GREENBERG, Circuit Judge.
This matter comes on before this Court on appeal from a final order entered in the District Court on July 5, 2007, conditionally granting Appellee Robert Lark a writ of habeas corpus, vacating his Pennsylvania state court death sentence, and ordering the Commonwealth of Pennsylvania to retry Lark within 180 days or release him.
We take the following facts from the Pennsylvania Supreme Court's opinion affirming the denial of Lark's first petition for state post-conviction relief:
Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 46 (1997).
At his second trial, in 1985, Peter Rogers represented Lark, who is African-American, and assistant district attorney John Carpenter represented the Commonwealth.
App. at 611-12.
The discussion between Rogers and the trial court continued with Rogers insisting that Carpenter was striking blacks and asking the court to preserve a record of the race of the jurors. The trial court responded by asserting that there was "nothing on the record as to who was white and who was black," and that there was no way to determine the race of the jurors. Id. at 613. Rogers stated that he wanted the records preserved only from the last jury panel and he was not arguing that Carpenter had exercised his peremptory challenges in a discriminatory manner during the prior two days of jury selection. Carpenter stated, however, that he had not systematically excluded jurors, pointing out that there were three jurors on the panel of the same race as Lark. The trial court, applying the law as it stood at the time of the trial, indicated that "neither one of [the attorneys] has to give any reason for [exercising a peremptory challenge]." Id. at 614. Ultimately, the trial court denied Rogers' request, indicating that there was no record of the race of the jurors. Rogers did not raise the equal protection peremptory challenge issue again.
On June 28, 1985, the jury returned a verdict finding Lark guilty of first-degree murder, possession of an instrument of crime, terroristic threats, and two counts of kidnapping. In the penalty phase of the trial which followed, the jury found that there were no mitigating circumstances but that there was one aggravating circumstance—the murder of a state's witness—and set the penalty at death. The trial court denied all post-trial motions and imposed Lark's death sentence on April 24, 1986.
On April 30, 1986, six days after the court sentenced Lark, the United States Supreme Court issued its opinion in Batson v. Kentucky which lessened the burden of proof that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), had required for a defendant to show that a prosecutor engaged in discriminatory jury selection. One year later, that Court determined that the rule in Batson would apply retroactively to all cases pending on direct review at the time that it decided Batson. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).
Lark filed a direct appeal from his conviction and sentence to the Pennsylvania Supreme Court.
After completion of Lark's direct appeal the judicial proceedings in his case lay dormant as he did not file any further applications or motions until six years later when, in November 1994, after the Governor of Pennsylvania signed a warrant for his execution, he sought a stay of execution in the Philadelphia Court of Common Pleas. That court denied Lark's request for a stay on November 7, 1994, following which on November 8, 1994, Lark filed a pro se motion in the District Court seeking an order staying his execution. The District Court granted the stay to enable Lark to file a state post-conviction petition.
On November 4, 1994, Lark filed his first Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. Ann. § 9541 et seq. (West 1989), petition in the Philadelphia Court of Common Pleas. After appointment of counsel, Lark filed an amended PCRA petition on February 8, 1995, raising 25 claims of trial court error and ineffective assistance of counsel but the claims did not include an assertion that there had been a Batson violation. The Commonwealth moved to dismiss the petition, and the PCRA court, without holding an evidentiary hearing, granted that motion. Lark appealed from the dismissal to the Pennsylvania Supreme Court.
In April 1997, while Lark's appeal was pending in the Pennsylvania Supreme Court, the Philadelphia District Attorney's Office released a video tape (the "McMahon tape") in which former assistant prosecutor Jack McMahon instructs his prosecutorial colleagues to exclude potential jurors on the basis of race, gender, occupation, and neighborhood. On the tape that McMahon made after the Supreme Court's decision in Batson, he advised against striking all African-Americans and stated that his ideal jury would be composed of eight whites and four blacks.
On August 29, 1997, Lark filed a second PCRA petition in the Court of Common Pleas. In his second petition, Lark advanced several claims predicated on newly discovered facts, including a claim of discriminatory jury selection based on: (1) the McMahon tape; (2) the prosecutor's allegedly discriminatory pattern of strikes; and (3) a report that Professors David Baldus and George Woodworth had authored on jury selection practices in Philadelphia capital cases from 1983-1993 ("the Baldus study"). Lark requested discovery and an evidentiary hearing to present evidence regarding the racial makeup of the jurors that Carpenter had struck and his
On appeal from the denial of post-conviction relief, the Pennsylvania Supreme Court held that Lark's Batson claim was timely to the extent it was based on the McMahon tape because the facts underpinning that claim did not become available until the Philadelphia District Attorney's Office released the tape in April 1997, and thus Lark's Batson claim insofar as based on the McMahon tape came within the exception to the one-year deadline for filing PCRA petitions predicated on newly discovered facts. See id. at § 9545(b)(ii); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000). The court, however, affirmed the PCRA court's denial on the merits as it concluded that the contents of the McMahon tape did not demonstrate that Lark had made a prima facie showing that there had been discrimination in the jury selection at his trial. Id. at 588-89. The court also held that the remaining bases for Lark's Batson claims, namely the allegations arising from the race of each potential juror and the prosecutor's "Oh. How awful" statement at trial, were present at the inception of his trial and thus did not fall into an exception from the one-year rule in section 9545(b).
While his appeal was pending from the denial of his second PCRA petition in the Pennsylvania Supreme Court, Lark, in recognition of the possibility that if he did not act promptly the Anti-Terrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations would preclude him from seeking federal relief, filed a habeas corpus petition in the District Court. Lark admitted that his federal petition contained unexhausted claims that had been included in his second PCRA petition. The District Court dismissed the petition without prejudice but ordered that the filing date that Lark filed another petition would relate back to the date of the filing of the dismissed habeas corpus petition. See Lark v. Beard, Civ. No. A. 01-1252, 2006 WL 1489977, at *3 (E.D.Pa. May 23, 2006) ("Lark I").
On March 16, 2001, after the Pennsylvania Supreme Court denied Lark's appeal, he timely filed another habeas corpus petition in the District Court, this time raising 15 claims.
