Victor Taylor v. Scott Jordan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0190p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
VICTOR DEWAYNE TAYLOR,
│
Petitioner-Appellant, │
> No. 14-6508
│
v. │
│
SCOTT JORDAN, Warden, │
Respondent-Appellee. │
┘
On Petition for Rehearing En Banc
United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:06-cv-00181—Danny C. Reeves, District Judge.

Argued En Banc: March 3, 2021

Decided and Filed: August 23, 2021

Before: SUTTON, Chief Judge; BATCHELDER, MOORE, COLE, CLAY, GIBBONS, COOK,
GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, BUSH, LARSEN,
NALBANDIAN, READLER, and MURPHY, Circuit Judges.*

_________________

COUNSEL

ARGUED EN BANC: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, La
Grange, Kentucky, for Appellant. S. Chad Meredith, OFFICE OF THE ATTORNEY
GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON SUPPLEMENTAL
BRIEF: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, La Grange, Kentucky,
Thomas M. Ransdell, Frankfort, Kentucky, for Appellant. S. Chad Meredith, OFFICE OF THE
ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee.

*Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Batchelder and Judge Cook,
senior judges of the court who sat on the original panel in this case, participated in this decision. Judge Thapar
recused himself from participation in this decision.
 No. 14-6508 Taylor v. Jordan Page 2

KETHLEDGE, J., delivered the opinion of the court in which SUTTON, C.J., and
BATCHELDER, COOK, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, JJ.,
joined. MOORE, J. (pp. 23–27), in which CLAY, WHITE, STRANCH, and DONALD, JJ.,
joined, COLE, J. (pp. 28–37), in which MOORE, CLAY, WHITE, STRANCH, and DONALD,
JJ., joined in all but Section I.A.i., GRIFFIN, J. (pp. 38–52), in which GIBBONS, J., joined in
full and MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined in all but footnote 1,
and WHITE, J. (pp. 53–57), in which MOORE, CLAY, STRANCH and DONALD, JJ., joined in
full and GIBBONS, J., joined in Parts I and II, delivered separate dissenting opinions.
_________________

OPINION
_________________

KETHLEDGE, Circuit Judge. Victor Taylor murdered two high-school students in 1984,
for which a jury convicted him of capital murder and recommended a sentence of death. The
trial judge imposed that sentence and the Kentucky Supreme Court repeatedly denied Taylor’s
claims for relief. Taylor eventually filed a federal habeas petition, arguing (among many other
things) that the prosecutor at his trial had discriminated against African-American members of
his venire. The district court denied Taylor’s petition. We affirm.

I.

A.

On Saturday, September 29, 1984, Scott Nelson and Richard Stephenson, two 17-year-
old students at Trinity High School in Louisville, drove together to a football game at a rival
school, Louisville Manual High School. Both students were white. Around 8:30 p.m., they got
lost and stopped outside the “Moby Dick” restaurant in Louisville to ask for directions. There
they encountered Victor Taylor and his cousin, George Wade, who were then ages 24 and 23,
respectively. Taylor and Wade are African-American. After a brief exchange among the four of
them, Taylor pulled a gun from his waistband and forced his way into the car’s back seat, along
with Wade. Taylor told the boys to drive down an alley to an abandoned lot, where he told the
boys to get out of the car. Taylor and Wade took the boys’ wallets, which they stripped of cash
and then returned. But then Taylor and Wade removed the boys’ pants, tied their hands behind
 No. 14-6508 Taylor v. Jordan Page 3

their backs, and gagged them. While the boys lay helpless, Taylor anally raped Nelson.
Sometime during this sequence of events, Wade happened to address Taylor by name.

Eventually Taylor and Wade walked away from the scene, taking the boys’ money, pants,
jackets, shoes, a gym bag, cassettes, a feather clip, and a portable radio—but leaving the boys
alive, though bound and gagged. Soon Taylor told Wade he was worried the boys could identify
them, particularly since Wade had used Taylor’s name. After a moment, Taylor said “he
[i.e., Taylor] was going to have to take them [i.e., the boys] out.” Taylor then returned to the
crime scene. There, one of the boys “tried begging, talking them out of hurting them, that they’d
done enough to them already.” But Taylor shot them both. Police discovered the boys’ bodies
the next day, each of them shot in the head execution-style with a Winchester-Western
hollow-point round from a .357 Magnum.

Around 9:30 p.m. that night, Taylor and Wade returned to the home of Taylor’s mother.
There, several members of Taylor’s extended family were present, playing cards. One of them
was Eugene Taylor, who said that Taylor and Wade came into the house “smiling” and carrying
a gym bag, cassettes, gray tennis shoes, and blue jeans, among other items. Taylor asked his
sister, Renee Taylor, whether she had heard about the “white boys” getting killed. Taylor also
told Renee—but within earshot of the whole group—“[t]hat he had killed two white boys.”

A homicide investigation soon led to Wade, who said that he had participated in the
kidnaping but that Taylor had shot the boys. Police then searched the homes of Taylor’s mother,
Anna Taylor, and sister, Renee. In the home of Taylor’s mother, police found the victims’ gym
bag and a radio. On Taylor’s bed, police also found cassettes (by Def Leppard, Led Zeppelin,
and Van Halen), initialed “SCN” and belonging to Scott Nelson; under Taylor’s bed,
police found Nelson’s shoes. In Anna Taylor’s room, in plain view—though she denied seeing
them—police found gray Puma sneakers belonging to Richard Stephenson. Taylor’s mother
likewise denied seeing Nelson’s feather clip, which police found attached to a lamp-wire
in plain view in her kitchen. During the search of Renee Taylor’s home (in which Taylor
also had a bedroom), police found several .357 hollow-point bullets manufactured by
Winchester-Western—even though neither Renee nor her husband owned a gun. During that
 No. 14-6508 Taylor v. Jordan Page 4

search, police also saw that Renee’s husband, Charles Woods, was actually wearing Scott
Nelson’s blue jeans; Woods told the officer the jeans were “Victor’s[.]”

Around that same time, an officer on patrol in the neighborhood saw that Taylor’s
girlfriend, Shermayne Van Dyke, was wearing Nelson’s black jacket. She said that Taylor had
told her that he “stole it” from a local shopping mall. Another young woman in the
neighborhood, Beverly Shackleford, told police that, the morning after the murders, Taylor had
offered to sell her a “green school jacket.” She also said that, on three separate occasions in the
days after the murders, she had heard Taylor boast about killing the two boys. On the morning
of October 4, 1984, the police arrested Taylor.

B.

1.

A grand jury in Jefferson County (where Louisville is located) thereafter indicted Taylor
and Wade for kidnapping, robbery, sodomy, and capital murder. Due to extensive coverage of
the murders in the local media, the trial court transferred the defendants’ cases to Fayette County
in Lexington. The State chose to try the defendants separately. Wade’s trial came first; he
received a life sentence.

Jury selection for Taylor’s trial began with a venire of 118 people. The trial judge in
Taylor’s case was African-American; so was the prosecutor. During voir dire, each potential
juror (or “venireperson”) was questioned individually; counsel for each side could then move to
strike the venireperson for cause, or the court might excuse the person on hardship or other
grounds. The prosecutor’s questions for each potential juror were the same regardless of the
person’s race. Over the course of voir dire, the defense moved to strike three black
venirepersons for cause; the prosecutor opposed every one of those strikes, and the court kept
those persons on the venire.

Voir dire ended with 38 persons remaining on the venire, of whom six were
African-American. At that point the defense argued that the case should be transferred again to a
different venue, given that most of the venirepersons had seen coverage of the Wade trial and
 No. 14-6508 Taylor v. Jordan Page 5

that only “32% of the panel” remained. The prosecutor responded that those remaining 38 jurors
“are in effect a cross section of the community.” In support of that assertion, the prosecutor
volunteered to submit into the record a chart that he had recently prepared, listing the name, race,
marital status, education level, employment status, and occupation of each of the 38 persons
remaining on the venire. The court entered the chart into the record and denied the motion to
change venue.

The parties then proceeded to exercise their peremptory strikes, which each side
submitted to the court clerk simultaneously. The prosecution was allotted nine strikes, of which
it exercised only eight. Four of the eight venirepersons struck by the prosecutor were white, and
four black. The defense exercised all 14 of its allotted strikes, one of which was used to strike a
black member of the venire. That left 16 potential jurors, one of whom the court later excused
for cause. The final panel included 12 jurors and three alternates. Of the 12 jurors, one was
African-American—namely Eleanor Fisher, whom the defense had earlier sought to strike for
cause.

Five days later, the defense objected again to the jury, arguing that it was “not
representative of a cross-section of the community,” that “the jury that we have now contains
only one minority member,” and that the prosecution had used “half of their strikes to exclude
two-thirds of minority members left on the panel.” That prompted the following exchange
between counsel:

Jasmin [prosecutor]: You say I used two-thirds of my strikes to strike minorities?
Jewell [defense counsel]: Half of your strikes to exclude two-thirds of minority members
on the panel.
Jasmin: Half, meaning four and a half?
Jewell: You used four—You used eight, I believe, correct?
Jasmin: That’s correct.
Jewell: Okay. And, four of them were directed at minority members.
Jasmin: And, for the record, the Commonwealth would note defense also struck at least
one or two black folk.
Jewell: The defense struck one minority member.
 No. 14-6508 Taylor v. Jordan Page 6

The prosecutor and court then had the following exchange about the relevant caselaw,
including Batson v. Kentucky, 476 U.S. 79 (1986), which was then pending at the Supreme
Court:

Jasmin: In accordance with case law, the Commonwealth has no other rational
reason—if I strike all it then becomes objectionable under the cases from, as
I understand it, coming from California.
The Court: The California case is not the law of the land. I’m not sure what the
name of the Supreme Court case that’s presently up on certiorari.
Jasmin: Right.
The Court: I believe the issue being addressed at this time as to whether it is
permissible to exercise your peremptory strikes whichever way you wish to.
I don’t know, but the record’s clear as to what has been done in this case.

The court denied the defense’s motion, and the parties proceeded to trial. The evidence
of Taylor’s guilt included that two patrons of the restaurant had seen Taylor pull a “revolver” on
the two boys and force his way into the car, along with Wade; that Taylor had boasted about the
murders to at least three other people; and that the victims’ belongings and bullets like the ones
used to kill them had been found at Taylor’s home. The prosecution also played an audio tape of
Wade’s statement, which identified Taylor as the murderer. The jury convicted Taylor on all
counts and unanimously recommended a death sentence.

A few days later, the Supreme Court issued its decision in Batson, in which it held that
the prosecution violates a black defendant’s right to Equal Protection if the prosecution engages
in “[p]urposeful racial discrimination in selection of the venire[.]” 476 U.S. at 86. Three weeks
after that, the trial court entered its judgment in Taylor’s case, in which the judge imposed the
death penalty and found that “the Defendant was afforded a fair trial, with his constitutional
safeguards fully protected.”

2.

Taylor appealed that judgment directly to the Kentucky Supreme Court. See Ky. Rev.
Stat. § 532.075. In his brief on appeal, Taylor raised 44 different claims, including that the
prosecutor had violated Batson when he struck four of the six black members of the venire. That
claim ran less than a page; Taylor argued only that “the prosecutor directed 4 of his peremptory
 No. 14-6508 Taylor v. Jordan Page 7

strikes toward black members of the jury panel and never offered any explanation for the
exercise of those peremptory challenges.” Most of Taylor’s 145-page brief instead focused on
his claim that the admission of Wade’s confession had violated the Confrontation Clause.

The Kentucky Supreme Court affirmed the trial court’s judgment. See Taylor v.
Commonwealth (Taylor I), 821 S.W.2d 72, 77 (Ky. 1990). The court stated that it had “carefully
reviewed all of the issues presented by Taylor[,]” but that its opinion would “concentrate on the
question of the admissibility of the Wade confession and the propriety of the trial judge’s refusal
to grant a second change of venue.” Id. at 74. The remaining claims—including the Batson
one—the court summarily rejected as “without merit[.]” Id.

Seven years later, Taylor filed a post-conviction motion under Kentucky Rule 11.42.
That rule barred a defendant from presenting claims already adjudicated on direct review. See
Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972). Taylor’s motion included
45 claims of error, including a claim under Swain v. Alabama, 380 U.S. 202 (1965), the relevant
pre-Batson case on racial discrimination in jury selection. (Whereas Batson allowed a defendant
to obtain relief based on discrimination in jury selection at his own trial, Swain required a
defendant to show that the prosecutor had a “systematic practice” of excluding blacks from juries
in all criminal cases. Id. at 223.)

The court held an evidentiary hearing on Taylor’s post-conviction motion, at which
Taylor presented evidence that the prosecutor’s office that brought his case had systematically
discriminated against black venirepersons. The court later denied Taylor’s motion.

Taylor appealed again to the Kentucky Supreme Court, which denied relief. See Taylor
v. Commonwealth (Taylor II), 63 S.W.3d 151 (Ky. 2001). The court held that Taylor’s Swain
claim was merely a relabeled Batson one, which “was decided against Taylor on direct appeal
and, therefore, cannot be raised in his [Rule] 11.42 motion.” Id. at 157. In dicta, the court added
that Taylor had “presented no evidence that” the discriminatory practices cited at the evidentiary
hearing had “continued unabated at his trial.” Id. (internal quotation marks omitted). The court
gratuitously added the following:
 No. 14-6508 Taylor v. Jordan Page 8

Batson also requires—to establish a prima facie case—a showing of “other
relevant circumstances” that create an inference that the prosecutor struck the
jurors on the basis of their race. In the case at bar, there was no showing of other
relevant circumstances at the time defense counsel objected to the seating of the
jury and no such argument on this point was made on direct appeal. Moreover,
the trial court specifically noted that there was no evidence that
African-Americans were systematically excluded from the venire. Therefore,
since a prima facie case was not made under Batson, it certainly was not made
under the much more restrictive holding of Swain.

Id. (internal citations omitted).

3.

Taylor later sought habeas relief in federal district court, presenting more than 50 claims.
The district court denied relief in a thoroughly reasoned opinion. See Taylor v. Simpson, No.
5:06-181-DCR, 2014 WL 4928925 (E.D. Ky. Sept. 30, 2014). A panel of this court affirmed,
over one judge’s dissent on the Batson issue. See Taylor v. Simpson, 972 F.3d 776 (6th Cir.
2020). We granted rehearing en banc.

II.

A.

