Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2003

Rico v. Leftridge-Byrd
Precedential or Non-Precedential: Precedential

Docket No. 01-4150P




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                                  PRECEDENTIAL

                                          Filed August 14, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 01-4150


                         JOSEPH RICO,
                                           Appellant
                                 v.
                 MARY LEFTRIDGE-BYRD;
             THE DISTRICT ATTORNEY OF THE
               COUNTY OF PHILADELPHIA;
             THE ATTORNEY GENERAL OF THE
                STATE OF PENNSYLVANIA

 APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               D.C. Civil No. 00-cv-04841
   District Judge: The Honorable William H. Yohn, Jr.

         Submitted Under Third Circuit LAR 34.1(a)
                      April 7, 2003
          Before: BECKER,* BARRY and BRIGHT,**
                      Circuit Judges

               (Opinion Filed: August 14, 2003)




* Judge Becker completed his term as Chief Judge on May 4, 2003.
** The Honorable Myron H. Bright, Senior Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
                                  2




                         F. Emmett Fitzpatrick, Jr., Esq.
                         NiaLena Caravasos, Esq.
                         F. Emmett Fitzpatrick Law Offices
                         6th & Chestnut Streets
                         926 Public Ledger Building
                         Philadelphia, PA 19106
                         Attorneys for Appellant
                         Marilyn F. Murray, Esq.
                         Office of the District Attorney
                         1421 Arch Street
                         Philadelphia, PA 19102
                         Attorney for Appellees


                   OPINION OF THE COURT

BARRY, Circuit Judge:
  The issue before us is whether the Pennsylvania Supreme
Court’s decision upholding Joseph Rico’s conviction and
sentence against a Batson challenge based on the
prosecutor’s use of peremptory challenges to strike Italian-
American prospective jurors was contrary to, or an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.1

                                  I.
  On February 21, 1992, Joseph Rico was convicted by a
jury in the Court of Common Pleas of Philadelphia County
of first-degree murder and criminal conspiracy, and was
sentenced to life imprisonment. Rico filed post-sentence
motions, one of which invoked Batson v. Kentucky, 

(1986), alleging that the prosecutor exercised seven
of his twenty peremptory challenges against Italian-

1. In this opinion, all references to the “Supreme Court” refer to the
Supreme Court of the United States. All references to the Pennsylvania
Supreme Court will be so indicated.
                             3


American prospective jurors in violation of the Equal
Protection Clause. Rico, we note, is not Italian-American
but, for reasons of which we are not aware, changed his
surname from Gavel to Rico. The trial court denied relief, as
it had during jury selection, finding that no discrimination
had occurred. Commonwealth v. Rico, Cr. No. 3022-3027,
slip op. (Pa. Comm. Pleas Ct. Jul. 29, 1994).
   Rico appealed to the Superior Court, again complaining
that the prosecutor used his peremptory challenges to
strike jurors of Italian descent in violation of Batson. The
Superior Court agreed as to all but two of the struck jurors,
reversed Rico’s convictions, and granted him a new trial.
Commonwealth v. Rico, 

(Pa. Super. Ct.
1995). The Pennsylvania Supreme Court reversed,
concluding in an opinion dated April 27, 1998 that the
Superior Court erred in rejecting the trial court’s factual
finding of no purposeful discrimination. The Court
remanded for consideration of Rico’s prosecutorial
misconduct claim which the Superior Court had not found
it necessary to decide given its resolution of the Batson
issue. Commonwealth v. Rico, 

(Pa. 1998). On
remand, the Superior Court affirmed the judgment and
sentence, and the Pennsylvania Supreme Court denied
Rico’s petition for discretionary review on October 14, 1999.
  Rico filed this petition under 28 U.S.C. § 2254(d), arguing
Batson and prosecutorial misconduct. The Magistrate
Judge      issued    a    Report    and    Recommendation,
recommending that the petition be dismissed. Rico v.
Leftridge-Byrd, Civ. No. 00-4841, slip op. (E.D. Pa. Apr. 27,
2001). On November 8, 2001, the District Court adopted
the Report and Recommendation, denied Rico’s petition,
and denied a certificate of appealability. Rico v. Leftridge-
Byrd, Civ. No. 00-4841, 

(E.D. Pa. Nov. 8,
2001). We certified only Rico’s Batson claim for appeal. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(c)(1), and will affirm.

