foster chatman warden argued november decided may petitioner timothy foster convicted capital murder sentenced death georgia jury selection trial state used peremptory challenges strike four black prospective jurors qualified serve jury foster argued state use strikes racially motivated violation batson kentucky trial rejected claim georgia affirmed foster renewed batson claim state habeas proceeding proceeding pending foster georgia open records act obtained state copies file used prosecution trial among documents file contained copies jury venire list names black prospective juror highlighted bright green legend indicating highlighting represents blacks draft affidavit investigator comparing black prospective jurors concluding comes pick one black jurors one might okay notes identifying black prospective jurors notes appearing next names black prospective jurors list titled efinite containing six names including names qualified black prospective jurors document notes church christ annotated black church questionnaires filled five prospective black jurors juror response indicating race circled state habeas denied relief noted foster batson claim adjudicated direct appeal foster renewed batson claim fail ed demonstrate purposeful discrimination concluded failed show change facts sufficient overcome state law doctrine res judicata georgia denied foster certificate probable cause necessary file appeal held jurisdiction review judgment georgia denying foster certificate probable cause batson claim although ascertain grounds unelaborated judgment indication rested state law ground independent merits foster batson claim adequate basis decision preclude jurisdiction harris reed state habeas held state law doctrine res judicata barred foster claim examining entire record determining foster alleged change facts sufficient overcome bar based lengthy batson analysis state habeas concluded foster renewed batson claim without merit state application res judicata thus depend ed federal constitutional ruling prong holding independent federal law jurisdiction precluded ake oklahoma see also three affiliated tribes fort berthold reservation wold engineering pp decision foster failed show purposeful discrimination clearly erroneous pp batson provides process adjudicating claims foster first defendant must make prima facie showing preemptory challenge exercised basis race second showing made prosecution must offer basis striking juror question third light parties submissions trial must determine whether defendant shown purposeful discrimination snyder louisiana internal quotation marks brackets omitted batson third step issue step turns factual findings made lower courts defer findings unless clearly erroneous see ibid pp foster established purposeful discrimination state strikes two black prospective jurors marilyn garrett eddie hood though trial accepted prosecution justifications strikes record belies much prosecution reasoning pp prosecution explained trial made decision strike garrett another juror shirley powell excused cause morning strikes exercised explanation flatly contradicted evidence showing garrett name appeared prosecution list efinite six prospective jurors prosecution intent striking outset record also refutes several reasons prosecution gave striking garrett instead arlene blackmon white prospective juror example state told trial struck garrett defense ask thoughts pertinent trial issues insanity alcohol publicity record reveals defense asked garrett multiple questions topic though state gave facially reasonable justifications striking garrett difficult credit state willingness accept white jurors characteristics example prosecution claims struck garrett divorced age young three four divorced white prospective jurors eight white prospective jurors age allowed serve pp ii regard prospective juror hood record similarly undermines justifications proffered state trial strike example prosecution alleged response foster pretrial batson challenge concern hood fact son age defendant subsequent hearing state told chief concern hood membership church christ end neither reasons striking hood withstands scrutiny age hood son prosecution allowed white prospective jurors sons similar age serve including one contrast hood equivocated asked whether foster age factor sentencing hood religion prosecution erroneously claimed three white church christ members excused cause opposition death penalty fact record shows jurors excused reasons unrelated views death penalty moreover document acquired state file contains handwritten note stating black church asserting church christ take stand death penalty justifications striking hood fail withstand scrutiny concerns expressed regard similar white prospective jurors pp evidence prosecutor reasons striking black prospective juror apply equally otherwise similar nonblack prospective juror allowed serve tends suggest purposeful discrimination dretke evidence compelling respect garrett hood along prosecution shifting explanations misrepresentations record persistent focus race leads conclusion striking prospective jurors motivated substantial part discriminatory intent snyder batson decided months foster trial state asserts focus black prospective jurors prosecution file effort develop maintain detailed account prosecution need defense suggestion reasons pretextual argument never raised years since foster trial reeks afterthought focus race prosecution file plainly demonstrates concerted effort keep black prospective jurors jury pp reversed remanded roberts delivered opinion kennedy ginsburg breyer sotomayor kagan joined alito filed opinion concurring judgment thomas filed dissenting opinion opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press timothy tyrone foster petitioner bruce chatman warden writ certiorari georgia may chief justice roberts delivered opinion petitioner timothy foster convicted capital murder sentenced death georgia jury selection trial state exercised peremptory strikes four black prospective jurors qualified serve foster argued state use strikes racially motivated violation decision batson kentucky trial georgia rejected foster batson claim foster sought writ habeas corpus superior butts county georgia renewing batson objection denied relief georgia declined issue certificate probable cause necessary georgia law foster pursue appeal granted certiorari reverse morning august police found queen madge white dead floor home rome georgia white widow beaten sexually assaulted strangled death home burglarized timothy foster subsequently confessed killing white white possessions recovered foster home foster two sisters state indicted foster charges malice murder burglary faced death penalty foster state district attorney stephen lanier assistant district attorney douglas pullen represented state trial jury selection proceeded two phases removals cause peremptory strikes first phase prospective juror completed detailed questionnaire prosecution defense reviewed trial conducted voir dire approximately prospective jurors throughout process parties opportunity question prospective jurors lodge challenges cause first phase whittled list qualified prospective jurors five black second phase known striking jury parties opportunity exercise peremptory strikes array qualified jurors pursuant state law prosecution ten strikes foster twenty see code ann process worked follows clerk called qualified prospective jurors one one state option exercise one peremptory strikes state declined strike particular prospective juror foster opportunity neither party exercised peremptory strike prospective juror selected service second phase continued jurors accepted morning second phase began shirley powell one five qualified black prospective jurors notified learned one close friends related foster removed powell