We review the district court’s decision de novo. See Davis v. Carpenter, 798 F.3d 468,
472 (6th Cir. 2015). More to the point, however, is the standard under which we review the
Kentucky Supreme Court’s decision denying relief on Taylor’s Batson claim. That decision
came in Taylor I and was undisputedly on the merits. That means Taylor must show that the
decision was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

1.

Taylor argues that the Kentucky Supreme Court’s rejection of his Batson claim in
Taylor I was “contrary to” Batson itself, which if true would mean we review that decision de
novo. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). As relevant here, a state court’s
decision is “contrary to” Supreme Court precedent, for purposes of federal habeas review, “if the
 No. 14-6508 Taylor v. Jordan Page 9

state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s]
cases.” Id. at 405. That standard by its terms is inapposite here, since the Kentucky Supreme
Court’s rejection of Taylor’s Batson claim came in the form of a “summary denial”—meaning
the court did not recite its reasoning (or the applicable “rule”) in support of the decision. See
Cullen v. Pinholster, 563 U.S. 170, 187 (2011). That is not a criticism of the state court’s
decision: summary denials are common enough, particularly in cases like this one, where the
petitioner presented the state court with literally dozens of claims for relief. Normally we review
summary denials under the “unreasonable application” prong of § 2554(d)(1), asking specifically
whether any “fairminded jurist[]” could have agreed with any “arguments or theories” that
“could have supported the state court’s decision.” Id. at 188. That standard is as deferential as it
sounds. See id.

Yet Taylor argues that the Kentucky Supreme Court’s rejection of his Batson claim in
Taylor I was “contrary to” Batson—in light of what that court said about his Swain claim, eleven
years later, in Taylor II. That argument is as convoluted as it sounds. As explained above, in
Taylor II the court rejected Taylor’s Swain claim on the procedural ground that the claim was, in
substance, the same Batson claim that the court had rejected years before. What Taylor points to
now, however, is the court’s dicta in Taylor II, in which Taylor says the court misconstrued
Batson.

The relevant rule from Batson concerns the showing necessary to establish “a prima facie
case” for an Equal Protection claim. As the Batson Court described that showing in one of its
multiple formulations of this point, “the defendant first must show that he is a member of a
cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove
from the venire members of the defendant’s race.” 476 U.S. at 96 (citation omitted). Taylor
made those showings here. More to the point, the defendant must also “show that these facts and
any other relevant circumstances raise an inference that the prosecutor used [peremptory strikes]
to exclude the veniremen from the petit jury on account of their race.” Id. Taylor says that the
court in Taylor II misconstrued the latter requirement. Specifically, he contends, the court’s
insistence upon “a showing of ‘other relevant circumstances’ that create an inference that the
prosecutor struck the jurors on the basis of their race[,]” 63 S.W.3d at 157, implied that the court
 No. 14-6508 Taylor v. Jordan Page 10

thought that a defendant can never establish a prima facie case based on numbers alone. One
could read the opinion in Taylor II to have that implication; and we have no quarrel with
Taylor’s point that the implication would misconstrue Batson. The relevant question, more
succinctly stated, is simply whether “the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” Batson, 476 U.S. at 94. And if, for example, a prosecutor had a dozen
peremptory strikes and used every one of them to strike black members of the venire, the
numbers alone could be enough to make out a prima facie Batson claim.

Where Taylor goes wrong, however, is in his assertion that we should impute that
mistake to the court’s rejection of his Batson claim 11 years before. To that end Taylor relies on
Wilson v. Sellers, 138 S. Ct. 1188 (2018). There, the Court held that—when a state court’s
summary denial of a federal claim is preceded by a decision (say, by an intermediate appellate
court) that did explain its reasoning for denying the claim—then a federal court on habeas review
“should ‘look through’ the unexplained decision to the last related state-court decision that does
provide a relevant rationale.” Id. at 1192. Taylor argues we should “look through” the summary
denial of Taylor I to the mistaken dictum in Taylor II—and thus conclude that Taylor I was
“contrary to” Batson.

Wilson does include the words “look through,” but otherwise provides zero support for
Taylor’s argument here. What Wilson established (or perhaps reiterated) was a presumption:
that, “‘[w]here there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest upon the same
ground.’” Id. at 1194 (emphasis added) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
The Court explained that this presumption was “realistic” because “state higher courts often (but
certainly not always) write ‘denied’ or ‘affirmed’ or ‘dismissed’ when they have examined the
lower court’s reasoning and found nothing significant with which they disagree.” Id. Wilson
thus addressed cases where a higher state court (typically the state supreme court) summarily
affirms a lower court’s earlier reasoned denial of a federal claim—in which case one can
typically presume that “the state supreme court adopted the same reasoning.” Id. at 1196.
 No. 14-6508 Taylor v. Jordan Page 11

Hence Taylor is looking the wrong way as he makes his argument here. The decision
under review is Taylor I, in which the court obviously did not “examine” the reasoning of Taylor
II eleven years later. Id. at 1194. One therefore cannot presume—much less “realistic[ally,]”
id.—that Taylor I “adopted” the reasoning of Taylor II. Both the rule and the rationale of Wilson
are thus wholly inapposite here. Nor does Taylor cite a single case in which a habeas court
imputed the mistake of a later state-court decision to an earlier one.

Taylor says that we should do that anyway, because the author of Taylor I joined the
opinion in Taylor II. But that kind of judicial forensics is simply no basis on which to set aside
“the State’s interest in the finality of convictions that have survived direct review within the state
court system.” Calderon v. Thompson, 523 U.S. 538, 555 (1998). To the contrary, in Wilson, six
justices (over the dissent of three others) described the extent to which a habeas court can ascribe
the rationale of one state court decision to another. We have no basis in law or common sense to
draw that line any differently.

The fact is that, in this case, as “in Richter, there was no lower court opinion to look to.”
Wilson, 138 S. Ct. at 1195 (discussing Harrington v. Richter, 562 U.S. 86, 96-100 (2011)). And
that means the rule of Richter—which is the same rule cited above from Cullen—applies here.
See Cullen, 563 U.S. at 188 (stating that, absent a state court opinion on the merits, the habeas
court “must determine what arguments or theories could have supported the state court’s
decision” (cleaned up)). Taylor’s look-through argument is “contrary to” Wilson itself.

2.

a.

We therefore proceed under the “unreasonable application” prong of § 2254(d)(1), and
ask whether any fairminded jurist could have adopted any argument or theory that supported the
Kentucky Supreme Court’s rejection of Taylor’s Batson claim in Taylor I. See Richter, 562 U.S.
at 102. It takes more to apply that standard than to perform a direct-review analysis and then
simply announce that fairminded jurists could not disagree. “What it takes, rather, is a
willingness to take seriously the arguments that supported or ‘could have supported’ the
state-court decision; and then to ask not merely whether we agree with those arguments, but
 No. 14-6508 Taylor v. Jordan Page 12

whether they are coherent and grounded enough in the facts and applicable law that an unbiased
jurist could agree with them.” Etherton v. Rivard, 800 F.3d 737, 757 (6th Cir. 2015) (dissenting
opinion) (quoting Richter, 562 U.S. at 102), rev’d sub nom. Woods v. Etherton, 136 S. Ct. 1149
(2016) (per curiam).

In answering that question, the Supreme Court has said more than once, our review under
§ 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen, 563 U.S. at 181; see also, e.g., Holland v. Jackson, 542 U.S. 649, 652
(2004) (per curiam) (“whether a state court’s decision was unreasonable must be assessed in light
of the record the court had before it”). (On this point, contrary to the suggestion of Taylor’s
counsel during oral argument before the en banc court, the Court’s approach in Miller-El v.
Dretke, 545 U.S. 231 (2005), was a one-off; there, the State itself relied upon evidence not
before the state court at the time of its decision. See id. at 256 n.15.) That means we may not
consider the evidence proffered by Taylor at his post-conviction Rule 11.42 hearing.

The question before us, again, is whether any fairminded jurist could conclude, in
Taylor I, that Taylor had not shown “that the totality of the relevant facts gives rise to an
inference of discriminatory purpose” as to the prosecutor’s use of peremptory strikes against four
of the six African-American members of the venire. Batson, 476 U.S. at 94. Taylor’s argument
in support of this claim in his brief in Taylor I—in full—was the following:

Being black, appellant is a member of a cognizable racial group. The prosecutor
directed 4 of his peremptory strikes toward black members of the jury panel and
never offered any explanation for the exercise of those peremptory challenges.

Apart from the fact of Taylor’s own race, therefore, the only fact that Taylor cited in
support of his Batson claim in Taylor I was that the prosecutor had struck four of the six
African-American members of the venire—a 67% exclusion rate. Batson claims based solely on
exclusion rates “typically include[] patterns in which members of the racial group are completely
or almost completely excluded from participating on the jury.” Carmichael v. Chappius,
848 F.3d 536, 547 (2d Cir. 2017). In Carmichael, like here, the petitioner had relied solely on
the fact that the prosecution had “removed six” of the eight black members of the venire “with
peremptory challenges”—a 75% exclusion rate. Id. Reviewing that claim under § 2254(d)(1),
 No. 14-6508 Taylor v. Jordan Page 13

and applying the same standard that we apply here, Judge Cabranes wrote on behalf of a
unanimous panel: “Whether the 75 percent exclusion rate at issue here” established a prima
facie Batson claim “is a matter on which fairminded jurists could disagree.” Id. at 548 (cleaned
up). We see no reason to reach a different conclusion here (and would create a circuit split if we
did).

Moreover, an immovable obstacle to Taylor’s Batson claim—especially on habeas
review—is that the prosecutor in his case affirmatively objected to the defense’s attempt to strike
for cause three African-American members of the venire. All those objections were successful;
and, as a result, one of those black venirepersons, Eleanor Fisher, sat on the jury at trial.
A fairminded jurist could conclude—we think would likely conclude—that a prosecutor who
aimed to purge the jury of African-Americans would not object to the defense’s attempt to
remove three of them from the venire. Nor, such a jurist might conclude, would a prosecutor
with that aim leave one of his peremptory strikes unused while two African-Americans remained
on the venire—which again is what the prosecutor did here. A decision to grant the writ in this
case would simply ignore the habeas standard that the Supreme Court has told us again and again
that we must apply.

b.

Taylor points to three aspects of the record in arguing for a contrary result here. The first
is that, on the chart that the prosecutor volunteered to submit into the record, the prosecutor had
noted the race of each of the 38 qualified venirepersons—which Taylor says supports an
inference of racial discrimination. But that same chart also noted the education, employment
status, occupation, and marital status of each qualified member of the venire. (The gender of
each venireperson was obvious enough without a separate notation.) And all those
characteristics were relevant to the Sixth Amendment’s requirement that the venire reflect “a fair
cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527 (1975). That
requirement means that potential jurors cannot be excluded from the venire based on race, Smith
v. Texas, 311 U.S. 128, 130 (1941); or sex, Taylor, 419 U.S. at 530; or occupation, Thiel v.
S. Pac. Co., 328 U.S. 217, 222 (1946); or based on being part of any “identifiable segments
playing major roles in the community[.]” Taylor, 419 U.S. at 530. The characteristics on the
 No. 14-6508 Taylor v. Jordan Page 14

prosecutor’s chart—including race—therefore bore directly on whether the venire’s members
reflected a fair cross-section of the community. Indeed that is precisely why the prosecutor
offered to put the chart into the record, when the defense implied that the venire did not reflect
such a cross-section. A jurist could therefore fairly conclude that the chart reflected the
prosecutor’s intent to comply with the Constitution, rather than violate it.

Taylor’s second point is that—during the prosecutor’s exchange with defense counsel
regarding peremptory strikes—the prosecutor said “the Commonwealth has no other rational
reason” for something or other—the prosecutor did not finish his thought. But that fragment
does not compel any particular conclusion any more than the average Rorschach test does.
Again, here is the prosecutor’s remark in full:

In accordance with case law, the Commonwealth has no other rational reason—if
I strike all it then becomes objectionable under the cases from, as I understand it,
coming from California.

What we can tell from this remark is that the prosecutor was talking about the “case
law[,]” since what followed was “[i]n accordance with” it. His reference to “if I strike all” is
perhaps a reference to the then-applicable Swain rule, which basically required a defendant to
show that the prosecutor in his case had sought to strike every black venireperson in virtually
every case. See 380 U.S. at 223. But the reality is that what the prosecutor sought to convey
here is anyone’s guess. What is clear enough, however—and what matters for our purposes—is
that a fairminded jurist would hardly be compelled to think that this remark amounted to a
confession in open court that the prosecutor had invidiously discriminated against black
members of the venire.

Finally, Taylor likewise reads an admission of racial discrimination into the trial judge’s
comment about the clarity of the record in his case. That comment came after the judge
mentioned the Batson case then pending at the United States Supreme Court. Again, here is the
judge’s comment in full:

I believe the issue being addressed at this time as to whether it is permissible to
exercise your peremptory strikes whichever way you wish to. I don’t know, but
the record’s clear as to what has been done in this case.
 No. 14-6508 Taylor v. Jordan Page 15

The latter sentence by its terms was a comment about the adequacy of the record in
Taylor’s case—not about any particular conclusion to draw from that record. And this same
judge—who had obviously followed Batson at the Supreme Court—specifically found in his
judgment, 27 days after Batson was decided, that “the Defendant was afforded a fair trial, with
his constitutional safeguards fully protected.” On habeas review at least, Taylor’s Batson claim
is without merit.

B.

1.

Taylor also argues that the admission of Wade’s statement at trial violated Taylor’s rights
under the Confrontation Clause. At the time of Taylor’s trial and of the Kentucky Supreme
Court’s decision in Taylor I, the admissibility of Wade’s statement was governed by Ohio v.
Roberts, 448 U.S. 56 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004). Under
Roberts, the Confrontation Clause allows the admission into evidence of an unavailable
declarant’s statement that “bears adequate indicia of reliability.” Id. at 66 (internal quotation
marks omitted).

