FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 8, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________

No. 00-15807

_____________

D.C. Docket No. 96-00097-3-CV-DF

JOHN WASHINGTON HIGHTOWER,

Petitioner-Appellant, 

versus

WILLIAM TERRY,

Respondent-Appellee.

______________

Appeal from the United States District Court

for the Middle District of Georgia 

_____________

(August 8, 2006)

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:
 Hightower was convicted in 1988 of murdering his wife and two step-daughters the 1

year before. He was sentenced to death for each killing.

 Our opinion in Hightower describes Hightower’s criminal acts and the procedural 2

history of the case – in state and federal court.

 In Batson, the Supreme Court held that the Equal Protection Clause of the 14th 3

Amendment forbad the State from exercising peremptory strikes in a racially discriminatory

manner during jury selection in a criminal prosecution. The Court established a three-part

mechanism for establishing such discrimination, which the Court has summarized as follows:

Under our Batson jurisprudence, once the opponent of a peremptory challenge has

made out a prima facie case of racial discrimination (step one), the burden of

production shifts to the proponent of the strike to come forward with a raceneutral

explanation (step two). If a raceneutral explanation is tendered, the trial court

must then decide (step three) whether the opponent of the strike has proved

purposeful discrimination.

Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d 834 (1995). 

2

Petitioner John Washington Hightower is a Georgia prison inmate awaiting

execution for murder. On August 6, 1999, the United States District Court for the 1

Middle District of Georgia denied his application for writ of habeas corpus under

28 U.S.C. § 2254, and, on April 12, 2004, we affirmed its decision. Hightower v.

Schofield, 365 F.3d 1008 (11th Cir. 2005). Hightower thereafter petitioned the 2

Supreme Court for certiorari review. One of the issues his petition raised was

whether the state trial court erred in rejecting his claim that the prosecutor’s

peremptory challenges of black jurors violated the Batson rule. See Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Court 3

granted Hightower’s petition, vacated our judgment, and remanded the case “for

further consideration in light of” Miller-El v. Dretke, 545 U.S. U.S. ___, 125 S.
 Miller-El’s petition sought relief on other constitutional claims as well. Miller-El, 125 4

S. Ct. at 2323. None are relevant here.

 The district court referred Miller-El’s petition to a magistrate judge. After hearing the 5

petitioner’s claims, the magistrate judge issued a report and recommendation, recommending that

the district court deny relief. Miller-El v. Johnson, No. Civ. 3:96-CV-1992-H, slip. op. at 1

3

Ct. 2317, 162 L. Ed. 2d 196 (2005). Hightower v. Schofield, 125 S. Ct. 2929,

2929-30, 162 L. Ed. 2d 863 (2005). We conclude that Miller-El does not counsel

a decision contrary the one we reached in Hightower v. Schofield, and therefore

adhere to that decision. 

Why Miller-El does not control our decision becomes clear when one

considers how Miller-El reached the Supreme Court and how Hightower v.

Schofield came to us. In Miller-El, after the Texas Court of Criminal Appeals

affirmed the trial court’s determination that the prosecutor’s peremptory

challenges of black jurors were not racially motivated, Miller-El petitioned the

United States District Court for the Southern District of Texas for habeas relief –

to review the court of criminal appeals’ Batson decision. Miller-El, 125 S. Ct. at 4

2323. Instead of requesting the district court to review that decision on the basis

of the record created before the Texas trial judge, Miller-El asked the court to

augment that record to consider other evidence, including juror questionnaires and

juror information cards. Id. at 2334 n.15. The State had no objection; the district

court therefore convened an evidentiary hearing to consider the additional 5
(N.D. Tex. 2000) (mem.) (unpublished). The court adopted the magistrate judge’s

recommendations and findings, with modifications not relevant here. Id. at 2. 

4

evidence. Id. The court rejected Miller-El’s Batson claim, choosing to defer to

“the experience of the trial court judge in evaluating the demeanor of each juror

and the prosecutor in determining purposeful discrimination.” Miller-El v.

Johnson, No. Civ. 3:96-CV-1992-H, slip. op. at 2 (N.D. Tex. 2000) (mem.)

(unpublished). Miller-El appealed, and the Fifth Circuit affirmed. Miller-El v.

