Hardcastle v. Horn

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

5-14-2004

Hardcastle v. Horn Precedential or Non-Precedential: Precedential

Docket No. 01-9006

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Recommended Citation "Hardcastle v. Horn" (2004). 2004 Decisions. Paper 661. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/661

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Thomas W. Dolgenos (Argued) UNITED STATES COURT OF Office of the District Attorney APPEALS 1421 Arch Street FOR THE THIRD CIRCUIT Philadelphia, PA 19102 ____________ Attorney for Appellants No: 01-9006 ___________ DONALD HARDCASTLE Robert B. Dunham (Argued) Defender Association of Philadelphia v. Federal Capital Habeas Corpus Unit The Curtis Center, Suite 545 West MARTIN HORN, COMMISSIONER, Independence Square West PENNSYLVANIA DEPARTMENT OF Philadelphia, PA 19106 CORRECTIONS; GEORGE R. WHITE, Attorney for Appellee SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH; AND JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE OPINION CORRECTIONAL INSTITUTION AT ROCKVIEW, ROTH, Circuit Judge: Appellants ___________ _________________ In 1982, Donald Hardcastle was Appeal from the United States charged by the Philadelphia District District Court Attorney’s Office with murder, arson, and for the Eastern District of Pennsylvania burglary. He was tried before a jury in the (D.C. Civil No. 98-cv-03028) Court of Common Pleas, convicted on all District Judge: Honorable John R. counts, and sentenced to death. In both Padova his direct appeal and state collateral review proceedings, Hardcastle asserted, inter alia, that the assistant district attorney Argued on May 20, 2003 who conducted the jury selection at his trial exercised her peremptory strikes in a Before: SCIRICA, Chief Judge, racially discriminatory manner, thus NYGAARD and ROTH, Circuit Judges violating the constitutional principle recognized by the Supreme Court in (Filed May 14, 2004) Batson v. Kentucky, 476 U.S. 79 (1986), 110 1 (Pa. 1988) ( dir e c t ap p e al and made applicable to Hardcastle’s then- proceedings) (Ha rdcas tle I); pending direct appeal by Griffith v. Commonwealth v. Hardcastle, 701 A.2d Kentucky, 479 U.S. 314 (1987). The 541 (Pa. 1998) (appeal of post-conviction Pennsylvania Supreme Court twice relief proceedings) (Hardcastle II); rejected Hardcastle’s Batson claim and Hardcastle v. Horn, No. 98-CV-3028, affirmed his conviction. 2001 WL 722781 (E.D. Pa. June 27, 2001) (federal habeas corpus proceedings) Hardcastle then filed a petition for (Hardcastle III). They are not in dispute. a writ of habeas corpus with the U.S. District Court. The District Court On May 23, 1982, the bodies of concluded that the Pennsylvania Supreme Joseph Gregg and Ernestine Dennis were Court’s ruling was both contrary to and an found in Gregg’s Philadelphia home. Both unreasonable application of Batson, had received in excess of thirty stab granted Hardcastle’s petition, and ordered wounds and Gregg’s home had been set on a new trial. For the reasons set forth fire. Several neighbors indicated that they below, we hold that the Pennsylvania had seen Hardcastle near Gregg’s home Supreme Court’s rejection of Hardcastle’s around the time of the murders. An arrest claim on the record before it was indeed an warrant was issued and Hardcastle objectively unreasonable application of surrendered to the police on May 25. He B a tson. Ho we ver, be caus e the was subsequently charged with burglary, Commonwealth of Pennsylvania had two counts of arson, and two counts of requested, and been denied, a chance to murder. present evidence in support of its Hardcastle is an African-American. peremptory strikes of African-Americans During the course of jury selection at his from the venire, it is entitled to a hearing trial, the prosecutor used her peremptory to present that evidence. We will, strikes, of which she had a total of twenty, therefore, remand this matter to the to remove twelve of the fourteen African- District Court to hold such a hearing and American members of the venire. The jury to then reexamine the application of ultimately empaneled to hear the case Batson to Hardcastle’s claim. contained only one African-American. I. Factual Background and Procedural Hardcastle’s trial counsel did not object to History t h e C o m mo n we alth ’ s p e r em p t o ry challenges during the five-day voir dire, The following material facts are drawn and the trial court therefore did not require from the opinions issued in this case by the the prosecutor to state the bases for her Pennsylvania Supreme Court and the strikes on the record. However, following United States District Court for the Eastern voir dire, Hardcastle’s counsel moved for Dis t r ic t of P enn sylvan ia. See a mistrial on the grounds that the Commonwealth v. Hardcastle, 546 A.2d prosecutor’s use of the peremptory 2 challenges violated both the state and After trial, Hardcastle was federal constitutions. Applying the then- convicted of two counts of first degree governing standard articulated in Swain v. murder, two counts of arson, and one Alabama, 380 U.S. 202 (1965), the trial count of burglary. Post-trial motions were court denied this motion. The trial court filed, arguing, inter alia, that the similarly denied the prosecutor’s request prosecutor exercised her peremptory for permission to state her reasons for the strikes in a discriminatory manner, thus challenged strikes on the record.1 violating Hardcastle’s constitutional rights. A three-judge en banc panel of the Court of Common Pleas was convened to hear 1 the post-trial motions. At this hearing, The following exchange occurred in counsel for H ardcastle repeatedly connection with the trial court’s denial of requested an evidentiary hearing on the Hardcastle’s motion for a mistrial discriminatory strikes. In reply, the following voir dire: Assistant District Attorney stated that, in view of the fact that the trial had occurred The Court:[Defense six months earlier, she could not offer Counsel], I’m not going to reasons for her strikes of black jurors and argue the point. There’s no that it was no longer possible to need to. I’m going to deny reconstruct the voir dire. An evidentiary your motion. Your record hearing was not granted but the panel, by is correct, and we now a two to one vote, granted Hardcastle a proceed. Is there any other new trial on the jury selection issue. motion? On appeal, the Pennsylvania [Prosecutor]:May I put Superior Court reversed the grant of a new something on the record trial and affirmed the conviction, holding with regard to this issue? that Hardcastle failed to make the showing required by the then-governing standard The Court:No. established in Swain. The Pennsylvania Supreme Court initially granted allocatur [Prosecutor]:Not in but then dismissed the appeal as defense. improvidently granted. On remand, Hardcastle was sentenced to death for the The Court:No. murders of Gregg and Dennis, to 2 ½ to 5 years for arson, and to 2 ½ to 5 years for [Prosecutor]:Okay. burglary.