                             II.
  The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
                                   4


(codified at, inter alia, 28 U.S.C. § 2254), circumscribes a
federal habeas court’s review of a state court decision.
Lockyer v. Andrade, 

(2003). Under 28
U.S.C. § 2254(d), a federal court must not grant an
application for a writ of habeas corpus with respect to a
state court proceeding unless the state decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.”
   In order to satisfy § 2254(d)(1), the petitioner must show
either that the lower court’s decision was “contrary to”
Supreme Court precedent or that it was an “unreasonable
application of ” that precedent. With reference to the
“contrary to” prong, a petitioner must show not “merely
that his or her interpretation of Supreme Court precedent
is more plausible than the state court’s [but] that Supreme
Court precedent requires the contrary outcome.” Matteo v.
Superintendent, SCI Albion, 

, 888 (3d Cir.
1999) (en banc) (emphasis in original). Satisfaction of the
“unreasonable application” prong requires a petitioner to
show that “the state court’s application of Supreme Court
precedent was objectively unreasonable.” 

When a federal habeas court is called upon to determine
whether a petitioner has made this showing, “mere
disagreement with the state court’s conclusions is not
enough to warrant habeas relief.” 

A state court
decision fails the “unreasonable application” prong only “if
the court identifies the correct governing rule from the
Supreme Court’s cases but unreasonably applies it to the
facts of the particular case or if the state court either
unreasonably extends a legal principle from the Supreme
Court’s precedent to a new context where it should not
apply or unreasonably refuses to extend the principle to a
new context where it should apply.” Gattis v. Snyder, 278

2. In Werts v. Vaughn, 

(3d Cir. 2000), we reaffirmed Matteo
and held that it was in accord with the intervening Supreme Court
decision in Williams v. Taylor, 

(2000), which construed 28
U.S.C. § 2254(d)(1).
                              

, 234 (3d Cir. 2002)(citing Williams v. Taylor, 

, 407 (2000)).
  A state court decision based on a factual determination,
such as that required under § 2254(d)(2), will not be
overturned on factual grounds unless it was objectively
unreasonable in light of the evidence presented in the state
proceeding. Miller-El v. Cockrell, 

, 1040-41,

(2003). We must presume that the state
court’s determination of factual issues was correct, and the
petitioner bears the burden of rebutting this presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Campbell v. Vaughn, 

, 285 (3d Cir. 2000). A
state court’s finding of the absence of discriminatory intent
is “a pure issue of fact accorded significant deference,”
which will not be overturned unless clearly erroneous.

(citation omitted).

                             III.
  The Pennsylvania Supreme Court determined that the
applicability of Batson to an ethnic group depends on
whether the group is “a cognizable group that has been or
is currently subjected to discriminatory treatment” in the
community—a question of fact within the sound discretion
of the trial court. 

. The Court
assumed without deciding that Italian-Americans were a
cognizable group subject to the Batson rule and, thus, that
Batson was “triggered,” but rejected Rico’s Batson challenge
based on the trial court’s finding that the prosecutor’s
reasons for the strikes were ethnically-neutral and no
purposeful discrimination occurred. 

