Sotomayor, J., dissenting
During the penalty phase, the State asked the jury to consider 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 romantic 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 sentence. While that appeal was pending, he filed an application 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 argument, 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 nightmare.” 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 regarding racial bias from a juror without a real basis to do so” because that might alienate a juror. Id., at 1748.
