the file] shows an intent to discriminate.” Ibid. (capital-
ization omitted). For his part, Foster argues that “[t]here
is no question that the prosecutors used the lists and
notes, which came from the prosecution’s file and were
certified as such,” and therefore the “source of the lists
and notes, their timing, and their purpose is hardly ‘un-
known’ or based on ‘conjecture.’ ” Reply Brief 4–5 (quoting
Brief for Respondent 27–28).
The State concedes that the prosecutors themselves
authored some documents, see, e.g., Tr. of Oral Arg. 45
(admitting that one of the two prosecutors must have
written the list titled “definite NO’s”), and Lundy’s testi-
mony strongly suggests that the prosecutors viewed oth-
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Opinion of the Court
ers, see, e.g., Tr. 220 (noting that the highlighted jury
venire lists were returned to Lanier prior to jury selec-
tion). There are, however, genuine questions that remain
about the provenance of other documents. Nothing in the
record, for example, identifies the author of the notes that
listed three black prospective jurors as “B#1,” “B#2,” and
“B#3.” Such notes, then, are not necessarily attributable
directly to the prosecutors themselves. The state habeas
court was cognizant of those limitations, but nevertheless
admitted the file into evidence, reserving “a determination
as to what weight the Court is going to put on any of
[them]” in light of the objections urged by the State. 1
Record 20.
We agree with that approach. Despite questions about
the background of particular notes, we cannot accept the
State’s invitation to blind ourselves to their existence. We
have “made it clear 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 ani-
mosity must be consulted.” Snyder, 552 U. S., at 478. As
we have said in a related context, “[d]etermining whether
invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial . . .
evidence of intent as may be available.” Arlington Heights
v. Metropolitan Housing Development Corp., 429 U. S. 252,
266 (1977). At a minimum, we are comfortable that all
documents in the file were authored by someone in the
district attorney’s office. Any uncertainties concerning the
documents are pertinent only as potential limits on their
probative value.
B
Foster centers his Batson claim on the strikes of two
black prospective jurors, Marilyn Garrett and Eddie Hood.
We turn first to Marilyn Garrett. According to Lanier, on
the morning that the State was to use its strikes he had
12 FOSTER v. CHATMAN
Opinion of the Court
not yet made up his mind to remove Garrett. Rather, he
decided to strike her only after learning that he would not
need to use a strike on another black prospective juror,
Shirley Powell, who was excused for cause that morning.
Ultimately, Lanier did strike Garrett. In justifying that
strike to the trial court, he articulated a laundry list of
reasons. Specifically, Lanier objected to Garrett because
she: (1) worked with disadvantaged youth in her job as a
teacher’s aide; (2) kept looking at the ground during
voir dire; (3) gave short and curt answers during voir dire;
(4) appeared nervous; (5) was too young; (6) misrepresented
her familiarity with the location of the crime; (7) failed
to disclose that her cousin had been arrested on a drug
charge; (8) was divorced; (9) had two children and two
jobs; (10) was asked few questions by the defense; and (11)
did not ask to be excused from jury service. See App. 55–
57 (pretrial hearing); id., at 93–98, 105, 108, 110–112 (new
trial hearing); Record in No. 45609 (Ga. 1988), pp. 439–
440 (hereinafter Trial Record) (brief in opposition to new
trial).
The trial court accepted Lanier’s justifications, conclud-
ing that “[i]n the totality of circumstances,” there was “no
discriminatory intent, and that there existed reasonably
clear, specific, and legitimate reasons” for the strike. App.
143. On their face, Lanier’s justifications for the strike
seem reasonable enough. Our independent examination of
the record, however, reveals that much of the reasoning
provided by Lanier has no grounding in fact.
Lanier’s misrepresentations to the trial court began
with an elaborate explanation of how he ultimately came
to strike Garrett:
“[T]he prosecution considered this juror [to have] the
most potential to choose from out of the four remain-
ing blacks in the 42 [member] panel venire. However,
a system of events took place on the morning of jury
Cite as: 578 U. S. ____ (2016) 13
Opinion of the Court
selection that caused the excusal of this juror. The
[S]tate had, in his jury notes, listed this juror as ques-
tionable. The four negative challenges were allocated
for Hardge, Hood, Turner and Powell. . . . But on the
morning of jury selection, Juror Powell was excused
for cause with no objections by [d]efense counsel. She
was replaced by Juror Cadle [who] was acceptable to
the State. This left the State with an additional
strike it had not anticipated or allocated. Conse-
quently, the State had to choose between [white] Ju-
ror Blackmon or Juror Garrett, the only two question-
able jurors the State had left on the list.” Trial Record
438–440 (brief in opposition to new trial) (emphasis
added and citations omitted).
Lanier then offered an extensive list of reasons for
striking Garrett and explained that “[t]hese factors, with
no reference to race, were considered by the prosecutor in
this particular case to result in a juror less desirable from
the prosecutor’s viewpoint than Juror Blackmon.” Id., at
441 (emphasis deleted).
Lanier then compared Blackmon to Garrett. In contrast
to Garrett, Juror Blackmon
“was 46 years old, married 13 years to her husband
who works at GE, buying her own home and [was rec-
ommended by a third party to] this prosecutor. She
was no longer employed at Northwest Georgia Re-
gional Hospital and she attended Catholic church on
an irregular basis. She did not hesitate when answer-
ing the questions concerning the death penalty, had
good eye contact with the prosecutor and gave good
answers on the insanity issue. She was perceived by
the prosecutor as having a stable home environment,
of the right age and no association with any disadvan-
taged youth organizations.” Ibid.
Lanier concluded that “the chances of [Blackmon] return-
14 FOSTER v. CHATMAN
Opinion of the Court
ing a death sentence were greater when all these factors
were considered than Juror Garrett. Consequently, Juror
Garrett was excused.” Ibid.
The trial court accepted this explanation in denying
Foster’s motion for a new trial. See App. 142–143. But
the predicate for the State’s account—that Garrett was
“listed” by the prosecution as “questionable,” making that
strike a last-minute race-neutral decision—was false.
During jury selection, the State went first. As a conse-
quence, the defense could accept any prospective juror not
struck by the State without any further opportunity for
the State to use a strike against that prospective juror.
Accordingly, the State had to “pretty well select the ten
specific people [it] intend[ed] to strike” in advance. Id., at
83 (pretrial hearing); accord, ibid. (“[T]he ten people that
we felt very uncomfortable with, we have to know up
front.” (Lanier testimony)). The record evidence shows
that Garrett was one of those “ten specific people.”
That much is evident from the “definite NO’s” list in the
prosecution’s file. Garrett’s name appeared on that list,
which the State concedes was written by one of the prose-
cutors. Tr. of Oral Arg. 45. That list belies Lanier’s asser-
tion that the State considered allowing Garrett to serve.
The title of the list meant what it said: Garrett was a
“definite NO.” App. 301 (emphasis added). The State from
the outset was intent on ensuring that none of the jurors
on that list would serve.
The first five names on the “definite NO’s” list were
Eddie Hood, Evelyn Hardge, Shirley Powell, Marilyn
Garrett, and Mary Turner. All were black. The State
struck each one except Powell (who, as discussed, was
excused for cause at the last minute—though the prosecu-
tion informed the trial court that the “State was not,
under any circumstances, going to take [Powell],” Trial
Record 439 (brief in opposition to new trial)). Only in the
number six position did a white prospective juror appear,
Cite as: 578 U. S. ____ (2016) 15
Opinion of the Court
and she had informed the court during voir dire that she
could not “say positively” that she could impose the death
penalty even if the evidence warranted it. 6 Tr. in No. 86–
2218–2 (Super. Ct. Floyd Cty., Ga., 1987), p. 1152 (herein-
after Trial Transcript); see also id., at 1153–1158. In
short, contrary to the prosecution’s submissions, the
State’s resolve to strike Garrett was never in doubt. See
also App. 290 (“N” appears next to Garrett’s name on juror
list); id., at 300 (same).
The State attempts to explain away the contradiction
between the “definite NO’s” list and Lanier’s statements to
the trial court as an example of a prosecutor merely “mis-
speak[ing].” Brief for Respondent 51. But this was not
some off-the-cuff remark; it was an intricate story ex-
pounded by the prosecution in writing, laid out over three
single-spaced pages in a brief filed with the trial court.
Moreover, several of Lanier’s reasons for why he chose
Garrett over Blackmon are similarly contradicted by the
record. Lanier told the court, for example, that he struck
Garrett because “the defense did not ask her questions
about” pertinent trial issues such as her thoughts on
“insanity” or “alcohol,” or “much questions on publicity.”
App. 56 (pretrial hearing). But the trial transcripts reveal
that the defense asked her several questions on all three
topics. See 5 Trial Transcript 955–956 (two questions on
insanity and one on mental illness); ibid. (four questions
on alcohol); id., at 956–957 (five questions on publicity).
