Sotomayor dissented from the Court's denial of certiorari in a case involving the murder conviction and death sentence of an African-American in Texas state court. During the sentencing phase, a psychologist had improperly testified that blacks were more likely to be violent. Though the psychologist was a defense witness called to testify that the defendant would not pose a continuing threat to society behind bars, on cross-examination the prosecution further elicited statements from the psychologist regarding race as a predictor of future violence. In Sotomayor's view, "the salient fact was that the prosecution invited the jury to consider race as a factor in sentencing." Sotomayor also noted that the State had misrepresented to the lower courts the nature of other Texas death sentences that had involved the same psychologist but had already been set for resentencing, and she believed the District Court should have the opportunity to evaluate this case with a clear record.
Sotomayor filed a statement respecting the Court's denial of certiorari. A state court had found there was no credible or persuasive evidence that a jailhouse informant had lied in a murder trial when testifying that the defendant had confessed to him. Sotomayor agreed with the Ninth Circuit's finding that this was unreasonable, in light of voluminous evidence that the informant had lied about confessions in many other trials and had concededly lied about other matters in this trial, and therefore passed the high hurdle for setting aside a state court conviction under AEDPA. Disagreeing with Scalia's dissent, Sotomayor took issue with his characterization of the evidence that the informant lied as merely "circumstantial". She wrote that the dissent "insists that it is possible that Storch [the informant] repeatedly falsely implicated other defendants, and fabricated other material facts at Maxwell's trial, but uncharacteristically told the truth about Maxwell's supposed confession. Of course, that is possible. But it is not reasonable, given the voluminous evidence that Storch was a habitual liar who even the State concedes told other material lies at Maxwell's trial." She also noted that the Ninth Circuit had conducted the proper review under the law, and that the main purpose of granting certiorari is to clarify the law. "Mere disagreement with the Ninth Circuit's highly factbound conclusion is, in my opinion, an insufficient basis for granting certiorari."