Thomas v. Lumpkin

Cite as: 598 U. S. ____ (2022) 1

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

SUPREME COURT OF THE UNITED STATES
ANDRE LEE THOMAS v. BOBBY LUMPKIN,
DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 21–444. Decided October 11, 2022

The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join, dissenting from the denial of certio-
rari.
Petitioner Andre Thomas was sentenced to death for the
murder of his estranged wife, their son, and her daughter
from a previous relationship. Thomas is Black, his wife was
white, and their son was biracial. Thomas was convicted
and sentenced to death by an all-white jury, three of whom
expressed firm opposition to interracial marriage and pro-
creation in their written juror questionnaires. Among other
reasons, these jurors opined that such relationships were
against God’s will and that people “should stay with [their]
Blood Line.” App. to Pet. for Cert. 395a. Despite their dec-
larations of bias, Thomas’ counsel not only failed to exercise
peremptory strikes on these individuals or move to strike
them for cause, but failed even to question two of the three
jurors about their stated bias and whether it could affect
their deliberations. Without objection from Thomas’ coun-
sel or the State’s attorney, the three jurors were seated. To-
gether with nine other white jurors, they convicted and sen-
tenced Thomas to death.
Thomas’ conviction and death sentence clearly violate the
constitutional right to the effective assistance of counsel.
2 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

The contrary judgment of the Fifth Circuit should be sum-
marily reversed.
I
A
Thomas was charged with capital murder in 2005 for the
killing of his estranged wife, their child, and his wife’s child
from a previous relationship. The facts of Thomas’ offense
were gruesome: Thomas attempted to remove the victims’
hearts because he believed that would “set them free from
evil.” See 995 F. 3d 432, 438 (CA5 2021) (internal quotation
marks omitted). Thomas also stabbed himself during the
course of his offense; later that day, he turned himself in
and confessed. Id., at 438–439. While Thomas was incar-
cerated awaiting trial, he removed one of his own eyeballs;
years later, he removed the other one. Id., at 439. Thomas
pleaded not guilty by reason of insanity, and while the State
agreed that Thomas was psychotic at the time of his offense,
it prevailed in arguing that “his psychosis was voluntarily
induced just before the killings through ingestion of . . .
cough medicine.” Ibid.
Because of the interracial nature of Thomas’ offense, his
counsel1 and the State questioned prospective jurors about
their attitudes toward interracial marriage and procrea-
tion. Prospective jurors were required to answer a written
questionnaire that asked:
“105. The Defendant in this case, Andre Thomas,
and his ex-wife, Laura Boren Thomas, are of different
racial backgrounds. Which of the following best re-
flects your feelings or opinions about people of different
racial backgrounds marrying and/or having children:
(__) I vigorously oppose people of different racial
——————
1 At trial, Thomas was represented by two attorneys: a lead counsel

and a second chair. References to counsel are in the singular, except
where noted, because only one attorney conducted voir dire at a time.
 Cite as: 598 U. S. ____ (2022) 3

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

backgrounds marrying and/or having children
and am not afraid to say so.
(__) I oppose people of different racial back-
grounds marrying and/or having children, but I try
to keep my feelings to myself.
(__) I do not oppose people of different racial
backgrounds marrying or being together, but I do
oppose them having children.
(__) I think people should be able to marry or be
with anyone they wish.
PLEASE TELL US WHY YOU FEEL THIS WAY:
[blank provided].” App. to Pet. for Cert. 391a–392a
(boldface deleted).
At issue in this case are the responses of three white jurors.
First, juror number four indicated that he “vigorously op-
pose[d]” interracial marriage and that he was “not afraid to
say so.” Id., at 392a. In the additional space provided, he
wrote: “I don’t believe God intended for this.” Ibid.
During individual voir dire, defense counsel engaged in
the following colloquy with this juror:
“[Q.] Well, how would—how do you feel about, if you
are sitting on a case where the defendant or a defend-
ant accused of capital murder was a black male, and
the victim, his wife, was a white female.
[A.] Well, I think—I think it’s wrong to have those re-
lationships, my view, but we are all human beings and
God made every one of us. And, you know, as far as—
I don’t care if it is white/white, black/black, that don’t
matter to me. If you’ve done it, you are a human being,
you have got to own up to your responsibility.
[Q.] So, the color of anyone’s skin would not have any
impact or bearing upon your deliberations?
[A.] No, not according to that, no.
[Q.] Okay.
[A.] Not whether they were guilty or innocent.
4 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