Still other explanations given by the prosecution, while
not explicitly contradicted by the record, are difficult to
credit because the State willingly accepted white jurors
with the same traits that supposedly rendered Garrett an
unattractive juror. Lanier told the trial court that he
struck Garrett because she was divorced. App. 56 (pre-
trial hearing). But he declined to strike three out of the
four prospective white jurors who were also divorced. See
Juror Questionnaire in No. 86–2218–2 (Super. Ct. Floyd
16 FOSTER v. CHATMAN
Opinion of the Court
Cty., Ga., 1987) (hereinafter Juror Questionnaire), for
Juror No. 23, p. 2 (juror Coultas, divorced); id., No. 33, p. 2
(juror Cochran, divorced); id., No. 107, p. 2 (juror Hatch,
divorced); App. 23–24, 31 (State accepting jurors Coultas,
Cochran, and Hatch). Additionally, Lanier claimed that
he struck Garrett because she was too young, and the
“State was looking for older jurors that would not easily
identify with the defendant.” Trial Record 439; see App.
55 (pretrial hearing). Yet Garrett was 34, and the State
declined to strike eight white prospective jurors under the
age of 36. See Trial Record 439; Juror Questionnaire No.
4, p. 1; id., No. 10, p. 1; id., No. 23, p. 1; id., No. 48, p. 1;
id., No. 70, p. 1; id., No. 71, p. 1; id., No. 92, p. 1; id., No.
106, p. 1; see App. 22–31. Two of those white jurors
served on the jury; one of those two was only 21 years old.
See id., at 35.
Lanier also explained to the trial court that he struck
Garrett because he “felt that she was less than truthful” in
her answers in voir dire. Id., at 108 (new trial hearing).
Specifically, the State pointed the trial court to the follow-
ing exchange:
“[Court]: Are you familiar with the neighborhood
where [the victim] lived, North Rome?
“[Garrett]: No.” 5 Trial Transcript 950–951.
Lanier, in explaining the strike, told the trial court that
in apparent contradiction to that exchange (which repre-
sented the only time that Garrett was asked about the
topic during voir dire), he had “noted that [Garrett] at-
tended Main High School, which is only two blocks from
where [the victim] lived and certainly in the neighborhood.
She denied any knowledge of the area.” Trial Record 439
(brief in opposition to new trial).
We have no quarrel with the State’s general assertion
that it “could not trust someone who gave materially
untruthful answers on voir dire.” Foster, 258 Ga., at 739,
Cite as: 578 U. S. ____ (2016) 17
Opinion of the Court
374 S. E. 2d, at 192. But even this otherwise legitimate
reason is difficult to credit in light of the State’s ac-
ceptance of (white) juror Duncan. Duncan gave practically
the same answer as Garrett did during voir dire:
“[Court]: Are you familiar with the neighborhood in
which [the victim] live[d]?
“[Duncan]: No. I live in Atteiram Heights, but it’s
not—I’m not familiar with up there, you know.” 5
Trial Transcript 959.
But, as Lanier was aware, Duncan’s “residence [was] less
than a half a mile from the murder scene” and her work-
place was “located less than 250 yards” away. Trial Rec-
ord 430 (brief in opposition to new trial).
In sum, in evaluating the strike of Garrett, we are not
faced with a single isolated misrepresentation.
C
We turn next to the strike of Hood. According to Lanier,
Hood “was exactly what [the State] was looking for in
terms of age, between forty and fifty, good employment
and married.” App. 44 (pretrial hearing). The prosecution
nonetheless struck Hood, giving eight reasons for doing so.
Hood: (1) had a son who was the same age as the defend-
ant and who had previously been convicted of a crime; (2)
had a wife who worked in food service at the local mental
health institution; (3) had experienced food poisoning
during voir dire; (4) was slow in responding to death pen-
alty questions; (5) was a member of the Church of Christ;
(6) had a brother who counseled drug offenders; (7) was
not asked enough questions by the defense during
voir dire; and (8) asked to be excused from jury service.
See id., at 44–47; id., at 86, 105, 110–111 (new trial hear-
ing); Trial Record 433–435 (brief in opposition to new
trial). An examination of the record, however, convinces
us that many of these justifications cannot be credited.
18 FOSTER v. CHATMAN
Opinion of the Court
As an initial matter, the prosecution’s principal reasons
for the strike shifted over time, suggesting that those
reasons may be pretextual. In response to Foster’s pre-
trial Batson challenge, District Attorney Lanier noted all
eight reasons, but explained:
“The only thing I was concerned about, and I will state
it for the record. He has an eighteen year old son
which is about the same age as the defendant.
“In my experience prosecuting over twenty-five
murder cases . . . individuals having the same son as
[a] defendant who is charged with murder [have] seri-
ous reservations and are more sympathetic and lean
toward that particular person.
“It is ironic that his son, . . . Darrell Hood[,] has
been sentenced . . . by the Court here, to theft by tak-
ing on April 4th, 1982. . . . [T]heft by taking is basi-
cally the same thing that this defendant is charged
with.” App. 44–45 (pretrial hearing; emphasis added).
But by the time of Foster’s subsequent motion for a new
trial, Lanier’s focus had shifted. He still noted the similar-
ities between Hood’s son and Foster, see id., at 105 (new
trial hearing), but that was no longer the key reason
behind the strike. Lanier instead told the court that his
paramount concern was Hood’s membership in the Church
of Christ: “The Church of Christ people, while they may
not take a formal stand against the death penalty, they
are very, very reluctant to vote for the death penalty.” Id.,
at 84 (new trial hearing); accord, Trial Record 434–435 (“It
is the opinion of this prosecutor that in a death penalty
case, Church of Christ affiliates are reluctant to return a
verdict of death.” (brief in opposition to new trial)). Hood’s
religion, Lanier now explained, was the most important
factor behind the strike: “I evaluated the whole Eddie
Hood. . . . And the bottom line on Eddie Hood is the
Church of Christ affiliation.” App. 110–111 (new trial
Cite as: 578 U. S. ____ (2016) 19
Opinion of the Court
hearing; emphasis added).
Of course it is possible that Lanier simply misspoke in
one of the two proceedings. But even if that were so, we
would expect at least one of the two purportedly principal
justifications for the strike to withstand closer scrutiny.
Neither does.
Take Hood’s son. If Darrell Hood’s age was the issue,
why did the State accept (white) juror Billy Graves, who
had a 17-year-old son? Juror Questionnaire No. 31, p. 3;
see App. 24. And why did the State accept (white) juror
Martha Duncan, even though she had a 20-year-old son?
Juror Questionnaire No. 88, p. 3; see App. 30.
The comparison between Hood and Graves is particu-
larly salient. When the prosecution asked Hood if Foster’s
age would be a factor for him in sentencing, he answered
“None whatsoever.” Trial Transcript 280. Graves, on the
other hand, answered the same question “probably so.”
Id., at 446. Yet the State struck Hood and accepted
Graves.
The State responds that Duncan and Graves were not
similar to Hood because Hood’s son had been convicted of
theft, while Graves’s and Duncan’s sons had not. See
Brief for Respondent 34–35; see also App. 135–136 (“While
the defense asserts that the state used different standards
for white jurors, insofar as many of them had children
near the age of the Defendant, the Court believes that
[Darrell Hood’s] conviction is a distinction that makes the
difference.” (trial court opinion denying new trial)). La-
nier had described Darrell Hood’s conviction to the trial
court as being for “basically the same thing that this
defendant is charged with.” Id., at 45 (pretrial hearing).
Nonsense. Hood’s son had received a 12-month suspended
sentence for stealing hubcaps from a car in a mall parking
lot five years earlier. Trial Record 446. Foster was
charged with capital murder of a 79-year-old widow after a
brutal sexual assault. The “implausible” and “fantastic”
20 FOSTER v. CHATMAN
Opinion of the Court
assertion that the two had been charged with “basically
the same thing” supports our conclusion that the focus on
Hood’s son can only be regarded as pretextual. Miller-El
v. Cockrell, 537 U. S. 322, 339 (2003); see also ibid. (“Cred-
ibility can be measured by, among other factors, . . . how
reasonable, or how improbable, the [State’s] explanations
are.”).
The prosecution’s second principal justification for
striking Hood—his affiliation with the Church of Christ,
and that church’s alleged teachings on the death penalty—
fares no better. Hood asserted no fewer than four times
during voir dire that he could impose the death penalty.5
A prosecutor is entitled to disbelieve a juror’s voir dire
answers, of course. But the record persuades us that
Hood’s race, and not his religious affiliation, was Lanier’s
true motivation.
The first indication to that effect is Lanier’s mischarac-
terization of the record. On multiple occasions, Lanier
asserted to the trial court that three white prospective
jurors who were members of the Church of Christ had
been struck for cause due to their opposition to the death
penalty. See App. 46 (“[Hood’s] religious preference is
Church of Christ. There have been [three] other jurors
that have been excused for cause by agreement that be-
long to the Church of Christ, Juror No. 35, 53, and 78.”
