Warren King v. Warden, Georgia Diagnostic Prison ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12804
____________________
WARREN KING,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:12-cv-00119-LGW
____________________
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2 Opinion of the Court 20-12804
Before WILLIAM PRYOR, Chief Judge, and WILSON and GRANT, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
Warren King, a Georgia prisoner sentenced to death, ap-
peals the denial of his petition for a writ of habeas corpus. King
contends that the Georgia courts unreasonably adjudicated his ob-
jection that the prosecutor exercised discriminatory strikes during
jury selection, unreasonably concluded that King received effective
assistance of counsel in the investigation and presentation of his
mental-health and mitigation evidence, and unreasonably rejected
his challenge to the procedure for establishing intellectual disability
in capital cases. King also argues that the district court erred when
it ruled that he forfeited any further claim based on his alleged in-
tellectual disability. We affirm.
I. BACKGROUND
This background section contains four parts. First, we ex-
plain King’s crime of conviction. Second, we describe his counsel’s
preparation for trial, the trial itself, and sentencing. Third, we de-
scribe the jury selection and objections. Fourth, we describe King’s
unsuccessful appeal and state and federal habeas corpus petitions.
A. King’s Crime
A little after midnight on September 14, 1994, Karen Crosby
closed the convenience store where she worked and walked to her
car. But before she arrived there, Warren King and his cousin, Wal-
ter Smith, ordered her at gunpoint to surrender the keys to the
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store. See King v. State, 539 S.E.2d 783, 789 (Ga. 2000). Smith entered
the store to rob it and left King outside with Crosby and the gun.
Id. Smith set off the store’s alarm and ran from the store. Id. Ac-
cording to King’s testimony at sentencing, “Smith yelled at him re-
peatedly to shoot Crosby,” but he instead gave the gun back to
Smith, who killed Crosby. Id. Smith testified at trial that he heard
King shoot Crosby while he attempted to rob the store and saw her
already falling to the ground when he turned to look. Id.A jury convicted King of malice murder, armed robbery,
burglary, aggravated assault, false imprisonment, and possession of
a firearm during the commission of a crime. At trial, King at-
tempted to paint Smith as the leader of the robbery and the
shooter, and, in the alternative, he sought a verdict of “guilty but
mentally retarded” to avoid a death sentence. See GA. CODE § 17-7-
131(c)(3), (j) (1998). But the jury found him “guilty” and eligible for
the death penalty. See King, 539 S.E.2d at 788 & n.1.
B. Pre-Trial Investigation and Presentation of Evidence Regarding Intel-
lectual Disability
After King’s arrest and indictment, the trial court appointed
George Terry Jackson and George Hagood to represent King. Jack-
son, the lead counsel, had participated in over 50 capital cases and
at least 15 capital trials. But Jackson provided ineffective assistance
in one of those capital cases, tried three years before King’s trial.
See Terry v. Jenkins, 627 S.E.2d 7, 8, 10 (Ga. 2006). King’s defense
team met “at least once a week” during the investigation to coordi-
nate. They acquired educational materials, attended seminars, and
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met with representatives from the Southern Center for Human
Rights and from the public defender’s office to discuss best prac-
tices for intellectual-disability defenses.
Counsel investigated and prepared two defense theories.
First, they sought to prove that Smith, not King, led the crime and
shot Crosby. Second, they sought to prove that King was intellectu-
ally disabled and ineligible for the death penalty.
To support these two theories, they collected records perti-
nent to King’s mental capacity, background, and disposition as a
“follower.” They interviewed King, who gave his account of events
and biographical information but denied receiving psychiatric
treatment or being abused by his parents. Counsel also interviewed
King’s sister, Juanita King, who later testified at sentencing. Juanita
informed King’s counsel about the King family’s poverty and their
lack of parental supervision and said that he “talk[ed] to himself ”
and “act[ed] strange,” especially after his mother passed away.
Counsel also secured records about King’s background and mental
health, including jail records, hospital files, youth detention center
records, and jail psychiatric records. But counsel did not obtain
King’s file from the Georgia Department of Family and Children’s
Services, a file that King now asserts had further helpful infor-
mation and the identity of other witnesses who knew him and his
family.
In 1995, jail officials found King lying in the fetal position and
in an unresponsive and psychotic state and sent him to a hospital
for inpatient psychiatric treatment. After he was discharged, the
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trial court granted the prosecutor’s motion to send King to a state
hospital for an evaluation of his competency to stand trial. One
doctor diagnosed King with schizophrenia; another doctor sus-
pected him of malingering and diagnosed him with an antisocial
personality disorder; a third doctor found him to be competent to
stand trial; and a fourth doctor summarized the results of the other
hospital evaluations. The records from these evaluations were not
presented at trial, nor did the doctors who attended to King testify
or explain the breakdown to the jury. Jackson could not recall later
whether he had called the doctors from the state hospital, but he
testified that his earlier experiences with the hospital convinced
him that the staff there were not helpful to capital defendants.
Two years later, in 1997, King saw Dr. C.E. Beck, a psychia-
trist working with inmates at the jail, who evaluated King in several
15-minute sessions. Dr. Beck diagnosed King with schizophrenia
and prescribed him corresponding medication. The records from
this treatment were not used at trial or in the preparation of the
defense’s expert witnesses.
King’s counsel hired forensic psychologist William Dickin-
son to evaluate King. Counsel provided Dr. Dickinson with the in-
dictment, King’s and Smith’s statements, medical records, jail rec-
ords, juvenile records, school records, and the state hospital rec-
ords. Dr. Dickinson performed several tests and testified that King
fell between being mildly intellectually disabled and the “borderline
defective range of measured intellectual functioning.” He testified
that people with King’s capacities, especially those who grow up
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without proper parental supervision, are easily led. He also stated
that King exhibited some symptoms of schizophrenia. He testified
that King was taking medication for schizophrenia, heard voices,
and had been huffing gas since he was a child. Dr. Dickinson con-
cluded that King was not malingering.
Counsel also hired Dr. Ernest Miller, a psychiatrist. Counsel
provided Dr. Miller with extensive records and Dr. Dickinson’s re-
port, and they prepared a letter describing King’s history and the
breakdown that he suffered in jail. Dr. Miller examined King and
diagnosed him with “a borderline intellectual handicap and a per-
sonality disorder of mixed type” but did not reach a conclusion as
to schizophrenia. He testified that King mentioned hallucinations
but that these hallucinations were likely exaggerated.
At Dickinson’s and Miller’s recommendation, counsel then
hired neurologist Dr. Ronald Schwartz. Dr. Schwartz evaluated
King and reported that he had a normal neurological examination.
But Dr. Schwartz struggled to assess King because he suspected
that King was not being completely honest in response to ques-
tions.
On Dr. Schwartz’s recommendation, counsel hired Dr.
Shirley Koehler for a neuropsychological examination, but Dr.
Koehler “turned out to be a disappointment,” as King’s counsel put
it during later habeas proceedings. Counsel provided Dr. Koehler
with records and medical reports. She administered a series of tests
and a CT scan and interviewed King. The CT scan was normal.
And based on the tests and interview, Dr. Koehler concluded that
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King was malingering. Dr. Koehler’s tests suggested that King was
not intellectually disabled. She testified against King at trial in sup-
port of the State’s theory that King was malingering.
At the close of evidence, King moved for a directed verdict
on the question whether he was “mentally retarded.” The trial
court denied the motion. The jury found King guilty of murder
and other charges related to the store robbery. See King, 539 S.E.2d
at 788 & n.1.
At sentencing, King’s counsel largely relied on mitigation ev-
idence about his difficult upbringing. They reminded the jury that
it could consider the guilt-stage evidence at sentencing. King testi-
fied that he participated in the robbery only out of fear and that
Smith was the murderer. He also apologized to the victim’s family.
Juanita King testified that she cared for King while their
mother worked and their father was absent. She explained that
their parents were alcoholics and that their father abused their
mother. She also testified to the condition of the home King grew
up in, which had no running water or telephone. Juanita testified
that King had difficulty with basic tasks and needed help to dress
himself and to make his bed. She asked the jury to have mercy.
Marjorie Cox, King’s former foster mother, spoke positively
about King and described him as a happy, respectful child who was
simply “very slow.” She testified that King never talked about his
parents and never wanted to visit them. She testified that King was
“definitely a follower,” not a leader. Miriam Mitchum, a social
worker who assisted King after he was expelled from Cox’s home,
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described King’s house as a dilapidated wooden structure. In her
visits to that house, she could not recall a time when King’s parents
were sober, and she witnessed domestic violence in the home on
one of her visits. She corroborated Cox’s testimony that King “did
much better” in Cox’s home than in his parents’ and that he was
more of a follower than a leader. King’s counsel unsuccessfully
tried to locate other mitigation witnesses.
King’s counsel asked for a sentence of life imprisonment or
life imprisonment without parole. Counsel highlighted King’s re-
morse over his crime and his being forced to grow up in a “house
of hate” with alcoholic parents. He also made a brief plea for
mercy. The jury sentenced King to death for the murder charge.
C. Jury Selection and King’s Batson and J.E.B. Objections
King objected to several of the prosecutor’s strikes under
Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994). He argued that the prosecutor discriminated
against the prospective jurors on the bases of race and sex. The trial
court sustained one of King’s objections but overruled the others.
After preliminary for-cause strikes of prospective jurors, the
parties used peremptory strikes to select 12 jurors out of a pool of
42. Georgia law provided the State with 10 peremptory strikes and
the defense with 20. With respect to the 12 potential alternate ju-
rors, the State had three peremptory strikes, and the defense had
six. One by one, each potential juror stood. The State marked ei-
ther “excuse” or “accept” on the strike sheet. If the State marked
“accept,” the defense could mark “excuse” or “accept.” If both the
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State and the defense marked accept, then the individual became a
member of the petit jury. Selection stopped when 12 jurors had
been selected.
Of the 42 members of the main jury pool, there were eight
black potential jurors: one black man and seven black women. The
State used seven of its peremptory strikes to strike black prospec-
tive jurors from this pool, which left only one black potential juror.
The State used its remaining three strikes against white women.
The State used the only alternate-juror strike it exercised against a
black woman. Although white men comprised 45% of the venire
pool, the prosecutor did not use any peremptory challenges to re-
move a white man. The petit jury consisted of seven white men,
four white women, and one black man. The three alternate jurors
were two white women and one black man.