[Q.] Would the race of either the defendant or the vic-
tim be something that you would take into considera-
tion in determining, or considering, answering these
special issues, or considering either the death penalty
or life imprisonment?
[A.] No, I wouldn’t judge a man for murder or some-
thing like that according to something like that, no, I
would not.” Thomas v. Director, No. 4:09–CV–644 (ED
Tex., Sept. 19, 2016), App. to Pet. for Cert. 115a–116a,
2016 WL 4988257, *23.
Juror number four also expressed the view that appeals in
death penalty cases should be eliminated or restricted, and
that the death penalty was not applied in enough cases,
Record 1099, though he did state during voir dire that the
death penalty should not be imposed when a defendant is
insane, 16 Reporter’s Record 53 (Tex. Crim. App.).2 Alt-
hough Thomas’ counsel had peremptory strikes available,
counsel neither exercised one on this juror nor otherwise
objected to him being seated.
Second, juror number five responded by indicating that
she opposed interracial marriage and tried to keep those
feelings to herself. She explained in the additional space:
“I think it is harmful for the children involved because they
do not have a specific race to belong to.” App. to Pet. for
Cert. 394a. During the individual voir dire of juror number
five, neither defense counsel nor the State asked any ques-
tions about race or interracial marriage. Nor did either
——————
2 This remark on the insanity defense is one of only very few remarks

offered by the three jurors at issue that might have seemed favorable to
the defense. Somewhat similarly, juror number five recounted a news
report that Thomas had committed his crime “because he was insane,”
Record 1051, and juror six expressed admiration in her questionnaire for
one of Thomas’ attorneys. Id. at 1070. These passing comments cannot
excuse defense counsel’s failure to take the steps necessary to address
the serious impartiality concerns raised by these jurors’ remarks on in-
terracial marriage.
 Cite as: 598 U. S. ____ (2022) 5

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

party inquire as to whether the juror’s views on those topics
could affect her deliberations or her decision whether to im-
pose the death penalty. Again, although defense counsel
had peremptory strikes available, counsel did not exercise
one or seek to strike juror number five for cause.
Third, juror number six responded to the written ques-
tionnaire by reporting that he agreed that interracial mar-
riage “[s]hould not [b]e,” explaining: “I think we should stay
with our Blood Line.” Id., at 395a. Juror number six also
agreed that he opposed interracial marriage but that he
tried to keep those feelings to himself. During juror number
six’s individual voir dire, the juror explained that state and
federal criminal laws “are too lenient” and that “the judges’
and everybody’s hands are tied” with “the laws we have on
the books.” Record 1130. Neither defense counsel nor the
State asked juror number six about his views on interracial
marriage or biracial children, his views on race generally,
or whether those views could have an impact on his delib-
erations at the guilt and penalty phases. Defense counsel
once again had peremptory challenges available but did not
use them or request that the court strike the juror for cause.
All three jurors were seated on the all-white jury. A
fourth juror was seated as an alternate juror. She affirmed
that she “oppose[d] people of different racial backgrounds
marrying and/or having children,” and added: “As I stated
before I try not to judge what other people do. I oppose gay
marriage but a man and woman have the right to choose.”
App. to Pet. for Cert. 397a–398a. During the alternate ju-
ror’s voir dire, neither Thomas’ counsel nor the State fol-
lowed up about these answers, nor did counsel exercise any
available peremptory strikes or move to strike the juror for
cause. The juror was seated as the first alternate. Defense
council concluded voir dire with unused peremptory chal-
lenges.
After the trial concluded, the court excused the alternate
jurors. The remaining jurors ultimately convicted Thomas.
6 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

