Case: 23-70009        Document: 87-1       Page: 1     Date Filed: 01/02/2025




         United States Court of Appeals
              for the Fifth Circuit
                               ____________                           United States Court of Appeals
                                                                               Fifth Circuit


                                No. 23-70009
                                                                             FILED
                                                                       January 2, 2025
                               ____________
                                                                        Lyle W. Cayce
Terry Pitchford,                                                             Clerk

                                                           Petitioner—Appellee,

                                     versus

Burl Cain, Commissioner, Mississippi Department of Corrections; Lynn
Fitch, Attorney General for the State of Mississippi,

                                        Respondents—Appellants.
                ______________________________

                Appeal from the United States District Court
                  for the Northern District of Mississippi
                           USDC No. 4:18-CV-2
                ______________________________

Before Haynes, Willett, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
       The district court granted Terry Pitchford a writ of habeas corpus
based on the claim that the prosecutor in his capital murder trial struck four
potential jurors in violation of Batson v. Kentucky, 

 (1986). On
appeal, the State of Mississippi argues that the district court failed to defer to
the Mississippi Supreme Court’s decision that Pitchford waived his Batson
claims by failing to challenge the State’s race-neutral reasons for the strikes.
Concluding the state court did not err in applying Batson, we reverse and
render judgment dismissing Pitchford’s habeas corpus petition.
Case: 23-70009          Document: 87-1       Page: 2   Date Filed: 01/02/2025




                                   No. 23-70009


                                        I.
          A Mississippi jury convicted Pitchford of capital murder in 2006 for
participating in an armed robbery during which the store owner, Reuben
Britt, was shot to death by Pitchford’s accomplice. Pitchford v. State, 

, 222–23 (Miss. 2010). Pitchford confessed to his role in the crime. 

.
          Because Pitchford’s habeas claim concerns juror selection, we recount
the relevant parts of voir dire. The trial court, without objection, narrowed
the pool of potential jurors to 36 white potential jurors and five black potential
jurors. 

 Pitchford used all 12 of his peremptory strikes on white potential
jurors, while the State used three peremptory strikes on white potential jurors
and four on black potential jurors. 

 Pitchford’s counsel objected to the
strikes of potential black jurors under Batson. Counsel argued that “this is
already a disproportionally white jury for the population of this county,” and
that the strikes were “a pattern of disproportionately challenging African-
American jurors.”
          The court ruled that Pitchford made a prima facie showing of
discrimination and required the State to give race-neutral reasons for the
strikes. Pitchford, 

. The State provided these reasons:
(1) Carlos Ward had “no opinion” on the death penalty, had several speeding
violations, and shared similarities with Pitchford such as age and marital
status; (2) Linda Lee had “mental problems” (according to the police chief),
police had been dispatched repeatedly to her home, and she was late
returning to voir dire; (3) Christopher Tillmon had a brother convicted of a
similar offense (manslaughter); and (4) Patricia Tidwell was a known drug
user, and her brother had been convicted of battery in the same court and was
currently facing charges in a shooting case in that county. 

 at 226–27.




                                        2
Case: 23-70009         Document: 87-1         Page: 3     Date Filed: 01/02/2025




                                    No. 23-70009


       The court accepted these reasons and proceeded with juror selection.

; Pitchford’s counsel did not object or make further argument
challenging the State’s reasons for the strikes.
       After the jury was selected, Pitchford’s counsel—Ms. Steiner and Mr.
Baum—asked to approach the bench and the following colloquy occurred:
   MS. STEINER: At some point the defense is going to want to reserve
                both its Batson objection and a straight for Tenth
                Amendment [sic] racial discrimination. 1
   THE COURT: You have already made it in the record so I am of the
              opinion it is in the record.
   MS. STEINER: I don’t want to let the paneling of the jury go by
                without having those objections.
   THE COURT: I think you already made those, and they are clear in
              the record. For the reasons previously stated, first
              the Court finds there to be no—well, all the reasons
              were race neutral as to members that were struck by
              the district attorney’s office. And so the, the Court
              finds there to be no Batson violation. And then as to
              the other issues, the Court has already ruled that
              based on prior rulings from the United States
              Supreme Court and the State of Mississippi that jury
              selection was appropriate. As I say, they are noted
              for the record.
   MS. STEINER: Allow us to state into the record there is one of 12—
                of fourteen jurors, are non-white, whereas this
                county is approximately, what, 40 percent?
   MR. BAUM:           The county is 40 percent black.