(pretrial hearing)); id., at 114 (“Three out of four jurors
who professed to be members of the Church of Christ,
——————
5 See 2 Trial Transcript 269 (“[Court]: Are you opposed to or against
the death penalty? A: I am not opposed to it. Q: If the facts and cir-
cumstances warrant the death penalty, are you prepared to vote for the
death penalty? A: Yes.”); id., at 270 (“[Court]: [A]re you prepared to
vote for the death penalty? Now you said yes to that. A: All right. Q:
Are you still saying yes? A: Uh-huh.”); id., at 274 (“[Court]: If the
evidence warrants the death penalty, could you vote for the death
penalty? A: Yes. I could vote for the death penalty.”); id., at 278
(“[Pullen]: And if the facts and circumstances warranted, you could vote
to impose the death penalty? Yes.”).
Cite as: 578 U. S. ____ (2016) 21
Opinion of the Court
went off for [cause related to opposition to the death pen-
alty].” (new trial hearing)); Trial Record 435 (“Church of
Christ jurors Terry (#35), Green (#53), and Waters (#78)
[were] excused for cause due to feeling[s] against the
death penalty.” (brief in opposition to new trial)).
That was not true. One of those prospective jurors was
excused before even being questioned during voir dire
because she was five-and-a-half months pregnant. 5 Trial
Transcript 893. Another was excused by the agreement of
both parties because her answers on the death penalty
made it difficult to ascertain her precise views on capital
punishment. See Brief for Respondent 39 (“[I]t was entirely
unclear if [this juror] understood any of the trial court’s
questions and her answers are equivocal at best.”). And
the judge found cause to dismiss the third because she had
already formed an opinion about Foster’s guilt. See 3
Trial Transcript 558 (“[Court]: And you have made up
your mind already as to the guilt of the accused? A: Yes,
sir. [Court]: I think that’s cause.”).
The prosecution’s file fortifies our conclusion that any
reliance on Hood’s religion was pretextual. The file con-
tains a handwritten document titled “Church of Christ.”
The document notes that the church “doesn’t take a stand
on [the] Death Penalty,” and that the issue is “left for each
individual member.” App. 302. The document then states:
“NO. NO Black Church.” Ibid. The State tries to down-
play the significance of this document by emphasizing that
the document’s author is unknown. That uncertainty is
pertinent. But we think the document is nonetheless
entitled to significant weight, especially given that it is
consistent with our serious doubts about the prosecution’s
account of the strike.
Many of the State’s secondary justifications similarly
come undone when subjected to scrutiny. Lanier told the
trial court that Hood “appeared to be confused and slow in
responding to questions concerning his views on the death
22 FOSTER v. CHATMAN
Opinion of the Court
penalty.” Trial Record 434 (brief in opposition to new
trial). As previously noted, however, Hood unequivocally
voiced his willingness to impose the death penalty, and a
white juror who showed similar confusion served on the
jury. Compare 5 Trial Transcript 1100–1101 (white juror
Huffman’s answers) with 2 id., at 269–278 (Hood’s an-
swers); see App. 35. According to the record, such confu-
sion was not uncommon. See id., at 138 (“The Court notes
that [Hood’s] particular confusion about the death penalty
questions was not unusual.”); accord, 5 Trial Transcript
994 (“[Court]: I think these questions should be reworded.
I haven’t had a juror yet that understood what that
meant.”); id., at 1101–1102 (“[Court]: I still say that these
questions need changing overnight, because one out of a
hundred jurors, I think is about all that’s gone along with
knowing what [you’re asking].”).
Lanier also stated that he struck Hood because Hood’s
wife worked at Northwest Regional Hospital as a food
services supervisor. App. 45 (pretrial hearing). That
hospital, Lanier explained, “deals a lot with mentally
disturbed, mentally ill people,” and so people associated
with it tend “to be more sympathetic to the underdog.”
Ibid. But Lanier expressed no such concerns about white
juror Blackmon, who had worked at the same hospital.
Blackmon, as noted, served on the jury.
Lanier additionally stated that he struck Hood because
the defense “didn’t ask [Hood] any question[s] about the
age of the defendant,” “his feelings about criminal respon-
sibility involved in insanity,” or “publicity.” Id., at 47. Yet
again, the trial transcripts clearly indicate the contrary.
See 2 Trial Transcript 280 (“Q: Is age a factor to you in
trying to determine whether or not a defendant should
receive a life sentence or a death sentence? A: None what-
soever.”); ibid. (“Q: Do you have any feeling about the
insanity defense? A: Do I have any opinion about that? I
have not formed any opinion about that.”); id., at 281 (“Q:
Cite as: 578 U. S. ____ (2016) 23
Opinion of the Court
Okay. The publicity that you have heard, has that pub-
licity affected your ability to sit as a juror in this case and
be fair and impartial to the defendant? A: No, it has no
effect on me.”).
D
As we explained in Miller-El v. Dretke, “[i]f a prosecu-
tor’s proffered reason for striking a black panelist applies
just as well to an otherwise-similar nonblack [panelist]
who is permitted to serve, that is evidence tending to
prove purposeful discrimination.” 545 U. S. 231, 241
(2005). With respect to both Garrett and Hood, such
evidence is compelling. But that is not all. There are also
the shifting explanations, the misrepresentations of the
record, and the persistent focus on race in the prosecu-
tion’s file. Considering all of the circumstantial evidence
that “bear[s] upon the issue of racial animosity,” we are
left with the firm conviction that the strikes of Garrett
and Hood were “motivated in substantial part by discrimi-
natory intent.” Snyder, 552 U. S., at 478, 485.6
IV
Throughout all stages of this litigation, the State has
strenuously objected that “race [was] not a factor” in its
jury selection strategy. App. 41 (pretrial hearing); but see
id., at 120 (Lanier testifying that the strikes were “based
on many factors and not purely on race.” (emphasis added)
(new trial hearing)). Indeed, at times the State has been
downright indignant. See Trial Record 444 (“The Defens-
es’s [sic] misapplication of the law and erroneous distor-
——————
6 In Snyder, we noted that we had not previously allowed the prosecu-
tion to show that “a discriminatory intent [that] was a substantial or
motivating factor” behind a strike was nevertheless not “determinative”
to the prosecution’s decision to exercise the strike. 552 U. S., at 485.
The State does not raise such an argument here and so, as in Snyder,
we need not decide the availability of such a defense.
24 FOSTER v. CHATMAN
Opinion of the Court
tion of the facts are an attempt to discredit the pro-
secutor. . . . The State and this community demand an
apology.” (brief in opposition to new trial)).
The contents of the prosecution’s file, however, plainly
belie the State’s claim that it exercised its strikes in a
“color-blind” manner. App. 41, 60 (pretrial hearing). The
sheer number of references to race in that file is arresting.
The State, however, claims that things are not quite as
bad as they seem. The focus on black prospective jurors, it
contends, does not indicate any attempt to exclude them
from the jury. It instead reflects an effort to ensure that
the State was “thoughtful and non-discriminatory in [its]
consideration of black prospective jurors [and] to develop
and maintain detailed information on those prospective
jurors in order to properly defend against any suggestion
that decisions regarding [its] selections were pretextual.”
Brief for Respondent 6. Batson, after all, had come down
only months before Foster’s trial. The prosecutors, accord-
ing to the State, were uncertain what sort of showing
might be demanded of them and wanted to be prepared.
This argument falls flat. To begin, it “reeks of after-
thought,” Miller-El, 545 U. S., at 246, having never before
been made in the nearly 30-year history of this litigation:
not in the trial court, not in the state habeas court, and
not even in the State’s brief in opposition to Foster’s peti-
tion for certiorari.
In addition, the focus on race in the prosecution’s file
plainly demonstrates a concerted effort to keep black
prospective jurors off the jury. The State argues that it
“was actively seeking a black juror.” Brief for Respondent
12; see also App. 99 (new trial hearing). But this claim is
not credible. An “N” appeared next to each of the black
prospective jurors’ names on the jury venire list. See, e.g.,
id., at 253. An “N” was also noted next to the name of
each black prospective juror on the list of the 42 qualified
prospective jurors; each of those names also appeared on
Cite as: 578 U. S. ____ (2016) 25
Opinion of the Court
the “definite NO’s” list. See id., 299–301. And a draft
affidavit from the prosecution’s investigator stated his
view that “[i]f it comes down to having to pick one of the
black jurors, [Marilyn] Garrett, might be okay.” Id., at
345 (emphasis added); see also ibid. (recommending Gar-
rett “if we had to pick a black juror” (emphasis added)).
Such references are inconsistent with attempts to “actively
see[k]” a black juror.
The State’s new argument today does not dissuade us
from the conclusion that its prosecutors were motivated in
substantial part by race when they struck Garrett and
Hood from the jury 30 years ago. Two peremptory strikes
on the basis of race are two more than the Constitution
allows.
The order of the Georgia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
GEORGIA
[May 23, 2016]
JUSTICE ALITO, concurring in the judgment.
I agree with the Court that the decision of the Supreme
Court of Georgia cannot be affirmed and that the case
must be remanded. I write separately to explain my
understanding of the role of state law in the proceedings
that must be held on remand.