In an order entered on May 23, 2006, the District Court held that Pennsylvania's one-year statute of limitations for PCRA petitions was not in force at the time of Lark's alleged default and, relying in part on our holding in Bronshtein v. Horn, 404 F.3d 700 (3d Cir.2005), held that the time bar was not an independent and adequate state law barrier to federal habeas corpus review of Lark's claims. Lark I, 2006 WL 1489977, at *7. In a related holding, the Court determined that, inasmuch as the PCRA court and the Pennsylvania Supreme Court denied Lark's request for an evidentiary hearing pursuant to the same one-year statute of limitations which it had found to be an inadequate state ground to bar habeas corpus relief, Lark had not failed to develop the factual basis of his Batson claim to the end that 28 U.S.C. § 2254(e)(2) prevented the Court from exercising its discretion to grant him an evidentiary hearing. The Court also found that Lark alleged facts, which if proven true, would establish a prima facie showing that Carpenter exercised peremptory challenges based on race. In particular, Lark alleged that Carpenter's high strike rate of African-American jurors, the absence of any race-neutral reasons for the strikes in the transcripts, and the trial prosecutor's remark of "Oh. How awful" in response to defense counsel's comment that he was striking all the blacks from the jury, demonstrated a Fourteenth Amendment Equal Protection Clause violation. Finally, the Court exercised its discretion and granted Lark an evidentiary hearing on his claim of jury discrimination and ineffective assistance of counsel at the guilt and sentencing phases of his trial.
Carpenter further testified that he remembered Lark's trial because it was the only case in which he obtained a death sentence and because of his tense relationship with Rogers during the trial. In preparation for his testimony at the evidentiary hearing, Carpenter reviewed the transcript of the voir dire but he could not recall much of that process and could not recall specific jurors. Carpenter also reviewed the handwritten notes he took during jury selection, but they did not refresh his recollection of his reasons for his strikes of individual jurors and Carpenter testified that, while he used abbreviations and symbols, he was not systematic in his note-taking.
The Commonwealth then questioned Carpenter about each of his individual peremptory strikes. Except as to one juror, Charles Rabb, Carpenter had no independent or refreshed recollection of reasons for any of the peremptory strikes he exercised during Lark's trial. However, based on the circumstantial evidence that Carpenter provided, the District Court found that the Commonwealth had offered race-neutral reasons for every peremptory strike the Commonwealth questioned him about except for three jurors. Inasmuch as the District Court later based its grant of the conditional writ on Carpenter's failure to provide a race-neutral explanation for these three jurors, we will focus on those jurors in this appeal. However, we think it is important to recognize that, despite our focus on these three jurors, on remand the District Court may conclude at the third step of the Batson process that any one of Carpenter's 13 peremptory strikes against African-Americans amounted to purposeful discrimination.
The first juror Carpenter could not recall striking and could not provide circumstantial evidence for removing was Shirley Sampson, an African-American female, who was the subject of his first peremptory challenge. Carpenter could not recall
Before proceeding to the next juror, the Commonwealth's attorney asked Carpenter questions about his general jury selection practices. Carpenter stated that the neighborhood where a potential juror lived was important because he did not want jurors who lived near the defendant or the place where the incident involved in the trial had occurred. Though Carpenter indicated that he did not want a juror who lived too close to the defendant or who lived close to the crime scene, he did not state that he struck Sampson for either of these reasons. Later, Carpenter testified that he took into account a potential juror's: (1) employment status and nature of employment, as having a job showed that person had roots in the community but that he nevertheless did not want teachers or social workers on the jury; (2) a juror's age, as older jurors were wiser and more responsible; (3) children, as Carpenter did not want jurors who had children who were the same age as the defendant; (4) home ownership, as a homeowner had a stake in the community; (5) hardship; (6) prior jury experience; (7) history as a victim of crime or a witness or defendant in a criminal case; (8) relationship with police officers, as Carpenter viewed jurors positively if they had family members who were police officers; (9) acquaintance with any potential witnesses in the trial; and (10) feelings about the death penalty.
The second venireperson for whom Carpenter could not give a specific reason, or a reason based on circumstantial evidence, for striking was Florence Williams, also an African-American female. Carpenter could not find anything "particularly wrong" with Williams by looking at the trial transcript. Id. at 1044. He, however, did state that there were other circumstances that might not appear in the transcript, "[f]or example, if I don't like the juror, I think ... it's a good bet she doesn't like me." Id. at 1045. When the District Court stated that "there could have been body language there," Carpenter responded by saying "exactly." Id.
As was the case with Williams, Carpenter could not recall a specific or circumstantial reason for striking the third juror, Edison Sisco,
After the hearing, the parties filed two stipulations as to the race of potential jurors that Carpenter struck and seated on the jury. The stipulated list of 29 persons included the race and gender of the selected jurors, the selected alternates, and the prospective jurors that Carpenter excused with peremptory challenges. According to the stipulations, the jury in Lark's case
On July 3, 2007, the District Court granted the writ on the strength of the Batson claim, ordering the Commonwealth to retry Lark within 180 days or release him. The Court examined Lark's claim under the familiar three-step Batson analysis:
Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003) (hereinafter "Cockrell") (citations omitted).
As we indicated above, the District Court, in its May 23, 2006 order holding that the one-year PCRA time bar was not an independent and adequate ground to bar Lark's petition in that Court, determined that Lark met the first step of the Batson inquiry.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254 and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The parties dispute the appropriate standard of review. They agree that we exercise plenary review over the Court's conclusions of law and review its factual findings for clear error. See Holloway v. Horn, 355 F.3d 707, 713 (3d Cir.2004). But they differ with respect to the degree of deference that we must afford the Court's finding of intentional discrimination in the jury selection process.
Lark asserts that once a district court concludes that a petitioner has shown that there was intentional discrimination in the jury selection process, a court of appeals may not reject that determination unless the district court's conclusion is shown to be clearly erroneous. Wilson v. Beard, 426 F.3d 653, 668-69 (3d Cir.2005). The Commonwealth characterizes this approach
Lark's citation of Wilson for the standard of review is misleading. In Wilson, we upheld a district court's factual finding of intentional discrimination at the third step of the Batson analysis. Id. at 670. But the district court based that finding on its credibility determination that the prosecutor acted with a discriminatory intent in exercising his peremptory strikes. Id. Here, the District Court did not base its decision on a credibility determination nor did it proceed to the third step of the Batson analysis. Rather, the Court ruled that the Commonwealth did not offer any explanation for making the three peremptory strikes and, therefore, as a matter of law, it failed to meet its burden at step two of the Batson analysis. But the Court's approach here was problematic, for we have stated, "the Batson inquiry ends and the conviction must be vacated at the second stage of the analysis if the state's explanation is such that, taken at face value, it either demonstrates an equal protection violation or would otherwise be inadequate as a matter of law to support the conviction." Johnson v. Love, 40 F.3d 658, 668 (3d Cir.1994) (internal citation omitted). Therefore, because the District Court did not indicate that Carpenter's explanations at step two demonstrated an equal protection violation, the Court necessarily determined that Carpenter's explanations for using peremptory challenges to strike Sampson, Williams, and Sisco were inadequate as a matter of law. We will exercise plenary review over that legal conclusion. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.2002).
