NOT PRECDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-1147
                                     ____________

                                  WAYNE COOMBS

                                              v.

                            DAVID DIGUGLIELMO;
                     DISTRICT ATTORNEY PHILADELPHIA;
                     ATTORNEY GENERAL PENNSYLVANIA,
                                                Appellants



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D. C. No. 2-04-cv-01841)
                     District Judge: Honorable Cynthia M. Rufe


                                Argued on March 6, 2014

                Before: AMBRO, JORDAN and ROTH, Circuit Judges

                            (Opinion filed: August 25, 2014)

Molly S. Lorber, Esquire (Argued)
Assistant District Attorney
Thomas W. Dolgenos, Esq.
Chief, Federal Litigation
Philadelphia Office of District Attorney
Three South Penn Square
Philadelphia, PA 19107
                      Counsel for Appellant




                                              1
Leon A. Williams, Esquire (Argued)
327 South 13th Street
Philadelphia, PA 19107

                     Counsel for Appellee



                                       OPINION


ROTH, Circuit Judge:

       The District Attorney of the County of Philadelphia, the Attorney General of

Pennsylvania, and David DiGuglielmo, the former Superintendent of the State

Correctional Institution at Graterford appeal the District Court’s order sustaining Wayne

Coombs’s objections to the Magistrate Judge’s Report and Recommendation and granting

his habeas corpus petition for the prosecutor’s strike of a prospective juror in violation of

Batson v. Kentucky, 

(1986). For the reasons that follow, we will reverse.

I.     Background

       Coombs was arrested on February 22, 2000, for a series of robberies that occurred

in Philadelphia during the winter of 1999–2000. His September 2001 trial in the

Philadelphia Court of Common Pleas ended with a hung jury.

       Coombs was re-tried in November 2001. On the first day of jury selection, the

prosecutor raised a “reverse Batson” challenge against defense counsel’s use of

peremptory strikes to strike three white jurors. Defense counsel then raised his own

Batson challenge. The prosecutor provided race-neutral reasons for the strikes. The

judge denied both challenges.


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       During jury selection the next day, defense counsel again raised Batson challenges

against the prosecutor’s peremptory strikes. The prosecutor offered race-neutral reasons

for striking some jurors that are not relevant here. He then gave his explanation for his

strike of Juror No. 1, a black man:

       I just didn’t like him, Your Honor, I don’t really have a sound reason. It was the
       first strike I used. I don’t know, just the way he was looking at me. If that’s a
       reason it’s justified, but Your Honor found there’s no pattern. I mean I just didn’t
       like him and he didn’t check off many boxes, but I went with my hunch, as Your
       Honor said yesterday.

R. at 344, Trial Tr. at 75 (Nov. 27, 2001). The court responded, “Okay. All right. Let’s

go. Are we ready to start?” Defense counsel then asked if the court was accepting the

prosecutor’s reasons and denying the Batson challenges. The court confirmed that it was.

       On November 30, 2001, a jury consisting of nine white jurors and three black

jurors convicted Coombs of nine counts of robbery and three counts of possessing an

instrument of a crime. At sentencing on February 13, 2002, defense counsel again raised

a Batson challenge. He sought to introduce evidence of two conversations he allegedly

had with the prosecutor that he claimed were relevant to the prosecutor’s state of mind

with respect to race in using his peremptory strikes. Over repeated protests from defense

counsel, the court declared it irrelevant and rejected the Batson argument. The District

Judge offered to let defense counsel submit an affidavit. Coombs was sentenced to 59 to

160 years in prison.

       Less than a week later, defense counsel submitted an affidavit stating that,

between the first and second trials, he had a conversation with the prosecutor who told

him that in the first trial there had only been one “holdout” juror and it was a black

                                              3
woman. Counsel also stated that he and the prosecutor had another conversation,

between the conclusion of the second trial and sentencing, in which the prosecutor said

that the “holdout” juror from the first trial “had voted not guilty because the defendant

was black and she was black.” Coombs v. DiGuglielmo, 

, 232–33

(E.D. Pa. 2012). The court denied Coombs’s motion renewing the Batson claim.

       Coombs filed a direct appeal to the Pennsylvania Superior Court raising the

Batson challenge and other claims. The Superior Court denied them without reaching the

merits of his claims because of Coombs’s failure to comply with Commonwealth v.

Spence, 

(Pa. 1993).1 The Pennsylvania Supreme Court denied leave to

appeal. Coombs then filed a petition for a writ of habeas corpus in the Eastern District of

Pennsylvania.

