Supreme Court of the United States · Official docket →
Terry Pitchford v. Burl Cain, Commissioner, Mississippi Department of Corrections, et al.
IFP petition · United States Court of Appeals for the Fifth Circuit, No. 23-70009 · judgment January 17, 2025
Questions presented
Granted limited to the following question: whether, under the standards set forth in aedpa, 28 u. District Attorney Doug Evans convicted Terry Pitchford, aged 18 years at the time of the crime, of capital murder and secured a death verdict in the Grenada Circuit Court before Judge Joseph Loper on February 9, 2006, with the entirety of jury selection and opening arguments taking place on February 6. After direct and collateral reviews in state court, the Northern District of Mississippi granted habeas corpus relief upon concluding that the trial court failed to determine the plausibility of the prosecutor’s proffered reasons for peremptorily striking four Black venire members or otherwise consider the full circumstances bearing upon whether Mr. Evans’s reasons for striking any and each of these four venire members was pretextual and in violation of the Equal Protection Clause. In so doing, the District Court ruled the state supreme court’s reliance on its waiver jurisprudence improperly foreclosed consideration of pretext under Batson v. Kentucky, 476 U.S. 79 (1986). The Fifth Circuit reversed, finding that Judge Loper implicitly made determinations for each of the four strikes, trial counsel waived argument of pretext, and the Supreme Court of Mississippi’s waiver jurisprudence comports with Batson. This opinion in Pitchford v. Cain confirmed the Fifth Circuit’s disavowal of earlier circuit jurisprudence recognizing, inter alia, that since Miller-El v. Dretke, 545 U.S. 231 (2005) (Miller-El II), capital petitioners had been unable to “waive[] any Batson claim based on a comparison analysis,” Woodward v. Epps, 580 F.3d 318, 338 (5th Cir. 2009), deepening the Fifth Circuit’s split, joined by two other circuits, with the majority of courts of appeals in the application of Batson. This petition presents the following questions:
-
Does clearly established federal law determined by this Court and applied in six other circuits require reversal of a state appellate court’s denial of relief from a capital prosecutor’s discriminatory exercise of four peremptory strikes against Black venire members wherein the trial court, for each of the four strikes, failed to determine “the plausibility of the reason in light of all evidence with a bearing on it”? Miller-El II, 545 U.S at 251–52.
-
Does Mississippi Supreme Court precedent, which deems waived on direct review arguments of pretext not stated in the trial record, defy this Court’s clearly established federal law under Batson?
-
Does a finding of waiver on a trial record possessing Batson objections, defense counsel efforts to argue the objection, and the trial court’s express assurance the issues were preserved, constitute an unreasonable determination of facts?
Counsel of record
For petitioner
Joseph John Perkovich
Phillips Black, Inc.
For respondent
Scott Grant Stewart
Mississippi Attorney General's Office
Case
Conference history
Distributed for 9 conferences
Amicus briefs
3 cert-stage · 9 merits
(7 supporting pet./neither, 2 respondent)
Linked docket
24A1022
Argument & decision
Argued March 31, 2026 — Joseph J. Perkovich · Scott G. Stewart. Audio and transcript
Decided May 28, 2026. Opinion by Kavanaugh.
Proceedings
- Jun 29 2026Judgment Issued.
- May 28 2026Judgment REVERSED and case REMANDED. Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, and Jackson, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, Alito, and Barrett, JJ., joined.
- Mar 31 2026Argued. For petitioner: Joseph J. Perkovich, New York, N. Y. (Appointed by this Court.) For respondents: Scott G. Stewart, Solicitor General, Jackson, Miss.; and Emily M. Ferguson, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
- Mar 30 2026Motion to appoint counsel filed by petitioner GRANTED.
- Mar 20 2026Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
- Mar 17 2026Reply of petitioner Terry Pitchford filed. (Distributed)
- Mar 11 2026Motion to appoint counsel DISTRIBUTED for Conference of 3/27/2026.