The Kentucky Supreme Court held that test was met as to Wade’s statement because
“[e]very material detail” of that statement “was corroborated by independent testimony and
physical evidence.” Taylor I, 821 S.W.2d at 75. That analysis was similar to the one adopted by
a plurality of the U.S. Supreme Court in Dutton v. Evans, 400 U.S. 74, 88-89 (1970). See Idaho
v. Wright, 497 U.S. 805, 823 (1990) (“a plurality of the Court in Dutton v. Evans looked to
corroborating evidence as one of four factors in determining whether a particular hearsay
statement possessed sufficient indicia of reliability”). Just two months before the Kentucky court
decided Taylor I, however, the U.S. Supreme Court rejected that approach, holding that the
circumstances relevant to the reliability determination “include only those that surround the
making of the statement and that render the declarant particularly worthy of belief.” Wright,
497 U.S. at 819. Four justices dissented, arguing that “[i]t is a matter of common sense for most
people that one of the best ways to determine whether what someone says is trustworthy is to see
if it is corroborated by other evidence.” Id. at 828 (Kennedy, J., dissenting). Thus, the U.S.
 No. 14-6508 Taylor v. Jordan Page 16

Supreme Court eventually reached a different conclusion than the Kentucky Supreme Court did
in Taylor I as to the value of corroborating evidence in determining whether a hearsay statement
was admissible under Roberts.

We therefore consider whether—in light of all the other evidence of Taylor’s guilt—the
admission of Wade’s statement at trial was harmless. In deciding that question, we disregard
what the Kentucky Supreme Court had to say about it—again, in dicta—in Taylor v.
Commonwealth (Taylor III), 175 S.W.3d 68 (Ky. 2005). See supra at 11-12. Instead, we ask
whether the admission of Wade’s statement had a “‘substantial and injurious effect or influence
in determining the jury’s verdict.’” Davis v. Ayala, 576 U.S. 257, 268 (2015) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)). If “the record is so evenly balanced that a conscientious
judge is in grave doubt” as to whether that standard is met, the habeas court may grant relief.
O’Neal, 513 U.S. at 437. But even the “grave doubt” standard “requires much more than a
‘reasonable possibility’ that the result of the hearing would have been different.” Ayala,
576 U.S. at 276 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

Here, Taylor suggests that the erroneous admission of a co-defendant’s confession is
categorically “devastating” to a defendant’s case. Both the Supreme Court and ours, however,
have found the erroneous admission of a co-defendant’s confession to be harmless. See, e.g.,
Schneble v. Florida, 405 U.S. 427, 432 (1972); Stewart v. Trierweiler, 867 F.3d 633, 637-38 (6th
Cir. 2017). And more devastating to Taylor’s case, when one actually sits down and reads the
trial transcript as a whole, were Taylor’s own confessions—on no less than five different
occasions, as testified to by three witnesses at trial—that Taylor shot Nelson and Stephenson.

Start with the testimony of Beverly Shackleford, a neighborhood acquaintance who—
unlike almost every other witness in the case—had neither any criminal charges pending against
her nor any familial relationship with Taylor. Shackleford testified that, two days after the
murders, while Shackleford was walking on Clay Street, Taylor and a companion walked toward
them the opposite way. As the three of them came close to each other, Shackleford heard the
other young man ask Taylor: “man, did you really kill them two dudes.” Taylor responded:
“yeah, I did it; and there ain’t a goddamn thing they can do about it. It’s a game.”
 No. 14-6508 Taylor v. Jordan Page 17

Not long after, Shackleford and a friend (“Nesee”) were standing “[a]t the corner of
Hancock and Finzer, in front of Thoroughbred Liquors.” Taylor was also standing there, with
“about ten or twelve other people standing around.” She said that “Victor was bragging again.
One of the guys asked Victor if he really killed those two white dudes.” Again Taylor answered:
“Yeah, I did it. Ain’t a damned thing they can do about it.”

Not long after that incident, Shackleford walked down Jackson Street, before turning east
onto Breckinridge. At the corner, she saw Taylor standing with two young men. As Shackleford
“got to the corner where you cross from the alley over, th[e]y were—they took off walking.
I couldn’t have been five steps behind them.” One of the men asked Taylor if he killed the two
boys; “[o]nce again, he admitted; yes, he did it.” The “other guy” then “told Victor that he
needed to stop talking about all the dumb shit.” On cross-examination, Taylor’s counsel pressed
Shackleford about when she had told the police about these incidents and about the dates of the
incidents themselves. But on redirect Shackleford repeated what she had said in her direct
testimony: “I don’t remember the specific dates. I roughly estimated them.” And as to whether
she had “any doubt” that she had “heard [Taylor] make these statements[,]” Shackleford was
adamant: “There is no doubt. I heard it and I saw it.” She added, in response to a question:
“I’ve known him as Victor for many a year.”

The second witness who heard this kind of boasting was Taylor’s cousin, Eugene Taylor,
who saw Taylor and Wade enter the home of Taylor’s mother around 9:30 p.m. on the night of
the murders. (That timing comports with the testimony of one of the witnesses of the boys’
abduction outside the Moby Dick, who said the time was between 8:30 and 9 p.m.; the other
witness likewise said it was “sort of dark” then.) Taylor promptly asked his sister, Renee,
whether she had heard about the two “white boys” getting killed. (The boys’ bodies were not
found until the next day.) Soon thereafter—again in the home of Taylor’s mother, and within
earshot of everyone present—Taylor told Renee that he had killed the two boys.

The third witness to hear Taylor’s confession was Jeffrey Brown, a self-described “jail
house lawyer” who had known Taylor since about 1979. In November 1984, both men were
confined in the Jefferson County Jail. Not long after Taylor arrived there, Brown was in the
“day room” on the “sixth floor” of the jail, where inmates were “sitting around playing dominoes
 No. 14-6508 Taylor v. Jordan Page 18

and what have you, different table-top games.” Brown testified that Taylor approached him
(“Taylor came to me”) and began asking Brown questions about Taylor’s case, at which point
the other men “kind of filtered back off.” Taylor told Brown that he and George Wade had been
out looking to “get some money in their pocket.” Taylor said “[t]hese guys in the car pulled up
to the curb and stopped him and George”—in Taylor’s account, the boys were looking for
marijuana. Taylor said that he and Wade “got in the car with the guys” and that Taylor “pulled
the pistol on them.” As they drove, Taylor “began to look for an area that was not a lot of people
around, secluded area.” They “found this area where there was nobody at,” and Taylor “made
the guys pull over and get out of their car.” Then Taylor said he was “holding the gun on them
while George went through their—searching them and stuff for money.” They found some, but
not a lot. Then Taylor and Wade made the boys take off “their shoes and socks” and “certain
parts of their clothes”—including the boys’ pants—“looking for money.” Taylor and Wade put
those items in “some type of bag.” Around this time, Wade referred to Taylor by name. After
the boys were undressed, Taylor recounted, Wade “started talking real bad. He said, boy, you
look like a little whore and a little female.” Taylor said this was “when the freak shit started
coming up in their minds.” At that point, Taylor related, “both of them, he and George,”
proceeded “to have sexual intercourse in the guys [sic] rectum or ass[.]”

When the “sex thing” was done, Taylor said, he “told George that by calling him his
name that they’ll have to make sure these guys don’t get a chance to identify them or whatever.
They could inform the police about what happened, because he’d already given him his name.”
Then Taylor “told George he was going to have to take them out”—meaning “to kill them.”
Taylor “followed through with that”—he said “we killed them, shot them.” Taylor also “said”—
in a detail likely more inflammatory than any that Wade provided in his statement—that “one of
the guys—he didn’t, you know, say which one, said they tried begging, talking them out of
hurting them, that they’d done enough to them already.” But Taylor said he killed them anyway.

Taylor now argues that Brown and Eugene Taylor alike received favorable plea deals in
connection with their testimony, which appears true enough. The same is true of legions of
witnesses whom juries find credible in criminal trials. Taylor also emphasizes that Brown briefly
recanted his account of what Taylor had told him—as Brown himself readily admitted at trial.
 No. 14-6508 Taylor v. Jordan Page 19

But Brown said that recantation came after Taylor had repeatedly—“more than three or four”
times—threatened “physical harm to me or my mother.” One of those threats came on January
15, 1985, “in the front holding pen of the Jefferson County Jail. They were bringing Victor
Taylor by, two guards were bringing him by, shackled. We had words”—which included a
physical threat.

What Taylor does not dispute, however, is that Brown had no apparent means to make
this story up. And contrary to Taylor’s argument that Wade’s statement was the only evidence at
trial that described the whole criminal sequence in detail, Brown’s testimony did exactly that.
(The testimony of Cecil Pepper and Dino Pace did the same for the circumstances of the boys’
abduction.) Indeed, the fact that Brown’s account so closely matched Wade’s—of which Brown
was presumably unaware—strongly corroborates Brown’s testimony. Moreover, Brown was the
only witness to describe the boys begging for their lives and the rape of Nelson. No other
witness at trial testified to that rape; and that an anal swab of Nelson yielded sperm further
corroborates Brown’s account. (So too does the discovery at the crime scene of a “beige shirt”
with pubic hairs on it; Pace testified that one of the men who abducted the boys—whom he later
identified as Taylor—was wearing a “Brown/tan shirt.”)

The circumstantial evidence in Taylor’s case was likewise compelling. In the days after
the murders, officers found Taylor’s girlfriend wearing Stephenson’s jacket and Taylor’s
brother-in-law wearing Nelson’s jeans. Their explanations for having those items only tied the
items more closely to Taylor: his girlfriend said that Taylor had told her that he “stole” the
jacket from a nearby shopping mall; and Taylor’s brother-in-law told the officer (who confirmed
the point in his own testimony) that the jeans were “Victor’s.” Moreover, as recited above,
during the search of the home of Taylor’s mother (Anna Taylor), police found Nelson’s cassette
tapes on Taylor’s bed and Nelson’s shoes underneath it; and they found Stephenson’s gray
Pumas in plain view in Anna Taylor’s bedroom and a feather clip belonging to one of the victims
attached to a lamp wire in the kitchen. Anna Taylor denied seeing the shoes or clip, even though
they had been in plain view for days.
 No. 14-6508 Taylor v. Jordan Page 20

Meanwhile, in the search of the home of Taylor’s sister (Renee Taylor),
police found three .357 caliber hollow-point bullets that had been manufactured by
“Winchester-Western”—just like the bullets used to kill Nelson and Stephenson. Nobody who
lived in the home (other than Taylor) even owned a gun. (The dissent points out that those
bullets came from a different “lot” than the ones used in the murders. But the expert who
testified about the bullets said it was “very common” for even a single firearm to be loaded with
bullets from different lots.) Renee Taylor claimed at trial that she had found the bullets in the
attic when she moved into the home, and for some reason had kept them in her dresser drawer
ever since. That testimony was about as credible as the testimony of Taylor’s mother that she
had not noticed any of the items stolen from the boys that were hanging or lying about in plain
view in her home. And Renee’s husband—who used the same dresser himself—testified that he
knew nothing about any bullets being in the house at all.

A dissenting opinion cites the testimony of Taylor’s mother and girlfriend for the
proposition that Taylor was at his mother’s home the night of the murders playing cards “all
evening.” Those witnesses, the dissent says, also purportedly “confirmed” that Taylor’s sister
Renee was out of town that night and thus could not have had a conversation with Taylor about
the murders. But Taylor’s mother, sister, and girlfriend all had an obvious motive to script
their testimony to protect him. And they just as obviously had ample opportunity to do the
same—notwithstanding Anna Taylor’s rather incredible assertion at trial that none of Taylor’s
family members had ever discussed the events of September 29 (the night of the murders) with
each other before testifying about them at trial. By contrast, Beverly Shackleford, Eugene
Taylor, and Jeffrey Brown had no opportunity to coordinate their testimony at all. And Renee
Taylor’s testimony that she was out of town the night of September 29 was nearly incoherent.
She had told Homicide Detective Wohl on October 4 that she had left for Nashville on Sunday,
September 30—just a few days before her interview with Wohl. But at trial—to the prosecutor’s
obvious surprise—she testified that, on September 29, she had been “in Cincinnati—Nashville.
I was in Nashville, I think.” She testified further that she had left Louisville on Wednesday,
September 25, in the afternoon, after a birthday party for her daughter—even though she told
Wohl on October 4 that she had left on September 30, around 9 p.m.—without any mention of a
birthday party.
 No. 14-6508 Taylor v. Jordan Page 21

The dissenting opinion thus relies upon a string of contingencies, few of which were
credible, and all of which the jury would have needed to accept to have acquitted Taylor. To wit:
that Beverly Shackleford, Eugene Taylor, and Jeffrey Brown had all fabricated their testimony
that Taylor admitted or boasted about killing the two boys—even though Shackleford had no
motive and Brown had no ability to fabricate their respective accounts; that Taylor’s mother,
sister, and girlfriend had all testified truthfully, notwithstanding their motive and ability to
fabricate a coordinated story to protect Taylor, and notwithstanding numerous aspects of their
testimony that any sentient juror would find dubious; that it was merely a coincidence, in the
days after the murders, that Taylor’s girlfriend and brother-in-law—as opposed to someone
else’s—were wearing items of clothing stolen from the dead boys; that it was a coincidence as
well that Nelson’s cassettes and shoes were found on and under Taylor’s bed; and that therefore
perhaps Eugene (or Taylor’s brothers Ray Ray or Mikee, or Anna Taylor’s boyfriend John Cole),
rather than Taylor, had murdered Nelson and Stephenson.

On this record, there was no “reasonable possibility”—not to mention “much more than a
‘reasonable possibility[,]’” Ayala, 576 U.S. at 276—that a jury would embrace all those
contingencies. And setting aside Wade’s statement, the proof of Taylor’s guilt was
overwhelming. True, the jury asked to listen to Wade’s recorded statement during its
deliberations, which, in fairness, is the best point that the dissent can offer in support of its
conclusion. But to cite that point as proof of a more-than-reasonable possibility that, absent
Wade’s statement—and notwithstanding the compelling evidence of Taylor’s guilt—the jury
would have decided this case differently, is at best pure speculation. And “Brecht requires more
than speculation” for a habeas court to grant relief. Id. at 281. We have no lawful basis, more
than 35 years after the victims’ murders and Taylor’s trial, to invalidate the State’s criminal
judgment in this case.

C.

Finally, we reject Taylor’s claim that his counsel was constitutionally ineffective for
failing to develop a claim under the Supreme Court’s decision in Swain. The Swain decision, as
the Supreme Court explained in overruling it, was understood to impose “on defendants a
crippling burden of proof[.]” Batson, 476 U.S. at 92. Specifically, to meet that burden, “a
 No. 14-6508 Taylor v. Jordan Page 22

defendant must show a pattern of racial discrimination in prior cases as well as in his own.”
Ford v. Georgia, 498 U.S. 411, 420 (1991). As explained above, Taylor could not make that
showing as to even his own case. For that reason, among others, his trial counsel was not
constitutionally ineffective, and Taylor was not prejudiced, by counsel’s decision not to develop
that claim further. See generally Taylor, 972 F.3d at 789.