cause left four black prospective jurors eddie hood evelyn hardge mary turner marilyn garrett striking jury commenced state exercised nine ten allotted peremptory strikes removing four remaining black prospective jurors foster immediately lodged batson challenge trial rejected objection empaneled jury jury convicted foster sentenced death following sentencing foster renewed batson claim motion new trial evidentiary hearing trial denied motion georgia affirmed denied certiorari foster georgia foster subsequently sought writ habeas corpus superior butts county georgia pressing batson claim state habeas proceeding pending foster filed series requests georgia open records act see code ann seeking access state file trial response state disclosed documents related jury selection trial state objections state habeas admitted documents evidence included following four copies jury venire list copy names black prospective jurors highlighted bright green legend upper right corner lists indicated green highlighting represents blacks see app letter also appeared next black prospective juror name see ibid according testimony clayton lundy investigator assisted prosecution jury selection highlighted venire lists circulated district attorney office jury selection allowed everybody office approximately people including ecretaries investigators district attorneys look share information contribute thoughts whether prosecution strike particular juror pl exh record lundy deposition hereinafter documents lundy testified returned lanier jury selection draft affidavit prepared lundy lanier request submission state trial response foster motion new trial typed draft detailed lundy views ten black prospective jurors stating evaluation jurors follows app name one jurors lundy written comes pick one black jurors one might okay solely opinion upon picking jury listening jurors pick pick black juror recommend juror one jurors paragraph break omitted text crossed hand version affidavit filed trial contain language see lundy testified guess ed redactions done lanier tr three handwritten notes black prospective jurors eddie hood louise wilson corrie hinds annotations denoted individuals respectively app lundy testified examples type notes team state take voir dire help select jury foster case tr typed list qualified jurors remaining voir dire app included ns next ten jurors names lundy told state habeas signif ied ten jurors state strikes jury selection tr appeared alongside names five qualified black prospective jurors see app file also included handwritten version list markings see tr lundy testified unsure prepared marked two lists handwritten document titled definite listing six names first five five qualified black prospective jurors app state concedes either lanier pullen compiled list lundy testified used preparation jury selection tr tr oral arg handwritten document titled church christ notation document read black church app questionnaires completed several black prospective jurors one juror response indicating race circled response admission evidence state introduced short affidavits lanier pullen lanier affidavit stated make highlighted marks jury venire list common practice office highlight yellow jurors prior case experience instruct anyone make green highlighted marks reaffirm testimony made motion new trial hearing used peremptory jury strikes basis reasons strikes paragraph numeral omitted pullen affidavit averred make highlighted marks jury venire list instruct anyone else make highlighted marks rely highlighted jury venire list making decision use peremptory strikes paragraph numeral omitted neither affidavit provided explanation documents neither lanier pullen testified habeas proceeding considering evidence state habeas denied relief first stated preliminary matter foster batson claim reviewable based doctrine res judicata raised litigated adversely foster direct appeal georgia app nonetheless announced mak findings fact conclusions law claim based referred batson analysis concluded foster renewed batson claim without merit fail ed demonstrate purposeful discrimination georgia denied foster certificate probable cause necessary state law pursue appeal determining claim arguable merit see code ann sup rule granted certiorari ii turning merits foster batson claim address threshold issue neither party contests jurisdiction review foster claims independent obligation determine whether jurisdiction exists even absence challenge party arbaugh lacks jurisdiction entertain federal claim review state judgment judgment rests state law ground merits federal claim basis decision harris reed state habeas noted foster batson claim reviewable based doctrine res judicata georgia law app georgia unelaborated order review provides reasoning raises question whether georgia order judgment foster sought rests adequate independent state law ground preclude jurisdiction foster federal claim conclude application state law bar depends federal constitutional ruling prong holding independent federal law jurisdiction precluded ake oklahoma see also three affiliated tribes fort berthold reservation wold engineering case georgia habeas analysis section opinion labeled batson claim proceeded follows state argues claim reviewable due doctrine res judicata however foster claims additional evidence allegedly supporting ground discovered subsequent georgia ruling direct appeal review batson claim whether foster shown change facts sufficient overcome res judicata bar app determine whether foster alleged sufficient change facts habeas engaged four pages termed batson analysis evaluated original trial record habeas record including newly uncovered prosecution file ultimately concluded foster renewed batson claim without merit emphasis added light foregoing apparent state habeas application res judicata foster batson claim independent merits federal constitutional invocation res judicata therefore poses impediment review foster batson claim see ake iii constitution forbids striking even single prospective juror discriminatory purpose snyder louisiana internal quotation marks omitted decision batson kentucky provides process determining strike discriminatory first defendant must make prima facie showing peremptory challenge exercised basis race second showing made prosecution must offer basis striking juror question third light parties submissions trial must determine whether defendant shown purposeful discrimination snyder internal quotation marks brackets omitted parties agree foster demonstrated prima facie case prosecutors offered reasons strikes therefore address batson third step step turns factual determinations absence exceptional circumstances defer state factual findings unless conclude clearly erroneous synder reviewing factual record case brief word order regarding contents prosecution file foster obtained georgia open records act requests pursuant requests foster received certif ied true correct copy pages state case file trial app state argues foster call either prosecutors stand testify state habeas proceedings speculate meaning various markings writings pages author many whether two prosecutors trial district attorney lanier assistant district attorney pullen even saw many brief respondent reasons state argues none specific pieces new evidence found file shows intent discriminate ibid capitalization omitted part foster argues question prosecutors used lists notes came prosecution file certified therefore source lists notes timing purpose hardly based reply brief quoting brief respondent state concedes prosecutors authored documents see tr oral arg admitting one two prosecutors must written list titled definite lundy testimony strongly suggests prosecutors viewed others see tr noting highlighted jury venire lists returned lanier prior jury selection however genuine