Revised March 22, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50735

_____________________

BARRY ALLEN FISHER,

Petitioner-Appellant,

v.

STATE OF TEXAS,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

March 18, 1999

Before KING, Chief Judge, REAVLEY and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Barry Fisher appeals the district court’s denial of his writ

of habeas corpus, in which he alleged that the prosecution’s

peremptory strike of a venire member based, inter alia, on the

venire member’s religion violated the Equal Protection Clause. 

The State of Texas contends on appeal that this court should

affirm based on the doctrines of procedural bar or exhaustion of

remedies, or pursuant to the prohibition against creating new

constitutional rules of criminal procedure on habeas review under

Teague v. Lane, 489 U.S. 288 (1989), despite its failure to raise
2

all three of these arguments to the district court. We affirm

the denial of habeas relief pursuant to Teague.

I. FACTUAL AND PROCEDURAL BACKGROUND

Barry Fisher was sentenced to a fifteen-year term of

imprisonment on July 22, 1988 after he pleaded guilty to

aggravated robbery. While he was serving this prison term, he

was charged with the felony offense of aggravated assault of a

correctional officer, to which he pleaded not guilty. During

voir dire, Fisher brought a Batson motion alleging that the jury

was unconstitutionally selected because the prosecution struck a

venire member, Jose Cardona, solely because of his race. See

Batson v. Kentucky, 476 U.S. 79 (1986). The trial judge found

that Fisher had asserted a prima facie case of racial

discrimination, and the prosecuting attorney was given an

opportunity to explain why Cardona was struck. After being

sworn, the prosecutor articulated three non-race-based reasons

for striking Cardona: first, that he was a case worker for the

American Red Cross, second, that he “has a Roman Catholic

background,” and third, because he had a back injury. The

prosecutor stated that she considered the third factor, the back

injury, to be the most important because she was concerned that

Cardona would compare his back injury to the non-serious bodily

injury suffered by the correctional officer and be unable to

consider the entire range of possible punishments, which included

life imprisonment. The prosecuting attorney also stated that she
3

struck three other jurors because they stated in their jury

questionnaires that they had sustained injuries in the past. The

trial court denied the Batson motion, stating that the

prosecution had articulated at least one non-race-based reason

for challenging Cardona.

The jury found Fisher guilty of the assault against the

correctional officer, and he was sentenced to a thirty-year term

of imprisonment to be served after his sentence for his original

conviction. He then appealed his conviction to the Texas Court

of Appeals, raising only the Batson issue. On appeal, Fisher

argued that the trial court erred in denying his Batson motion

based on Cardona’s race, and that Cardona’s religious affiliation

could not serve as a race-neutral explanation for the state’s

peremptory strike. 

The Court of Appeals affirmed Fisher’s conviction in an

unpublished opinion on August 31, 1995. See Fisher v. State, No.

10-94-212-CR (Tex. App.--Waco Aug. 31, 1995, pet. ref’d) (not

designated for publication). The court rejected Fisher’s racebased Batson challenge on the ground that the state had

articulated a sufficient race-neutral explanation for the strike,

i.e., Cardona’s back injury. See id. at 6-7. The court did not

reach the question of discrimination based on religion because

“Fisher’s sole objection at trial was that Cardona had been

struck from the jury because of his race,” and Fisher

acknowledged on appeal that “he did not preserve a religion-based
4

strike as a separate claim of error.” Id. at 6. Nonetheless,

the court addressed the merits of the religion-based claim in a

footnote, finding it meritless due to the state’s articulation of

a sufficient religion-neutral reason for the challenge. See id.

at 6 n.3. Fisher’s petition for discretionary review by the

Texas Court of Criminal Appeals was refused on January 17, 1996. 

Fisher has not filed any state applications for writ of habeas

corpus challenging the assault conviction.

Proceeding in forma pauperis and pro se, Fisher filed an

application for habeas relief pursuant to 28 U.S.C. § 2254. In

his application, Fisher challenged his conviction on four

grounds: (1) that he had been denied a fair trial by the

prosecutor’s use of a peremptory strike against Cardona, (2) that

he had been denied his right to an appeal when the Texas Court of

Criminal Appeals denied his request for discretionary review, (3)

that his appellate counsel had been ineffective for requesting

leave to withdraw under Anders v. California, 386 U.S. 738

(1967), and (4) that the prosecution had failed to disclose

exculpatory evidence as required by Brady v. Maryland, 373 U.S.