King challenged the State’s strikes as discriminatory because
it used seven of its strikes to remove seven of the eight black mem-
bers of the jury pool, the remaining three strikes to remove
women, and an alternate-juror strike against a black woman. The
trial court found that the defense had made a prima facie case of
unlawful discrimination and required the State to provide race- and
sex-neutral reasons for its strikes. See Batson, 476 U.S. at 96–97;
J.E.B., 511 U.S. at 144–45. Johnson objected to the use of statistical
information to establish a prima facie case of discrimination as un-
fair to the prosecution and, though acknowledging that binding
precedent dictated otherwise, “suggest[ed]” that a higher burden
be placed on defendants. But he immediately proceeded to provide
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the required race- and sex-neutral justifications. We recount only
those explanations relevant to this appeal.
The State used its second strike on Jacqueline Alderman, a
black woman. The prosecutor, Assistant District Attorney John
Johnson, stated that the “main reason . . . [for the strike was] that
this lady is a black female, she is from [King’s hometown of ] Sur-
rency, [and] she knows the defendant and his family.” At one point
during his justification of the Alderman strike, Johnson mentioned
that the State was investigating her husband in an unrelated case,
but he quickly backed off of that statement and said it was not the
main reason for the strike; the main reason was that she was from
Surrency and knew King’s family. The trial court concluded that
the strike violated Batson. It reasoned that Johnson’s rationales
were shifting and unreliable and that Alderman did not actually
know King’s family as Johnson had argued.
Johnson then delivered a “soliloquy,” in the words of the dis-
trict court. Johnson called it “improper” for the trial court to tell
him that he could not exercise a strike based on where the juror
was from. He said that “[i]f this lady were a white lady there . . .
would not be a question in this case” and “that’s the problem [he]
ha[d] with all of this.” Johnson criticized Batson as “not racially neu-
tral.” Before Batson, Johnson said, he “had to act . . . [in a racially
neutral] way when [he] was in Brunswick because it was a physical
impossibility if you wanted to strike every black off a jury for you
to do that.” But in Johnson’s view, “Batson now makes us look
whether people are black or not” and prevents legitimate strikes, so
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it was “improper and . . . wrong.” Although Johnson was “very an-
gry,” he suggested seating Alderman on the jury to avoid restarting
the striking process. The trial court agreed and seated Alderman.
The trial court overruled the rest of King’s objections, five
of which King cites for the purposes of this appeal. Johnson used
his sixth strike on Sarah McCall. He explained that “[s]he is a black
female. She indicated that the death penalty was not her first
choice. She had a lot of hesitancy about her.” Johnson mistakenly
stated that her husband, also in the jury pool, said that she opposed
the death penalty. But her husband said that they had never dis-
cussed the topic. The trial court left the strike in place.
Johnson used his seventh strike on Patricia McTier. He ex-
plained that “[s]he is a black female. I struck her because we have
prosecuted Wilma McTier for an aggravated assault.” Johnson ad-
mitted there was some confusion about Patricia McTier’s relation
to Wilma McTier: Johnson initially thought Wilma was Patricia
McTier’s brother-in-law instead of her husband’s uncle. The trial
court overruled King’s Batson objection.
Johnson used his eighth strike on Jane Ford. Johnson ex-
plained that “[s]he is a white female” with two problems as a po-
tential juror. First, “she was a single mother, had no family here,
[and] had children and no one to care for those children,” and sec-
ond, she said that she worked with special-education children and
enjoyed that work. The trial court overruled King’s J.E.B. objection
to Johnson’s strike of Ford.
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Johnson used his tenth strike on Lillie Burkett, a black
woman. Johnson provided two justifications for striking her. First,
he said that “[s]he is a minister” and he “do[es] not take people on
juries who are ministers” because they emphasize forgiveness and
tend to be overly lenient. Moreover, he said, she knew King’s family,
and King’s family background would be relevant to the trial. The
only other minister in the pool was Thomas Lightsey, a white min-
ister whom the parties did not reach because he was the 41st in the
lineup and the jury had been selected before he was called. The trial
court allowed the Burkett strike.
Finally, Johnson used his alternate-juror strike on Gwen Gil-
lis, a black woman. Gillis, he said, “lived very near” King’s aunt and
near Gary Andrews, who was Smith’s uncle and was the owner of
the house where the murder weapon was found. Johnson also as-
serted that he struck Gillis in order to reach and accept the more
favorable prospective alternate juror who followed her. The trial
court overruled King’s Batson objection.
D. King’s Appeal and Habeas Proceedings
King appealed to the Supreme Court of Georgia on several
grounds, two of which are relevant here. He argued that Georgia’s
requirement that a defendant prove his intellectual disability be-
yond a reasonable doubt in order to avoid the death penalty vio-
lated the federal and state constitutions. And he argued that the
trial court had allowed Batson and J.E.B. violations in his jury selec-
tion.
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The Supreme Court of Georgia affirmed his convictions and
sentence. It held that Georgia’s procedure for arriving at a “guilty
but mentally retarded” verdict was constitutional. King, 539 S.E.2d
at 798 (citing Palmer v. State, 517 S.E.2d 502, 506 (Ga. 1999)); see also
Mosher v. State, 491 S.E.2d 348, 353 (Ga. 1997). With respect to Bat-
son and J.E.B., the court acknowledged that King made his prima
facie case of discrimination and that the trial court ordered that Al-
derman be seated on the jury. King, 539 S.E.2d at 795. It reviewed
King’s Batson challenges with respect to McCall, Ford, Burkett, and
Gillis, but it did not discuss McTier because King did not challenge
that strike on direct appeal. Id. at 795–96.
As to McCall, the Supreme Court of Georgia found that
Johnson had misstated the record in the course of explaining his
strike, but it held that the trial court did not abuse its discretion in
overruling King’s Batson objection. Johnson erroneously said that
McCall’s husband characterized her as opposed to the death pen-
alty, but “this mistake does not show that the explanation was a
mere pretext” for racial discrimination, the court ruled. Id. at 796.
As to Ford, the Supreme Court of Georgia affirmed the trial
court’s decision to allow the strike. Ford was a single mother, so
jury service would be a “financial[] burden[],” the court reasoned.
Id. And it also held it reasonable to credit Johnson’s citation of
Ford’s positive relationship with intellectually disabled children. As
the court explained, “[a]lthough seven other jurors, four of them
women and one an African-American male, described some
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exposure to mentally retarded persons,” Ford “was the only person
who indicated that she enjoyed that relationship.” Id.The Supreme Court of Georgia also held that it was not an
abuse of discretion to credit Johnson’s explanation of the Burkett
strike. Johnson “consistently questioned male and female jurors of
all races during voir dire about the roles they served in their places
of worship.” Id. at 795. Moreover, the court found, “none of the
other prospective jurors were ministers.” Id. The record confirmed
that Burkett “stated that she knew King’s family, a factor that
. . . the State was permitted to consider.” Id.Finally, the Supreme Court of Georgia affirmed the trial
court’s ruling that Johnson’s strike of Gillis was not discriminatory.
The court assumed that, even though Gillis was a prospective alter-
nate juror, erroneously overruling an objection to striking her
would not be harmless. Id. at 796. But the court concluded that the
trial court did not abuse its discretion. Id. Gillis not only lived near
someone involved in the case but also had “specific personal ac-
quaintances that might have tended to make her sympathetic to the
defense.” Id. (citing Congdon v. State, 424 S.E.2d 630 (Ga. 1993)). The
court “carefully noted King’s argument that other jurors who knew
him or members of his family were not stricken by the State” but
did not conclude from this fact that Johnson’s strike was discrimi-
natory. Id. It found credible Johnson’s argument that “other factors,
which did not apply to those other jurors, contributed to” his deci-
sion to strike Gillis. Id. The Supreme Court of the United States
denied certiorari. King v. Georgia, 536 U.S. 957 (2002).
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Several years later, King filed a state petition for a writ of
habeas corpus. King alleged eight grounds for relief. Only some are
relevant to this appeal.
First, King argued that he was denied adequate assistance of
counsel at trial and sentencing. See Strickland v. Washington, 466 U.S.
668 (1984). In support of this claim, King presented affidavits, re-
ports, and testimony from his family members and psychological
experts. Competent counsel, King argued, could have more persua-
sively argued that he was schizophrenic and not malingering and
would have presented better mitigating evidence counseling
against a death sentence. In particular, he argued that the records
of Dr. Beck’s examination of King, which included a firmer schiz-
ophrenia diagnosis, or the Central State Hospital records should
have been provided to the experts used at trial or directly to the
jury. One of the hospital doctors testified that he would have testi-
fied that King was not malingering, and another said she would
have changed her malingering conclusion and testified in King’s fa-
vor if she had been provided with more records. Dr. Dickinson tes-
tified that testimony from one of King’s neighbors corroborated
King’s schizophrenia. And Dr. Miller testified that further records
persuaded him that King “perhaps” was “pre-psychotic” when Dr.
Miller evaluated him before trial. King also argued that counsel
should have obtained records from the Department of Family and
Children’s Services that would have provided more background in-
formation on King’s difficult family background and the behavior
of his family. And competent counsel would have developed and
presented evidence of his abuse as a child. Finally, King argued that
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Mitchum and Cox should have testified at the guilt stage and not
just at sentencing.
The superior court rejected King’s Strickland arguments in a
lengthy order. It reasoned that King had the benefit of experienced
counsel and that Jackson’s prior ineffectiveness in another case was
irrelevant to whether he was ineffective in this one. The court
found that there was no reliable information about King’s being
abused as a child or having a family history of mental illness that
should have alerted counsel to a need to investigate those issues
further. King’s experts were given ample records about King to
make their diagnoses; the additional materials he pointed to were
merely cumulative. The court determined that his experts’ testi-
mony that they now had more confidence in a schizophrenia diag-
nosis did not mean that counsel could have elicited better testi-
mony from them at trial by providing them with more of the same
kind of records that they received. The court considered King’s ci-
tation of Dr. Beck’s schizophrenia diagnosis unpersuasive, as Beck’s
sessions with King lasted only 15 minutes and counsel’s hired ex-
perts spent far more time with him. And the court ruled that it was
a reasonable strategic decision to avoid relying on the hospital that
negatively evaluated King and to decline to introduce childhood
records that could have opened up King’s character for attack by
the prosecution. The court concluded that reserving Mitchum’s
and Cox’s testimony for sentencing was a reasonable strategic de-
cision because they were lay witnesses who were not qualified to
opine on King’s mental capacity.
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The court ruled in the alternative that King had not estab-
lished prejudice from his counsel’s alleged errors. Instead, King
“merely assert[ed] trial counsel should have presented more wit-
nesses to testify at [his] trial and that those who did testify should
have testified to something different.” That argument, the court
found, was not sufficient to establish ineffective assistance of coun-
sel.
The state habeas court also rejected King’s renewed chal-
lenge to the state law, GA. CODE § 17-7-131(c)(3) (1998), that re-
quired a defendant seeking the “guilty but mentally retarded” ver-
dict to prove his intellectual disability beyond a reasonable doubt.