During the penalty phase, the State asked the jury to con-
sider the risk that Thomas could pose to the community if
he was not executed: “Are you going to take the risk about
[Thomas] asking your daughter out, or your granddaughter
out?” 995 F. 3d, at 443. The State then referenced five
guilt-phase witnesses who had testified about their roman-
tic relationships with Thomas, including one woman who
became pregnant by Thomas. The State reminded the jury
about “the string of girls that came up here and apparently
. . . that he could talk [him] into being with him, are you
going to take that chance?” Ibid. The jury sentenced
Thomas to death.
B
Thomas filed a direct appeal of his conviction and sen-
tence. While that appeal was pending, he filed an applica-
tion for a writ of habeas corpus in Texas state court raising
two arguments related to juror bias. First, he argued that
his trial counsel was ineffective by failing to question or
strike the biased jurors. Second, he claimed that seating
jurors opposed to interracial marriage violated his Sixth
and Fourteenth Amendment rights to trial by an impartial
jury.
In support of his ineffective-assistance-of-counsel argu-
ment, Thomas’ lead trial counsel filed an affidavit declaring
that his failure to question jurors opposed to interracial
marriage “was not intentional; [he] simply didn’t do it.”
Record 327. Second-chair counsel explained that Thomas’
case was her first capital trial, that she was “new at capital
voir dire,” and that “[v]oir dire in this case was a night-
mare.” Id., at 422–423. In response, the State attached two
new affidavits from the same two attorneys. Lead counsel
explained that he “would never ask pointed questions re-
garding racial bias from a juror without a real basis to do
so” because that might alienate a juror. Id., at 1748.
 Cite as: 598 U. S. ____ (2022) 7

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

Second-chair counsel gave substantively the same explana-
tion. Id., at 1764. Using identical language, both declared
that “[f]or those jurors who expressed some problem with
interracial relationships, either [co-counsel] or I questioned
them to the extent necessary for us to request a strike for
cause or make a decision to use a strike against them.” Id.,
at 1748, 1764–1765.
The state habeas court declined to hold an evidentiary
hearing. It denied Thomas’ impartial-jury argument on the
merits because the state court saw “no evidence that the
jury’s decision was racially motivated.” App. to Pet. for
Cert. 329a. The court dismissed Thomas’ ineffective-
assistance claim because Thomas “failed to overcome the
presumption that trial counsel was effective during
voir dire questioning.” Id., at 373a. The Court of Criminal
Appeals of Texas adopted the lower court’s findings of fact
and conclusions of law. Id., at 292a.
Thomas then filed a federal habeas petition raising the
same juror-bias and ineffective-assistance claims. The Dis-
trict Court denied the petition, deeming the juror-bias claim
“speculative,” and finding that defense counsel’s “decision
to forego questioning three of the four jurors about racial
bias was simply a matter of trial strategy.” Id., at 121a,
125a. In a divided opinion, the Fifth Circuit affirmed. The
panel agreed that the state habeas court’s finding that
there was “ ‘no evidence that the jury’s decision was racially
motivated’ ” was “not directly on point as to whether any
juror with a relevant bias that made him or her unable to
be impartial was seated on the jury.” 995 F. 3d, at 444.
Nevertheless, the majority concluded that the state court
made a “necessary implicit finding . . . that no juror would
base his decision on race rather than the evidence pre-
sented.” Ibid.
With respect to Thomas’ ineffective-assistance claim, the
panel determined that the state habeas court was not ob-
8 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