* * *

The district court’s judgment is affirmed.
 No. 14-6508 Taylor v. Jordan Page 23

_________________

DISSENT
_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Victor Dewayne Taylor has
insisted for decades that his prosecutors unconstitutionally struck all but one of the Black
prospective jurors in his capital trial. Taylor is right—his prosecutor admitted to the trial court
that these jurors were challenged because of their race. The Kentucky Supreme Court wrote a
one-sentence dismissal of Taylor’s claim on direct appeal, Taylor v. Commonwealth (Taylor I),
821 S.W.2d 72, 74 (Ky. 1991), and revisited the claim more thoroughly in postconviction
proceedings, Taylor v. Commonwealth (Taylor II), 63 S.W.3d 151, 156–57 (Ky. 2001). Not one
judge on this en banc court disputes that Taylor II impermissibly contradicted Batson v.
Kentucky, 476 U.S. 79 (1986), in rejecting Taylor’s claim. Yet the majority insists that we must
pretend that Taylor II never happened and instead read tea leaves in Taylor I’s one-sentence
denial. This topsy-turvy travesty violates the Supreme Court’s interpretation of 28 U.S.C.
§ 2254(d), contravenes the Court’s Batson caselaw, and undermines the Antiterrorism and
Effective Death Penalty Act of 1996’s (AEDPA’s) bedrock principle of deference to state courts.
The majority has not just sounded Taylor’s death knell; it has also put the writ of habeas corpus
into the ground. I dissent.

Context is vital to understanding the gross injustice in Taylor’s case. In the mid-1980s,
prosecutors from Jefferson County, Kentucky prosecuted three Black men—James Kirkland
Batson, Randall Lamont Griffith, and Victor Dewayne Taylor—within years of each other. At
the time, the Kentucky Prosecutor’s Handbook stated that prospective jurors who share the
defendant’s race were not “preferable,” and it was policy and practice for Jefferson County
prosecutors to strike all prospective jurors who were Black or shared a defendant’s ethnic
background. See Taylor Postconviction Br. at 24–29.1 At Batson’s, Griffith’s, and Taylor’s
trials, the Jefferson County prosecutors struck most or all Black prospective jurors. Batson was

1Taylor submitted this evidence to the Taylor II court. See Taylor Postconviction Br. at 24–28. Because
the majority should have considered Taylor II—as Judge Griffin lays out—we may consider this evidence. See
J. Griffin Op. at 39–42, 50.
 No. 14-6508 Taylor v. Jordan Page 24

tried by an all-white jury; so was Griffith. Just one Black person sat on Taylor’s jury. See
Batson, 476 U.S. at 83; Griffith v. Kentucky, 479 U.S. 314, 317 (1987); Taylor Direct Appeal Br.
at 47; Taylor Postconviction Br. at 21.

The Supreme Court addressed Batson’s and Griffith’s cases in back-to-back blockbuster
decisions. The Supreme Court granted Batson relief, setting forth a three-step test to review
peremptory challenges allegedly used to exclude jurors on the basis of race. See Batson,
476 U.S. at 96–97, 100. Because Griffith’s case was pending on direct appeal when Batson was
issued, the Supreme Court concluded that Griffith was retroactively entitled to the rule espoused
in Batson’s case. See Griffith, 479 U.S. at 328.

Yet almost no habeas petitioner has emulated Batson’s and Griffith’s victories in court
because of three nearly insurmountable legal hurdles. First, Batson is toothless. At step two of
Batson’s test, prosecutors need supply only a facially valid race-neutral reason for challenging a
juror, and very few “neutral” explanations are rejected as pretextual. See Purkett v. Elem,
514 U.S. 765, 767–68 (1995) (“The second step of this process does not demand an explanation
that is persuasive, or even plausible.”); Michael J. Raphael & Edward J. Ungvarsky,
Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky, 27 U. MICH. J.L. REFORM
229, 235–36 (1993); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare
More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL
L. REV. 1075, 1076–78 (2011).

Second, very few defendants may retroactively benefit from Supreme Court decisions in
habeas cases. Unless your case was pending on direct appeal when a Supreme Court decision
was issued—as in Griffith—you’re almost certainly out of luck. See 28 U.S.C. § 2244(b)(2)(A);
Teague v. Lane, 489 U.S. 288, 307–08, 311–12 (1989); Edwards v. Vannoy, — U.S. —, 141
S. Ct. 1547, 1557–61 (2021).

Third, Congress passed AEDPA twenty-five years ago because its members felt that the
federal courts should owe the states more deference in habeas proceedings. See 130 Cong. Rec.
S1855–61 (daily ed. Feb. 6, 1984); 141 Cong. Rec. H4086–89 (daily ed. Feb. 8, 1995). AEDPA
provides that we may grant relief only if a state court’s merits decision is contrary to or
 No. 14-6508 Taylor v. Jordan Page 25

unreasonably applies Supreme Court precedent or if the state court’s decision was based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). If a state court’s decision
“consist[s] of a one-word order, such as ‘affirmed’ or ‘denied,’” for example, a federal habeas
court “should ‘look through’ the unexplained decision to the last related state-court decision that
does provide a relevant rationale” and “presume that the unexplained decision adopted the same
reasoning.” Wilson v. Sellers, — U.S. —, 138 S. Ct. 1188, 1192 (2018); see also Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same
claim rest upon the same ground.”). And if there is “no lower [state] court opinion to look to,”
Wilson, 138 S. Ct. at 1195, the federal courts “must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision,” Harrington v. Richter,
562 U.S. 86, 102 (2011). That’s how heavy AEDPA deference is: if the only state-court
decision that addresses a habeas claim consists of just one word, we must retroactively conjure
up reasoning to justify the state court’s outcome—even if the state court was wrong.

Taylor is the rare habeas petitioner who has surmounted Batson’s steep substantive
stockade, waded through the boggy moat of retroactivity caselaw, and traversed AEDPA’s
battlements of deference. First, Taylor has successfully asserted a Batson claim. His prosecutor
failed to supply any race-neutral reason for striking Black persons off Taylor’s jury. Indeed, the
prosecutor’s response to Taylor’s objection was overtly racist: “[T]he Commonwealth would
note defense also struck at least one or two black folk. . . . In accordance with case law, the
Commonwealth has no other rational reason—if I strike all [i.e., “black folk”] it then becomes
objectionable under the cases from, as I understand it, coming from California.” 4/7/86 Hr’g Tr.
at 10 (emphases added); but see J. Kethledge Op. at 14 (“[W]hat the prosecutor sought to convey
here is anyone’s guess.”). Second, Batson was issued the same day that Taylor’s trial concluded.
See Batson, 476 U.S. at 79; Appellant’s Br. at 5. Taylor, like Griffith, thus retroactively benefits
from Batson’s test. Third, as the majority seemingly concedes, the Kentucky Supreme Court
unreasonably misstated, misapplied, and contradicted Batson in “the last related state-court
decision that does provide a relevant rationale,” Wilson, 138 S. Ct. at 1192—Taylor II. See J.
Griffin Op. at 42–47; see also J. Kethledge Op. at 9–10 (“[Taylor] contends[] [that] the [Taylor
II] court’s insistence upon ‘a showing of “other relevant circumstances” that create an inference
 No. 14-6508 Taylor v. Jordan Page 26

that the prosecutor struck the jurors on the basis of their race[,]’ implied that the court thought
that a defendant can never establish a prima facie case based on numbers alone. One could read
the opinion in Taylor II to have that implication; and we have no quarrel with Taylor’s point that
the implication would misconstrue Batson.” (last alteration in original, citation omitted)).

Taylor has threaded his meritorious habeas claim through the eyes of three needles, and
we are constitutionally compelled to vacate his conviction. Yet he has befallen an unprecedented
and unfounded fourth needle that the majority has newly fabricated in Taylor’s case: a look-
away doctrine. Now, the majority requires that we replace what a state supreme court actually
stated in “the last related state-court decision that does provide a relevant rationale,” Wilson,
138 S. Ct. at 1192, with this federal court’s post hoc speculations of what we think the state
supreme court could have considered. The majority’s novel approach violates the logic of
Wilson, Ylst, and Richter; flouts the plain text of § 2254(d)(1); and railroads the entire point of
AEDPA. The Kentucky Supreme Court said what it meant and meant what it said. We should
take the state court’s words at face value; we should not muzzle its justices to rely instead on our
own conjectures.

I thus partially join Judge Griffin’s and Judge Cole’s dissents and fully join Judge
White’s dissent. I agree with Judge Griffin’s thorough analysis of the Supreme Court’s
look-through doctrine and his conclusion that we must consider what the Kentucky Supreme
Court stated about Batson in Taylor II. And, as Judge Griffin explains, the Taylor II court’s
articulation of the relevant three-part test impermissibly contradicted Batson. See J. Griffin Op.
at 42–47. Even if we were to look at Taylor I, however, Taylor should still triumph because the
Taylor I court unreasonably applied Batson. As Judge Cole thoughtfully explains, a prosecutor’s
“noting the race of potential jurors and using that information to disproportionately remove two-
thirds of the potential Black jurors” sufficiently establishes a prima facie Batson violation. See
J. Cole Op. at 29. Further, as Judge White meticulously dissects, the majority’s flawed pattern-
of-strikes analysis flouts Batson and its progeny. See generally J. White Op. I also believe that
we must address Taylor’s meritorious Confrontation Clause claim, even though Taylor did not
raise the issue in his en banc petition. Thus, I must part ways with Judge Griffin and join Judge
Cole on that issue. I join in full Judge Cole’s rigorous analysis of the Confrontation Clause
 No. 14-6508 Taylor v. Jordan Page 27

question, and I would hold that Taylor merits habeas relief on that issue as well. To that end,
I join all but footnote one in Judge Griffin’s dissent. I also join all but § I.A.i. of Judge Cole’s
dissent because that section states that we must look at Taylor I alone. I fully join Judge White’s
dissent.

I end as I began, with context. The Supreme Court created our modern federal habeas
jurisprudence in cases like United States v. Shipp, 203 U.S. 563 (1906), and Moore v. Dempsey,
261 U.S. 86 (1923), to combat postbellum anti-Black mob violence and the “legal lynching” of
Black men by the Jim Crow justice system. Michael J. Klarman, The Racial Origins of Modern
Criminal Procedure, 99 MICH. L. REV. 48, 50–53 (2000); see also MARK CURRIDEN & LEROY
PHILLIPS, CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED A

HUNDRED YEARS OF FEDERALISM (2001). At issue in Shipp and Moore were Black defendants,
like Taylor, whose prosecutors systematically struck Black persons off their juries. Shipp,
203 U.S. at 571; Moore, 261 U.S. at 89. Later cases like Batson, Griffith, and, more recently,
Flowers v. Mississippi, — U.S. —, 139 S. Ct. 2228 (2019), remind us that the unconscionable
and unconstitutional practice of systematically striking persons of color from juries persists to
this very day. I reiterate that Taylor was prosecuted by the same persons at the same time and in
the same unconstitutional manner as Batson and Griffith. To me, it is inconceivable that the
majority denies Taylor the relief that the Supreme Court accorded to Batson and Griffith. With
the weight of history on my shoulders, I cannot stand idly by while the majority bakes new law
from scratch to justify Taylor’s unconstitutional trial and execution.

By condemning Victor Dewayne Taylor to die, the majority confirms a largely unspoken
truth: the once-great writ of habeas corpus now means nothing. Cf. Ex parte Bollman, 8 U.S.
(4 Cranch) 75, 95–96 (1807) (Marshall, C.J.); see Hon. Diane P. Wood, The Enduring
Challenges for Habeas Corpus, 95 NOTRE DAME L. REV. 1809, 1810 (2020) (“The rule of law is
not well served when people are told that they have a remedy, but in fact they do not.”). Only
Congress or the Supreme Court can save the writ from its legal hollowness and revive “the
symbol and guardian of individual liberty.” Peyton v. Rowe, 391 U.S. 54, 58 (1968). Until that
day comes, I refuse to help the majority entomb the writ of habeas corpus. I dissent.
 No. 14-6508 Taylor v. Jordan Page 28

_________________

DISSENT
_________________

COLE, Circuit Judge, dissenting. Victor Taylor’s trial was marred by two paradigmatic
constitutional violations. First, the prosecutor struck members of the jury venire on the basis of
their race and admitted to doing so. Second, the trial court allowed the introduction of an
accomplice statement without cross-examination in direct violation of the Confrontation Clause.
The Kentucky Supreme Court had multiple opportunities to right the errors of Taylor’s trial
and failed to do so. Because our court fails to rectify these egregious constitutional violations,
I respectfully dissent.

I.

A. BATSON

i. Adjudication on the merits

I agree with the majority’s rejection of Taylor’s invitation to “look-through” the decision
in Taylor I to the later decision in Taylor II. Taylor’s Batson claim was last adjudicated on the
merits by the Kentucky Supreme Court in Taylor I. The fact that the Kentucky Supreme Court
referenced Taylor’s Batson claim at a later date in Taylor II does not render that later decision a
merits adjudication. See Greene v. Fisher, 565 U.S. 34, 40 (2011) (“A later affirmance of [a]
decision on alternative procedural grounds, for example, would not be a decision resulting from
the merits adjudication.”).

Nor can we employ Wilson’s look-through provision to consider the court’s reasoning in
Taylor II. That’s because federal courts conducting habeas review may consider only those
materials that were in the state court record at the time it made its decision. Cullen v. Pinholster,
563 U.S. 170, 181 (2011). The state court merits adjudication must be contrary to or an
unreasonable application of federal law at the time it was made. Id. at 182. That precludes our
consideration of factors that the state court could never have considered in rendering its decision:
namely the subsequent thoughts of a different set of justices ten years later.
 No. 14-6508 Taylor v. Jordan Page 29

Our inquiry therefore is whether the Taylor I decision denying Taylor’s Batson claim was
an unreasonable application of clearly established federal law at the time it was made.

ii. Unreasonable application

Where, as here, the state court summarily denies a claim of error, the habeas court must
determine what arguments could have supported the state court decision. Harrington v. Richter,
562 U.S. 86, 102 (2011). In this case, that determination is simple. The Batson three-step test
first requires that the defendant establish a prima facie case by raising an inference of
discrimination. Next, the prosecutor has an opportunity to provide a race-neutral reason.
Finally, the trial judge considers whether the race-neutral reason was pre-textual. Batson v.
Kentucky, 476 U.S. 79, 96 (1986). Because the trial took place before Batson, the trial court did
not hold a Batson hearing. Therefore, the prosecutor did not offer a race-neutral reason and the
trial judge did not decide whether the reason was pretext. So the only reason the Kentucky
Supreme Court could have rejected Taylor’s Batson claim is a failure to raise an inference of
discrimination.