questions remain provenance documents nothing record example identifies author notes listed three black prospective jurors notes necessarily attributable directly prosecutors state habeas cognizant limitations nevertheless admitted file evidence reserving determination weight going put light objections urged state record agree approach despite questions background particular notes accept state invitation blind existence made clear considering batson objection reviewing ruling claimed batson error circumstances bear upon issue racial animosity must consulted snyder said related context etermining whether invidious discriminatory purpose motivating factor demands sensitive inquiry circumstantial evidence intent may available arlington heights metropolitan housing development minimum comfortable documents file authored someone district attorney office uncertainties concerning documents pertinent potential limits probative value foster centers batson claim strikes two black prospective jurors marilyn garrett eddie hood turn first marilyn garrett according lanier morning state use strikes yet made mind remove garrett rather decided strike learning need use strike another black prospective juror shirley powell excused cause morning ultimately lanier strike garrett justifying strike trial articulated laundry list reasons specifically lanier objected garrett worked disadvantaged youth job teacher aide kept looking ground voir dire gave short curt answers voir dire appeared nervous young misrepresented familiarity location crime failed disclose cousin arrested drug charge divorced two children two jobs asked questions defense ask excused jury service see app pretrial hearing new trial hearing record pp hereinafter trial record brief opposition new trial trial accepted lanier justifications concluding totality circumstances discriminatory intent existed reasonably clear specific legitimate reasons strike app face lanier justifications strike seem reasonable enough independent examination record however reveals much reasoning provided lanier grounding fact lanier misrepresentations trial began elaborate explanation ultimately came strike garrett prosecution considered juror potential choose four remaining blacks member panel venire however system events took place morning jury selection caused excusal juror tate jury notes listed juror questionable four negative challenges allocated hardge hood turner powell morning jury selection juror powell excused cause objections efense counsel replaced juror cadle acceptable state left state additional strike anticipated allocated consequently state choose white juror blackmon juror garrett two questionable jurors state left list trial record brief opposition new trial emphasis added citations omitted lanier offered extensive list reasons striking garrett explained hese factors reference race considered prosecutor particular case result juror less desirable prosecutor viewpoint juror blackmon emphasis deleted lanier compared blackmon garrett contrast garrett juror blackmon years old married years husband works ge buying home recommended third party prosecutor longer employed northwest georgia regional hospital attended catholic church irregular basis hesitate answering questions concerning death penalty good eye contact prosecutor gave good answers insanity issue perceived prosecutor stable home environment right age association disadvantaged youth organizations ibid lanier concluded chances blackmon returning death sentence greater factors considered juror garrett consequently juror garrett excused ibid trial accepted explanation denying foster motion new trial see app predicate state account garrett listed prosecution questionable making strike decision false jury selection state went first consequence defense accept prospective juror struck state without opportunity state use strike prospective juror accordingly state pretty well select ten specific people intend ed strike advance pretrial hearing accord ibid ten people felt uncomfortable know front lanier testimony record evidence shows garrett one ten specific people much evident definite list prosecution file garrett name appeared list state concedes written one prosecutors tr oral arg list belies lanier assertion state considered allowing garrett serve title list meant said garrett definite app emphasis added state outset intent ensuring none jurors list serve first five names definite list eddie hood evelyn hardge shirley powell marilyn garrett mary turner black state struck one except powell discussed excused cause last minute though prosecution informed trial state circumstances going take powell trial record brief opposition new trial number six position white prospective juror appear informed voir dire say positively impose death penalty even evidence warranted tr super floyd hereinafter trial transcript see also short contrary prosecution submissions state resolve strike garrett never doubt see also app appears next garrett name juror list state attempts explain away contradiction definite list lanier statements trial example prosecutor merely misspeak ing brief respondent remark intricate story expounded prosecution writing laid three pages brief filed trial moreover several lanier reasons chose garrett blackmon similarly contradicted record lanier told example struck garrett defense ask questions pertinent trial issues thoughts insanity alcohol much questions publicity app pretrial hearing trial transcripts reveal defense asked several questions three topics see trial transcript two questions insanity one mental illness ibid four questions alcohol five questions publicity still explanations given prosecution explicitly contradicted record difficult credit state willingly accepted white jurors traits supposedly rendered garrett unattractive juror lanier told trial struck garrett divorced app hearing declined strike three four prospective white jurors also divorced see juror questionnaire super floyd hereinafter juror questionnaire juror juror coultas divorced juror cochran divorced juror hatch divorced app state accepting jurors coultas cochran hatch additionally lanier claimed struck garrett young state looking older jurors easily identify defendant trial record see app pretrial hearing yet garrett state declined strike eight white prospective jurors age see trial record juror questionnaire see app two white jurors served jury one two years old see lanier also explained trial struck garrett felt less truthful answers voir dire new trial hearing specifically state pointed trial following exchange familiar neighborhood victim lived north rome garrett trial transcript lanier explaining strike told trial apparent contradiction exchange represented time garrett asked topic voir dire noted garrett attended main high school two blocks victim lived certainly neighborhood denied knowledge area trial record brief opposition new trial quarrel state general assertion trust someone gave materially untruthful answers voir dire foster even otherwise legitimate reason difficult credit light state acceptance white juror duncan duncan gave practically answer garrett voir dire familiar neighborhood victim live duncan live atteiram heights familiar know trial transcript lanier aware duncan residence less half mile murder scene workplace located less yards away trial record brief opposition new trial sum evaluating strike garrett faced single isolated misrepresentation turn next strike hood according lanier hood exactly state looking terms age forty fifty good employment married app pretrial hearing prosecution nonetheless struck hood giving eight reasons hood son age defendant previously convicted crime wife worked food service local mental health institution experienced food poisoning voir dire slow responding death penalty questions member church christ brother