Capital federal habeas proceedings, or the civil procedure and law governing challenges to state capital sentences in federal court, is a narrow area of practice. These cases often turn on complex procedural issues and federal courts apply a standard of review that is highly deferential to state courts. As a result, federal habeas relief from a death sentence is vanishingly rare. In the broader field of criminal defense, however, this small number of cases offers a rare glimpse into how a single remark in state court or single sentence in a state court opinion can have outsized importance in federal court.
Federal post-conviction review of Texas sentences of death is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. AEDPA was enacted with the interests of federalism and finality as its driving force. Chapter 153 was accordingly designed to narrowly limit federal courts’ review of state court convictions and sentences of death. For example, 28 U.S.C. § 2254(d) reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In other words, where a state court has determined that a claim does not warrant relief from a petitioner’s capital conviction and sentence, a federal court may not come to a different decision unless a petitioner can satisfy one of two very narrow exceptions: either that the state court unreasonably (not just incorrectly) applied an on-point Supreme Court decision or that the state court made an unreasonable (not just incorrect) factual finding.
Section 2254 imposes a notoriously high bar on capital petitioners and will almost always frustrate merits review by a federal court even where a claim goes to the very reliability of a sentence of death. The Fifth Circuit’s recent decision in Thomas v. Lumpkin, 995 F.3d 432 (5th Cir. 2021), illustrates how Section 2254 operates to prevent a federal court from granting relief from a sentence of death where the jury was tainted by racial bias. In federal court, Mr. Thomas sought to challenges his sentence, in part, on the ground that the jury that sentenced him to death was tainted by racial bias. The majority briefly summarized:
In March 2005, an all-white jury found Thomas guilty of capital murder and sentenced him to death.
The dissent further explained:
An all-white jury found Thomas, a black man, guilty of capital murder and sentenced him to death for killing his wife, a white woman, and two children, including their interracial child. That jury included three jurors who acknowledged bias against interracial marriage.
The Fifth Circuit’s majority opinion summarized Mr. Thomas’s briefing on this issue:
Thomas emphasizes to this court that “his jury included three jurors who admitted that they harbored bias against ‘people of different racial backgrounds marrying and/or having children.’” As we previously discussed, attitudes about interracial marriage were explored because the defendant Thomas, who is a black man, married Laura Christine Boren, a white woman. Though Thomas killed his wife and their own interracial child, Andre Jr., the murder for which he was tried was that of Leyha Marie, his wife’s child by her later relationship. The briefing does not indicate the race of that victim, nor does it raise any issues about race having affected the trial beyond juror attitudes about an interracial marriage and the couple having a child together.
After block-quoting the sections from the jury questionnaire about prospective jurors’ views on interracial marriage, the Fifth Circuit examined the three contested jurors’ answers to those questions and in voir dire. The Fifth Circuit observed that “only one” of the three jurors at issue had answered that:
[H]e “vigorously oppose[d] people of different racial backgrounds marrying and/or having children and [was] not afraid to say so.” [He] was the only one of those three jurors who was questioned on voir dire specifically about racial attitudes. Counsel asked how [he] would feel about sitting on a capital case where the black male defendant was accused of killing his wife, a white female. He answered,
Well, I think—I think it’s wrong to have those relationships, my view, but we are all human beings and God made every one of us. And, you know, as far as—I don’t care if it is white/white, black/black, that don’t matter to me. If you’ve done it, you are a human being, you have got to own up to your responsibility.
- So, the color of anyone’s skin would not have any impact or bearing upon your deliberations?
- No, not according to that, no.
- Not whether they were guilty or innocent.
Defense counsel then asked again whether [the juror] would take into account the defendant’s or victim’s race in deciding whether to impose the death penalty. [He] answered: “No, I wouldn’t judge a man for murder or something like that according to something like that, no, I would not.”
As to the other two contested jurors, the Court summarized their answers:
Another juror…checked the option on the questionnaire that his church’s position was that there “should not be” interracial marriage, and [he] indicated he agreed with that view. In response to Question 105, [he] checked the option that he “oppose[d] people of different racial backgrounds marrying and/or having children, but [he] tr[ied] to keep [his] feelings to [himself].” [He] was not specifically questioned about these answers. When the court asked him during voir dire if he could “make up [his] mind solely upon the evidence” presented, [he] answered that he could.
The final relevant juror . . . indicated that her church or spiritual affiliation did not have a position on interracial marriage, and she added: “It is not the church[’s] place to have a position on matters such as this.” Like [the second juror], she checked the option on Question 105 that she opposed interracial marriage and such couples having children but tried to keep those feelings to herself. She added her own explanation: “I think it is harmful for the children involved because they do not have a specific race to belong to.” [She] was not questioned about her answers at voir dire. The court asked whether she could assess the case based only on the evidence presented in the courtroom, and she stated that she could.