jectively unreasonable in finding trial counsel not ineffec-
tive, explaining that counsel’s failure to probe juror number
five’s and juror number six’s oppositions to interracial mar-
riage or procreation likely was a tactical decision. Id., at
450.
Judge Higginson dissented. He saw no evidence that ju-
ror number four retreated from his vigorous opposition to
interracial marriage. He pointed out that juror number
four had admitted to “racial animus” involving the “exact
interracial circumstances of the offense” for which Thomas
was sentenced to death. Id., at 461 (emphasis deleted). In
Judge Higginson’s view, “clearly established Supreme
Court law . . . forbid[s] persons from being privileged to par-
ticipate in the judicial process to make life or death judg-
ment about brutal murders involving interracial marriage
and offspring those jurors openly confirm they have racial
bias against.” Ibid. Because Judge Higginson would have
reversed on the basis of Thomas’ juror bias claim, he did not
reach the question whether Thomas’ counsel rendered defi-
cient performance.
Thomas now petitions this Court for a writ of certiorari.
II
Thomas’ trial counsel failed to object or to exercise avail-
able peremptory strikes for three jurors who expressed per-
sonal hostility to interracial marriage and procreation. Ad-
ditionally, counsel entirely failed to inquire into the race-
based views two of the jurors had expressed in their written
questionnaire and the potential impact those views could
have on their verdict and during the penalty phase. As a
result, Thomas was convicted and sentenced to death by a
jury that included three jurors who expressed bias against
him.
The Sixth Amendment right to counsel includes “ ‘the
right to the effective assistance of counsel.’ ” Strickland v.
Washington, 466 U. S. 668, 686 (1984) (quoting McMann v.
 Cite as: 598 U. S. ____ (2022) 9

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

Richardson, 397 U. S. 759, 771, n. 14 (1970)). Strickland
requires a defendant who claims ineffective assistance of
counsel to prove (1) “that counsel’s representation fell below
an objective standard of reasonableness,” and (2) that any
deficiency was “prejudicial to the defense.” 466 U. S., at
688, 692. Thomas has met both requirements.3
Thomas’ counsel fell far below an objective standard of
reasonableness. In a written questionnaire, four prospec-
tive jurors admitted that they either “oppose[d]” or “vigor-
ously oppose[d]” interracial marriage and procreation. Yet
counsel questioned only one of them (the third juror) about
their views on race, and as Judge Higginson recognized in
dissent below, that juror “never retreated from his ‘beliefs
about interracial marriage.’ ” 995 F. 3d, at 461.
Counsel asked no questions at all about race of the other
three prospective jurors, each of whom had also expressed
opposition to interracial marriage. This Court has recog-
nized that specific questioning may be required where there
is a “constitutionally significant likelihood that, absent
questioning about racial prejudice,” the State would not im-
panel an impartial jury. Ristaino v. Ross, 424 U. S. 589,
596 (1976). In Turner v. Murray, 476 U. S. 28 (1986), the
Court specifically held that “a capital defendant accused of
an interracial crime is entitled to have prospective jurors
informed of the race of the victim and questioned on the is-
sue of racial bias.” Id., at 36–37. The Court based that de-
cision in part on the broad discretion, and resulting poten-
tial for prejudice, given to a jury during the prejudice phase
of a capital trial. Id., at 35 (plurality opinion). The Court
held, nevertheless, that the trial judge’s “failure to question
——————
3 Thomas also raised a fair trial claim under the Sixth Amendment.

The State argues that Thomas has procedurally defaulted this claim be-
cause trial counsel did not strike the jurors or object to their seating.
Thomas disagrees. I do not address the fair trial claim, however, because
Thomas is entitled to relief on his ineffective-assistance-of-counsel claim,
which all agree is properly before this Court.
10 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