counseled drug offenders asked enough questions defense voir dire asked excused jury service see new trial hearing trial record brief opposition new trial examination record however convinces us many justifications credited initial matter prosecution principal reasons strike shifted time suggesting reasons may pretextual response foster batson challenge district attorney lanier noted eight reasons explained thing concerned state record eighteen year old son age defendant experience prosecuting murder cases individuals son defendant charged murder serious reservations sympathetic lean toward particular person ironic son darrell hood sentenced theft taking april heft taking thing defendant charged app pretrial hearing emphasis added time foster subsequent motion new trial lanier focus shifted still noted similarities hood son foster see new trial hearing longer key reason behind strike lanier instead told paramount concern hood membership church christ church christ people may take formal stand death penalty reluctant vote death penalty new trial hearing accord trial record opinion prosecutor death penalty case church christ affiliates reluctant return verdict death brief opposition new trial hood religion lanier explained important factor behind strike evaluated whole eddie hood bottom line eddie hood church christ affiliation app new trial hearing emphasis added course possible lanier simply misspoke one two proceedings even expect least one two purportedly principal justifications strike withstand closer scrutiny neither take hood son darrell hood age issue state accept white juror billy graves son juror questionnaire see app state accept white juror martha duncan even though son juror questionnaire see app comparison hood graves salient prosecution asked hood foster age factor sentencing answered none whatsoever trial transcript graves hand answered question probably yet state struck hood accepted graves state responds duncan graves similar hood hood son convicted theft graves duncan sons see brief respondent see also app defense asserts state used different standards white jurors insofar many children near age defendant believes darrell hood conviction distinction makes difference trial opinion denying new trial lanier described darrell hood conviction trial basically thing defendant charged pretrial hearing nonsense hood son received suspended sentence stealing hubcaps car mall parking lot five years earlier trial record foster charged capital murder widow brutal sexual assault implausible fantastic assertion two charged basically thing supports conclusion focus hood son regarded pretextual cockrell see also ibid credibility measured among factors reasonable improbable state explanations prosecution second principal justification striking hood affiliation church christ church alleged teachings death penalty fares better hood asserted fewer four times voir dire impose death prosecutor entitled disbelieve juror voir dire answers course record persuades us hood race religious affiliation lanier true motivation first indication effect lanier mischaracterization record multiple occasions lanier asserted trial three white prospective jurors members church christ struck cause due opposition death penalty see app hood religious preference church christ three jurors excused cause agreement belong church christ juror pretrial hearing three four jurors professed members church christ went cause related opposition death penalty new trial hearing trial record church christ jurors terry green waters excused cause due feeling death penalty brief opposition new trial true one prospective jurors excused even questioned voir dire months pregnant trial transcript another excused agreement parties answers death penalty made difficult ascertain precise views capital punishment see brief respondent entirely unclear juror understood trial questions answers equivocal judge found cause dismiss third already formed opinion foster guilt see trial transcript made mind already guilt accused yes sir think prosecution file fortifies conclusion reliance hood religion pretextual file contains handwritten document titled church christ document notes church take stand death penalty issue left individual member app document black church ibid state tries downplay significance document emphasizing document author unknown uncertainty pertinent think document nonetheless entitled significant weight especially given consistent serious doubts prosecution account strike many state secondary justifications similarly come undone subjected scrutiny lanier told trial hood appeared confused slow responding questions concerning views death penalty trial record brief opposition new trial previously noted however hood unequivocally voiced willingness impose death penalty white juror showed similar confusion served jury compare trial transcript white juror huffman answers hood answers see app according record confusion uncommon see notes hood particular confusion death penalty questions unusual accord trial transcript think questions reworded juror yet understood meant still say questions need changing overnight one hundred jurors think gone along knowing asking lanier also stated struck hood hood wife worked northwest regional hospital food services supervisor app pretrial hearing hospital lanier explained deals lot mentally disturbed mentally ill people people associated tend sympathetic underdog ibid lanier expressed concerns white juror blackmon worked hospital blackmon noted served jury lanier additionally stated struck hood defense ask hood question age defendant feelings criminal responsibility involved insanity publicity yet trial transcripts clearly indicate contrary see trial transcript age factor trying determine whether defendant receive life sentence death sentence none whatsoever ibid feeling insanity defense opinion formed opinion okay publicity heard affected ability sit juror case fair impartial defendant effect explained dretke prosecutor proffered reason striking black panelist applies well nonblack panelist permitted serve evidence tending prove purposeful discrimination respect garrett hood evidence compelling also shifting explanations misrepresentations record persistent focus race prosecution file considering circumstantial evidence bear upon issue racial animosity left firm conviction strikes garrett hood motivated substantial part discriminatory intent snyder iv throughout stages litigation state strenuously objected race factor jury selection strategy app pretrial hearing see lanier testifying strikes based many factors purely race emphasis added new trial hearing indeed times state downright indignant see trial record defenses sic misapplication law erroneous distortion facts attempt discredit state community demand apology brief opposition new trial contents prosecution file however plainly belie state claim exercised strikes manner app pretrial hearing sheer number references race file arresting state however claims things quite bad seem focus black prospective jurors contends indicate attempt exclude jury instead reflects effort ensure state thoughtful consideration black prospective jurors develop maintain detailed information prospective jurors order properly defend suggestion decisions regarding selections pretextual brief respondent batson come months foster trial prosecutors according state uncertain sort showing might demanded wanted prepared argument falls flat begin reeks afterthought never made nearly history litigation trial state habeas even state brief opposition foster petition certiorari addition focus race prosecution file plainly demonstrates concerted effort keep black prospective jurors jury state argues actively seeking black juror brief respondent see also app new trial hearing claim credible appeared next black prospective