First, the Commonwealth argues that Lark did not make an adequate "Batson-style objection at trial," and therefore, under our precedent, he is not entitled to relief on the Batson claim. Appellant's br. at 13. Lark counters by asserting that the Commonwealth impermissibly is raising this argument on appeal for the first time. In reply, the Commonwealth asserts that it raised the issue at several points in its original response to the petition. Further, the Commonwealth argues that, inasmuch as we have held that a timely objection at trial is required to preserve a Batson claim, Lark has the burden to prove that he raised a timely Batson objection at trial and thus the Commonwealth did not need to raise the issue as an affirmative defense. See Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir.2009).
The Commonwealth argues that, in any event, in these habeas corpus proceedings it raised Lark's failure to object by stating, in its response to Lark's petition, that: (1) defense counsel "objected to, at most, four peremptory challenges which the prosecutor had made during the afternoon session of June 7, 1985"; (2) "trial counsel did not specify the exact strikes to which he was objecting"; (3) "as a result of [Lark's] dereliction in pursuing the Batson claim in state court, the record was not preserved"; (4) "[T]he record reflects that defense counsel told the court he had what he needed to make a record, but he never raised the subject again." Appellant's reply br. at 5 (internal citations and quotation marks omitted).
These statements, however, did not put the District Court on notice of the legal argument that the Commonwealth now wishes to raise: that Lark's objection at trial was not sufficient and timely and
We have held that, even in trials before the Supreme Court's decision in Batson, a timely objection to the prosecutor's exercise of peremptory strikes is a prerequisite to raising a Batson claim on appeal. Lewis v. Horn, 581 F.3d at 102, citing Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir.2008), vacated on other grounds sub nom., Beard v. Abu-Jamal, ___ U.S. ___, 130 S.Ct. 1134, 175 L.Ed.2d 967 (2010).
As was true for the petitioners in Lewis and Abu-Jamal, Lark's trial was prior to the Supreme Court's decision in Batson and thus was at a time that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, set forth the standard governing the review of the use of peremptory challenges. In order to show a Fourteenth Amendment Equal Protection Clause violation under Swain, the defendant had "to show a pattern and practice of racial discrimination in jury selection across multiple prosecutions," Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir.1996), but the prosecutor did not need to give reasons for the use of individual peremptory challenges to avoid a finding that there had been an equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct. at 837. An equal protection objection under Swain, however, "necessarily states an equal protection violation subject to proof under the Batson standard...." Ford v. Georgia, 498 U.S. 411, 420, 111 S.Ct. 850, 856, 112 L.Ed.2d 935 (1991).
Here it is clear that Rogers, Lark's trial attorney, raised a timely objection to what he perceived was the prosecutor's exercise of discriminatory peremptory challenges. At the trial on June 7, 1985, Rogers asked that:
App. at 611-12.
Counsel later stated that "as of this afternoon, your honor, he is striking all blacks." Id. at 612. The trial court refused to make a record as it stated that there was no way to determine a person's race or color and that neither attorney had to explain his reasons for exercising peremptory challenges. Rogers' statements that the prosecutor was striking all of the black jurors put the trial court on notice of Lark's claim and distinguishes his case from Lewis and Abu-Jamal. Specifically, Rogers timely pointed out what he perceived was the Commonwealth's racially motivated peremptory strikes and he thus invited the trial court to develop a record on the issue for appellate review. This notice was all that Abu-Jamal requires. See Williams v. Beard, 637 F.3d 195, 208 n. 12 (3d Cir.2011).
The Commonwealth's contentions that Rogers only made a "vague request for records," did not ask the trial court to order Carpenter to explain himself, and only questioned the challenge of four jurors, do not demonstrate that Rogers did not make an objection at trial to the allegedly race based peremptory challenges. Appellant's reply br. 8-10 (internal quotation marks omitted). It would have been futile for Rogers to ask that Carpenter be required to explain the reason for his individual peremptory challenges or for Rogers to renew the objection when each African-American juror was excused for under the Supreme Court case law at the time of Lark's trial, individual challenges in one case could not be the basis for finding that there had been an equal protection violation.
We think it is also significant that even Carpenter recognized that Rogers was attempting to raise a Fourteenth Amendment Equal Protection argument when Carpenter stated, referring to the Swain standard, that "there's obviously not systematic exclusion when you've got 3 members out of 9 who are the same race as the defendant and his attorney." App. at 616; see Swain, 380 U.S. at 227, 85 S.Ct. at 839. Further, Rogers' request for a record of the race of the jurors that Carpenter struck sought the type of evidence that would support (or refute) an equal protection violation under Swain. See id. at 223, 85 S.Ct. at 837 ("[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.").
Therefore, even though Rogers' statement that Carpenter was striking "all the blacks" from the jury and his request that the trial court make a record of the race of the jurors did not raise an objection with "the clarity that appropriate citations would have promoted," his protest reasonably raised an equal protection claim under Swain. Ford, 498 U.S. at 418, 111 S.Ct. at 855. Thus, the objection was adequate to raise an equal protection claim under Batson. Id. at 420, 111 S.Ct. at 856.
Finally, the Commonwealth argues that, even if Lark properly objected to Carpenter's peremptory strikes so as to raise an equal protection claim, the trial court's rejection of that objection is entitled to deference. It is true that in the habeas corpus context federal courts owe the same deference to implicit state court factual findings as they afford to explicit state court factual findings. See, e.g., LaVallee v. Delle Rose, 410 U.S. 690, 692, 93 S.Ct. 1203, 1204, 35 L.Ed.2d 637 (1973) (per curiam); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.2000) ("[A]n implicit finding of fact is tantamount to an express one, such that deference is due to either determination."). Here, however, the trial court's response that it was impossible to determine the race of the jurors and that counsel did not have to give reasons for peremptory challenges, clearly was a refusal to engage in an equal protection analysis rather than an implicit finding of fact entitled to deference under 28 U.S.C. § 2254(e)(1). Cf. Campbell, 209 F.3d at 289-90 (holding that state court made implicit credibility finding entitled to deference where court repeatedly stated that petitioner's ineffective assistance of counsel claim had no legal merit); see also Coombs v. Diguglielmo, 616 F.3d 255, 263 (3d Cir.2010) (citation omitted) ("Where the state court fails to undertake a full step-three analysis, as required by Batson, we will remand for the district court to engage in independent fact-finding.").
We next consider whether Lark procedurally defaulted his Batson claim by failing to advance it properly in the Pennsylvania courts. There has been a procedural default when "a state court declined to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). As a matter of comity and federalism, a federal court may not conduct habeas corpus review of a claim which a petitioner has procedurally defaulted in state court. Federal review, however, is available if the procedural rule that the state court applied to bar a federal claim was not "independent" and "adequate." See Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir.2007) (internal citations omitted). A state procedural rule is an inadequate ground to bar federal review if it was not firmly established and regularly followed by the state courts at the time it was applied. Bronshtein, 404 F.3d at 707. Whether a procedural rule "was firmly established and regularly applied is determined as of the date the default occurred, and not as of the date the state court relied on it, because a petitioner is entitled to notice of how to present a claim in state court." Albrecht, 485 F.3d at 115 (internal citations omitted).