the venire on racial prejudice” is not by itself erroneous un-
less the “defendant has specifically requested such an in-
quiry,” effectively putting the burden on defendants’ attor-
neys to protect this right. Id., at 37.
There is no doubt that the facts of this case make out the
“constitutionally significant likelihood” under which spe-
cific questioning is required. This is a capital case involving
interracial violence where three seated jurors and an alter-
nate expressed prejudicial views. Had defense counsel re-
quested individual voir dire of the three prospective jurors,
it would have been reversible error for the trial judge to
deny that request. See id., at 36 (plurality opinion); id., at
36–37 (majority opinion). Counsel’s failure to do so was
constitutionally ineffective.
The state habeas court’s unexplained contrary conclusion
was objectively unreasonable. Although the challenged ju-
rors gave general affirmations when the trial judge asked if
they would “make up [their] mind based on the evidence,”
see, e.g., App. to Pet. for Cert. 116a, those answers to gen-
eral questioning do not absolve defense counsel of failing to
question the jurors about racial bias and its potential im-
pact on the verdict and penalty phase deliberations. As this
Court has long explained, when a juror “admit[s] prejudice,”
general statements of impartiality “can be given little
weight.” Irvin v. Dowd, 366 U. S. 717, 728 (1961); see also
Ham v. South Carolina, 409 U. S. 524, 526 (1973) (“three
general questions as to bias, prejudice, or partiality” were
insufficient where trial judge refused to examine jurors
about racial prejudice).
Moreover, while trial counsel has wide latitude to make
strategic decisions during voir dire, there was no excuse in
this case for their failure to ask the three other jurors ques-
tions similar to those that counsel asked juror number four.
Trial counsel initially admitted as much, swearing in affi-
davits that counsel’s failure to probe the jurors’ views “was
not intentional” before subsequently attesting that counsel
 Cite as: 598 U. S. ____ (2022) 11

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

“questioned [the jurors who expressed opposition to inter-
racial marriage] to the extent necessary.” Trial counsel’s
unusual, subsequently filed affidavits on behalf of the State
are contradicted by the record: Trial counsel claims to have
questioned the potential jurors who declared opposition to
interracial marriage, but the record shows that counsel did
not ask any questions at all related to interracial marriage
of three of the four who expressed opposition. That alone
demonstrates ineffectiveness. There are numerous ways to
broach sensitive but necessary subjects during voir dire
without invoking the ire of jurors.4
It is no doubt true that there may sometimes be strategic
reasons not to examine jurors for racial bias, but counsel
cited none here. To the contrary, the hostility the jurors
expressed in their questionnaires strongly suggested that
their presence would infect the proceedings with racial bias.
Counsel’s subsequent affidavits therefore “resembl[e] more
a post hoc rationalization of counsel’s conduct than an accu-
rate description of their” strategic decisions during
voir dire. Wiggins v. Smith, 539 U. S. 510, 526–527 (2003).
Because the Court of Appeals erred at the first Strickland
prong, it did not reach the second. It is plain, however, that
the state habeas court’s perfunctory conclusion that “[peti-
tioner] has not demonstrated that any alleged error preju-
diced [the] defense,” App. to Pet. for Cert. 373a, violated
clearly established law. As we have often recognized, seat-
ing even one biased juror infringes on a criminal defend-
ant’s Sixth Amendment right. See Parker v. Gladden, 385
——————
4 For instance, defense counsel could have posed something like the

following question: “Thank you for your honest response to the question
about your feelings toward interracial marriage. Many people have
strong feelings on the matter. For some people it can be hard to put those
feelings aside in judging evidence for a verdict, or especially in determin-
ing an appropriate punishment. Is there any possibility that your per-
sonal feelings about interracial marriage could influence you in this case
in any way? If there is, although you may be the perfect juror for many
other cases, you may not be a great fit for this case.”
12 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

U. S. 363, 366 (1966) (per curiam) (a defendant is “entitled
to be tried by 12, not 9 or even 10, impartial and unpreju-
diced jurors”); United States v. Martinez-Salazar, 528 U. S.
304, 316 (2000) (“[T]he seating of any juror who should have
been dismissed for cause . . . would require reversal”).
These concerns are even greater in capital cases involving
interracial violence. See Turner, 476 U. S., at 37.5 As the
Fifth Circuit has held, these (and other) precedents clearly
establish that a defendant suffers prejudice when trial
counsel fails to challenge biased jurors. See Virgil v. Dretke,
446 F. 3d 598, 613–614 (2006).
Thomas’ offense involved not only interracial violence,
but also interracial intimacy. Historians have long recog-
nized that interracial marriage, sex, and procreation evoke
some of the most invidious forms of prejudice and violence.
“No other way of crossing the color line is so attended by the
emotion commonly associated with violating a social taboo
as intermarriage and extra-marital relations between a
Negro man and a white woman.” 2 G. Myrdal, An American
Dilemma 606 (2009). Far from avoiding these incendiary
topics, the State fanned the flames in urging the jury to sen-
tence Thomas to death. The prosecutor asked the jury
——————
5 The Court specifically observed in Turner that a racially biased juror