       _____________________
       1
        The latter half of this sentence appears to have been erroneously transcribed.
However, that does not affect our analysis.




                                          3
 Case: 23-70009         Document: 87-1         Page: 4      Date Filed: 01/02/2025




                                     No. 23-70009


    THE COURT: I don’t know about the racial makeup, but I will note
               for the record there is one regular member of the
               panel that is black, African-American race.
    MS. STEINER: And only one.
    THE COURT: Right. There is one period.
    MS. STEINER: Right. Thank you.
        The jury ultimately found Pitchford guilty and subsequently
sentenced him to death. Pitchford, 

.
        Pitchford appealed his conviction and sentence to the Mississippi
Supreme Court. With respect to his Batson challenge, Pitchford argued that
a comparative juror analysis revealed the State’s proferred race-neutral
reasons to be pretextual. See 

 (recounting Pitchford’s argument
“that some of the reasons the State proffered for its strikes of blacks were
also true of whites the State did not strike”). The Mississippi Supreme Court
ruled, however, that Pitchford “did not present these arguments to the trial
court during the voir dire process or during post-trial motions.” 

Accordingly, the court concluded no Batson violation had occurred because
“Pitchford provided the trial court no rebuttal to the State’s race-neutral
reasons.” 

 2
        After exhausting his state court remedies, Pitchford filed this habeas
corpus petition in federal district court, again raising his Batson claim. The
district court granted Pitchford a writ of habeas corpus.
        The district court reasoned that the state trial court “seemingly failed
to conduct the third Batson inquiry,” in which a court determines whether
        _____________________
        2
          Pitchford also argued that “the totality of the circumstances show[ed] that the
State’s peremptory challenges were exercised in a discriminatory manner.” Pitchford, 

. But the Mississippi Supreme Court ruled this was simply Pitchford’s
“pretext argument in another package” and rejected it for the same reasons. 

                                           4
Case: 23-70009        Document: 87-1        Page: 5    Date Filed: 01/02/2025




                                  No. 23-70009


the defendant proved the State’s purposeful discrimination in striking jurors.
Pitchford v. Cain, 

, 624 (N.D. Miss. 2023); see Batson, 476
U.S. at 97–98. The court did acknowledge, though, that the trial court may
have “implicitly” done so. 

 The court also disagreed with the Mississippi
Supreme Court that Pitchford “waived” the pretext issue by failing to argue
it at voir dire. 

. To the contrary, the court found that Pitchford’s
counsel objected to the prosecutor’s reasons at the subsequent bench
conference. 

. The court then noted that it found the dissenting
Justice’s pretext analysis “persuasive” but “ma[de] no finding as to whether
it ultimately agree[d] with” it. 

 at 625–26; see Pitchford, 45 So. 3d at 264–
66 (Graves, P.J., dissenting). Finally, the court added that the Mississippi
Supreme Court should have also “examined” the history of Batson violations
by Pitchford’s prosecutor in the Flowers litigation. 

; see Flowers v.
Mississippi, 

 (2019). While not “dispositive,” the Flowers
litigation would have been “at the very least, informative.” 

       Based on this reasoning, the district court ruled that “the state courts’
rejection of Pitchford’s Batson claim was contrary to or an unreasonable
application of clearly established federal law.” 

 It ordered the State to
release or retry Pitchford within 180 days. Id. at 628.
       The State timely appealed, and the district court stayed its judgment
pending appeal.
                                      II.
       “In an appeal from a district court’s grant of habeas relief, we review
the court’s findings of fact for clear error and its conclusions of law de novo.”
Russell v. Denmark, 

 (5th Cir. 2023).