jurors names jury venire list see also noted next name black prospective juror list qualified prospective jurors names also appeared definite list see draft affidavit prosecution investigator stated view comes pick one black jurors marilyn garrett might okay emphasis added see also ibid recommending garrett pick black juror emphasis added references inconsistent attempts actively see black juror state new argument today dissuade us conclusion prosecutors motivated substantial part race struck garrett hood jury years ago two peremptory strikes basis race two constitution allows order georgia reversed case remanded proceedings inconsistent opinion ordered alito concurring judgment timothy tyrone foster petitioner bruce chatman warden writ certiorari georgia may justice alito concurring judgment agree decision georgia affirmed case must remanded write separately explain understanding role state law proceedings must held remand recounts august queen madge white retired schoolteacher sexually assaulted brutally murdered home rome georgia home ransacked various household items stolen foster state month murder police officers called respond local disturbance complainant lisa stubbs told boyfriend petitioner timothy foster killed white distributed goods stolen white home stubbs family members tr officers arrested foster confessed murder robbery police recovered stolen goods foster put trial white murder convicted sentenced death trial foster argued prosecution violated rights decision batson kentucky peremptorily challenging prospective jurors black georgia rejected foster batson argument direct appeal filed petition writ certiorari petition raise batson petition denied foster georgia july foster filed state habeas petition superior butts county georgia next years foster claims including batson claim held abeyance georgia courts adjudicated foster claim mentally retarded thus executed georgia law zant foster extensive proceedings including two visits state additional petitions certiorari jury trial issue intellectual disability foster denied relief claim amended habeas petition superior considered many claims asserted petition including batson claim support claim foster offered new evidence namely prosecution jury selection notes obtained georgia request notes showed someone highlighted names black jurors written letter next names superior issued written decision evaluated foster habeas claims opinion began noting many claims barred res judicata opinion stated notes following claims reviewable based doctrine res judicata claims raised litigated adversely petitioner direct appeal georgia app included list barred claims petitioner alleg ation state used peremptory challenges racially discriminatory manner violation batson later opinion superior referred batson claim wrote follows respondent argues claim reviewable due doctrine res judicata however petitioner claims additional evidence allegedly supporting ground discovered subsequent georgia ruling foster state decision affirming foster conviction direct appeal review batson claim whether petitioner shown change facts sufficient overcome res judicata bar reviewed evidence concluded find highlighting names black jurors notation race serve override previous consideration direct appeal jurors case regardless race thoroughly investigated considered state exercised peremptory challenges found petitioner fail ed demonstrate purposeful discrimination basis race prospective jurors either circled highlighted otherwise noted various lists thus held batson claim without merit app foster subsequently sought review superior decision georgia refused issue certificate probable cause cpc appeal entirety state order upon consideration application certificate probable cause appeal denial habeas corpus ordered hereby denied justices concur except benham dissents foster sought review decision granted certiorari review decision georgia ii decision georgia decision merits foster batson claim presented state habeas petition see sup rule cpc appeal final judgment habeas corpus case involving criminal conviction issued arguable merit hittson warden georgia standard denying cpc clearly constitutes adjudication merits thus georgia held foster batson claim presented state habeas petition lacked arguable merit holding likely based least part state law noted superior quite clearly held foster batson claim barred res judicata conclusion sure entirely divorced merits federal constitutional claim since went discuss evidence advanced petitioner support argument prosecution strikes black members venire based race rather appears superior understood state law permit foster obtain reconsideration previously rejected batson claim able show change facts sufficient overcome res judicata bar app concluding foster renewed batson claim required meet heightened standard superior appears following established georgia law georgia cases seem stand proposition bar absolute least circumstances see roulain martin since issue raised resolved martin direct appeal readdressed habeas davis thomas issue raised direct appeal determined merit davis recognizes principle one issue decided adversely direct appeal precluded relitigating issue habeas corpus gunter hickman issue actually litigated raised decided appellant direct appeal reason issue reasserted proceedings elrod ault appellate review issues reviewed habeas corpus decisions however allow defendant overcome res judicata produce newly discovered evidence reasonably available direct review gibson head see also gibson ricketts restricting relitigation previously rejected claims georgia alone long consistently affirmed collateral challenge may service appeal frady accordingly least general rule federal prisoners may use motion relitigate claim previously rejected direct appeal see reed farley scalia concurring part concurring judgment laims ordinarily entertained already rejected direct review withrow williams scalia concurring part dissenting part bsent countervailing considerations district courts may refuse reach merits constitutional claim previously raised rejected direct appeal lee rozier roane webster white jones prichard cf davis said course long settled law error may justify reversal direct appeal necessarily support collateral attack final judgment reasons narrowly limiting grounds collateral attack final judgments well known basic adversary system justice addonizio omitted accordance principle federal law provides state prisoner may relitigate claim rejected prior federal habeas petition see even state prisoner second successive federal habeas petition asserts new federal constitutional claim based asserted new evidence claim must dismissed unless demanding test met see factual predicate claim discovered previously exercise due diligence facts must sufficient establish clear convincing evidence reasonable factfinder found applicant guilty principle finality essential operation criminal justice system teague lane plurality opinion thus criminal conviction becomes final foster years ago state courts need remain open indefinitely relitigate claims related conviction raised decided direct review obligation permit collateral attacks convictions become final allow attacks free limit circumstances claims may relitigated extent decision georgia based state rule restricting relitigation previously rejected claims decision component jurisdiction review state decision question state law see less every federal independent obligation ensure exceed scope jurisdiction therefore must raise decide jurisdictional questions parties either overlook elect press henderson shinseki iii long held consider issue federal law direct review judgment state judgment rests ground merits federal claim basis decision harris reed like petitioner respondent agree conclude brief order issued georgia decision based