It first ruled that it was bound by the Supreme Court of Georgia’s
decision on the issue. See King, 539 S.E.2d at 798. And it also con-
cluded that the intervening decision by the Supreme Court of the
United States in Atkins v. Virginia, 536 U.S. 304 (2002), which held
that states may not execute intellectually disabled defendants, did
not change the outcome of King’s claim. In Atkins, the state court
explained, the “[Supreme] Court specifically referenced Georgia’s
statute requiring proof of mental retardation beyond a reasonable
doubt when it explicitly left to the states the task of developing
their own procedures.” Id. at 313–14, 317. The Supreme Court of
Georgia and Supreme Court of the United States denied King’s re-
quests for further review. King v. Humphrey, 567 U.S. 907 (2012).
King filed a federal petition that alleged nine grounds for re-
lief, and the district court rejected all nine. The district court ruled
that King could not overcome the deference federal courts owe to
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18 Opinion of the Court 20-12804
state-court adjudications under the Antiterrorism and Effective
Death Penalty Act, see 28 U.S.C. § 2254, as to his Batson and Strick-
land claims or his argument that Georgia’s burden of proof for an
intellectual-disability verdict was unconstitutional. It also deter-
mined that King had forfeited his other arguments based on his in-
tellectual disability, such as his argument that he was entitled to a
directed verdict as to his intellectual disability. The district court de-
nied King’s motion to alter or amend its judgment but granted a
certificate of appealability for King’s Batson claims. We later ex-
panded the certificate to include King’s Strickland claims, his chal-
lenge to the intellectual-disability burden of proof, and the deter-
mination that King had forfeited his other intellectual-disability ar-
guments.
II. STANDARDS OF REVIEW
We review the denial of a petition for a writ of habeas cor-
pus de novo. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th
Cir. 2005). Our review is governed by the Antiterrorism and Effec-
tive Death Penalty Act of 1996, 28 U.S.C. § 2254. Under that Act,
“state-court decisions [must] be given the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citation omitted). If a
state court adjudicated a claim on the merits, we cannot set aside
that adjudication unless it was “either ‘contrary to, or involved an
unreasonable application of, clearly established federal law’” or was
an unreasonable determination of the facts in the light of the evi-
dence. Raulerson v. Warden, 928 F.3d 987, 995 (11th Cir. 2019) (alter-
ation adopted) (quoting 28 U.S.C. § 2254(d)(1)); see also 28 U.S.C.
§ 2254(d)(2).
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A state court unreasonably applies federal law “only if no
fairminded jurist could agree with the state court’s determination
or conclusion.” Raulerson, 928 F.3d at 995 (internal quotation marks
and citation omitted). We evaluate the reasons offered by the court,
but if we can justify those reasons on a basis the state court did not
explicate, the state-court decision must still stand. Pye v. Warden,
Ga. Diagnostic Prison, 50 F.4th 1025, 1036 (11th Cir. 2022) (en banc).
If the last state court to address an issue did not explain its decision,
we “look through” that decision and base our decision on the last
reasoned decision provided by a state court. Wilson v. Sellers, 138 S.
Ct. 1188, 1193–94 (2018). Factual determinations are “presumed to
be correct,” and that presumption can be overcome only by “clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1). If a state court
unreasonably applied federal law or unreasonably determined the
facts in a case, we review the underlying claim de novo. Adkins v.
Warden, Holman CF, 710 F.3d 1241, 1250 (11th Cir. 2013).
III. DISCUSSION
We take each of King’s four claims in turn. First, we explain
that the Georgia courts reasonably adjudicated King’s Batson and
J.E.B. claims. Second, we explain that the Georgia courts reasonably
rejected King’s Strickland claims. Third, we explain that the Georgia
courts reasonably rejected King’s challenge to Georgia’s burden of
proof for a guilty-but-intellectually-disabled verdict. And fourth,
we affirm the ruling that King forfeited his other intellectual-disa-
bility arguments.
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20 Opinion of the Court 20-12804
A. King’s Batson Claims
The Supreme Court has established a three-step process for
evaluating objections that a prosecutor exercised his peremptory
strikes on the basis of race or sex. See J.E.B., 511 U.S. at 144–45. At
the first step, “the defendant must establish a prima facie case by
producing evidence sufficient to support the inference that the
prosecutor exercised peremptory challenges on the basis of race
[or sex].” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1199 (11th
Cir. 2013). At the second step, “the burden shifts to the State to
come forward with a neutral explanation” for its strikes. Id. (quot-
ing Batson, 476 U.S. at 97). At the third step, the trial court must
find, as a matter of fact, whether the defendant has established pur-
poseful discrimination. Id. Typically, “the decisive question will be
whether counsel’s race- [or sex-]neutral explanation for [the] per-
emptory challenge should be believed.” Id. (citation omitted).
The trial court must “consider all relevant circumstances” at
the third step, and the conviction cannot stand if even one of the
strikes was discriminatory. Id. at 1199–1200. When a court consid-
ers a Batson claim in an appeal or a state habeas proceeding, the
“state court’s written opinion is not required to mention every rel-
evant fact or argument” for its merits determination to receive def-
erence on review by a federal court. Id. at 1223. Instead, the peti-
tioner must prove that the state court failed to consider that argu-
ment or fact. See id. at 1222–23.
King has not met the high standard required to set aside the
Georgia courts’ adjudications of his objections. Although this
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20-12804 Opinion of the Court 21
appeal presents a troubling record and a prosecutor who exercised
one racially discriminatory strike and ranted against precedents of
the Supreme Court of the United States, King’s argument that the
Supreme Court of Georgia failed to consider all relevant circum-
stances fails. Moreover, the district court correctly found that King
failed to exhaust his challenge to the McTier strike when he de-
clined to raise those arguments on direct appeal. And a fairminded
jurist could agree with the decision to reject King’s challenges with
respect to prospective jurors McCall, Ford, Burkett, and Gillis.
There is no clear and convincing evidence to overcome the pre-
sumption that the factual determinations regarding those prospec-
tive jurors were correct.
1. King Has Not Established that the Georgia Courts Failed to
Consider All Relevant Circumstances.
King first argues that we should review the Georgia courts’
decisions de novo because they unreasonably applied Batson. See Ad-
kins, 710 F.3d at 1250. He cites our decision in McGahee v. Alabama
Department of Corrections, 560 F.3d 1252 (11th Cir. 2009), where we
explained that the “failure to consider ‘all relevant circumstances’
as required by Batson [is] an unreasonable application of law,” id. at
1262. King contends that the Supreme Court of Georgia failed to
consider the discriminatory Alderman strike, the statistical evi-
dence of discrimination by Johnson, Johnson’s speech about Batson,
and the racial overtones of a trial of a black defendant for the mur-
der of a white woman. To support his conclusion that the Supreme
Court of Georgia did not consider these circumstances, King points
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22 Opinion of the Court 20-12804
out that the court did not explicitly discuss them and argues that
consideration of those circumstances would lead any reasonable
court to accept his claims. We agree that these circumstances are
relevant to the Batson inquiry, but King has not established that the
Supreme Court of Georgia failed to consider them.
Neither McGahee nor any other of our precedents requires
state courts to show their work in Batson decisions by mentioning
every relevant circumstance. See Lee, 726 F.3d at 1219 (“The state
court’s unreasonable application of Batson [in McGahee] was not the
failure to mention, but the failure to even implicitly consider [rele-
vant circumstances.]”). A petitioner must do more than prove that
the state court failed to “mention” evidence in order to prove that
the state court failed to consider that evidence. Id. at 1223. This
“no-grading-papers, anti-flyspecking rule” stems from “‘the pre-
sumption that state courts know and follow the law’ and [section
2254(d)’s] ‘highly deferential standard for evaluating state-court rul-
ings, which demands that state-court decisions be given the benefit
of the doubt.’” Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d
1335, 1350 (11th Cir. 2019) (quoting Woodford v. Visciotti, 537 U.S.
19, 24 (2002)); see also Pye, 50 F.4th at 1036–38; Jones v. Sec’y, Fla.
Dep’t of Corr., 834 F.3d 1299, 1311–12 (11th Cir. 2016) (“[W]e will
not presume that a state court misapplied federal law, and absent
indication to the contrary will assume that state courts do under-
stand clearly established Federal law as determined by the Supreme
Court of the United States.”(internal quotation marks and citation
omitted)).
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20-12804 Opinion of the Court 23
King has also not established that “[t]he court clearly limited
its review” to some reasons and “did not implicitly review” the cir-
cumstances King proffers. Cf. McGahee, 560 F.3d at 1264. The Su-
preme Court of Georgia acknowledged the Alderman strike and
that King had established a prima facie case of discrimination based
on the pattern of strikes. See King, 539 S.E.2d at 795. Nothing in the
Supreme Court of Georgia’s opinion suggests that it did not con-
sider Johnson’s rant or the obvious racial overtones in King’s case,
so we must presume that the court did consider the circumstances
King cites.
The dissent’s conclusion that the Supreme Court of Georgia
did not reasonably apply the Batson framework relies on a misun-
derstanding of how we evaluate state-court Batson decisions. Ac-
cording to the dissent, the same circumstances on which King re-
lies, taken together, required that the Supreme Court of Georgia
find at least one, perhaps several, Batson violations. But the dissent
does not specify which adjudication was unreasonable and instead
evaluates King’s individual Batson claims de novo. Dissenting Op. at
8–15; cf. 28 U.S.C. § 2254(d)(1). Moreover, as the dissent at times
acknowledges, we do not review the reasonableness of state-court
Batson decisions in gross based on a judgment that the prosecutor
must have engaged in some discriminatory strike somewhere; in-
stead, “Batson violations are evaluated juror-by-juror.” Dissenting
Op. at 11. Neither McGahee nor Adkins, on which the dissent relies,
dictate otherwise.
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24 Opinion of the Court 20-12804
The dissent argues that the Alderman strike means that this
appeal is similar to McGahee, in which this Court held that the Ala-
bama Court of Criminal Appeals was not entitled to deference be-
cause it “fail[ed] . . . to consider the State’s articulation of an explic-
itly racial reason for striking” a juror, 560 F.3d at 1263–64. See Dis-
senting Op. at 10 (“[T]he trial court’s finding that Alderman was
struck for a racially discriminatory reason represents the sort of ex-
plicit racial discrimination evidence that was dispositive in McGa-
hee.”) But this case is nothing like McGahee. There, the Alabama
court’s opinion, by its own terms, clearly limited its analysis to ex-
clude the explicitly racial rationale for a strike. See McGahee, 560
F.3d at 1264 (quoting from the Alabama court’s opinion, which
“read the record as providing two reasons,” and not the racially ex-
plicit reason, for the strike). The Supreme Court of Georgia, in
contrast, never said that it considered only the facts that it explicitly
mentioned in its Batson analysis. And in McGahee, the state appellate
court’s error was ignoring crucial evidence about a strike that the
trial court upheld at Batson step three. McGahee, 560 F.3d at 1264.