I
As the Court recounts, in August 1986, Queen Madge
White, a 79-year-old retired schoolteacher, was sexually
assaulted and brutally murdered in her home in Rome,
Georgia. Her home was ransacked, and various household
items were stolen. Foster v. State, 258 Ga. 736, 374
S. E. 2d 188 (1988). About a month after the murder,
police officers were called to respond to a local disturb-
ance. The complainant, Lisa Stubbs, told them that her
boyfriend, petitioner Timothy Foster, had killed White and
had distributed the goods stolen from White’s home to
Stubbs and family members. Tr. 1719–1723. Officers
arrested Foster, who confessed to the murder and robbery,
258 Ga., at 736, 374 S. E. 2d, at 190, and the police recov-
ered some of the stolen goods.
Foster was put on trial for White’s murder, convicted,
and sentenced to death. Before, during, and after his trial,
Foster argued that the prosecution violated his rights
2 FOSTER v. CHATMAN
ALITO, J., concurring in judgment
under this Court’s then-recent decision in Batson v. Ken-
tucky, 476 U. S. 79 (1986), by peremptorily challenging all
the prospective jurors who were black. After the Georgia
Supreme Court rejected Foster’s Batson argument on
direct appeal, he filed a petition for a writ of certiorari in
this Court, but his petition did not raise a Batson claim,1
and the petition was denied. Foster v. Georgia, 490 U. S.
1085 (1989).
In July 1989, Foster filed a state habeas petition in the
Superior Court of Butts County, Georgia. For the next 10
years, most of Foster’s claims (including his Batson claim)
were held in abeyance while the Georgia courts adjudi-
cated Foster’s claim that he is “mentally retarded” and thus
cannot be executed under Georgia law. Zant v. Foster, 261
Ga. 450, 406 S. E. 2d 74 (1991). After extensive court
proceedings, including two visits to the State Supreme
Court,2 additional petitions for certiorari to this Court,3
and a jury trial on the issue of intellectual disability,
Foster was denied relief on that claim. He then amended
his habeas petition, and the Superior Court considered the
many other claims asserted in his petition, including his
Batson claim. In support of that claim, Foster offered new
evidence, namely, the prosecution’s jury selection notes,
which he had obtained through a Georgia open-records
request. These notes showed that someone had highlighted
the names of black jurors and had written the letter “B”
next to their names.
The Superior Court issued a written decision in which it
evaluated Foster’s habeas claims. The opinion began by
noting that many of his claims were barred by res judi-
——————
1 Nor did his petition for rehearing, which was also denied. Foster v.
Georgia, 492 U. S. 928 (1989).
2 See Zant v. Foster, 261 Ga. 450, 406 S. E. 2d 74 (1991); Foster v.
State, 272 Ga. 69, 525 S. E. 2d 78 (2000).
3 See Foster v. Georgia, 503 U. S. 921 (1992); Foster v. Georgia, 531
U. S. 890, reh’g denied, 531 U. S. 1045 (2000).
Cite as: 578 U. S. ____ (2016) 3
ALITO, J., concurring in judgment
cata. The opinion stated: “[T]his court notes . . . that the
following claims are not reviewable based on the doctrine
of res judicata, as the claims were raised and litigated
adversely to the petitioner on his direct appeal to the
Georgia Supreme Court.” App. 175. Included in the list of
barred claims was “Petitioner[’s] alleg[ation] that the
State used peremptory challenges in a racially discrimina-
tory manner in violation of Batson.” Id., at 175–176.
Later in its opinion, the Superior Court again referred
to the Batson claim and wrote as follows:
“The Respondent argues that this claim is not review-
able due to the doctrine of res judicata. However, be-
cause the Petitioner claims that additional evidence
allegedly supporting this ground was discovered sub-
sequent to the Georgia Supreme Court’s ruling in Fos-
ter v. State, 258 Ga. 736 (1988) [the decision affirming
Foster’s conviction on direct appeal], this court will
review the Batson claim as to whether Petitioner has
shown any change in the facts sufficient to overcome
the res judicata bar.” Id., at 192.
The court then reviewed the evidence and concluded that
it “[could not] find that the highlighting of the names of
black jurors and the notation of their race can serve to
override this previous consideration [on direct appeal].”
Id., at 193. Because “all jurors in this case, regardless of
race, were thoroughly investigated and considered before
the State exercised its peremptory challenges,” the court
found that “Petitioner fail[ed] to demonstrate purposeful
discrimination on the basis that the race of prospective
jurors was either circled, highlighted or otherwise noted
on various lists.” Id., at 195. Thus, the court held that the
Batson claim was “without merit.” App. 196.
Foster subsequently sought review of the Superior
Court’s decision in the Georgia Supreme Court, but that
court refused to issue a certificate of probable cause (CPC)
4 FOSTER v. CHATMAN
ALITO, J., concurring in judgment
to appeal. In its entirety, the State Supreme Court order
states:
“Upon consideration of the Application for Certifi-
cate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied. All the
Justices concur, except Benham, J., who dissents.”
Id., at 246.
Foster sought review of this decision, and this Court
granted certiorari to review the decision of the Georgia
Supreme Court. 575 U. S. ___ (2015).
II
The decision of the Georgia Supreme Court was a deci-
sion on the merits of Foster’s Batson claim, as presented
in his state habeas petition. See Ga. Sup. Ct. Rule 36
(2016) (a CPC to appeal a final judgment in a habeas
corpus case involving a criminal conviction “will be issued
where there is arguable merit”); Hittson v. Warden, 759 F.
3d 1210, 1232 (CA11 2014) (The Georgia Supreme Court’s
standard for denying a CPC “clearly constitutes an adjudi-
cation on the merits”). Thus, what the Georgia Supreme
Court held was that Foster’s Batson claim, as presented in
his state habeas petition, lacked arguable merit.
That holding was likely based at least in part on state
law. As noted, the Superior Court quite clearly held that
Foster’s Batson claim was barred by res judicata. That
conclusion, to be sure, was not entirely divorced from the
merits of his federal constitutional claim, since the court
went on to discuss the evidence advanced by petitioner in
support of his argument that the prosecution’s strikes of
black members of the venire were based on race. Rather,
it appears that the Superior Court understood state law to
permit Foster to obtain reconsideration of his previously
rejected Batson claim only if he was able to show that a
“change in the facts” was “sufficient to overcome the res
Cite as: 578 U. S. ____ (2016) 5
ALITO, J., concurring in judgment
judicata bar.” App. 192.
In concluding that Foster’s renewed Batson claim was
required to meet a heightened standard, the Superior
Court appears to have been following established Georgia
law. Some Georgia cases seem to stand for the proposition
that the bar is absolute, at least in some circumstances.
See, e.g., Roulain v. Martin, 266 Ga. 353, 466 S. E. 2d 837,
839 (1996) (“Since this issue was raised and resolved in
Martin’s direct appeal, it should not have been read-
dressed by the habeas court”); Davis v. Thomas, 261 Ga.
687, 689, 410 S. E. 2d 110, 112 (1991) (“This issue was
raised on direct appeal, and this court determined that it
had no merit. Davis recognizes the principle that one who
had an issue decided adversely to him on direct appeal is
precluded from relitigating that issue on habeas corpus”);
Gunter v. Hickman, 256 Ga. 315, 316, 348 S. E. 2d 644,
645 (1986) (“This issue was actually litigated, i.e., raised
and decided, in the appellant’s direct appeal . . . . For this
reason, the issue cannot be reasserted in habeas-corpus
proceedings”); Elrod v. Ault, 231 Ga. 750, 204 S. E. 2d 176(1974) (“After an appellate review the same issues will not
be reviewed on habeas corpus”). Other decisions, however,
allow a defendant to overcome res judicata if he can pro-
duce newly discovered evidence that was not “reasonably
available” to him on direct review. Gibson v. Head, 282
Ga. 156, 159, 646 S. E. 2d 257, 260 (2007); see also Gibson
v. Ricketts, 244 Ga. 482, 483, 260 S. E. 2d 877, 878 (1979).4
——————
4 Georgia res judicata law may also include a “miscarriage of justice”
exception, but that appears to capture only the exceptionally rare claim
of actual innocence, and so is not at issue here. See Walker v. Penn, 271
Ga. 609, 611, 523 S. E. 2d 325, 327 (1999) (“The term miscarriage of
justice is by no means to be deemed synonymous with procedural irregu-
larity, or even with reversible error. To the contrary, it demands a much
greater substance, approaching perhaps the imprisonment of one who,
not only is not guilty of the specific offense for which he is convicted, but,
further, is not even culpable in the circumstances under inquiry. (A plain
example is a case of mistaken identity)” (brackets omitted)).
6 FOSTER v. CHATMAN
ALITO, J., concurring in judgment
In restricting the relitigation of previously rejected
claims, Georgia is not alone. “[W]e have long and consist-
ently affirmed that a collateral challenge may not do
service for an appeal.” United States v. Frady, 456 U. S.
152, 165 (1982). Accordingly, at least as a general rule,
federal prisoners may not use a motion under 28 U. S. C.