                                        5
 Case: 23-70009          Document: 87-1           Page: 6     Date Filed: 01/02/2025




                                      No. 23-70009


                                           III.
        Because this case is governed by the the Antiterrorism and Effective
Death Penalty Act (AEDPA), the district court was authorized to grant
Pitchford a writ of habeas corpus only if the Mississippi Supreme Court’s 3
“decision . . . was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” or “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.” 

(d)(1)–(2).
        This standard demands much more than state court error. See Burt v.
Titlow, 

 (2013) (holding that a state court decision “is not
unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance” (quoting Wood v. Allen, 

 (2010))). “[E]ven ‘clear error’ will not suffice.” White v. Woodall,

 (2014) (quoting Lockyer v. Andrade, 

, 75–76
(2003)). Rather, the state court must have made an “objectively
unreasonable” application of a Supreme Court “holding[ ].” 

 (citations
omitted). That is, its decision must be “‘so lacking in justification’ that the
error is ‘beyond any possibility for fairminded disagreement.’” Russell, 68
F.4th at 261–62 (quoting Harrington v. Richter, 

 (2011)).
Absent that kind of “extreme malfunction[ ]” in the state system, Brown, 596
U.S. at 133, the writ “shall not be granted.” 

(d).




        _____________________
        3
          Under AEDPA, federal courts review the last state court decision that
adjudicated the petitioner’s claim on the merits. See Brown v. Davenport, 

, 141–
42 (2022); Woodfox v. Cain, 

 (5th Cir. 2014). Here, that is the Mississippi
Supreme Court’s adjudication of Pitchford’s Batson claim.




                                             6
Case: 23-70009        Document: 87-1        Page: 7    Date Filed: 01/02/2025




                                  No. 23-70009


       On appeal, the State argues that the district court erred in granting the
writ for several reasons. We consider each in turn.
                                       A.
       First, the State argues the district court erred in finding the trial court
skipped Batson’s third step. We agree.
       Under the familiar Batson framework, (1) a defendant must make a
prima facie showing that a prosecutor made racially discriminatory strikes;
(2) if he does, the State must then present race-neutral reasons for the
strikes; and (3) the trial court must then determine whether the defendant
has proved purposeful discrimination. See Miller-El v. Dretke, 

 (2005) (“Miller-El II”) (citing Batson, 

, 98 n.20, 98).
“[T]he ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike.” Rice v. Collins, 

 (2006) (quoting Purkett v. Elem, 

 (1995)); see also
United States v. Bentley-Smith, 

 (5th Cir. 1993) (same).
       We agree with the State that the trial court did not omit Batson’s third
step. In finding otherwise, the district court appeared to reason that Batson
required the trial court to make explicit findings concerning the validity of
the State’s proferred race-neutral reasons. No Supreme Court holding
demands that, however.
       To the contrary, the Supreme Court has left Batson’s implementation
up to the discretion of trial courts. Batson itself “decline[d] . . . to formulate
particular procedures to be followed upon a defendant’s timely objection to
a prosecutor’s challenges.” 

; see also Ford v. Georgia, 

 (1991) (explaining that Batson “left it to the trial courts, with their
wide ‘variety of jury selection practices,’ to implement Batson in the first
instance” (citing Batson, 

 n.24)). In line with that, the Supreme




                                        7
 Case: 23-70009            Document: 87-1           Page: 8       Date Filed: 01/02/2025




                                         No. 23-70009


Court has never held that a court properly performs Batson’s third step only
by making explicit findings on pretext and discrimination.
        Indeed, our own precedent has “explicitly rejected [the]
requirement” that courts “make explicit factual findings during Batson’s
third step.” United States v. Ongaga, 

 (5th Cir. 2016) (citing
United States v. Thompson, 

, 300–01 (5th Cir. 2013)). 4 Rather, a
court “may make ‘implicit’ findings while performing the Batson analysis.”

 (quoting McDaniel, 436 F. App’x at 405 (unpublished) (collecting
cases)). The district court itself suggested this is exactly what occurred here.
“One could certainly argue,” the court remarked, that the trial court
“implicitly found” no discrimination when, at the subsequent bench
conference, the trial court announced that it “finds there to be no Batson
violation” and that “jury selection was appropriate.” 5
        Accordingly, we conclude that the trial court did not erroneously omit
Batson’s third step. It follows a fortiori that, by affirming the trial court’s
application of Batson, the Mississippi Supreme Court’s decision was not for
that reason “contrary to” or an “unreasonable application” of Batson.


