Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default

37 Pages Posted: 16 Jun 2021

See all articles by Cal Barnett-Mayotte

Cal Barnett-Mayotte

University of Pennsylvania Law School

Date Written: June 8, 2021


A Batson violation is structural error, “not amenable” to harmless error analysis on direct appeal. By definition, structural errors evade traditional prejudice analysis. Yet a number of circuits demand a showing of Strickland prejudice when a petitioner seeks relief for trial counsel’s ineffective failure to object to a Batson violation. As some of these courts recognize, they demand the impossible.

In 2017, the Supreme Court in Weaver v. Massachusetts suggested that structural errors that “always result in fundamental unfairness” should not be subjected to a prejudice analysis. Though often misread, Weaver marked an important shift in Strickland doctrine. I argue that, since Batson violations always result in fundamental unfairness, they merit a presumption of Strickland prejudice.

But many Strickland-Batson claims arise on federal habeas corpus review, and the Weaver Court had no occasion to apply its ruling to the habeas context. Habeas doctrine includes its own prejudice standard: to excuse procedural default, a petitioner must generally demonstrate “cause” for the failure to raise the claim in state court, and “prejudice” suffered from the underlying error. If it continues to demand a showing of prejudice, procedural default threatens to preclude federal review of the newly viable Strickland-Batson claims for which Weaver clears the way. Where Martinez supplies cause, I argue, Weaver must supply prejudice.

Keywords: habeas corpus, Weaver v. Massachusetts, structural error, Batson, procedural default, ineffective assistance of counsel

Suggested Citation

Barnett-Mayotte, Cal, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default (June 8, 2021). University of Pennsylvania Law Review, Forthcoming, Vol. 170, Forthcoming , Available at SSRN:

Cal Barnett-Mayotte (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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