- Mar 06 2026Brief amicus curiae of United States of America filed. (Distributed)
- Mar 06 2026Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
- Mar 06 2026Amicus brief of State of Alabama and 19 Other States not accepted for filing. (March 12, 2026 - To be corrected.)
- Mar 06 2026Brief amici curiae of State of Alabama and 19 Other States filed. (Corrected - March 20, 2026). (Distributed)
- Feb 27 2026Brief of respondents Cain, Comm'r, MS DOC, et al. filed. (Distributed)
- Feb 27 2026Motion to appoint counsel filed by petitioner Terry Pitchford.
- Feb 25 2026CIRCULATED
- Feb 23 2026Sealed material received electronically from the United States District Court for the Northern District of Mississippi and available with the Clerk. The remainder of the record is electronic and is available on PACER.
- Feb 13 2026Record received electronically from the United States Court of Appeals for the Fifth Circuit and available with the Clerk.
- Feb 10 2026Record requested from the United States Court of Appeals for the Fifth Circuit.
- Feb 04 2026Brief amici curiae of Constitutional Accountability Center, et al. filed.
- Feb 04 2026Brief amicus curiae of Mississippi Legislative Black Caucus filed.
- Feb 04 2026Brief amici curiae of American Civil Liberties Union Foundation, et al. filed.
- Feb 04 2026Brief amici curiae of Linda Lee, et al. filed.
- Feb 04 2026Brief amicus curiae of NAACP Legal Defense & Educational Fund, Inc. filed.
- Feb 04 2026Brief amici curiae of Fair and Just Prosecution, et al. filed.
- Feb 04 2026Brief amici curiae of Habeas Corpus Scholars filed.
- Jan 30 2026SET FOR ARGUMENT on Tuesday, March 31, 2026.
- Jan 28 2026Brief of petitioner Terry Pitchford filed.
- Jan 28 2026Joint appendix Volumes 1, 2, 3 and 4 filed. (Statement of costs filed)
- Dec 15 2025Motion to proceed in forma pauperis granted. Petition for a writ of certiorari GRANTED limited to the following question: Whether, under the standards set forth in AEDPA, 28 U. S. C. §2254(d), the Mississippi Supreme Court unreasonably determined that petitioner waived his right to rebut the prosecutor's asserted race-neutral reasons for exercising peremptory strikes against four black jurors.
- Dec 08 2025DISTRIBUTED for Conference of 12/12/2025.
- Dec 01 2025DISTRIBUTED for Conference of 12/5/2025.
- Nov 17 2025DISTRIBUTED for Conference of 11/21/2025.
- Nov 10 2025DISTRIBUTED for Conference of 11/14/2025.
- Nov 03 2025DISTRIBUTED for Conference of 11/7/2025.
- Oct 14 2025DISTRIBUTED for Conference of 10/17/2025.
- Oct 06 2025DISTRIBUTED for Conference of 10/10/2025.
- Aug 21 2025DISTRIBUTED for Conference of 9/29/2025.
- Aug 15 2025Reply of petitioner Terry Pitchford filed.
- Aug 01 2025Brief of respondent Burl Cain, Commissioner, Mississippi Department of Corrections, et al. in opposition filed.
- Jul 03 2025Brief amici curiae of Linda Lee, et al. filed.
- Jul 03 2025Brief amici curiae of Current and Former Elected Prosecutors, et al. filed.
- Jul 03 2025Brief amicus curiae of Mississippi Legislative Black Caucus filed.
- Jun 18 2025Motion to extend the time to file a response is granted and the time is extended to and including August 4, 2025.
- Jun 16 2025Motion to extend the time to file a response from July 3, 2025 to August 4, 2025, submitted to The Clerk.
- May 28 2025Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2025)
- Apr 23 2025Application (24A1022) granted by Justice Alito extending the time to file until May 28, 2025.
- Apr 18 2025Application (24A1022) to extend the time to file a petition for a writ of certiorari from April 28, 2025 to June 27, 2025, submitted to Justice Alito.