Clark v. Mississippi

1 Cite as: 608 U. S. ____ (2026)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
TONY TERRELL CLARK v. MISSISSIPPI
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF MISSISSIPPI
No. 25–6846. Decided June 8, 2026
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR respecting the denial
of certiorari.
Although I agree with the Court’s decision to deny certi-
orari for the reason explained below, I write separately to
address the problematic standard the Mississippi Supreme
Court applied to the claim petitioner Tony Terrell Clark
raised under Batson v. Kentucky, 476 U. S. 79 (1986), in the
context of his ineffective-assistance-of-counsel claim.
During Clark’s capital trial, the prosecution struck Black
prospective jurors at a rate more than five times that of
white jurors. The prosecution also conducted dubious “spe-
cial investigations into some of the most qualified Black
prospective jurors in an attempt to disqualify them,” but did
not investigate similarly situated white jurors. Clark v.
Mississippi, 600 U. S. ___, ___–___ (2023) (S
OTOMAYOR, J.
dissenting from denial of certiorari) (slip op., at 5–6). Many
of the prosecution’s proffered reasons for striking Black ju-
rors, moreover, applied equally to white jurors that it did
not strike. For instance, the record “reveal[ed] a double
standard where the State struck Black jurors who took an-
ything but the most hardline pro-death penalty position,
but not white jurors who expressed serious doubts about the
death penalty.” Id., at ___ (slip op., at 8).
Despite all this, the Mississippi Supreme Court con-
cluded on direct appeal that the State had not violated Bat-
son. In determining that none of the prosecution’s strikes
were “‘motivated in substantial part by discriminatory

2 CLARK v. MISSISSIPPI
Statement of S
OTOMAYOR, J.
intent,’” Flowers v. Mississippi, 588 U. S. 284, 303 (2019),
the court relied, in part, on the fact that Clark’s trial coun-
sel did not present a “‘comparative analysis of minority and
non-minority jurors to show disparate treatment’” during
the Batson proceedings. Clark v. State, 343 So. 3d 943, 961–
962 (2022). The court declined to conduct that analysis in
the first instance. Id., at 962.
Clark then filed a habeas petition in state court and ar-
gued that, in the context of the Batson proceedings, his trial
counsel was constitutionally ineffective under Strickland v.
Washington, 466 U. S. 668 (1984). To succeed under Strick-
land, a defendant must make two independent showings.
First, that his counsel’s performance was deficient, mean-
ing that the counsel’s error was “so serious that [he] was
not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687. Second, that the
deficient performance “prejudiced the defense,” ibid., mean-
ing that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” id., at 694.
The Mississippi Supreme Court held that Clark’s ineffec-
tive-assistance claim failed on both grounds. As the court
saw it, Clark did not prove that his “counsel’s performance
before the trial court was deficient” or that his “counsel’s
performance deprived him of a fair trial with a reliable re-
sult.” 418 So. 3d 1226, 1232 (2025). In conducting the prej-
udice analysis, the court relied on Powers v. State, 371
So. 3d 629 (Miss. 2023), which assessed whether “the out-
come of the trial would have been different” if, but for the
counsel’s deficient performance, a properly presented Bat-
son challenge had succeeded and the Black jurors had not
been struck. See 371 So. 3d, at 682, 684, 690–691. In other
words, in Mississippi, showing that prejudice resulted from
counsel’s ineffective presentation of a Batson claim requires
proving not only that the Batson claim would have suc-
ceeded, but that this success would have produced a

3 Cite as: 608 U. S. ____ (2026)
Statement of S
OTOMAYOR, J.
different substantive outcome at a trial: for example, that a
defendant would have been acquitted rather than con-
victed.
Other courts have taken a different approach. They un-
derstand the “prejudice” analysis in this context to require
asking only whether the “Batson challenge would have been
successful” but for the counsel’s deficient performance,
without further inquiry into whether a hypothetical jury
that included jurors who were struck based on their race
would have voted differently. See, e.g., Yazzie v. State, 2021
WY 72, ¶¶21–24, 487 P. 3d 555, 563; see also Carew v. Mor-
ton, 150 F. 4th 150, 171, n. 17 (CA2 2025) (recognizing this
conflict and collecting cases). In other words, the relevant
“proceeding” for Strickland purposes, 466 U. S., at 694, is
the Batson proceeding, not the trial that follows.*
The Mississippi Supreme Court’s approach, to the extent
it requires a criminal defendant to show that a competently
presented Batson challenge would have produced a differ-
ent trial outcome, is almost certainly wrong.
To start, it misunderstands the nature of a Batson error.
Generally, constitutional errors do not “‘automatically re-
quire reversal of a conviction.’” Weaver v. Massachusetts,
582 U. S. 286, 294 (2017). Instead, a conviction can stand
despite most constitutional errors at trial if the government
proves beyond a reasonable doubt that a given error was
harmless and did not “‘contribute to the verdict obtained.’”
Ibid. “Structural” errors, however, are different. These er-
rors “‘defy analysis by “harmless-error” standards’ because
they ‘affec[t] the framework within which the trial
——————
*Other courts, in unpublished opinions, have agreed with the Missis-
sippi Supreme Court, requiring defendants raising Strickland claims re-
garding Batson errors to prove that a competently presented Batson chal-
lenge would have succeeded and that this success would have changed
the result of trial. See, e.g., Hutchinson v. Superintendent Greene SCI,
860 Fed. Appx. 246, 249 (CA3 2021); Parks v. Chapman, 815 Fed. Appx.
937, 943 (CA6 2020).