   We turn first to whether the Pennsylvania Supreme
Court’s application of the Batson rule to Italian-Americans
in this jury panel was “contrary to” or “an unreasonable
application of ” Supreme Court precedent existing at the
time. We then must determine whether, if Batson could be
applied, the trial court — and, as we put it in Gattis, “ipso
facto, the [Pennsylvania] Supreme Court” — failed the
“unreasonable determination of the facts” prong of
§ 2254(d) when it found that the prosecutor did not strike
potential jurors from the panel on the basis of their Italian-
American status.
                                    6


  A.   Was the decision of the Pennsylvania Supreme
       Court contrary to, or an unreasonable application
       of, precedent of the Supreme Court of the United
       States?
  In Batson, which involved the criminal trial of a black
defendant, the Supreme Court held that in order to
establish a prima facie case of discrimination in the
prosecutor’s exercise of peremptory challenges, the
defendant must “show that he is a member of a cognizable
racial group and that the prosecutor has exercised
peremptory challenges to remove from the venire members
of the defendant’s race.” 

, 96
(emphasis added). In Hernandez v. New York, 

(1991), the Court applied the Batson rule to potential jurors
who were bilingual Latinos, with the Court viewing Latinos
as a cognizable race for Batson purposes and referring to
Latinos as both a race and as an ethnicity.3 In J.E.B. v.
Alabama ex rel. T.B., 

(1994), the Court
extended Batson to discrimination on the basis of gender.
The J.E.B. majority explicitly grounded its decision on its
conclusion that the Equal Protection Clause bars
peremptory challenges based on gender and, it strongly
suggested, on any classification otherwise receiving
“heightened scrutiny” under the Clause. See 

.
   In 1998, when the Pennsylvania Supreme Court
considered the issue in this case, and a fortiori when the
trial court even earlier did so, the Supreme Court of the
United States had not extended Batson to any European-
American ethnicity or to national origin — and still has not
done so. The state courts, therefore, correctly concluded

3. In Hernandez, the Supreme Court affirmed the state court’s rejection
of Batson challenges to the exclusion of bilingual Latino potential jurors.
The trial court had credited the prosecutor’s race-neutral reason for the
challenges, which was that these potential jurors would not be able to
defer to the official court interpretation of the Spanish-language
testimony of the main witnesses because they hesitated when they were
asked if they could accept that interpretation. 

n.2. The Supreme Court found that the trial court’s acceptance of
this race-neutral reason and finding of no discriminatory intent was not
clearly erroneous.
                                    7


that whether Batson extends to the ethnic classification of
Italian-American was a question that had not been
addressed by our highest Court. As a result, the state
courts’ consideration, under Batson, of peremptory strikes
against Italian-American prospective jurors was not
contrary to then-existing precedent of the Supreme Court.
   And it certainly was not “objectively unreasonable” for the
state courts to have analyzed those strikes under Batson
and, when they did so, they did not unreasonably apply
Supreme Court precedent.4 Particularly in the years
following Batson and until at least 1994 when J.E.B. was
decided, lower federal courts struggled to apply Batson and
were uncertain whether, and if so, when, Batson could be
extended beyond race for, of course, it was only race that
was before the Batson Court. In United States v.
DiPasquale, 

(3d Cir. 1988), our first post-
Batson foray, we did not answer the question of whether
Batson applies to Italian-Americans, but made quite clear
that even if Batson was not limited to black Americans or
to race, it must at least be shown — a showing much easier
said than done — “that persons with Italian surnames . . .
constitute a group that has been singled out for differential
treatment and has been disparately represented on juries
[in the state].” 

(emphasis in original). The
uncertainty continued when, in Hernandez, the Court
appeared to use “ethnicity” as interchangeable with, or as
a proxy for, “race.”5 Indeed, the uncertainty continues to
this day with the Court recently stating that under the
Equal Protection Clause, “a defendant may not exercise a
peremptory challenge to remove a potential juror solely on
the basis of the juror’s gender, ethnic origin, or race.”
United States v. Martinez-Salazar, 

, 315
(2000). What, though, does “ethnicity” or “ethnic origin”
mean and how does one define the “cognizable racial group”

4. In this connection, a state court may consider the decisions of inferior
federal courts where those decisions are helpful amplifications of
Supreme Court precedent. 

