Guest post by Professor Carrie Leonetti.* Professor Leonetti is a professor of criminal and constitutional law at the University of Oregon School of Law and the Director of the Oregon Criminal Justice Advocacy Project.  She was the Executive Technical Editor of CR-CL in 1999-2000. This post is an abbreviated version of Professor Leonetti’s full-length article of the same name, forthcoming in 101 Marquette L. Rev. (Fall 2017).



The last several decades have seen a lockstep march by Congress and the Supreme Court to foreclose federal-court review of even meritorious federal constitutional challenges to state criminal-justice procedures.[1] The current iteration of the federal habeas-corpus statute,[2] the vehicle by which most federal constitutional challenges to state criminal adjudication arrive in (or are kept from) federal court precludes federal-court review of the constitutionality of the conduct of state trials for a host of reasons, including: a strict statute of limitations,[3] bars to review arising from the failure to exhaust state remedies[4] and the default of independent state procedural rules,[5] strict limits on when federal habeas courts may hold evidentiary hearings,[6] and a highly deferential standard of review for state court rulings.[7] The result is that a review on the merits of an inmate’s claim that a state court violated the federal constitution in adjudicating a criminal case is the unicorn of federal jurisdiction: lots of people dream of seeing one, but almost no one ever does.

Last term, the Supreme Court appeared to open the door a crack to addressing claims of racial bias in the criminal-justice system in the context of a claim of racially motivated jury selection that was arguably barred by procedural default. This term, the Supreme Court reversed on the merits two more cases involving challenges to apparent racial bias in the criminal-justice system that lower courts had found, repeatedly, to be procedurally barred. Are these isolated anomalies? Or is the Court signaling a willingness to tackle head on issues of racial bias in the criminal-justice system, even when doing so requires it to elide serious concerns about the procedural posture of the state criminal cases that it is being asked to review? And, if so, will that willingness extend to the more subtle, hidden, and systemic implicit biases that plague the system?


The State of Georgia charged Timothy Foster with capital murder, charges for which he was ultimately convicted and given a death sentence.[8] When the time came for the parties to exercise their “peremptory challenges” – the discretionary strikes of eligible jurors at the discretion of the parties – there remained a pool of forty-one qualified jurors.[9] Four of the forty-one remaining jurors were black.[10] The State had ten juror strikes available to it.[11] It used four to strike the four black jurors in the pool, until an all-white jury remained.[12]

When Foster objected, the State offered a host of facially race-neutral explanations for striking each of the jurors. Collectively, however, the State’s explanations suffered from a host of credibility defects. Many of the explanations were subjective or vague: the failure to make eye contact,[13] being “curt,”[14] seeming nervous,[15] responding to voir dire questions too slowly,[16] equivocating in answering questions about views on the death penalty.[17] Other explanations, while facially neutral, seemed only to apply to black prospective jurors. Other explanations were flatly inconsistent with one another.

After he was convicted by the all-white jury, Foster discovered documents relating to the prosecutors’ conduct of jury selection, including the juror list, juror questionnaires, and prosecutors’ personal notes from jury selection.[18] All of the documents were explicitly coded for race: the juror list had handwritten “B”s next to each black prospective juror’s name; the race of prospective black jurors was circled on each of their questionnaires; and the handwritten notes included comments like “No black churches!” next to Black jurors’ names.[19]

The Georgia state courts affirmed Foster’s conviction on two alternative grounds: (1) that his Batson claim was not reviewable because it had already been rejected during a previous appeal; and (2) that he had offered insufficient evidence of intentional racial discrimination.[20] The latter holding (the rejection of Foster’s discrimination claim on its merits) presented a question of federal constitutional law for the Supreme Court to review. The former holding (that state procedural rules precluded revisiting Foster’s discrimination claim), however, was arguably an independent and adequate state-law ground that would preclude the Supreme Court from reviewing the federal constitutional discrimination question.[21] Rather than punting by finding that it lacked jurisdiction, however, the Supreme Court found (after some stretching) that the Georgia courts’ first holding was rendered legally void when it rejected Foster’s discrimination claim on its merits.[22] The Court then proceeded to reverse the Georgia courts’ federal constitutional holding, finding that the fact that the State’s “shifting explanations,” “misrepresentations of the record” and the “persistent focus on race in the prosecution’s file” combined to be powerful “circumstantial evidence that bears upon the issue of racial animosity” requiring the conclusion “that the strikes of [two black jurors] were motivated in substantial part by discriminatory intent.”[23]