§2255 to relitigate a claim that was previously rejected on
direct appeal. See, e.g., Reed v. Farley, 512 U. S. 339, 358
(1994) (Scalia, J., concurring in part and concurring in
judgment) (“[C]laims will ordinarily not be entertained
under §2255 that have already been rejected on direct
review”); Withrow v. Williams, 507 U. S. 680, 721 (1993)
(Scalia, J., concurring in part and dissenting in part)
(“[A]bsent countervailing considerations, district courts
may refuse to reach the merits of a constitutional claim
previously raised and rejected on direct appeal”); United
States v. Lee, 715 F. 3d 215, 224 (CA8 2013); Rozier v.
United States, 701 F. 3d 681, 684 (CA11 2012); United
States v. Roane, 378 F. 3d 382, 396, n. 7 (CA4 2004); United
States v. Webster, 392 F. 3d 787, 791 (CA5 2004); White
v. United States, 371 F. 3d 900, 902 (CA7 2004); United
States v. Jones, 918 F. 2d 9, 10–11 (CA2 1990); United
States v. Prichard, 875 F. 2d 789, 790–791 (CA10 1989).
Cf. Davis v. United States, 417 U. S. 333, 342 (1974). As
we have said, “[i]t has, of course, long been settled law
that an error that may justify reversal on direct appeal
will not necessarily support a collateral attack on a final
judgment. The reasons for narrowly limiting the grounds
for collateral attack on final judgments are well known
and basic to our adversary system of justice.” United
States v. Addonizio, 442 U. S. 178, 184 (1979) (footnote
omitted).
In accordance with this principle, federal law provides
that a state prisoner may not relitigate a claim that was
rejected in a prior federal habeas petition. See 28 U. S. C.
§§2244(b)(1)–(3). And even when a state prisoner’s second
Cite as: 578 U. S. ____ (2016) 7
ALITO, J., concurring in judgment
or successive federal habeas petition asserts a new federal
constitutional claim based on what is asserted to be new
evidence, the claim must be dismissed unless a very de-
manding test is met. See §2244(b)(2)(B) (“[T]he factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence”; and the
facts must “be sufficient to establish by clear and convinc-
ing evidence that . . . no reasonable factfinder would have
found the applicant guilty”).
“[T]he principle of finality” is “essential to the operation
of our criminal justice system.” Teague v. Lane, 489 U. S.
288, 309 (1989) (plurality opinion). Thus, once a criminal
conviction becomes final—as Foster’s did 30 years ago—
state courts need not remain open indefinitely to relitigate
claims related to that conviction which were raised and
decided on direct review. States are under no obligation to
permit collateral attacks on convictions that have become
final, and if they allow such attacks, they are free to limit
the circumstances in which claims may be relitigated.
To the extent that the decision of the Georgia Supreme
Court was based on a state rule restricting the relitigation
of previously rejected claims, the decision has a state-law
component, and we have no jurisdiction to review a state
court’s decision on a question of state law. See 28 U. S. C.
§1257(a). This Court, no less than every other federal
court, has “an independent obligation to ensure that [we]
do not exceed the scope of [our] jurisdiction, and therefore
[we] must raise and decide jurisdictional questions that
the parties either overlook or elect not to press.” Hender-
son v. Shinseki, 562 U. S. 428, 434 (2011).
III
“This Court long has held that it will not consider an
issue of federal law on direct review from a judgment of a
state court if that judgment rests on a state-law ground
that is both ‘independent’ of the merits of the federal claim
8 FOSTER v. CHATMAN
ALITO, J., concurring in judgment
and an ‘adequate’ basis for the court’s decision,” Harris v.
Reed, 489 U. S. 255, 260 (1989), and like the Court (and
both petitioner and respondent) I agree that we cannot
conclude from the brief order issued by the Supreme Court
of Georgia that its decision was based wholly on state law.
It is entirely possible that the State Supreme Court
reached a conclusion about the effect of the state res judi-
cata bar based in part on as assessment of the strength of
Foster’s Batson claim or the extent to which the new
evidence bolstered that claim. And if that is what the
State Supreme Court held, the rule that the court applied
was an amalgam of state and federal law.
By the same token, however, the state-law res judicata
rule applied by the Superior Court is clearly not like the
rule in Ake v. Oklahoma, 470 U. S. 68 (1985), which ap-
pears to have been entirely dependent on federal law. In
Ake, a prisoner argued that due process entitled him to
obtain the services of a psychiatrist in order to prove that
he was insane at the time when he committed a murder.
The Oklahoma courts concluded that Ake’s claim was
waived, but the Oklahoma waiver rule essentially made
an exception for any case in which there was a violation of
a fundamental federal constitutional right. See id., at 74–
75 (“The Oklahoma waiver rule does not apply to funda-
mental trial error,” including “federal constitutional errors
[that] are ‘fundamental’ ”). Thus, the state waiver rule
was entirely dependent on federal law, and this Court
therefore held that it had jurisdiction to review the under-
lying constitutional question—whether Ake was entitled
to a psychiatrist. Then, having found a constitu-
tional violation, the Court remanded for a new trial. Id.,at 86–87.
The res judicata rule applied by the Superior Court in
this case is quite different. That court obviously did not
think that Georgia law included an Ake-like exception that
would permit a defendant to overcome res judicata simply
Cite as: 578 U. S. ____ (2016) 9
ALITO, J., concurring in judgment
by making the kind of showing of federal constitutional
error that would have been sufficient when the claim was
first adjudicated. Accordingly, Ake does not mean that we
can simply disregard the possibility that the decision
under review may have a state-law component.
Our cases chart the path that we must follow in a situa-
tion like the one present here. When “a state court’s
interpretation of state law has been influenced by an
accompanying interpretation of federal law,” the proper
course is for this Court to “revie[w] the federal question on
which the state-law determination appears to have been
premised. If the state court has proceeded on an incorrect
perception of federal law, it has been this Court’s practice
to vacate the judgment of the state court and remand the
case so that the court may reconsider the state-law ques-
tion free of misapprehensions about the scope of federal
law.” Three Affiliated Tribes of Fort Berthold Reservation
v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). See
also S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D.
Himmelfarb, Supreme Court Practice 212 (10th ed. 2013).
In a situation like the one presented here, the correct
approach is for us to decide the question of federal law and
then to remand the case to the state court so that it can
reassess its decision on the state-law question in light of
our decision on the underlying federal issue.5
IV
I agree with the Court that the totality of the evidence
now adduced by Foster is sufficient to make out a Batson
violation. On remand, the Georgia Supreme Court is
——————
5 The Court relies on Ake solely for the proposition, with which I
agree, that we have jurisdiction to review the federal question whether
the totality of the circumstances (that is, all the facts brought to the
attention of the state courts on direct appeal and collateral review)
make out a Batson claim. Ante, at 9, n. 4. Thus, the Court does not
preclude consideration of state law issues on remand. See ante, at 25.
10 FOSTER v. CHATMAN
ALITO, J., concurring in judgment
bound to accept that evaluation of the federal question,
but whether that conclusion justifies relief under state res
judicata law is a matter for that court to decide.
Compliance with Batson is essential to ensure that
defendants receive a fair trial and to preserve the public
confidence upon which our system of criminal justice
depends. But it is also important that this Court respect
the authority of state courts to structure their systems of
postconviction review in a way that promotes the expedi-
tious and definitive disposition of claims of error.
Until recently, this Court rarely granted review of state-
court decisions in collateral review proceedings, preferring
to allow the claims adjudicated in such proceedings to be
decided first in federal habeas proceedings. See Lawrence
v. Florida, 549 U. S. 327, 335 (2007) (“[T]his Court rarely
grants review at this stage of the litigation even when the
application for state collateral relief is supported by argu-
ably meritorious federal constitutional claims, choosing
instead to wait for federal habeas proceedings” (internal
quotation marks omitted)); Kyles v. Whitley, 498 U. S. 931,
932 (1990) (Stevens, J., concurring in denial of stay of
execution); Huffman v. Florida, 435 U. S. 1014, 1017–1018
(1978) (Stevens, J., respecting denial of certiorari). When
cases reach this Court after habeas review in the lower
federal courts, the standards of review set out in the Anti-
terrorism and Effective Death Penalty Act of 1996, 28
U. S. C. §2254, apply. Recently, this Court has evidenced
a predilection for granting review of state-court decisions
denying postconviction relief, see, e.g., Wearry v. Cain, 577
U. S. __ (2016) (per curiam). Particularly in light of that
trend, it is important that we do not lightly brush aside
the States’ legitimate interest in structuring their systems
of postconviction review in a way that militates against
repetitive litigation and endless delay.
Cite as: 578 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
GEORGIA
[May 23, 2016]
JUSTICE THOMAS, dissenting.
Thirty years ago, Timothy Foster confessed to murder-
ing Queen Madge White after sexually assaulting her with
a bottle of salad dressing. In the decades since, Foster has
sought to vacate his conviction and death sentence on the
ground that prosecutors violated Batson v. Kentucky, 476
U. S. 79 (1986), when they struck all black prospective
jurors before his trial. Time and again, the state courts
have rejected that claim. The trial court twice rejected it,
and the Supreme Court of Georgia unequivocally rejected
it when Foster directly appealed his conviction and sen-
tence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374
S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S.