might be more likely to find aggravating factors and less favorably in-
clined toward mitigation evidence, particularly in a case involving inter-
racial violence. 476 U. S., at 35 (plurality opinion). Subsequent social
science literature has underscored that concern. See generally M. Lynch
& C. Haney, Mapping the Racial Bias of the White Male Capital Juror:
Jury Composition and the “Empathic Divide,” 45 Law & Soc. Rev. 69
(2011). The concern is as applicable here as it was in Turner: Much as
Turner argued “mental disturbance as a mitigating circumstance” at the
penalty phase, 476 U. S., at 35, Thomas’ counsel argued that Thomas
suffered acute psychosis from a lifelong mental illness, see 995 F. 3d 432,
439 (CA5 2021).
Social science evidence also confirms Turner’s teachings regarding the
importance of questioning jurors about potential racial bias. See, e.g., P.
Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Online 180, 181–
183 (2015) (summarizing studies).
 Cite as: 598 U. S. ____ (2022) 13

Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR

whether they were “going to take the risk about [Thomas]
asking your daughter out, or your granddaughter out?” and
reminded the jury during the penalty phase about the
“string of girls” who had testified during the guilt phase
about their romantic relationship with Thomas. 995 F. 3d,
at 443.6
By failing to challenge, or even question, jurors who were
hostile to interracial marriage in a capital case involving
that explosive topic, Thomas’ counsel performed well below
an objective standard of reasonableness. This deficient per-
formance prejudiced Thomas by depriving him of a fair
trial. The state court’s contrary decision was an unreason-
able application of clearly established Supreme Court law.
* * *
This case involves a heinous crime apparently committed
by someone who suffered severe psychological trauma.
Whether Thomas’ psychological disturbances explain or in
any way excuse his commission of murder, however, is be-
side the point. No jury deciding whether to recommend a
death sentence should be tainted by potential racial biases
that could infect its deliberations or decision, particularly
where the case involved an interracial crime. Ignoring is-
sues of racial bias in the jury system “damages ‘both the
fact and the perception’ of the jury’s role as ‘a vital check
against the wrongful exercise of power by the State.’ ” Pena-
Rodriguez v. Colorado, 580 U. S. 206, 223 (2017).
This is not to impugn the individual jurors who served in
this case, who may themselves have responded to questions
——————
6 The Fifth Circuit declined to consider the prosecutor’s comments in

closing because a direct challenge to them fell beyond the scope of the
certificate of appealability. 995 F. 3d, at 443. That confuses the issue.
Separate from whether the closing argument itself was impermissible,
the rhetoric and substance of the closing statement are part of the “total-
ity of the evidence before the judge or jury” that a court must consider in
assessing prejudice under Strickland v. Washington, 466 U. S. 668, 695
(1984).
14 THOMAS v. LUMPKIN

Statement of SOTOMAYOR
SOTOMAYOR , J., dissenting
, J., dissenting

honestly and with good intentions. It is ultimately the duty
of the courts “to confront racial animus in the justice sys-
tem.” Id., at 222. That responsibility requires courts, in-
cluding this one, vigilantly to safeguard the fairness of
criminal trials by ensuring that jurors do not harbor, or at
the very least could put aside, racially biased sentiments.
To address these “most grave and serious statements of ra-
cial bias” is “to ensure that our legal system remains capa-
ble of coming ever closer to the promise of equal treatment
under the law that is so central to a functioning democracy.”
Id., at 224.
The errors in this case render Thomas’ death sentence not
only unreliable, but unconstitutional. I would not permit
the State to execute Andre Thomas in light of the ineffective
assistance that he received, and would summarily reverse
the Fifth Circuit.