The Court:Now that gets rid of the problem.

3 Following sentencing, Hardcastle Commonwealth’s fourteen again appealed to the Pennsylvania peremptory challenges to Supreme Court. By the time his case was determine whether appellant heard by that court in November 1987, the has made out a prima facie United States Supreme Court had issued case of improper use. its decision in Batson, thereby lessening the evidentiary burden imposed on defendants in Hardcastle’s position. As Hardcastle I, 546 A.2d at 1104 (citation noted by the Pennsylvania Supreme Court, and footnote omitted). this change in controlling precedent However, rather than remanding the complicated its task: case to the trial court for an evidentiary The case before us presents hearing, the Pennsylvania Supreme Court a difficult problem for combed through the record itself in an review. Since the Supreme effort to determine whether race-neutral Court’s decision in Batson bases existed for the challenged strikes. p o s t - d at e s a p p e l l a n t ’ s After conducting this analysis, it identified judgment of sentence, the the following as potential bases for the defense did not object to the dismissal of Venirepersons 1 through 10:2 prosecutor’s use of peremptory challenges at the 2 time of voir dire, the For ease of reference, the first ten prosecution did not rebut the African-Americans struck from the objection, and the trial court venire (for whom the Pennsylvania did not rule on the issue. Supreme Court proffered relatively D e f e n s e c o u n s e l d id , specific race-neutral justifications) will however, preserve the issue be referred to throughout this Opinion as by making a motion for a “Venirepersons 1 through 10.” The last mistrial, subsequent to voir two African-Americans struck from the dire and prior to trial, based venire (for whom the Pennsylvania on t h e p r o se c utor’s Supreme Court proffered only general impermissible use of the race-neutral justifications) will be challenges. Because the referred to as “Venirepersons 11 and 12.” i s s u e w a s p r e s e r v ed appellant is entitled to the Additionally, we note the protections granted by discussion by the District Court and the Batson. Therefore, we must parties regarding the fact that one of the make a post hoc evaluation first ten venirepersons discussed by the of the record, examining Pennsylvania Supreme Court may not e a c h o f t h e have been an African-American, and the possibility that the Pennsylvania 4 (1) the first had a sister that had been raped had six children, one of whom , a son, had several years before Hardcastle’s trial; (2) been convicted of rape; (9) the ninth was a the second admitted during voir dire that twenty-year-old unemployed high school she had heard about the case through graduate; and (10) the tenth was a thirty- media reports; (3) the third was questioned five-year-old single bartender who initially in detail by both sides about her work in indicated that he would do whatever he caring for delinquent children, her thought was right, but later stated that he education, and her family history; the court would follow the judge’s instructions. noted that this extensive questioning “gave Hardcastle I, 546 A.2d at 1104-05. the Commonw ealth attorney ample In turning next to Venirepersons 11 opportunity to observe responses and and 12, the court concluded these strikes demeanor”; (4) the fourth had a sister and were justified by more general “race- nephew who had been arrested for drug- neutral” explanations, finding that “the related crimes, as well as a father who had Commonwealth had the opportunity to been a victim in a separate crime; (5) the observe the witnesses and their response to fifth “initially testified that she would not questioning prior to exercising the follow the judge’s instructions if she felt peremptory challenge” and that “although that something else was better law,” but the Commonwealth had ample challenges later stated after further questioning that remaining, there were no challenges she would follow the judge’s instructions; offered to two black jurors, one of whom (6) the sixth had attended her brother’s ironically was challenge d by the trial, in which he was convicted on robbery defendant.” Id. at 1105. Based on the charges; (7) the seventh was a case-worker foregoing, the Pennsylvania Supreme for the Commonwealth and had a brother Court concluded that Hardcastle failed to who had been a victim of violent crime; establish a prima facie case of improper (8) the eighth was a registered nurse who use of peremptory challenges under Batson. Id. The court similarly rejected the remaining claims raised by Hardcastle Supreme Court may therefore have on direct appeal and affirmed both his offered explanations for only the first conviction and sentence. nine African-Americans struck from the When again presented with the venire. See Hardcastle III, 2001 WL Batson claim in considering Hardcastle’s 722781 at *14-*15. We take no position appeal of the denial of his Post Conviction with respect to this issue, as it in no way Relief Act (PCRA) claim, see 42 Pa. C.S. affects the outcome of this appeal. § 9541 et seq., the Pennsylvania Supreme However, for ease of reference, we will Court refused to exempt Hardcastle from assume that all of the potential jurors the requirement that claims raised in identified and discussed by the PCRA proceedings must not have been Pennsylvania Supreme Court were in fact previously litigated. The court therefore African-Americans.