83 (1963). Fisher conceded that he had not raised issues two

through four in any state court.

The state moved to have Fisher’s application dismissed for

failure to exhaust state court remedies. Fisher filed an amended

application alleging only the Batson issue, and the state then

moved for summary judgment on that issue, solely on the basis
 

1 In its motion for summary judgment, the state did not

address whether the Equal Protection Clause was implicated by the

prosecutor’s articulation of religion as one reason for striking

Cardona. The state apparently did not construe Fisher’s habeas

application as raising a religion-based equal protection

argument, and it therefore only addressed the issue of whether

the prosecution had articulated a sufficient race-neutral

explanation for the strike. Shortly after the state filed its

summary judgment motion, Fisher filed a motion for summary

judgment in which he argued explicitly that his jury was

unconstitutionally selected because the prosecutor based a

peremptory challenge on a venire member’s religion.

5

that the prosecutor had offered a sufficient race-neutral

explanation for striking Cardona.1 The magistrate recommended

that the district court dismiss Fisher’s application, finding

that the prosecution had provided a sufficient non-race-based

reason for the peremptory strike of Cardona. In addition, the

magistrate judge concluded that Fisher’s claim would lack merit

even if it was based on exclusion due to a venire member’s

religion, stating that exclusion of venire members on the basis

of their religion does not implicate the Equal Protection Clause. 

The district court adopted the magistrate’s recommendation,

dismissed Fisher’s application, and denied Fisher’s request for a

certificate of appealability (COA). The district court did,

however, grant Fisher leave to proceed in forma pauperis on

appeal. This court granted Fisher a COA limited to the issue of

whether “the exclusion of a venire member based on religion was

in violation of the Equal Protection Clause.”

Fisher timely appealed, filing a brief that obliquely raises

the issue upon which this court granted a COA. As we must, we
6

construe Fisher’s pro se filings liberally. See Guidroz v.

Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988). 

II. DISCUSSION

We review the district court’s grant of summary judgment de

novo. See Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir. 1995). 

The state urges five different grounds on which it argues we

can affirm the district court’s denial of habeas relief. The

first two grounds concern the Texas Court of Appeals’s decision

denying Fisher relief on direct appeal. First, the state argues

that the state court’s disposition of Fisher’s Batson claim was

an adjudication on the merits entitled to deference under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 

The state argues that Fisher has not rebutted the presumption of

correctness that we must afford a state court’s findings and

conclusions under AEDPA, and therefore that Fisher is not

entitled to relief. Second, the state argues alternatively that

the state court disposed of Fisher’s Batson claim on an adequate

and independent state ground, i.e., because Fisher did not argue

to the trial court that the peremptory challenge at issue was

impermissibly premised on the venire member’s religion. The

state therefore urges us to conclude that we are procedurally

barred from considering Fisher’s claim, despite the fact that the

state did not present the procedural bar argument to the district

court. 
7

Third, the state contends we can dismiss Fisher’s habeas

application because Fisher has failed to exhaust his state court

remedies by bringing a state habeas petition alleging that a

religion-based peremptory strike violates the Equal Protection

Clause. Again, the state admits that it failed to argue that

Fisher’s religion-based Batson claim was unexhausted to the

district court.

Fourth, the state argues that, even if we review the merits

of Fisher’s equal protection claim, he is not entitled to relief

because the exclusion of a venire member based in part on the

venire member’s religion does not run afoul of the Equal

Protection Clause. 

Finally, the state contends that even were we to determine

that religion-based peremptory strikes violate the Equal

Protection Clause, Fisher is not entitled to retroactive

application of this new rule of law under Teague v. Lane, 489

U.S. 288 (1989). We can affirm on any ground supported by the

record. See Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997),

cert. denied, 119 S. Ct. 418 (1998).

A. Deference to State Court’s Adjudication on the Merits

Fisher filed his § 2254 habeas application on September 9,

1996, and it is therefore subject to AEDPA. See Lindh v. Murphy,

521 U.S. 320, 336 (1997). Under the amended § 2254(d), Fisher

may not obtain federal habeas corpus relief
 

2 Under pre-AEDPA law, factual findings made by a state

court were presumed correct unless the applicant established,

inter alia, “that the merits of the factual dispute were not

resolved in the State court hearing.” 28 U.S.C.