.
5. Justice O’Connor, concurring in Hernandez, emphasized, however,
that “a peremptory strike will constitute a Batson violation only if the
prosecutor struck a juror because of the juror’s 

(O’Connor, J. concurring)(emphasis in original).
                                    8


to which Batson itself referred?6 And how does one define
“race” when the understanding of “race” itself has changed
over the centuries? See Saint Francis College v. Al-Khazraji,

, 610-12 (1987).
   Most trial courts, it appears, fairly quickly learned to
avoid having to determine the extraordinarily difficult
question of when and where to draw the line. Rather, most
courts simply assumed without deciding that Batson has
applicability to racial or ethnic groups other than black
Americans and then went on to dispose of the Batson issue,
most often by finding that the prosecutor had (or had not)
offered a race-neutral explanation for a strike sufficient to
rebut a defendant’s prima facie case.7 The state courts did
so here, and courts continue to do so. This makes sense,
given the reality that, during the process of selecting a jury,
there is little or no opportunity to ponder the extremely
difficult questions that any extension of Batson beyond race
or gender would present. In the context of this case, for
example, how does one even define “Italian-American”? Is
an “Italian-American” one who came from Italy and became
a United States citizen? Or is it one who is a first — or
second — or third generation “Italian-American”? How
much “ethnicity” is enough? What of the woman who has
no Italian heritage but bears an Italian name because she

6. Batson has been applied by the Supreme Court only to classifications
which have heretofore received heightened scrutiny — race, gender, and
ethnic origin thus far limited to Latinos. The courts of appeals have also
been most restrictive in extending Batson beyond these categories. See,
e.g., Brewer v. Marshall, 

(1st Cir. 1997) (using “race” and
“ethnicity” interchangeably to describe Latino venire members); accord
United States v. Taylor, 

, 1330 (2d Cir. 1996)(white and
black Latinos); accord United States v. Krout, 

(5th Cir.
1995)(“Hispanic ethnicity”); see also United States v. Canoy, 

, 897-98 (7th Cir. 1994)(applying Batson to analyze peremptory strike
against venire member of Asian descent, where government did not
dispute that defendant, who was Filipino and had spent most of his life
in the Philippines, was a member of cognizable racial group).
7. Even given this sidestepping, Batson minihearings had become routine
in state and federal trial courts, Batson appeals had proliferated, and
“the number of cases in which jury selection — once a sideshow — will
become part of the main event” were increasing. 

(O’Connor, J., concurring).
                              9


took the name of her Italian — or “Italian-American” —
husband? And, how is one to even begin to know whether
a man or woman is “Italian-American” when his or her
name is ethnically-neutral or, as in Rico’s case, when an
ethnically-neutral name has been changed to an Italian
name?
   Thus, in DiPasquale, for example, we did not “consider
the correctness of the district court’s determination that the
rule of Batson is not applicable to cognizable racial or
ethnic groups other than black Americans under any
circumstances” because we found no reversible error in the
District Court’s decision not to order a Batson hearing given
that the defendant had failed to establish a prima facie case
of discrimination. 

Other courts of appeals, in the
years immediately following Batson, similarly declined to
extend Batson’s protections to white ethnic groups absent
evidence that the group had been discriminated against.
See, e.g., Murchu v. United States, 

(1st Cir.
1991)(per curiam)(refusing to expand Batson protections to
Irish-Americans, absent any allegation or evidence that they
needed protection from community prejudices); United
States v. Campione, 

