Page:United States Reports, Volume 545.djvu/331

 280 MILLER-EL v. DRETKE Thomas, J., dissenting tion occurred at Miller El’s trial. The majority’s discussion of the other types of evidence relies on documents like juror questionnaires and juror cards that were added to the record before the District Court. The majority’s willingness to reach outside the state court record and embrace evidence never presented to the Texas state courts is hard to fathom. AEDPA mandates that the reasonableness of a state court’s factual ﬁndings be assessed “in light of the evidence presented in the State court proceeding,” 28 U. S. C. § 2254(d)(2), and also circumscribes the ability of federal habeas litigants to present evidence that they “failed to develop” before the state courts. § 2254(e)(2); Williams v. Taylor, 529 U. S. 420, 429–430 (2000). Miller-El did not argue disparate treatment or disparate questioning at the Batson hearing, so he had no reason to submit the juror questionnaires or cards to the trial court. However, Miller-El could have developed and presented all of that evidence at the Batson hearing.2 Consequently, he must satisfy § 2254(e)(2)’s requirements to adduce the evidence in federal court—something he cannot do. Williams, supra, at 437 (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufﬁcient effort to pursue in state proceedings”). For instance, there is no doubt that Miller-El’s supplemental material could have been “previously discovered through the exercise of due diligence. ” §2254(e)(2)(A)(ii). Just last Term, we summarily reversed the Court of Appeals for the Sixth Circuit for doing what the Court does

2 The juror questionnaires had been in Miller-El’s possession since before the 1986 Swain hearing; Miller-El’s attorneys used them during the voir dire. But because Miller-El did not argue disparate treatment or questioning at the Batson hearing, Miller-El’s attorneys had no reason to submit the questionnaires to the trial court. The juror cards could have been requested at any point under the Texas Public Information Act. See Supplemental Brieﬁng on Batson/Swain Claim Based on Previously Unavailable Evidence, Record in No. 00 –10784 (CA5), p. 2494.