§ 2254(d)(1)(West 1994); see Lara v. Johnson, 141 F.3d 239, 241

(5th Cir.) (stating that under pre-AEDPA law, state court

findings of fact are entitled to deference “unless the petitioner

8

with respect to any claim that was adjudicated on the

merits in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

The state argues that the footnote in the Texas Court of

Appeals’s decision alternatively disposing of Fisher’s claim was

an adjudication on the merits entitled to deference under AEDPA,

and that, because no clearly established federal law, as

determined by the Supreme Court, establishes that religion-based

peremptory strikes violate the Equal Protection Clause, we must

defer to the state court’s disposition and deny relief.

We disagree with the state’s characterization of the Texas

Court of Appeals’s decision as an adjudication on the merits. In

Green v. Johnson, 116 F.3d 1115, 1120-21 (5th Cir. 1997), we

considered whether a state court decision regarding a

petitioner’s claims was a “resolution on the merits,” the preAEDPA equivalent of an “adjudication on the merits.”2 In that
demonstrates that the state courts failed to resolve the claims

on the merits”), modified on other grounds, 149 F.3d 1226 (5th

Cir. 1998).

9

case, we identified three factors relevant to the determination

of whether a resolution by a state court was on the merits: 

(1) what the state courts have done in similar cases;

(2) whether the history of the case suggests that the

state court was aware of any ground for not

adjudicating the case on the merits; and (3) whether

the state courts’ opinions suggest reliance upon

procedural grounds rather than a determination on the

merits.

Id. at 1121. 

A review of the opinion rendered by the Texas Court of

Appeals in this case clearly reveals that the state court did not

adjudicate the merits of Fisher’s Batson-religion claim. The

state court explicitly decided the religion issue on waiver

grounds, stating that it did not need to “reach the question of

discrimination based on religion,” because Fisher had failed to

object on religion grounds at his trial. Fisher, No. 10-94-212-

CR, at 6. The Texas Court of Appeals’s awareness of, and

explicit reliance on, a procedural ground to dismiss Fisher’s

claim is determinative in this case, and we therefore cannot

apply the AEDPA deference standards to the state court’s findings

and conclusions. See Green, 116 F.3d at 1121 (“‘Resolution on

the merits’ is a term of art in the habeas context that refers .

. . to the court’s disposition of the case--whether substantive

or procedural.”); McLee v. Angelone, 967 F. Supp. 152, 156 (E.D.
10

Va. 1997) (stating that to qualify as an adjudication on the

merits under AEDPA, a state court decision “must be: [1] a state

court adjudication, [2] on the merits, [3] in formal state court

proceedings, and [4] the adjudication must have resulted in a

decision”), appeal dismissed, 139 F.3d 891 (4th Cir. 1998); see

also Larry W. Yackle, A Primer on the New Habeas Corpus Statute,

44 BUFF. L. REV. 381, 420-21 & n.129 (1996) (stating that state

court decision that claim was procedurally barred cannot be

adjudication on the merits, for purposes of AEDPA). In sum,

because the Texas Court of Appeals rested its decision to deny

habeas relief to Fisher on procedural grounds, and did not need

to decide the question of whether the exclusion of a venire

member based in part on the venire member’s religion violates the

Equal Protection Clause, its adjudication was not “on the merits”

for purposes of AEDPA. We therefore decline the state’s

invitation to affirm the district court’s grant of summary

judgment on this ground.

B. Application of Procedural Bar

The state’s second argument is that we should exercise our

discretion and find Fisher’s Batson claim to be procedurally

barred. It is true, as the state points out, that it is well

settled that federal review of a claim is procedurally barred if

the last state court to consider the claim expressly and

unambiguously based its denial of relief on a state procedural
11

default. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Amos

v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). A state court

expressly and unambiguously bases its denial of relief on a state

procedural default even if it alternatively reaches the merits of

a defendant’s claim. See Harris v. Reed, 489 U.S. 255, 264 n.10

(1989); Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir. 1989).

As we explained above, the Texas Court of Appeals explicitly

denied Fisher relief on his Batson-religion claim on procedural

grounds, namely, because he had not objected on those grounds to

the trial court. This court has consistently held that the Texas

contemporaneous objection rule constitutes an adequate and

independent state ground that procedurally bars federal habeas

review of a petitioner’s claims. See Sharp v. Johnson, 107 F.3d

282, 285-86 (5th Cir. 1997); Nichols v. Scott, 69 F.3d 1255, 1280

n.48 (5th Cir. 1995). Thus, at first glance, Fisher’s

application seems easily dismissed on procedural bar grounds.