The error was not failing to infer another Batson violation from a
discriminatory strike that was remedied, as the Alderman strike was.
Adkins likewise does not support the dissent’s argument.
Like McGahee, the Adkins decision held only that the application of
Batson to a specific prospective juror was unreasonable. See Adkins,
710 F.3d at 1251–52. And in Lee, we cautioned that “a significant
part of the . . . rationale and analysis in Adkins [was] inconsistent
with Supreme Court and our Circuit precedent.” Lee, 726 F.3d at
1220–21. The holding was acceptable only because in Atkins “[e]ven
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20-12804 Opinion of the Court 25
if we were to indulge every maximum factual inference from th[e]
evidentiary record and credit every reason given, it would not be
good enough to make the no-discrimination ruling reasonable.” Id.
at 1223.
The dissent purports to review whether the Supreme Court
of Georgia properly applied the Batson framework, but in sub-
stance it only disagrees with the factual determination about John-
son’s credibility. Contrary to the dissent’s framing, we must review
the reasonableness of the state courts’ bottom-line factual finding
about Johnson’s reasons for his strikes under the standards Con-
gress has prescribed in section 2254(d)(2). Contra Dissenting Op. at
9–10 (applying section 2254(d)(1) instead of section 2254(d)(2)). We
address that argument in the following section, keeping in mind of
course, the background facts about Johnson’s other strikes. Cf.
Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019) (explaining that a
prosecutor’s past discriminatory behavior is relevant to evaluating
the credibility of race-neutral explanations for strikes).
2. The Supreme Court of Georgia Reasonably Adjudicated the
Facts.
We now turn to King’s arguments that the state courts “ac-
cepted demonstrably false reasons as legitimate grounds for the re-
moval of qualified black jurors and white female jurors” and so
made unreasonable determinations of fact. See 28 U.S.C.
§ 2254(d)(2). King faces a high hurdle at this stage. We cannot re-
view King’s arguments de novo unless he has provided “clear and
convincing evidence” that the state court was wrong to credit
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26 Opinion of the Court 20-12804
Johnson’s non-discriminatory justifications for his strikes. Id.§ 2254(e)(1); see also Rice v. Collins, 546 U.S. 333, 338–39 (2006) (ex-
plaining that a state court’s decision at Batson step three is a pre-
sumptively correct factual determination).
As Batson requires, we evaluate the state-court decision in
the light of all the relevant circumstances, including the four that
we have already discussed, but we emphasize that two of them, the
Alderman strike and Johnson’s rants, cannot bear the weight that
the dissent places on them, especially when the trial court was wit-
ness to both. The trial court found the Alderman strike discrimina-
tory but found the other strikes lawful, and we should hesitate to
second-guess its distinction among the strikes. Likewise, unlike the
dissent, we do not treat Johnson’s rants as decisive evidence that
Johnson would discriminate against black jurors if Batson did not
stop him. See Dissenting Op. at 12–13. We must draw inferences in
favor of the state court’s adjudication, and if we do, the rants, while
inappropriate, do not prove that Johnson wanted to discriminate
based on race. Johnson complained that statistics should be used
evenhandedly to show discrimination by both the prosecution and
the defense. And he complained that Batson required him to focus
on a juror’s race to address a potential Batson challenge, though be-
fore Batson he could ignore race. These—to be clear, misplaced and
futile—arguments attack the procedures that the Supreme Court
of the United States has crafted to detect and remedy racial dis-
crimination in jury selection, but they do not necessarily support
an inference that the prosecutor wanted to be free to racially dis-
criminate in jury selection.
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20-12804 Opinion of the Court 27
We do not reach the merits of overruling King’s objection to
the McTier strike. The district court ruled that King did not exhaust
his state remedies for his objection to the McTier strike, although
it incorrectly labeled King’s failure to exhaust as “procedural de-
fault.” See 28 U.S.C. § 2254(b)(1)(A). That ruling is not properly be-
fore us. The district court did not include it in its certificate of ap-
pealability, and although we granted King’s request to expand that
certificate, our expansion did not reach the McTier strike because
King did not mention it in his request. King now asks in his brief
for a second expansion of the certificate of appealability, but he does
not argue that this appeal is an “extraordinary” situation that war-
rants expanding the certificate of appealability after briefing. See
Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1341 (11th Cir. 2007).
Nonetheless, the facts of the McTier strike are relevant background
when assessing the reasonableness of the Georgia courts’ other
Batson adjudications.
The Georgia courts reasonably rejected King’s objection re-
garding McCall. King points to white jurors who had reservations
about the death penalty but were not rejected. But the prospective
jurors he identifies said little more than that they would want to
see all the evidence in a case before imposing the death penalty. It
was reasonable for the Supreme Court of Georgia to conclude that,
although Johnson was mistaken about an aspect of the record re-
garding McCall’s husband’s voir dire, he was not inventing a pretext
for a racial motive. King, 539 S.E.2d at 796; cf. Lee, 726 F.3d at 1226(holding it reasonable to conclude that “an honestly mistaken but
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28 Opinion of the Court 20-12804
race-neutral reason for striking [a potential juror] did not violate
Batson”).
We also hold that the state courts reasonably addressed the
Ford strike. The Supreme Court of Georgia credited Johnson’s ex-
planation that Ford’s status as a single mother would make jury
service a burden on her and that Ford was the only person who said
she enjoyed working with intellectually disabled people. King, 539
S.E.2d at 796. King has provided no clear and convincing evidence
that the Georgia courts were wrong to accept this explanation.
King is correct that at the Batson hearing Johnson focused on the
burdens of jury service on Ford’s childcare, not the financial con-
cerns that the Supreme Court of Georgia identified. But that dif-
ference does not make the Georgia court’s decision unreasonable.
It was reasonable for the court to infer that the financial burdens of
jury service would affect a single parent disproportionally. And
Johnson’s primary rationale for the strike, in any event, was that
Ford enjoyed her work with special-needs children. This rationale,
which the Supreme Court of Georgia also considered, id., is all the
more plausible because King mostly compared Ford to other women
who also worked with intellectually disabled people but did not say
that they enjoyed that work. The Supreme Court of Georgia was
reasonable to reject the argument that Ford’s sex was the reason for
the strike.
Johnson said that he struck Burkett based on his strict rule
against having ministers on juries and because she knew King’s
family. The Supreme Court of Georgia affirmed the trial court’s
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20-12804 Opinion of the Court 29
acceptance of these rationales and explained that Johnson “consist-
ently questioned male and female jurors of all races during voir
dire about the roles they served in their places of worship” and that
“none of the other prospective jurors were ministers.” Id. at 795.
The Supreme Court of Georgia also stated that although her con-
nections were not uniquely close as compared to other prospective
jurors, Burkett had connections to King’s family. Id.The Georgia courts reasonably applied Batson. King does not
provide any evidence that the family connections played no role in
the strike; he can only prove what the Georgia court acknowl-
edged: that Burkett’s connections were not unique enough, stand-
ing alone, to explain striking her. Id. But the family connections
were not the only explanation for the strike.
King argues that Johnson did not save a strike to use against
Thomas Lightsey, a white member of the venire pool who was also
a minister. So, according to King, Lightsey must have been accepta-
ble to Johnson. The Supreme Court of Georgia, he argues, was
wrong to say that “none of the other prospective jurors were min-
isters,” and we should conclude that Johnson’s no-minister rule was
pretextual. Id. We disagree.
As the district court correctly explained, Lightsey was the
41st juror in the venire list, the second to last, so it was highly un-
likely that he would be reached before 12 jurors were selected. And
he was not reached. If we give the Supreme Court of Georgia the
benefit of the doubt, as we must, Meders, 911 F.3d at 1350, it might
not have considered Lightsey a “prospective” juror because of how
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30 Opinion of the Court 20-12804
unlikely it was that he would be reached and selected. But even if
the Supreme Court of Georgia misread the record, that error
would not entitle King to relief. As we explained recently, we re-
view not “the particular justifications that the state court provided”
but the broader “reasons” for the decision. Pye, 50 F.4th at 1036. The
district court was correct to supply an alternative justification—
Lightsey’s place in the list of potential jurors—for the state court’s
reason for the decision: that it was not an abuse of discretion for the
trial court to accept Johnson’s explanation of the strike. We cannot
rely on a possible misstatement by the Supreme Court of Georgia
to set aside its decision when King has otherwise failed to prove
that the no-minister rule was pretextual.
Finally, we affirm the ruling as to prospective alternate juror
Gillis. Gillis, Johnson explained, was neighbor to both King’s aunt
and Smith’s uncle. King argues that Gillis’s residence could not have
been the real reason for her strike because Johnson did not strike
white jurors who also had connections to King and his family. He
suggests that a prosecutor concerned about family or personal con-
nections would have struck other prospective jurors who, respec-
tively, ran a video store at which King was a customer, conducted a
medical procedure on King, went to school with King’s sister but
had no contact with King, worked at the lunchroom at King’s mid-
dle school, and possibly taught King and his sister in middle school.
We consider it reasonable to distinguish between, on the one hand,
living close to King’s close family member and a close family mem-
ber of his co-defendant and, on the other hand, any of the acquaint-
ances the other prospective jurors had. Cf. King, 539 S.E.2d at 796.
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20-12804 Opinion of the Court 31
And even if drawing those distinctions was not sound trial strategy
on Johnson’s part, it was reasonable for the Georgia courts to have
credited them as Johnson’s sincere, if misguided, reason for striking
Gillis. We lack authority to set aside that decision.
King’s Batson challenges fail. “[H]abeas corpus is a guard
against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Har-
rington v. Richter, 562 U.S. 86, 102–03 (2011) (internal quotation
marks and citation omitted). The Georgia courts reasonably ap-
plied Batson when they rejected King’s remaining objections after
sustaining one of them, which was corrected by seating the im-
properly stricken juror. King has not proved that the Georgia courts
generated an “extreme malfunction” in his case.
B. The Georgia State Court Reasonably Rejected King’s Strickland
Claims.