Lark first attempted to raise a specific claim under Batson when he unsuccessfully sought an order from the Pennsylvania Supreme Court remanding his PCRA petition to the PCRA court so that he could raise a Batson claim. Thereafter Lark filed a second PCRA petition in 1997 raising a Batson violation as a ground for relief and requesting that the court grant him an evidentiary hearing to present proof of the race of the venirepersons at his trial and to enable him to advance the McMahon tape in support of his claim. The PCRA court, without holding an evidentiary hearing, dismissed the petition as untimely under the PCRA deadline set forth in 42 Pa. Cons.Stat. Ann. § 9545(b).
On appeal from the dismissal of the second PCRA petition, the Pennsylvania Supreme Court invoked section 9545(b)(1)(ii)
As we recently discussed in Morris v. Beard, 633 F.3d 185 (3d Cir.2011), the PCRA one-year statute of limitations in 42 Pa. Cons.Stat. Ann. § 9545(b) was not
Morris, 633 F.3d at 191.
Here, the default in the timeliness of the filing of Lark's second PCRA petition was on January 16, 1996,
The Commonwealth argues that the state time-bar rule was an adequate basis to find that Lark had procedurally defaulted his Batson claim because he had notice of the time bar which the Pennsylvania General Assembly made explicitly applicable to capital cases and, further, that the Pennsylvania Supreme Court never applied the relaxed waiver rule to the time bar. But our reasoning in Bronshtein refutes these arguments and we have reaffirmed the Bronshtein reasoning in subsequent cases and, therefore, we need not address the Commonwealth's arguments any further.
In holding that the time bar was not an independent and adequate state ground for denying relief for purposes of a later procedural default analysis in a federal district court, we have considered the two most recent Supreme Court decisions addressing the adequate and independent state rule doctrine, Walker v. Martin, ___ U.S. ___, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011), and Beard v. Kindler, ___ U.S. ___, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). In Kindler, the Court considered a very narrow question not implicated here: whether a state procedural ground is automatically inadequate and unenforceable on federal habeas corpus review because the state procedural rule is discretionary rather than mandatory. Id. at 614-15.
The Supreme Court's holdings in Walker and Kindler have not affected our holding in Bronshtein that prior to 1998 capital petitioners in Pennsylvania could rely on state courts to relax procedural rules, including the one-year PCRA time bar. Bronshtein, 404 F.3d at 709.
The Commonwealth argues that, even assuming Lark's Batson claim is not procedurally defaulted, the District Court should not have held an evidentiary hearing on the claim inasmuch as Lark was not sufficiently diligent in pursuing his Batson claim in state court as 28 U.S.C. § 2254 requires. Section 2254(e)(2) provides that,
28 U.S.C. § 2254(e)(2).
The Supreme Court has held that a failure to develop the factual basis of a claim in the opening clause of section 2254(e)(2) "is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). The Court distinguished the diligence requirement of the opening clause of section 2254(e)(2) from the diligence requirement of section 2254(e)(2)(A)(ii) by explaining that the latter refers to cases in which the facts underlying a claim could not have been discovered through due diligence while the former asks only whether "the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court...." Id. at 435, 120 S.Ct. at 1490.
Thus, there is a separate fault requirement in the opening clause of section 2254(e)(2) which asks whether the petitioner adequately and diligently pursued the factual basis of his claim in state court. If the petitioner fails in this regard and is therefore "at fault," the bar to relief in section (e)(2) is raised. Otherwise, if the petitioner is not "at fault," the court may exercise its discretion to grant an evidentiary hearing. See Campbell, 209 F.3d at 287 (stating that if section 2254(e)(2) does not bar an evidentiary hearing, federal courts have discretion to grant a hearing with the potential to advance the petitioner's claim). Here, the District Court held that because the state court denied Lark's request for an evidentiary hearing based on an inadequate procedural rule, Lark did not fail to develop the Batson claim and section 2254(e)(2) did not bar a hearing in that Court. See Morris, 633 F.3d at 194-95 (citing Wilson, 426 F.3d at 665). The Court, after finding section 2254(e)(2) inapplicable, exercised its discretion to grant Lark an evidentiary hearing.
The Commonwealth contends that the District Court improperly conflated diligence and procedural default. In Wilson we stated that the procedural default doctrine and section 2254(e)(2)'s diligence requirement analytically were linked: "If a petitioner requests a hearing to develop the record on a claim in state court, and if the state courts ... deny that request on the basis of an inadequate state ground, the petitioner has not `failed to develop the factual basis of [the] claim in State court proceedings' for the purposes of
The Commonwealth makes a strong argument, particularly inasmuch as the years of delay between the District Court evidentiary hearing and the trial greatly prejudiced its ability to respond to the Batson claim. As the Supreme Court has noted, the principles of comity and federalism underlie the diligence requirement:
Williams, 529 U.S. at 437, 120 S.Ct. at 1490-91 (internal citation and quotation marks omitted).
It is undoubtedly reasonable to argue that Lark's failure to raise the Batson claim on direct appeal followed by his inaction for six years before filing a post-conviction petition, which even then did not raise a Batson claim, demonstrated that he did not make a "diligent search for evidence." Id. at 435, 120 S.Ct. at 1490. Moreover, Rogers, who was Lark's counsel on his direct appeal as well as at trial, was clearly aware of a potential discriminatory jury selection claim for, as we have discussed, he raised an objection to the prosecution's strikes during voir dire. Thus, though the McMahon tape and the Baldus study may not have alerted Lark to a possibility of there having been a "culture of discrimination"
We nevertheless reject the Commonwealth's arguments regarding the delay in this case because, after the Commonwealth submitted its brief on this appeal but before the oral argument, we rejected an almost identical argument in Morris. In that case, the petitioner, Kelvin Morris, was convicted of first-degree murder and sentenced to death in Pennsylvania state court. After he filed an unsuccessful direct appeal and an unsuccessful PCRA petition, Morris filed a second PCRA petition in which he raised, for the first time, a claim that his trial attorney's representation of his brother, Artie Morris, in a civil suit created a conflict of interest that deprived Morris of effective assistance of counsel in his criminal trial. Morris, 633 F.3d at 190. The PCRA court dismissed the second petition without holding an evidentiary hearing for the sole reason that Morris filed the petition beyond the PCRA's one-year statute of limitations. Id. Morris then filed a federal habeas corpus petition raising the same claim and requesting an evidentiary hearing. The Commonwealth, as it does in this case, argued that, because of the lengthy delay and the timing of Morris' claim,
Inasmuch as the petitioner in Morris and Lark are in almost identical procedural postures, we will quote from our opinion in Morris at length:
Morris, 633 F.3d at 195-96 (emphasis added).