5 rejected his claim that intervening jurisdiction to review the District Court’s decisions of the United States Supreme final order granting Hardcastle’s petition Court required it to reach a different pursuant to 28 U.S.C. §§ 1291 and 2253. conclusion on collateral review than it had The Commonwealth is not required to on direct review: “if finality means obtain a certificate of appealability prior to anything it must mean that our decision on seeking review of a District Court’s the merits in this case, as to which decision to grant a petition for a writ of certiorari was denied by the United States habeas corpus. Cristin v. Brennan, 281 Supreme Court, cannot be affected by F.3d 404, 409 (3d Cir. 2002) (citing Fed. decisions in other cases decided three and R. App. P. 22(b)(3)). four years later.” Id.

III. Standard of Review Following exhaustion of his state Because the District Court “d[id] remedies, Hardcastle sought a writ of not hold an evidentiary hearing and engage habeas corpus from the United States in independent fact-finding, but rather District Court for the Eastern District of limit[ed] the habeas evidence to that found Pennsylvania. Although the petition raised in the state court record,” our review of its unexhausted claims, both sides conceded final judgment is plenary. Scarbrough v. that procedural bars prevented Hardcastle Johnson, 300 F.3d 302, 305 (3d Cir. 2002). from raising his unexhausted claims in state court. Accordingly, the District Hardcastle’s petition for a writ of Court held that Hardcastle’s petition was habeas corpus was filed after April 1996 not a mixed petition and thus was not and thus is subject to the Antiterrorism and subject to dismissal. Hardcastle III, 2001 Effective Death Penalty Act of 1996, 28 WL 722781 at *3. Following a thorough U.S.C. § 2241 et seq. (AEDPA). Gattis v. analysis of the merits, the District Court Snyder, 278 F.3d 222, 228 (3d Cir. 2002). further held that the Pennsylvania Supreme “Under AEDPA, when a federal court Court’s resolution of Hardcastle’s claim reviews a state court’s ruling on federal was both contrary to and an unreasonable law, or its application of federal law to a application of Batson. It therefore granted particular set of facts, the state court’s the writ and, after concluding that an decision must stand unless it is ‘contrary evidentiary hearing would not be helpful, to, or an unreasonable application of, ordered a new trial. Id. at *19. This clearly established Federal law, as appeal followed. determined by the Supreme Court of the United States.’” Lam v. Kelchner, 304 II. Jurisdiction F.3d 256, 263 (3d Cir. 2002) (quoting 28 The District Court exercised U.S.C. § 2254(d)(1)). “When a federal jurisdiction over Hardcastle’s petition for court reviews a state court’s findings of a writ of habeas corpus pursuant to 28 fact, its decision must stand unless ‘it was U.S.C. §§ 2241 and 2254. We have based on an unreasonable determination of 6 the facts in light of the evidence presented Supreme Co urt rece ntly clarified, in a State court proceeding.’” Id. (quoting “obje ctively unreasonable” is not 28 U.S.C. § 2254 (d)(2)). synonymous with “clear error,” as “[t]he gloss of clear error fails to give proper It is by now well-settled that Batson deference to state courts by conflating claims constitute mixed questions of law error (even clear e rror) w ith and fact for purposes of federal habeas unreasonableness.” Id. at 1175. corpus review. See Riley v. Taylor, 277 F.3d 261, 277-78 (3d Cir. 2001) (en banc). Thus, “[i]t is not enough that a The governing standard for such federal habeas court, in its ‘independent determinations is provided by the Supreme review of the legal question’ is left with a Court’s decision in Williams v. Taylor, ‘firm conviction’ that the state court was 529 U.S. 362 (2000). Under Williams, “a ‘erroneous.’” Id. (citation omitted). state court decision is ‘contrary to [the “Rather, that application must be Supreme Court’s] clearly established objectively unreasonable.” Id. Stated a precedent if the state court applies a rule different way, a “‘federal habeas court that contradicts the governing law set forth should not grant the petition unless the in [the Court’s] cases’ or ‘if the state court state court decision, evaluated objectively confronts a set of facts that are materially and on the merits, resulted in an outcome indistinguishable from a decision of [the that cannot reasonably be justified under Court] and nevertheless arrives at a result existing Supreme Court precedent.’” Werts different from [its] precedent.’” Lockyer v. v. Vaughn, 228 F.3d 178, 197 (3d Cir. Andrade, — U.S. —, 123 S. Ct. 1166, 2000 ) (quoting Mateo, 171 F.3d at 890). 1173 (2003) (quoting Williams, 529 U.S. at 405-06 ). IV. Discussion State court determinations of mixed We begin by noting our agreement questions of law and fact constitute an with the Pennsylvania Supreme Court’s “unreasonable application” of clearly observation that the retroactive application established federal law when “‘the state of Batson causes unique evidentiary court identifies the correct governing legal problems for reviewing courts, as the principle from [the Supreme Court’s] three-step Batson inquiry with which we decisions but unreasonably applies that are all now familiar did not occur during principle to the facts of the prisoner’s voir dire in these cases. Thus, we are case.’” Id. at 1174 (quoting Williams, 529 aware of the difficulties faced by both the U.S. at 413). Under the “unreasonable Pennsylvania Supreme Court and the application” clause, “[t]he state court’s District Court in reviewing the record in application of clearly established law must this case. be objectively unreasonable”; a decision that is merely “incorrect or erroneous” is Nevertheless, we cannot conclude, insufficient to justify relief. Id. As the even under the deferential standard of 7 review contained in AEDPA, that the A. Background Pennsylvania Supreme Court’s resolution The Supreme Court’s decision in of Hardcastle’s claim amounted to an Batson has been interpreted as establishing objectively reasonable application of a three-step inquiry for determining the Batson. Specifically, even accepting the constitutionality of challenged peremptory Pennsylvania Supreme Court’s proffered strikes. See Riley, 277 F.3d at 275 .3 First, justifications for the challenged strikes at “‘a defendant may establish a prima facie face value, the court still (1) failed to case of purposeful discrimination in identify adequate bases for the striking of selection of the petit jury solely on Venirepersons 11 and 12, and thus should evidence concerning the prosecutor’s have terminated its analysis and found the exercise of peremptory challenges at the existence of a Batson violation at step two defendant’s trial.” Id. (quoting Batson, of the inquiry; and (2) failed to conduct a 476 U.S. at 96 ). “Once the defendant full and complete step three analysis with makes a prima facie showing of racial respect to the challenged strikes of discrimination (step one), the prosecution Venirepersons 1-10. must articulate a race-neutral explanation However, exercising plenary review for its use of peremptory challenges (step over the final judgment of the District two). If it does so, the trial court must Court, we similarly reject its decision to determine whether the defendant has grant habeas corpus relief on the basis of established purposeful discrimination (step the current evidentiary record. Instead, three).” Id. Throughout this process, based on the facts of this case, in which “[t]he ultimate burden of persuasion the Commonwealth offered to state the regarding racial motivation rests with, and bases for its strikes immediately following does not shift from, the defendant.” Id.