Dretke, 361 F.3d 849, 862 (5th Cir. 2004). Of relevance to the case before us, the

court of appeals rejected the petitioner’s arguments that “the . . . similarity

between non-black venire members who were not struck by the prosecution and

six blacks who were” and the prosecutor’s “disparate questioning with respect to

venire members’ views on the death penalty and their ability to impose the

minimum punishment” constituted circumstantial evidence of the prosecutor’s

intent to discriminate against the black members on account of their race. Id. at

854-55.

The Supreme Court disagreed with the Fifth Circuit’s assessment of the

evidence contained in the record, i.e., the record before the Texas trial judge and 

the evidence Miller-El presented to the district judge with the State’s consent; the

Court concluded that “when the evidence on the issues [the petitioner] raised is
 In Miller-El, the Court, addressing the propriety – under 28 U.S.C. § 2254(d)(2) – of 6

considering evidence not presented to the trial judge when ruling on the petitioner’s Batson

objection, stated that it was reaching no decision about whether the limitation on evidence in §

2254(d)(2) is waiveable. Miller-El, 125 S. Ct. at 2334 n.15. Section 2254(d)(2) instructs federal

habeas courts to consider only “the evidence presented in the State court proceeding,” i.e., the

proceeding in which the Batson objection is raised. 

5

viewed cumulatively its direction is too powerful to conclude anything but [racial]

discrimination.” Miller-El, 125 S. Ct. at 2339. 

In the case at hand, we did not decide Hightower’s Batson claim on the

basis of an augmented record, as the district court, the court of appeals, and the

Supreme Court did in Miller-El; rather, we were, and are post-Miller-El, limited to

the evidentiary record developed in the state trial court during jury selection and

the trial court’s ruling, Hightower’s and the State’s briefs to the Supreme Court of 6

Georgia (with respect to the Batson claim), and that court’s opinion (again, with

respect to the Batson claim). 

The procedural history of this case is illustrative. After the Georgia

Supreme Court affirmed his convictions and death sentences, Hightower

petitioned the state superior court for a writ of habeas corpus. Among his claims

was the Batson claim he had presented to the supreme court in appealing his

convictions. The superior court declined to entertain the Batson claim, citing

Gunter v. Hickman, 256 Ga. 315, 348 S.E. 2d 644 (Ga. 1986), which held that

issues raised in a defendant’s direct appeal of his conviction cannot be relitigated
6

on collateral attack, in a habeas corpus proceeding, see Gunter 256 Ga. at 316, 348

S.E. 2d at 644. After the superior court denied relief (on all of the petition’s

claims), the Georgia Supreme Court denied Hightower’s application for probable

cause to appeal, and the Supreme Court denied his petition for a writ of certiorari,

Hightower v. Thomas, 515 U.S. 1162, 115 S. Ct. 2618, 132 L. Ed. 2d 860 (1995).

Having exhausted his state remedies, Hightower filed the instant habeas

petition. The petition contained several claims, including the Batson claim now

under consideration pursuant to the Supreme Court’s mandate. In his petition and

supporting memoranda, Hightower presented his Batson claim as he had presented

it earlier in his brief to the Georgia Supreme Court on direct appeal, but he added

an argument he had omitted from his brief to the supreme court. He contended

that if the district court compared the prosecutor’s questions to the white jurors

with those put to the black jurors, or vice versa, and the respective jurors’ answers

to those questions, it would become apparent that the prosecutor, in exercising his

peremptory challenges, was discriminating against the black jurors because of

their race. The district court ignored this additional argument; it denied

Hightower’s Batson claim with these words:

Petitioner has easily satisfied the first two prongs of his prima facie

burden under Batson; the only disputed issue is whether the totality of

the circumstances raised an inference that the prosecutor peremptorily
 In determining whether the Georgia Supreme Court’s rejection of Hightower’s Batson 7

claim should be sustained, the district court focused on what was before the Georgia Supreme

Court. In other words, to the extent that Hightower’s petition contained an argument that

Hightower did not present to that court, the district court ignored the argument. The Rules

Governing Section 2254 Cases in the United States District Courts accommodate this policy of

limiting the district court’s examination of the state high court’s decision to what was before the

high court. If the district court orders the State to respond to a habeas petition, Rule 5(c) requires

the State to attach to its answer “parts of the transcript that the [State] considers relevant.” 