(7th Cir. 1991)(holding
that trial court did not err in finding that defendant had
not stated prima facie claim under Batson absent evidence
that Italian-Americans were a cognizable group subject to
discrimination). Batson issues in these types of cases
almost invariably failed because of the lack of such
evidence.
  It was, therefore, not objectively unreasonable for the
state courts to consider challenges to Italian American
prospective jurors under Batson and, when they did so,
they did not unreasonably apply Supreme Court precedent.
We, thus, proceed to analyze the basis for the state courts’
decisions: the finding that no discrimination occurred in
the prosecutor’s use of peremptory challenges assuming, as
did they, that Batson applied.
  B.   Did the state courts unreasonably determine the
       facts?
  Rico contends that the prosecutor exercised seven of his
twenty peremptory challenges against Italian-American
                             10


prospective jurors, in violation of the Equal Protection
Clause. The trial court determined that the prosecutor had
not exercised any of his strikes solely on the basis of the
prospective jurors’ Italian-American heritage, and the
Pennsylvania Supreme Court agreed.
   We evaluate a claim under Batson using a three-step
process: (1) has the objector established a prima facie case
of purposeful discrimination in the exercise of peremptory
challenges against jurors of, for example, a particular race?;
(2) if yes, did the party defending the challenges rebut the
prima facie case by tendering a race-neutral explanation for
the strikes?; (3) if so, has the objector carried his or her
burden of proving purposeful discrimination, such as
showing that the proffered explanation is pretextual. United
States v. Milan, 

, 281 (3d Cir. 2002). One way
to establish a prima facie case at step one is to show a
pattern of peremptory challenges of jurors of a particular
race. 

. At step two of this process,
the issue is whether the prosecutor’s explanations are race-
neutral. Purkett v. Elem, 

, 768 (1995)(per
curiam). At step three, “the issue comes down to whether
the trial court finds the prosecutor’s race-neutral
explanations to be credible. Credibility can be measured by,
among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and
by whether the proffered rationale has some basis in
accepted trial strategy.” Miller-El v. Cockrell, 

, 1040, 

(2003).
   With respect to the first of the seven potential jurors
named by Rico, Cathy Roba, Rico did not object to the
prosecutor’s strike and did not even suggest that she was
Italian-American. With respect to the second and third,
Enrico Salvatore and Linda Giordano, Rico pointed to
nothing except the mere fact of the surnames they bore. We
have not permitted a defendant to base a Batson challenge
solely on the fact that a potential juror has an Italian
surname. 

. The rejection of
Rico’s Batson claim with regard to the strikes of Roba,
Salvatore and Giordano, therefore, was certainly not
“objectively unreasonable.”
                                 11


  With respect to the strikes of prospective jurors Mary
Tucci and John Taconelli, the trial court accepted as
genuine the prosecutor’s stated race-neutral reasons, and
did not err in so doing. Tucci, it was feared, would not
comprehend the facts of the case and Taconelli, who was
an unmarried, male, former professional housekeeper, and
who demurred when asked if he could be fair and impartial,
seemed “rather odd” and “very, very, strange.”
  More problematic were the strikes of Vincent Georgi and
Susan Bratrolla, and problematic only because the trial
court had by then observed that the prosecutor had struck
several prospective jurors with what appeared to be Italian
surnames. When Rico objected to the strike of Georgi, the
prosecutor explained that when he asked Georgi whether
organized crime would affect his ability to be fair, Georgi
“turned red” and seemed uncertain, and there was fear in
his voice and demeanor. The prosecutor added that these
factors “in conjunction with his Italian background led me
to believe he would not be a juror suitable with this case.”
Thus, the prosecutor concluded from multiple factors that
Georgi feared the “mob,” and conceded that the fact that
Georgi was Italian-American helped him reach this
conclusion. The Commonwealth argues, however, that
Batson does not prohibit any consideration of a potential
juror’s race or ethnicity; rather, it prohibits excluding
potential jurors based solely on a forbidden category.
   The Supreme Court has not yet addressed mixed motives
in jury selection. Accordingly, a state court’s application of
mixed motives analysis in the Batson context would be
reviewed under the “unreasonable application” prong of
§ 2254(d)(1). In considering a § 2254 petition in Gattis, we
found that the state court did not act unreasonably in
applying mixed motive analysis in the Batson context, in
light of the Supreme Court’s decisions in J.E.B. and Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 

(1977).8 

. The reasoning of
Gattis applies equally here.