In a letter filed pursuant to Fed. R.App. P. 28(j), the Commonwealth attempts to distinguish Morris by arguing that the rule we established in that case was the following: "where a petitioner had the opportunity and forum to litigate the merits of the claim in state court, but failed to do so, he is not diligent under [section] 2254(e)(2) even though his later attempt to raise the again [sic] is barred by an inadequate rule." Appellant's 28(j) letter dated January 31, 2011, at 1-2. But as the excerpted portion above demonstrates, this is a misstatement of Morris' holding. Rather, the holding in Morris was that section 2254(e)(2) does not bar an evidentiary hearing for lack of diligence where the only reason a state court gives for denying an evidentiary hearing is a subsequently invalidated state procedural rule. This is exactly what happened in Lark's case.
Furthermore, the Commonwealth's reliance on our opinion in Taylor v. Horn, 504 F.3d 416 (3d Cir.2007), is unconvincing. In Taylor, the petitioner obtained an evidentiary hearing during his first PCRA hearing and, after the PCRA court denied the claim, unsuccessfully sought to present new expert witnesses testimony in a second PCRA petition raising the same claim. We affirmed the district court's denial of the request for an evidentiary hearing under section 2254(e)(2) despite the Pennsylvania Supreme Court's dismissal of Taylor's second PCRA petition pursuant to an inadequate state procedural ground: "Unlike the petitioner in Wilson, Taylor's competency claim was raised in his first PCRA petition and addressed on the merits. His resurrection of the claim in his second PCRA petition does not put it under Wilson's rule." Id. at 436-37. The procedural posture of Lark's case differs from that of the petitioner in Taylor inasmuch as Lark is not attempting to get two bites at the apple by requesting a district court hearing to present new evidence which was available at the time of his state court evidentiary hearing. Id. at 437 ("The only thing that prevented Taylor from presenting his new evidence of incompetency before the first PCRA court was a lack of diligence."). Rather, Lark is requesting a hearing because the state court prevented him from presenting his evidence in the first instance by the application of an inadequate procedural rule. In that respect, Lark's request, to the extent that his Batson claim is based on the Commonwealth's pattern of discriminatory strikes, falls squarely within Morris' holding and, therefore, we find that section 2254(e)(2) did not prevent the District Court from granting him an evidentiary hearing on his Batson claim.
We can understand why by this time a reader of this opinion would wonder whether we ever would reach the substantive
Pursuant to the AEDPA, where a state court adjudicates the merits of a petitioner's claim, federal courts review the claim under a highly deferential standard. See 28 U.S.C. § 2254(d)(1) & (2); Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). As we have indicated, Lark properly presented the Batson claim based on the Commonwealth's pattern of jury strikes to the state courts in his second PCRA petition, but the state courts rejected that claim largely pursuant to what clearly was a state procedural rule inadequate to bar federal habeas corpus review. When, as here, the state courts do not adjudicate a claim on the merits, and that claim is presented properly to a federal court in a petition for a writ of habeas corpus, the deferential standards of the AEDPA do not apply. See Coombs, 616 F.3d at 260 (citing Holloway, 355 F.3d at 718). Therefore, for the most part a federal habeas corpus court considering Lark's Batson claim based on the Commonwealth's pattern of jury strikes should exercise de novo review. Coombs, 616 F.3d at 261. On the other hand, to the extent that the Supreme Court of Pennsylvania rejected Lark's Batson claim that he predicated on the McMahon tape on the merits we will assume that its decision is entitled to deferential review. But that possibility is of no consequence on this appeal as the District Court did not rely on the McMahon tape to reach its conclusion and we are predicating our result on our determination that as a matter of federal law the District Court misapplied Batson. Accordingly, our review is entirely de novo.
The Equal Protection Clause of the Fourteenth Amendment "prohibits a prosecutor from using a peremptory challenge to strike a prospective juror solely on account of race." Holloway, 355 F.3d at 719 (citing Batson, 476 U.S. at 88, 106 S.Ct. 1712). But "[a]s in any equal protection case, the burden is ... on the defendant who alleges discriminatory selection of the venire to prove the existence of purposeful discrimination." Coombs, 616 F.3d at 261 (quoting Batson, 476 U.S. at 93, 106 S.Ct. 1712) (internal quotation marks omitted). We have held that the exclusion of even one vernireperson from the jury based on race requires that, under Batson, there be a new trial. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.1990).
As we stated earlier, typically the adjudication of a Batson violation proceeds in three steps: (1) the defendant must make a prima facie showing that the prosecution has exercised a peremptory challenge in a discriminatory manner; (2) once the defendant makes that prima facie showing, the prosecutor must offer a race-neutral reason for having exercised the challenge; (3) the trial court, weighing the parties' submissions, determines whether the prosecution's strike amounted to purposeful discrimination violating the Equal Protection Clause of the Fourteenth Amendment. Cockrell, 537 U.S. at 328-29, 123 S.Ct. at 1035. In this three-step process
The Commonwealth argues that we should not use the Batson three-step burden shifting procedure when making an analysis many years after the trial because the use of the procedure at that time is unfairly advantageous to the petitioner and greatly prejudicial to the Commonwealth. But our precedent clearly requires that we reject that argument. See, e.g., Hardcastle v. Horn, 368 F.3d 246, 255-56 (3d Cir. 2004) (applying three-step test in pre-Batson case where defense attorney did not object until after voir dire was completed); Love, 40 F.3d at 667 (applying three-step Batson analysis in a post-trial context).
Certainly, when the Supreme Court developed Batson's burden-shifting framework, it envisioned that, inasmuch as a timely objection would permit a prosecutor to explain use of the challenges, a defendant would make an objection at trial to what he regarded was the prosecutor's racially based use of peremptory challenges. After all, as the Commonwealth argues, applying the burden shifting method several years after the trial makes it more difficult for the prosecution to provide a race-neutral explanation for peremptory strikes. Appellant's br. at 37-38 citing Carter v. Hopkins, 151 F.3d 872, 875-76 (8th Cir.1998) (holding that it is inappropriate to apply Batson's burden shifting where there has been a long delay between jury selection and the filing of the claim, a voir dire record is not available, and the petitioner did not raise a timely objection); McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir.1996) (stating in dicta that where a Batson objection was raised over three months after trial, petitioner was not entitled to benefit of burden shifting rule).
