MILLER-EL v. COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

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MILLER-EL v. COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 01–7662. Argued October 16, 2002—Decided February 25, 2003
When Dallas County prosecutors used peremptory strikes to exclude 10
of the 11 African-Americans eligible to serve on the jury at petitioner’s
capital murder trial, he moved to strike the jury on the ground that the
exclusions violated equal protection. Petitioner presented extensive
evidence supporting his motion at a pretrial hearing, but the trial judge
denied relief, finding no evidence indicating a systematic exclusion of
blacks, as was required by the then-controlling precedent, Swain v. Ala-
bama, 380 U. S. 202. Subsequently, the jury found petitioner guilty,
and he was sentenced to death. While his appeal was pending, this
Court established, in Batson v. Kentucky, 476 U. S. 79, a three-part
process for evaluating equal protection claims such as petitioner’s.
Upon remand from the Texas Court of Criminal Appeals for new find-
ings in light of Batson, the original trial court held a hearing at which
it admitted all the Swain hearing evidence and took further evidence,
but concluded that petitioner failed to satisfy step one of Batson because
the evidence did not even raise an inference of racial motivation in the
State’s use of peremptory challenges. The court also determined that
the State would have prevailed on steps two and three because the
prosecutors had proffered credible, race-neutral explanations for the
African-Americans excluded—i. e., their reluctance to assess, or reser-
vations concerning, imposition of the death penalty—such that peti-
tioner could not prove purposeful discrimination. After petitioner’s di-
rect appeal and state habeas petitions were denied, he filed a federal
habeas petition under 28 U. S. C. § 2254, raising a Batson claim and other
issues. The Federal District Court denied relief in deference to the
state courts’ acceptance of the prosecutors’ race-neutral justifications
for striking the potential jurors, and subsequently denied petitioner’s
§ 2253 application for a certificate of appealability (COA). The Fifth
Circuit noted that a COA will issue “only if the applicant has made a
substantial showing of the denial of a constitutional right,” § 2253(c)(2);
reasoned that a petitioner must make such a “substantial showing”
under the standard set forth in Slack v. McDaniel, 529 U. S. 473; de-

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clared that § 2254(d)(2) required it to presume state-court findings cor-
rect unless it determined that the findings would result in a decision
which was unreasonable in light of clear and convincing evidence; and
applied this framework to deny petitioner a COA.
Petitioner’s extensive evidence concerning the jury selection proce-
dures falls into two broad categories. First, he presented, at the pre-
trial Swain hearing, testimony and other evidence relating to a pattern
and practice of race discrimination in the voir dire by the Dallas County
District Attorney’s Office, including a 1976 policy by that office to ex-
clude minorities from jury service that was available at least to one of
petitioner’s prosecutors. Second, two years later, petitioner presented,
to the same state trial court, evidence that directly related to the prose-
cutors’ conduct in his case, including a comparative analysis of the ve-
nire members demonstrating that African-Americans were excluded
from petitioner’s jury in a ratio significantly higher than Caucasians;
evidence that, during voir dire, the prosecution questioned venire mem-
bers in a racially disparate fashion as to their death penalty views, their
willingness to serve on a capital case, and their willingness to impose
the minimum sentence for murder, and that responses disclosing reluc-
tance or hesitation to impose capital punishment or a minimum sentence
were cited as a justification for striking potential jurors; and the prose-
cution’s use of a Texas criminal procedure practice known as “jury shuf-
fling” to assure that white venire members were selected in preference
to African-Americans.
Held: The Fifth Circuit should have issued a COA to review the District
Court’s denial of habeas relief to petitioner. Pp. 335–348.
(a) Before a prisoner seeking postconviction relief under § 2254 may
appeal a district court’s denial or dismissal of the petition, he must first
seek and obtain a COA from a circuit justice or judge, § 2253. This is
a jurisdictional prerequisite. A COA will issue only if § 2253’s require-
ments have been satisfied. When a habeas applicant seeks a COA, the
court of appeals should limit its examination to a threshold inquiry into
the underlying merit of his claims. E. g., Slack, 529 U. S., at 481. This
inquiry does not require full consideration of the factual or legal bases
supporting the claims. Consistent with this Court’s precedent and the
statutory text, the prisoner need only demonstrate “a substantial show-
ing of the denial of a constitutional right.” § 2253(c)(2). He satisfies
this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his case or that the issues pre-
sented were adequate to deserve encouragement to proceed further.
E. g., id., at 484. He need not convince a judge, or, for that matter,
three judges, that he will prevail, but must demonstrate that reasonable

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jurists would find the district court’s assessment of the constitutional
claims debatable or wrong, ibid. Pp. 335–338.
(b) Since petitioner’s claim rests on a Batson violation, resolution of
his COA application requires a preliminary, though not definitive, con-
sideration of the three-step Batson framework. The State now con-
cedes that petitioner satisfied step one, and petitioner acknowledges
that the State proceeded through step two by proffering facially race-
neutral explanations for these strikes. The critical question in de-
termining whether a prisoner has proved purposeful discrimination at
step three is the persuasiveness of the prosecutor’s justification for his
peremptory strike. E. g., Purkett v. Elem, 514 U. S. 765, 768 (per
curiam). The issue comes down to whether the trial court finds the
prosecutor’s race-neutral explanations to be credible. Credibility can
be measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial strat-
egy. A plurality of this Court has concluded in the direct review con-
text that a state court’s finding of the absence of discriminatory intent
is “a pure issue of fact” that is accorded significant deference and will
not be overturned unless clearly erroneous. Hernandez v. New York,
500 U. S. 352, 364–365. Where 28 U. S. C. § 2254 applies, the Court’s
habeas jurisprudence embodies this deference. Factual determinations
by state courts are presumed correct absent clear and convincing evi-
dence to the contrary, § 2254(e)(1), and a decision adjudicated on the
merits in a state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable in light
of the evidence presented in the state-court proceeding, § 2254(d)(2).
Even in the context of federal habeas, deference does not imply aban-
donment or abdication of judicial review. In the context of the thresh-
old examination in this Batson claim, it can suffice to support the issu-
ance of a COA to adduce evidence demonstrating that, despite the
neutral explanation of the prosecution, the peremptory strikes in the
final analysis were race based. Cf. Reeves v. Sanderson Plumbing
Products, Inc., 530 U. S. 133. Pp. 338–341.
(c) On review of the record at this stage, this Court concludes that the
District Court did not give full consideration to the substantial evidence
petitioner put forth in support of the prima facie case. Instead, it ac-
cepted without question the state court’s evaluation of the demeanor
of the prosecutors and jurors in petitioner’s trial. The Fifth Circuit
evaluated petitioner’s COA application in the same way. In ruling that
petitioner’s claim lacked sufficient merit to justify appellate proceedings,
that court recited the requirements for granting a writ under § 2254,

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which it interpreted as requiring petitioner to prove that the state-court
decision was objectively unreasonable by clear and convincing evidence.
This was too demanding a standard because it incorrectly merged the
clear and convincing evidence standard of § 2254(e)(1), which pertains
only to state-court determinations of factual issues, rather than deci-
sions, and the unreasonableness requirement of § 2254(d)(2), which re-
lates to the state-court decision and applies to the granting of habeas
relief. More fundamentally, the court was incorrect in not inquiring
whether a “substantial showing of the denial of a constitutional right”
had been proved, as § 2253(c)(2) requires. The question is the debata-
bility of the underlying constitutional claim, not the resolution of that
debate. In this case, debate as to whether the prosecution acted with
a race-based reason when striking prospective jurors was raised by the
statistical evidence demonstrating that 91% of the eligible African-
Americans were excluded from petitioner’s venire; by the fact that the
state trial court had no occasion to judge the credibility of the prosecu-
tors’ contemporaneous race-neutral justifications at the time of the pre-
trial hearing because the Court’s equal protection jurisprudence then,
dictated by Swain, did not require it; by the fact that three of the State’s
proffered race-neutral rationales for striking African-Americans—am-
bivalence about the death penalty, hesitancy to vote to execute defend-
ants capable of being rehabilitated, and the jurors’ own family history
of criminality—pertained just as well to some white jurors who were
not challenged and who did serve on the jury; by the evidence of the
State’s use of racially disparate questioning; and by the state courts’
failure to consider the evidence as to the prosecution’s use of the jury
shuffle and the historical evidence of racial discrimination by the Dallas
County District Attorney’s Office. Pp. 341–348.
261 F. 3d 445, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Scalia, Souter, Ginsburg, and Breyer,
JJ., joined. Scalia, J., filed a concurring opinion, post, p. 348. Thomas,
J., filed a dissenting opinion, post, p. 354.
Seth P. Waxman argued the cause for petitioner. With
him on the briefs were David W. Ogden, Robin A. Lenhardt,
Jim Marcus, and Andrew Hammel.
Gena Bunn, Assistant Attorney General of Texas, argued
the cause for respondent. With her on the brief were John
Cornyn, Attorney General, Howard G. Baldwin, Jr., First
Assistant Attorney General, Michael T. McCaul, Deputy

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Attorney General, and Edward L. Marshall, Charles A.
Palmer, and Deni S. Garcia, Assistant Attorneys General.*
Justice Kennedy delivered the opinion of the Court.
In this case we once again examine when a state prisoner
can appeal the denial or dismissal of his petition for writ of
habeas corpus. In 1986 two Dallas County assistant district
attorneys used peremptory strikes to exclude 10 of the 11
African-Americans eligible to serve on the jury which tried
petitioner Thomas Joe Miller-El. During the ensuing 17
years, petitioner has been unsuccessful in establishing, in
either state or federal court, that his conviction and death
sentence must be vacated because the jury selection proce-
dures violated the Equal Protection Clause and our holding
in Batson v. Kentucky, 476 U. S. 79 (1986). The claim now
arises in a federal petition for writ of habeas corpus. The
procedures and standards applicable in the case are con-
trolled by the habeas corpus statute codified at Title 28,
chapter 153, of the United States Code, most recently
amended in a substantial manner by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). In the in-
terest of finality AEDPA constrains a federal court’s power
to disturb state-court convictions.
The United States District Court for the Northern Dis-
trict of Texas, after reviewing the evidence before the state
trial court, determined that petitioner failed to establish
a constitutional violation warranting habeas relief. The
Court of Appeals for the Fifth Circuit, concluding there was
insufficient merit to the case, denied a certificate of appeal-
*Briefs of amici curiae urging reversal were filed for Former Prosecu-
tors and Judges by Elisabeth Semel, Charles D. Weisselberg, and Carter
G. Phillips; and for the NAACP Legal Defense and Educational Fund,
Inc., et al. by Elaine R. Jones, Norman J. Chachkin, James L. Cott, George
Kendall, Deborah Fins, and Miriam Gohara.