The problem with applying the procedural bar to this case,

as the state admits in its briefs to this court, is that the

state did not argue to the district court that Fisher’s claim was

procedurally barred. A state waives a procedural bar defense by

failing to raise the defense in the district court. See Emery,

139 F.3d at 195 n.4 (“If the state does not plead procedural bar

in the district court, it is waived.”) (citing United States v.

Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989)). The state urges

us not to accept its waiver of the bar, and, notwithstanding its
12

failure to present this argument to the district court, it urges

us to apply the bar and affirm the dismissal of Fisher’s

application. In doing so, the state argues that this court has

discretion to find a petitioner’s claim procedurally barred even

where the state failed to raise the argument in the court below. 

In support of this assertion, the state presents two

principal arguments. First, the state points to Trest v.

Whitley, 94 F.3d 1005, 1007-09 (5th Cir. 1996), vacated, 118 S.

Ct. 478 (1997), which it contends is still valid law for the

proposition that a court of appeals has discretion to raise the

issue of whether a claim is procedurally barred sua sponte, even

if the respondent has not raised the issue in the district court

or on appeal. Second, the state analogizes this situation to

those in Blankenship v. Johnson, 118 F.3d 312, 316 (5th Cir.

1997), and Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996),

in which we stated that we have discretion to apply the Teague

and exhaustion defenses despite the state’s waiver. The state

argues that our recent opinion in Magouirk v. Phillips, 144 F.3d

348 (5th Cir. 1998), supports the extension of Blankenship and

Graham to the procedural bar context because in that case we

partially based our conclusion that a district court has

authority to find a claim procedurally barred sua sponte on

similarities to the Teague and exhaustion defenses. See id. at

357-59. 
13

The Supreme Court held in Trest v. Cain, 118 S. Ct. 478, 480

(1997), that a court of appeals is not required to invoke a

petitioner’s potential procedural default sua sponte. It is

possible, as the state argues, that despite Trest’s rejection of

a duty to raise a procedural bar defense sua sponte, we have

discretion to do so. See id. (declining to address question of

whether “the law permitted (though it did not require) the Fifth

Circuit to raise the procedural default sua sponte”). 

Of course, the situation at bar and the issue as presented

in Trest are slightly different. We need not raise the

procedural bar issue sua sponte in this case because the state

has already suggested in its appellate briefs that we apply the

bar; instead, the issue is whether we have discretion to apply

the procedural bar when the state has failed to address the issue

to the district court. The state may be correct that we have

such discretion, just as we may have discretion to raise the

issue sua sponte. See Washington v. James, 996 F.2d 1442, 1451

(2d Cir. 1993) (stating that court of appeals may raise the

procedural bar issue sua sponte despite the fact that the issue

was not addressed in the district court); cf. Blankenship, 118

F.3d at 316 (stating that a court of appeals has discretion to

apply the Teague defense despite the state’s implicit waiver);

Graham, 94 F.3d at 970 (stating that a court of appeals has

discretion to require exhaustion of state court remedies despite

state’s waiver of the requirement). We conclude, however, that
14

even if we do have discretion in some circumstances to apply the

procedural bar where the state has waived the defense in the

district court, we will not exercise such discretion in this

case.

We base this conclusion upon the same principles that we

discussed in Magouirk in the context of when a district court

should exercise its discretion to consider a procedural bar

defense sua sponte. See 144 F.3d at 359-60. In that case, we

noted the familiar rule that “[p]rocedural default may be excused

upon a showing of cause and prejudice or that application of the

doctrine will result in a fundamental miscarriage of justice.” 

Id. at 359 (citing Coleman, 501 U.S. at 748-50). We stated that

a district court, in deciding whether to apply a waived

procedural bar defense sua sponte, should consider whether the

habeas petitioner has been given notice that procedural default

will be an issue for consideration, whether the petitioner has

had a reasonable opportunity to argue against the application of

the bar, and whether the state intentionally waived the defense. 

See id. at 359-60. We concluded that

[t]he court’s exercise of its discretion should not be

automatic, but must in every case be informed by those

factors relevant to balancing the federal interests in

comity and judicial economy against the petitioner’s

substantial interest in justice. Once a federal

district court elects to raise procedural bar sua

sponte, the court should consider whether justice

requires that the habeas petitioner be afforded with

notice and a reasonable opportunity to present briefing

and argument opposing dismissal. Likewise, the

district court should consider whether the state’s
15

failure to raise the defense is merely inadvertence or

the result of a purposeful decision to forego the

defense.