It was possible that Foster was simply an anomaly or was motivated by federal-jurisdiction principles rather than a desire to talk about race and the criminal-justice system, but the Court unearthed two more analogous cases involving racial animus this term out from underneath what seemed to be high procedural hurdles and, in doing so, echoed themes from Foster. The State of Texas convicted Duane Buck of the capital murder of his ex-girlfriend and her male friend.[24] During the penalty phase of the case, the State sought to execute Buck primarily on the ground that he posed to high a risk of future dangerousness to be spared the death penalty. During Buck’s court-appointed attorney’s direct examination of his psychiatric expert, Dr. Walter Quijano, the attorney elicited answers from Quijano about the individual components of the actuarial model that he used to predict future risk, including race.[25] In response, Quijano opined: “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the Criminal Justice System.”[26] The prosecutor followed up on the defense attorney’s line of inquiry on cross-examination, asking Quijano to make explicit the implicit import of his direct examination testimony – namely, that Buck was more likely to pose a danger, because he was Black, than a similarly situated white man.[27]

The case history in Buck is multilayered and complicated, but what follows is as brief a summary as possible of its relevant components. In 1997, Buck asked the Texas state courts to overturn his death sentence, but his new attorney failed to challenge the admission of the race-based dangerousness testimony at his sentencing proceeding at that time.[28]

In 2000, in an unrelated case, the Texas Attorney General admitted to the Texas Court of Criminal Appeals that permitting experts to testify in death-penalty cases that race increased certain defendants’ likelihood of future dangerousness was unconstitutional.[29] In doing so, the State identified several other cases in which it had elicited similar testimony, including Buck, and notified the respective defense attorneys in those cases.[30]

In 2002, Buck returned to the Texas state courts, asking them again to overturn his death sentence, this time on the ground that his attorney had given him constitutionally inadequate representation by eliciting the race-based testimony.[31] At the request of the State (and despite its earlier pledge not to do so), the Texas Court of Criminal Appeals dismissed Buck’s claim because he had missed his chance to raise the attorney-competency claim in 1997.[32]

In 2004, sought relief in federal court on the ground that his sentencing counsel’s ineffective assistance violated the Sixth Amendment to the United States Constitution.[33] The federal courts denied Buck relief on the ground that he could not raise the attorney-competency claim in federal court because he had failed to raise it in a timely fashion in the Texas state courts.[34]

In 2013, Buck returned to state court.[35] While his litigation there was ongoing, the United States Supreme Court decided a case called Trevino v. Thaler,[36] which found Texas’s provision of postconviction attorneys to Texas inmates was so inadequate that its courts could not refuse to hear claims that were filed outside of the usual procedural routes because earlier attorneys had missed them. Despite Trevino, the Texas Court of Criminal Appeals, in a narrowly decided 4-3 decision, still refused to hear Buck’s jury-discrimination claim.[37]

In 2014, Buck returned to federal court again, and was again turned away, this time rejecting his claim that his case was so extraordinary that the federal courts should intervene.[38] Buck asked the Supreme Court to review the lower federal courts’ refusal to entertain his jury-discrimination claim.