voir dire and in which both sides have, at various times, sought a hearing, we 3 conclude that the District Court erred in As a preliminary matter, we note that, granting habeas corpus relief without first although § 2254 permits habeas corpus providing the Commonwealth with the relief only in situations in which a state opportunity to present evidence in defense court’s decision “is contrary to, or an of the challenged peremptory strikes. The unreasonable application of, clearly Commonwealth’s prior observations of the established federal law, as determined by difficulties it will have in recalling the the Supreme Court of the United States,” reasons for its peremptory strikes should our analysis of Supreme Court precedent not now preclude it from making that may be amplified by decisions of inferior effort when it has requested the federal courts evaluating reasonableness opportunity to do so. Remand is therefore under that Supreme Court precedent. appropriate. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc).

8 Significantly, “[d]eference in a Batson prima facie case, evaluated case must be viewed in the context of the the evidence and all the requirement that the state courts engage in relevant circumstances as the three-step Batson inquiry” described the trial court would above. Id. at 286. ordinarily do pursuant to Batson, and resolved the In reviewing this matter, we begin ultimate issue by deciding by noting the incomplete nature of the that the Commonwealth had Pennsylvania Supreme Court’s analysis of not used its peremptory Hardcastle’s Batson claim on direct challenges improperly. appeal. Simply stated, the court conflated steps one and two of the Batson analysis in the sense that it identified and then Hardcastle II, 701 A.2d at 548. In view of analyzed potential justifications for the this ruling, we will follow the lead of the challenged strikes — something that District Co urt in exam ining th e should not occur until step two — in its Pennsylvania Supreme Court’s decision on step one analysis of whether Hardcastle direct review, see Hardcastle I, as had successfully established a prima facie modified by its opinion on collateral case. The court then proceeded to step review, see Hardcastle II. Stated three, only to conclude that Hardcastle had alternatively, we will treat Hardcastle I as failed to establish a prima facie case of representing the Pennsylvania Supreme discrimination, thus indicating that, Court’s full three-step analysis of technically speaking, its analysis never Hardcastle’s Batson claim. proceeded beyond step one. We further note that we will read The Pennsylvania Supreme Court the Pennsylvania Supreme C ourt’s apparently recognized this error when, in acknowledgment in Hardcastle II of the its subsequent d ecision regard ing existence of a prima facie case in Hardcastle’s appeal of the PCRA court’s Hardcastle I as a concession that decision, it acknowledged as follows: Hardcastle had satisfied his burden at step N o t w it h s t a n d i n g the one. In view of the fact that twelve of the language in our opinion [on prosecutor’s peremptory strikes were direct appeal] to the effect exercised against African-American that [Hardcastle] had not members of the venire, we have no doubt made out a prima facie case, that this concession was appropriate. See the extensive analysis of the Rico v. Leftridge-Byrd, 340 F.3d 178 , 185 record for race-ne utral (3d Cir. 2003) (noting that “[o]ne way to reasons indicates that our establish a prima facie case at step one is post hoc analysis actually to show a pattern of peremptory challenges presumed the existence of a of jurors of a particular race”) (citing 9 Batson, 476 U.S. at 96-97 ). Even in the defendant.” Hardcastle I, 546 A.2d at absence of such a concession, however, 1105.4 the Pennsylvania S upreme Court’s decision to proceed to steps two and three moots the issue of whether Hardcastle 4 We note the existence of some made a sufficient showing at step one. See uncertainty in the case law with respect Hernandez v. New York, 500 U.S. 352 , to who may properly articulate the 359 (1991) (holding that “[o]nce a Commonwealth’s justifications at this prosecutor has offered a race-neutral stage of the analysis. Here, this explanation for the peremptory challenges uncertainty raises the question whether, and the trial court has ruled on the ultimate and to what extent, we may consider the question of intentional discrimination, the race-neutral explanations offered by the preliminary issue of whether the defendant Pennsylvania Supreme Court on behalf had made a prima facie showing becomes of the prosecutor. Some cases may be