8. In Gattis, we considered a habeas petition based partly on a Batson
challenge in a mixed motives case. The prosecutor had offered two
reasons for his strike of an older man from the jury: the man’s
                                   12


  Under mixed motives analysis, an action partially
motivated by an improper purpose is nonetheless valid if
the alleged offender would have taken the same action in
the absence of the improper motive. See Mt. 

. Although the trial court did not explicitly find
that Georgi’s Italian-American ethnicity was a de minimis
motivation for the prosecutor, it accepted as genuine the
prosecutor’s stated motive for striking Georgi: he seemed
afraid of the “mob.” A prosecutor’s perception that a juror
fears the “mob” is a permissible reason to exercise a
peremptory challenge. Moreover, the prosecutor did not
attempt to strike all prospective jurors with Italian
surnames from the jury: the prosecutor did not object to
Peter DeAngelis, who became a juror; to Jane Cola, against
whom the defense exercised a peremptory challenge; or to
Joanne Dinamoli, who became an alternate juror. On these
facts, the trial court did not clearly err in finding that the
fact that Georgi was Italian-American — however “Italian-
American” is defined — was a de minimis motivation in the
exercise of the strike against him, and the court’s rejection
of Rico’s Batson claim with respect to Georgi was not
objectively unreasonable.
   When Rico objected to the prosecutor’s strike of Susan
Bratrolla, the prosecutor offered the following explanation:
Bratrolla was potentially subject to intimidation because
her home in South Philadelphia in, as she herself called it,
“the mob area,” was very close to the crime scene. The trial
court expressed some concerns about what was beginning
to appear to be a pattern of striking prospective jurors with
Italian names and only permitted the strike when the
prosecutor pointed out that the Commonwealth would be

uncertainty as to whether he could recommend the death penalty and
the fact that there were “four or five older gentlemen” already on the
jury. 

. The state court was satisfied that the
prosecutor would have challenged the juror even absent a gender-related
reason, and that the gender-based motivation was de minimis. 

We rejected the Batson claim, finding that the petitioner had not clearly
and convincingly rebutted the court’s factual conclusions, and finding
that the state court had not unreasonably applied mixed motive analysis
in the Batson context. 

                              13


prejudiced by the fact that he had exercised the strike in
front of Bratrolla. In its opinion denying Rico’s post-trial
motions, however, the trial court explained that after a
careful review of the record, it believed that the prosecutor’s
explanation was ethnically-neutral. Rico, Cr. No. 3022-
3027, slip op. at 12-13. The trial court evidently credited
the Commonwealth’s ethnically-neutral explanation as
genuine given that it overruled Rico’s objection to the
strike.
  Rico contends, however, that there was evidence of
pretext which was ignored: the prosecutor did not strike
potential juror Ernesta Thomas, a non-Italian-American
who also resided in South Philadelphia. But, as was
pointed out, Thomas lived further away from the crime area
than did Bratrolla. Moreover, the prosecutor acted
consistent with his proffered race-neutral explanation when
he struck a juror named Eugene Oprocca, of Polish
descent, because he lived “pretty close” to where the crime
had been committed and remembered hearing that
someone had been found dead in a car. Finally, the three
prospective jurors or alternate jurors with Italian surnames
whom the prosecutor did not strike—DeAngelis, Cola, and
Dinamoli—did not live in the same neighborhood. It was
not clearly erroneous to find that the prosecutor’s strike of
Bratrolla was motivated by “ethnically-neutral” reasons,
and the state courts did not act unreasonably in rejecting
his Batson challenge with respect to her.

                             IV.
   Because the Pennsylvania Supreme Court’s rejection of
Rico’s Batson claim was not contrary to, or an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States,
and because it was not based on an unreasonable
determination of the facts, the District Court’s decision
denying Rico’s petition for a writ of habeas corpus will be
affirmed.
                            14




A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit