Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default

44 Pages Posted: 16 Jun 2021 Last revised: 13 Jun 2022

See all articles by Cal Barnett-Mayotte

Cal Barnett-Mayotte

University of Pennsylvania Law School

Date Written: April 20, 2022


A Batson violation—racially discriminatory jury selection—is a structural error, “not amenable” to harmless error review on direct appeal. By definition, structural errors evade traditional prejudice analysis. But, when a petitioner argues on collateral review that their trial counsel provided ineffective assistance by failing to object to a Batson violation, a number of circuits require a showing of Strickland prejudice. 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 undergo a prejudice analysis. Instead, courts should presume that these errors cause prejudice. 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 ineffective assistance of counsel claims arise on federal habeas corpus review, and the Weaver Court had no occasion to apply its ruling to the habeas context. Habeas doctrine features its own prejudice standard: if a claim has procedurally defaulted in state court, a habeas court will refuse to hear it unless the petitioner demonstrates “cause” for the failure to raise the claim in state court, and “prejudice” suffered from the violation of the federal right. If it continues to demand a showing of prejudice, procedural default threatens to preclude federal review of the newly viable but procedurally defaulted Batson-IAC claims for which Weaver clears the way.

I investigate Weaver’s impact on one pathway around procedural default: the one carved by Martinez v. Ryan. Martinez held that ineffective assistance of initial review postconviction counsel should provide “cause” for the failure to raise a substantial ineffective-assistance-of-trial-counsel (IATC) claim in state court. Martinez elevated procedural fairness over formal roadblocks; it insisted that a substantial IATC claim must receive at least one airing, in one court. A stubborn insistence that a Batson-IAC victim show prejudice would construct another formal roadblock at the expense of procedural fairness. Where a habeas petitioner successfully invokes Martinez to provide cause, I argue, the habeas court should presume prejudice.

The habeas court should thus reach the claim’s merits: did racial discrimination infect jury selection?

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 (April 20, 2022). 170 U. Pa. L. Rev. 1049 (2022), Available at SSRN:

Cal Barnett-Mayotte (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA
United States

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