wholly state law entirely possible state reached conclusion effect state res judicata bar based part assessment strength foster batson claim extent new evidence bolstered claim state held rule applied amalgam state federal law token however res judicata rule applied superior clearly like rule ake oklahoma appears entirely dependent federal law ake prisoner argued due process entitled obtain services psychiatrist order prove insane time committed murder oklahoma courts concluded ake claim waived oklahoma waiver rule essentially made exception case violation fundamental federal constitutional right see oklahoma waiver rule apply fundamental trial error including federal constitutional errors thus state waiver rule entirely dependent federal law therefore held jurisdiction review underlying constitutional question whether ake entitled psychiatrist found constitutional violation remanded new trial res judicata rule applied superior case quite different obviously think georgia law included exception permit defendant overcome res judicata simply making kind showing federal constitutional error sufficient claim first adjudicated accordingly ake mean simply disregard possibility decision review may component cases chart path must follow situation like one present state interpretation state law influenced accompanying interpretation federal law proper course revie federal question determination appears premised state proceeded incorrect perception federal law practice vacate judgment state remand case may reconsider question free misapprehensions scope federal law three affiliated tribes fort berthold reservation wold engineering see also shapiro geller bishop hartnett himmelfarb practice ed situation like one presented correct approach us decide question federal law remand case state reassess decision question light decision underlying federal iv agree totality evidence adduced foster sufficient make batson violation remand georgia bound accept evaluation federal question whether conclusion justifies relief state res judicata law matter decide compliance batson essential ensure defendants receive fair trial preserve public confidence upon system criminal justice depends also important respect authority state courts structure systems postconviction review way promotes expeditious definitive disposition claims error recently rarely granted review decisions collateral review proceedings preferring allow claims adjudicated proceedings decided first federal habeas proceedings see lawrence florida rarely grants review stage litigation even application state collateral relief supported arguably meritorious federal constitutional claims choosing instead wait federal habeas proceedings internal quotation marks omitted kyles whitley stevens concurring denial stay execution huffman florida stevens respecting denial certiorari cases reach habeas review lower federal courts standards review set antiterrorism effective death penalty act apply recently evidenced predilection granting review decisions denying postconviction relief see wearry cain per curiam particularly light trend important lightly brush aside legitimate interest structuring systems postconviction review way militates repetitive litigation endless delay thomas dissenting timothy tyrone foster petitioner bruce chatman warden writ certiorari georgia may justice thomas dissenting thirty years ago timothy foster confessed murdering queen madge white sexually assaulting bottle salad dressing decades since foster sought vacate conviction death sentence ground prosecutors violated batson kentucky struck black prospective jurors trial time state courts rejected claim trial twice rejected georgia unequivocally rejected foster directly appealed conviction sentence foster state cert denied state habeas rejected app recently georgia rejected lacking arguable merit sup rule see app yet today nearly three decades removed voir dire rules foster favor without adequately grappling possibility lack jurisdiction moreover ruling merits based part new evidence foster procured decades conviction distorts deferential batson inquiry respectfully dissent federal law authorizes us review judgments decrees rendered highest state decision judgment decree raises question federal law michigan long today errs assuming georgia order judgmen rendered highest state decision raises question see ante far likely explanation denial habeas relief foster claim procedurally barred disposition ordinarily question state law powerless review addressing merits foster batson claim sought clarification resolution federal question implicated georgia high decision georgia order case full upon consideration application certificate probable cause appeal denial habeas corpus ordered hereby denied app neither order georgia law provides adequate assurance case raises federal question georgia law state prisoner may file state habeas petition state superior code ann state superior denies petition prisoner may appeal georgia exclusive jurisdiction habeas corpus cases timely filing notice appeal superior applying certificate probable cause see fullwood sivley discussing requirements much like certificates appealability federal cockrell georgia prisoner must establish application least one claims arguable merit sup rule georgia summarily denies relief denying certificate probable cause ibid see also hittson gdcp warden affords plenary review arguably meritorious claim see sears humphrey hillman johnson glean therefore summary denial foster state habeas petition georgia concluded foster claim lacked arguable merit obvious ground deciding foster claim lacked arguable merit georgia already considered claim rejected decades georgia law prohibits foster raising claim anew state habeas petition see davis thomas axiomatic georgia courts habeas used substitute appeal second appeal walker penn without procedural bars state prisoners raise old claims declared victorious finality mean nothing see friendly innocence irrelevant collateral attack criminal judgments chi rev proverbial man mars surely think must consider system criminal justice terribly bad willing tolerate efforts undoing judgments conviction think defect foster state habeas petition end matter power review state law determination sufficient support judgment resolution independent federal ground decision affect judgment therefore advisory coleman thompson fundamental power state judgments correct extent incorrectly adjudge federal rights herb pitcairn adequate independent ground bars foster claim today done nothing issue impermissible advisory opinion assure jurisdiction wrongly assumes order us implicates federal question see ante lurking procedural bar according independent ground depends federal constitutional ruling ante internal quotation marks omitted hastily assume state unelaborated order depends resolution federal question without first seeking clarification georgia sure often presume state decide case way believed federal law required long still exist certain circumstances clarification state necessary desirable delving merits state decision case presents circumstance long presumption assumes ambiguous ruling come form reasoned decision applies cases clear opinion state relied upon adequate independent state ground fairly appears state rested decision primarily federal law emphasis added decision judgment hardly makes sense invoke long presumption neither opinion resolution federal law fairly appears face unexplained order ibid confronted cases like past vacated remanded clarification state proceeding decide merits underlying claim follow path instead assuming order implicates federal question decline review federal questions asserted present considerable uncertainty precise grounds state decision bush palm beach county canvassing per curiam quoting minnesota national tea fortiori