To prevail on a claim of ineffective assistance of counsel,
King must prove that his counsel’s performance was objectively de-
ficient and that this deficient performance prejudiced him. Strick-
land, 466 U.S. at 687. King argued that his trial counsel inadequately
investigated and presented evidence of his mental illness at trial and
mitigating childhood-adversity evidence at sentencing. The state
court rejected these arguments on the merits, so we must defer to
the state court’s decision—here, that of the Georgia superior court
because it gave the last reasoned decision on the merits, see Wilson,
138 S. Ct. at 1193–94—unless it was “not only erroneous, but ob-
jectively unreasonable,” Yarborough v. Gentry, 540 U.S. 1, 5 (2003); see
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32 Opinion of the Court 20-12804
28 U.S.C. § 2254(d). And Supreme Court precedents “require that
the federal court use a doubly deferential standard of review that
gives both the state court and the defense attorney the benefit of
the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation
marks and citation omitted).
The superior court applied the correct legal standards and
reasonably found that King’s counsel conducted an extensive inves-
tigation to prepare for trial and adequately presented a case for in-
tellectual disability, mental illness, and mitigating circumstances.
King’s criticisms of his counsel’s trial decisions do not establish that
“no fairminded jurist,” Raulerson, 928 F.3d at 995 (internal quota-
tion marks and citation omitted), could find that King’s counsel per-
formed at “an objective standard of reasonableness,” see Strickland,
466 U.S. at 688. Because we defer to the state court’s reasonable
determination that King’s counsel performed competently, we
need not address whether better assistance of counsel would have
changed the outcome of King’s trial. See Carey v. Dep’t of Corr., 57
F.4th 985, 989 (11th Cir. 2023) (“Because a petitioner must prove
both deficient performance and prejudice, a court need not address
one element if it determines that the petitioner has failed to prove
the other.”).
1. The State Court Applied the Correct Legal Standards.
King’s criticisms of the Georgia court’s understanding of the
governing law fail. To begin, it was not unreasonable for the supe-
rior court to count Jackson’s extensive capital-defense experience in
his favor. When we evaluate counsel’s performance, the
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20-12804 Opinion of the Court 33
presumption in favor of trial counsel “is even stronger” for “an ex-
perienced trial counsel.” See Lawrence v. Sec’y, Fla. Dep’t of Corr., 700
F.3d 464, 478 (11th Cir. 2012) (citation omitted). Of course, “even
the very best lawyer could have a bad day,” id. (citation omitted), so
the superior court could not afford Jackson’s experience conclusive
weight. But it did not do so; it took that experience into considera-
tion as the background for its evaluation. That deference to coun-
sel’s experience, required of federal courts in our Circuit, was not
an unreasonable application of Strickland.
King also argues that the court should have considered that
Johnson was found ineffective under Strickland in another case. Fail-
ure to do so, he argues, unreasonably disregarded Strickland’s com-
mand that courts consider “all the circumstances” when evaluating
deficient performance. 466 U.S. at 688. And it is not fair, King ar-
gues, to consider an attorney’s experience as a factor weighing
against a finding of ineffective assistance while refusing to consider
past failures as a factor weighing in favor of such a finding. We dis-
agree.
The state court could have reasonably read Strickland’s refer-
ence to “all the circumstances” in the light of the requirement that
reasonableness must be evaluated “on the facts of the particular
case.” Id. at 690. One past instance of ineffective assistance does
little to establish whether King’s rights were violated, so it was not
an unreasonable application of Strickland for the state court not to
consider it. Nor does Supreme Court precedent foreclose taking
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34 Opinion of the Court 20-12804
extensive past experience into account while ignoring a single fail-
ure on counsel’s part.
Finally, King argues that “the fact that [his] counsel con-
ducted some mitigation [investigation] cannot, on its own, pre-
clude a finding of ineffectiveness.” By “focusing on what trial coun-
sel presented,” he says, “the state habeas court’s analysis was also
unreasonable” because it ignored what counsel “could have pre-
sented to King’s sentencing jury.” Again, King’s argument is mis-
placed.
The state court did not apply the wrong standard. Counsel’s
investigation before trial “need not be exhaustive” but only “ade-
quate.” Raulerson, 928 F.3d at 997. So “[t]o determine whether trial
counsel should have done something more in their investigation,
we first look at what the lawyers did in fact.” Id. (alteration
adopted) (internal quotation marks and citation omitted). The su-
perior court correctly considered King’s criticisms of his counsel’s
performance in the light of counsel’s actions and not based on
King’s suggestions of ideal trial strategy.
2. The State Court’s Conclusions Were Reasonable.
King challenges the superior court’s treatment of his Strick-
land claims regarding both deficient performance and prejudice. He
argues that the state court “unreasonably discounted” his evidence
of mental illness. King contends that counsel could have presented
a stronger case for schizophrenia at trial and rebutted charges of
malingering. And competent counsel could have presented a more
sympathetic mitigation case by highlighting other aspects of King’s
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20-12804 Opinion of the Court 35
difficult childhood. He argues that the state court unreasonably de-
termined that he was not prejudiced at sentencing by the lack of
mitigating evidence. And he argues that the state court unreasona-
bly found that he was not prejudiced by the presentation of certain
witnesses only at the sentencing phase and not at the guilt stage.
Because King’s arguments about deficient performance fail, we
need not reach his arguments about prejudice.
Fairminded jurists could agree with the conclusion that
King’s counsel performed in a constitutionally adequate manner.
See Richter, 562 U.S. at 102. As to King’s family and background,
counsel conducted a lengthy background investigation, and the su-
perior court reasonably discounted King’s argument that counsel
should have presented evidence of childhood abuse or familial
mental illness. Although counsel may have been vaguely aware of
mental illness in King’s family, counsel reasonably focused their
limited resources on King’s mental health, especially because nei-
ther King nor his sister revealed any parental abuse in their inter-
views, nor any specific family history of mental illness. “An attor-
ney does not render ineffective assistance by failing to discover and
develop evidence of childhood abuse that his client does not men-
tion to him.” Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999).
King also takes issue with the amount of detail the jury was pro-
vided regarding King’s childhood, but the superior court reasona-
bly concluded that the jury was informed that King had an ex-
tremely difficult background and that King had not proved that his
counsel performed inadequately by “not presenting evidence that
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36 Opinion of the Court 20-12804
could be potentially aggravating . . . [or] cumulative.” See Rhode v.
Hall, 582 F.3d 1273, 1287 (11th Cir. 2009).
It was also reasonable to reject King’s argument that counsel
should have employed additional expert witnesses or supplied the
expert witnesses with more records. Jackson could reasonably de-
cline to rely on hospital records and doctors from a source that he
had found unreliable in the past and that had evaluated King nega-
tively. And King does not explain why the records that he presented
to the experts in relation to his state habeas petition are fundamen-
tally different from what his experts reviewed in preparation for
trial, so he cannot prove that counsel’s performance was the reason
for the weaker schizophrenia case he made at trial.
King had to prove that “from counsel’s perspective at the
time,” a competent attorney would have crafted a better case for
schizophrenia. See Strickland, 466 U.S. at 689. At most, King brought
evidence that some doctors were more confident of King’s schizo-
phrenia in 2012, but the possibility of proving schizophrenia in 2012
does not establish that counsel unreasonably failed to provide bet-
ter evidence of schizophrenia at trial in 1998. The superior court
reasonably found that King failed to satisfy his Strickland burden
and instead merely “later secured a more favorable opinion of an
expert than the opinion” his trial counsel presented. See McClain v.
Hall, 552 F.3d 1245, 1253 (11th Cir. 2008). And although King now
argues that counsel should have called Dr. Beck, who was more
confident about King’s schizophrenia during the relevant, pre-trial
period, the superior court correctly rejected that argument. King’s
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20-12804 Opinion of the Court 37
counsel was reasonably concerned that Dr. Beck, who had spent so
little time with King compared to his other experts, was vulnerable
to credibility attacks by the prosecution. And regardless, counsel is
not ineffective whenever more witnesses could have been called.
See Rhode, 582 F.3d at 1285.
Contrary to King’s arguments, the superior court did not
reach its conclusion based on an unreasonable categorical rule
against affidavit evidence. The court weighed those affidavits
against the live testimony of King’s counsel that they could not
have secured further mitigation or mental-illness witnesses and
chose to give trial counsel’s testimony greater weight. That deci-
sion was reasonable, especially in the light of the often-recognized
tendency of petitioners to submit self-serving affidavits that do not
accurately reflect the circumstances at the time of trial. See Waters
v. Thomas, 46 F.3d 1506, 1513–14 (11th Cir. 1995) (en banc) (“It is
common practice for petitioners attacking their death sentences to
submit affidavits from witnesses who say they could have supplied
additional mitigating circumstance evidence . . . . But the existence
of such affidavits . . . usually proves little of significance.”).
King falls far short of establishing that a reasonable court
would have been compelled to find that his counsel conducted a
“profoundly incomplete investigation” that deprived him of his
Sixth Amendment rights. Cf. Ferrell v. Hall, 640 F.3d 1199, 1227 (11th
Cir. 2011). As the district court observed, King does little more in
his federal habeas petition than reiterate the arguments that he
made before the state court and contend that the state court should
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38 Opinion of the Court 20-12804
have accepted them. And those arguments, as the superior court
concluded, do little more than suggest “that other witnesses might
have been available or that other testimony might have been elic-
ited from those who testified.” (Quoting Williams, 185 F.3d at
1236). These arguments are “not . . . sufficient ground[s] to prove
ineffectiveness of counsel.” Williams, 185 F.3d at 1236 (citation
omitted).
We need not reach King’s argument about the rejection of
his contention that trial counsel should have called Cox and
Mitchum at the guilt phase of trial and not only at sentencing. The
superior court found that the decision “was a reasonable strategic
decision made after a thorough investigation.” The state court ad-
dressed prejudice in the alternative. But King addresses only the
prejudice ruling and makes no argument about deficient perfor-
mance. Because King does not argue that the performance ruling
was unreasonable, we lack power to disturb the state court’s adju-
dication of this issue. See Shinn v. Kayer, 141 S. Ct. 517, 524 (2020)
(“Federal courts may not disturb the judgments of state courts un-
less each ground supporting the state court decision is examined
and found to be unreasonable.” (internal quotation marks and cita-
tion omitted)).
C. The Georgia Courts Reasonably Rejected King’s Challenge to Geor-
gia’s “Guilty but Mentally Retarded” Statute.
King contends that it is unconstitutional for Georgia to re-
quire a defendant to prove his intellectual disability beyond a rea-
sonable doubt in order to secure the immunity from the death
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20-12804 Opinion of the Court 39
penalty that the “guilty but mentally retarded” verdict provides. See
GA. CODE § 17-7-131(c)(3), (j) (1988). King argues that he is entitled
to de novo review of this claim because, he contends, it was not ad-
judicated on the merits by the state courts. Cf. 28 U.S.C. § 2254(d)
(requiring deference only to state court adjudications on the mer-
its). The Supreme Court of Georgia rejected King’s direct appeal
before the Supreme Court of the United States decided in Atkins v.