        _____________________
        4
           See also United States v. Perry, 

, 331 (5th Cir. 2022) (rejecting
argument that “the trial court erred by failing to explicitly reach” step three and
recognizing as sufficient “an implicit finding . . . that the Government’s explanation was
credible”); United States v. McDaniel, 

, 405–06 (5th Cir. 2011) (per
curiam) (“[A] district court will not be reversed for failing to explicitly detail its findings at
each step in the Batson analysis, if we are convinced that the necessary determinations were
‘implicitly’ made.”).
        5
         The district court nonetheless suggested that “Pitchford was seemingly given no
chance to rebut the State’s explanations and prove purposeful discrimination.” The record
does not reflect that, however. The district court never cut off any request by Pitchford’s
counsel to object to the State’s proferred race-neutral reasons and, in fact, the court
allowed defense counsel to clarify their objections during a subsequent bench conference
they themselves requested.




                                                8
 Case: 23-70009          Document: 87-1         Page: 9       Date Filed: 01/02/2025




                                      No. 23-70009


                                           B.
        The State next argues the district court erred by finding that Pitchford
did not “waive” his pretext argument. As noted, the Mississippi Supreme
Court refused to consider Pitchford’s pretext arguments on the ground that
Pitchford “did not present these arguments to the trial court during the voir
dire process or during post-trial motions.” Pitchford, 

. We
again agree with the State.
        The Supreme Court has held that state courts may adopt rules
concerning when Batson challenges may be raised. See, e.g., Ford, 

 (holding “a state court may” “[u]ndoubtedly . . . adopt a general rule
that a Batson claim is untimely if it is raised for the first time on appeal, or
after the jury is sworn, or before its members are selected”). Moreover, we
have specifically held that a defendant’s failure to challenge a prosecutor’s
race-neutral explanation constitutes waiver. See, e.g., United States v. Arce,

 (5th Cir. 1993) (“By failing to dispute the prosecutor’s
short-term employment [Batson] explanation in the district court, defendants
have waived their right to object to it on appeal.”). 6
        Here, the Mississippi Supreme Court relied on an analogous rule in
refusing to consider Pitchford’s unraised pretext arguments. See Pitchford, 

 (relying on rule that, “[i]f the defendant fails to rebut [the
State’s race-neutral reasons], the trial judge must base his [or her] decision
on the reasons given by the State” (quoting Berry v. State, 

 (Miss. 2001))). The court also cited another of its decisions, Manning v.
State, 

 (Miss. 1999) (quotation omitted), which held that

        _____________________
        6
         See also United States v. Ceja, 

 (5th Cir. 2010) (per curiam)
(“[A] defendant waives objection to a peremptory challenge by failing to dispute the
prosecutor’s explanations.” (quotation omitted)).




                                            9
Case: 23-70009           Document: 87-1           Page: 10      Date Filed: 01/02/2025




                                       No. 23-70009


“[i]t is incumbent upon a defendant claiming that proffered reasons are
pretextual to raise the argument before the trial court. The failure to do so
constitutes waiver.”
        The district court did not rule that relying on such waiver principles
was an unreasonable application of (or even inconsistent with) Batson. Nor
could it have: no Supreme Court holding supports that view. The court
instead ruled that the Mississippi Supreme Court erred in its waiver analysis
because Pitchford sufficiently objected at the bench conference. But even
assuming the district court was correct, that would not entitle Pitchford to
habeas relief. It is well-settled that even an erroneous state ruling is not
enough to overcome AEDPA’s relitigation bar. 7
        In any case, the Mississippi Supreme Court’s waiver ruling was
correct. At the bench conference, Pitchford objected, not on the basis of
pretext or comparative juror analysis, but only on the ground that the county
was 40% black. That was not remotely sufficient to raise an objection to the
State’s race-neutral reasons. See, e.g., Arce, 