1085 (1989). A state habeas court rejected it in 2013.
App. 175–176, 192–196. And most recently, the Supreme
Court of Georgia again rejected it as lacking “arguable
merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.
Yet, today—nearly three decades removed from
voir dire—the Court rules in Foster’s favor. It does so
without adequately grappling with the possibility that we
lack jurisdiction. Moreover, the Court’s ruling on the
merits, based, in part, on new evidence that Foster pro-
cured decades after his conviction, distorts the deferential
Batson inquiry. I respectfully dissent.
2 FOSTER v. CHATMAN
THOMAS, J., dissenting
I
Federal law authorizes us to review the “judgments or
decrees rendered by the highest court of a State in which a
decision could be had,” 28 U. S. C. §1257(a), but only if
such a judgment or decree raises a question of federal law,
Michigan v. Long, 463 U. S. 1032, 1038 (1983). The Court
today errs by assuming that the Supreme Court of Geor-
gia’s one-line order—the “judgmen[t] . . . rendered by the
highest court of a State in which a decision could be had,”
§1257—raises such a question. See ante, at 7–8. The far
more likely explanation for the court’s denial of habeas
relief is that Foster’s claim is procedurally barred. This
disposition is ordinarily a question of state law that this
Court is powerless to review. Before addressing the mer-
its of Foster’s Batson claim, the Court should have sought
clarification that the resolution of a federal question was
implicated in the Georgia high court’s decision.
A
The Supreme Court of Georgia’s order in this case states
in full: “Upon consideration of the Application for Certifi-
cate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied.” App. 246.
Neither that order nor Georgia law provides adequate
assurance that this case raises a federal question.
Under Georgia law, a state prisoner may file a state
habeas petition in a state superior court. Ga. Code Ann.
§§9–14–41 to 9–14–43 (2015). If the state superior court
denies the petition, then the prisoner may appeal to the
Supreme Court of Georgia, which has exclusive jurisdic-
tion over habeas corpus cases, by timely filing a notice of
appeal in the superior court and applying for a certificate
of probable cause in the supreme court. See Fullwood v.
Sivley, 271 Ga. 248, 250–251, 517 S. E. 2d 511, 513–515
(1999) (discussing requirements of §9–14–52). Much like
certificates of appealability in federal court, Miller-El v.
Cite as: 578 U. S. ____ (2016) 3
THOMAS, J., dissenting
Cockrell, 537 U. S. 322, 336 (2003), a Georgia prisoner
must establish in his application that at least one of his
claims has “arguable merit.” Ga. Sup. Ct. Rule 36. If he
cannot, the Supreme Court of Georgia summarily denies
relief by denying the certificate of probable cause. Ibid.;
see also §9–14–52(b); Hittson v. GDCP Warden, 759 F. 3d
1210, 1231–1232 (CA11 2014). If he can, then the court
affords plenary review of the arguably meritorious claim.
See, e.g., Sears v. Humphrey, 294 Ga. 117, 117–118, 751
S. E. 2d 365, 368 (2013); Hillman v. Johnson, 297 Ga. 609,
611, 615, n. 5, 774 S. E. 2d 615, 617, 620, n. 5 (2015). The
most we can glean, therefore, from the summary denial of
Foster’s state habeas petition is that the Supreme Court of
Georgia concluded that Foster’s claim lacked “arguable
merit.”
The most obvious ground for deciding that Foster’s
claim lacked “arguable merit” is that the Supreme Court
of Georgia already considered that claim and rejected it
decades ago.1 Georgia law prohibits Foster from raising
the same claim anew in his state habeas petition. See,
——————
1 That is obvious, in part, because the Superior Court rested on this
procedural bar to deny Foster’s Batson claim. See, e.g., App. 175–176.
We need not blind ourselves to that lurking state-law ground merely
because the Supreme Court of Georgia denied relief in an unexplained
order. As we would do in the federal habeas context, we may “look
through” to the last reasoned state-court opinion to discern whether
that opinion rested on state-law procedural grounds. Ylst v. Nunne-
maker, 501 U. S. 797, 806 (1991). If “the last reasoned opinion on the
claim explicitly imposes a procedural default,” then there is a rebut-
table presumption “that a later decision rejecting the claim did not
silently disregard that bar and consider the merits.” Id., at 803; see
also, e.g., Kernan v. Hinojosa, ante, at 3 ( per curiam). We presume, in
other words, that the decision rests on a question of state law. That
presumption arguably plays an even more important role in a state-
court case like this, where a state-law procedural defect would oust this
Court of its jurisdiction. See Coleman v. Thompson, 501 U. S. 722, 730
(1991) (distinguishing a state-law procedural bar’s effect on a state case
from its effect in federal habeas).
4 FOSTER v. CHATMAN
THOMAS, J., dissenting
e.g., Davis v. Thomas, 261 Ga. 687, 689, 410 S. E. 2d 110,
112 (1991). “It is axiomatic” in the Georgia courts “that a
habeas court is not to be used as a substitute for an ap-
peal, or as a second appeal.” Walker v. Penn, 271 Ga. 609,
612, 523 S. E. 2d 325, 327 (1999). Without such proce-
dural bars, state prisoners could raise old claims again and
again until they are declared victorious, and finality would
mean nothing. See Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 145 (1970) (“The proverbial man from Mars
would surely think we must consider our system of crimi-
nal justice terribly bad if we are willing to tolerate such
efforts at undoing judgments of conviction”).
I would think that this state-law defect in Foster’s state
habeas petition would be the end of the matter: “Because
this Court has no power to review a state law determina-
tion that is sufficient to support the judgment, resolution
of any independent federal ground for the decision could
not affect the judgment and would therefore be advisory.”
Coleman v. Thompson, 501 U. S. 722, 729 (1991). It is
fundamental that this Court’s “only power over state
judgments is to correct them to the extent that they incor-
rectly adjudge federal rights.” Herb v. Pitcairn, 324 U. S.
117, 125–126 (1945). If an adequate and independent
state-law ground bars Foster’s claim, then the Court today
has done nothing more than issue an impermissible advi-
sory opinion.
B
To assure itself of jurisdiction, the Court wrongly as-
sumes that the one-line order before us implicates a federal
question. See ante, at 7–8. The lurking state-law proce-
dural bar, according to the Court, is not an independent
state-law ground because it “depends on a federal consti-
tutional ruling.” Ante, at 7 (internal quotation marks
omitted).
Cite as: 578 U. S. ____ (2016) 5
THOMAS, J., dissenting
I would not so hastily assume that the State Supreme
Court’s unelaborated order depends on the resolution of a
federal question without first seeking clarification from
the Supreme Court of Georgia. To be sure, we often pre-
sume that a “state court decide[s] the case the way it did
because it believed that federal law required it to do so.”
Long, 463 U. S., at 1040–1041. But there still exist “cer-
tain circumstances in which clarification [from the state
court] is necessary or desirable” before delving into the
merits of a state court’s decision. Id., at 1041, n. 6.
This case presents such a circumstance. The Long
presumption assumes that the ambiguous state-court
ruling will come in the form of a reasoned decision: It
applies in cases in which “it is not clear from the opinion
itself that the state court relied upon an adequate and
independent state ground and when it fairly appears that
the state court rested its decision primarily on federal
law.” Id., at 1042 (emphasis added). But here, when the
decision is a one-line judgment, it hardly makes sense to
invoke the Long presumption. There is neither an “opin-
ion” nor any resolution of federal law that “fairly appears”
on the face of the unexplained order. Ibid.Confronted with cases like this in the past, this Court
has vacated and remanded for clarification from the state
court before proceeding to decide the merits of the under-
lying claim. I would follow that path instead of assuming
that the one-line order implicates a federal question. We
have “decline[d] . . . to review the federal questions asserted
to be present” when “ ‘there is considerable uncertainty
as to the precise grounds for the [state court’s] decision.’ ”
Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70,
78 (2000) (per curiam) (quoting Minnesota v. National Tea
Co., 309 U. S. 551, 555 (1940)). A fortiori, when a State’s
highest court has denied relief without any explanation,
the proper course is to vacate and remand for clarification
before reaching the merits of a federal question that might
6 FOSTER v. CHATMAN
THOMAS, J., dissenting
have nothing to do with the state court’s decision. See,
e.g., Capital Cities Media, Inc. v. Toole, 466 U. S. 378(1984) (per curiam); see also, e.g., Johnson v. Risk, 137
U. S. 300, 306–307 (1890). This course respects weighty
federalism concerns. “It is fundamental that state courts
be left free and unfettered by us” in interpreting their own
law, National Tea Co., supra, at 557, especially when a
state prisoner’s long-final conviction is at stake.