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ability (COA) from the District Court’s determination. The
COA denial is the subject of our decision.
At issue here are the standards AEDPA imposes before
a court of appeals may issue a COA to review a denial of
habeas relief in the district court. Congress mandates that
a prisoner seeking postconviction relief under 28 U. S. C.
§ 2254 has no automatic right to appeal a district court’s de-
nial or dismissal of the petition. Instead, petitioner must
first seek and obtain a COA. In resolving this case we de-
cide again that when a habeas applicant seeks permission to
initiate appellate review of the dismissal of his petition, the
court of appeals should limit its examination to a threshold
inquiry into the underlying merit of his claims. Slack v.
McDaniel, 529 U. S. 473, 481 (2000). Consistent with our
prior precedent and the text of the habeas corpus statute,
we reiterate that a prisoner seeking a COA need only dem-
onstrate “a substantial showing of the denial of a constitu-
tional right.” 28 U. S. C. § 2253(c)(2). A petitioner satisfies
this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitu-
tional claims or that jurists could conclude the issues pre-
sented are adequate to deserve encouragement to proceed
further. Slack, supra, at 484. Applying these principles
to petitioner’s application, we conclude a COA should have
issued.
I
A
Petitioner, his wife Dorothy Miller-El, and one Kenneth
Flowers robbed a Holiday Inn in Dallas, Texas. They emp-
tied the cash drawers and ordered two employees, Doug
Walker and Donald Hall, to lie on the floor. Walker and Hall
were gagged with strips of fabric, and their hands and feet
were bound. Petitioner asked Flowers if he was going to
kill Walker and Hall. When Flowers hesitated or refused,

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petitioner shot Walker twice in the back and shot Hall in the
side. Walker died from his wounds.
The State indicted petitioner for capital murder. He
pleaded not guilty, and jury selection took place during five
weeks in February and March 1986. When voir dire had
been concluded, petitioner moved to strike the jury on the
grounds that the prosecution had violated the Equal Protec-
tion Clause of the Fourteenth Amendment by excluding
African-Americans through the use of peremptory chal-
lenges. Petitioner’s trial occurred before our decision in
Batson, supra, and Swain v. Alabama, 380 U. S. 202 (1965),
was then the controlling precedent. As Swain required,
petitioner sought to show that the prosecution’s conduct was
part of a larger pattern of discrimination aimed at excluding
African-Americans from jury service. In a pretrial hearing
held on March 12, 1986, petitioner presented extensive evi-
dence in support of his motion. The trial judge, however,
found “no evidence . . . that indicated any systematic exclu-
sion of blacks as a matter of policy by the District Attorney’s
office; while it may have been done by individual prosecutors
in individual cases.” App. 813. The state court then de-
nied petitioner’s motion to strike the jury. Ibid. Twelve
days later, the jury found petitioner guilty; and the trial
court sentenced him to death.
Petitioner appealed to the Texas Court of Criminal Ap-
peals. While the appeal was pending, on April 30, 1986, the
Court decided Batson v. Kentucky and established its three-
part process for evaluating claims that a prosecutor used
peremptory challenges in violation of the Equal Protection
Clause. First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the basis
of race. 476 U. S., at 96–97. Second, if that showing has
been made, the prosecution must offer a race-neutral basis
for striking the juror in question. Id., at 97–98. Third, in
light of the parties’ submissions, the trial court must deter-

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mine whether the defendant has shown purposeful discrimi-
nation. Id., at 98.
After acknowledging petitioner had established an infer-
ence of purposeful discrimination, the Texas Court of Crimi-
nal Appeals remanded the case for new findings in light of
Batson. Miller-El v. State, 748 S. W. 2d 459 (1988). A
post-trial hearing was held on May 10, 1988 (a little over two
years after petitioner’s jury had been empaneled). There,
the original trial court admitted all the evidence presented
at the Swain hearing and further evidence and testimony
from the attorneys in the original trial. App. 843–844.
On January 13, 1989, the trial court concluded that peti-
tioner’s evidence failed to satisfy step one of Batson because
it “did not even raise an inference of racial motivation in
the use of the state’s peremptory challenges” to support a
prima facie case. App. 876. Notwithstanding this conclu-
sion, the state court determined that the State would have
prevailed on steps two and three because the prosecutors
had offered credible, race-neutral explanations for each
African-American excluded. The court further found “no
disparate prosecutorial examination of any of the veniremen
in question” and “that the primary reasons for the exercise
of the challenges against each of the veniremen in question
[was] their reluctance to assess or reservations concerning
the imposition of the death penalty.” Id., at 878. There
was no discussion of petitioner’s other evidence.
The Texas Court of Criminal Appeals denied petitioner’s
appeal, and we denied certiorari. Miller-El v. Texas, 510
U. S. 831 (1993). Petitioner’s state habeas proceedings fared
no better, and he was denied relief by the Texas Court of
Criminal Appeals.
Petitioner filed a petition for writ of habeas corpus in Fed-
eral District Court pursuant to 28 U. S. C. § 2254. Although
petitioner raised four issues, we concern ourselves here with
only petitioner’s jury selection claim premised on Batson.
The Federal Magistrate Judge who considered the merits

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was troubled by some of the evidence adduced in the state-
court proceedings. He, nevertheless, recommended, in def-
erence to the state courts’ acceptance of the prosecutors’
race-neutral justifications for striking the potential jurors,
that petitioner be denied relief. The United States District
Court adopted the recommendation. Pursuant to § 2253,
petitioner sought a COA from the District Court, and the
application was denied. Petitioner renewed his request to
the Court of Appeals for the Fifth Circuit, and it also denied
the COA.
The Court of Appeals noted that, under controlling habeas
principles, a COA will issue “ ‘only if the applicant has made
a substantial showing of the denial of a constitutional right.’ ”
Miller-El v. Johnson, 261 F. 3d 445, 449 (2001) (quoting 28
U. S. C. § 2253(c)(2)). Citing our decision in Slack v. McDan-
iel, 529 U. S. 473 (2000), the court reasoned that “[a] peti-
tioner makes a ‘substantial showing’ when he demonstrates
that his petition involves issues which are debatable among
jurists of reason, that another court could resolve the issues
differently, or that the issues are adequate to deserve en-
couragement to proceed further.” 261 F. 3d, at 449. The
Court of Appeals also interjected the requirements of 28
U. S. C. § 2254 into the COA determination: “As an appellate
court reviewing a federal habeas petition, we are required
by § 2254(d)(2) to presume the state court findings correct
unless we determine that the findings result in a decision
which is unreasonable in light of the evidence presented.
And the unreasonableness, if any, must be established by
clear and convincing evidence. See 28 U. S. C. § 2254(e)(1).”
261 F. 3d, at 451.
Applying this framework to petitioner’s COA application,
the Court of Appeals concluded “that the state court’s find-
ings are not unreasonable and that Miller-El has failed to
present clear and convincing evidence to the contrary.” Id.,
at 452. As a consequence, the court “determined that the
state court’s adjudication neither resulted in a decision that

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was unreasonable in light of the evidence presented nor re-
sulted in a decision contrary to clearly established federal
law as determined by the Supreme Court,” ibid.; and it de-
nied petitioner’s request for a COA. We granted certiorari.
534 U. S. 1122 (2002).
B
While a COA ruling is not the occasion for a ruling on the
merit of petitioner’s claim, our determination to reverse the
Court of Appeals counsels us to explain in some detail the
extensive evidence concerning the jury selection procedures.
Petitioner’s evidence falls into two broad categories. First,
he presented to the state trial court, at a pretrial Swain
hearing, evidence relating to a pattern and practice of race
discrimination in the voir dire. Second, two years later, he
presented, to the same state court, evidence that directly
related to the conduct of the prosecutors in his case. We
discuss the latter first.
A comparative analysis of the venire members demon-
strates that African-Americans were excluded from petition-
er’s jury in a ratio significantly higher than Caucasians were.
Of the 108 possible jurors reviewed by the prosecution and
defense, 20 were African-American. Nine of them were ex-
cused for cause or by agreement of the parties. Of the 11
African-American jurors remaining, however, all but 1 were
excluded by peremptory strikes exercised by the prosecu-
tors. On this basis 91% of the eligible black jurors were
removed by peremptory strikes. In contrast the prosecu-
tors used their peremptory strikes against just 13% (4 out of
31) of the eligible nonblack prospective jurors qualified to
serve on petitioner’s jury.
These numbers, while relevant, are not petitioner’s whole
case. During voir dire, the prosecution questioned venire
members as to their views concerning the death penalty and
their willingness to serve on a capital case. Responses that
disclosed reluctance or hesitation to impose capital punish-
ment were cited as a justification for striking a potential

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juror for cause or by peremptory challenge. Wainwright v.
Witt, 469 U. S. 412 (1985). The evidence suggests, however,
that the manner in which members of the venire were ques-
tioned varied by race. To the extent a divergence in re-
sponses can be attributed to the racially disparate mode of
examination, it is relevant to our inquiry.
Most African-Americans (53%, or 8 out of 15) were first
given a detailed description of the mechanics of an execution
in Texas:
“[I]f those three [sentencing] questions are answered
yes, at some point[,] Thomas Joe Miller-El will be taken
to Huntsville, Texas. He will be placed on death row
and at some time will be taken to the death house where
he will be strapped on a gurney, an IV put into his arm
and he will be injected with a substance that will cause
his death . . . as the result of the verdict in this case if
those three questions are answered yes.” App. 215.
Only then were these African-American venire members
asked whether they could render a decision leading to a sen-
tence of death. Very few prospective white jurors (6%, or
3 out of 49) were given this preface prior to being asked for
their views on capital punishment. Rather, all but three
were questioned in vague terms: “Would you share with us
. . . your personal feelings, if you could, in your own words
how you do feel about the death penalty and capital punish-
ment and secondly, do you feel you could serve on this type
of a jury and actually render a decision that would result in
the death of the Defendant in this case based on the evi-
dence? ” Id., at 506.
There was an even more pronounced difference, on the ap-
parent basis of race, in the manner the prosecutors ques-
tioned members of the venire about their willingness to im-
pose the minimum sentence for murder. Under Texas law
at the time of petitioner’s trial, an unwillingness to do so
warranted removal for cause. Huffman v. State, 450 S. W.