 (explaining that
“a defendant waives objection to a peremptory challenge by failing to dispute
the prosecutor’s explanations” (citing United States v. Rudas, 

 (2d Cir. 1990))). 8


        _____________________
        7
          See, e.g., White, 

 (Under AEDPA, “an unreasonable application
of [Supreme Court] holdings must be objectively unreasonable, not merely wrong; even
clear error will not suffice.” (cleaned up)); Williams v. Taylor, 

 (2000)
(Under AEDPA, “an unreasonable application of federal law is different from an incorrect
application of federal law.”).
        8
          Wright v. Harris County, 

 (5th Cir. 2008) (explaining that in
Arce, “the government offered two reasons for its strike, but defendants contested only one
of them,” and so, “[b]y failing to dispute the prosecutor’s . . . explanation in the district
court, defendants have waived their right to object to it on appeal”); Haynes v. Quarterman,

 (5th Cir. 2008) (explaining that a defendant may “acquiesce” in




                                             10
Case: 23-70009            Document: 87-1            Page: 11       Date Filed: 01/02/2025




                                         No. 23-70009


         Accordingly, the district court erred in concluding that Pitchford was
entitled to habeas relief on this ground.
                                               C.
        The State next argues that the district court erred by suggesting the
Mississippi courts were obliged to consider the “totality” of the facts bearing
on Pitchford’s pretext claims, including the facts in the Flowers litigation. We
agree with the State that the Mississippi courts did not err by refusing to
consider such facts, which were not argued by Pitchford during voir dire or
post-trial.
        Pitchford directs us to no Supreme Court holding that supports the
district court’s approach, and our own precedent squarely rejects it. As we
have explained, “it is not clearly established that habeas courts must, of their
own accord, uncover and resolve all facts and circumstances that may bear
on whether a peremptory strike was racially motivated when the strike’s
challenger has not identified those facts and circumstances.” Ramey v.
Lumpkin, 

 (5th Cir. 2021). Nor is there “any requirement that
a state court conduct a comparative juror analysis at all, let alone sua sponte.”
Chamberlin v. Fisher, 

 (5th Cir. 2018) (en banc). 9

        _____________________
proffered race-neutral reasons “[b]y failing to dispute the Government’s explanations” for
them (quoting Arce, 

)).
        9
            In a Rule 28(j) letter filed after oral argument, Pitchford cites cases supposedly
standing for the proposition that a litigant does not forfeit a comparative juror analysis by
failing to raise it at trial. See, e.g., Reed v. Quarterman, 

, 372–73 (5th Cir. 2009);
Woodward v. Epps, 

 (5th Cir. 2009). To the extent any of those cases
support that notion, however, they predate our en banc decision in Chamberlin, which held
that a state court need not conduct a comparative juror analysis where, as here, a litigant
fails to raise the argument at trial. See, e.g., Chamberlin, 885 F.3d at 838–39 (holding there
is no “new procedural rule that state courts must conduct comparative juror analysis when
evaluating a Batson claim”) (quoting McDaniels v. Kirkland, 

 (9th Cir.
2015) (Ikuta, J., concurring)).




                                               11
Case: 23-70009       Document: 87-1        Page: 12   Date Filed: 01/02/2025




                                 No. 23-70009


Accordingly, we have held that a state decision rejecting a Batson claim is not
unreasonable for failing to “consider[ ] the full panoply of facts and
circumstances,” when the petitioner “did not direct the state courts to what
he [later] assert[ed] are [the] relevant facts and circumstances.” Ramey, 

.
       Nor were the Mississippi courts required to consider the relevance of
the Flowers litigation. To begin with, Pitchford never raised this argument at
voir dire and so cannot rely on it now to impugn the state courts’ application
of Batson. Furthermore, the Supreme Court’s Flowers decision could not
have informed the analysis, because it was issued in 2019—nine years after
the Mississippi Supreme Court rejected Pitchford’s Batson claim. See
Williams, 