No fair-minded jurist could conclude that Taylor failed to raise at least an inference of
discrimination. See Johnson v. California, 545 U.S. 162, 168 (2005) (an inference is less than a
“strong likelihood” or “preponderance”). The prosecutor in Taylor’s trial noted the race of each
potential juror on his juror chart. That fact alone suggests that the prosecutor considered race
when selecting jurors. And his use of peremptory strikes confirms that suspicion. The
prosecutor used 50% of his peremptory strikes to remove potential Black jurors, even though
they made up little more than 15% of the venire. And while the prosecutor accepted only 33% of
the qualified Black jurors, he accepted 87% of the qualified white jurors.

If noting the race of potential jurors and using that information to disproportionately
remove two-thirds of the potential Black jurors is not enough to raise an inference of
discrimination, then we can let the prosecutor speak for himself. When Taylor’s counsel
objected to the seating of the jury because the prosecutor had disproportionately struck Black
jurors, the prosecutor explained that he had “no other rational reason” for his use of strikes. This
colloquy took place before Batson was decided, at a time when striking jurors on the basis of
 No. 14-6508 Taylor v. Jordan Page 30

race had not yet been held unconstitutional. And so the prosecutor explained that, under his
understanding of the case law, his actions were not objectionable unless he struck all the Black
jurors.

The majority opinion does not even attempt to propose an alternative interpretation of the
prosecutor’s statement that he had “no other rational reasons” for striking the Black members of
the venire. Indeed, it is impossible to see what the prosecutor could have meant if we do not take
his statement as an admission to striking jurors on the basis of race.

The heart of Batson’s holding is that a prosecutor cannot strike jurors on account of their
race. Here, the prosecutor admitted to doing just that. A determination that the prosecutor’s
actions did not violate Batson can be nothing other than a patently unreasonable application of
Batson itself.

B. CONFRONTATION CLAUSE

i. Contrary to federal law

Taylor I’s Confrontation Clause analysis was contrary to clearly established federal law
the moment it was decided. That much is uncontroversial. At the time of the Kentucky Supreme
Court’s ruling in 1990, Ohio v. Roberts governed Confrontation Clause challenges. In Roberts,
the Supreme Court held that a hearsay statement is admissible against a criminal defendant in
two circumstances: if it 1) falls within a “firmly rooted hearsay exception,” or 2) possesses
“particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 65–66 (1980).
Statements bearing “particularized guarantees of trustworthiness” must be “at least as reliable as
evidence admitted under a firmly rooted hearsay exception.” Idaho v. Wright, 497 U.S. 805, 821
(1990).

In Taylor I, the Kentucky Supreme Court found that Wade’s statement fell within “a
recognized exception to the hearsay rule” for statements against penal interest. Taylor I,
821 S.W.2d at 76. But, at the time, it was clearly established that an accomplice’s custodial
confession does not fall within a “firmly rooted” hearsay exception. This court has held that the
principle was clearly established by Douglas (1965), Bruton (1968), and Lee (1986). Hill v.
 No. 14-6508 Taylor v. Jordan Page 31

Hofbauer, 337 F.3d 706, 717 (6th Cir. 2003) (“We hold that Douglas, Bruton, and Lee evidence
that the Supreme Court had clearly established the principle that a co-defendant’s custodial
confessions are unreliable and not within a ‘firmly rooted’ hearsay exception”); see also Fulcher
v. Motley, 444 F.3d 791, 800 (6th Cir. 2006).

With regard to Roberts’s second category, it was clearly established at the time of
Taylor’s direct appeal that courts could not consider corroborating evidence in assessing the
reliability of a hearsay statement. Wright, 497 U.S. at 822 (rejecting the “contention that
evidence corroborating the truth of a hearsay statement [could] properly support a finding that
the statement bears ‘particularized guarantees of trustworthiness’”). “To be admissible under the
Confrontation Clause, hearsay evidence used to convict a defendant [had to] possess indicia of
reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.”
Id. And Lee held that there is a “weighty presumption” against the admission of unexamined
accomplice statements, which requires substantial indicia of reliability to overcome. Lee,
476 U.S. at 546 (“[O]n the record before us, there is no occasion to depart from the time-honored
teaching that a codefendant's confession inculpating the accused is inherently unreliable, and that
convictions supported by such evidence violate the constitutional right of confrontation.”).

In fact, the flaws of the Kentucky Supreme Court’s Confrontation Clause analysis are so
evident that both our circuit and the Supreme Court have recognized them. First we held that
“Taylor’s four-factor test, and the Kentucky Supreme Court’s application of it, were contrary to
the reasoning and the result that federal law required in at least two ways.” Fulcher, 444 F.3d at
805. Next, the Supreme Court, in Crawford itself, cited Taylor as a case in which the trial court
“admit[ted] core testimonial statements that the Confrontation Clause plainly meant to exclude.”
Crawford v. Washington, 541 U.S. 36, 64 (2004). It is clear that admitting Wade’s statement
violated the Confrontation Clause. The Kentucky Supreme Court’s opposing decision is
contrary to federal law.

ii. Harmless error

Habeas petitioners must have suffered “actual prejudice” from a constitutional error.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). That standard is met when a federal court “is
 No. 14-6508 Taylor v. Jordan Page 32

in grave doubt about whether a trial error of federal law had substantial and injurious effect or
influence in determining the jury's verdict.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
“[G]rave doubt [ ] mean[s] that, in the judge’s mind, the matter is so evenly balanced that he
feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435. “In other
words, a tie goes to the petitioner.” Miller v. Genovese, 994 F.3d 734, 744 (6th Cir. 2021).

An accomplice statement incriminating the defendant is “devastating to the defendant.”
Bruton v. United States, 391 U.S. 123, 136 (1968). It is so devastating, in fact, that the
prejudicial effect is akin to the defendant’s own confession. Id. This is a well-known feature of
our system. Accomplice statements that cannot be cross-examined are so prejudicial to
defendants that we give co-defendants separate trials. Id. Even jury instructions cannot cure the
severe prejudice caused by such statements. Id. In Gray v. Maryland, for instance, the Court
redacted the defendant’s name from his codefendant’s confession and even then, the prejudice to
the defendant was too strong. 523 U.S. 185, 188 (1998). And the Court has acknowledged that
an accomplice’s confession might be harmful even when the defendant’s own confession is
properly introduced. Cruz v. New York, 481 U.S. 186, 192 (1987). In this context, it strains
credulity that the admission of Wade’s statement could have been harmless. The facts of
Taylor’s trial bear this out.

Wade’s statement was particularly prejudicial in the context of Taylor’s trial. Wade said
that Taylor shot the victims even after he had pleaded with Taylor not to. Wade then said that
Taylor came back from the shooting “laughin’ like, you know, he was crazy or somethin’.”
Importantly, Wade’s statement was the only evidence that identified Taylor as the shooter. And
the prosecutor relied heavily on Wade’s statement as evidence that tied the whole case together
and solved the credibility problems with other prosecution witnesses.

Jeffrey Brown was a jailhouse lawyer who testified that Taylor admitted to the shootings
while they were in Jefferson County Jail together. He said that Taylor sought his legal advice
and admitted that he shot the boys after Wade had said Taylor’s name in front of one of the boys.
Brown explained that inmates came to him for advice because he had beaten two murder charges
himself.
 No. 14-6508 Taylor v. Jordan Page 33

Not only did the jury hear that Brown had proudly evaded two murder charges, it also
heard that he received a substantial sentence benefit for his testimony and did not come forward
with his statement until about six months after his alleged conversation with Taylor. The
sentence benefit reduced first degree robbery to second degree robbery and dropped the
persistent felony charge. Rather than a 20-to-life sentence, Brown received five years to run
concurrently with time he was already serving for other charges.

Most damning to Brown’s credibility is the fact that, before trial, he recanted his
statement on two separate occasions. The majority dismisses this fact, noting simply that Brown
“briefly recanted” his testimony. In reality, Brown told three different people that his allegations
against Taylor were untrue. First he told Wade’s attorneys that he had lied to the police when he
gave his statement about Taylor in order to get out of the twenty-to-life sentence he was facing
for robbery. Next, Brown wrote a letter to Taylor’s prosecutor saying that his statement against
Taylor was untrue. He even threatened to come forward with the truth, stating that if called to
testify, “I will say everything that is true to help these young men. I will tell the truth that you
made a deal with me to get them.” But that never happened. Brown got exactly what he asked
for: He testified at Taylor’s trial and served no additional time for the robbery.

Eugene Taylor, Taylor’s cousin, testified that he saw Taylor and Wade in a car with the
boys on the night of the murder. Later that night, he said that he saw Taylor at Taylor’s mother’s
house with a Trinity High gym bag, some tennis shoes, blue jeans, a Led Zeppelin cassette tape,
a watch, a ring, and some firecrackers. Eugene testified that he heard Taylor ask his sister
whether she had heard anything about the murder of two white boys and heard Taylor confess
that he had shot them. Then Eugene testified that Taylor swapped cash and pistols with his sister
and split the cash with Wade.

But Taylor’s sister, Renee, testified that she was out of town that night and never had that
conversation with Taylor. Taylor’s girlfriend confirmed that Renee was out of town that night.
And Taylor’s girlfriend testified that she was with Taylor at his mother’s house all evening until
11 pm on the night of the murders and Eugene was not there. Taylor’s mother confirmed that
Taylor was with his girlfriend at her house all evening.
 No. 14-6508 Taylor v. Jordan Page 34

Eugene made his statement to the police weeks after the murder on the day he was
arrested and charged with robbery, rape, sodomy, terroristic threatening, and assault. After he
made the statement, the charges were dismissed. In the lead-up to Taylor’s trial, Eugene was
again arrested, this time for receiving stolen property, burglary, and possession of marijuana.
The burglary and the marijuana charges were dismissed and the receiving stolen property charge
was amended to a misdemeanor. One of the conditions of his probation was that he pay
restitution of $1000 to a church at $100 per month. Eugene never made any payments, but his
probation was never revoked. At the time of Victor Taylor’s trial, Eugene had been additionally
charged with burglary and arson. Eugene’s lawyer was present when he testified against Taylor,
and he asked to consult his attorney in the middle of his testimony. The jury watched as
Eugene’s testimony was put on pause to allow him to consult with his attorney.

Beverly Shackelford testified at trial that Taylor admitted on three separate occasions that
he shot the victims. The first statement was allegedly made on October 1st, the second on
October 3rd at approximately 6 pm and the third on October 4th also around 6 pm. Beverly was
interviewed by a detective in the case on October 3rd at 6:57 p.m., less than an hour after she
testified that the second statement was made, but she did not tell the police about the supposed
statement in her interview. And at the time she alleges the third statement was made, Taylor was
already in police custody. Taylor was arrested at about 4:20 a.m. on October 4th and could not
have confessed to Beverly at 6 p.m. It seems patently incredible to believe her trial testimony
when, mere hours before Taylor was arrested, Beverly gave a statement to the police containing
none of the information in her trial testimony. All Beverly told the police was that her mother
told her that her brother and a friend saw “Victor Spencer” and a friend leave the bar shortly after
the two murder victims. She said nothing about talking to Taylor, nothing about any
confessions, nothing about a green school jacket. She didn’t even get his name right.

The two eyewitnesses, Pepper and Pace, both had credibility problems as well. Pepper
and Pace were at a restaurant and witnessed the kidnapping at gunpoint. They both identified
Taylor as the kidnapper at trial, but neither could identify Taylor in a photo lineup they were
shown before his arrest. And their testimony about what they thought the kidnapper looked like
differed. For example, one said he had a mustache, and the other was completely confident that
 No. 14-6508 Taylor v. Jordan Page 35

he was clean-shaven. What’s more, Pace gave the police a fake name when he first spoke to
them because he was wanted on another charge. While Taylor was awaiting trial, Pace had a
felony assault charge amended by the prosecution to a misdemeanor and had the sentence
probated. He was on probation when he testified at trial.

The Commonwealth also introduced physical evidence. Four Winchester-Western .357
magnum rounds were found in the dresser of Taylor’s sister’s house. These were of the same
caliber and brand as those used to kill the victims. But only three of the four bullets were semi-
jacketed like the ones used to shoot the victim. And a Commonwealth expert ran an elemental
composition test on the makeup on the lead in the bullets. While the two bullets used to kill both
victims came from the same batch of lead, the bullets in the sister’s dresser “differed
significantly” from the two that killed the victims. The expert testified that the three .357 bullets
were not manufactured in the same lot as those used to kill the victims. Renee Taylor testified
that she put the bullets in her dresser because she found them and a few other miscellaneous
bullets when she moved into the house and wanted to move them out of the attic where the
children played.

A witness to the abduction said that Taylor was wearing a beige shirt, and a beige shirt
was found near the crime scene. An expert testified that the shirt had hairs consistent with
Taylor’s head and pubic hair. But the expert also explained that hair testing is not a conclusive
form of positive identification and at best can only eliminate a particular suspect. The expert
ultimately did not conclude that the hairs originated from Taylor, but only that he could not be
ruled out as a suspect. Some of the factors that were “consistent” with Taylor’s hair were factors
that are present in all or almost all Black hair types.

In Taylor’s mother’s house, the police found cassette tapes with the initials of one of the
boys and firecrackers that matched firecrackers found in the boy’s car, as well as the shoes,
radio, and car ornament of one of the victims. Taylor’s brother-in-law was found wearing jeans
that had belonged to one of the victims and Taylor’s brother-in-law testified that he had found
the jeans in the dirty clothes pile and assumed they were Taylor’s. Taylor’s girlfriend also had a
jacket that belonged to one of the boys and testified that Taylor had recently given her that
jacket. During an autopsy, the coroner found sperm in the anus of one of the victims. But there
 No. 14-6508 Taylor v. Jordan Page 36

were not sufficient cells to obtain a conclusive test. And the coroner found no evidence of rectal,
anal, or genital trauma in either of the victims.

It is also important to consider how Wade’s statement affected all of the prosecution
evidence. During his closing argument, the prosecutor argued that the state witnesses should be
believed because Wade’s statement proved their testimony was accurate, even though each had
their credibility seriously impeached by Taylor’s attorneys. Most importantly, the jury relied on
Wade’s statement. During their deliberations the jury asked for and was allowed to hear the
tape-recorded statement again. A jury’s request to rehear evidence is a strong indication that the
introduction of that evidence was not harmless. See Fulcher, 444 F.3d at 811. After all, the
most likely reason a jury would ask to rehear evidence is if it found the other evidence
insufficient. Id.