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2d 858, 861 (Tex. Crim. App. 1970), vacated in part, 408 U. S.
936 (1972). This strategy normally is used by the defense
to weed out pro-state members of the venire, but, ironically,
the prosecution employed it here. The prosecutors first
identified the statutory minimum sentence of five years’ im-
prisonment to 34 out of 36 (94%) white venire members, and
only then asked: “If you hear a case, to your way of thinking
[that] calls for and warrants and justifies five years, you’ll
give it?” App. 509. In contrast, only one out of eight
(12.5%) African-American prospective jurors were informed
of the statutory minimum before being asked what minimum
sentence they would impose. The typical questioning of the
other seven black jurors was as follows:
“[Prosecutor]: Now, the maximum sentence for [murder]
. . . is life under the law. Can you give me an idea of
just your personal feelings what you feel a minimum
sentence should be for the offense of murder the way
I’ve set it out for you?
“[Juror]: Well, to me that’s almost like it’s premeditated.
But you said they don’t have a premeditated statute
here in Texas.
. . . . .
“[Prosecutor]: Again, we’re not talking about self-
defense or accident or insanity or killing in the heat of
passion or anything like that. We’re talking about the
knowing—
“[Juror]: I know you said the minimum. The minimum
amount that I would say would be at least twenty
years.” Id., at 226–227.
Furthermore, petitioner points to the prosecution’s use of
a Texas criminal procedure practice known as jury shuffling.
This practice permits parties to rearrange the order in which
members of the venire are examined so as to increase the
likelihood that visually preferable venire members will be
moved forward and empaneled. With no information about

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the prospective jurors other than their appearance, the party
requesting the procedure literally shuffles the juror cards,
and the venire members are then reseated in the new order.
Tex. Code Crim. Proc. Ann., Art. 35.11 (Vernon Supp. 2003).
Shuffling affects jury composition because any prospective
jurors not questioned during voir dire are dismissed at the
end of the week, and a new panel of jurors appears the fol-
lowing week. So jurors who are shuffled to the back of the
panel are less likely to be questioned or to serve.
On at least two occasions the prosecution requested shuf-
fles when there were a predominant number of African-
Americans in the front of the panel. On yet another oc-
casion the prosecutors complained about the purported
inadequacy of the card shuffle by a defense lawyer but lodged
a formal objection only after the postshuffle panel composi-
tion revealed that African-American prospective jurors had
been moved forward.
Next, we turn to the pattern and practice evidence ad-
duced at petitioner’s pretrial Swain hearing. Petitioner
subpoenaed a number of current and former Dallas County
assistant district attorneys, judges, and others who had ob-
served firsthand the prosecution’s conduct during jury selec-
tion over a number of years. Although most of the wit-
nesses denied the existence of a systematic policy to exclude
African-Americans, others disagreed. A Dallas County dis-
trict judge testified that, when he had served in the District
Attorney’s Office from the late-1950’s to early-1960’s, his su-
perior warned him that he would be fired if he permitted
any African-Americans to serve on a jury. Similarly, an-
other Dallas County district judge and former assistant dis-
trict attorney from 1976 to 1978 testified that he believed the
office had a systematic policy of excluding African-Americans
from juries.
Of more importance, the defense presented evidence that
the District Attorney’s Office had adopted a formal policy to
exclude minorities from jury service. A 1963 circular by the

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District Attorney’s Office instructed its prosecutors to exer-
cise peremptory strikes against minorities: “ ‘Do not take
Jews, Negroes, Dagos, Mexicans or a member of any minor-
ity race on a jury, no matter how rich or how well educated.’ ”
App. 710. A manual entitled “Jury Selection in a Criminal
Case” was distributed to prosecutors. It contained an arti-
cle authored by a former prosecutor (and later a judge) under
the direction of his superiors in the District Attorney’s Of-
fice, outlining the reasoning for excluding minorities from
jury service. Although the manual was written in 1968, it
remained in circulation until 1976, if not later, and was avail-
able at least to one of the prosecutors in Miller-El’s trial.
Id., at 749, 774, 783.
Some testimony casts doubt on the State’s claim that these
practices had been discontinued before petitioner’s trial.
For example, a judge testified that, in 1985, he had to exclude
a prosecutor from trying cases in his courtroom for race-
based discrimination in jury selection. Other testimony in-
dicated that the State, by its own admission, once requested
a jury shuffle in order to reduce the number of African-
Americans in the venire. Id., at 788. Concerns over the
exclusion of African-Americans by the District Attorney’s
Office were echoed by Dallas County’s Chief Public Defender.
This evidence had been presented by petitioner, in support
of his Batson claim, to the state and federal courts that de-
nied him relief. It is against this background that we exam-
ine whether petitioner’s case should be heard by the Court
of Appeals.
II
A
As mandated by federal statute, a state prisoner seeking
a writ of habeas corpus has no absolute entitlement to appeal
a district court’s denial of his petition. 28 U. S. C. § 2253.
Before an appeal may be entertained, a prisoner who was
denied habeas relief in the district court must first seek and

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obtain a COA from a circuit justice or judge. This is a juris-
dictional prerequisite because the COA statute mandates
that “[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals. . . .” § 2253(c)(1). As a result, until a COA has
been issued federal courts of appeals lack jurisdiction to rule
on the merits of appeals from habeas petitioners.
A COA will issue only if the requirements of § 2253 have
been satisfied. “The COA statute establishes procedural
rules and requires a threshold inquiry into whether the cir-
cuit court may entertain an appeal.” Slack, 529 U. S., at
482; Hohn v. United States, 524 U. S. 236, 248 (1998). As the
Court of Appeals observed in this case, § 2253(c) permits the
issuance of a COA only where a petitioner has made a “sub-
stantial showing of the denial of a constitutional right.” In
Slack, supra, at 483, we recognized that Congress codified
our standard, announced in Barefoot v. Estelle, 463 U. S. 880
(1983), for determining what constitutes the requisite show-
ing. Under the controlling standard, a petitioner must
“sho[w] that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been re-
solved in a different manner or that the issues presented
were ‘adequate to deserve encouragement to proceed fur-
ther.’ ” 529 U. S., at 484 (quoting Barefoot, supra, at 893,
n. 4).
The COA determination under § 2253(c) requires an over-
view of the claims in the habeas petition and a general as-
sessment of their merits. We look to the District Court’s
application of AEDPA to petitioner’s constitutional claims
and ask whether that resolution was debatable amongst ju-
rists of reason. This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support
of the claims. In fact, the statute forbids it. When a court
of appeals sidesteps this process by first deciding the merits
of an appeal, and then justifying its denial of a COA based

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on its adjudication of the actual merits, it is in essence decid-
ing an appeal without jurisdiction.
To that end, our opinion in Slack held that a COA does
not require a showing that the appeal will succeed. Accord-
ingly, a court of appeals should not decline the application
for a COA merely because it believes the applicant will not
demonstrate an entitlement to relief. The holding in Slack
would mean very little if appellate review were denied be-
cause the prisoner did not convince a judge, or, for that mat-
ter, three judges, that he or she would prevail. It is consist-
ent with § 2253 that a COA will issue in some instances
where there is no certainty of ultimate relief. After all,
when a COA is sought, the whole premise is that the prisoner
“ ‘has already failed in that endeavor.’ ” Barefoot, supra, at
893, n. 4.
Our holding should not be misconstrued as directing that
a COA always must issue. Statutes such as AEDPA have
placed more, rather than fewer, restrictions on the power of
federal courts to grant writs of habeas corpus to state
prisoners. Duncan v. Walker, 533 U. S. 167, 178 (2001)
(“ ‘AEDPA’s purpose [is] to further the principles of comity,
finality, and federalism’ ” (quoting Williams v. Taylor, 529
U. S. 420, 436 (2000))); Williams v. Taylor, 529 U. S. 362, 399
(2000) (opinion of O’Connor, J.). The concept of a threshold,
or gateway, test was not the innovation of AEDPA. Con-
gress established a threshold prerequisite to appealability in
1908, in large part because it was “concerned with the in-
creasing number of frivolous habeas corpus petitions chal-
lenging capital sentences which delayed execution pending
completion of the appellate process . . . .” Barefoot, supra,
at 892, n. 3. By enacting AEDPA, using the specific stand-
ards the Court had elaborated earlier for the threshold test,
Congress confirmed the necessity and the requirement of dif-
ferential treatment for those appeals deserving of attention
from those that plainly do not. It follows that issuance of a
COA must not be pro forma or a matter of course.

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A prisoner seeking a COA must prove “ ‘something more
than the absence of frivolity’ ” or the existence of mere “good
faith” on his or her part. Barefoot, supra, at 893. We do
not require petitioner to prove, before the issuance of a COA,
that some jurists would grant the petition for habeas corpus.
Indeed, a claim can be debatable even though every jurist of
reason might agree, after the COA has been granted and the
case has received full consideration, that petitioner will not
prevail. As we stated in Slack, “[w]here a district court has
rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The peti-
tioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.” 529 U. S., at 484.
B
Since Miller-El’s claim rests on a Batson violation, resolu-
tion of his COA application requires a preliminary, though
not definitive, consideration of the three-step framework
mandated by Batson and reaffirmed in our later precedents.
E. g., Purkett v. Elem, 514 U. S. 765 (1995) (per curiam);
Hernandez v. New York, 500 U. S. 352 (1991) (plurality opin-
ion). Contrary to the state trial court’s ruling on remand,
the State now concedes that petitioner, Miller-El, satisfied
step one: “[T]here is no dispute that Miller-El presented a
prima facie claim” that prosecutors used their peremptory
challenges to exclude venire members on the basis of race.
Brief for Respondent 32. Petitioner, for his part, acknowl-
edges that the State proceeded through step two by prof-
fering facially race-neutral explanations for these strikes.
Under Batson, then, the question remaining is step three:
whether Miller-El “has carried his burden of proving pur-
poseful discrimination.” Hernandez, supra, at 359.
As we confirmed in Purkett v. Elem, 514 U. S., at 768, the
critical question in determining whether a prisoner has
proved purposeful discrimination at step three is the persua-

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siveness of the prosecutor’s justification for his peremptory
strike. At this stage, “implausible or fantastic justifications
may (and probably will) be found to be pretexts for purpose-
ful discrimination.” Ibid. In that instance the issue comes
down to whether the trial court finds the prosecutor’s race-
neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s de-
meanor; by how reasonable, or how improbable, the explana-
tions are; and by whether the proffered rationale has some
basis in accepted trial strategy.
In Hernandez v. New York, a plurality of the Court con-
cluded that a state court’s finding of the absence of discrimi-
natory intent is “a pure issue of fact” accorded significant
deference:
“Deference to trial court findings on the issue of discrim-
inatory intent makes particular sense in this context be-
cause, as we noted in Batson, the finding ‘largely will
turn on evaluation of credibility.’ 476 U. S., at 98, n. 21.
In the typical peremptory challenge inquiry, the decisive
question will be whether counsel’s race-neutral explana-
tion for a peremptory challenge should be believed.
There will seldom be much evidence bearing on that
issue, and the best evidence often will be the demeanor
of the attorney who exercises the challenge. As with
the state of mind of a juror, evaluation of the prosecu-
tor’s state of mind based on demeanor and credibility
lies ‘peculiarly within a trial judge’s province.’ Wain-
wright v. Witt, 469 U. S. 412, 428 (1985), citing Patton v.
Yount, 467 U. S. 1025, 1038 (1984).” 500 U. S., at 365.
Deference is necessary because a reviewing court, which
analyzes only the transcripts from voir dire, is not as well
positioned as the trial court is to make credibility determina-
tions. “[I]f an appellate court accepts a trial court’s finding
that a prosecutor’s race-neutral explanation for his peremp-
tory challenges should be believed, we fail to see how the