state highest denied relief without explanation proper course vacate remand clarification reaching merits federal question might nothing state decision see capital cities media toole per curiam see also johnson risk course respects weighty federalism concerns fundamental state courts left free unfettered us interpreting law national tea supra especially state prisoner conviction stake clarification especially warranted nothing reported decisions georgia suggests federal law figures georgia applies res judicata procedural bar decisions state new law new facts justify reconsideration claims raised direct appeal hall lance might showing prisoner actually innocent walker supra georgia decide new facts suffice reopen claim already decided state habeas petitioner georgia courts example decide whether petitioner diligent discovering new facts see gibson head noting whether petitioner overcome procedural bar depend ed factual findings including precise timing discovery new evidence whether new facts material rollf carter instead leaving application georgia law georgia courts takes upon decide procedural bar implicates federal question worse still surmises georgia procedural bar depends resolution federal question parsing wrong decision opinion superior butts county ante invoking ake oklahoma reasons state habeas application res judicata foster batson claim independent merits federal constitutional challenge ante emphasis added accordingly whether foster alleged sufficient overcome georgia procedural bar depends whether foster batson claim succeed light changed facts ante state superior opinion judgmen highest georgia decision subject certiorari jurisdiction unexplained denial relief georgia go along decision assure jurisdiction attributing snippets state superior reasoning georgia reported decisions georgia resolve type new alleged facts ever warrant setting aside procedural bar hall supra let alone intimate prisoner may relitigate claim already decided merely might win second time around cf roulain martin opining state habeas certainly bound ruling petitioner direct appeal regardless whether ruling may erroneous therefore refuse presume unexplained denial relief georgia presents federal today imposes requirement highest courts lest high courts subject lengthy digressions constitutional claims might might issue must offer reasoned opinions rejecting claim decades ago refuse grant habeas relief practices state courts influenced considerations avoiding scrutiny collateral attack federal including concentrat ing resources cases opinions needed harrington richter rather demand detailed opinions overburdened state courts vacate remand cases one assure jurisdiction ii errs deciding foster batson claim arguable merit adjudication batson claim bottom credibility determination owe great deference state initial finding prosecution reasons striking veniremen eddie hood marilyn garrett credible batson record far less cold today georgia long ago direct appeal rejected claim giving great deference trial credibility determinations evaluating strike venireman hood highlighted son convicted misdemeanor demeanor religious affiliation indicated might reluctant impose death penalty foster prosecution reasonably struck venireman garrett according feared sympathize foster given work underprivileged children related someone drug alcohol problem last word foster batson claim foster access prosecution file allowing foster relitigate batson claim bringing newly discovered evidence fore upends batson deferential framework foster new evidence justify reassessment telling truth nearly three decades removed voir dire new evidence sets tone analysis closer look reveals limited probative value reason conclusion prosecution violated batson rests mostly arguments foster disposal decades ago see ante concluding trial transcripts belie proffered reasons striking garrett ante relying transcripts briefs evidence prosecution shifting explanations striking hood new evidence excuse reversal state credibility determinations even admits ante know wrote notes foster relies upon proof prosecutors motivations know however prosecutors averred make highlighted marks jury venire list instruct anyone make green highlighted marks app particular prosecutor stephen lanier reaffirmed earlier testimony given foster hearing new trial relied factors striking jury see also prosecutor douglas pullen swore rely highlighted jury venire list hazy recollections prosecution investigator clayton lundy contrary part postconviction proceedings lundy testified aguely remembered parts jury selection kind remember ed documents used jury selection cautioned ai done long time tr lundy testified nearly years passed since foster trial changed careers thought others district attorney office probably passed venire lists around office guess ed everyone make notations documents prosecution file lundy identify authored two first lundy said prepared handwritten lists describing seven veniremen including garrett race mentioned see app second lundy guess ed prosecutor lanier suggested handwritten edits draft affidavit lundy later submitted trial tr see app draft affidavit final affidavit relevant edits suggested deleting two statements solely lundy opinion prosecutors pick garrett comes pick one black jurors emphasis added perhaps look inside district attorney office reveals office debated internally best black juror perhaps reveals lundy personal thoughts selecting black jurors opinion guess lanier disagreed notion newly discovered evidence warrant relitigation batson claim flabbergasting batson cases decisive question whether counsel explanation peremptory challenge believed hernandez new york plurality opinion seldom much evidence bearing issue best evidence often demeanor attorney exercises challenge ibid time said credibility attorney best judged trial overturned clearly erroneous see ibid see also snyder louisiana hernandez supra concurring judgment today invites state prisoners go searching new evidence demanding files prosecutors long ago convicted prisoners succeed apparently doors open conduct credibility determination anew alas every end instead new beginning majority welch ante thomas dissenting go along sort sandbagging state courts dretke thomas dissenting new evidence justify relitigation batson claims perhaps decision reconsider batson claim based newly discovered evidence less alarming new evidence revealed trial misjudged prosecutors reasons striking garrett hood probative value evidence severely limited supra also pieces new evidence corroborate trial conclusion reasons valid substitution judgment trial credibility determinations flawed legal factual matter analysis respect hood unavailing first compares hood jurors similarly aged children ante trial decades ago app trial well aware hood son conviction theft murder words trial conviction distinction makes difference hood jurors prosecution apprehension tend perhaps subconsciously make venireman sympathetic foster rational one ibid trial believe prosecutor nonracial justification finding clearly erroneous end matter hernandez supra concurring judgment also prosecution strike hood questionable stance death penalty concludes hood transcribed statements voir dire unequivocally voiced hood willingness impose death penalty ante nothing unequivocal record case law requires defer trial finding state concerns hood ness slow ness responding death penalty questions credible app see snyder supra reasons peremptory challenges often invoke juror demeanor nervousness inattention making trial firsthand observations even greater importance evaluation prosecutor state mind based demeanor credibility lies peculiarly within trial judge province hernandez supra plurality opinion internal quotation marks omitted new evidence moreover supports prosecution concern hood views