       The Magistrate Judge found that Coombs had failed to show that the state trial

court’s decision was “contrary to, or involved an unreasonable application of”2 Batson

and recommended denial of the petition. The District Judge adopted the R&R and denied

the petition. Coombs appealed.



1
  “The Spence rule requires an appellant raising a Batson challenge to make a record
identifying the race of venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but stricken by the defense, and the
racial composition of the final jury selected.” Coombs v. Diguglielmo (Coombs I), 

, 259 n.2 (3d Cir. 2010) (citation and internal quotation marks omitted). We
have found the Spence rule “inconsistent with the teachings of Batson.” Holloway v.
Horn, 

, 726 (3d Cir. 2004); see also Bronshtein v. Horn, 

, 723
(3d Cir. 2005) (“It is noteworthy that Batson discussed what a criminal defendant must
do to establish a prima facie case without hinting that a defendant must always satisfy
anything like the rigid [Spence] requirements.”).
2
  Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d).
                                             4
       In a precedential opinion, we stated that “when, although properly preserved by

the defendant, the state court has not reached the merits of a claim thereafter presented to

a federal habeas court, the deferential standards provided by AEDPA do not apply.”

Coombs 

(internal quotation marks and alteration omitted) (quoting

Appel v. Horn, 

, 210 (3d Cir. 2001)). We also held that the District Court

failed to properly conduct step three of the Batson analysis, which requires the court to

show “engagement with the evidence” to determine whether the prosecutor’s proffered

race-neutral reason for the strike was pretextual. 

(internal quotation marks

omitted). Because the District Court failed to do this, we remanded for an evidentiary

hearing.

       On remand, the District Court referred the case to the Magistrate Judge to conduct

an evidentiary hearing and draft a revised R&R. The hearing was held on April 26, 2011,

with both the original prosecutor, Max Kramer, and the original defense counsel, Jerome

Mallon, testifying. There was little new evidence on the prosecutor’s strike of Juror No.

1. 

. Defense counsel introduced the prosecutor’s

handwritten notes from the first trial, which included short phrases such as “L or R hand

with gun,” “color of jacket,” and “foreperson Antipolice.” 

One of the notes

next to a recording of an 8 to 4 jury vote says “racial lines.” Id.3 At the hearing, Coombs

produced evidence about the racial composition of the jury and the venire panel. The

panel had 9 black venirepersons (33%) and 18 white venirepersons (67%). 

3
  Mr. Kramer admitted that the notes were written by his hand, but did not recall writing
them and could provide no context. 

prosecutor used six of the seven peremptory challenges allotted to him, five of those

six on black venirepersons (83%). 

The final jury was composed of three

black jurors (25%) and nine white jurors (75%). 

Judge recommended that the court deny the petition for the writ of

habeas corpus. The Magistrate Judge heard live testimony from the prosecutor, who

testified that his strike was based on Juror No. 1’s demeanor but did not recall what

specific characteristics troubled him. He testified that it was not his practice in his many

years as a prosecutor to take race into account 

The Magistrate Judge

found him credible and found that “he did not exercise any of his peremptory strikes in a

discriminatory manner.” Coombs v. DiGuglielmo, No. 04-1841, 

, at

*9 (E.D. Pa. Sept. 7, 2011). Coombs objected only to the conclusions with regard to

Juror No. 1.

       The District Judge sustained Coombs’s objections, finding that the reason for

striking, plus the evidence of the prosecutor’s notes, high rate of striking black

venirepersons, and not striking whites who answered the jury questionnaire similarly led

to the conclusion that it was more likely than not that the prosecutor’s proffered reason

for the strike was a pretext for racial discrimination. 

–41.

The judge granted the writ, conditioned on the Commonwealth’s right to retry. The

Commonwealth filed this appeal.

III.   Discussion

       Federal appellate review of state-court habeas decisions on the merits proceeds

under the highly deferential standard of AEDPA, 28 U.S.C. § 2252. In this case,

                                              6
however, the state courts did not reach the merits of Coombs’s Batson challenge.

Coombs 

. When this occurs, the deferential standards provided for by

AEDPA do not apply. 

Coombs I we exercised de novo review. 

the same here. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and

2253(a).

       The Equal Protection Clause forbids the use of peremptory strikes against

potential jurors on the basis of race. 

–89. Batson established a

three-step process for determining the constitutionality of a peremptory strike. First, the

defendant makes a prima facie case that the prosecutor exercised a peremptory challenge

on the basis of race. Coombs 

. “Second, if the showing is made, the

burden shifts to the prosecutor to present a race-neutral explanation for striking the juror

in question.” 

v. Collins, 

, 338 (2006)). “Third, the court

must then determine whether the defendant has carried his burden of proving purposeful

discrimination.” 