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appellate court nevertheless could find discrimination. The
credibility of the prosecutor’s explanation goes to the heart
of the equal protection analysis, and once that has been set-
tled, there seems nothing left to review.” Id., at 367.
In the context of direct review, therefore, we have noted
that “the trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal” and will not be over-
turned unless clearly erroneous. Id., at 364. A federal
court’s collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system. Where 28 U. S. C. § 2254 applies, our habeas juris-
prudence embodies this deference. Factual determinations
by state courts are presumed correct absent clear and con-
vincing evidence to the contrary, § 2254(e)(1), and a decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the evi-
dence presented in the state-court proceeding, § 2254(d)(2);
see also Williams, 529 U. S., at 399 (opinion of O’Connor, J.).
Even in the context of federal habeas, deference does not
imply abandonment or abdication of judicial review. Defer-
ence does not by definition preclude relief. A federal court
can disagree with a state court’s credibility determination
and, when guided by AEDPA, conclude the decision was un-
reasonable or that the factual premise was incorrect by clear
and convincing evidence. In the context of the threshold ex-
amination in this Batson claim the issuance of a COA can
be supported by any evidence demonstrating that, despite
the neutral explanation of the prosecution, the peremptory
strikes in the final analysis were race based. It goes with-
out saying that this includes the facts and circumstances that
were adduced in support of the prima facie case. Cf. Reeves
v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000)
(in action under Title VII of the Civil Rights Act of 1964,
employee’s prima facie case and evidence that employer’s

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race-neutral response was a pretext can support a finding of
purposeful discrimination). Only after a COA is granted
will a reviewing court determine whether 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. At this stage,
however, we only ask whether the District Court’s applica-
tion of AEDPA deference, as stated in §§ 2254(d)(2) and
(e)(1), to petitioner’s Batson claim was debatable amongst
jurists of reason.
C
Applying these rules to Miller-El’s application, we have no
difficulty concluding that a COA should have issued. We
conclude, on our review of the record at this stage, that the
District Court did not give full consideration to the substan-
tial evidence petitioner put forth in support of the prima
facie case. Instead, it accepted without question the state
court’s evaluation of the demeanor of the prosecutors and
jurors in petitioner’s trial. The Court of Appeals evaluated
Miller-El’s application for a COA in the same way. In ruling
that petitioner’s claim lacked sufficient merit to justify appel-
late proceedings, the Court of Appeals recited the require-
ments for granting a writ under § 2254, which it interpreted
as requiring petitioner to prove that the state-court deci-
sion was objectively unreasonable by clear and convincing
evidence.
This was too demanding a standard on more than one level.
It was incorrect for the Court of Appeals, when looking
at the merits, to merge the independent requirements of
§§ 2254(d)(2) and (e)(1). AEDPA does not require petitioner
to prove that a decision is objectively unreasonable by clear
and convincing evidence. The clear and convincing evidence
standard is found in § 2254(e)(1), but that subsection pertains
only to state-court determinations of factual issues, rather
than decisions. Subsection (d)(2) contains the unreasonable

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requirement and applies to the granting of habeas relief
rather than to the granting of a COA.
The Court of Appeals, moreover, was incorrect for an even
more fundamental reason. Before the issuance of a COA,
the Court of Appeals had no jurisdiction to resolve the mer-
its of petitioner’s constitutional claims. True, to the extent
that the merits of this case will turn on the agreement or
disagreement with a state-court factual finding, the clear and
convincing evidence and objective unreasonableness stand-
ards will apply. At the COA stage, however, a court need
not make a definitive inquiry into this matter. As we have
said, a COA determination is a separate proceeding, one dis-
tinct from the underlying merits. Slack, 529 U. S., at 481;
Hohn, 524 U. S., at 241. The Court of Appeals should have
inquired whether a “substantial showing of the denial of a
constitutional right” had been proved. Deciding the sub-
stance of an appeal in what should only be a threshold in-
quiry undermines the concept of a COA. The question is
the debatability of the underlying constitutional claim, not
the resolution of that debate.
In this case, the statistical evidence alone raises some de-
bate as to whether the prosecution acted with a race-based
reason when striking prospective jurors. The prosecutors
used their peremptory strikes to exclude 91% of the eligible
African-American venire members, and only one served on
petitioner’s jury. In total, 10 of the prosecutors’ 14 peremp-
tory strikes were used against African-Americans. Hap-
penstance is unlikely to produce this disparity.
The case for debatability is not weakened when we exam-
ine the State’s defense of the disparate treatment. The
Court of Appeals held that “[t]he presumption of correctness
is especially strong, where, as here, the trial court and state
habeas court are one and the same.” 261 F. 3d, at 449. As
we have noted, the trial court held its Batson hearing two
years after the voir dire. While the prosecutors had prof-
fered contemporaneous race-neutral justifications for many

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of their peremptory strikes, the state trial court had no occa-
sion to judge the credibility of these explanations at that
time because our equal protection jurisprudence then, dic-
tated by Swain, did not require it. As a result, the evidence
presented to the trial court at the Batson hearing was sub-
ject to the usual risks of imprecision and distortion from the
passage of time.
In this case, three of the State’s proffered race-neutral ra-
tionales for striking African-American jurors pertained just
as well to some white jurors who were not challenged and
who did serve on the jury. The prosecutors explained that
their peremptory challenges against six African-American
potential jurors were based on ambivalence about the death
penalty; hesitancy to vote to execute defendants capable of
being rehabilitated; and the jurors’ own family history of
criminality. In rebuttal of the prosecution’s explanation,
petitioner identified two empaneled white jurors who ex-
pressed ambivalence about the death penalty in a manner
similar to their African-American counterparts who were the
subject of prosecutorial peremptory challenges. One indi-
cated that capital punishment was not appropriate for a first
offense, and another stated that it would be “difficult” to im-
pose a death sentence. Similarly, two white jurors ex-
pressed hesitation in sentencing to death a defendant who
might be rehabilitated; and four white jurors had family
members with criminal histories. As a consequence, even
though the prosecution’s reasons for striking African-
American members of the venire appear race neutral, the
application of these rationales to the venire might have been
selective and based on racial considerations. Whether a
comparative juror analysis would demonstrate the prosecu-
tors’ rationales to have been pretexts for discrimination is
an unnecessary determination at this stage, but the evidence
does make debatable the District Court’s conclusion that no
purposeful discrimination occurred.

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We question the Court of Appeals’ and state trial court’s
dismissive and strained interpretation of petitioner’s evi-
dence of disparate questioning. 261 F. 3d, at 452 (“The find-
ings of the state court that there was no disparate question-
ing of the Batson jurors . . . [is] fully supported by the
record”). Petitioner argues that the prosecutors’ sole pur-
pose in using disparate questioning was to elicit responses
from the African-American venire members that reflected an
opposition to the death penalty or an unwillingness to im-
pose a minimum sentence, either of which justified for-cause
challenges by the prosecution under the then-applicable
state law. This is more than a remote possibility. Dispar-
ate questioning did occur. Petitioner submits that disparate
questioning created the appearance of divergent opinions
even though the venire members’ views on the relevant sub-
ject might have been the same. It follows that, if the use of
disparate questioning is determined by race at the outset, it
is likely a justification for a strike based on the resulting
divergent views would be pretextual. In this context the
differences in the questions posed by the prosecutors are
some evidence of purposeful discrimination. Batson, 476
U. S., at 97 (“Similarly, the prosecutor’s questions and state-
ments during voir dire examination and in exercising his
challenges may support or refute an inference of discrimina-
tory purpose”).
As a preface to questions about views the prospective ju-
rors held on the death penalty, the prosecution in some in-
stances gave an explicit account of the execution process.
Of those prospective jurors who were asked their views on
capital punishment, the preface was used for 53% of the
African-Americans questioned on the issue but for just 6%
of white persons. The State explains the disparity by as-
serting that a disproportionate number of African-American
venire members expressed doubts as to the death penalty on
their juror questionnaires. This cannot be accepted without
further inquiry, however, for the State’s own evidence is in-

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consistent with that explanation. By the State’s calcula-
tions, 10 African-American and 10 white prospective jurors
expressed some hesitation about the death penalty on their
questionnaires; however, of that group, 7 out of 10 African-
Americans and only 2 out of 10 whites were given the ex-
plicit description.
There is an even greater disparity along racial lines when
we consider disparate questioning concerning minimum pun-
ishments. Ninety-four percent of whites were informed of
the statutory minimum sentence, compared to only twelve
and a half percent of African-Americans. No explanation is
proffered for the statistical disparity. Pierre v. Louisiana,
306 U. S. 354, 361–362 (1939) (“ ‘The fact that the testimony
. . . was not challenged by evidence appropriately direct, can-
not be brushed aside.’ Had there been evidence obtainable
to contradict and disprove the testimony offered by peti-
tioner, it cannot be assumed that the State would have re-
frained from introducing it” (quoting Norris v. Alabama, 294
U. S. 587, 594–595 (1935))). Indeed, while petitioner’s ap-
peal was pending before the Texas Court of Criminal Ap-
peals, that court found a Batson violation where this precise
line of disparate questioning on mandatory minimums was
employed by one of the same prosecutors who tried the in-
stant case. Chambers v. State, 784 S. W. 2d 29, 31 (Tex.
Crim. App. 1989). It follows, in our view, that a fair inter-
pretation of the record on this threshold examination in the
COA analysis is that the prosecutors designed their ques-
tions to elicit responses that would justify the removal of
African-Americans from the venire. Batson, supra, at 93
(“Circumstantial evidence of invidious intent may include
proof of disproportionate impact. . . . We have observed that
under some circumstances proof of discriminatory impact
‘may for all practical purposes demonstrate unconstitutional-
ity because in various circumstances the discrimination is
very difficult to explain on nonracial grounds’ ”).

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We agree with petitioner that the prosecution’s decision to
seek a jury shuffle when a predominant number of African-
Americans were seated in the front of the panel, along with
its decision to delay a formal objection to the defense’s shuf-
fle until after the new racial composition was revealed, raise
a suspicion that the State sought to exclude African-
Americans from the jury. Our concerns are amplified by the
fact that the state court also had before it, and apparently
ignored, testimony demonstrating that the Dallas County
District Attorney’s Office had, by its own admission, used
this process to manipulate the racial composition of the jury
in the past. App. 788 (noting that a prosecutor admitted to
requesting a jury shuffle “because a predominant number of
the first six, eight or ten jurors were blacks”). Even though
the practice of jury shuffling might not be denominated as a
Batson claim because it does not involve a peremptory chal-
lenge, the use of the practice here tends to erode the credibil-
ity of the prosecution’s assertion that race was not a motivat-
ing factor in the jury selection.
Finally, in our threshold examination, we accord some
weight to petitioner’s historical evidence of racial discrimina-
tion by the District Attorney’s Office. Evidence presented
at the Swain hearing indicates that African-Americans al-
most categorically were excluded from jury service. Bat-
son, supra, at 94 (“Proof of systematic exclusion from the
venire raises an inference of purposeful discrimination be-
cause the ‘result bespeaks discrimination’ ”); Vasquez v. Hil-
lery, 474 U. S. 254, 259 (1986) (“As early as 1942, this Court
rejected a contention that absence of blacks on the grand
jury was insufficient to support an inference of discrimina-
tion, summarily asserting that ‘chance or accident could
hardly have accounted for the continuous omission of negroes
from the grand jury lists for so long a period as sixteen years
or more’ ” (quoting Hill v. Texas, 316 U. S. 400, 404 (1942)));
Hernandez v. Texas, 347 U. S. 475, 482 (1954) (“But it taxes
our credulity to say that mere chance resulted in there being

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no members of this class among the over six thousand jurors
called in the past 25 years”). Only the Federal Magistrate
Judge addressed the import of this evidence in the context
of a Batson claim; and he found it both unexplained and dis-
turbing. Irrespective of whether the evidence could prove
sufficient to support a charge of systematic exclusion of
African-Americans, it reveals that the culture of the District
Attorney’s Office in the past was suffused with bias against
African-Americans in jury selection. This evidence, of
course, is relevant to the extent it casts doubt on the legiti-
macy of the motives underlying the State’s actions in peti-
tioner’s case. Even if we presume at this stage that the
prosecutors in Miller-El’s case were not part of this culture
of discrimination, the evidence suggests they were likely not
ignorant of it. Both prosecutors joined the District Attor-
ney’s Office when assistant district attorneys received formal
training in excluding minorities from juries. The supposi-
tion that race was a factor could be reinforced by the fact
that the prosecutors marked the race of each prospective
juror on their juror cards.
In resolving the equal protection claim against petitioner,
the state courts made no mention of either the jury shuffle
or the historical record of purposeful discrimination. We
adhere to the proposition that a state court need not make
detailed findings addressing all the evidence before it. This
failure, however, does not diminish its significance. Our
concerns here are heightened by the fact that, when pre-
sented with this evidence, the state trial court somehow rea-
soned that there was not even the inference of discrimination
to support a prima facie case. This was clear error, and the
State declines to defend this particular ruling. “If these
general assertions were accepted as rebutting a defendant’s
prima facie case, the Equal Protection Clause ‘would be but
a vain and illusory requirement.’ ” Batson, 476 U. S., at 98
(quoting Norris, 294 U. S., at 598).

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348 MILLER-EL v. COCKRELL
Scalia, J., concurring
To secure habeas relief, petitioner must demonstrate that
a state court’s finding of the absence of purposeful discrimi-
nation was incorrect by clear and convincing evidence, 28
U. S. C. § 2254(e)(1), and that the corresponding factual deter-
mination was “objectively unreasonable” in light of the rec-
ord before the court. The State represents to us that peti-
tioner will not be able to satisfy his burden. That may or
may not be the case. It is not, however, the question before
us. The COA inquiry asks only if the District Court’s deci-
sion was debatable. Our threshold examination convinces
us that it was.
The judgment of the Fifth Circuit is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, concurring.
I join the Court’s opinion, but write separately for two
reasons: First, to explain why I believe the Court’s willing-
ness to consider the Antiterrorism and Effective Death Pen-
alty Act of 1996’s (AEDPA) limits on habeas relief in decid-
ing whether to issue a certificate of appealability (COA) is in
accord with the text of 28 U. S. C. § 2253(c). Second, to dis-
cuss some of the evidence on the State’s side of the case—
which, though inadequate (as the Court holds) to make the
absence of a claimed violation of Batson v. Kentucky, 476
U. S. 79 (1986), undebatable, still makes this, in my view, a
very close case.
I
Many Court of Appeals decisions have denied applications
for a COA only after concluding that the applicant was not
entitled to habeas relief on the merits—without even analyz-
ing whether the applicant had made a substantial showing of
a denial of a constitutional right. See, e. g., Kasi v. Ange-
lone, 300 F. 3d 487 (CA4 2002); Wheat v. Johnson, 238 F. 3d

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349 Cite as: 537 U. S. 322 (2003)
Scalia, J., concurring
357 (CA5 2000).* The Court today disapproves this ap-
proach, which improperly resolves the merits of the appeal
during the COA stage. Ante, at 331, 335–338. Less clear
from the Court’s opinion, however, is why a “circuit justice
or judge,” in deciding whether to issue a COA, must “look
to the District Court’s application of AEDPA to [a ha-
beas petitioner’s] constitutional claims and ask whether that
resolution was debatable amongst jurists of reason.” Ante,
at 336 (emphasis added). How the district court applied
AEDPA has nothing to do with whether a COA applicant has
made “a substantial showing of the denial of a constitutional
right,” as required by 28 U. S. C. § 2253(c)(2), so the AEDPA
standard should seemingly have no role in the COA inquiry.
Section 2253(c)(2), however, provides that “[a] certificate of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
(Emphasis added.) A “substantial showing” does not enti-
tle an applicant to a COA; it is a necessary and not a suffi-
cient condition. Nothing in the text of § 2253(c)(2) prohibits
a circuit justice or judge from imposing additional require-
ments, and one such additional requirement has been ap-
proved by this Court. See Slack v. McDaniel, 529 U. S. 473,
484 (2000) (holding that a habeas petitioner seeking to appeal
a district court’s denial of habeas relief on procedural
grounds must not only make a substantial showing of the
denial of a constitutional right but also must demonstrate
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling).
The Court today imposes another additional requirement:
A circuit justice or judge must deny a COA, even when the
habeas petitioner has made a substantial showing that his
*In what can be regarded as a logical development from the error of
analyzing a request for a COA like a merits appeal, some courts have
simply allowed merits appeals to be taken without a COA—in flat contra-
vention of 28 U. S. C. § 2253(c)(1)(A). See, e. g., Bates v. Lee, 308 F. 3d 411
(CA4 2002).

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constitutional rights were violated, if all reasonable jurists
would conclude that a substantive provision of the federal
habeas statute bars relief. Ante, at 336. To give an exam-
ple, suppose a state prisoner presents a constitutional claim
that reasonable jurists might find debatable, but is unable to
find any “clearly established” Supreme Court precedent in
support of that claim (which was previously rejected on the
merits in state-court proceedings). Under the Court’s view,
a COA must be denied, even if the habeas petitioner satisfies
the “substantial showing of the denial of a constitutional
right” requirement of § 2253(c)(2), because all reasonable ju-
rists would agree that habeas relief is impossible to obtain
under § 2254(d). This approach is consonant with Slack, in
accord with the COA’s purpose of preventing meritless ha-
beas appeals, and compatible with the text of § 2253(c), which
does not make the “substantial showing of the denial of a
constitutional right” a sufficient condition for a COA.
II
In applying the Court’s COA standard to petitioner’s case,
we must ask whether petitioner has made a substantial
showing of a Batson violation and also whether reasonable
jurists could debate petitioner’s ability to obtain habeas re-
lief in light of AEDPA. The facts surrounding petitioner’s
Batson claims, when viewed in light of § 2254(e)(1)’s require-
ment that state-court factual determinations can be over-
come only by clear and convincing evidence to the contrary,
reveal this to be a close, rather than a clear, case for the
granting of a COA.
Petitioner maintains that the following six African-
American jurors were victims of racially motivated peremp-
tory strikes: Edwin Rand, Wayman Kennedy, Roderick Boze-
man, Billy Jean Fields, Joe Warren, and Carrol Boggess. As
to each of them, the State proffered race-neutral explana-
tions for its peremptory challenge. Five were challenged
primarily because of their views on imposing the death pen-

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351 Cite as: 537 U. S. 322 (2003)
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alty (Rand, Kennedy, Bozeman, Warren, and Boggess), and
one (Fields) was challenged because (among other reasons)
his brother had been convicted of drug offenses and served
time in prison. By asserting race-neutral reasons for the
challenges, the State satisfied step two of Batson. See Pur-
kett v. Elem, 514 U. S. 765, 767–768 (1995) (per curiam).
Unless petitioner can make a substantial showing that (i. e.,
a showing that reasonable jurists could debate whether) the
State fraudulently recited these explanations as pretext for
race discrimination, he has not satisfied the requirement of
§ 2253(c)(2). Moreover, because the state court entered a
finding of fact that the prosecution’s purported reasons for
exercising its peremptory challenges were not pretextual,
App. 878, a COA should not issue unless that finding can
reasonably be thought to be contradicted by clear and con-
vincing evidence. See § 2254(e)(1) (“[A] determination of a
factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evi-
dence”). Ante, at 336.
The weakness in petitioner’s Batson claims stems from
his difficulty in identifying any unchallenged white venire-
man similarly situated to the six aforementioned African-
American veniremen. Although petitioner claims that two
white veniremen, Sandra Hearn and Marie Mazza, expressed
views about the death penalty as ambivalent as those ex-
pressed by Rand, Kennedy, Bozeman, Warren, and Boggess,
the voir dire transcripts do not clearly bear that out. Al-
though Hearn initially stated that she thought the death pen-
alty was inappropriate for first-time offenders, she also said,
“I do not see any reason why I couldn’t sit on a jury when
you’re imposing a death penalty.” App. 694. She further
stated that someone who was an extreme child abuser de-
served the death penalty, whether or not it was a first-time
offense. Reply Brief for Petitioner 14a. Hearn also made
pro-prosecution statements about her distaste for criminal

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defendants’ use of psychiatric testimony to establish incom-
petency. Id., at 17a. As for Mazza, her stated views on the
death penalty were as follows: “It’s kind of hard determining
somebody’s life, whether they live or die, but I feel that is
something that is accepted in our courts now and it is some-
thing that—a decision that I think I could make one way or
the other.” App. 519.
Compare those statements with the sentiments expressed
by the challenged African-American veniremen. Kennedy
supported the death penalty only in cases of mass murder.
“Normally I wouldn’t say on just the average murder case—
I would say no, not the death sentence.” Id., at 216. Boze-
man supported the death penalty only “if there’s no possible
way to rehabilitate a person . . . I would say somebody men-
tally disturbed or something like that or say a Manson type
or something like that.” Id., at 79. When asked by the
prosecutors whether repeated criminal violent conduct
would indicate that a person was beyond rehabilitation,
Bozeman replied, “No, not really.” Ibid. Warren refused
to give any clear answer regarding his views on the death
penalty despite numerous questions from the prosecutors.
Id., at 139–140 (“Well, there again, it goes back to the situa-
tion, you know, sometimes”); id., at 140. When asked
whether the death penalty accomplishes anything, Warren
answered, “Yes and no. Sometimes I think it does and
sometimes I think it don’t [sic]. Sometimes you have mixed
feelings about things like that.” Ibid. When asked, “What
do you think it accomplishes when you feel it does?,” Warren
replied, “I don’t know.” Ibid. Boggess referred to the
death penalty as “murder,” id., at 197, and said, “whether or
not I could actually go through with murder—with killing
another person or taking another person’s life, I just don’t
know. I’d have trouble with that,” ibid. Rand is a closer
case. His most ambivalent statement was “Can I do this?
You know, right now I say I can, but tomorrow I might not.”
Id., at 161 (internal quotation marks omitted). Later on

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Rand did say that he could impose the death penalty as a
juror. Id., at 162–164. But Hearn and Mazza (the white
jurors who were seated) also said that they could sit on a
jury that imposed the death penalty. At most, petitioner
has shown that one of these African-American veniremen
(Rand) may have been no more ambivalent about the death
penalty than white jurors Hearn and Mazza. That perhaps
would have been enough to permit the state trial court, de-
ciding the issue de novo after observing the demeanor of the
prosecutors and the disputed jurors, to find a Batson vio-
lation. But in a federal habeas case, where a state court
has previously entered factfindings that the six African-
American jurors were not challenged because of their race,
petitioner must provide “clear and convincing evidence” that
the state court erred, and, when requesting a COA, must
demonstrate that jurists of reason could debate whether this
standard was satisfied. Ante, at 336.
Fields, the sixth African-American venireman who peti-
tioner claims was challenged because of his race, supported
capital punishment. However, his brother had several drug
convictions and had served time in prison. App. 124.
(Warren and Boggess, two of the African-American venire-
men previously discussed, also had relatives with criminal
convictions—Warren’s brother had been convicted of fraud
in relation to food stamps, id., at 153, and Boggess had testi-
fied as a defense witness at her nephew’s trial for theft, id.,
at 211, and reported in her questionnaire that some of her
cousins had problems with the law, Joint Lodging 43.) Of
the four white veniremen who petitioner claims also had rel-
atives with criminal histories and therefore “should have
been struck” by the prosecution—three (Noad Vickery,
Cheryl Davis, and Chatta Nix) were actually so pro-
prosecution that they were struck by the petitioner. Id., at
111. The fourth, Joan Weiner, had a son who had shoplifted
at the age of 10. App. 511. That is hardly comparable to
Fields’s situation, and Weiner was a strong State’s juror for

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Thomas, J., dissenting
other reasons: She had relatives who worked in law enforce-
ment, id., at 510, and her support for the death penalty was
clear and unequivocal, id., at 506, 511.
For the above reasons, my conclusion that there is room
for debate as to the merits of petitioner’s Batson claim is far
removed from a judgment that the State’s explanations for
its peremptory strikes were implausible.
* * *
With these observations, I join the Court’s opinion.
Justice Thomas, dissenting.
Unpersuaded by petitioner’s claims, the state trial court
found that “there was no purposeful discrimination by the
prosecut[ion] in the use of . . . peremptory strikes,” App. 878.
This finding established that petitioner had failed to carry
his burden at step three of the inquiry set out in Batson v.
Kentucky, 476 U. S. 79 (1986). Title 28 U. S. C. § 2254(e)(1)
requires that a federal habeas court “presum[e]” the state
court’s findings of fact “to be correct” unless petitioner
can rebut the presumption “by clear and convincing evi-
dence.” The majority decides, without explanation, to ig-
nore § 2254(e)(1)’s explicit command. I cannot. Because
petitioner has not shown, by clear and convincing evidence,
that any peremptory strikes of black veniremen were exer-
cised because of race, he does not merit a certificate of ap-
pealability (COA). I respectfully dissent.
I
A
The Court agrees, ante, at 342, that the state court’s find-
ing at step three of Batson is a finding of fact ordinarily
subject to § 2254(e)(1)’s presumption of correctness:
“In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual

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355 Cite as: 537 U. S. 322 (2003)
Thomas, J., dissenting
issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebut-
ting the presumption of correctness by clear and con-
vincing evidence.”
However, the Court implicitly rejects the obvious conclusion
that the COA determination under § 2253(c) is part of a “pro-
ceeding instituted by an application for a writ of habeas cor-
pus.” Instead of presuming the state court’s factfindings to
be correct, as § 2254(e)(1) requires, the Court holds that peti-
tioner need only show that reasonable jurists could disagree
as to whether he can provide clear and convincing evidence
that the finding was erroneous. Ante, at 341.
The Court’s main justification for this conclusion is sup-
posed fidelity to Slack v. McDaniel, 529 U. S. 473 (2000).
See ante, at 338 (“ ‘The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong’ ” (quoting
Slack, supra, at 484)). But neither Slack nor any other de-
cision of this Court addressing the COA procedure has ever
considered a “constitutional claim” that turns entirely on
issues of fact. In these circumstances, it is the text of
§ 2254(e)(1) that governs.
Unlike the majority, I begin with the plain text of the stat-
ute that instructs federal courts how to treat state-court
findings of fact. At issue is what constitutes a “proceeding”
for purposes of § 2254(e)(1). The word, “proceeding,” means
“[t]he regular and orderly progression of a lawsuit, including
all acts and events between the time of commencement and
the entry of judgment.” Black’s Law Dictionary 1221 (7th
ed. 1999) (emphasis added). The COA, “standing alone, . . .
does not assert a grievance against anyone, does not seek
remedy or redress for any legal injury, and does not even
require a ‘party’ on the other side. It is nothing more than
a request for permission to seek review.” Hohn v. United
States, 524 U. S. 236, 256 (1998) (Scalia, J., dissenting).

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I agree with the majority that the existence of a COA is a
jurisdictional prerequisite to the merits appeal. Ante, at
336. However, the Court takes a wrong turn when it im-
plies that the merits appeal is part of the habeas process (or
“proceeding”) but the COA determination somehow is not.
Overwhelming authority (including the majority opinion)
confirms that § 2254(e)(1) applies to the merits appeal. See
ante, at 342; Weaver v. Bowersox, 241 F. 3d 1024, 1030 (CA8
2001); Putman v. Head, 268 F. 3d 1223, 1241 (CA11 2001);
Johnson v. Gibson, 254 F. 3d 1155, 1160 (CA10 2001); Francis
S. v. Stone, 221 F. 3d 100, 114–115 (CA2 2000); Weeks v. Sny-
der, 219 F. 3d 245, 258 (CA3 2000); Mueller v. Angelone, 181
F. 3d 557, 575 (CA4 1999); Ashford v. Gilmore, 167 F. 3d 1130,
1131 (CA7 1999); cf. Sumner v. Mata, 449 U. S. 539, 546–547
(1981) (pre-Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) factual deference provision with virtually
identical language applies to merits appeal). The COA
determination should be treated no differently, because
§ 2254(e)(1) draws no distinction between the merits appeal
and the COA. The Court’s silent conclusion to the contrary
is simply illogical. The COA’s status as the jurisdictional
prerequisite for the merits appeal requires that both the
COA determination and the merits appeal be considered a
part of the same “proceeding.”
The Court’s rejection of this conclusion also conflicts with
pre-AEDPA practice. Prior to AEDPA, access to a merits
appeal in federal habeas corpus proceedings was governed
by a mechanism similar to the COA, known as a certificate
of probable cause, or CPC. See Slack, supra, at 480.
There was also a standard of factual deference similar to,
though weaker than, the standard in § 2254(e)(1). See 28
U. S. C. § 2254(d) (1994 ed.).1 Under these provisions (indis-
1 The pre-AEDPA standard of factual deference provided:
“In any proceeding instituted in a Federal court by an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of
a State court, a determination after a hearing on the merits of a factual

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Thomas, J., dissenting
tinguishable from AEDPA’s for these purposes), courts con-
cluded that § 2254(e)(1)’s predecessor applied directly to the
CPC proceeding, without any filtering through the “debata-
bility” standard the Court has used in both the CPC and
COA contexts. See, e. g., Barnard v. Collins, 13 F. 3d 871,
876–877 (CA5 1994); Cordova v. Collins, 953 F. 2d 167, 169
(CA5 1992). These cases support the straightforward notion
that § 2254(e)(1), like its predecessor did with respect to CPC
proceedings, applies directly to the COA proceeding.
The Court’s decision in Hohn, supra, which holds that the
COA determination constitutes a “case” in the court of ap-
peals for purposes of this Court’s jurisdiction under 28
U. S. C. § 1254, is not to the contrary. Hohn does not hold,
nor does its logic require, that the COA determination be
regarded as separate from the rest of the habeas proceeding.
In fact, Hohn rejected the proposition that “a request to pro-
ceed before a court of appeals should be regarded as a
threshold inquiry separate from the merits . . . .” 524 U. S.,
at 246 (emphasis added). Indeed, Hohn analogized the COA
to the filing of a notice of appeal, id., at 247, which in the
civil context all would consider to be part of the same “pro-
ceeding” (“instituted by” a complaint) as the trial and mer-
its appeal.
B
The Court also errs, albeit in dicta, when it implies that
delayed state factfinding—here the two years between voir
dire and the post-trial Batson hearing 2 —is an excuse for
issue, made by a State court of competent jurisdiction . . . shall be pre-
sumed to be correct, unless the applicant shall establish or it shall other-
wise appear, or the respondent shall admit [enumerated exceptions
omitted]. . . . And in an evidentiary hearing . . . the burden shall rest
upon the applicant to establish by convincing evidence that the factual
determination by the State court was erroneous.”
2 Not all the factfinding was so hindered. Prosecutors gave reasons for
2 of the 10 strikes of black veniremen at the post-trial Batson hearing.
One of those, Joe Warren, is at issue here. App. 856–860.

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weakened factual deference. Ante, at 342–343. Even put-
ting aside the fact that an appellate court on direct review
should (and would) still give heavy deference to 2-year-old
credibility findings,3 this reasoning is in tension with the
plain text of § 2254(e)(1) and ignores changes wrought by
AEDPA to the role of federal courts on collateral review.
Unlike an appellate court’s review of district court findings
of fact for clear error, § 2254(e)(1) establishes a presumption
of correctness. It requires that the federal habeas court as-
sume the state court that entered the findings was the best
placed factfinder with the most complete record and only
then ask whether the petitioner can refute that factual find-
ing by clear and convincing evidence. Procedural imperfec-
tions ordinarily will not affect this presumption; thus, it does
not matter whether the state judge made his decision two
years late or with a less-than-perfect record. Admittedly
these conditions might increase the odds that a habeas appli-
cant could locate helpful evidence, but to “presume” facts
“correct” means a court cannot allow a habeas applicant to
evade § 2254(e)(1) by attacking the process employed by the
state factfinder rather than the actual factfindings.
This reading is confirmed by the changes worked by
AEDPA. Section 2254(e)(1) does not, as its predecessor did,
create exceptions to factual deference for procedural infirm-
ities. For example, prior to AEDPA, a federal habeas court
3 I am puzzled by the majority’s willingness to hold against respondent
the failure of prosecutors to testify at the post-trial Batson hearing.
Petitioner could easily have requested that the reasons for the allegedly
unconstitutional peremptory strikes be given again, and did not. The at-
torney representing the State at the post-trial Batson hearing made cer-
tain that both trial prosecutors were present to reiterate the reasons they
gave in the record for striking the challenged black veniremen. App. 865.
Petitioner’s counsel explicitly refused the opportunity to do so when it
was offered. Ibid. Furthermore, I fail to understand why a move that
resulted in a more efficient hearing without redundant testimony should
redound to the benefit of petitioner, who bears the burden of proof in this
federal habeas corpus proceeding.

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would not defer to state-court determinations of fact if “the
factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing,” 28 U. S. C.
§ 2254(d)(2) (1994 ed.), “the material facts were not ade-
quately developed at the State court hearing,” § 2254(d)(3),
or “the applicant did not receive a full, fair, and adequate
hearing,” § 2254(d)(6). The removal of these exceptions
forecloses the use of marginal procedural complaints—such
as a delay between voir dire and a Batson hearing—to deter-
mine whether or “how much” a federal habeas court will
defer to state-court factfinding.
Section 2254(e)(1) simply cannot be read to contain an im-
plied sliding scale of deference. I do not understand the
Court to disagree with this view, however, as its dicta does
not actually purport to interpret the text of § 2254(e)(1).4
II
Because § 2254(e)(1) supplies the governing legal standard,
petitioner must provide “clear and convincing” evidence of
purposeful discrimination in order to obtain a COA. Peti-
tioner’s constitutional claim under Batson turns on this fact
and “reasonable jurists could debate,” ante, at 336 (internal
4 I do, however, agree with the majority that the Court’s decisions in
Hernandez v. New York, 500 U. S. 352 (1991), and Purkett v. Elem, 514
U. S. 765 (1995) (per curiam), can be helpful in guiding a federal habeas
court deciding a claim under Batson v. Kentucky, 476 U. S. 79 (1986). For
instance, both cases confirm that Batson step three turns on an evaluation
of the prosecutor’s proffered race-neutral justifications for the peremptory
challenges at issue. Purkett, supra, at 768–769; Hernandez, 500 U. S., at
364–365 (plurality opinion); id., at 372 (O’Connor, J., concurring in judg-
ment); see also Batson, supra, at 98, n. 21. Additionally, because Hernan-
dez’s clear-error standard is less demanding of a criminal defendant than
§ 2254(e)(1) is of a habeas applicant, a federal habeas court can deny relief
on § 2254(e)(1) grounds if it determines it would do so when reviewing the
same facts for clear error. Cf. Marshall v. Lonberger, 459 U. S. 422, 434–
435 (1983) (“We greatly doubt that Congress . . . intended to authorize
broader federal review of state court credibility determinations than are
authorized in appeals within the federal system itself ”).

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quotation marks omitted), whether a Batson violation oc-
curred only if petitioner first meets his burden under
§ 2254(e)(1). And the simple truth is that petitioner has not
presented anything remotely resembling “clear and convinc-
ing” evidence of purposeful discrimination.
A
The evidence amassed by petitioner can be grouped into
four categories: (1) evidence of historical discrimination by
the Dallas District Attorney’s office in the selection of juries;
(2) the use of the “jury shuffle” tactic by the prosecution;
(3) the alleged similarity between white veniremen who
were not struck by the prosecution and six blacks who were:
Edwin Rand, Wayman Kennedy, Roderick Bozeman, Billy
Jean Fields, Joe Warren, and Carroll Boggess; and (4)
evidence of so-called disparate questioning with respect to
veniremen’s views on the death penalty and their ability
to impose the minimum punishment.
The “historical” evidence is entirely circumstantial, so
much so that the majority can only bring itself to say it
“casts doubt on the State’s claim that [discriminatory] prac-
tices had been discontinued before petitioner’s trial.” Ante,
at 335. And the evidence that the prosecution used jury
shuffles no more proves intentional discrimination than it
forces petitioner to admit that he sought to eliminate whites
from the jury, given that he employed the tactic even more
than the prosecution did.5 Ultimately, these two categories
of evidence do very little for petitioner, because they do not
address the genuineness of prosecutors’ proffered race-
neutral reasons for making the peremptory strikes of these
particular jurors.
In short, the reasons that Justice Scalia finds this to be
a “close case,” ante, at 348 (concurring opinion), are reasons
that, under the correct reading of § 2254(e)(1), it is a losing
5 Petitioner shuffled the jury five times; the prosecution did so only three
times. Brief for Respondent 21.

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case. I write further to explore two arguments advanced
by petitioner that the Court deemed helpful in establishing
petitioner’s “debatable” entitlement to relief, apparently be-
cause the majority’s “debatability” inquiry requires a less-
thorough review of the record and a more permissive atti-
tude toward a COA movant’s representations.
B
As noted, petitioner argues the prosecution struck six
blacks—Rand, Kennedy, Bozeman, Fields, Warren, and Bog-
gess—who were similarly situated to unstruck whites. I
see no need to repeat Justice Scalia’s dissection of peti-
tioner’s tales of white veniremen as ambivalent about the
death penalty as Kennedy, Bozeman, Warren, and Boggess.
Ante, at 350–353 (concurring opinion). However, the major-
ity’s cursory remark that “three of the State’s proffered
race-neutral rationales for striking [black] jurors pertained
just as well to some white jurors who were not challenged
and who did serve on the jury,” ante, at 343 (emphasis
added), is flatly incorrect and deserves some discussion.
For the three challenged peremptory strikes used on
Fields, Warren, and Boggess, petitioner has not even cor-
rectly alleged the existence of “similarly situated” white
veniremen. The majority’s discussion of this subject is
misleading, stating that “prosecutors explained that their
peremptory challenges against six [black] potential jurors
were based on ambivalence about the death penalty; hesi-
tancy to vote to execute defendants capable of being rehabil-
itated; and the [veniremens’] own family history of crimi-
nality.” Ibid. The implication is that for each of the six
challenged veniremen, the prosecution gave all three reasons
as justifications for the use of a peremptory strike. To clar-
ify: Rand, Kennedy, Bozeman, Warren, and Boggess were
struck for ambivalence about the death penalty. Fields,
Warren, and Boggess were struck for having family mem-

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bers with criminal histories. Bozeman and Fields were
struck for making prodefense remarks about rehabilitation.
Simple deduction, and an analysis of petitioner’s conten-
tions that includes the names of these allegedly similar white
veniremen, cf. ibid., reveals that petitioner has unearthed
no white venireman who, like Warren and Boggess, was
both ambivalent about the death penalty and related to
individuals who had previous brushes with the law.6 Peti-
tioner also produces no white venireman who, like Fields,
expressed prodefense views on rehabilitation and had a fam-
ily member with a criminal history.7 “Similarly situated”
6 Petitioner directs the Court to white veniremen Noad Vickery, Cheryl
Davis, Chatta Nix, and Joan Weiner as having family members with crimi-
nal histories, but points to white veniremen Sandra Hearn and Marie
Mazza as equally ambivalent about the death penalty. Brief for Petitioner
22. Of course, as Justice Scalia demonstrates, Hearn and Mazza were
not ambivalent about the death penalty. Ante, at 351–352 (concurring
opinion).
7 Again petitioner points to Vickery, Davis, Nix, and Weiner for similar
family histories. Justice Scalia has shown that none of these four were
in fact similarly situated to Fields with respect to this justification. Ante,
at 353–354 (concurring opinion). Petitioner also alleges that Hearn made
prodefense remarks about rehabilitation similar to those made by Fields.
Again, no white venireman even allegedly fits both reasons given for strik-
ing Fields. Furthermore, even if Fields had only been struck for his
views on rehabilitation, those views were in no way equivalent to those
expressed by Hearn. Fields answered “yes” to the question whether he
believed that “everyone can be rehabilitated.” App. 118. Fields went on
to say that “[i]t may be far-fetched, but I feel like, if a person has the
opportunity to really be talked about God and he commits himself,
whereas he has committed this offense, then if he turns his life around,
that is rehabilitation.” Ibid. In contrast, Hearn stated that she “be-
lieve[d] in the death penalty if a criminal cannot be rehabilitated.” Id.,
at 694.
Petitioner tries to muddy the waters by pointing out that Fields was, in
other respects, a good State’s juror because he supported the death pen-
alty. Brief for Petitioner 24–25. However, that does not change the fact
that Fields said that everyone could be rehabilitated (and thus might have
been swayed by a penitent defendant’s testimony) and Hearn insisted that

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363 Cite as: 537 U. S. 322 (2003)
Thomas, J., dissenting
does not mean matching any one of several reasons the
prosecution gave for striking a potential juror—it means
matching all of them.
This leaves Rand, Kennedy, and Bozeman.8 Petitioner al-
leges that white jurors Hearn and Mazza were as ambivalent
about the death penalty as these three struck black venire-
men. Justice Scalia has adequately demonstrated that
this is absurd with respect to Kennedy and Bozeman, but I
agree that petitioner makes a slightly better case with Rand.
Ante, at 352–353 (concurring opinion). However, since the
burden is on petitioner to show, by clear and convincing evi-
dence, that Rand was struck because of his race, I find this
sliver of evidence, even when combined with petitioner’s
circumstantial evidence, insufficient to rebut § 2254(e)(1)’s
presumption.
C
Petitioner ’s accounts of “disparate questioning ” also
amount to little of substance. Petitioner argues that the
prosecution posed different questions at voir dire depending
on the race of the venireman on two subjects: the death pen-
alty and the minimum punishment allowed under law. Nei-
ther accusation can withstand a careful examination of the
full record or help petitioner assemble the requisite clear and
convincing evidence.
some people could not be rehabilitated. In analyzing Batson claims the
focus should not be on the “reasonableness of the asserted nonracial mo-
tive . . . [but] rather [on] the genuineness of the motive.” Purkett, 514
U. S., at 769 (emphasis in original).
8 The prosecution’s stated reasons for striking Bozeman were that he
was ambivalent about the death penalty and that he made prodefense re-
marks about rehabilitation. This is one case where the prosecution gave
multiple reasons for a strike and petitioner actually correctly alleged the
existence of a similarly situated white venireman, Hearn. Petitioner be-
lieves, albeit erroneously, see ante, at 351–353 (Scalia, J., concurring),
that Hearn expressed similar ambivalence about the death penalty and
made prodefense remarks about rehabilitation.

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364 MILLER-EL v. COCKRELL
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1
Respondent counters petitioner’s complaints about the so-
called “graphic formulation” or “script” by arguing that this
depiction was used only with those potential jurors who “ex-
pressed reservations about the death penalty in their juror
questionnaires.” Brief for Respondent 17. The majority
discounts this explanation, stating that “[t]his cannot be ac-
cepted without further inquiry.” Ante, at 344. Under my
view, however, petitioner bears the burden of showing pur-
poseful discrimination by clear and convincing evidence.
The Court’s treatment of this issue focuses on the apparent
disparity in treatment of 10 black veniremen and 10 white
veniremen who were supposedly similar in their opposition
to the death penalty. The majority notes that only 2 out of
these 10 whites got the graphic description while 7 out of 10
blacks did. Ante, at 344–345. But the Court neglects to
mention that the eight white veniremen who petitioner
thinks should have received the graphic formulation, Reply
Brief for Petitioner 15, n. 19, were so emphatically opposed
to the death penalty that such a description would have
served no purpose in clarifying their position on the issue.
No trial lawyer would willingly antagonize a potential juror
ardently opposed to the death penalty with an extreme por-
trait of its implementation. The strategy pursued by the
prosecution makes perfect sense: When it was necessary to
draw out a venireman’s feelings about the death penalty they
would use the graphic script, but when it was overkill they
would not.
The record demonstrates that six of these eight white ve-
niremen were so opposed to the death penalty that they were
stricken for cause without the need for the prosecution to
spend a peremptory challenge. For example, John Nelson
wrote on his questionnaire, “I believe that the State does not
have the right to take anyone’s life,” Tr. of Voir Dire in No.
F85–78668–NL (5th Crim. Dist. Ct., Dallas County, Tex.),
p. 625 (hereinafter VDR) (internal quotation marks omitted),
and testified flatly, “I would not be able to vote for the death

