In Hightower v. Terry, No. 00-15807 (Aug. 8, 2006) (2-1) (Wilson, J. dissented), the Court denied habeas relief to a death row inmate convicted of 1987 murders.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.
