Hardcastle v. Horn , 368 F.3d 246 ( 2004 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Precedential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
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    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