Wade’s statement was the linchpin of the prosecution’s case. It allowed the jury to draw
inferences and connect all of the evidence to Taylor. Without it, the evidence is substantially
weaker. For example, the possessions found in Taylor’s mother’s house are strong evidence
connecting Taylor to the crime once the jury hears his accomplice say that Taylor was the killer.
But without that statement, the belongings could have been stashed there by any number of
people. Eugene Taylor testified that when Victor Taylor got to his mother’s house, Anna Taylor,
John Cole (Anna Taylor’s boyfriend), Victor’s two sisters (Renee Woods and Anna), Victor’s
two brothers, Ray Ray and Mikey Taylor, and Victor’s girlfriend (Sherry) were there.

Remember also that Pepper and Pace were able to identify Wade in a lineup but were
unable to identify Taylor when given a photo lineup. If we narrow the list to only men to
conform with Pepper and Pace seeing Wade and another man kidnapping the victims, that still
leaves Ray Ray, Mikey, John, and Eugene as people who could have stashed the belongings in
Anna’s house, along with anyone else who had access between the night of the murders and the
police search.

Indeed, without Wade’s statement, it might have been a viable defense theory that
Eugene committed the murders with Wade. Apart from Wade’s statement, Eugene’s testimony
may be the most direct evidence connecting Taylor to the crime. But multiple witnesses say that
 No. 14-6508 Taylor v. Jordan Page 37

they didn’t see Eugene at the party that night. Eugene and Taylor are cousins, so they may have
similar hair or may look similar to eyewitnesses. Eugene had access to Taylor’s mother and
sister’s houses. And he was arrested around the same time for another, very similar crime
involving assault, rape, and sodomy. In fact, Wade eventually recanted his testimony against
Taylor and swore that Eugene had committed the murders with him, not Taylor. Of course, this
defense theory evaporates when Wade’s statement is admitted at Taylor’s trial.

It is hard to imagine what might have happened in a trial without Wade’s confession. But
in some ways, that is precisely the point. Wade’s statement colored so many aspects of the trial.
I come away from the record with “grave doubts” about whether the unconstitutional admission
of Wade’s testimony had “substantial and injurious” effect on the jury’s verdict.

II.

Twenty years ago, when the Kentucky Supreme Court reviewed Taylor’s constitutional
claims, Justice Keller made a prediction in his dissent that should ring true to this day. “The
egregious and palpable nature of this constitutional violation virtually guarantees that a future
reviewing court will grant Taylor a new trial. . . . When a future court grants Taylor a new trial,
today's majority opinion's ‘legacy’ will be only further evidentiary staleness.” Taylor II,
63 S.W.3d at 170. Twenty years later, this court still refuses to recognize the egregious and
palpable nature of the constitutional violations in Victor Taylor’s trial.

I respectfully dissent.
 No. 14-6508 Taylor v. Jordan Page 38

_________________

DISSENT
_________________

GRIFFIN, Circuit Judge, dissenting.

This case is Batson v. Kentucky revisited.

In the mid-1980s, a jury in Jefferson County, Kentucky, convicted an African American
man of multiple criminal charges. During jury selection, the prosecutor unconstitutionally used
his peremptory challenges to strike four African Americans from the venire. The defendant’s
attorney unsuccessfully objected to the race-based nature of the strikes. These are the facts of
Batson v. Kentucky, 476 U.S. 79, 82–83 (1986); they are also the facts of this case. But while the
Supreme Court promptly reversed James Batson’s conviction, petitioner Victor Taylor has spent
the last thirty-five years on death row.

The Kentucky Supreme Court had the opportunity to provide Taylor with the remedy
Batson requires. But instead of doing so, it misapplied Batson by reading an additional
requirement into the burden for establishing a prima facie case of race discrimination and then
concluding that Taylor failed to satisfy it. This was “contrary to . . . clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The majority opinion does not dispute that the Kentucky Supreme Court misconstrued
Batson. It just turns a blind eye to that error. Instead of taking the state court at its word for how
it handled Taylor’s Batson claim, the majority opinion conjures reasons for how it could have
upheld Taylor’s death sentence. In doing so, the majority substitutes its own judgment for the
state court’s judgment—the very harm that the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) is meant to avoid. See, e.g., Nicolas v. Attorney Gen. of Md., 820 F.3d 124,
131 (4th Cir. 2016).

I would not ignore the Kentucky Supreme Court’s mistake. Because the state court
misapplied Batson, Taylor’s claim should receive de novo review. In my view, Taylor
established a prima facie case of purposeful race discrimination in the selection of his jury. And
 No. 14-6508 Taylor v. Jordan Page 39

because the prosecutor failed “to come forward with a neutral explanation for challenging black
jurors,” Batson mandates that we grant habeas relief. 476 U.S. at 97, 100. I would reverse the
district court’s denial of Taylor’s § 2254 petition and therefore respectfully dissent.1

I.

I begin with an antecedent question: Which decision of the Kentucky Supreme Court are
we reviewing? The majority focuses on the 1991 decision affirming Taylor’s convictions on
direct appeal, Taylor v. Commonwealth (Taylor I), 821 S.W.2d 72 (Ky. 1991). Taylor raised his
Batson claim then, but the court did not address it with particularity. Instead, it merely stated
that “Taylor, through counsel, raises forty-four assignments of alleged error in this appeal. We
have carefully reviewed all of the issues presented by Taylor. . . . Allegations of error which we
consider to be without merit will not be addressed here.” Id. at 74. I agree with my colleagues
that this decision constitutes a merits adjudication of Taylor’s Batson claim for purposes of
AEDPA. See Harrington v. Richter, 562 U.S. 86, 99–100 (2011).

The problem with the majority’s analysis, however, is that the Kentucky Supreme Court
explicitly addressed the merits of Taylor’s Batson claim in a later opinion in this case: Taylor v.
Commonwealth (Taylor II), 63 S.W.3d 151 (Ky. 2001). Taylor II reviewed a denial of a motion
for postconviction relief pursuant to Kentucky Rule of Criminal Procedure 11.42. In that
proceeding, Taylor asserted a claim under Swain v. Alabama, 380 U.S. 202 (1965), which was
the Supreme Court’s applicable standard for challenging juror strikes on the basis of race at the
time of his trial.2 Taylor II, 63 S.W.3d at 156. Because Taylor raised a Batson claim in his
direct appeal (Taylor I), the Kentucky Supreme Court affirmed the denial of his Rule 11.42
motion regarding his new Swain claim, concluding that it was simply “an attempt to get around
[the] long-established rule” that a Rule 11.42 motion may not be utilized to “permit a convicted

1Taylor’s en banc petition and supplemental briefing discussed only his Batson claim, and therefore I
decline to address the merits of his other arguments in this dissent.
2In Batson, the Supreme Court overruled Swain. See Batson, 476 U.S. at 100 (White, J., concurring).
Although Swain was in effect at the time of Taylor’s trial, because Batson was issued before Taylor’s direct appeal
was decided, Batson applies to Taylor’s case. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also id. at 316–17,
327 (discussing Griffith’s 1984 trial in Jefferson County, Kentucky, where “[t]he prosecution used four of its five
allotted challenges to strike four of the five prospective black jurors”).
 No. 14-6508 Taylor v. Jordan Page 40

defendant to retry issues which . . . were raised in the trial court and upon an appeal considered
by this court.” Id. at 157 (citation omitted).

The Kentucky Supreme Court could have stopped there. But it did not. Instead, the court
addressed the merits of both the Swain and Batson claims raised by Taylor:

The evidence presented by Taylor at the evidentiary hearing focused on the first
part of his burden under Swain, i.e., whether the prosecutor’s office had a
systematic and intentional practice of excluding blacks from juries in criminal
trials. But he presented no evidence that this practice “continued unabated” at his
trial. In addition to a prosecutor’s exclusion of minority members from the venire
via peremptory strikes, Batson also requires—to establish a prima facie case—a
showing of “other relevant circumstances” that create an inference that the
prosecutor struck the jurors on the basis of their race. In the case at bar, there was
no showing of other relevant circumstances at the time defense counsel objected
to the seating of the jury and no such argument on this point was made on direct
appeal. Moreover, the trial court specifically noted that there was no evidence
that African-Americans were systematically excluded from the venire. Therefore,
since a prima facie case was not made under Batson, it certainly was not made
under the much more restrictive holding of Swain.

Id. (citations omitted). The majority opinion refers to this passage as dicta. But “where a
decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949). It is clear that the Kentucky Supreme
Court’s Batson analysis is “sufficient to support [its] judgment,” that the court “intended to rest
the judgment (if necessary) on its conclusion about the issue,” and that the court “considered the
issue and consciously reached a conclusion about it.” See Wright v. Spaulding, 939 F.3d 695,
701–03 (6th Cir. 2019). Under our precedent then, this Batson analysis is an alternative holding,
not dicta. See id.; Freed v. Thomas, 976 F.3d 729, 738 (6th Cir. 2020) (“Of course, . . .
alternative holdings are not dicta.”).

The majority opinion does not consider Taylor II, even though it specifically addressed
and explained the “reason [Taylor’s] Batson claim failed on direct appeal.” 63 S.W.3d at 156
(emphasis added). This distinguishes the Kentucky Supreme Court’s discussion of the Batson
claim in Taylor II from the sort of alternative holdings that are insulated from federal court
review by the adequate and independent state ground doctrine. See Harris v. Reed, 489 U.S.
255, 264 n.10 (1989). The Commonwealth agreed with this characterization of Taylor II during
 No. 14-6508 Taylor v. Jordan Page 41

this appeal, writing in its panel brief that “[i]n the process of denying the [Swain] claim, the
Court also reiterated that the original Batson claim was denied on direct appeal because no prima
facie case had been shown (as would have been the case in a more onerous Swain claim).” So
too did one of the dissenting Justices in Taylor II. Id. at 171–72 (Stumbo, J., dissenting).
Accordingly, Taylor II’s unambiguous language clarifies the scope of our review here. We must
review the Kentucky Supreme Court’s merits adjudication of Taylor’s Batson claim in Taylor I
and, as a part of that adjudication, its explanation in Taylor II specifying why it rejected the
claim.

I acknowledge that this procedure is unusual, but we often engage in similar exercises.
For example, consider our practice when a state court of last resort denies a petitioner’s federal
claim on the merits without explanation with a simple “affirmed” or “denied.” See Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018). On habeas review, we do not immediately proceed to
“determin[ing] what arguments or theories . . . could have supported[ ] the state court’s
decision.” Richter, 562 U.S. at 102. Instead, a federal court should “‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant
rationale”—often, a decision by the state intermediate appellate court. Wilson, 138 S. Ct. at
1192. “It should then presume that the unexplained decision adopted the same reasoning.”3 Id.

As discussed above, Taylor I rejected Taylor’s Batson claim without explanation. In
Kentucky, death penalty appeals are filed directly with the state supreme court, see Ky. R. Civ.
P. 74.02(2), so we do not have an intermediate appellate court’s decision to look to. Instead, we
have a subsequent opinion from the same court in the same case articulating why it rejected
Taylor’s Batson claim. In my view, this explanation must be considered and not ignored.
Kentucky’s highest court issued both opinions and its latter opinion contains the “relevant
rationale” for its earlier, unexplained decision rejecting Taylor’s Batson claim. Wilson, 138 S.
Ct. at 1192.

3Outside of the habeas context, consider too a district court’s denial of a motion for reconsideration.
Oftentimes, the court will deny the motion and “affirm[ ] and elaborate[ ] upon its [original] order.” Rosen v. Goetz,
129 F. App’x 167, 169 (6th Cir. 2005) (per curiam). On appeal, the court of appeals may consider the district
court’s discussions of the merits in both orders, even though the court denied the motion for reconsideration. Id.;
see United States v. Amaya, 750 F.3d 721, 725 (8th Cir. 2014); United States v. Milo, 506 F.3d 71, 73 (1st Cir.
2007).
 No. 14-6508 Taylor v. Jordan Page 42

In sum, we need only take the Kentucky Supreme Court at its word. We should not
“presume” anything or speculate regarding what rationale “could” have supported its decision.
Id. Because Taylor II is the “last related . . . decision” of the Kentucky Supreme Court in this
case and provides us with its rationale for rejecting Taylor’s Batson claim, we must review it for
AEDPA purposes. Id. Thus, the majority’s reliance on Richter’s “could have supported”
approach is misplaced. See 562 U.S. at 102.

II.

I now address whether the Kentucky Supreme Court’s decisions in this case are “contrary
to . . . clearly established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). I would hold that they are.

A.

Taylor argues that the Kentucky Supreme Court applied the wrong standard in
determining whether he made an adequate prima facie showing of discrimination under Batson.
To establish a prima facie case, a defendant need only “raise an inference that the prosecutor
. . . exclude[d] the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at
96. This requires three showings. First, a defendant “must show that he is a member of a
cognizable racial group.” Id. Second, he must show “that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s race.” Id.
“Finally, the defendant must show that these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude the veniremen from the petit jury
on account of their race.” Id. Here, all agree that Taylor is African American and that he
challenged the prosecutor’s removal of four African Americans from the venire.

“The ‘Constitution forbids striking even a single prospective juror for a discriminatory
purpose.’” Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana,
552 U.S. 472, 478 (2008)). But as a practical matter, it is unlikely that a defendant will establish
a prima facie case if the only evidence he presents is the prosecutor’s strike of a single
 No. 14-6508 Taylor v. Jordan Page 43

venireman of the same race.4 See Paulino v. Castro, 371 F.3d 1083, 1091–92 (9th Cir. 2004).
A defendant typically must show something more. “For example, a ‘pattern’ of strikes against
black jurors included in the particular venire might give rise to an inference of discrimination.”
Batson, 476 U.S. at 97. This has been a common method of satisfying the prima facie burden in
the years since Batson issued. See, e.g., Davis v. Ayala, 576 U.S. 257, 260–61 (2015) (Ayala
“made a prima facie Batson showing” where the prosecutor “used seven peremptories to strike
all of the African-Americans and Hispanics who were available for service”); see also Foster,
136 S. Ct. at 1747 (parties agreed Foster established a prima facie case where prosecutor struck
all four African American jurors who qualified to serve); Miller-El v. Cockrell, 537 U.S. 322,
326, 338 (2003) (parties agreed Miller-El established a prima facie case where prosecutors had
“used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the
jury”). “Similarly, the prosecutor’s questions and statements during voir dire examination and in
exercising his challenges may support or refute an inference of discriminatory purpose.” Batson,
476 U.S. at 97. In Batson, the Supreme Court emphasized that “[i]n deciding whether the
defendant has made the requisite showing, the trial court should consider all relevant
circumstances.” Id. at 96.