Virginia that the Eighth Amendment prohibits the execution of in-
tellectually disabled defendants. See Atkins, 536 U.S. at 321. But the
superior court denied King’s petition for a writ of habeas corpus
ten years after Atkins was decided. And although the superior court
addressed King’s challenge under Georgia law as an issue of res ju-
dicata, it also rejected King’s federal-law Atkins argument on the
merits because the Atkins Court implicitly approved Georgia’s stat-
ute by citing it favorably. See id. at 313–14, 317.
King admits, as he must, that his challenge fails if the state
court adjudicated his claim on the merits. We have already held that
a state-court rejection of an Atkins challenge to the Georgia statute
is reasonable. See Raulerson, 928 F.3d at 1001–03; Hill v. Humphrey,
662 F.3d 1335, 1347 (11th Cir. 2011) (en banc). Atkins “did not ad-
dress the burden of proof to prove intellectual disability, much less
clearly establish that a state may not require a defendant to prove
his intellectual disability beyond a reasonable doubt.” Raulerson,
928 F.3d at 1001.
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40 Opinion of the Court 20-12804
D. King Forfeited Any Direct Challenge to His Conviction Based on His
Intellectual Disability.
The district court correctly rejected King’s other arguments
based on his intellectual disability. The district court found that
those arguments “were not briefed, and thus King cannot satisfy his
burden.” King challenges this forfeiture ruling. He argues that he
presented the basic facts supporting his claim in his petition for fed-
eral relief, if not in his actual brief, and contends that he did not
have to brief his claim to preserve it. King is mistaken: ordinary
forfeiture rules, under which a party forfeits an argument by failing
to adequately brief it, apply to habeas proceedings in the district
court. See Butts v. GDCP Warden, 850 F.3d 1201, 1208 (11th Cir. 2017).
So King had to make more than the skeletal argument in his peti-
tion to preserve these issues. Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014). The district court had the discretion
to reject King’s arguments without reaching the merits. See United
States v. Campbell, 26 F.4th 860, 872–73 (11th Cir. 2022) (en banc).
IV. CONCLUSION
We AFFIRM the denial of King’s petition for a writ of ha-
beas corpus.
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20-12804 WILSON, J., Dissenting 1
WILSON, Circuit Judge, dissenting:
The majority correctly notes that a state court need not “dis-
cuss every fact or argument to be a reasonable application of Batson
under § 2254(d).” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172,
1214 (11th Cir. 2013). But Lee also notes that when there is truly an
“abundan[ce of ] racial discrimination evidence” in the record, we
may find the state court’s Batson decision was indeed unreasonable.
Id. This is one of those cases.
There were eight black potential jurors in King’s venire. As-
sistant District Attorney (ADA) John Johnson struck seven of them.
When King argued that ADA Johnson’s strikes reflected racial bias
in violation of the Supreme Court’s decision in Batson v. Kentucky,
476 U.S. 79 (1986), ADA Johnson launched into two lengthy solilo-
quies suggesting his open disdain and outright contempt for Batson.
King made a prima facie case of racial bias as to each of ADA John-
son’s strikes. The trial court found that ADA Johnson acted im-
properly when he struck Jacqueline Alderman because she was: “a
black female from Surrency.” This is clear evidence of racial dis-
crimination. According to Lee, we can and should find that the Su-
preme Court of Georgia unreasonably applied Batson.
In my view, because King overcomes the Antiterrorism and
Effective Death Penalty Act (AEDPA) deference, he is entitled to de
novo review of his claim. Adkins v. Warden, Holman CF, 710 F.3d
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2 WILSON, J., Dissenting 20-12804
1241, 1250 (11th Cir. 2013). Consequently, I would find that he has
proven a Batson violation, and thus King is entitled to habeas relief.1
First, I will highlight some relevant facts from jury selection.
Second, I will address the relevant circumstances that the Supreme
Court of Georgia failed to consider in conjunction with one an-
other and thus unreasonably applied Batson. Lastly, because I be-
lieve King overcomes AEDPA deference, I will review the record de
novo.
I.
Jury selection began with a pool of 168 potential jurors from
which fifteen would be selected: twelve as members of the petit
jury and three as alternate jurors. Ultimately, fifty-four potential
jurors were found qualified to serve, and the remaining potential
jurors were excused.
Before the peremptory strikes, the racial makeup of the ve-
nire included thirty-four white potential jurors and eight black po-
tential jurors.2 Of the forty-two potential jurors, seven jurors
raised their hand indicating they knew King, knew who King was,
knew of King, or knew of any member of King’s family. Four of
1 Because I would reverse on King’s Batson claim, I would not decide King’s
remaining claims. See Conner v. Hall, 645 F.3d 1277, 1294 (11th Cir. 2011).
2 In the alternate pool, there were ten white jurors and two black jurors. Based
on the striking sheet, ADA Johnson accepted seven white jurors and one black
juror. ADA Johnson did not excuse any white jurors but struck one black ju-
ror, Gwen Gillis.
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20-12804 WILSON, J., Dissenting 3
those jurors were white—Rebecca Griffin, Martha Vaughn, James
Edwards, and Connie Arnold. Three of those jurors were black—
Jacqueline Alderman, Lillie Burkett, and Maurice Vann.
Of the forty-two potential jurors, twenty-four raised their
hand showing they held various positions of leadership in their
church. Sixteen of those jurors were white, including James Orvin
and Aubrey Lynch, who were deacons, and Thomas Lightsey, a
minister. Eight of those jurors were black, including Jaqueline Al-
derman, a deaconess, and Lillie Burkett, a minister.
In total, ADA Johnson used only three of his ten strikes for
white potential jurors and the remaining seven strikes for black po-
tential jurors. He did not strike a single white potential juror who
raised their hand to indicate that they knew of King and his family,
but he struck all three black jurors who did the same. ADA Johnson
accepted fourteen white jurors who held leadership positions in
their church. The two remaining white jurors were not reached
during the selection process. ADA Johnson struck seven black ju-
rors who held a position of leadership within their church. Follow-
ing the exercise of the peremptory strikes, the petit jury consisted
of eleven white jurors and one black juror.
In asserting a Batson challenge, King argued that ADA John-
son’s use of peremptory strikes supported a prima facie case of dis-
crimination because ADA Johnson struck seven of eight black qual-
ified jurors. King brought juror-specific Batson challenges to each
of the seven black qualified jurors.
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4 WILSON, J., Dissenting 20-12804
At Batson Step One, the trial judge found that King estab-
lished a prima facie case of discrimination for ADA Johnson’s exer-
cise of his peremptory strikes. ADA Johnson responded:
First, let me say this, Your Honor: that I object to the
Court finding that, and I object to the Court’s finding
based on the fact that it’s simply on statistical analysis
that the State struck eight blacks and three whites,
and that has no rational basis on whether a prima fa-
cie case of discrimination has been established in this
particular case. I state that for the record. I know the
Court’s ruling, and I know the issue that has been de-
cided by the Supreme Court of Georgia. I do state
for the record that the Supreme Court of Georgia of
course does not know how I strike, and that it is im-
proper for them to involve themselves in this unless
defense counsel can point to a specific reason why
some particular juror was qualified to serve and that
I struck them. I have always objected to the use of
statistics to establish the fact that a prima facie case
has been laid. If I wanted to point to statistics, I could
show and point out that defense counsel struck only
white people. That’s all he ever struck. He had the
option, the ability, to strike two in the main panel, in
the alternates, to strike two people who were black,
and he did not do so, one of which, Mr. Carzell
Rooks[,] sat there and said over and over and over and
over and over again that if a certain set of facts were
established he’d have to vote for the death penalty,
which, I would assume, be the reason, if I raised the
issue, he would have struck a lot of other people, and
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20-12804 WILSON, J., Dissenting 5
I might be able to show that his strikes therefore
would be pretextual. And I point that out merely to
support the fact that statistics can never make a prima
facie showing. The Supreme Court of Georgia has
said that it does, and I just take exception to that, and
I do so for the record.
We would suggest, Your Honor, that there is a better
approach to this matter, and that is that, if a side
wants to raise the Batson issue, that that side that
raises it should first have to show that their strikes
were absolutely non-racially motivated or sexually- or
gender-motivated, and only if they did that would it
shift to the opposite side to make their strikes known
to the Court. I think that becomes very unwieldy, and
that’s why neither this Court nor the Supreme Court
nor the defense should be involved in deciding
whether or not the State has accurately or effectively
performed its strikes.
After ADA Johnson expressed his views about Batson, he
proffered nondiscriminatory, race-neutral reasons for exercising
each of his peremptory strikes under Batson Step Two. The trial
judge found that the strike of Jaqueline Alderman was improper
but the remaining strikes, including Sarah McCall and Lillie
Burkett, were proper.
As to the strike of Alderman, the record demonstrates that
the trial court found ADA Johnson’s reasons to be dubious, and that
Alderman did not really know King’s family and she did not know
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6 WILSON, J., Dissenting 20-12804
King. The trial judge further found that ADA Johnson engaged in
purposeful discrimination under Batson Step Three.
Upon the trial judge’s finding that ADA Johnson’s strike of
Alderman was discriminatory, the following exchange occurred:
Mr. Johnson: [W]hy should we do that? Why not
just—I mean I don’t have—first of all, I have a prob-
lem that if I say, find out that somebody knows the
family and I can’t—excuse me—give me a moment.
The Court: Calm down. Get yourself, your thoughts
proper and then tell me what you want to tell me.
After taking a moment, ADA Johnson again started on his views
about having to comply with Batson:
I find it improper for this Court to tell me that I can-
not decide, when I listen to what somebody says and
look at them, that they know the family, that they’ve
been living in this community for 35 years, that that’s
not a justifiable strike. If that’s the case, then 90 per-
cent of the strikes that I’ve taken, and 100 percent of
the strikes the defense takes in a case are irrelevant.
If this lady were a white lady there would not be a
reason—there would not be a question in this case.
And that’s the problem I have with all of this is that
it’s not racially neutral. There was a time when it was
racially neutral and that was before Batson. Because I
had to act that way when I was in Brunswick because
it was a physical impossibility if you wanted to strike
every black off a jury for you to do that. And we had
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20-12804 WILSON, J., Dissenting 7
an issue just—you had to reform your whole ideas and
then Batson came out. And Batson now makes us look
[at] whether people are black or not. Not whether
they’re black or white, but black or not. And I may be
arguing for the Supreme Court in this particular case
and not for this [C]ourt, which I probably am, but it
just, it is uncalled for to require people to be reseated
on a jury that I have a problem with in this case.