, 546 U.S. at 338).

       Proof of racially discriminatory intent or purpose is required to show a Batson

violation. Hernandez v. New York, 

, 360 (1991) (plurality op.) (citing

Arlington Heights v. Metro. Housing Dev. Corp., 

, 264-65 (1977) (requiring

racially discriminatory intent for violation of the Equal Protection Clause)). The

prosecutor’s “subjective intent is the principal focus of a Batson challenge.” Hardcastle

v. Horn, 

, 257 n.4 (3d Cir. 2004); see also Williams v. Beard, 

,

216 (3d Cir. 2011) (“Step three ultimately focuses on the prosecutor’s subjective

motivation . . ..”); Pemberthy v. Beyer, 

, 872 (3d Cir. 1994) (“The dispositive

                                              7
question is the factual question of subjective intent.”). On step three of the analysis, “the

issue comes down to whether the trial court finds the prosecutor’s race-neutral

explanations to be credible.” Miller-El v. Cockrell, 

, 339 (2003).

       District judges exercise de novo review over a Magistrate Judge’s Report and

Recommendation stemming from an evidentiary hearing conducted as part of the review

of a habeas petition. 28 U.S.C. § 636(b)(1). We have held, however, that “[a] district

court may not reject a finding of fact by a magistrate judge without an evidentiary

hearing, where the finding is based on the credibility of a witness testifying before the

magistrate judge and the finding is dispositive of an application for post-conviction relief

involving the constitutional rights of a criminal defendant.” Hill v. Beyer, 

,

482 (3d Cir. 1995). Thus, when the magistrate judge holds an evidentiary hearing that

includes the testimony of live witnesses, a district court cannot ordinarily reject the

magistrate judge’s credibility determinations unless it holds its own evidentiary hearing.

The district judge may not reject those findings without holding its own evidentiary

hearing. See Boyd v. Waymart, 

, 333 (3d Cir. 2009) (en banc) (per curiam)

(“[W]e conclude the District Court improperly rejected—on a cold record—the

Magistrate Judge’s finding.”); 

(Scirica, C.J., concurring) (concluding that the

District Court “should hold its own evidentiary hearing if it declines to adopt the

Magistrate Judge’s finding”).

       The issue of intent to discriminate is a “pure issue of fact,” 

, that turns on the fact finder’s evaluation of the witness’s credibility, see 

n.21. In this case, the Magistrate Judge made a credibility determination based

                                              8
on the prosecutor’s statements and demeanor when testifying and concluded that the

prosecutor did not purposefully discriminate. Coombs, 

, at *9.

       The Commonwealth contends that the District Court erred in rejecting the finding

of the Magistrate Judge on a factual question without holding a new evidentiary hearing.

We agree. As we stated in Hill and Boyd, a District Judge may not reject a Magistrate

Judge’s factual finding without holding its own evidentiary hearing. 

; 

. That is exactly what the District Court did in this case.

       The dispositive question is the subjective intent of the prosecutor. After hearing

live testimony, the Magistrate Judge found that the prosecutor did not intentionally

discriminate on the basis of race. After the Magistrate Judge held the evidentiary

hearing, the District Judge could either accept the decision or hold a new evidentiary

hearing. Citing 

, the District Court here acknowledged as much. It

chose to accept the Magistrate Judge’s assessment of credibility.

       This determination is dispositive. There is no reason to go on to speculate on

pretext. Pretext would reflect lack of credibility – and the prosecutor’s credibility was

found by the Magistrate Judge.4 Once the District Court accepted the Magistrate Judge’s

finding that the prosecutor did not subjectively intend to strike a potential juror based on

race, the Batson step three inquiry was decided. See, e.g., Bond v. Beard, 

,

269 (3d Cir. 2008).


4
 If, rather than finding that the prosecutor was credible, the Magistrate Judge had found
merely that the prosecutor had offered a racially neutral explanation for the strike, pretext
would be an appropriate issue on Step Two for further consideration in reviewing the
Batson claim.
                                              9
      Therefore, we will reverse the District Court’s order sustaining Coombs’s

objections and granting the writ of habeas corpus.5 Based on the District Judge’s

acceptance of the Magistrate Judge’s finding on the prosecutor’s subjective intent, we

will remand with instructions to adopt the Magistrate Judge’s Report and

Recommendation and grant judgment in favor of the Commonwealth.




5
  Given our disposition of the appeal, we need not address the Commonwealth’s
argument that Coombs was foreclosed from a federal evidentiary hearing under the
requirements of 28 U.S.C. § 2254(e)(2).
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