Clarification is especially warranted here. Nothing in
the reported decisions of the Supreme Court of Georgia
suggests that federal law figures in how Georgia applies
its res judicata procedural bar. Those decisions state that
“new law or new facts” could “justify the reconsideration of
the claims . . . raised on direct appeal,” Hall v. Lance, 286
Ga. 365, 376–377, 687 S. E. 2d 809, 818 (2010), as might a
showing that the prisoner is actually innocent, Walker,
supra, at 611, 523 S. E. 2d, at 327. But it is for the Su-
preme Court of Georgia—not this Court—to decide what
new facts suffice to reopen a claim already decided against
a state habeas petitioner. It is up to the Georgia courts,
for example, to decide whether a petitioner was diligent in
discovering those new facts, see, e.g., Gibson v. Head, 282
Ga. 156, 159, 646 S. E. 2d 257, 260 (2007) (noting that
whether a petitioner could overcome the procedural bar
“depend[ed] on factual findings” including “the precise
timing of [his] discovery of ” the new evidence), or whether
the new facts are “material,” Rollf v. Carter, 298 Ga. 557,
558, ___ S. E. 2d ___, ___ (2016).
Instead of leaving the application of Georgia law to the
Georgia courts, the Court takes it upon itself to decide
that the procedural bar implicates a federal question.
Worse still, the Court surmises that Georgia’s procedural
bar depends on the resolution of a federal question by
parsing the wrong court’s decision, the opinion of the
Superior Court of Butts County. Ante, at 7–8. Invoking
Ake v. Oklahoma, 470 U. S. 68, 75 (1985), the Court rea-
Cite as: 578 U. S. ____ (2016) 7
THOMAS, J., dissenting
sons that “the state habeas court’s application of res judi-
cata to Foster’s Batson claim was not independent of the
merits of his federal constitutional challenge.” Ante, at 8.
(emphasis added). Accordingly, whether Foster has al-
leged a sufficient “ ‘change in the facts’ ” to overcome the
Georgia procedural bar depends on whether Foster’s Bat-
son claim would succeed in light of those changed facts.
Ante, at 7–8. But the State Superior Court’s opinion is not
the “judgmen[t] . . . by the highest court of [Georgia] in
which a decision could be had” subject to our certiorari
jurisdiction. 28 U. S. C. §1257. The unexplained denial of
relief by the Supreme Court of Georgia is.
I cannot go along with the Court’s decision to assure
itself of its jurisdiction by attributing snippets of the State
Superior Court’s reasoning to the Supreme Court of Geor-
gia. The reported decisions of the Supreme Court of Geor-
gia do not resolve what “type of new alleged facts . . . could
ever warrant setting aside the procedural bar,” Hall,
supra, at 377, 687 S. E. 2d, at 818, let alone intimate that
a prisoner may relitigate a claim already decided against
him merely because he might win this second time around.
Cf. Roulain v. Martin, 266 Ga. 353, 354, 466 S. E. 2d 837,
839 (1996) (opining that a state habeas court “would cer-
tainly be bound by the ruling [in the petitioner’s direct
appeal] regardless of whether that ruling may be errone-
ous”). I therefore refuse to presume that the unexplained
denial of relief by the Supreme Court of Georgia presents
a federal question.2
——————
2 The Court takes me to task for not “follow[ing my] own rule,” ante,
at 8–9, n. 3, because I acknowledge that the State Superior Court’s
decision is strong evidence that Foster’s claim was denied as procedur-
ally defaulted. See supra, at 3–4, and n. 1. It is one thing to look to the
reasoning of a lower state court’s decision to confirm that the Court
lacks jurisdiction. It is quite another for the Court to probe that lower
state court’s decision to assure itself of jurisdiction. The Court reads
the tea leaves of a single State Superior Court’s decision to decide that
8 FOSTER v. CHATMAN
THOMAS, J., dissenting
The Court today imposes an opinion-writing require-
ment on the States’ highest courts. Lest those high courts
be subject to lengthy digressions on constitutional claims
that might (or might not) be at issue, they must offer
reasoned opinions why—after rejecting the same claim
decades ago—they refuse to grant habeas relief now. But
“[o]pinion-writing practices in state courts are influenced
by considerations other than avoiding scrutiny by collat-
eral attack in federal court,” including “concentrat[ing
their] resources on the cases where opinions are most
needed.” Harrington v. Richter, 562 U. S. 86, 99 (2011).
Rather than demand detailed opinions of overburdened
state courts, the Court should vacate and remand cases
such as this one to assure itself of its jurisdiction.
II
The Court further errs by deciding that Foster’s Batson
claim has arguable merit. Because the adjudication of his
Batson claim is, at bottom, a credibility determination, we
owe “great deference” to the state court’s initial finding
that the prosecution’s race-neutral reasons for striking
veniremen Eddie Hood and Marilyn Garrett were credible.
Batson, 476 U. S., at 98, n. 21. On a record far less cold
than today’s, the Supreme Court of Georgia long ago (on
direct appeal) rejected that claim by giving great deference
to the trial court’s credibility determinations. Evaluating
the strike of venireman Hood, the court highlighted that
his son had been convicted of a misdemeanor and that
——————
the state-law procedural bar depends on the resolution of a federal
question. That is a question of Georgia law that is best answered by
the decisions of the Supreme Court of Georgia. See Commissioner v.
Estate of Bosch, 387 U. S. 456, 465 (1967) (concluding that when “the
underlying substantive rule involved is based on state law,” “the State’s
highest court is the best authority on its own law”); cf. King v. Order of
United Commercial Travelers of America, 333 U. S. 153, 160–162 (1948)
(rejecting an unreported state trial court decision as binding under Erie
R. Co. v. Tompkins, 304 U. S. 64 (1938)).
Cite as: 578 U. S. ____ (2016) 9
THOMAS, J., dissenting
both his demeanor and religious affiliation indicated that
he might be reluctant to impose the death penalty. Foster,
258 Ga., at 738, 374 S. E. 2d, at 192. And the prosecution
reasonably struck venireman Garrett, according to the
court, because it feared that she would sympathize with
Foster given her work with “low-income, underprivileged
children” and because she was “related to someone with a
drug or alcohol problem.” Id., at 739, 374 S. E. 2d, at 192.
That should have been the last word on Foster’s Batson
claim.
But now, Foster has access to the prosecution’s file. By
allowing Foster to relitigate his Batson claim by bringing
this newly discovered evidence to the fore, the Court up-
ends Batson’s deferential framework. Foster’s new evi-
dence does not justify this Court’s reassessment of who
was telling the truth nearly three decades removed from
voir dire.
A
The new evidence sets the tone for the Court’s analysis,
but a closer look reveals that it has limited probative
value. For this reason, the Court’s conclusion that the
prosecution violated Batson rests mostly on arguments at
Foster’s disposal decades ago. See ante, at 14–16 (conclud-
ing that trial transcripts belie proffered reasons for strik-
ing Garrett); ante, at 17–22 (relying on transcripts and
briefs as evidence of the prosecution’s shifting explana-
tions for striking Hood). The new evidence is no excuse
for the Court’s reversal of the state court’s credibility
determinations.
As even the Court admits, ante, at 9–10, we do not know
who wrote most of the notes that Foster now relies upon
as proof of the prosecutors’ race-based motivations. We do
know, however, that both prosecutors averred that they
“did not make any of the highlighted marks on the jury
venire list” and “did not instruct anyone to make the green
10 FOSTER v. CHATMAN
THOMAS, J., dissenting
highlighted marks.” App. 168–169, 171. In particular,
prosecutor Stephen Lanier reaffirmed his earlier testi-
mony, given during Foster’s hearing for a new trial, that he
relied only on race-neutral factors in striking the jury. Id.,
at 169; see also id., at 80–125. And, prosecutor Douglas
Pullen swore that he “did not rely on the highlighted jury
venire list.” Id., at 171.
The hazy recollections of the prosecution’s investigator,
Clayton Lundy, are not to the contrary. As part of the
postconviction proceedings, Lundy testified that he
“[v]aguely” remembered parts of jury selection, he “kind of
remember[ed]” some of the documents used during jury
selection, and cautioned that he “ain’t done this in a long
time.” Tr. 181–182. (When Lundy testified in 2006, nearly
20 years had passed since Foster’s trial and he had
changed careers. Id., at 174.) He thought others at the
district attorney’s office “probably” passed venire lists
around the office and “guess[ed]” that everyone would
make notations. Id., at 182, 190.
As for the other documents in the prosecution’s file,
Lundy could not identify who authored any of them, with
two exceptions.3 First, Lundy said he prepared handwrit-
ten lists describing seven veniremen, including Garrett,
but her race is not mentioned. See id., at 205; App. 293–
294. Second, Lundy “guess[ed]” that prosecutor Lanier
suggested the handwritten edits to a draft of an affidavit
that Lundy later submitted to the trial court. Tr. 203; see
App. 343–347 (draft affidavit); id., at 127–129 (final affi-
——————
3 At oral argument, counsel for Georgia also stipulated that “one of
the two prosecutors” must have drafted another document comprising a
“definite NO’s” list and a “questionables” list of veniremen. Tr. of Oral
Arg. 45; App. 301. Both veniremen Hood and Garrett appeared on the
“definite NO’s” list. Of course we cannot know when these lists were
created, or whether Lanier himself relied upon them. See Tr. of Oral
Arg. 45 (calling into question whether Lanier’s “thought process” was
based on those lists).