In Taylor II, the Kentucky Supreme Court correctly recited the first two elements of the
prima facie burden under Batson, but then stated that “Batson also requires—to establish a prima
facie case—a showing of ‘other relevant circumstances’ that create an inference that the
prosecutor struck the jurors on the basis of their race.” 63 S.W.3d at 157. Applying that rule, the
court held that because “there was no showing of other relevant circumstances at the time
defense counsel objected to the seating of the jury and no such argument on this point was made
on direct appeal,” Taylor’s claim failed. Id.

Here the Kentucky Supreme Court misstated the law. Batson does not categorically
require that a defendant show “other relevant circumstances” beyond the defendant’s race and
the prosecution’s striking of prospective jurors of the same race. First, the plain language of the

4In recent years, “the [Supreme] Court has extended Batson in certain ways.” Flowers v. Mississippi,
139 S. Ct. 2228, 2243 (2019) (“A defendant of any race may raise a Batson claim, and a defendant may raise a
Batson claim even if the defendant and the excluded juror are of different races.”). But for our purposes here, we
need only focus on the holding of Batson itself.
 No. 14-6508 Taylor v. Jordan Page 44

Supreme Court’s recitation of the standard makes this clear: a petitioner must show that “these
facts [that is, the first two elements] and any other relevant circumstances” establishes a prima
facie case of discrimination. Batson, 476 U.S. at 96 (emphasis added). Second, immediately
after laying out the standard, the Court elaborated: “In deciding whether the defendant has made
the requisite showing, the trial court should consider all relevant circumstances,” thus
highlighting the holistic nature of the analysis. Id. (emphasis added). Third, the Court gave an
example of a situation in which “other relevant circumstances” would not be required to satisfy
the prima facie burden: “a ‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.”5 Id. at 96–97 (emphasis added). After
all, a “pattern” of strikes may simply mean that the prosecutor struck multiple African American
prospective jurors—more instances of the second element being satisfied. See Pattern, Merriam-
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/pattern (last visited
July 22, 2021), (“a reliable sample of traits, acts, tendencies, or other observable characteristics
of a person, group, or institution”). In some instances, a pattern of strikes will be sufficient to
satisfy the third element, and in others, it will not. Compare Ayala, 576 U.S. at 260–61 (Ayala
“made a prima facie Batson showing” where prosecutor “used seven peremptories to strike all of
the African-Americans and Hispanics who were available for service”), with United States v.
Bishop, 914 F.2d 249, 1990 WL 130475, at *3 (4th Cir. 1990) (per curiam) (table) (defendants
“failed to establish the third element of the Batson test because they asserted nothing more than
that [one] stricken juror was black”).

In light of the Supreme Court’s clear language, I cannot accept a reading of Batson that
treats the failure to prove “other relevant circumstances” as a per se failure to establish a prima
facie case. By segmenting the third prima facie element into two necessary showings, the
Kentucky Supreme Court improperly heightened the standard under Batson.

5The Supreme Court reiterated this point in a later case, which issued before Taylor’s direct appeal was
decided: “In Batson, we held that determining whether a prima facie case has been established requires
consideration of all relevant circumstances, including whether there has been a pattern of strikes against members of
a particular race.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991) (citing Batson, 476 U.S., at 96–
97).
 No. 14-6508 Taylor v. Jordan Page 45

B.

Not every error by a state court satisfies AEDPA’s highly deferential standard, of course.
“Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that
the earlier state court’s decision ‘was contrary to’ federal law then clearly established in the
holdings of th[e Supreme] Court; or that it ‘involved an unreasonable application of’ such law; or
that it ‘was based on an unreasonable determination of the facts’ in light of the record before the
state court.”6 Richter, 562 U.S. at 100 (citations omitted). At issue here is the “contrary to”
clause, which (the Supreme Court has made clear) has an “independent meaning” from the
“unreasonable application” clause. Williams v. Taylor, 529 U.S. 362, 405 (2000).

Williams explained the meaning of this provision. Id. at 405–06 (O’Connor, J.,
delivering the opinion for the Court on the meaning of the “contrary to” clause). “The word
‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or
nature,’ or ‘mutually opposed.’” Id. at 405. Thus, “[a] state-court decision will certainly be
contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in [its] cases.”7 Id. Consider the following example
from Williams:

If a state court were to reject a prisoner’s claim of ineffective assistance of
counsel on the grounds that the prisoner had not established by a preponderance
of the evidence that the result of his criminal proceeding would have been
different, that decision would be “diametrically different,” “opposite in character
or nature,” and “mutually opposed” to [the Supreme Court’s] clearly established
precedent because [it] held in Strickland that the prisoner need only demonstrate a
“reasonable probability that . . . the result of the proceeding would have been
different.”

6“A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in
a holding.” Thaler v. Haynes, 559 U.S. 43, 47 (2010). Here, no one disputes that the burden for establishing a
prima facie case of race discrimination in the jury selection process was “clearly established” in Batson’s holding
before the Kentucky Supreme Court decided Taylor’s direct appeal.
7“[A]state-court decision is also contrary to [Supreme Court] precedent if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an opposite
conclusion. Williams, 529 U.S. at 405.
 No. 14-6508 Taylor v. Jordan Page 46

Id. at 405–06 (citation omitted). In this scenario, “a federal court will be unconstrained by
§ 2254(d)(1) because the state-court decision falls within that provision’s ‘contrary to’ clause.”
Id. at 406.

Indeed, in Williams itself, the Court held that the Virginia Supreme Court’s decision
rejecting a claim of ineffective assistance of counsel was “contrary to” Supreme Court precedent
because the court applied the heightened standard found in Lockhart v. Fretwell, 506 U.S. 364
(1993), on top of the rule in Strickland v. Washington, 466 U.S. 668 (1984), when it should have
applied only the latter. 529 U.S. at 397; see also Goodman v. Bertrand, 467 F.3d 1022, 1028
(7th Cir. 2006) (“In conflating Lockhart’s heightened prejudice standard with Strickland’s
prejudice analysis, the state court decision is ‘contrary to’ clearly established federal law.”). The
Supreme Court has thus made clear that § 2254(d)(1)’s “contrary to” clause is satisfied where a
state court “sets forth the wrong legal framework,” Goodman, 467 F.3d at 1028 (citation
omitted), in a way that heightens the petitioner’s burden beyond what the law requires. See also
Tennard v. Dretke, 542 U.S. 274, 284 (2004) (rejecting a heightened relevance standard applied
by the Fifth Circuit that “has no foundation in the decisions of this Court”).

That is exactly what happened here. The Kentucky Supreme Court misread the third
element of a prima facie case under Batson in a way that made Taylor’s burden more difficult to
satisfy. Recall the court’s statement that “there was no showing of other relevant circumstances
at the time defense counsel objected to the seating of the jury and no such argument on this point
was made on direct appeal.” Taylor II, 63 S.W.3d at 157. If a pattern of strikes qualifies as an
“other relevant circumstance[ ],” then this statement is objectively false. During jury selection,
Taylor’s counsel argued that the prosecutor had engaged in a pattern of striking African
American prospective jurors. Defense counsel (Mr. Jewell) and the prosecutor (Mr. Jasmin) had
the following back-and-forth discussion during that objection:

[MR. JEWELL:] It is noted that the Commonwealth used, I believe, half of
their strikes to exclude two-thirds of the minority members
left on the panel. We would object to the seating of this
jury.
MR. JASMIN: You say I used two-thirds of my strikes to strike
minorities?
 No. 14-6508 Taylor v. Jordan Page 47

MR. JEWELL: Half of your strikes to exclude two-thirds of minority
members on the panel.
MR. JASMIN: Half, meaning four and a half?
MR. JEWELL: You used four--You used eight, I believe, correct?
MR. JASMIN: That’s correct.
MR. JEWELL: Okay. And four of them were directed at minority
members.
MR. JASMIN: And, for the record, the Commonwealth would note
defense also struck at least one or two black folk.
MR. JEWELL: The defense struck one minority member.
MR. JASMIN: In accordance with case law, the Commonwealth has no
other rational reason—if I strike all it then becomes
objectionable under the cases from, as I understand it,
coming from California.

Taylor also raised his pattern-of-strikes argument on direct appeal, emphasizing three things of
note here: (1) “[t]he prosecutor directed 4 of his peremptory strikes toward black members of the
jury panel”; (2) the prosecutor “struck 2/3 of the minority members of the prospective jury panel
(i.e. 4 persons)”; and (3) the prosecutor “never offered any explanation for the exercise of those
peremptory challenges.” Thus, when the Kentucky Supreme Court stated that Taylor had not
provided any “other relevant circumstances” at the time the jury was seated or on direct appeal, it
could not have thought a pattern of strikes qualifies as such.

Because Taylor II misread Batson by heightening the standard for establishing a prima
facie case, I would hold that it is “contrary to” clearly established Supreme Court precedent.
§ 2254(d)(1).

III.

“[U]nconstrained by § 2254(d)(1) because the state-court decision falls within that
provision’s ‘contrary to’ clause,” Williams, 529 U.S. at 406, I review Taylor’s Batson claim
“without the deference AEDPA otherwise requires,” Panetti v. Quarterman, 551 U.S. 930, 953
(2007). Relief depends on Taylor demonstrating that he remains “in custody in violation of the
Constitution . . . of the United States.” § 2254(a); see also Magana v. Hofbauer, 263 F.3d 542,
 No. 14-6508 Taylor v. Jordan Page 48

551 (6th Cir. 2001). Having done so, I conclude Taylor has demonstrated a clear Batson
violation and is entitled to conditional habeas relief.

A.

“[A] defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
Johnson v. California, 545 U.S. 162, 170 (2005). “[T]he Supreme Court has not provided a
more particularized view of what constitutes a prima facie showing of discrimination under
Batson.” Carmichael v. Chappius, 848 F.3d 536, 545 (2d Cir. 2017) (citation and internal
quotation marks omitted). But it has provided some examples. See Johnson, 545 U.S. at 170
(use of three peremptory challenges (out of twelve) to remove all three African American
prospective jurors); Miller-El, 537 U.S. at 342 (exclusion of 91% of the eligible African
American prospective jurors).

Recall here that thirty-eight qualified prospective jurors remained when the trial court
authorized counsel to exercise peremptory strikes. Six of those thirty-eight were African
American, comprising 16%. The prosecutor used half of his peremptory strikes to remove four
of those six African American jurors—a 67% exclusion rate. The numbers here do not rise to the
same level condemned by the Supreme Court in Johnson and Miller-El, but they do not clearly
fail to “raise an inference” of discrimination, either.

In this regard, United States v. Alvarado is instructive. 923 F.2d 253 (2d Cir. 1991).
There the Second Circuit held that a defendant successfully establishes a prima facie case under
Batson when he shows a significant statistical disparity between the prosecution’s minority
exclusion rate and the overall minority composition of the venire. Id. at 255. “[An exclusion]
rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case
under Batson.” Id. at 256. The court found a prima facie case had been established where the
prosecution excluded half of the prospective African American and Hispanic jurors. Id. The
statistical disparity here exceeds that in Alvarado. If the prosecutor had in fact exercised his
peremptory strikes on a race-neutral basis, one would expect the exclusion rate to roughly match
the rate of qualified African American jurors. But the exclusion rate exceeded the rate of
 No. 14-6508 Taylor v. Jordan Page 49

African American jurors by a factor of four: the prosecutor struck 67% of African American
jurors who comprised only 16% of the remaining venire.

The disparity here is more than enough to raise an eyebrow; it would “permit the trial
judge to draw an inference that discrimination has occurred.” Johnson, 545 U.S. at 170. This
conclusion is consistent with our decision in Drain v. Woods, 595 F. App’x 558, 571 (6th Cir.
2014). There, this court found that the petitioner had established a prima facie case of
discrimination under Batson where “the prosecutor exercised 78 percent of her peremptory
challenges to exclude minorities, despite the fact that minorities composed only 28 percent of the
venire at its inception, and 31 percent at its conclusion.” Id. (citation and internal quotation
marks omitted). In sum, Taylor made a prima facie showing under Batson.

B.

At this point, the Batson analysis would typically proceed to steps two and three. But the
prosecutor offered no race-neutral reason for his strikes. Batson makes clear that if “the facts
establish, prima facie, purposeful discrimination and the prosecutor does not come forward with
a neutral explanation for his action, our precedents require that [the] petitioner’s conviction be
reversed.” 476 U.S. at 100. Thus, Taylor’s Batson claim should be resolved in his favor at step
two.

When a trial court fails to carry out the Batson process, courts sometimes remand to the
district court to hold an evidentiary hearing to determine the prosecutor’s state of mind during
jury selection. See, e.g., United States v. McMath, 559 F.3d 657, 665–66 (7th Cir. 2009); Love v.
Scribner, 278 F. App’x 714, 718 (9th Cir. 2008) (mem. op.). However, a remand here would be
a futile exercise. For one thing, more than thirty-five years have passed since Taylor’s trial. See
Snyder, 552 U.S. at 486 (remand would be futile after eleven years had passed since the trial).
For another, Taylor’s prosecutor has passed away, as has the trial judge.

In Batson, the Supreme Court remanded the case for further proceedings “[b]ecause the
trial court flatly rejected the objection without requiring the prosecutor to give an explanation for
his action.” 476 U.S. at 100. Here, however, the trial court allowed the prosecutor to respond to
Taylor’s objection to his use of peremptory strikes on the alleged ground of race. In response,
 No. 14-6508 Taylor v. Jordan Page 50

the Jefferson County assistant prosecutor stated: “In accordance with case law, the
Commonwealth has no other rational reason--if I strike all [of the “black folk”] it then becomes
objectionable under the cases coming from, as I understand it, coming from California.”
(Emphasis added.) While the majority opinion asserts that the meaning of this statement is
“anyone’s guess,” I view it as an admission that the prosecutor exercised his peremptory
challenges based on race. See Section II.B., supra (for the statement presented in context).