Technically, the Supreme Court was being asked to review the strictness of the standard under which a federal appellate court should decide whether to review a lower federal court’s refusal to entertain the merits of a prisoner’s constitutional claim, but the oral arguments before the Court focused primarily on the underlying merits of Buck’s jury-discrimination claim: the significant and pervasive impact that the impact that using Buck’s race as an indicator of danger may have had on his sentencing jury. Chief Justice Roberts questioned the Texas Solicitor General at length about the possibility that the jury may have condemned Buck to death because it “had this evidence that he was, by virtue of his race, likely to be dangerous.”[39]

The Court not only reversed the lower federal courts refusal to hear the merits of Buck’s race-discrimination claim,[40] it went ahead and did it, in the first instance, itself, reasoning, extraordinarily, that, because the parties had briefed the issues, it was “proper to meet the decision below and the arguments of the parties on their own terms.”[41] On the issue of Buck’s attorney-incompetence claim, the Court found that Buck’s sentencing counsel was incompetent.[42] The Court also found that counsel’s incompetence was so extreme that, without it, there was a good chance that the jury would not have sentenced him to death.[43] Rejecting the State’s suggestion that the impact of these brief, cryptic references to race was “de minimis,” the Court concluded:

[A]ccording to Dr. Quijano, that immutable characteristic carried with it an “[i]ncreased probability” of future violence. Here was hard statistical evidence—from an expert—to guide an otherwise speculative inquiry.
And it was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.

* * *

[W]hen a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.[44]

The Court then addressed the procedural hurdle to Buck’s success on these merits: whether Buck could reopen in federal court a case that had already been so extensively and conclusively litigated in the state courts. The Court concluded that Buck presented “extraordinary circumstances” justifying extraordinary relief and that the district court had abused its discretion in deciding otherwise.[45] The Court explained:

Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. . . . This departure from basic principle was exacerbated because it concerned race. “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”. . . Regardless of which party first broached the subject, race was . . . put to the jury “as a factor . . . to weigh in making its determination.”[46]

In the second case, the State of Colorado charged Miguel Pena-Rodriguez, who is Chicano, with harassing and assaulting two teenage girls in a women’s room at the racetrack where he worked.[47] In his defense, he offered alibi testimony from a friend and coworker, who is also Chicano, that they were working together at the time of the alleged attack.[48] After the jury found Pena guilty of some of the charges, jurors came forward to report that, during deliberation, one juror, who self-identified as a former police officer, had claimed, relying on previous investigative experience, “I think he did it because he’s Mexican and Mexican men take whatever they want.”[49]

Unfortunately for Pena, however, Colorado, like most jurisdictions, has a jury verdict non-impeachment rule, which prohibits its courts from hearing a challenge to a jury’s verdict based on evidence about anything that happened during jury deliberations.[50] The Colorado courts refused to consider the juror’s racism and rejected Pena’s claim that their refusal was unconstitutional under the circumstances because it denied him the right to a fair and impartial jury.[51]

The United States Supreme Court has had two fairly recent occasions to visit the constitutionality of jury non-impeachment rules and upheld them both times, despite troubling facts. The first case was Tanner v. United States.[52] Tanner’s jury apparently mistook his federal criminal trial for a booze cruise, drinking to excess and even smoking marijuana and snorting cocaine while on breaks.[53] Some jurors were so inebriated that they passed out at one point during the trial.[54] When Tanner sought to overturn his guilty verdict on jury-misconduct grounds, the lower courts refused to consider affidavits from concerned jurors describing the drug and alcohol consumption of their peers.[55] The Supreme Court affirmed the denial on the basis of the importance of the “policy considerations” that underlay jury secrecy, namely the need for the “[f]ull and frank discussion in the jury room” of difficult and controversial issues.[56] The Court also expressed concern about whether any jury deliberation would live up to searching scrutiny, commenting: “It is not at all clear . . . that the jury system could survive such efforts to perfect it.”[57]

The second case was Warger v. Shauers,[58] which upheld the constitutionality of the federal jury non-impeachment rule to bar evidence that a juror had lied during voir dire, a scenario that a majority of federal courts of appeal had previously held to constitute strong evidence of jury bias (theorizing that the only reason that a juror would like about a disqualifying bias during voir dire was to get on a jury knowing that s/he could not decide the case impartially).