In recognition of the delay problem, we realize that it is one thing to apply Batson in the adjudication of a direct appeal that was pending when the Supreme Court decided that case but quite a different matter to apply it in a collateral proceeding many years later merely because a direct appeal had been pending in the case under review when the Supreme Court decided Batson. Thus, it is not surprising that we have a line of cases, discussed more extensively below, which provide guidance on how to approach a prosecutor's faded memory in the adjudication of Batson claims brought years after trial. But even in cases of
The Supreme Court has indicated that in a determination of whether a petitioner has established a prima facie case under Batson, the prosecutor's pattern of peremptory strikes is significant as are the "prosecutor's questions and statements during voir dire examination and in exercising his challenges...." Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Further, in making Batson determinations "we have identified several additional factors, including how many members of the cognizable racial group are in the venire panel; the nature of the crime; and the race of the defendant and the victim." Lewis, 581 F.3d at 103 (citations and internal quotation marks omitted).
Here, though the District Court indicated in its July 3, 2007 opinion and order that Lark established a prima facie Batson violation, it is unclear when, if ever, the Court actually made that finding. In its May 23, 2006 opinion, though the Court stated that Lark alleged facts which, if proven true, would establish a prima facie case under Batson, it noted that the Commonwealth disputed those facts and, indeed, it granted an evidentiary hearing, in part, to resolve that dispute. Lark I, 2006 WL 1489977, at *9; App. at 42. Those alleged facts supporting the prima facie case included the prosecution's high strike rate of African-American jurors, the absence of any obvious nonracial basis for the strikes in the voir dire transcripts, and the trial prosecutor's remark ("Oh. How awful") in response to defense counsel's objection to his pattern of discriminatory strikes. Id. at *8; App. at 41.
In its second opinion and order on July 3, 2007, the order from which the Commonwealth has appealed, the District Court, in a footnote, stated that it previously had found that Lark established a prima facie case and cited to its May 23 opinion in which it set forth the disputed facts. Lark II, 495 F.Supp.2d at 501 n. 10. But the problem with the Court's reference is that allegations are not findings. The Court then stated that Lark met his step-one burden based on the composition of the venire and the pattern of strikes exercised by the Commonwealth. Id.
The Commonwealth, however, does not challenge that Lark has established a prima facie Batson violation.
The Commonwealth argues that Carpenter's inability to explain the reasons for his use of three peremptory challenges at the second step of the Batson analysis was not a sufficient ground to grant the conditional writ of habeas corpus because that inability along with the other information available to the District Court did not enable Lark to satisfy his ultimate burden of proving intentional discrimination. We agree with the Commonwealth's contention.
At step two, the Commonwealth has the burden to produce a race-neutral explanation but nevertheless the opponent of the peremptory strike retains the ultimate burden of proof on the Batson issue. See Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 ("[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike."). The prosecutor's burden at step two is not high as the explanation does not have to be persuasive, or even plausible. Id. at 767-68, 115 S.Ct. at 1771. Consequently, inasmuch as the Supreme Court "purposely set a relatively low bar at step two," we have held that it would be rare, but not entirely inappropriate, for a court to grant relief at that step. Hardcastle, 368 F.3d at 257; see also Harrison, 909 F.2d at 88 (holding that prosecution's failure to rebut petitioner's prima facie showing of racial discrimination as to one juror dictates the grant of a new trial). But see Yee v. Duncan, 463 F.3d 893, 899 (9th Cir.2006) (holding that defendant bears the ultimate burden of proof and therefore step two never can be definitive because defendant only has raised an inference of discrimination).
Here the District Court found that Carpenter's failure to articulate any race-neutral justification for the strikes of three jurors mandated that it grant Lark habeas corpus relief. The first juror that Carpenter challenged that we consider is Shirley Sampson, an African-American female. Carpenter could not recall why he struck Sampson and reading the transcript did not refresh his memory. Carpenter, however, unequivocally denied that he did so because she was African-American. Before proceeding to the next juror, the Commonwealth's attorney asked Carpenter whether where the juror lived could be a significant factor in exercising a peremptory strike. Carpenter answered that he did not want a juror who lived too close to the defendant or who lived close to the crime scene; however, he did not state that he struck Sampson for either of these reasons.
Similarly, Carpenter could not recall a specific reason for striking Florence Williams, an African-American female. Carpenter could not find anything "particularly wrong" with Williams by looking at the trial transcript (App. at 1044); he did, however, state that there were other circumstances that might not appear in the transcript, "[f]or example, if I don't like the juror, I think ... it's a good bet she doesn't like me." Id. at 1045. When the District Court stated that "there could have been body language there," Carpenter responded by saying "exactly." Id. The situation was slightly different with respect to the third juror, Edison Sisco, an African-American male, even though Carpenter could not recall a specific reason for striking him. Carpenter did note that neither he nor defense counsel asked Sisco many questions and that Sisco was confused about the last school he attended.
Carpenter's reasons for striking Sampson, Williams, and Sisco were inadequate to meet the Commonwealth's burden of production as explained in Hardcastle. Carpenter's statement that he might have struck Williams for reasons that did not appear in the transcript is the type of vague explanation we have rejected as inadequate to meet the prosecutor's burden at the second Batson step. Hardcastle, 368 F.3d at 258. Further, Carpenter's unequivocal denial that he struck Sampson because of her race standing alone would not be an adequate explanation. See Purkett, 514 U.S. at 769, 115 S.Ct. at 1771 (stating that a prosecutor cannot satisfy burden of production by denying that he had discriminatory motive or by merely affirming his good faith). Finally, Carpenter did not have an independent recollection for striking Sisco.
As we indicated above, inasmuch as the Supreme Court's opinion in Batson was to a degree retroactive and applies to some trials held before Batson, as is the situation here, we have considered habeas corpus petitions that have led to proceedings at which a prosecutor sought to provide explanations for peremptory challenges years after the trial. In Harrison, the first such case we encountered, the prosecutor used six of his eight peremptory challenges to strike all of the African-American venirepersons and could not recall his reasons for exercising a peremptory strike on one of the six African-American jurors he excluded during voir dire: "[j]ust looking at these notes, I don't know. I don't have her age down here. The fact that her son is a retired police officer, I assume she is an older woman. That could have been a factor; I don't know." 909 F.2d at 87. In Harrison we balanced the burden to the state of explaining strikes years made earlier against the interests of justice that Batson was designed to protect:
Id. at 87-88. Ultimately, we held that the prosecution's failure to rebut Harrison's prima facie showing of racial discrimination at the second step mandated the grant of a new trial. Id. at 88.
In Johnson v. Love we held that "the Batson inquiry ends and the conviction must be vacated at the second stage of the analysis if the state's explanation is such that, taken at face value, it either demonstrates an equal protection violation or would otherwise be inadequate as a matter of law to support the conviction." Love, 40 F.3d at 668 (citations omitted). In Love, the prosecutor's explanation for striking a young black juror was that she would not be sympathetic to the victim of petitioner's crime because the victim solicited sexual favors from young black boys prior to his death. We held that this was not a race-neutral explanation because the assumption underlying the prosecution's answer was "based on a stereotypical view or intuition that black people, because of their race, will relate to other black persons in a way that may preclude them from basing a
In Love we also addressed a situation in which a prosecutor's faded memory affects his ability to recall reasons for a particular peremptory challenge:
Id. at 667 (emphasis added). In a footnote, we distinguished Harrison by stating that the absence of any explanation mandated relief in that case but that Harrison does not suggest that a state should not be permitted to reconstruct a prosecutor's rationale for excluding a juror when the prosecutor cannot explain his motivation for a strike due to his faded memory. Id. at 667 n. 4.
