Sotomayor, J., dissenting
jectively unreasonable in finding trial counsel not ineffective, explaining that counsel’s failure to probe juror number five’s and juror number six’s oppositions to interracial marriage or procreation likely was a tactical decision. Id., at 450.
Judge Higginson dissented. He saw no evidence that juror 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 participate in the judicial process to make life or death judgment 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 deficient performance.
Thomas now petitions this Court for a writ of certiorari.
II
Thomas’ trial counsel failed to object or to exercise available peremptory strikes for three jurors who expressed personal hostility to interracial marriage and procreation. Additionally, 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.