Id. at 360. 

Unlike in Magouirk, in which we found that the district

court did not abuse its discretion in raising the procedural

default sua sponte, see id. at 360-61, consideration of these

factors leads us to refrain from excusing the state’s failure to

address the default issue to the district court. Fisher has had

absolutely no notice that procedural bar would be an issue for

consideration by this court. He therefore has had no reasonable

opportunity to argue either that the state appellate court did

not reject his claim on an adequate and independent state law

ground, or that one of the exceptions to the doctrine applies. 

Despite the state’s contention that its waiver of this issue was

inadvertent, these concerns lead us to conclude that even if the

state is correct that we have discretion to overlook its waiver

of the procedural bar issue in the district court, exercise of

that discretion is not warranted in this case. But cf. Windham

v. Merkle, 163 F.3d 1092, 1100-01 (9th Cir. 1998) (raising

procedural bar sua sponte on Batson-gender claim, where habeas

petitioner argued in state trial court only that potential juror

was struck on racial grounds, but remanding to district court for

cause-and-prejudice determination). We therefore decline to

affirm the district court’s dismissal of Fisher’s application on

procedural bar grounds.
16

C. Exhaustion of State Court Remedies

In its third argument, the state contends that Fisher did

not present a religion-based Batson challenge on direct appeal,

that Fisher’s only arguments on direct appeal were that Cardona

was struck because of his race and that his religion could not

serve as a valid, race-neutral reason for the strike, and that,

in light of this characterization of his direct appeal and his

failure to seek habeas relief in state court, Fisher has not

exhausted his state court remedies. The state concludes that we

should therefore affirm the dismissal of Fisher’s claim on

exhaustion grounds. 

Applicants seeking federal habeas relief under § 2254 are

required to exhaust all claims in state court prior to requesting

federal collateral relief. See Whitehead v. Johnson, 157 F.3d

384, 387 (5th Cir. 1998). The exhaustion requirement is

satisfied when the substance of the federal habeas claim has been

fairly presented to the highest state court. See id.

Like the procedural bar argument, the state failed to

present this argument to the district court. Generally, we will

honor a state’s waiver of the exhaustion requirement. See

Graham, 94 F.3d at 970. The state argues on appeal that its

waiver was inadvertent. The state’s motion for summary judgment

in the district court stated that it understood Fisher to be

raising only a race-based Batson claim in his federal habeas
17

application. The state insists on appeal that it only knowingly

waived the exhaustion requirement with respect to a race-based

Batson claim, which Fisher clearly raised on direct appeal, and

not with respect to the subject on which we granted Fisher a COA,

a religion-based Batson claim. Cf. 28 U.S.C. § 2254(b)(3) (“A

State shall not be deemed to have waived the exhaustion

requirement . . . unless the State, through counsel, expressly

waives the requirement.”). Even assuming that the state’s

failure to raise this argument to the district court was

inadvertent, we decline to affirm the district court’s dismissal

of Fisher’s application on this ground.

When the state has failed to raise the exhaustion

requirement, it is “appropriate for the court of appeals to take

a fresh look at the issue.” Granberry v. Greer, 481 U.S. 129,

134 (1987). Our consideration should include “whether the

interests of comity and federalism will be better served by

addressing the merits forthwith or by requiring a series of

additional state and district court proceedings before reviewing

the merits of the petitioner’s claim.” Id.

This court has observed that the exhaustion requirement may

be excused when seeking a remedy in state court would be futile. 

See Graham, 94 F.3d at 969. The Texas Court of Criminal Appeals,

sitting en banc, recently rejected the merits of Fisher’s claim

that religion-based peremptory strikes violate the Equal

Protection Clause. See Casarez v. State, 913 S.W.2d 468, 496
18

(Tex. Crim. App. 1995) (on rehearing). In overruling an opinion

rendered by a panel of the court, the en banc state court

concluded: 

[W]e do not read Supreme Court jurisprudence yet to

condemn exclusion on the basis of belief. We therefore

hold that the interests served by the system of

peremptory challenges in Texas are sufficiently great

to justify State implementation of choices made by

litigants to exclude persons from service on juries in

individual cases on the basis of their religious

affiliation.