The oral arguments in Pena focused almost entirely over whether and to what extent race was “different” in a way that warranted an exception to the ordinary rules of verdict non-impeachment.[59] Justice Sotomayor expressed her belief that “the most pernicious and odious discrimination in our law is based on race” and advocated finding non-impeachment rules unconstitutional as applied only to issues of race.[60] Justice Breyer noted that “race is a special problem” when it comes to the issue of the systemic fairness of criminal justice.[61] Justice Kagan asserted the possibility that “ the interests in preventing unfairness of this kind are much greater; . . . verdicts based on race discrimination pose a [fundamentally different] harm tha[n] verdicts based on other kinds of unfairnesses . . . ” and argued that “it seems artificial not to think about the Sixth Amendment [right to a fair and impartial jury] as [being] informed by the principles of the Equal Protection Clause.”[62] She noted the special nature of race in the criminal-justice system, explaining: “there’s a special kind of harm in . . . punishing people because of their race. And maybe especially because race is so associated with particular stereotypes respecting criminality, . . . it’s also the worst thing that you can suggest about the criminal justice system, that it allows that to happen.”[63]

In its opinion, the Court found that the right to a fair and impartial jury had to trump jury non-impeachment rules in the context of evidence of racial animus in jury deliberations.[64] In reaching its decision, the Court emphasized the “distinct” role of racism in the criminal trial process, requiring “added precaution,” noting what it termed the “imperative to purge racial prejudice from the administration of justice” because “racial discrimination in the jury system posed a particular threat . . . to the integrity of the jury trial.”[65] The Court found that “the Tanner safeguards may be less effective in rooting out racial bias than other kinds of bias.”[66] The Court concluded: “The unmistakable principle underlying [the Court’s] precedents [prohibiting state-sponsored racial discrimination in the jury system] is that discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”[67] The Court described “racial bias” as “a familiar and recurring evil that, if left unaddressed, would risk systemic injury” and that “implicates unique historical, constitutional, and institutional concerns.”[68]


That the Court simply removed otherwise insurmountable procedural barriers in these cases is clear. Justice Breyer’s comments during the oral arguments in Buck are particularly illustrative:

We do know that the prosecutor asked the expert witness is it correct that the race factor, black, increases the future dangerousness for various complicated reasons. And he says, yes. . . .   [T]he issue here is, is there some good reason why this person shouldn’t have been able to reopen his case? I mean, that’s the question. What’s the reason?

* * *

[[W]ouldn’t it seem pretty straightforward to say, okay, maybe he’s right, maybe he’s wrong, but at least he’s made a substantial showing. Let’s give him a Certificate of Appealability, and then we’ll go through the normal procedures on the merits?[69]

Dissenting in Buck, Justice Thomas complained:

Having settled on a desired outcome, the Court bulldoze[d] procedural obstacles and misapplie[d] settled law to justify it. . . . [A]fter chastising the Court of Appeals for making an end run around the COA standard in order to reach the merits of petitioner’s Rule 60 (b) claim, the Court d[id] precisely that. Astonishingly, the Court also decide[d] the merits of petitioner’s Sixth Amendment claim — an issue that was not even addressed by the Fifth Circuit. . . . This unapologetic course reversal — made without so much as a hint of the irony — is striking. . . . Permitting a defendant to file a Rule 60(b) motion years after the fact functionally eviscerates the statute of limitations [for federal habeas review of state convictions].[70]

Dissenting in Pena, Justice Alito similarly complained that “the majority barely bother[ed] to engage with the policy issues implicated by no-impeachment rules.”[71]

