Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 87-6796 Ford against Georgia will be announced by Justice Souter.
Argument of Justice Souter
Mr. Souter: In this case which is before us for a second time, we assess the adequacy of a state procedural rule by our review of the federal constitutional claim raised by the petitioner in a state criminal prosecution.
The petitioner is a Black man who alleges that the State of Georgia applied the criterion of race to exclude Black from the jury members from his jury in violation of the equal protection clause.
He seeks to prove his equal protection claim under the standard established by this court in Batson versus Kentucky.
The Supreme Court of Georgia held that petitioner had failed to raise a Batsons claim at trial and held that even if he had, the claim was not timely under a state procedural rule announced after the petitioners trial.
We reverse.
The petitioner raised an equal protection claim at trial subject to the standard of proof articulated in Batsons antecedents Slane in Alabama.
In Slane, this court recognized as an equal protection violation the claim of the thought petitioner seeks to prove, that Slane establish a rigorous standard for proving such a violation.
Our subsequent holding in Batson, which was decided after petitioners trial, did not change the nature of the violation but merely the quantum of proof necessary to substantiate a particular claim.
Because petitioner raised a claim under Slane, it falls that he raise to claim under Batson as well.
The Supreme Court of Georgia nonetheless, held that petitioners Batson claim was untimely under a procedural rule announced by that court in 1987 almost three years after the petitioner was tried and convicted.
While it is generally true that local law will determine whether a constitutional claim is timely, this court has held that a state may not by review of a federal constitutional claim is timely under a state procedural rule that was not firmly established and regularly followed as to the time to which it is to be applied.
In this case, the procedural rule applied by the Georgia Court was announced long after petitioners trial and the state may not apply it to buy a subsequent federal review of the claim.
The judgment of the Supreme Court of Georgia is reversed and the case is remanded for further proceedings not inconsistent with the opinion of this court.