Id. The futility exception applies when, as here, the highest

state court has recently decided the same legal question

adversely to the petitioner. See Padavich v. Thalacker, 162 F.3d

521, 522 (8th Cir. 1998). Our decision not to affirm the

district court’s dismissal of Fisher’s application on exhaustion

grounds is further supported by the fact that Fisher’s Batson

claim in the Texas Court of Appeals, even assuming the state’s

characterization of that claim is correct, forced the state court

to confront the validity of basing a peremptory strike in part on

the venire member’s religious beliefs. In order for a claim to

have been “fairly presented” to a state court to fulfill the

exhaustion requirement, the applicant “need not spell out each

syllable of the claim before the state court.” Whitehead, 157

F.3d at 387. Instead, a federal claim must only be the

“substantial equivalent” of one presented to the state courts. 

Id. 
19

In sum, the interests of comity and federalism will be

better served by excusing Fisher’s failure to exhaust his state

court remedies. The highest criminal court in Texas has rejected

the very argument Fisher raises, a state appellate court has

considered the issue explicitly on direct appeal, and the state

failed, though inadvertently, to raise the exhaustion requirement

in the district court. In addition, because, as we discuss

infra, Fisher’s claim is barred by Teague, judicial efficiency

makes it appropriate to dispose of Fisher’s claim without

requiring additional litigation. See Liegakos v. Cooke, 106 F.3d

1381, 1388 (7th Cir. 1997) (stating that remand to determine

whether petitioner had exhausted state court remedies was

unnecessary because claim was either exhausted or barred by

Teague); cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ

of habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the

courts of the State.”); Granberry, 481 U.S. at 135 (stating that

“if it is perfectly clear that the applicant does not raise even

a colorable federal claim,” a state’s interest is better served

by declining to enforce exhaustion requirement). We therefore

decline to affirm the district court’s dismissal of Fisher’s

application on exhaustion grounds.

D. Teague Bar
20

We now turn to the issue on which we originally granted

Fisher a COA, i.e., whether a religion-based peremptory strike

violates the Equal Protection Clause. “Because this case is

before us on . . . a petition for a writ of federal habeas

corpus, we must determine, as a threshold matter, whether

granting him the relief he seeks would create a ‘new rule’ of

constitutional law,” and therefore, unless an exception applies,

whether Fisher’s application is barred by Teague. Graham v.

Collins, 506 U.S. 461, 466-67 (1993) (internal quotation marks

omitted); see Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

1. Applicability of Teague

We first pause to consider whether, given the unique

procedural posture of Fisher’s claim, the Teague bar against

creating new constitutional rules of criminal procedure on

collateral review applies. There has been much discussion by

courts and commentators concerning whether, or how, Teague

applies in the context where a federal court must defer to a

state court’s adjudication on the merits. Compare Drinkard v.

Johnson, 97 F.3d 751, 766 (5th Cir. 1996) (questioning whether

§ 2254(d)(1) “is essentially only a codification of Teague v.

Lane, 489 U.S. 288 (1989), and thus constitutes no change in

federal habeas law”), cert. denied, 117 S. Ct. 1114 (1997), with

Sharad Sushil Khandelwal, Note, The Path to Habeas Corpus

Narrows: Interpreting 28 U.S.C. § 2254(d)(1), 96 MICH. L. REV.
21

434, 440 (1997) (“The 1996 amendment to § 2254(d)(1) should be

read to adopt the Teague rule of retroactivity.”). We need not

consider this question, however, as there was no state court

adjudication on the merits in this case. Instead, the question

before us is whether federal courts may apply the Teague bar when

there has not been a state court adjudication on the merits, and

the petitioner’s claim is not dismissed as procedurally barred.