One thing that unites these three cases – Foster, Buck, and Pena – is that they do not involve subtle or debatable issues of implicit bias or dog-whistle racism. They involve explicit, intentional appeals to racial bias – as close to a smoking gun as one is ever likely to see in a contested racial-equality challenge in the twenty-first century. Justice Alito described the race-based dangerousness testimony in Buck as “indefensible”[72] and the juror’s remarks in Pena as “very blatant.”[73] Justice Thomas described the testimony in Buck as “explicitly racial.”[74] Justice Kagan described the remarks in Pena as “a screaming race bias in the jury room . . . the best smoking gun evidence you’re ever going to see about race bias in the jury room.”[75] The majority in Pena expressly limited its decision to “overt racial bias” and described the juror comments at issue as “egregious and unmistakable in their reliance on racial bias.”[76]

The deeper question that remains, therefore, is whether this willingness to bend the procedural rules and open the Court to claims of racial bias, if that is what the Court is exhibiting, will extend to the more nefarious, systemic, and common implicit biases that pervade the system. What about credibility determinations that are infused with stereotype-congruent responses to witnesses or parties of color – e.g., a jury’s determination of whether a defendant acted in self-defense, a judge’s determination of the legally permissible amount of force in apprehending a putatively “dangerous” suspect of color, or a lawyer’s use of subconscious stereotypes during the exercise of peremptory challenges? How should courts deal with well-documented implicit biases in the criminal-justice system like racially biased “misremembering” and the “shooter bias”?[77]

Justice Alito reformulated this Essay’s question about whether the Court is prepared to take on these subtler, more implicit forms of racism into a slippery-slope argument in his dissenting opinion in Pena:

Attempting to limit the damage worked by its decision, the Court says that only “clear” expressions of bias must be admitted, but judging whether a statement is sufficiently “clear” will often not be easy. Suppose that the allegedly biased juror in this case never made reference to Peña-Rodriguez’s race or national origin but said that he had a lot of experience with “this macho type” and knew that men of this kind felt that they could get their way with women. Suppose that other jurors testified that they were certain that “this macho type” was meant to refer to Mexican or Hispanic men.[78]

Of course, this Author hopes that the Court will go down that slippery slope, but the extent of the Court’s willingness to address these bigger – and more prevalent – issues of implicit, dog-whistle biases remains to be seen.




* Associate Professor & Dean’s Distinguished Faculty Fellow, University of Oregon School of Law. The author wishes to thank Erik Girvan, Margie Paris, Leslie Harris, Ofer Raban, Stuart Chinn, Mike Quillin, Rebekah Hanley, Megan Flynn, Mindy Witkoff, and Jen Reynolds for their assistance. Their help was brilliant. Any mistakes are mine.

[1] See, e.g., 28 U.S.C. § 2254 (d) (1996); Cullen v. Pinholster, 563 U.S. 170 (2011); Harrington v. Richter, 562 U.S. 86 (2011); Schriro v. Landrigan, 550 U.S. 465 (2007); Lockyer v. Andrade, 538 U.S. 63 (2003); Woodford v. Visciotti, 537 U.S. 19 (2002); Woodford v. Garceau, 538 U.S. 202 (2003).

[2] See § 2254.

[3] See 28 U.S.C. § 2244 (d) (1996).

[4] See § 2254 (b) (1).

[5] See § 2254 (c).

[6] See § 2254 (e) (2).

[7] See § 2254 (d).

[8] See See Foster v. Chatman, 136 S. Ct. 1737, 1742 (2016).

[9] See id. at 1743.

[10] See id. at 1742, 1750.

[11] See id. at 1743, 1750; see also Ga. Code Ann. § 15–12–165 (1985).

[12] See id. at 1743.

[13] See Foster, 136 S. Ct. at 1748

[14] Id.

[15] See id.

[16] See id. at 1751.

[17] See id. at 1754.

[18] See Foster, 136 S. Ct. at 1743-44.

[19] Id. at 1744.

[20] See id. at 1745-46.