Ten years later, in Hardcastle v. Horn we held that the Pennsylvania Supreme Court unreasonably applied Batson when it proceeded to the third step of the analysis without finding that the Commonwealth at the second step gave an adequate justification for the use of peremptory challenges. 368 F.3d at 259. In Hardcastle, a case tried before Batson where Batson became retroactively applicable on direct appellate review, the petitioner's trial counsel did not raise an objection during voir dire but did file a post-voir dire motion under Swain arguing that the prosecutor's use of peremptory strikes violated the federal and state constitutions. The trial court denied the motion and also denied the prosecutor's request to state her reasons for exercising the peremptory strikes. But an en banc panel of the Court of Common Pleas voted to grant a new trial based on the jury selection issue. On the initial appeal, the Pennsylvania Superior Court reversed the grant of a new trial, finding that Hardcastle failed to make the required showing under Swain. Id. at 251.
On further appeal, the Pennsylvania Supreme Court, which heard Hardcastle after the Supreme Court decided Batson, conducted its own review of the record and held that the prosecutor's opportunity to observe the jurors during voir dire and her decision not to remove two African-American venirepersons constituted race-neutral reasons for two peremptory strikes. Thus it determined that Hardcastle failed to make a prima facie showing that the prosecutor's strikes violated the equal protection clause. Id. at 253. The district court granted Hardcastle a writ of habeas corpus, and, on the Commonwealth's appeal, we affirmed, as we found that the reasons the Pennsylvania Supreme Court accepted for the striking of the two African-American jurors did not satisfy the Commonwealth's minimal burden of production at the second step inasmuch as the record did not contain any evidence of the two jurors' demeanor or the prosecutor's observation or impressions. Thus, we found that the Supreme Court's explanation amounted "to nothing more than a statement that the
In 2005, in Wilson v. Beard there was a Batson challenge in a case in which Jack McMahon had been the prosecutor. The district court in the habeas corpus proceedings, in light of the fact that 20 years had elapsed between the time of the trial and the hearing at which McMahon explained his reasons for striking jurors at the trial, concluded that it would have been unreasonable to expect McMahon to remember reasons for his individual strikes. 426 F.3d at 668. Rather, the district court held that the race-neutral reasons McMahon offered in the McMahon tape were sufficient to carry the Commonwealth's burden at the second step. Inasmuch as we upheld the district court's conclusion that Wilson proved intentional discrimination, we did not need to decide whether the district court's ruling with respect to the second step was correct. However, we did note that, in light of the passage of time between the trial and when McMahon offered his explanation for striking jurors, the district court appropriately lessened the Commonwealth's burden of production at the second step. Id.
Though, so far as we can ascertain, the United States Supreme Court never has addressed whether it is appropriate for a district court to grant a writ of habeas corpus at the second step because a prosecutor could not recall the reason for a peremptory challenge many years after the trial, recent precedent suggests that courts should be reluctant to do so for they should act with caution before granting relief at that step of the Batson process and our own consideration of the issue leads us to reach the same conclusion. For example, in Purkett v. Elem the Court of Appeals for the Eighth Circuit, in a step-two analysis, concluded that the prosecutor's explanation that he used a peremptory challenge to strike a juror because the juror had long unkempt hair and suspicious facial hair was pretextual and was not a legitimate race-neutral reason for striking the juror. 514 U.S. at 766-67, 115 S.Ct. at 1770. But on further appeal the Supreme Court, reiterating that the burden never shifts from the defendant in a Batson dispute, held that the court of appeals improperly conflated the second and third Batson steps:
Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (internal citations omitted). The Supreme Court also stated that the requirement in Batson that a prosecutor "must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges" only "was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith.... [A] `legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection." Id., 115 S.Ct. at
More recently, the Supreme Court discussed a second-step issue in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). California law required an objector, in order to establish a prima facie Batson case, to show that it was more likely than not that the other party's peremptory challenges, if unexplained, were based on impermissible bias. Id. at 168, 125 S.Ct. at 2416. The respondents, defending the California law, contended that a Batson claimant must prove discrimination by a preponderance of the evidence at the first step or else "a prosecutor's failure to respond to a prima facie case would inexplicably entitle a defendant to judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred." Id. at 170, 125 S.Ct. at 2417. The Court held that this standard was too onerous and not a proper application of Batson because the first two steps in the Batson process govern only the production of evidence and the defendant ultimately retains the burden to prove the existence of purposeful discrimination. The Court also reiterated Purkett's holding that even if the state produces "frivolous or utterly nonsensical justifications for its strike," the analysis moves to step three. Id. at 171, 125 S.Ct. at 2417. Then, in a footnote, the Court added:
Johnson, 545 U.S. at 171 n. 6, 125 S.Ct. at 2417 n. 6.
While obviously intended to apply to an objection made during voir dire, the Johnson footnote indicates that the prosecutor's lack of response is evidence to be taken into account only at step three and is not, by itself, of such dispositive force that it establishes that there was a Batson violation. Following that line of reasoning this case presents a more compelling argument for proceeding to the third step of the inquiry. The District Court's holding that the Batson inquiry ends if the state fails to meet its duty of production is accurate only if the prosecution, at step two, demonstrates that it based its challenge on a reason that was an equal protection violation. Purkett, 514 U.S. at 769, 115 S.Ct. at 1771; see also Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality opinion) ("Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.").
Unlike the Supreme Court's hypothetical prosecutor in Johnson, Carpenter's "silence" was a product of his failure to recall specific reasons for his three peremptory strikes. Carpenter's inability to recall his reasons for exercising peremptory strikes 21 years after the trial surely is far less suggestive that at the trial there had been purposeful discrimination than a prosecutor's outright refusal to answer the trial court's inquiry at voir dire directly after the prosecutor exercised the peremptory challenge. After all, when at a trial the prosecutor is asked to explain the reasons for his challenge they should be fresh in
More importantly, the Supreme Court in Johnson rejected the argument that a prosecutor's failure to respond to a prima facie case "would inexplicably entitle a defendant to judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred." Id. at 170, 125 S.Ct. at 2417. Instead, the Supreme Court strongly suggested that Batson's burden-shifting framework is simply a means of presenting evidence. The Court compared the Batson framework to the burden-shifting found in Title VII employment discrimination cases.