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365 Cite as: 537 U. S. 322 (2003)
Thomas, J., dissenting
penalty.” 9 Id., at 614. Nelson was struck for cause. Id.,
at 662–663. Linda Berk was “always” opposed to the death
penalty, id., at 1449, and felt so strongly on the subject that
the prosecutor remarked upon her discomfort, after which
she stated, “[y]ou’re going to have to excuse me because I’m
getting a little emotional, okay?” Id., at 1445. Later, after
she had begun crying, Berk was struck for cause. Id., at
1478. Gene Hinson stated curtly, “I put on the form there
that I didn’t agree with it,” id., at 1648, and was struck for
cause. Sheila White said, “I have always been against . . .
the death penalty,” id., at 2056, and was struck for cause.
Even those two not struck for cause had firm views. Mar-
garet Gibson said: “I don’t believe in the death penalty. I
don’t know why it was started. I don’t think it solves any-
thing,” id., at 485, and was struck by the prosecution with
a peremptory strike. And James Holtz thought the death
penalty appropriate only if a policeman or fireman was mur-
dered. Id., at 1021. I can apprehend simply no reason to
fault the prosecution for failing to give a more graphic de-
scription of lethal injection to prospective jurors with such
firm views against capital punishment.
I recognize that these voir dire statements only indirectly
support respondent’s explanation because the graphic script
was typically given at the outset of voir dire—before the
above quoted veniremen had the chance to give their stark
answers. Nevertheless, all available evidence supports re-
spondent’s view that those who were unclear in their views
on the death penalty in their juror questionnaires received
the graphic formulation—and that those who were ada-
mantly for or against the death penalty in their question-
naires did not.
The jury forms at issue asked two questions directly rele-
vant to the death penalty. Question 56 asked, “Do you be-
lieve in the death penalty?,” offered potential jurors the
9 Nelson was also a doctor and presumably did not need to have the
lethal injection process described to him.

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chance to circle “yes” or “no,” and then asked them to
“[p]lease explain your answer.” See, e. g., Joint Lodging 44
(Boggess questionnaire). Question 58 allowed potential ju-
rors to circle “yes” or “no” in answering the following ques-
tion: “Do you have any moral, religious, or personal beliefs
that would prevent you from returning a verdict which
would ultimately result in the execution of another human
being?” Ibid.
First, as already noted, the deeper and clearer opposition
to the death penalty on the part of the eight whites who did
not receive the graphic script (but petitioner thinks should
have) indirectly supports respondent’s contention that this
opposition came out in their questionnaires (presumably by
an answer of “no” to question 56 and an answer of “yes” to
question 58). But this is not the only evidence supporting
respondent’s view. Hinson, a white venireman who did not
receive the graphic formulation, stated during voir dire that
he “put on the form there that [he] didn’t agree with [the
death penalty] for both moral and religious reasons.” VDR
1648. Similarly, Nelson, a white venireman not receiving
the graphic formulation, stated on his questionnaire, “I be-
lieve that the State does not have the right to take anyone’s
life.” Id., at 625 (internal quotation marks omitted). Fer-
nando Gutierrez, a juror who received the graphic formula-
tion, answered “yes” to question 56, but also “yes” to ques-
tion 58, indicating he had “moral, religious, or personal
beliefs” that would obstruct his voting for the death penalty
despite the fact that he believed in it. Joint Lodging 205.
The prosecution treated the black veniremen no differ-
ently. The blacks who did not receive the graphic formula-
tion (whose questionnaires are contained in the record) all
answered “yes” to question 56, stating they believed in the
death penalty, and “no” to question 58, indicating that their
beliefs wouldn’t prevent them from imposing a death sen-
tence. See id., at 12 (Bozeman), 20 (Fields), 28 (Warren), 36

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Thomas, J., dissenting
(Rand). The black veniremen who were given the graphic
formulation, by contrast, gave ambiguous answers on their
juror questionnaires expressing hesitation, rather than philo-
sophical opposition, to the death penalty. Boggess an-
swered “yes” to question 56 but also “yes” to question 58.
Id., at 44. Kennedy answered “yes” to question 56 but indi-
cated that he believed in the death penalty “[o]nly in extreme
cases, such as multiple murders.” Id., at 51. Troy Woods
answered “no” to question 56, but also “no” to question 58,
indicating he did not believe in the death penalty but would
have no personal objection to imposing it. Id., at 180. He
wrote “that [sic] not punishment,” in the space provided for
question 56. Ibid. It happened that, while not completely
clear about it in the questionnaire (and hence receiving the
graphic formulation), Woods was an enthusiastic supporter
of the death penalty, and he was, in fact, seated on petition-
er’s jury. Further confirming respondent’s explanation,
black veniremen Linda Baker, Janice Mackey, Paul Bailey,
and Anna Keaton all gave unclear responses to questions 56
and 58 and all received the graphic formulation. See Tr. of
Pretrial Hearings in No. F85–78660–NL (5th Crim. Dist. Ct.,
Dallas County, Tex.) (Def. Exh. 7).10
10 Questions 56 and 58, and the responses thereto, are found on page 6
of each questionnaire. Baker did not circle “yes” or “no” in answering
question 56, but wrote “[m]y strongest feeling is against the death penalty;
however, being aware of the overcrowding in jails and the number of
murders[,] I would have to know the facts to make a decision . . . .”
(Emphasis added.) Baker also did not answer question 58, writing “unde-
cided” instead. Mackey answered question 56 “no,” indicating she did
not believe in the death penalty, and wrote “Thou Shall Not Kill” in the
explanation space. She then proceeded to answer question 58 “no” as
well. Bailey circled “yes” in answering question 56, but wrote in “NO”
with a circle around it, along with such explanations as “yes for a major
crime” and “[n]o one have [sic] the right to take anothe [sic] ones [sic]
life.” (Emphases in original.) He then circled “no” in answering ques-
tion 58. Keaton circled “no,” indicating she did not believe in the death
penalty, when she answered question 56, writing “It’s not for me to pun-

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368 MILLER-EL v. COCKRELL
Thomas, J., dissenting
To sum up, the correlation between questionnaire answers
and the use of the graphic script is far stronger than any
correlation with race. Sixteen veniremen clearly indicated
on the questionnaires their feelings on the death penalty,11
and 15 of them did not receive the graphic script.12 Eight
veniremen gave unclear answers and those eight veniremen
got the graphic script.13 In other words, for 23 out of 24, or
96%, of the veniremen for whom questionnaire information
is available, the answers given accurately predict whether
they got the graphic script.14 Petitioner’s theory that race
determined whether a venireman got the graphic script pro-
duces a race-to-script correlation of only 74%—far worse.15
2
Petitioner fares no better with his allegation that the
prosecution employed two different scripts on the basis of
ished [sic] anyone.” However she then circled “no” in answering ques-
tion 58, indicating that she did not have any objection to imposing the
death penalty.
11 See VDR 1648 (Hinson), 625 (Nelson); Joint Lodging 12 (Bozeman),
20 (Fields), 28 (Warren), 36 (Rand), 125 (Mary Sumrow), 132 (Ronnie
Long), 140 (Weiner), 148 (Mazza), 156 (Vivian Sztybel), 164 (Debra McDow-
ell), 172 (Kevin Duke), 189 (Brenda Walsh), 197 (Filemon Zablan), 213
(Hearn).
12 Sztybel received the graphic script. VDR 2828.
13 Boggess, Kennedy, Baker, Mackey, Bailey, Keaton, Gutierrez, and
Woods.
14 This analysis considers Hinson and Nelson as being clearly opposed to
the death penalty in their questionnaires (answering question 56 “no” and
question 58 “yes”) and Kennedy as being ambiguous (though in fact he
answered question 56 “yes” and 58 “no”). Even without these assump-
tions, 13 out of 15 veniremen who answered “yes” to question 56 and “no”
to question 58—indicating clear support for the death penalty—did not
receive the graphic script. And seven out of seven of those answering
“no” and “no” or “yes” and “yes”—indicating ambiguous or mixed feelings
about the death penalty—or not answering clearly at all received the
graphic script. This yields an accuracy rate of 20 out of 22, or 91%.
15 For whites, 10 out of 12 did not get the graphic script. For blacks, 7
out of 11 did get the graphic script. This means race predicted use of the
graphic script only 74% of the time.

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race when asking questions about imposition of the minimum
sentence. Indeed, this disparate questioning argument is as
flawed as the last one. Respondent admits that the different
questioning on minimum sentences was used as an effort to
get veniremen the prosecution felt to be ambivalent about
the death penalty dismissed for cause. In making the deci-
sion whether to employ the “manipulative” minimum punish-
ment script, prosecutors could rely on both the question-
naires and substantial voir dire testimony, as the minimum
punishment questioning occurred much later in voir dire
than the graphic formulation.
Seven black veniremen were given the allegedly “manipu-
lative” minimum punishment script, all of whom were op-
posed to the death penalty in varying degrees. Rand, Ken-
nedy, Bozeman, Warren, and Boggess’ views on the death
penalty have all been exhaustively discussed. This leaves
Baker and Fields. Baker’s views on the death penalty were
so clearly ambivalent that she is not even the subject of peti-
tioner’s Batson challenge. And Fields’ family history of
criminality and views on rehabilitation, as earlier discussed,
supra, at 362, and n. 7, convinced the prosecution to use a
peremptory strike.16 Finally, petitioner’s objection to the
prosecution’s decision not to use the “manipulative” punish-
ment script on Woods, Reply Brief for Petitioner 17, n. 23,
makes no sense. Woods gave answers indicating he would
be an excellent State’s juror—why would the prosecution
have tried to eliminate him? Of course, if petitioner were
correct that the prosecution sought to eliminate blacks then
one might expect that all methods, including the use of the
“manipulative” script, would have been deployed against
Woods, who happened to also be black.
As with graphic questioning, respondent’s explanation
goes unrebutted by petitioner. Unless a venireman indi-
cated he would be a poor State’s juror (using the criteria that
16 The prosecution in fact used peremptory strikes on all seven of these
black veniremen.

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respondent has identified here) and would not otherwise be
struck for cause or by agreement, there was no reason to use
the “manipulative” script. Thus, when petitioner points to
the “State’s failure to use its manipulative method with the
vast majority of white veniremembers who expressed reser-
vations about the death penalty,” ibid., he ignores the fact
that of the 10 whites who expressed opposition to the death
penalty, 8 were struck for cause or by agreement, meaning
no “manipulative” script was necessary to get them re-
moved. The other two whites were both given the “manipu-
lative” script and peremptorily struck,17 just like Rand, Ken-
nedy, Bozeman, Fields, Warren, Boggess, and Baker.
* * *
Quite simply, petitioner’s arguments rest on circumstantial
evidence and speculation that does not hold up to a thorough
review of the record. Far from rebutting § 2254(e)(1)’s pre-
sumption, petitioner has perhaps not even demonstrated that
reasonable jurists could debate whether he has provided the
requisite evidence of purposeful discrimination—but that is
the majority’s inquiry, not mine. Because petitioner has not
demonstrated by clear and convincing evidence that even one
of the peremptory strikes at issue was the result of racial
discrimination, I would affirm the denial of a COA.
17 See Joint Lodging 110; VDR 502–511 (Gibson), 1046–1050 (Holtz).