This lady sits on this jury and all of a sudden out
comes the fact that back during the life of this man’s
mother and father they were alcoholics, they beat
him, or they ignored him, or they—and she sits there
and says well I remember that. Then I’m screwed, to
use the vernacular. Not because I know that’s what’s
going to happen because my experience is anyone
who knows the family and has that much time in-
volved in the community, those are the people that
hang up a jury. That’s my experience. And when I
base it on my experience and then this Court says
that’s not a good enough reason, then I take issue
with this entire whole process, both to this Court and
to the Supreme Court of Georgia. It’s improper and
it’s wrong.
What I would suggest this Court to do now that I’ve
had my say, and I’m sorry, I’m very angry right now.
(emphasis added). Next, ADA Johnson stated that he would not
change his strikes, but the parties agreed to remove the selected
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8 WILSON, J., Dissenting 20-12804
twelfth juror and reseat Alderman to remedy ADA Johnson’s dis-
criminatory strike.
The jury convicted King of malice murder. King v. State, 539
S.E.2d 783, 788–89 (Ga. 2000). The next day, the trial judge ac-
cepted the jury’s recommendation to sentence King to death. Id.at 788 n.1. On November 30, 2000, the Supreme Court of Georgia
denied King’s Batson claims on direct appeal and affirmed King’s
convictions and sentence. Id. at 795–96, 802.
When addressing King’s Batson claims, the Supreme Court
of Georgia noted that the trial judge found King met the prima fa-
cie showing of discrimination but then found that “the trial court
did not abuse its discretion in finding that King failed to carry his
burden of persuasion as to the jurors challenged in this appeal.” Id.
at 795. Despite King arguing that the trial court failed to consider
relevant circumstances, the Supreme Court of Georgia neglected
to discuss how those relevant circumstances did or did not support
King’s Batson claim. Next, the Supreme Court of Georgia pointed
to the race-neutral reasons provided by ADA Johnson related to
each challenged juror to support its holding. Id. at 795–96.
II.
King argues that the Supreme Court of Georgia unreasona-
bly applied Batson by failing to consider: (1) ADA Johnson’s discrim-
inatory strike against Alderman—the reseated black juror; (2) ADA
Johnson’s statements, comments, and actions during the Batson
hearing; and (3) a racially disproportionate striking pattern.
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20-12804 WILSON, J., Dissenting 9
In Batson, the Supreme Court ruled that “the Equal Protec-
tion Clause forbids the prosecutor to challenge potential jurors
solely on account of their race.” 476 U.S. at 89. In turn, to protect
the core guarantee of equal protection, Batson established a three-
step inquiry to evaluate the prosecutor’s use of peremptory
strikes. 3 Id. at 96–98.
King’s appeal focuses predominately on Batson Step Three.
This step requires the trial judge to determine whether the defend-
ant has established purposeful discrimination, “the decisive ques-
tion will be whether [the prosecutor’s] race-neutral explanation . . .
should be believed.” Hernandez v. New York, 500 U.S. 352, 365 (1991)
(plurality opinion).
Since “the concern is that a state court failed to follow Bat-
son’s three steps,” my analysis is under AEDPA § 2254(d)(1). McGa-
hee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1256 (11th Cir. 2009). An
“unreasonable application” results where there are “explicit racial
statements and strong evidence of discriminatory purpose,” such
3 The Supreme Court summarized the three steps of Batson’s inquiry in Miller-
El v. Cockrell:
First, a defendant must make a prima facie showing that a per-
emptory 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.
Third, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful dis-
crimination.
537 U.S. 322, 328–29 (2003) (Miller-El I) (internal citations omitted).
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10 WILSON, J., Dissenting 20-12804
that no reasonable and fairminded jurist could have considered “all
relevant circumstances” and still found no Batson violation. See Lee,
726 F.3d at 1213.
Applying this framework, I would hold that the Supreme
Court of Georgia’s decision was an unreasonable application of
Batson and its progeny because the Supreme Court of Georgia
failed to consider all relevant circumstances. See Batson, 476 U.S. at
96. Particularly, the trial court’s finding that Alderman was struck
for a racially discriminatory reason represents the sort of explicit
racial discrimination evidence that was dispositive in McGahee. And
further, in my view, the trial transcript showing ADA Johnson’s
clear hostility to Batson and the statistical evidence of racial bias is
“strong evidence” of a discriminatory purpose infecting ADA John-
son’s whole scheme of striking. Adkins, 710 F.3d at 1253. Taking
all that together and even deferentially reviewing the Supreme
Court of Georgia’s opinion, no reasonable jurist could have re-
viewed this record—replete with evidence of racial discrimina-
tion—and not found a Batson violation. Accordingly, King has car-
ried his burden under AEDPA.
First, the Supreme Court tells us that Batson challengers may
present evidence of a “relevant history of [the prosecutor’s] per-
emptory strikes in past cases.” Flowers v. Mississippi, 139 S. Ct. 2228,
2243 (2019). Relevant history of prior peremptory strikes based on
race bears on the question of present discrimination. See id. Yet
even in the absence of a history of unconstitutional strikes, any dis-
criminatory strikes within the same case are highly relevant
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20-12804 WILSON, J., Dissenting 11
evidence bearing on discriminatory intent and provide strong evi-
dence that the prosecutor may have struck other jurors for discrim-
inatory reasons as well. See id. And we have discussed how the
articulation of an “explicitly racial reason for striking” a juror fac-
tors into the relevant circumstances analysis at Batson Step Three.
McGahee, 560 F.3d at 1264.
King points to ADA Johnson’s strike of Alderman. The trial
court concluded that ADA Johnson’s proffered reason for striking
Alderman was not credible and ruled that this strike was unconsti-
tutional under Batson. I am unpersuaded by the State’s contention,
advanced at oral argument, that the trial court did not find Alder-
man was struck for an explicitly racial reason. Once the prima facie
case of discrimination has been made at Batson Step One, the State
has only one obligation if it in-fact acted for a nondiscriminatory
purpose: proffer its truthful reason for striking the juror. See Miller-
El I, 537 U.S. at 328. If the trial court concludes, as it did for Alder-
man, that the State is being untruthful, then that is a finding that
the State acted for a discriminatory reason. See McGahee, 560 F.3d
at 1264.
Because Batson violations are evaluated juror-by-juror, I do
not suggest that one Batson violation in a case necessarily renders
all other jury strikes Batson violations. But just as a prosecutor’s
discriminatory strikes in other cases can suggest they acted discrim-
inatorily in this case, a finding of discriminatory intent within the
same trial is also probative. See Miller-El I, 537 U.S. at 346. It is very
strong evidence and must be considered when evaluating
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12 WILSON, J., Dissenting 20-12804
challenges to the other strikes at Batson Step Three. As a result,
ADA Johnson’s improper strike of Alderman within the same case
is a relevant circumstance to be considered.
Second, “[i]n the typical peremptory challenge inquiry, the
decisive question will be whether counsel’s race-neutral explana-
tion for a peremptory challenge should be believed.” Hernandez,
500 U.S. at 365. But the Supreme Court noted that “[t]here will
seldom be much evidence bearing on that issue.” Id. So “the best
evidence often will be the demeanor of the attorney who exercises
the challenge.” Id.There is ample evidence here of ADA Johnson’s demeanor.
As excerpted above, ADA Johnson’s two separate soliloquies show
his hostility and disdain for having to comply with Batson. After the
trial court found a prima facie case of discrimination, ADA John-
son’s prolonged speech ended with the fact that he believed the
courts should not “be involved in deciding whether or not the State
has accurately or effectively performed its strikes.” Then, after the
trial court found ADA Johnson’s strike of Alderman was improper
because it amounted to purposeful discrimination, ADA Johnson
again launched into a speech about why he finds it improper for the
court to tell him who he can and cannot strike from the jury be-
cause “Batson now makes us look [at] whether people are black or
not.”
ADA Johnson’s rants demonstrated, at a minimum, that he
was reluctant to abide by the requirements of Batson. Further,
those speeches strongly suggested that ADA Johnson would
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20-12804 WILSON, J., Dissenting 13
continue to violate Batson if it weren’t for the enforcement mecha-
nisms put in place by the courts. ADA Johnson’s demeanor, as
demonstrated by his lengthy speeches, is highly probative evidence
when considering all the relevant circumstances at Batson Step
Three.
Lastly, as Batson explained: “total or seriously disproportion-
ate exclusion of [blacks] from jury venires is itself such an unequal
application of the law . . . as to show intentional discrimination.”
476 U.S. at 93 (internal quotations and citation omitted). Further,
“a ‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.” Id. at 97;
see also Miller-El I, 537 U.S. at 342 (finding that “the statistical evi-
dence alone raises some debate as to whether the prosecution acted
with a race-based reason” where the prosecution struck 91% of the
eligible black venire members with ten of their fourteen peremp-
tory strikes). “[I]n the statistical analysis courts must consider the
statistics in the context of other factors in a case, such as: the racial
composition of the venire from which the jurors were struck, the
racial composition of the ultimate jury, the substance of the voir
dire answers of jurors struck by the State, and any other evidence
in the record.” Lee, 726 F.3d at 1224.
The racial composition of King’s jury pool (not including
the alternates) consisted of eight black jurors and thirty-four white
jurors. During the peremptory striking process, ADA Johnson used
seven of the State’s ten peremptory strikes to remove seven quali-
fied black jurors while striking only three qualified white jurors.
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14 WILSON, J., Dissenting 20-12804
Statistically, when looking at the composition of the jury pool
(again without alternates), 19% of the jurors were black and 81%
were white. But after ADA Johnson’s strikes, 8% of the jurors were
black (i.e., only one black juror) and 92% were white (i.e., eleven
white jurors). ADA Johnson struck 87.5% of the qualified black
jurors while striking only 8.8% of the qualified white jurors. As a
result, the percentage of black jurors in the pool decreased by 57%
while the number of white jurors increased.
This pattern constitutes strong evidence that qualified black
jurors were removed far more often than qualified white jurors. See
McGahee, 560 F.3d at 1265. Moreover, the statistical information
about ADA Johnson’s race-based striking also provides strong evi-
dence of the disproportionate exclusion of black jurors against
which Batson cautioned. This statistical evidence is highly relevant
when conducting the Batson Step Three analysis.