 (“The threshold question under AEDPA is
whether [the petitioner] seeks to apply a rule of law that was clearly
established at the time his state-court conviction became final.” (emphasis
added)). Moreover, to the extent the district court thought the Mississippi
courts should have considered the relevance of state-court decisions in
Flowers, those are irrelevant under AEDPA. See, e.g., Kernan v. Cuero, 

 (2017) (per curiam) (holding “state-court decisions” do “not
constitute ‘clearly established Federal law, as determined by the Supreme
Court’”).
       In sum, the Mississippi Supreme Court did not err by failing to
consider evidence of pretext or evidence from the Flowers litigation in
rejecting Pitchford’s Batson claim. A fortiori, the court’s decision was not
“contrary to” or an “unreasonable application” of Batson.




                                      12
Case: 23-70009             Document: 87-1          Page: 13      Date Filed: 01/02/2025




                                        No. 23-70009


                                             D.
        Finally,      to     the    extent         the   district    court      relied     on

(d)(2) in granting habeas relief, it erred. 10
        In a Batson case, a habeas petitioner can prevail under § 2254(d)(2) by
showing that “the trial court’s determination of the prosecutor’s neutrality
with respect to race was objectively unreasonable and has been rebutted by
clear and convincing evidence to the contrary.” Hoffman v. Cain, 

, 448–49 (5th Cir. 2014). “[W]e presume the [state] court’s factual
findings to be sound unless [the movant] rebuts the ‘presumption of
correctness by clear and convincing evidence.’” Miller-El II, 

(quoting 28 U.S.C. 2254(e)(1)). “A state trial court’s finding of the absence
of discriminatory intent is ‘a pure issue of fact’ that is accorded great
deference. . . .” Murphy v. Dretke, 

 (5th Cir. 2005) (quoting
Hernandez v. New York, 

, 364–65 (1991)). And, as explained
above, a court is not required to make factual findings on the record during
Batson step three. See Perry, 35 F.4th at 331 (explaining that “an implicit
finding by a trial court that the [prosecution’s] explanation was credible” is
sufficient).
        As discussed, the state trial court completed all three steps of Batson.
The judge ruled that Pitchford made a prima facie showing of discrimination,
the State provided race-neutral reasons, and the only objection Pitchford
eventually raised was that one of the 14 jurors was black “whereas this county
is approximately . . . 40 percent[.]” See Pitchford, 45 So. 3d at 225–26. The
trial judge heard that information, found that “all the reasons” given by the
State “were race neutral,” and stated that “the Court finds there to be no

        _____________________
        10
           Although the district court cited (d)(2) in passing, it is unclear whether the court
actually relied on that subsection in granting habeas.




                                              13
Case: 23-70009         Document: 87-1        Page: 14   Date Filed: 01/02/2025




                                 No. 23-70009


Batson violation.” The judge therefore ruled that Pitchford did not “prove
the existence of purposeful discrimination.” Batson, 

(quotation omitted).
       All the judge had available to weigh against the State’s race-neutral
reasons was Pitchford’s conclusory argument that 40% of the county was
black and his contention that Miller-El II “reversed a conviction” where the
prosecution “left either one or two black jurors on the venire.” See Miller-El
II, 

. It was not clearly unreasonable for the judge to find that
such bare assertions failed to overcome the State’s race-neutral reasons.
       As for the Mississippi Supreme Court, it acted reasonably in not
considering Pitchford’s pretext arguments because its “‘[p]recedent
mandates that [it] not entertain arguments made for the first time on appeal
as the case must be decided on the facts contained in the record and not on
assertions in the briefs.’” In re Adoption of Minor Child, 

(Miss. 2006) (quoting Chantey Music Pub., Inc. v. Malaco, Inc., 

 (Miss. 2005)); see also Manning, 

 (holding that
“[i]t is incumbent upon a defendant claiming that proffered reasons are
pretextual to raise the argument before the trial court” and that “[t]he failure
to do so constitutes waiver” (quotation omitted)).
       In sum, we conclude that Pitchford was not entitled to habeas corpus
relief under 

(d)(2).
                                      IV.
       We REVERSE the judgment granting Pitchford a writ of habeas
corpus and RENDER judgment dismissing Pitchford’s petition.




                                        14