Cite as: 578 U. S. ____ (2016) 11
THOMAS, J., dissenting
davit). The relevant edits suggested deleting two state-
ments that, “solely [in Lundy’s] opinion,” prosecutors
ought to pick Garrett “[i]f it comes down to having to pick
one of the black jurors.” Id., at 345 (emphasis added).
Perhaps this look inside the district attorney’s office re-
veals that the office debated internally who would be the
best black juror. Or perhaps it reveals only Lundy’s per-
sonal thoughts about selecting black jurors, an “opinion”
with which (we can “guess”) Lanier disagreed.
The notion that this “newly discovered evidence” could
warrant relitigation of a Batson claim is flabbergasting.
In Batson cases, the “decisive question will be whether
counsel’s race-neutral explanation for a peremptory chal-
lenge should be believed.” Hernandez v. New York, 500
U. S. 352, 365 (1991) (plurality opinion). And because
“[t]here will seldom be much evidence bearing on that
issue,” “the best evidence often will be the demeanor of the
attorney who exercises the challenge.” Ibid. Time and
again, we have said that the credibility of the attorney is
best judged by the trial court and can be overturned only if
it is clearly erroneous. See ibid.; see also Snyder v. Loui-
siana, 552 U. S. 472, 477 (2008); Miller-El, 537 U. S., at
339; Hernandez, supra, at 375 (O’Connor, J., concurring in
judgment).
But the Court today invites state prisoners to go search-
ing for new “evidence” by demanding the files of the prose-
cutors who long ago convicted them. If those prisoners
succeed, then apparently this Court’s doors are open to
conduct the credibility determination anew. Alas, “every
end is instead a new beginning” for a majority of this
Court. Welch v. United States, ante, at 15 (THOMAS, J.,
dissenting). I cannot go along with that “sort of sandbag-
ging of state courts.” Miller-El v. Dretke, 545 U. S. 231,
279 (2005) (THOMAS, J., dissenting). New evidence should
not justify the relitigation of Batson claims.
12 FOSTER v. CHATMAN
THOMAS, J., dissenting
B
Perhaps the Court’s decision to reconsider a decades-old
Batson claim based on newly discovered evidence would be
less alarming if the new evidence revealed that the trial
court had misjudged the prosecutors’ reasons for striking
Garrett and Hood. It does not. Not only is the probative
value of the evidence severely limited, supra, at 8–11, but
also pieces of the new evidence corroborate the trial court’s
conclusion that the race-neutral reasons were valid. The
Court’s substitution of its judgment for the trial court’s
credibility determinations is flawed both as a legal and
factual matter.
1
The Court’s analysis with respect to Hood is unavailing.
The Court first compares Hood with other jurors who had
similarly aged children, ante, at 18–19, just as the trial
court did decades ago, App. 135–136. The trial court was
well aware that Hood’s son’s conviction was for theft, not
murder. But in the words of the trial court, “the convic-
tion is a distinction that makes the difference” between
Hood and the other jurors, and the prosecution’s “appre-
hension that this would tend to, perhaps only subcon-
sciously, make the venireman sympathetic to [Foster] was
a rational one.” Ibid. Because “the trial court believe[d]
the prosecutor’s nonracial justification, and that finding is
not clearly erroneous, that [should be] the end of the mat-
ter.” Hernandez, supra, at 375 (O’Connor, J., concurring
in judgment).
The Court also second-guesses the prosecution’s strike
of Hood because of his questionable stance on the death
penalty. The Court concludes that Hood’s transcribed
statements at voir dire “unequivocally voiced [Hood’s]
willingness to impose the death penalty.” Ante, at 22.
There is nothing unequivocal about a decades-old record.
Our case law requires the Court to defer to the trial court’s
Cite as: 578 U. S. ____ (2016) 13
THOMAS, J., dissenting
finding that the State’s race-neutral concerns about Hood’s
“soft-spoken[ness] and slow[ness] in responding to the
death penalty questions” were “credible.” App. 138; see
Snyder, supra, at 477 (“[R]ace-neutral reasons for peremp-
tory challenges often invoke a juror’s demeanor (e.g.,
nervousness, inattention), making the trial court’s
firsthand observations of even greater importance”). The
“evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies peculiarly within a trial
judge’s province.” Hernandez, supra, at 365 (plurality
opinion) (internal quotation marks omitted).
The new evidence, moreover, supports the prosecution’s
concern about Hood’s views on capital punishment. A
handwritten document in the prosecution’s file stated that
the Church of Christ “doesn’t take a stand on [the] Death
Penalty.” App. 302. Perplexingly, the Court considers this
proof that the prosecution misled the trial court about its
reasons for striking Hood. Ante, at 20–21. Hardly. That
document further states that capital punishment is an
issue “left for each individual member,” App. 302, and
thus in no way discredits the prosecutor’s statement that,
in his experience, “Church of Christ people, while they
may not take a formal stand against the death penalty, . . .
are very, very reluctant to vote for the death penalty.” Id.,
at 84. And other notes in the file say that Hood gave “slow
D[eath] P[enalty] answers” and that he “hesitated . . .
when asked about [the] D[eath] P[enalty].” Id., at 295,
303. This new evidence supports the prosecution’s stated
reason for striking Hood—that he, as a member of the
Church of Christ, had taken an uncertain stance on capi-
tal punishment.
2
Likewise, the Court’s evaluation of the strike of Garrett
is riddled with error. The Court is vexed by a single mis-
representation about the prosecution’s decision to strike
14 FOSTER v. CHATMAN
THOMAS, J., dissenting
Garrett—the prosecution stated that Garrett was listed as
“ ‘questionable’ ” but the new evidence reveals that Garrett
was on the “ ‘definite NO’s’ ” list from the beginning. Ante,
at 13–14. But whether the prosecution planned to strike
Garrett all along or only at the last minute seems irrele-
vant to the more than 10 race-neutral reasons the prose-
cution supplied for striking Garrett.
The prosecution feared that Garrett might sympathize
with Foster at sentencing. She worked with disadvan-
taged children, she was young, and she failed to disclose
that her cousin had been recently arrested. See App. 55–
57, 105. And prosecutors were concerned that she gave
short answers, appeared nervous, and did not ask to be off
the jury even though she was a divorced mother of two
children and worked more than 70 hours per week. See
id., at 55–56, 93–94. The prosecution also stated repeat-
edly that they were concerned about female jurors, who
“appear to be more sympathetic . . . in . . . death penalty
case[s] than men.” Id., at 42; see id., at 57.4
Pieces of the new evidence support some of these con-
cerns. The notes in the prosecutors’ file reveal that some-
one on the prosecution team was aware that Garrett’s
cousin was Angela Garrett (who had been arrested for
drug-related charges and fired from her job on the eve of
trial, id., at 105, 129), that Garrett “would not look a[t]
[the] C[our]t during V[oir] D[ire],” that she gave “very
short answers,” and that she “[l]ooked @ floor during
D[eath] P[enalty]” questioning. Id., at 293, 308.
Nevertheless, the Court frets that these indisputably
race-neutral reasons were pretextual. The Court engages
in its own comparison of the jurors to highlight the prose-
cution’s refusal to strike white jurors with similar charac-
——————
4 This Court’s decision in J. E. B. v. Alabama ex rel. T. B., 511 U. S.
127 (1994), which held that peremptory strikes on the basis of sex were
unconstitutional, postdated Foster’s direct appeal.
Cite as: 578 U. S. ____ (2016) 15
THOMAS, J., dissenting
teristics. Ante, at 14–16. But as with venireman Hood,
the Georgia courts were faced with the same contentions
regarding Garrett decades ago, and the Supreme Court of
Georgia rightly decided that the trial court’s findings were
worthy of deference. After conducting a post-trial hearing
in which one of the prosecutors testified, App. 80–125, the
trial court credited the prosecution’s concerns. The trial
court, for example, agreed that Garrett’s association with
Head Start might be troubling and “believe[d] that the
state [was] honest in voicing its concern that the combina-
tion of holding down two jobs and being the divorced
mother of two indicates a less stable home environment,”
which “was the prime defense in [Foster’s] case.” Id., at
142; see id., at 141. Again, that should be “the end of the
matter.” Hernandez, 500 U. S., at 375 (O’Connor, J.,
concurring in judgment).
* * *
Today, without first seeking clarification from Georgia’s
highest court that it decided a federal question, the Court
affords a death-row inmate another opportunity to reliti-
gate his long-final conviction. In few other circumstances
could I imagine the Court spilling so much ink over a
factbound claim arising from a state postconviction pro-
ceeding. It was the trial court that observed the venire-
men firsthand and heard them answer the prosecution’s
questions, and its evaluation of the prosecution’s credibil-
ity on this point is certainly far better than this Court’s
nearly 30 years later. See Hernandez, supra, at 365 (plu-
rality opinion). I respectfully dissent.