Furthermore, other powerful evidence Taylor presented at the postconviction hearing in
state court bolsters this reasonable conclusion: (1) passages from the Kentucky Prosecutor’s
Handbook, stating that jurors from a minority group with a possible grudge against law
enforcement or sharing a racial or national background with the defendant were not “preferable”
for the prosecution; (2) a Kentucky trial judge’s observation that she discharged a jury panel in a
particular case because the Commonwealth’s Attorney used peremptory strikes to remove all
African American jurors on the venire and because of her knowledge that the Commonwealth
had utilized its strikes similarly in other cases; (3) a former Jefferson County public defender’s
testimony that he observed the Commonwealth’s pattern and practice of using peremptory strikes
to remove African Americans from jury venires; (4) a private attorney’s testimony that he had
observed the same pattern and practice by the Commonwealth in many murder cases; and (5) a
former Assistant Commonwealth Attorney’s testimony about that office’s understanding that
prosecutors should strive to strike jurors with the same ethnic background as the defendant and
that the same Commonwealth’s Attorney who prosecuted Taylor believed that having African
Americans on a jury panel was not desirable.

Ultimately, the prosecutor’s “no other rational reason” statement certainly does not
articulate a race-neutral reason for striking African American jurors. Thus, the Commonwealth
failed to satisfy its “extremely light burden” at step two. United States v. Harris, 192 F.3d 580,
586 (6th Cir. 1999).

A “trial judge’s failure to adhere to the constitutional framework” of Batson may
“complicate[ ]” appellate review, but it typically does not preclude resolution of the case. Rice v.
White, 660 F.3d 242, 258 (6th Cir. 2011). Rice provides a roadmap for what to do where, as
here, the trial court neither acknowledges the Batson standard nor attempts to apply the three-
 No. 14-6508 Taylor v. Jordan Page 51

step analysis: we may nevertheless examine the trial record and “the context of the proceedings”
ourselves. Id. at 258–59. In that case we concluded that the trial court had, in its own
unorthodox way, rejected “the prosecutor’s race-neutral reasons” and “f[ound] at step three that
the prosecutor engaged in invidious discrimination.” Id.

Like in Rice, the trial court here did not follow the Batson framework (nor could it have
been expected to at the time), but the record compels a similar conclusion. The prosecutor was
allowed to offer a race-neutral reason for his peremptory strikes. He took the opportunity to
respond but failed to satisfy his burden at step two. While the record here does not show the
normal course of a Batson challenge, it tracks a specific situation the Supreme Court described in
Batson: a prima facie case coupled with a prosecutor’s failure to “come forward with a neutral
explanation for his action” requires reversal.8 476 U.S. at 100.

The Commonwealth invites us to consider other reasons why the prosecutor might have
stricken the African American jurors. That would be improper, as the Supreme Court has made
clear that post-hoc arguments are impermissible under Batson. Miller-El v. Dretke, 545 U.S.
231, 252 (2005) (“A Batson challenge does not call for a mere exercise in thinking up any
rational basis.”). Scouring a cold record for reasons that might explain the prosecutor’s strikes
nullifies a prosecutor’s duty to offer race-neutral rationales at step two (and would improperly
insert our judgment for that of the trial court’s at step three). Id.; see also Johnson, 545 U.S. at
172 (“The inherent uncertainty present in inquiries of discriminatory purpose counsels against
engaging in needless and imperfect speculation when a direct answer can be obtained by asking a
simple question.”). So, while the prosecutor had submitted his juror chart to the trial court at the
time Taylor lodged his objection, that is not enough.9 A “prosecutor must give a clear and
reasonably specific explanation of his legitimate reasons for exercising the challenge[ ].”

8Itmakes no difference that the trial court eventually checked a box in the Notice of Death Sentence
Review indicating that African Americans were not systematically excluded from the jury, as the majority opinion
highlights. At step two of Batson, the burden is on the prosecutor, not the trial court.
9Moreover, the prosecutor’s juror chart listed the race of each potential juror. This hardly furthers the
Commonwealth’s argument that the strikes were race neutral. See Foster, 136 S. Ct. at 1744 (on prosecutor’s juror
chart, “the names of the black prospective jurors were highlighted in bright green,” “[a] legend in the upper right
corner of the lists indicated that the green highlighting ‘represents Blacks,’” and “[t]he letter “B” also appeared next
to each black prospective juror’s name.” (citation omitted)).
 No. 14-6508 Taylor v. Jordan Page 52

Batson, 476 U.S. at 98 n.20 (citation and internal quotation marks omitted). This the prosecutor
did not do.

Finally, although the facts of the crimes as found by the jury are atrocious, we do not
evaluate whether the Batson violation was harmless. Batson “involves a structural error, which
is not subject to harmless error analysis.” United States v. McFerron, 163 F.3d 952, 956 (6th
Cir. 1998) (internal quotation marks omitted).

IV.

Victor Taylor was prosecuted in Jefferson County, Kentucky, by the same prosecutor’s
office as James Batson. Both African American defendants alleged that their prosecutor
unconstitutionally struck jurors because of their race. The Supreme Court’s decision in Batson’s
case provides a strict procedure to combat individual and institutional invidious racial
discrimination in the selection of juries. That process was not followed in Taylor’s case.
Because this case presents the identical constitutional violation that occurred in Batson, I would
reverse the denial of Taylor’s § 2254 petition and grant conditional habeas relief. I therefore
respectfully dissent.
 No. 14-6508 Taylor v. Jordan Page 53

_________________

DISSENT
_________________

HELENE N. WHITE, Circuit Judge, dissenting. I concur in Judge Griffin’s, Judge
Cole’s and Judge Moore’s thoughtful dissents in all respects except footnote 1 of Judge Griffin’s
dissent and Part I.A.i. of Judge Cole’s dissent.1 I write separately to respond to a particularly
troubling aspect of the majority opinion’s reasoning.

I.

The majority opinion contends that the prosecutor’s objection to Taylor’s attempt to
strike for cause three African-American members of the venire constitutes “an immovable
obstacle to Taylor’s Batson claim because a fairminded jurist would likely conclude that ‘a
prosecutor who aimed to purge the jury of African-Americans would not object to the defense’s
attempt to remove three of them from the venire.’” This analysis incorrectly implies that a
Batson violation can only be shown where there is evidence that the prosecutor intended to
categorically exclude every black member of the jury, an impossible hurdle in this case—where
the prosecutor explicitly asserted that he did not believe doing so would be permissible—and one
that Batson plainly does not require. The Batson Court was unequivocal in its holding that “the
Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.”
Batson v. Kentucky, 476 U.S. 79, 88 (1986). Thus, the exclusion of even one juror on the basis
of race constitutes a constitutional violation. Flowers v. Mississippi, 139 S.Ct. 2228, 2242
(2019) (“[E]ven a single instance of race discrimination against a prospective juror is
impermissible”); Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (“[T]he Constitution forbids

1I agree with the majority and Judge Cole that Taylor I is the decision to which we apply AEDPA review.
Taylor I gives no reasoning for the rejection of Taylor’s Batson claim. Normally in such a case we follow the rule
from Harrington v. Richter, requiring us to “determine what arguments or theories . . . could have supporte[d] the
state court’s decision” and then consider whether “it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of” the Supreme Court. Cullen v.
Pinholster, 563 U.S. 170, 187–88 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)) (alterations in
original). The question here is whether when there is a later decision of the state’s highest court explaining the
earlier summary denial, AEDPA precludes us from looking at that later decision when it does not conflict with, but
rather explains, the earlier decision. I agree with Judge Griffin and Judge Moore that this is not prohibited under the
circumstances presented here.
 No. 14-6508 Taylor v. Jordan Page 54

striking even a single prospective juror for a discriminatory purpose”) (quoting United States v.
Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
142 n.13 (1994) (“Because the right to nondiscriminatory jury selection procedures belongs to
the potential jurors, as well as to the litigants, the possibility that members of [the cognizable
group] will get on the jury despite the intentional discrimination is beside the point. The
exclusion of even one juror for impermissible reasons harms that juror and undermines public
confidence in the fairness of the system.”). In attempting to articulate a theory which could have
supported the state court’s decision, the majority endorses an interpretation of Batson that itself
is “manifestly contrary to clearly established federal law.” Drain v. Woods, 595 F. App’x 558,
570 (holding that “[t]he Michigan appellate court’s analysis” finding that the fact that “the
prosecutor did not try to remove all blacks from the jury is strong evidence against a showing of
discrimination,” is “manifestly contrary to clearly established federal law”).

Beyond being contrary to Batson, the majority’s analysis ignores the practical realities of
this case and of jury selection more generally. A hypothetical is illustrative here. Imagine that a
prosecutor approaches voir dire guided by two primary goals, in order of importance: (1) to
include as many jurors as possible who strongly favor the death penalty; and (2) to exclude as
many black jurors as possible. In keeping with these goals, the prosecutor opposes the
defendant’s attempts to exclude black jurors expressing particularly favorable views of the death
penalty while simultaneously seeking to exclude all other black jurors. The prosecutor’s conduct
would unquestionably be a Batson violation because jurors would be excluded solely on account
of their race.

Here, although we do not have definitive insight into the prosecutor’s strategy, his
choices during voir dire are nearly indistinguishable from the hypothetical. After objecting to
Taylor’s attempt to strike for cause three black jurors who expressed particularly favorable views
of capital punishment, the prosecutor exercised his peremptory strikes to exclude all but two
black jurors:10 Eleanor Fisher, one of the jurors whom Taylor had attempted to strike for cause
and Joyce Booker, who, during voir dire, indicated that any defendant convicted of an

10Notably, despite their pro-death penalty views, the prosecutor utilized his peremptory strikes to exclude
two of the three black jurors whom Taylor had sought to exclude for cause.
 No. 14-6508 Taylor v. Jordan Page 55

aggravated murder should receive the death penalty. The defense then exercised one of its
fourteen peremptory strikes to exclude Booker, leaving Fisher, a woman whom the defendant
believed was unfairly biased against him, as the only individual of his race on the jury.

What’s more, the prosecutor knew, and affirmatively acknowledged that he risked
reversal if he excluded every black juror on the venire. See Flowers, 139 S. Ct. at 2246
(explaining that a prosecutor’s acceptance of a black juror during jury selection may be
attributable to an “attempt ‘to obscure the otherwise consistent opposition to’ seating black
jurors” (quoting Miller-El v. Dretke, 545 U.S. 231, 250 (2005))). This case was tried as the
Supreme Court was deliberating in Batson, a case involving the same prosecutor’s office as
involved here and in which the primary disagreement between the parties was the adoption of the
rule articulated by the California Supreme Court in People v. Wheeler that where a party
“presumes that certain jurors are biased merely because they are members of an identifiable
group distinguished on racial . . . grounds” and “peremptorily strikes all such persons for that
reason alone,” it is a violation of the defendant’s right to an impartial jury. 22 Cal.3d 258, 276
(1978). The prosecutor here specifically acknowledged that striking all black jurors would be
objectionable under the “cases . . . coming from California,” a clear reference to Wheeler and its
progeny, and thus revealed his belief that a conviction would be in jeopardy of reversal,
depending on the outcome in Batson, if he were to “purge the jury of African-Americans.” So it
seems clear that the prosecutor never intended to eliminate every black juror from the venire.
And to the extent that the prosecution was motivated to exclude most, but not all black jurors,
what better strategy than to object to the for-cause exclusion of black jurors whose answers in
voir dire suggested a bias against the defendant, and subsequently exercise peremptory strikes to
eliminate every black juror who did not express those views? The prosecutor did so, and it
worked; the empaneled jury had one black member, whom the defendant had specifically sought
to exclude for bias.

The majority opinion ignores the fact that a prosecutor, like any litigant, may have
competing motives when conducting jury selection. But this does not undermine legitimate
claims of racial bias in jury selection. This is particularly true in capital cases, like Taylor’s,
where jury selection strategy is often focused, in large part, on potential jurors’ views of capital
 No. 14-6508 Taylor v. Jordan Page 56

punishment. That a prosecutor favors inclusion of specific black jurors on account of their views
on the death penalty is of limited relevance in rebutting the presumption that the use of
peremptory strikes to exclude other black jurors was discriminatory.

We need not determine with certainty why the prosecutor exercised his strikes as he did
to conclude that Taylor satisfied his prima facie case, but the context here is important. The
majority ignores that context and misapplies the clear holding of Batson to find that Taylor is not
entitled to habeas relief.

II.

I also note that it is irrelevant to a proper Batson challenge that Taylor struck one of the
two remaining black jurors. Here, six of the thirty-eight qualified individuals on the venire were
black. The prosecution exercised eight peremptory strikes, four of which were used to exclude
black jurors. This reduced the percentage of black jurors on the venire from 15.8% to a mere
6.6%. Taylor struck one black juror and thirteen white jurors, excluding jurors at a rate nearly
identical to that of the remaining jury pool (Taylor utilized approximately 7% of his strikes to
eliminate black jurors who, after the prosecutor’s exclusions, made up just under 7% of the
pool). And because Taylor exercised his strikes in a race-neutral way, nearly identically
reflecting the statistical makeup of the jury, Taylor’s use of strikes did nothing to change the
proportional makeup of the jury. After the prosecution exercised its strikes, black jurors made
up 6.6% of the jury and following the defense’s additional peremptory strikes black jurors made
up 6.25% of the jury.

It should go without saying that in determining whether a prosecutor’s pattern of strikes
gives rise to an inference of discrimination, the only relevant consideration is the prosecutor’s
use of strikes; the defendant’s use of strikes is irrelevant. Even if a defendant’s strikes were to
offset a prosecutor’s disproportionate exclusion of black jurors, that does nothing to change the
presumption of discrimination arising from a prosecutor’s discriminatory pattern of strikes.
Here, the prosecutor and the defendant together struck seventeen white jurors from the panel. It
is true that if the prosecutor had exercised twenty-one peremptory strikes to eliminate four black
jurors plus all seventeen of those white jurors from the panel, there could be no inference of
 No. 14-6508 Taylor v. Jordan Page 57

discrimination. But that is not what occurred here. When viewed objectively, the fact that the
prosecutor’s use of strikes would only be proportional if he excluded more than three times the
number of white jurors he actually did is itself damning evidence of discrimination.

Further, a defendant should not be expected to utilize his limited peremptory strikes to
rebalance a jury that has been racially manipulated by the prosecutor. Where the prosecutor
excludes jurors based on race, the defendant’s constitutional rights are violated, and it is the role
of the courts, not defense counsel to remedy that violation. “[T]he Batson Court did not accept
the argument that race-based peremptories are permissible because both the prosecution and
defense could employ them in any individual case and in essence balance things out.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2242 (2019).

For the foregoing reasons, I dissent.