moot.”). Thus, we will focus our read to imply that, because the discussion on steps two and three. prosecutor’s subjective intent is the B. Step Two principal focus of a Batson challenge, he or she must personally articulate the As detailed in the District Court’s race-neutral basis required at step two. opinion and summarized above, the See, e.g., Riley, 277 F.3d at 282 (holding Pennsylvania Suprem e C our t, in that “[t]he inquiry required by Batson considering Hardcastle’s direct appeal, must be focused on the distinctions examined the record in an effort to identify actually offered by the State in the state race-neutral bases for the tw elve court, not on all possible distinctions we challenged strikes. It articulated what it can hypothesize. Apparent or potential considered to be specific and facially reasons do not shed any light on the credible bases for the striking of prosecutor’s intent or state of mind when Venirepersons 1 through 10. However, it making the peremptory challenge”) was unable to do so with respect to (citations omitted). We have previously Venirepersons 11 and 12 and therefore determined, however, that “[w]e are offered only the following general unprepared to hold . . . that the state’s justifications for these strikes: (1) “the burden can never be carried without Commonwealth had the opportunity to direct evidence from the decisionmaking observe the witnesses and their response to prosecutor regarding his or her state of questioning prior to exercising the mind.” See Johnson v. Love, 40 F.3d peremptory challenge”; and (2) “although 658, 667 (3d Cir. 1994); Pemberthy v. the Commonwealth had ample challenges Beyer, 19 F.3d 857 , 864-65 (3d Cir. remaining, there were no challenges 1994) (concluding that state appellate offered to two black jurors, one of whom court properly made factual findings ironically was challeng ed by the regarding Batson inquiry despite the fact 10 In addressing the question whether relatively low bar at step two. It therefore the justifications identified by the is rare for a case to be decided at this stage Pennsylvania Supreme Court for the of the analysis. Indeed, “[t]he second step striking of Venirepersons 11 and 12 are of [the Batson analysis] does not demand sufficient to satisfy the Commonwealth’s an explanation that is persuasive, or even burden of production, we note that the plausible.” Purkett v. Elem, 514 U.S. 765 , Supreme Court has purposely set a 767-68 (1995) (per curiam). Rather, the sole issue at step two “is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the that there was no state court hearing, and prosecutor’s explanation, the reason that the prosecutor, at that time, had not offered will be deemed race neutral.” Id.

advanced anything more than a general at 768. explanation for the challenged strikes); Jones v. Ryan, 987 F.2d 960 , 965-66 & Further, the Supreme Court has n.2 (3d Cir. 1993) (suggesting that state emphasized the necessity of maintaining appellate courts may make factual the analytical distinction between steps findings in their review of Batson two and three, as step two merely places claims); Esquivel v. McCotter, 791 F.2d upon the prosecutor the burden of 350, 351 (5th Cir. 1986) (affirming state producing an explanation; “[i]t is not until appellate court’s factual determination the third step that the persuasiveness of the regarding Batson claim raised for first justification becomes relevant – the step in time on appeal). which the trial court determines whether the opponent of the strike has carried his However, even assuming b u r d e n o f p r o v ing purposefu l arguendo that it was appropriate in this discrimination.” Id. At step three, case for the Pennsylvania Supreme Court implausible or fantastic to sift through the trial record in an effort justifications may (and to identify unstated race-neutral bases for probably will) be found to challenged peremptory strikes, the court be pretexts for purposeful failed to either (1) identify a satisfactory discrimination. But to say step two explanation for the striking of that a trial judge may choose Venirepersons 11 and 12, or (2) conduct to disbelieve a silly or an adequate step three analysis as to any superstitious reason at step of the African-Americans struck from the three is quite different from venire. Thus, even accepting the saying that a trial judge Pennsylvania Supreme Court’s proffered must terminate the inquiry at justifications as facially valid, we are still step two when the race- unable to conclude that its resolution of neutral reason is silly or the matter is an objectively reasonable superstitious. The latter application of Batson.

11 violates the principle intuition and with the absence of that the ultimate discriminatory intent. We have repeatedly burden of persuasion rejected such vague and general claims in r e g a r d i n g r a c ia l the past. See United States v. Casper, 956 m o t i v a t i o n r e st s F.2d 416, 418 (3d Cir. 1992) (holding that, with, and never shifts because “[t]he Batson Court stated that from, the opponent explanations must be ‘clear and reasonably of the strike. specific,’” “[e]xplanations based on a prosecutor’s mere ‘good faith’ or ‘intuition’ do not suffice.”) (citations The reasons presented at step two, omitted); United States v. Clemons, 843 however, must be “reasons,” not merely a F.2d 741, 745 (3d Cir. 1988) (noting that, denial of discriminatory motive or an “[a]lthough the reason need not approach affirmation of good faith. See Id. at 768- the level justifying a challenge for cause, 69. “What [Batson] means by a the [Batson] Court emphasized that the ‘legitimate reason’ is not a reason that prosecutor must assert a clear, specific makes sense, but a reason that does not reason beyond ‘his intuitive judgment’ or deny equal protection.” Id. ‘his good faith.’”) (quoting Batson, 476 U.S. at 98 & n.20). Under this standard, we need not conduct at step two an analysis of the We reject them again here. Indeed, purportedly race-neutral explanations to say, as the Pennsylvania Supreme Court proffered by the Pennsylvania Supreme did, that a prosecutor’s step two burden Court with respect to Venirepersons 1 may be satisfied based solely upon her through 10. However, the justifications opportunity to observe the jurors during for the striking of Venirepersons 11 and 12 voir dire creates an exception which fail to satisfy even the minimal burden of threatens to swallow the rule. As production required at step two. The Hardcastle correctly argues, the same Pennsylvania Supreme Court’s assertion could be said regarding almost any that the striking of Venirepersons 11 and peremptory strike, and the acceptance of 12 was race-neutral simply because the the explanation p roffe red by the prosecutor had an opportunity to observe Pennsylvania Supreme Court for the them during voir dire is inadequate on its striking of Venirepersons 11 and 12 would face. Indeed, “[t]he record contains no render step two meaningless, as any evidence whatsoever about any juror’s prosecutor could bypass it by briefly demeanor or the prosecutor’s observations questioning and observing the prospective or impressions thereof.” Hardcastle III, juror prior to exercising the strike.

2001 WL 722781 at *13. Thus, this Second, the fact that the prosecutor explanation amounts to nothing more than had enough peremptory strikes to remove a statement that the prosecutor acted on the two remaining African-American 12 venirepersons, but chose not to do so, was not the real reason and determine[] cannot demonstrate the absence of whether the defendant has met his burden discriminatory intent in the striking of the of persuasion.” Riley, 277 F.3d at 286

other twelve African-Americans from the (citation and internal quotations omitted). venire. See Jones v. Ryan, 987 F.2d 960 , In Riley, we placed particular emphasis on 972-73 (3d Cir. 1993) (rejecting a similar the state courts’ failure to consider all of argument and noting that “[w]e doubt the the evidence before them in determining significance of including a single black on whether the justifications offered by the the panel if, at the same time, the prosecutor were pretextual: government used most of its peremptory challenges to strike blacks w ith The state courts in this case backgrounds similar to the white jurors rejected Riley’s Batson ultimately selected.”) (quoting Clemons, claim without discussing 843 F.2d at 747); see also Clemons, 843 any of the ample evidence F.2d at 747 (holding that the striking of “a that throws into question the single black juror could constitute a prima explanations offered by the facie case even when blacks ultimately sit prosecutor for striking two on the panel and even when valid reasons of the black jurors and there exist for striking other blacks.”). Thus, is nothing relevant in the absent further justification for the striking record that might otherwise of Venirepersons 11 and 12, we cannot support the state courts’ conclude that the Pennsylvania Supreme decisions. Thus, we do not Court’s decision to proceed to step three in know why the state courts justifying the strikes of Venirepersons 11 found the S ta t e ’s and 12 was an objectively reasonable explanation was plausible application of Batson. and credible in light of the C. Step Three other evidence. It is because of the state courts’ We further hold that the failure of omission of a requirement the Pennsylvania Supreme Court to under the third step of the conduct an adequate analysis at step three Batson inquiry – of an with respect to the challenged strikes of ultimate determination on Venirepersons 1-10 also precludes a the issue of discriminatory finding that its application of Batson was intent based on all the facts objectively reasonable. Step three requires and circumstances – that the a court conducting a Batson inquiry to State’s argument founders. “address[] and evaluate[] all evidence introduced by each side (including all Id. at 287 (italicized emphasis added). evidence introduced in the first and second After close analysis of the record, steps) that tends to show that race was or 13 we reach the same conclusion here. In so Although we agree with the District doing, we note that “a judge considering a Court’s statement that it will be difficult at Batson challenge is not required to this late date to reconstruct the bases for comment explicitly on every piece of the challenged strikes, we cannot agree evidence in the record.” Id. at 290. with its conclusion that, under the facts of However, “some engagement with the this case, the Commonwealth is not evidence considered is necessary as part of entitled to attempt to do so or that the state step three of the Batson inquiry,” and this of the evidentiary record will not be requires “something more than a terse, improved as a result thereof. In so abrupt comment that the prosecutor has holding, we are persuaded by the fact that, satisfied Batson.” Id. at 290-91 (citations despite the prosecutor’s offer to state the and internal quotations omitted). bases for her peremptory strikes on the record immediately following voir dire and Here, “[t]he Pennsylvania Supreme her subsequent request for some form of Court’s decision does not indicate that the hearing, the Commonwealth has never court engaged in any analysis or been provided with either a state or federal consideration of the credibility of the forum in which to present evidence in potential justifications that it had defense of its actions in this case. proffered. Rather, the court’s decision reads as if the court accepted the justifications at face value.” Hardcastle We further note that neither the III, 2001 WL 722781 at *12. Accordingly, prosecutor’s concession during oral as in both Jones and Riley, we lack an adequate step three analysis to which we may defer. The Commonwealth should be new trial was cited with approval by this given the opportunity it requests to Court in Riley, 277 F.3d at 294 & n.14 demonstrate that its exercise of peremptory (citing Hardcastle III, 2001 WL 722781

strikes was justified under the Batson third at *19). Indeed, at oral argument before step. In addition, Hardcastle should be us, counsel for Hardcastle cited the Riley afforded the opportunity to show any Court’s approving reference to the weaknesses he may find with the granting of a new trial in Hardcastle III justifications for the strikes. as reason to affirm the grant of his writ rather than to remand for a Batson D. Remedy hearing. However, it goes without Thus, in view of the state of the saying that the merits of this case were evidentiary record, we reject Hardcastle’s not before us in Riley. Having now had argument in favor of affirmance.5 the benefit of the parties’ arguments with respect to this issue, we conclude that the District Court should not have granted 5 We note that the District Court’s relief without first holding an evidentiary conclusion that Hardcastle is entitled to a hearing.

14 argument before the en banc Court of offered no explanation for Common Pleas that she could not recall excluding one of the six the precise bases for the challenged strikes black venirepersons he had nor the passage of time mandates a struck from the jury, but contrary result. As we have previously simply asserted at a hearing held: before a federal magistrate that he could not recall his [t]here will undoubtedly be reasons. It was based on the p o s t - co n v i c t i o n r e l i e f prosecutor’s assertion that proceedings in which the he did not know the reason state, by reason of death, h e s tr u c k a b l ack absence, or faded memory, venireperson, coupled with will be unable to produce a the absence of any other prosecutor with a specific explanation, that this court recollection of the reason affirmed the order for a new for a challenge alleged to trial. We do not read violate Batson. Courts Harrison to suggest that a frequently are required to state cannot be permitted to d ra w inferences f rom reconstruct the prosecutor’s circumstantial evidence rationale for excluding a r e ga r d i n g a decision- juror during a later Batson maker’s state of mind, hearing when the prosecutor however, and we are adm its to having no unwilling to rule out the r e co l l e ct i o n o f h is possibility that the state may motivations at the time. be able to satisfy its step two Batson burden by tendering circumstantial evidence. Johnson, 40 F.3d at 667 n.4 (emphasis added). Our conclusion that such difficulties in reconstructing voir dire do Johnson, 40 F.3d at 667. Indeed, we have not foreclose an evidentiary hearing is expressly rejected the notion that our prior further supported by the Supreme Court’s precedent mandates relief in situations in resolution of similar situations. See which the prosecutor concedes that he or Miller-El v. Cockrell, — U.S. —, 123 S. she cannot remember the bases for a Ct. 1029, 1042-43 (2003) (noting that challenged strike: evidence presented at a Batson hearing [Harrison v. Ryan, 909 F.2d two years after voir dire “was subject to 84 (3d Cir. 1990),] is the usual risks of imprecision and distinguishable . . . because distortion from the passage of time,” but the prosecutor in that case nevertheless concluding that the Court of 15 Appeals erred in refusing to grant a must be given the first opportunity to rule certificate of appealability); Batson, 476 on the new evidence submitted. U.S. at 133 n.12 (remanding for a hearing As we have previously held, “[w]e despite the petitioner’s concession that it do not have authority under the federal would be all but impossible to reconstruct habeas statutes, 28 U.S.C. § 2241 or § the prosecutor’s rationale for the 2254, to remand a habeas corpus petition challenged strikes) (Burger, C.J., to a state court for an evidentiary hearing.” dissenting). Keller v. Petsock, 853 F.2d 1122, 1129 (3d Thus, while the retroactive Cir. 1988). Federal district courts, by application of the Supreme Court’s ruling contrast, may conduct such hearings. See in Batson undeniably causes many id.6 Moreover, even if we were able to problems, we do not believe the weight of remand directly to the state court, neither this burden should be borne solely by the this Court nor the Supreme Court has held Commonwealth. It is difficult in the “that the state courts should, after having context of a pre-Batson trial to fault foregone the opportunity to hold an Hardcastle’s counsel for failing to request evidentiary hearing and resolve the issue, an evidentiary hearing following voir dire. be given another opportunity to do so.” Id.