Where, as here, a Batson claim is involved, the State must attach the transcript of the portions of

the trial dealing with jury selection (and the Batson objection). The State provided the entire

transcript of the jury selection in this case. Rule 5(d) also requires the State to attach to its

answer the briefs the petitioner and the State submitted to the state appellate court, and that

court’s “opinions and dispositive orders” relating to the petitioner’s claim(s). The State provided

the district court with these materials in this case. In sum, the district court, in examining, and

denying, Hightower’s Batson claim, relied on transcript of the jury selection, the parties’ briefs to

the Georgia Supreme Court, and that court’s dispositive opinion. 

 The only evidence Hightower attempted to present to the trial court in support of his 8

Batson objection came in the form of a newspaper article, which purportedly showed that the

prosecutor had authored a memorandum detailing a scheme to exclude black persons from juries. 

The trial court excluded the newspaper article from the record, on the ground that it had not been

7

struck certain jurors because of their race. The trial court, having the

best opportunity to view the prosecutor’s demeanor and determine his

credibility, found the prosecutor’s explanations to be credible. The

trial court also found there to be a race-neutral basis for all of the

prosecutor’s peremptory challenges of black prospective jurors. The

Georgia Supreme Court affirmed the trial court’s evaluation. This

Court cannot say that the Georgia Supreme Court’s determination was

unreasonable or contrary to Batson or any other Supreme Court case

within the meaning of the [Antiterrorism and Effective Death Penalty

Act]. Accordingly, Petitioner is not entitled to relief on this basis. 

7

We analyzed Hightower’s Batson claim in the same fashion, and concluded,

as the district court did, that “Hightower never provided the [state trial] court with

any evidence tending to discredit the persuasiveness of the prosecutor’s stated

reasons for striking black jurors.” Hightower v. Schofield, 365 F.3d at 1035. 8
authenticated. We are bound by that ruling, and, as such, we do not consider the article as part of

the record before the Georgia courts for the purposes of our review under § 2254(d). 

8

Hightower contends that Miller-El required the district court, and this court,

to entertain the argument he presented to the Georgia Supreme Court as well as the

additional argument presented to the district court – that the comparison

mentioned above of the prosecutor’s handling of the white and black jurors

compels the inference that the prosecutor exercised his peremptory challenges on

racial grounds. In effect, he wants to re-brief his appeal to the Georgia Supreme

Court. We assume that he intended to do just that when he included his Batson

claim in his habeas petition to the state superior court. The superior court rejected

his attempt; the supreme court had adjudicated the claim, and state procedural law

precluded him from relitigating it on collateral attack. The Georgia Supreme

Court effectively agreed when it denied Hightower’s application for probable

cause to appeal. 

The net effect of these rulings is that if Hightower wants the federal courts

to entertain an argument he could have made in the Georgia Supreme Court but

did not, he must establish cause for his counsel’s failure to present the argument

and resulting prejudice. See Francis v. Henderson, 425 U.S. 536, 542, 96 S. Ct.

1708, 1711, 48 L. Ed. 2d 149 (1976). He has demonstrated neither. Although his
 Although Miller-El involved only the application of § 2254(d)(2), Miller-El, 125 S. Ct.

9

at 2325, the dissent contends that we should grant Hightower’s writ of habeas corpus on the

ground that the Georgia courts’ rejection of Hightower’s Batson claim constituted a decision

“contrary to, or involv[ing] an unreasonable application of, clearly established Federal law”

under § 2254(d)(1). See post, at __. The dissent argues that the state courts rendered such a

decision because the trial court, and the Georgia Supreme Court on appeal, failed to carry out

Batson’s third step in that they failed to find credible the prosecutor’s race-neutral explanations

for striking black jurors. See post, at __; see also Rice v. Collins, ___ U.S. ___, ___, 126 S. Ct.

969, 974, 163 L. Ed. 2d 824 (2006) (“Third, the court must then determine whether the defendant

has carried his burden of proving purposeful discrimination. This final step involves evaluating

the persuasiveness of the justification proffered by the prosecutor . . . .” (citations and internal

quotation marks omitted)). In so doing, the dissent focuses on the trial court’s language in

overruling Hightower’s Batson objection, in which it stated only that, “as to each individual

strike, the State has presented an articulable nonrace related reason for striking the prospective

juror.” 