A majority of the panel proceeded with applying Section 2254(d) to Mr. Thomas’s claim of racial bias. The first question the panel majority addressed was how Mr. Thomas had raised his claim of racial bias in state court:
In order to understand the claims about juror racial bias presented in state court, we examine the state habeas application. Counsel filed 44 claims for relief in state court. The only one relevant for jury bias itself (as opposed to ineffectiveness of counsel on the issue) was Claim 20, which stated that the “presence of jurors opposed to interracial relationships deprived Mr. Thomas of a fair trial.” Thomas argued that the presence of racially biased jurors “raises overwhelming concerns that significant racial bias affected the decision-making process in Mr. Thomas’s capital trial.” He also contended it was “highly likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as  juror[s] in accordance with [their] instructions and [their] oath.’”
In accordance with Section 2254(d), the Court then identified the state court’s adjudication of that claim:
The only relevant fact findings by the state habeas court were these:
All members of Mr. Thomas’s jury were white.
There is no evidence that the jury’s decision was racially motivated.
No objection was ever made by the Applicant to the purported racial bias of any juror that was seated.
There were no legal conclusions about jury racial bias other than as to the effectiveness of counsel.
Because Section 2254(d) requires a reviewing federal court to determine, as the next step in its analysis, whether a state court’s adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the panel summarized the relevant Supreme Court case law:
We begin our analysis of the law with essential points: “blatant racial prejudice is antithetical to the functioning of the jury system.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017). It is undeniable “that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’” Id. at 868 (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). Any “defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice.” Georgia v. McCollum, 505 U.S. 42, 58 (1992). If a defendant is denied the right to an impartial decisionmaker, regardless of the nature of the bias, any subsequent conviction is tainted with constitutional infirmity. See Virgil [v. Dretke], 446 F.3d  at 607 [(5th Cir. 1996)]. Any juror who “the defendant has specific reason to believe would be incapable of confronting and suppressing their racism” should be removed from the jury. See McCollum, 505 U.S. at 58. If a juror should have been removed for cause, then seating that juror requires reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000).
A defendant’s right to an impartial jury, though fundamental, does not mean that jurors who have preconceived notions cannot be validly seated. To the contrary, as the Supreme Court has instructed:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 723 (1961).
After identifying the relevant Supreme Court case law, the Court again turned its attention to how Mr. Thomas’s claim of racial bias by the jury was dealt with by the state court:
Thomas presented his argument on this claim to the state habeas court in four short paragraphs. Quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985), he argued that it was “likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.”
In response to this argument, the state court found “[t]here is no evidence that the jury’s decision was racially motivated.” That finding is not directly on point as to whether any juror with a relevant bias that made him or her unable to be impartial was seated on the jury.
Despite conceding that “we can identify no state-court findings directly on the point of whether a biased juror was seated,” the panel continued on with its analysis of whether the state court’s adjudication of Mr. Thomas’s claim was unreasonable:
Indeed, “determining whether a state court’s decision resulted from an unreasonable . . . factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Richter, 562 U.S. at 98. Rather, a federal court will deny habeas relief “if there was a reasonable justification for the state court’s decision” in the record. Id. at 109.
The issue before us, then, is whether it was “objectively unreasonable” for the state habeas court to reject Thomas’s claim that his right to an impartial jury was violated. See Miller, 420 F.3d at 360. In reviewing whether the state court erred when it did not find that someone with disqualifying racial attitudes was seated as a juror, we should consider any “reasonable justification for the state court’s decision.” See Richter, 562 U.S. at 109. A necessary implicit finding within the state court’s explicit finding is that no juror would base his decision on race rather than on the evidence presented. To rephrase, any bias of a juror could be set aside in determining guilt or a punishment. We now turn to determine whether that finding was “objectively unreasonable.” See Miller, 420 F.3d at 360.
Here, the majority emphasized the first contested juror’s answer in voir dire that he could set aside his expressly racist views:
In evaluating the state habeas court’s finding and any possible reasonable justifications, we consider the answers [he] gave during voir dire. The questioning did not cause [him] to retreat on his beliefs about interracial marriage. Still, when asked if “the color of anyone’s skin would . . . have any impact or bearing upon [his] deliberations,” [he] responded, “No, not according to that, no.” He “wouldn’t judge a man for murder or something like that according to something like [race], no, I would not.” [He] also said that he didn’t “care if it was white/white, black/black, that don’t matter.”
On that record, the state court found “no evidence that the jury’s decision was racially motivated.” We consider it a reasonable understanding of that finding that [his] answers, if accepted as true, which the state habeas court was entitled to do, were clear that his moral judgment would not affect his fact finding. (emphasis added)
The majority accordingly concluded: Thomas is not entitled to relief on the basis that the state court improperly resolved the claim that any partial jurors were seated. Section 2254(d), along with the rest of AEPDA, commands that federal courts defer to state courts’ adjudication on the merits of any claim also raised in federal court. But a state court’s opinion may not always squarely address, let alone resolve, the serious constitutional concerns about the reliability of a petitioner’s capital conviction and sentence of death. As the Thomas decision illustrates, however, one juror’s remark and one phrase in the state court’s opinion may be sufficient for a federal court to find that it will not disturb a sentence of death obtained by a jury tainted by racism.