[21] See id.; see, e.g., Walker v. Martin, 562 U.S. 307 (2011) (holding that California’s time limitation on applications for habeas corpus relief was an independent and adequate state-law ground sufficient to bar federal habeas review); Beard v. Kindler 558 U.S. 53 (2009) (holding that Pennsylvania’s fugitive forfeiture rule could provide an adequate basis in state law to bar federal habeas review of Kindler’s conviction); Sochor v. Florida, 504 U.S. 527, 534 (1992) (holding that the Supreme Court lacked jurisdiction to address Sochor’s claim that his sentencing court instruction to his capital sentencing jury about “heinousness” as an aggravating factor violated the federal constitution because the Florida Supreme Court’s decision affirming his death sentence rested on the adequate and independent state-law ground that he had not preserved the claim for appellate review); Coleman v. Thompson, 501 U.S. 722 (1991) (holding that the dismissal of Coleman’s state-court appeal because the notice of appeal was untimely was based on an independent state-law ground that precluded federal-court review of his conviction on habeas corpus).

[22] See Foster, 136 S. Ct. 1746-47.

[23] Id. at 1754.

[24] See Buck v. Stephens, 623 Fed. Appx. 668, 669 (5th Cir. 2015).

[25] See id. at 669.

[26] Id.

[27] See id.

[28] See id.

[29] See id.

[30] See id.

[31] See id. at 670.

[32] See id.

[33] See id.

[34] See id.

[35] See id. at 671.

[36] 133 S. Ct. 1911 (2013).

[37] See Buck, 623 Fed. Appx. at 671.

[38] Buck, 623 Fed. Appx. at 671, 673-74.

[39] Transcript of Oral Argument, Buck v. Davis, U.S.S.C. No. 15-8049, Oct. 5, 2016, at 30, available at: (last visited October 21, 2016).

[40] See Buck v. Davis, U.S.S.C. No. 15-8049, Feb. 22, 2017, slip op. at 2.

[41] Id. at 15.

[42] See id. at 17 (citation omitted).

[43] Id. at 17-18.

[44] Id. at 19-20 (internal citations omitted).

[45] Id. at 21.

[46] Id. at 21-23 (internal citations omitted).

[47] See Pena-Rodriguez v. People, 350 P.3d 287, 288 (Colo. 2015).

[48] See id. at 288 n.3.

[49] Id. at 289.

[50] See Colo. R. Evid. 606 (b).

[51] Pena, 350 P.3d at 289-93.

[52] 483 U.S. 107 (1987).

[53] See id. at 115-16.

[54] See id. at 116.

[55] See id. at 115.

[56] Id. at 119-20.

[57] Id. at 120.

[58] 135 S. Ct. 521 (2014).

[59] See Transcript of Oral Argument, Pena-Rodriguez, U.S.S.C. No. 15-606, Oct. 11, 2016 (available at: (last visited October 21, 2016).

[60] Id. at 6.

[61] Id. at 20.

[62] Id. at 29-30.

[63] Id. at 30-31.

[64] Peña-Rodriguez v. Colorado, U.S.S.C. No. 15–606 (March 6, 2017), slip op. at 17.

[65] Id. at 13, 16-17.

[66] Id. at 16-17.

[67] Id. at 15 (quotation omitted).

[68] Id. at 15-16.

[69] Transcript of Oral Argument, Buck, at 31, 35-36.

[70] Buck, No. 15-8049 (Thomas, J., dissenting), slip op. at 1-9 (quotations & citations omitted).

[71] Id. at 22 (Alito, J., dissenting).

[72] Transcript of Oral Argument, Buck, at 10.

[73] Transcript of Oral Argument, Pena, at 26.

[74] Buck, No. 15-8049 (Thomas, J., dissenting), slip op. at 10.

[75] Transcript of Oral Argument, Pena, at 44.

[76] Peña, slip op. at 17-18.

[77] See Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 357 (2007) (“The “shooter bias” refers to participants’ propensity to shoot Black perpetrators more quickly and more frequently than White perpetrators and to decide not to shoot White bystanders more quickly and frequently than Black bystanders.”)

[78] Peña, slip op. at 19 (Alito, J., dissenting).