capital punishment handwritten document prosecution file stated church christ take stand death penalty app perplexingly considers proof prosecution misled trial reasons striking hood ante hardly document capital punishment issue left individual member app thus way discredits prosecutor statement experience church christ people may take formal stand death penalty reluctant vote death penalty notes file say hood gave slow eath enalty answers hesitated asked eath enalty new evidence supports prosecution stated reason striking hood member church christ taken uncertain stance capital punishment likewise evaluation strike garrett riddled error vexed single misrepresentation prosecution decision strike garrett prosecution stated garrett listed new evidence reveals garrett list beginning ante whether prosecution planned strike garrett along last minute seems irrelevant reasons prosecution supplied striking garrett prosecution feared garrett might sympathize foster sentencing worked disadvantaged children young failed disclose cousin recently arrested see app prosecutors concerned gave short answers appeared nervous ask jury even though divorced mother two children worked hours per week see prosecution also stated repeatedly concerned female jurors appear sympathetic death penalty case men see pieces new evidence support concerns notes prosecutors file reveal someone prosecution team aware garrett cousin angela garrett arrested charges fired job eve trial garrett look oir ire gave short answers ooked floor eath enalty questioning nevertheless frets indisputably reasons pretextual engages comparison jurors highlight prosecution refusal strike white jurors similar characteristics ante venireman hood georgia courts faced contentions regarding garrett decades ago georgia rightly decided trial findings worthy deference conducting hearing one prosecutors testified app trial credited prosecution concerns trial example agreed garrett association head start might troubling believe state honest voicing concern combination holding two jobs divorced mother two indicates less stable home environment prime defense foster case see end matter hernandez concurring judgment today without first seeking clarification georgia highest decided federal question affords inmate another opportunity relitigate conviction circumstances imagine spilling much ink factbound claim arising state postconviction proceeding trial observed veniremen firsthand heard answer prosecution questions evaluation prosecution credibility point certainly far better nearly years later see hernandez supra plurality opinion respectfully dissent footnotes order stated entirety upon consideration application certificate probable cause appeal denial habeas corpus ordered hereby denied justices concur except benham dissents app construe foster petition writ certiorari seeking review georgia order denying certificate probable cause app georgia rules provide certificate issued arguable merit rule emphasis added see also hittson gdcp warden decision georgia foster appeal arguable merit seem decision merits claim circumstances georgia order subject review pursuant writ certiorari reynolds tobacco durham county see sears upton per curiam exercising jurisdiction order georgia denying certificate probable cause reach conclusion order decision merits absence positive assurance contrary georgia reynolds contrary dissent assertion see post perfectly consistent past practices review lower decision case georgia habeas order ascertain whether federal question may implicated unreasoned summary order higher see reynolds exercising jurisdiction unreasoned judgment north carolina examining grounds decision posited north carolina appeal see also stephen shapiro kenneth geller timothy bishop edward hartnett dan himmelfarb practice ed state opinion fails yield precise answers grounds decision may forced turn parts record pleadings motions trial rulings determine federal claim central controversy preclude resting judgment independent adequate state even dissent follow rule goes beyond unreasoned order georgia determining likely explanation denial habeas relief foster claim procedurally barred post way know course face georgia summary order concurrence notes res judicata rule applied superior case quite different state procedural bar issue ake entirely dependent federal law post whether state law determination characterized entirely dependent resting primarily stewart smith per curiam influenced question federal law three affiliated tribes fort berthold reservation wold engineering result state law determination independent federal law thus poses bar jurisdiction see trial transcript opposed death penalty opposed facts circumstances warrant death penalty prepared vote death penalty yes prepared vote death penalty said yes right still saying yes evidence warrants death penalty vote death penalty yes vote death penalty pullen facts circumstances warranted vote impose death penalty snyder noted previously allowed prosecution show discriminatory intent substantial motivating factor behind strike nevertheless determinative prosecution decision exercise strike state raise argument snyder need decide availability defense footnotes petition rehearing also denied foster georgia see zant foster foster state see foster georgia foster georgia denied georgia res judicata law may also include miscarriage justice exception appears capture exceptionally rare claim actual innocence issue see walker penn term miscarriage justice means deemed synonymous procedural irregularity even reversible error contrary demands much greater substance approaching perhaps imprisonment one guilty specific offense convicted even culpable circumstances inquiry plain example case mistaken identity brackets omitted relies ake solely proposition agree jurisdiction review federal question whether totality circumstances facts brought attention state courts direct appeal collateral review make batson claim ante thus preclude consideration state law issues remand see ante footnotes obvious part superior rested procedural bar deny foster batson claim see app need blind lurking ground merely georgia denied relief unexplained order federal habeas context may look last reasoned opinion discern whether opinion rested procedural grounds ylst nunnemaker last reasoned opinion claim explicitly imposes procedural default rebuttable presumption later decision rejecting claim silently disregard bar consider merits see also kernan hinojosa ante per curiam presume words decision rests question state law presumption arguably plays even important role case like procedural defect oust jurisdiction see coleman thompson distinguishing procedural bar effect state case effect federal habeas takes task follow ing rule ante acknowledge state superior decision strong evidence foster claim denied procedurally defaulted see supra one thing look reasoning lower state decision confirm lacks jurisdiction quite another probe lower state decision assure jurisdiction reads tea leaves single state superior decision decide procedural bar depends resolution federal question question georgia law best answered decisions georgia see commissioner estate bosch concluding underlying substantive rule involved based state law state highest best authority law cf king order commercial travelers america rejecting unreported state trial decision binding erie tompkins oral argument counsel georgia also stipulated one two prosecutors must drafted another document comprising definite list questionables list veniremen tr oral arg app veniremen hood garrett appeared definite list course know lists created whether lanier relied upon see tr oral arg calling question whether lanier thought process based lists decision alabama ex rel held peremptory strikes basis sex unconstitutional postdated foster direct appeal