The dissent fails to recognize, however, that a trial court’s dispositive ruling may contain

implicit findings, which, though unstated, are necessary to that ruling. See United States v.

$242,484.00, 389 F.3d 1149, 1154 (11th Cir. 2004) (en banc) (“[W]e and other federal appellate

courts have“inferred from a district court’s explicit factual findings and conclusion implied

factual findings that are consistent with the its judgment although unstated.”); see also 9A

Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 2579 (2d ed. 1995) (“In

some cases if the court fails to make a finding on a particular fact it has been assumed . . . that it

impliedly made a finding consistent with its general finding.”). In such cases, we make “the

common sense judgment that material factual issues were resolved by the [trial] court in favor of

the judgment when it was reasonable for that court to [have] do[ne] so in light of the evidence.”

$242,484.00 at 1154-55. We have invoked (albeit tacitly) this principle in two Batson appeals,

United States v. Cure, 996 F.2d 1136 (11th Cir. 1993), and United States v. David, 844 F.2d 767

(11th Cir. 1988), in which we upheld a district court’s overruling of a Batson objection even

though the district court did not explicitly find the prosecutor’s race-neutral explanations to be

9

habeas petition to the district court alleges that his lawyers denied him effective

assistance of counsel, it does not allege that counsel were ineffective in the

Georgia Supreme Court for failing to advance his comparisons of black jurors

struck by the prosecutor to white jurors accepted by the prosecutor. 

We have considered Miller-El in the context of the instant case. We

conclude that it does not change our disposition of Hightower’s Batson claim.9
credible. See Cure, 996 F.2d at 1138-39; David, 844 F.2d at 769. 

 In this case, the trial court, after assuming that Hightower had made out a prima facie

case of racial discrimination, expressly found that the prosecutor had provided an “articulable,

nonrace related reason” for each strike, and overruled Hightower’s Batson objection. The trial

court’s overruling of Hightower’s Batson objection would have defied logic had the court

disbelieved the prosecutor’s race-neutral explanations. We may therefore make “the common

sense judgment” – in light of defense counsel’s failure to rebut the prosecutor’s explanations and

the trial court’s ultimate ruling – that the trial court implicitly found the prosecutor’s race-neutral

explanations to be credible, thereby completing step three of the Batson inquiry. 

 

10

Our opinion in Hightower v. Schofield is accordingly reinstated. 

SO ORDERED.
11

WILSON, Circuit Judge, dissenting:

I dissent from the order reinstating our previous opinion because this case,

even more than Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d

196 (2005), compels a finding that Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986), was violated. Miller-El came to the Supreme Court

on review “following the Texas trial court’s prior determination of fact that the

State’s race-neutral explanations [for striking black veniremembers] were true.” 

545 U.S. at ___, 125 S. Ct. at 2325. The trial court in Miller-El specifically found

that the prosecutor’s justifications for striking black veniremembers were

“completely credible [and] sufficient” to support a finding of “no purposeful

discrimination.” 545 U.S. at ___, 125 S. Ct. at 2323. The Supreme Court,

reviewing the case under the Antiterrorism and Effective Death Penalty Act of

1996 (the “AEDPA”), stated that “Miller-El may obtain relief only by showing the

Texas conclusion to be ‘an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Id. at ___, 125 S. Ct. at 2325

(quoting 28 U.S.C. § 2254(d)(2)). To prevail, Miller-El was required to prove “by

clear and convincing evidence” that the factual determination was unreasonable. 

Id.; 28 U.S.C. § 2254.
12

Miller-El had to overcome a difficult burden (clear and convincing

evidence); Hightower, on the other hand, does not. In Hightower’s case, the trial

court merely found that the prosecutor’s justifications were “articulable” and

“nonrace related” and never touched on the credibility of those statements. The

Georgia courts never made factual determinations regarding the plausibility of the

proffered justifications because they never applied the final step of Batson. Thus,

the Georgia courts rendered a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. §

2254(d)(1). In light of the Georgia courts’ error and of the evidence presented to

them, I would grant Hightower’s habeas petition.

I. The Georgia courts failed to apply Batson’s third step.

When we initially decided this case, I concurred with the result but

expressed reservations about the state courts’ application of Batson. See

Hightower v. Schofield, 365 F.3d 1008, 1041 (2004) (“Hightower I”) (Wilson, J.,

concurring). As I stated in my concurrence, it appeared that the state trial court

and the Georgia Supreme Court failed to properly apply Batson’s third step by

concluding their analysis at the end of the second step. Id. at 1042.

A Batson challenge requires a three-step inquiry. Rice v. Collins, __ U.S.

__, __, 126 S. Ct. 969, 973, 163 L. Ed. 2d 824 (2006). “First, the trial court must
 The trial court found that Hightower failed to establish a prima facie case of 1

discrimination. That determination is erroneous. See Hightower I, 365 F.3d at 1043 (Wilson, J.,

concurring). Both the majority, here, and the Georgia Supreme Court assumed for purposes of

analysis that Hightower established a prima facie case of discrimination.

13

determine whether the defendant has made a prima facie showing that the

prosecutor exercised a peremptory challenge on the basis of race. Second, if the

showing is made, the burden shifts to the prosecutor to present a race-neutral

explanation for striking the juror in question.” Id. (citations omitted). The second

step requires evaluating the explanation on its face – “so long as the reason is not

inherently discriminatory, it suffices.” Id. Third, the trial court must “assess the

plausibility of that reason in light of all evidence with a bearing on it.” Miller-El,

545 U.S. at ___, 125 S. Ct. 2331. “This final step involves evaluating ‘the

persuasiveness of the justification’ proffered by the prosecutor . . . .” Rice, ___

U.S. at ___, 126 S. Ct. at 974 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.

Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam)). The Georgia courts did

not apply Batson’s third step.

The trial court made explicit determinations with regard to only the first two

steps. The trial court asked the prosecutor, Joseph Briley, about each struck black 1

veniremember, starting with Ricky Thomas. After Briley offered his justification,

the trial court immediately stated, without asking for the defendant’s input, “Mr.
14

Briley, I find that is an articulable reason the State has stated for striking Ricky

Thomas and is not race related.” The trial court then proceeded to ask about the

next potential juror. Again after Briley’s explanation, the trial court, without

pausing, found that “the State has stated an articulable reason for striking Lucious

Boswell and the reason is not race related.” The trial court and Briley repeated

this sequence for each of the six struck black veniremembers. Finally, after

hearing all the prosecutor’s reasons, the court stated, “I find that the defendants

have failed to establish a prima facie case of discrimination on the part of the

district attorney. I further find that as to each individual strike, the State has

presented an articulable, nonrace related reason for striking the prospective juror.” 

The trial court never made a finding that these reasons were credible and never

addressed “the persuasiveness of the justification[s].” Purkett, 514 U.S. at 768,

115 S. Ct. at 1771.

The Georgia Supreme Court also failed to reach Batson’s final step. 

Applying a clearly erroneous standard and assuming that Hightower had

established a prima facie case, the Georgia Supreme Court affirmed the trial

court’s determination that the prosecutor’s reasons for striking veniremembers

were race-neutral. The language used in the Georgia Supreme Court’s opinion

suggests that once a prosecutor has articulated reasons for his challenges, a court’s
 The Georgia Supreme Court’s entire discussion of Hightower’s Batson claim is as 2

follows:

The defendant contends the prosecution was guilty of racial discrimination. The prosecutor

used only seven of his authorized 10 peremptory strikes. He used six of those seven strikes

against black prospective jurors. The record shows that at least two black prospective jurors

were struck by the defendant after having been accepted by the prosecutor. The prosecutor

explained his peremptory challenges. Four of the challenged prospective jurors were closely

related to persons convicted of serious felonies. The other two were conscientiously opposed

to the death penalty, although not to the extent they were excused for cause. The trial court

found that the prosecutor had articulated legitimate non-racial reasons for his challenges.

Even assuming the defendant made out a prima facie case, the trial court’s determination is

not clearly erroneous.

Hightower v. State, 259 Ga. 770, 773, 386 S.E.2d 509, 512 (1989) (citations omitted). The

Georgia Supreme Court used the words “legitimate” and “non-racial” when paraphrasing the trial

court’s findings regarding to the prosecutor’s proffered reasons, but the trial court stated that for

each struck veniremember, “the State [] presented an articulable, nonrace related reason.” 

Importantly, the Georgia Supreme Court merely affirmed the trial court’s findings, which did not

include findings as to the plausibility of the prosecutor’s proffered reasons.

15

finding that those reasons are race-neutral is sufficient to end the Batson inquiry.2

The Georgia Supreme Court appears to have been evaluating not whether

Hightower had met his burden of establishing purposeful discrimination, but

merely whether the prosecutor’s proffered reasons for the strikes were

race-neutral. 

The majority says that the trial court implicitly reached the final step. Ante,

__ n.9. I disagree. Implicit findings must be “reasonable in light of the record

evidence.” United States v. $242,484.00, 389 F.3d 1149, 1154-55. The majority

does not evaluate the record to determine whether its implicit findings are

reasonable. As I explain below, the record fails to support a finding that the
 This case is distinguishable from Atwater v. Crosby, 11th Cir. 2006, ___ F.3d ___ (No. 3

03-16259, June 12, 2006). In Atwater, we held that generally a defendant must present some

evidence or argument of comparability at the time that the Batson challenge is made in order to

rely upon that argument in habeas proceedings. Id. However, in Atwater, the trial court“went

beyond a mere finding that the state articulated a race neutral reason for the strike.” Id. “The

trial judge upheld the peremptory strike after agreeing that [the juror] exhibited some difficulty

with her responses to the prosecution question.” In so doing, “the third step of the Batson

analysis was touched.” Id. Here, the judge merely found, for every struck black veniremember,

that Briley had given an “articulable” and “nonrace related” justification for the strike–never

venturing beyond Batson’s second step requiring a clearly articulated, race-neutral justification.

 “Wisdom too often never comes, and so one ought not to reject it merely because it 4

comes late.” Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct.

290, 293, 93 L. Ed. 259 (1949) (Frankfurter, J., dissenting). 

16

prosecutor’s reasons were credible. 

The conclusion here is inescapable: By rejecting Hightower’s Batson claim

merely because the prosecutor’s justifications were “articulable” and “nonrace

related,” the Georgia courts’ adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of,” Batson. § 2254(d)(1). 3

II. The proffered reasons were pretextual.

Having re-considered my pre-Miller-El concurrence, I am now persuaded

that had the Georgia courts engaged in all three of Batson’s steps, they in all

likelihood would have found a Batson violation. Here, the trial court had before 4

it the number of peremptory strikes used to remove black veniremembers, the voir

dire answers of all the veniremembers, the prosecutor’s proffered reasons for

striking certain veniremembers, the defendant’s representations about the
 The defense attorney made the following statement, among others, in support of 5

Hightower’s Batson challenge:

[Of the seven peremptory strikes, Briley] has used six of those strikes to strike

blacks. . . . Mr. Briley has in the past shown a bent and scheme to keep down the low

number of blacks on either the grand jury or regular panels. . . . He has purposely

excluded blacks so that Mr. Hightower will not get a fair and impartial hearing on this

case and this matter.

Your Honor, I have here a copy of the Fulton Daily Reporter which was on

Wednesday, March 30, 1988, where we got headlines, “Does County Plan To

Discriminate, high court hears jury panel.” This was regarding the case of the State v.

Amadeo which has gone up to the Georgia Supreme Court. I will make a quote here from

the U.S. Supreme Court Justice John Paul Stevens. “The evidence disclosed is the

intentional program of rigging the jury by the prosecutor’s office.” This arose out of a

memo which has been attributed to Mr. Briley stating that there was a purpose and a plan

to have a member [sic] number of blacks on the grand jury in Putnam County in order to

have it just half the jury criteria for grand jury. . . . You are well acquainted with that

case, Your Honor. We would say that this is the same circumstances [sic], the same sort

of scheme that Mr. Briley was doing in this particular case. He is purposely using his

strikes to provide for just the minimum amount of blacks, absolutely the minimum

amount, but what he has done is prevented Mr. Hightower from getting a fair and

impartial hearing.

Importantly, Briley, although disputing the memorandum’s purpose, essentially

admitted penning the memorandum when he responded, “Your Honor, insofar as the

statements from the Daily Report and the statements from Justice Stevens, . . . I believe

Justice O’Conner asked the defense lawyer . . . ‘couldn’t it have been that Mr. Briley was

trying to get the matter improved and was telling them how few they could put on it, in the

jury box.’ So, Your Honor, it is a matter of which direction you look at this case . . . .”

17

prosecutor’s history of discrimination in jury selection, and the prosecutor’s

response to the accusations.5

Because the Georgia courts never assessed Briley’s credibility regarding his

use of peremptory strikes, we have no factual finding to which to defer, and can

look to the record to determine whether it supports the proffered justifications. 

See Miller-El, 545 U.S. at ___, 125 S. Ct. at 2323, 2326-30 (where the state courts
 The majority states that in order for us to consider Hightower’s arguments comparing 6

struck black veniremembers with non-challenged non-black veniremembers, “he must establish

cause for his counsel’s failure to present the argument [in state court] and resulting prejudice.” 

Majority Op., at ___. To the extent that the majority holds that any part of Hightower’s Batson

claim procedurally defaulted, I disagree. No Georgia court has ever found any part of

Hightower’s Batson claim procedurally barred, nor did the majority mention this as a ground for

denying relief in the prior vacated opinion. See, generally, Hightower v. State, 259 Ga. 770, 386

S.E.2d 509 (1989); Hightower I, 365 F.3d 1008 (2004). Furthermore, the comparative juror

analysis is further evidence of a Batson violation that the trial court could have considered at

Batson’s third step, whether counsel made the argument or not. See, e.g., Miller-El, 545 U.S. at

___, 125 S. Ct. at 2325 (where comparative juror analysis was considered). 

18

and the Supreme Court looked to the voir dire record to determine whether the

proffered reasons were pretextual). “If a prosecutor’s proffered reason for striking

a black panelist applies just as well to an otherwise-similar nonblack [panelist]

who is permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at

___, 125 S. Ct. at 2325. The record is replete with examples of veniremembers 6

who were struck arguably because of their race, but three strikes are especially

troubling, specifically the exercise of peremptory challenges to eliminate Thelma

Butler, Ricky Thomas, and Emerson Davis.

Briley claims that he struck Thelma Butler because he successfully

prosecuted her brother-in-law twelve years prior. He also claims that Butler was

somewhat hostile. From the record, it appears that Butler was an ideal juror for a

prosecutor seeking the death penalty. Butler felt that people tried for murder are
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treated too leniently. She was strongly in favor of the death penalty. She felt that

mitigating circumstances must be proven before she would consider imposing a

life sentence. Her answers alone undermine the veracity of Briley’s proffered

justification, especially since he never questioned Butler about her brother-in-law. 

Even more striking is the fact that Briley declined to strike a non-black juror,

Michael Hensler, who, himself, had been convicted of and imprisoned for

voluntary manslaughter by Briley’s office.

In another example, Ricky Thomas’s father had been convicted of killing

his mother. Because of this conviction and the fact that Thomas had lived with his

father after his father’s release, the prosecutor struck him speculating that Thomas

may possibly identify his father’s case with Hightower’s. Yet, Thomas indicated

that he was in favor of the death penalty, and that he did not even remember the

circumstances surrounding his mother’s killing because he was too young at the

time. The prosecutor never questioned Thomas about his relationship with his

father or the potential impact on his ability to decide the case fairly. Again, the

pretext is more apparent when viewed in light of the fact that Hensler was not

struck.

Emerson Davis was struck because the prosecutor claimed that Davis was

somewhat opposed to the death penalty, more so than other veniremembers. Davis
These jurors include Merrick Carter, Rhonda Batchelor, Nellie Stapp, M. P. Ervin, 7

Miriam Shatterly, and John Hutcheson. 

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never stated that he was opposed to the death penalty, but rather had to hear the

case before imposing the penalty. The prosecutor mischaracterized his voir dire,

thereby undermining a claim that the prosecutor’s reason was race-neutral. In fact,

Davis’s views were in line with several non-black jurors whom the prosecutor 7

declined to challenge. If Davis was undesirable as compared to other

veniremembers on the question about the death penalty, then the prosecutor would

have used his remaining peremptory strikes to eliminate other veniremembers who

gave similar answers. However, the non-black veniremembers who gave similar

answers were not struck.

Viewing the evidence in its totality, including the “smoking gun”

memorandum penned by Briley, it is clear that Briley’s proffered justifications

were pretextual.

III. This case is factually on all fours with Miller-El.

The factual similarities between Miller-El and this case are extensive. In

Miller-El, the prosecutors struck ten of the eleven qualified black veniremembers

with peremptory challenges. 545 U.S. at ___, 125 S. Ct. at 2325. Here, Briley,
In Miller-El, one black juror was allowed to serve. 545 U.S. at ___, 125 S. Ct. at 2325. 8

Here, three black jurors served at trial. This difference is unimportant, especially in light of

Briley’s memorandum. A prosecutor using any of its peremptory challenge to eliminate a

veniremember because of race runs afoul of the Equal Protection Clause. See Batson, 476 U.S.

at 98 n.22, 106 S. Ct. at 1724 n.22; Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir. 1995).

 Briley struck Butler, Thomas, Lucious Boswell, and Mattie Harris. 9

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used six of seven peremptory strikes to strike black veniremembers. In Miller-El,

8

the prosecutor struck a black veniremember because the juror was “inclined” to

favor rehabilitation, while non-black jurors, who expressed stronger beliefs in

favor of rehabilitation, were not struck. 545 U.S. at ___, 125 S. Ct. at 2327-29. 

Here, Briley struck Davis, a black veniremember, because he was “somewhat

opposed to the death penalty” as compared to other veniremembers, but did not

strike non-black veniremembers, such as Carter, Shatterly, and others mentioned

above, who expressed views similar to Davis’s, and in some instances expressed

views more equivocal than Davis’s.

Further, in Miller-El, the prosecutor struck from the jury black

veniremembers because they had relatives who were prosecuted by the D.A.’s

office. 545 U.S. ___, 125 S. Ct at 2328. The Court noted the prosecutor’s failure

to inquire into the details of the convictions and relationships as further evidence

that the reason was a pretext. Id. Here, Briley struck four black veniremembers

because they allegedly had relatives who were prosecuted by the D.A.’s office.9
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Just as in Miller-El, Briley did not inquire into the details of these convictions and

relationships. Briley also declined to challenge, Hensler, a non-black juror who

himself had been prosecuted and convicted of voluntary manslaughter.

In Miller-El, the prosecutor, while stating the race-neutral reasons for the

strikes, mischaracterized the voir dire testimony of some of the black

veniremembers he struck. 545 U.S. at ___, 125 S. Ct at 2327. Similarly, Briley

mischaracterized the testimony of Davis.

This case is a more factually compelling Batson violation than Miller-El

because of Briley’s personal history of past discrimination. The defendant in

Miller-El demonstrated little, if any, past history of discrimination by the specific

prosecutors involved in his case, relying mainly on a manual that instructed

prosecutors to minimize the number of black jurors. The Supreme Court stated

that this evidence confirmed its conclusion that the race-neutral reasons were

pretextual. 545 U.S. at ___, 125 S. Ct at 2339. Here, Briley himself authored a

memorandum that spelled out the scheme to limit the number of blacks in the jury

pool. The Hightower’s counsel argued that Briley had “in the past shown a bent

and scheme to keep down the [] number of blacks” serving on jury panels, and

claimed that Briley wrote a memorandum detailing a plan to limit the number of

blacks on grand juries. Instead of denying involvement with the memorandum,
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Briley responded to the accusations arguing that the memorandum could be

viewed as an effort to improve matters.

Had the trial court delved into Batson’s third step, this evidence alongside

the other evidence would have cast grave doubt on the truthfulness of Briley’s

proffered reasons.

IV. Conclusion

The Georgia courts made no determination as to whether the prosecutor’s

proffered justifications were pretextual. In finding no Batson violation, the state

courts relied on the fact that the proffered justifications were “articulable” and

“nonrace related.” This is sufficient for Batson’s second step, but not the third

step which “involves evaluating the persuasiveness of the justification.” Rice, ___

U.S. at ___, 126 S. Ct. at 974. We cannot presume that Briley’s proffered

justifications were truthful because the trial court never made that finding. After

reviewing the evidence available to the trial court, I conclude that Briley’s reasons

were pretextual, and that Batson was violated. Accordingly, I would grant

Hightower’s writ of habeas corpus. 

The Supreme Court vacated our prior decision and remanded this case “for

further consideration in light of [Miller-El].” Hightower v. Schofield, __ U.S. __,

__, 125 S. Ct. 2929, 2929-30, 162 L. Ed. 2d 863 (2005). Reinstating the prior
24

panel opinion violates the Supreme Court’s express mandate. Respectfully, I

dissent.