Here, the District Court clearly erred when it ended the Batson analysis at the second step of the three-step analysis even though, as we have indicated, Carpenter's reasons for striking Sampson, Williams, and Sisco were inadequate to meet the Commonwealth's burden of production as we explained the burden in Hardcastle. First, though Carpenter failed to recall the reasons for exercising three peremptory strikes to remove African-American jurors, Lark's prima facie case was not as strong as the petitioner's prima facie case was in Harrison. In contrast to the prosecutor in Harrison who struck all the African-Americans from the jury, Carpenter did not strike four African-Americans and had five peremptory strikes remaining at the end of voir dire. See United States v. DeJesus, 347 F.3d 500, 509 (3d Cir.2003) ("Another factor that makes the government's race-neutral explanation more believable is that one Hispanic and three African Americans were seated in the final jury, and the government had three peremptory strikes remaining.").
In addition, the District Court found that Carpenter was not systematic in his note taking and that the only notes he took were symbols and notations he made by each juror's name on the jury list. 495 F.Supp.2d at 495. The notes were incomplete inasmuch as two of the jurors whom Carpenter could not recall striking do not appear on the juror sheets on which Carpenter took his notes. The other contemporaneous evidence of Carpenter's state of mind is his response of "Oh. How awful" to Rogers' complaint that he was striking all African-Americans from the panel. Carpenter explained that he was being sarcastic because he recognized that Rogers was attempting to raise race as an issue. Carpenter further testified that he used sarcasm at other points in the trial when he became frustrated with Rogers' tactics. It is not clear whether the Court believed that Carpenter's explanation of his comment was credible.
There were, moreover, compelling reasons for the Court to advance to the third step of the Batson analysis. To start with, the Supreme Court has suggested that Batson's burden shifting framework is a means to present evidence and thus the prosecution's presentation of only thin evidence at the second step, though perhaps damaging to its case, is not dispositive on the question of discriminatory intent. Johnson, 545 U.S. at 170-71, 125 S.Ct. at 2417-18. Proceeding to the third step would have allowed the District Court to judge whether Carpenter's strikes violated the Equal Protection Clause through juror comparisons, thus fulfilling the principal goal of Batson: "to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." Id. at 172, 125 S.Ct. at 2418.
The District Court's acceptance of Lark's prima facie case as dispositive proof of Carpenter's intent substituted inferences for an actual answer to the question of whether Carpenter discriminated in the selection of jurors. We hold that the District Court, by moving to the third step, could have weighed all of the evidence against Lark's prima facie case. Instead, the District Court's approach validated the fears of the respondents in Johnson: the prosecutor did not come forward with evidence at the second step and Lark received "judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred." Id. at 170, 125 S.Ct. at 2417.
Moreover, this case presents an unusual situation in which neither party may be held culpable for the delay in the adjudication of the Batson claim. Nevertheless, we see some merit to the Commonwealth's contention that Lark should have been more diligent in pursuing the claim even though, as our discussion of procedural default demonstrates, Pennsylvania's "relaxed waiver" policy created a post-conviction climate in which the state courts would waive procedural rules in capital cases. After all, following the Supreme
Finally, we have indicated that it is appropriate to lessen the state's burden at the second step where the passage of time diminishes the prosecutor's recollection of voir dire. Wilson, 426 F.3d at 668. Indeed, the Supreme Court's limitation of the retroactive application of Batson to cases on direct appeal when it decided that case and not applying its holding to cases on collateral review at the time of that decision, indicates that the Court envisioned problems such as those present here in applying Batson years after the trial. We think that proceeding to the third step of the Batson analysis is preferable to the alternative: overturning a 25-year-old jury verdict which the Pennsylvania Supreme Court has upheld against numerous challenges and which seems to have been predicated on substantial evidence merely because it would be possible to draw an inference of discrimination in jury selection.
We hold that given the recent Supreme Court case law and the particular circumstances of this case, the District Court should have proceeded to the third step of the Batson analysis.
Inasmuch as we have determined that the District Court improperly applied Batson, we will vacate its order, remand the case to the District Court, and direct that the Court perform the third step of the Batson analysis.
The District Court based its decision on the pattern of the prosecutor's strikes and Carpenter's inability to articulate a justification for three of those strikes. Any other evidence or arguments which relate to intentional discrimination, such as juror comparisons, properly are made at the third Batson step and we will not consider them at this time. Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) ("If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step."). Ultimately, it is at the third step that the District Court must make a finding regarding the prosecutor's
For the foregoing reasons we will vacate the District Court's order entered on July 5, 2007, granting Lark a conditional writ of habeas corpus, and remand the case for the further proceedings that we have indicated in this opinion are required. No costs shall be allowed on this appeal.
McKEE, Chief Circuit Judge, concurring.
I join the majority opinion in its entirety, and fully agree with the remand to the District Court to complete the third step of the Batson analysis. However, I write separately to emphasize that although my colleagues note that "we have indicated that it is appropriate to lessen the state's burden at the second step where the passage of time diminishes the prosecutor's recollection of voir dire," Maj. Op. 628 (citing Wilson, 426 F.3d at 668), we have not done so here. The majority properly concludes that the Commonwealth failed to meet its burden at step two of the Batson analysis because the prosecutor failed to offer race-neutral reasons for striking three jurors. Thus, in this case, the majority's discussion of the appropriateness of lessening the state's burden of production when the prosecutor has a faded memory at step two of the Batson analysis is purely dicta, and rightfully so.
In Wilson, we stated: "[I]n light of the passage of time, we agree with the District Court that it was appropriate to lessen the burden of the Commonwealth at step two." 426 F.3d at 668. However, in Wilson, unlike here, it does not appear that a timely objection was made at trial to the prosecutor's discriminatory exercise of peremptory strikes. See Abu-Jamal, 520 F.3d at 280 n. 3. As the majority quite correctly notes, Lark's attorney raised what was to become a Batson claim during voir dire. Accordingly, the prosecutor was immediately put on notice that he may later have to explain his motivations in peremptorily striking Black jurors.
The majority suggests that the prosecutor's burden must necessarily be reduced at step two when the prosecutor's faded memory results from a long passage of time between voir dire and a Batson hearing. However, that principle should not apply when, as here, a timely objection is made to the prosecutor's use of peremptory strikes. Under such circumstances, the fact finder may conclude that the claim of faded memory and failure to memorialize the reasons for certain strikes is less credible than might otherwise be the case. I do not suggest that this necessarily undermines a subsequent claim of failed memory. However, I also do not think it appropriate to suggest that the claim of failed memory must receive the same credibility and consideration afforded the prosecutor in Wilson. Rather, the District Court must be free to assess the credibility of the claim of failed memory during its step three Batson analysis on remand.
On remand, the District Court will have to decide whether, and to what extent, the prosecutor's subsequent claim of failed memory should be credited given the very unique circumstances here and the fact that he was immediately informed that his motivations may be examined at a later date.