We conclude that Teague still applies in this context. The

Supreme Court implicitly agreed with this position in explaining

its denial of a petition of certiorari in Breard v. Greene, 118

S. Ct. 1352 (1998). See Kent S. Scheidegger, Habeas Corpus,

Relitigation, and the Legislative Power, 98 COLUM. L. REV. 888,

959 n.500 (1998) (discussing Breard). In Breard, the petitioner

had never presented his claim to the state courts that his

conviction should be overturned based on violations of the Vienna

Convention, see 118 S. Ct. at 1354, and the Court explicitly

stated that AEDPA applied to his petition, see id. at 1355. The

Court concluded that the petitioner procedurally defaulted his

claim by not raising it in state court. See id. Rejecting the

petitioner’s argument that his default was excused by the novelty

of his claim, the Court stated that even “[a]ssuming that were

true, such novel claims would be barred on habeas review under

Teague.” Id. Breard thus indicates that Teague still applies to

a petitioner’s claim that has not been adjudicated on the merits

by a state court and that is not procedurally barred. 
22

The Fourth Circuit has also determined that the Teague bar

may be applied to claims in this posture. In Green v. French,

143 F.3d 865, 874 (4th Cir. 1998), cert. denied, 119 S. Ct. 844

(1999), that court stated that

[T]he anti-retroactivity principles of Teague would

appear applicable in contexts where the limitations of

section 2254(d)(1) are not, such as where a habeas

petitioner’s constitutional claim is not properly

raised in state court and therefore not “adjudicated on

the merits in State court,” 28 U.S.C. § 2254(d), but

where a court may nonetheless conclude that the failure

to properly raise the claim in state court is not

excused (or perhaps, excused but Teague-barred) because

the claim relies upon a new rule of constitutional law

not made retroactive on collateral review.

We agree with the Fourth Circuit’s analysis in Green that federal

courts may apply the Teague bar to a habeas petitioner’s claims

that were not adjudicated on the merits by a state court and are

also not procedurally barred. See also Liegakos, 106 F.3d at

1385-86 (applying Teague bar to petitioner’s habeas claim where

AEDPA applied to petition and claim was not adjudicated on merits

by state court); Scheidegger, supra, at 959 n.500 (“The new

statute does not apply when the state court has never addressed

the merits, but Teague does.”).

2. Application of Teague

Like the procedural bar and exhaustion of remedies issues,

the state failed to argue to the district court that Fisher’s

Batson-religion claim was Teague barred, although it does make

the argument on appeal. It is clear that we have discretion to
23

consider a Teague defense despite a state’s implicit waiver. See

Caspari, 510 U.S. at 389; Blankenship, 118 F.3d at 316. In the

interests of finality and judicial economy, we choose to exercise

our discretion and consider whether Fisher’s claim is barred. 

See Spaziano v. Singletary, 36 F.3d 1028, 1041-42 (11th Cir.

1994); see also Wilkerson v. Whitley, 28 F.3d 498, 504 (5th Cir.

1994) (en banc) (exercising discretion to reach waived

retroactivity issue).

The Supreme Court held in Teague that a federal court may

not create new constitutional rules of criminal procedure on

habeas review. See 489 U.S. at 301; see also Vega v. Johnson,

149 F.3d 354, 357 (5th Cir. 1998), cert. denied, 119 S. Ct. 899

(1999); Davis v. Scott, 51 F.3d 457, 467 (5th Cir. 1995). “In

determining whether a state prisoner is entitled to habeas

relief, a federal court should apply Teague by proceeding in

three steps.” Caspari, 510 U.S. at 390. First, we must

determine when Fisher’s conviction and sentence became final for

Teague purposes. See id. Second, we must “survey the legal

landscape as it then existed and determine whether a state court

considering the defendant’s claim at the time his conviction

became final would have felt compelled by existing precedent to

conclude that the rule he seeks was required by the

Constitution.” Id. (internal quotation marks omitted) (brackets

omitted) (citation omitted). Third, if we determine that Fisher

seeks the benefit of a new rule, we must consider whether “that
24

rule falls within one of the two narrow exceptions to the

nonretroactivity principle.” Id.

Fisher did not petition the Supreme Court for a writ of

certiorari on direct appeal. His conviction and sentence

therefore became final in 1996, after the time for filing such a

petition had elapsed. See id.; Muniz v. Johnson, 132 F.3d 214,

225 (5th Cir.), cert. denied, 118 S. Ct. 1793 (1998).

We now proceed to the heart of the Teague analysis and

determine whether holding that religion-based peremptory

challenges violate the Equal Protection Clause would be a new

rule. Unless the rule was “‘dictated by precedent’” in 1996, we

must conclude that it is new under Teague. Vega, 149 F.3d at 357

(quoting Teague, 489 U.S. at 301) (emphasis in Teague). 

“[U]nless reasonable jurists hearing petitioner’s claim at the

time his conviction became final ‘would have felt compelled by

existing precedent’ to rule in his favor, we are barred from

doing so now.” Graham, 506 U.S. at 467 (quoting Saffle v. Parks,

494 U.S. 484, 488 (1990)).

 We have no trouble concluding that reasonable jurists,

considering the question in 1996, would not have felt compelled

by existing precedent to rule that religion-based peremptory

challenges violate the Equal Protection Clause. Although in

1994, it was clear that the Equal Protection Clause prohibits the

use of peremptory challenges on the basis of race, see Batson,

476 U.S. at 92-95, and gender, see J.E.B. v. Alabama ex rel.
25

T.B., 511 U.S. 127, 130-31 (1994), no precedent existing in 1996,

or even now, clearly dictates an extension of the Batson

principle to religion. See United States v. Stafford, 136 F.3d

1109, 1114 (7th Cir.) (“Allison also argues that Batson should be

extended to religion. This is a matter on which there is a

division of judicial opinion.”), modified on other grounds, 136

F.3d 1115 (7th Cir.), cert. denied, 119 S. Ct. 123 (1998); United

States v. Greer, 939 F.2d 1076, 1086 n.9 (5th Cir. 1991) (stating

that “a defendant’s exercise of peremptory challenges against

[Jewish jurors] is subject to Batson’s strictures”), vacated in

relevant part and aff’d by an equally divided court, 968 F.2d

433, 437 n.7, 445 (5th Cir. 1992) (en banc) (stating that “we do

not reach the issue of the applicability of Batson and Edmonson”

to religion) (Smith, J.), (“[W]e note that information as to

whether members of the venire were Jewish was essential for the

defendants to make reasonably intelligent use of their peremptory

challenges.”) (Higginbotham, J.); United States v. Williams, 44

M.J. 482, 485 (C.A.A.F. 1996) (noting that “[t]he Supreme Court

has not extended Batson to challenges based on religion”); State

v. Davis, 504 N.W.2d 767, 768 (Minn. 1993) (holding that Batson

protection does not extend to peremptory strikes based on

religious affiliation), cert. denied, 511 U.S. 1115 (1994). 

Extending Batson to religion-based peremptory challenges would

therefore be a new rule of constitutional criminal procedure

under Teague.
26

Under the third step in the Teague analysis, we must

determine whether either of the two narrow exceptions to the

Teague bar applies. Teague provides that a new constitutional

rule can apply retroactively on federal collateral review only if

the new rule (1) puts "certain kinds of primary, private

individual conduct beyond the power of the criminal law-making

authority to proscribe" or (2) is a rule of procedure that is

"implicit in the concept of ordered liberty." 489 U.S. at 307

(internal quotation marks omitted); see Muniz, 132 F.3d at 225. 

This second exception is "reserved for watershed rules of

criminal procedure" that implicate the fundamental fairness and

accuracy of the proceeding. Teague, 489 U.S. at 311; see Muniz,

132 F.3d at 225.

Neither exception applies to this case. Application of

Batson to religion would not protect any primary conduct, nor

would it implicate the fundamental fairness and accuracy of the

criminal proceeding. The Teague Court found that neither

exception applied to a similar constitutional issue of criminal

procedure, i.e., whether the Sixth Amendment fair cross section

requirement applied to the petit jury. See 489 U.S. at 311-16. 

Furthermore, the Supreme Court declined to apply Batson

retroactively to proceedings on collateral review in Allen v.

Hardy, 478 U.S. 255 (1986). See id. at 259-61 (explaining that

the rule announced in Batson did not have "such a fundamental

impact on the integrity of factfinding as to compel retroactive
27

application"). In addition, courts have applied the Teague bar

to subsequent extensions of Batson, rejecting petitioners’ claims

that the exceptions apply. See, e.g., Nguyen v. Reynolds, 131

F.3d 1340, 1351-52 (10th Cir. 1997) (determining that application

of Powers v. Ohio, 499 U.S. 400, 406 (1991), which held that

Batson claims did not require racial identity between the

defendant and challenged venire member, was a new rule under

Teague and that neither exception applied), cert. denied, 119 S.

Ct. 128 (1998); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995)

(same).

We therefore conclude that, even were we to find that

peremptory strikes based on a venire member’s religion violate

the Equal Protection Clause, Fisher’s claim is barred by Teague. 

The district court thus was justified in denying collateral

relief, and we need not address the merits of Fisher’s

contention. See Teague, 489 U.S. at 316 (declining to address

merits of claim after determining that rule petitioner advocated

would not be given retroactive effect).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.