4 CLARK v. MISSISSIPPI
Statement of S
OTOMAYOR, J.
proceeds,’” which means that their “‘consequences . . . are
necessarily unquantifiable and indeterminate.’” United
States v. Gonzalez-Lopez, 548 U. S. 140, 148, 150 (2006).
Thus, when made, structural errors require “‘automatic re-
versal.’” Weaver, 582 U. S., at 299.
When raised as a standalone claim (that is, not as part of
an ineffective-assistance claim), Batson has always been
treated as a structural error not subject to harmless-error
analysis. See, e.g., Weaver, 582 U. S., at 301 (noting that
successful Batson claims result in “automatic relief ”); Ri-
vera v. Illinois, 556 U. S. 148, 161 (2009) (characterizing
Batson as an “automatic reversal preceden[t]”); Snyder v.
Louisiana, 552 U. S. 472, 474 (2008) (reversing conviction
based on Batson error without assessing harmlessness); cf.
Vasquez v. Hillery, 474 U. S. 254, 263–264 (1986) (holding
that racial discrimination in grand jury selection is a struc-
tural error). There is no sound basis for treating Batson
differently in the context of an ineffective-assistance claim.
This Court in Weaver v. Massachusetts addressed the in-
terplay between Strickland prejudice and other structural
errors. There, the Court held that a defendant must show
Strickland prejudice “in the ordinary sense” (meaning a dif-
ferent trial outcome) when one kind of structural error, the
violation of the right to a public trial, is raised “via a claim
alleging ineffective assistance of counsel.” 582 U. S., at 293,
303. The Court clarified, however, that this answer may
not hold true for other structural errors, and that “the na-
ture of the error” and “the reasons an error is deemed struc-
tural may influence the proper standard used to evaluate
an ineffective-assistance claim premised on the failure to
object to that error.” Id., at 294, 302; see id., at 300 (making
clear that Strickland’s “prejudice inquiry is not meant to be
applied in a ‘mechanical’ fashion”).
A Batson error is one such error that likely requires a dif-
ferent standard for prejudice. Weaver, for example, ob-
served that “not every public-trial violation will in fact lead

5 Cite as: 608 U. S. ____ (2026)
Statement of S
OTOMAYOR, J.
to a fundamentally unfair trial.” 582 U. S., at 300. The
same does not hold true for Batson violations, given that
“[i]n the eyes of the Constitution, one racially discrimina-
tory peremptory strike is one too many.” Flowers, 588 U. S.,
at 298. It is the racial discrimination in jury selection itself,
not merely its effect on the outcome of trial, that causes the
harms (to defendants, jurors, and the process itself ) with
which Batson is principally concerned. See, e.g., Powers v.
Ohio, 499 U. S. 400, 412–413 (1991).
Yet there is an even clearer reason why the default prej-
udice standard should not apply here. Asking a defendant
to demonstrate a reasonable probability that the jury would
not have convicted him had his counsel successfully raised
the Batson error imposes the burden to persuade courts “of
the very conclusion that Batson prohibits: that the race of
jurors affects their thinking as jurors.” Eagle v. Linahan,
279 F. 3d 926, 943–944, n. 22 (CA11 2001). Batson and its
progeny are premised on the idea that a person’s race (and
gender) is simply “‘unrelated to his fitness as a juror.’” Bat-
son, 476 U. S., at 87; cf. J. E. B. v. Alabama ex rel. T. B., 511
U. S. 127, 149 (1994) (O’Connor, J., concurring) (“[T]he im-
port of our holding is that any correlation between a juror’s
gender and attitudes is irrelevant as a matter of constitu-
tional law”). Batson, for example, rejected the idea “that a
prosecutor could strike a black juror based on an assump-
tion or belief that the black juror would favor a black de-
fendant.” Flowers, 588 U. S., at 299. It follows that a de-
fendant cannot make, and courts should not accept, that
same argument to prove prejudice. Requiring a defendant
to show that a missing, meritorious Batson claim would
have affected the trial outcome is thus fundamentally in-
consistent with Batson’s foundational principles.
The Court should one day resolve the conflict outlined
above and hold that Strickland does not require the kind of
prejudice analysis that the Mississippi Supreme Court has
adopted for Batson-related ineffectiveness claims.

6 CLARK v. MISSISSIPPI
Statement of S
OTOMAYOR, J.
Unfortunately, this case, at least in its current procedural
posture, does not present a viable path for doing so. As
noted, Strickland requires defendants to make two inde-
pendent showings to succeed (deficiency and prejudice), and
the Mississippi Supreme Court concluded that Clark failed
to satisfy either one. Before this Court, Clark does not ar-
gue that his counsel was so ineffective at trial that he “was
not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U. S., at 687.
Given the independent basis on which Clark’s Strickland
claim failed below, I concur in the denial of Clark’s petition
for a writ of certiorari.