These three relevant factors play off and reinforce each other
and provide strong evidence of racial discrimination. Even allow-
ing for AEDPA deference afforded to the Supreme Court of Geor-
gia, a reasonable and fair-minded jurist could not have considered
all of this evidence under the totality of the circumstances and con-
cluded that Batson was not violated. See Lee, 726 F.3d at 1213 (ex-
plaining that this court’s decisions in McGahee and Adkins held that
a state court’s decision denying Batson relief was an unreasonable
application of Batson due to “the explicit racial statements and
strong evidence of discriminatory purpose in each case”). Con-
sider, ADA Johnson was found to have purposefully discriminated
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20-12804 WILSON, J., Dissenting 15
in striking Alderman. That finding on its own does not categori-
cally invalidate the rest of his strikes, but then ADA Johnson went
on not one, but two unprompted rants critiquing Batson. Those
rants were not mere complaints or objections about a trial judge’s
ruling ADA Johnson didn’t like but instead rants demonstrating his
hostility to Batson as a rule of law that he had to follow. His rants
make the explicit finding of racial discrimination in striking Alder-
man all the more relevant to each and every Batson analysis for the
other stricken jurors. Further, the statistics showing that ADA
Johnson struck 87.5% of all qualified black jurors provides strong
confirmatory evidence of Johnson’s racially discriminatory intent.
Since this record consists of an “abundan[ce of ] racial discrimina-
tion evidence,” I would find the state court’s Batson decision was
indeed unreasonable. Lee, 726 F.3d at 1214.
The Supreme Court of Georgia is required, under Batson, to
consider “all relevant circumstances.” See id. at 1212. Based on this
record and considering all the evidence that was before that court
(including the pretextual nature for excluding other black jurors),
no reasonable and fairminded jurist could have considered all of
this evidence and found that Batson was not violated as to the other
black jurors stricken from King’s jury pool. Thus, I would con-
clude that the Supreme Court of Georgia unreasonably applied
clearly established federal law.
III.
Because I would have determined that the Supreme Court
of Georgia’s decision is an unreasonable application of federal law
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16 WILSON, J., Dissenting 20-12804
under AEDPA, I would review the record de novo to determine
whether ADA Johnson violated Batson during jury selection. I con-
sider the following: (1) ADA Johnson’s striking of potential black
jurors because of their familiarity with King or his family; (2) the
relevant circumstances discussed above; and (3) the lack of support
for ADA Johnson’s proffered neutral reasons for striking black ju-
rors. Lastly, I review ADA Johnson’s reasons for striking Lillie
Burkett, finding that strike was motivated by discriminatory intent.
First, of the potential jurors who knew of King or his family,
only black potential jurors were struck. ADA Johnson asked the
familiarity-related questions to panels of jurors in a broad manner,
asking whether they knew “of ” King or his family. Three white
potential jurors—Griffin, Vaughn, and Edwards—discussed their
familiarity with King or his family, but ADA Johnson did not strike
any of them. ADA Johnson only struck a juror for familiarity with
King when the potential juror was both familiar and black. No
white jurors who were familiar with King were struck, but all black
jurors who were familiar with King were struck. See Miller–El I, 537
U.S. at 344–45 (discussing the evidence of a prosecutor’s disparate
questioning and investigation of black and white potential jurors in
the case).
Next, as I discussed above, the record contains several rele-
vant circumstances that weigh against ADA Johnson’s proffered
race-neutral reasons for exercising a challenged peremptory strike.
See id. at 342 (considering the statistical evidence about a prosecu-
tor’s strikes of black potential jurors versus white potential jurors);
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20-12804 WILSON, J., Dissenting 17
Hernandez, 500 U.S. at 365 (explaining that “the best evidence often
will be the demeanor of the attorney who exercises the chal-
lenge”); Flowers, 139 S. Ct. at 2243 (finding that the relevant history
of the State’s peremptory strikes supports a Batson claim).
Furthermore, ADA Johnson’s proffered neutral reasons for
striking black jurors are not supported by the record. Take, for in-
stance, Sarah McCall. ADA Johnson said he struck Sarah McCall
because “[s]he indicated that the death penalty was not her first
choice. She had a lot of hesitancy about her. I did not make up my
mind about [Sarah] McCall until after we voir-dired her husband,
who was Richard McCall and in the next panel.”
But Richard McCall testified that he did not know his wife’s
position on the death penalty. Without checking the record, the
trial judge found no discrimination in the strike of Sarah McCall.
But the strike of Sarah McCall is another instance where ADA John-
son misstated the record to support his strike of a black potential
juror. See Snyder v. Louisiana, 552 U.S. 472, 482–83 (2008) (consider-
ing when the record contradicts a prosecutor’s explanations for
striking jurors).
A de novo review of the record also reveals the pretextual
nature of ADA Johnson’s explanations for striking Lillie Burkett.4
4 I would also conclude that the record reveals that ADA Johnson impermis-
sibly struck alternate juror Gwen Gillis in violation of Batson. Simply put, the
race-neutral reasons proffered by ADA Johnson, as well as his further explana-
tions of the Gillis strike, are unfounded.
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18 WILSON, J., Dissenting 20-12804
Burkett explained that she lived in Surrency, and that she knew both
the families of King and Crosby, but that she did not personally
know King. Burkett also served as a minister in her church.
During the Batson hearing, ADA Johnson explained:
I said that this lady fell into the same category like Ms.
Alderman does, that she knew the family and knew
the defendant in this case, and I did not feel that, be-
cause of that relationship and the fact that she’s a min-
ister and my feeling about ministers and what their
position in the community is, that that would make
her a fair juror, and that’s why she was struck. Two
reasons, not just one.
First, ADA Johnson claimed that he struck Burkett, in part,
because she knew King’s family. Although Burkett stated that she
knew King’s family, ADA Johnson did not ask Burkett a single ques-
tion about her familiarity with King’s family nor about how that
relationship might impact her ability to serve as a juror. Indeed,
ADA Johnson’s failure to engage in any meaningful voir dire exam-
ination on a subject about which he allegedly was concerned is ev-
idence suggesting that the proffered race-neutral explanation is pre-
text for discrimination. Miller-El v. Dretke, 545 U.S. 231, 246 (2005)
(Miller-El II) (finding it “difficult to credit” a prosecutor’s reasons for
striking a juror because they “reek[ed] of afterthought” and had
“pretextual timing”). Burkett’s testimony, elicited by the trial
judge, indicated that she knew King’s family, but she specifically
stated that she did not know King “personally.”
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20-12804 WILSON, J., Dissenting 19
But later, when further defending his strike of Burkett in
light of the record and the outcome of the Batson hearing, ADA
Johnson made a peculiar comparison between Burkett and Alder-
man as excerpted above. The comparison appears to me that ADA
Johnson sought to use familiarity with King or his family as a way
to cover up his striking of black jurors.
Furthermore, many white potential jurors were familiar
with King, his family, or both, but these ties only warranted a peremptory strike
when the potential juror was black. For instance, 5 white qualified juror Re-
becca Griffin, who was accepted by both ADA Johnson and King’s
counsel and served on the jury, went to school with one of King’s
sisters, and King went to school with Griffin’s brother. Like
Burkett, Griffin agreed with the prosecutor that it would be fair to
say that she had no personal contact with King himself, but the rec-
ord does show familiarity with King’s family—far more than what
was elicited from Burkett by the trial judge or ADA Johnson during
individual voir dire.
Second, ADA Johnson claimed that he struck Burkett, in
part, because she was a minister. But the record shows that there
was another minister among the potential jurors: Thomas Lightsey.
5 Other examples include two qualified white jurors who were accepted by
ADA Johnson but struck by King: Martha Vaughn explained that she knew
King “when he was coming through” middle school because she worked in
his middle school’s lunchroom and had contact with King during the lunch
period, and James Edwards believed he had possibly taught King during mid-
dle school.
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20 WILSON, J., Dissenting 20-12804
During the parties’ preemptory strike process, Lightsey was the
forty-first juror out of forty-two who were qualified to sit on the
petit jury. In exercising their strikes, the parties considered thirty-
nine jurors. In exercising all of his ten strikes to seat the jury, ADA
Johnson—despite his adamant refusal to accept ministers—left it to
chance whether Lightsey would be reached.
Thus, while ADA Johnson technically had no opportunity to
“accept” Lightsey as a juror, his exhaustion of State peremptory
challenges during jury selection suggests Lightsey was likely ac-
ceptable to him. This is reinforced by the fact that ADA Johnson
did not ask Lightsey, a minister at Big Creek Primitive Baptist
Church (a fact elicited by King’s counsel, not ADA Johnson), about
the leadership position that he held in a church. In fact, during the
general voir dire, when ADA Johnson asked Lightsey’s panel
whether anyone held a position in the church, Lightsey raised his
hand. The record shows that ADA Johnson asked Lightsey only
one follow-up question, whether he had any opinion about which
way the case should go, a fact reflecting that Lightsey’s position in
the church was inconsequential to ADA Johnson.
ADA Johnson’s (and the majority’s) argument that Lightsey
does not matter because he was not reached during striking is nei-
ther here nor there. The point is, ADA Johnson offered as his race-
neutral reason for striking Burkett that he adamantly refused to
seat ministers. The fact that ADA Johnson appeared indifferent to
a white minister on the jury undercuts that race-neutral reason.
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20-12804 WILSON, J., Dissenting 21
Moreover, there were many other potential jurors with lead-
ership positions in the church. Specifically, two white jurors who
were deacons sat on the jury: James Orvin and Aubrey Lynch. Or-
vin was “the deacon and chairman of [his] deacon board.” Lynch,
who served as the jury foreperson, testified that he was a deacon at
Satilla Baptist Church. ADA Johnson never asked any other poten-
tial juror the details of and how long they had served in their re-
spective church leadership positions. Thus, the contention that
ADA Johnson cared about Burkett’s position as a minister is dimin-
ished. The record reflects that ADA Johnson was aware of white
individuals who participated in their respective church communi-
ties, and yet ADA Johnson did not appear to have an issue with
them serving on the jury.
When “[c]onsidering all of the circumstantial evidence that
‘bear[s] upon the issue of racial animosity,’ [I am] left with the firm
conviction that [ADA Johnson’s strike of Burkett was] ‘motivated
in substantial part by discriminatory intent.’” Foster v. Chatman, 578
U.S. 488, 512–13 (2016) (quoting Snyder, 552 U.S. at 478, 485).
ADA Johnson used seven out of his ten peremptory strikes
to exclude seven out of the eight black jurors from the jury venire.
A side-by-side comparison of individual reasons for striking black
jurors with white jurors who were not struck reveals a substantial
likelihood of race-based considerations in the exercise of those
strikes. Thus, the overwhelming evidence in this record compels a
finding that ADA Johnson’s use of its peremptory strikes to dismiss
Burkett constituted purposeful discrimination and violated King’s
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22 WILSON, J., Dissenting 20-12804
rights under the Equal Protection Clause and clearly established
federal law under Batson. “Equal justice under law requires a crim-
inal trial free of racial discrimination in the jury selection process.”
Flowers, 139 S. Ct. at 2242.
IV.
For these reasons, I would reverse the district court’s order
denying King’s federal habeas petition.
I respectfully dissent.