Whether the Mississippi Supreme Court may apply an impossible standard of prejudice in reviewing ineffective assistance of counsel claims related to Batson challenges that effectively immunizes racially discriminatory jury selection from federal constitutional review

No question identified. : To the Honorable Samuel A. Alito, Jr., Associate Justice of the United States and Circuit Justice for the Fifth Circuit: 1. In accordance with this Court’s Rules 13.5, 22, 30.2 and 30.3, Applicant Tony Terrell Clark respectfully requests that the time to file his petition for a writ of certiorari be extended for 30 days, through January 30, 2026. The Mississippi Supreme Court issued its order on June 19, 2025. (Exhibit A) and denied rehearing on October 2, 2025. (Exhibit B). Absent an extension of time, the petition would be due on December 31, 2025. This Court’s jurisdiction is based on 28 U.S.C. 1257. This request is unopposed. 2. This case presents important questions of federal constitutional law in the context of capital conviction and sentencing: (1) whether the Mississippi Supreme Court may set an impossible standard in post-conviction review of an ineffective Batson v. Kentucky, 476 U.S. 79 (1986) challenge to meet the test for prejudice as set forth in Strickland v. Washington, 466 U.S. 668, 68788 (1984); and (2) whether the Mississippi Supreme Court may may refuse to consider on postconviction, new evidence and arguments that rebut the prosecutor’s asserted race-neutral reasons for exercising peremptory strikes against Black jurors that were not presented to the trial court. 3. At Clark’s trial, the State “was over five times more likely to strike a Black prospective juror than a white one.” Clark v. Mississippi, 143 S.Ct. 2406, 2408 (2023) (Sotomayor, J., dissenting from denial of cert.) While the trial court held that Clark met his prima facie burden in his Batson challenges it accepted the State’s purported facially neutral reasoning for the strikes. Clark v. State, 343 So. 3d 943, 954-55 (Miss. 2022). 4. On direct appeal the Mississippi Supreme Court found that Clark “failed to present a comparative juror analysis or sufficient rebuttal evidence to the trial court, ultimately finding no Batson violation.” Clark v. State, 418 So. 3d 1226, 1236 (Miss. 2025) (King, P.J. concurring in part and dissenting in part) citing Clark v. State, 343 So. 3d 943, 954-971 (Miss. 2022). The Mississippi Supreme Court has now foreclosed collateral relief for the failure to present this rebuttal evidence finding that he “did not show that counsel’s performance before the trial court was deficient” and it “did not deprive him of a fair trial with a reliable result.” /d. at 1232. In doing so it accepted the State’s argument that to prove Strickland prejudice in this context a petitioner must show “that the outcome of the trial would have been different.” State’s Response in Opposition p. 50, citing Powers v. State, 371 So. 3d 629, 682-90 (Miss. 2023). Clark submits that the Mississippi Supreme Court is applying an impossible standard to Strickland prejudice to evade federal review. 5. To require proof that the racial composition of a jury altered the result of the trial would do violence to Batson’s premise that a person’s race is not relevant to his qualification to serve as a juror. Such a requirement would also contradict Strickland’s presumption that [t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker[.]” Strickland v. Washington, 466 U.S. 668, 695 (1984). 6. Clark’s petition will thus satisfy the Court’s criteria for certiorari because it will present an important question of federal constitutional law in the context of capital conviction and sentencing. 7. Counsel respectfully requests more time to file the petition for certiorari because counsel has many other substantial competing commitments in their other capital cases including: e Pending motion by the State of Mississippi to set an execution date, and a pending motion for rehearing on a successive state post-conviction petition in Willie Jerome