It is equally unfair to require the Therefore, to the extent that the Commonwealth to retry Hardcastle Commonwealth asserts in its post- without first being provided with the argument submission that we should grant opportunity to defend its conduct in the the writ conditioned upon a hearing in prior trial. Given the Batson Court’s state court, we reject this argument for the emphasis on the subjective intent of the same reasons we declined to do so in prosecutor, we find it difficult to imagine Keller: “Such a remedy would . . . a situation in which it would be appropriate to take the extraordinary step 6 of granting habeas corpus relief without We note that AEDPA “amended the first providing the state with a hearing at federal habeas statute in such a way as to which it could offer evidence in support of limit the availability of new evidentiary the challenged strikes if, as in this case, it hearings on habeas review.” Campbell v. desires to do so. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (citing 28 U.S.C. § 2254 (e)(2)). Finally, having concluded that However, even post-AEDPA, evidentiary further proceedings are required, we must hearings are permitted where, as here, the address the parties’ arguments as to the “state courts fail[] to resolve the factual appropriate forum. Although both sides issue on which [the petitioner’s] habeas request a hearing as an alternative remedy, petition rests.” Id. In such cases “the Hardcastle seeks to have the matter failure to develop the factual record handled by the District Court while the would not be [the petitioner’s] fault.” Id.

Commonwealth asserts that the state courts at 286-87.

16 contravene the policy underlying the Nygaard, J., dissenting. exhaustion requirement. State courts are I agree with most of the analysis certainly entitled to have the first and conclusions reached by the majority in opportunity to revie w fed eral its well-crafted and thorough opinion. I constitutional challenges to state disagree, however, with the remedy. The convictions. There is no requirement, Commonwealth (Appellant) argued before however, that they be given more than one us that “the Pennsylvania court should be opportunity to adjudicate these claims.” allowed to conduct a Batson hearing if any Id. at 1130 (citation omitted). Here, as in is deemed necessary.” (emphasis added). Keller, Hardcastle “has given the state I conclude that a hearing is not only courts their first opportunity, and they did unnecessary, but is unwarranted. not seize it. Therefore the federal district court must become the trier of fact.” Id. In its opinion, the District Court (footnote omitted). Thus, we will remand concluded that: this matter to the District Court for further The proper relief in this case development of the evidentiary record with is a new trial with the respect to Hardcastle’s Batson claim, and, opportunity to retry the if this claim ultimately fails, for petitioner before a properly consideration of the remaining issues selected jury. A new trial is presented in his habeas petition. especia lly appr opria te where, as here, the passage of time makes a new V. Conclusion evidentiary hearing on the petition impossible. Nearly twenty years have passed For the foregoing reasons, we will since Petitioner’s trial, such vacate the final judgment of the District a length of time that even Court and remand the matter for further Respondents [the proceedings consistent with this opinion. Commonwealth] admit[s] that an evidentiary hearing on Petitioner’s Batson claim is unlikely to be helpful.7 7 Also shortly after the trial and conviction, and on appeal to the three- judge Common Pleas panel, the prosecutor explained that she was unable to recall why she struck the African- American juror:

17 I find that the District Court’s reasons and is clear that the prosecutor discriminated reasoning are compelling and supported by by striking African-Americans. The the record. Hence, and essentially for the record is devoid of her intent. Moreover, reasons given by the District Court, I although the Appellant provides many respectfully dissent. reasons why any particular juror might have been struck, it has not proffered any evidence of why they were or anything that The Appellant argues that we would indicate a hearing on circumstantial should remand for a Batson hearing. I evidence of actual reasons or intent would believe, however, that the Appellant is be productive. judicially estopped from presenting its I would affirm the District Court’s “actual reasons,” given the district decision to issue the writ and grant attorney’s admission during the direct Petitioner Hardcastle a new trial. appeal that she could not remember her reasons, nor could she reconstruct the record. Our opinion in Johnson v. Love, 40 F.3d 658 (3d Cir. 1994), raises an interesting option for remand in certain cases for a hearing, allowing the state to attempt to meet its burden through circumstantial evidence of the prosecutor’s intent. I do not think that works well here. We have the entire record before us, and it How can I possibly now tell you why I challenged anybody? I don’t think that now, some six months after, I can tell you why I challenged somebody then. I don’t know how we can possibly have a hearing as to why I challenged a particular juror six months later.

Similarly, the prosecutor argued that it was impossible for her to reconstruct the record at that stage.

18