Craig Saunders v. Franklin Tennis , 483 F. App'x 738 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2743
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CRAIG SAUNDERS,
Appellant
v.
FRANKLIN J. TENNIS, SUPERINTENDENT;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-cv-01916)
District Judge: Honorable Michael M. Baylson
____________
Submitted Under Third Circuit LAR 34.1(a)
May 24, 2012
Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges.
(Filed: May 29, 2012)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Craig Saunders appeals the District Court’s denial of his petition for writ of habeas
corpus, arguing that the Pennsylvania state courts and the District Court erred in rejecting
his claim under Batson v. Kentucky, 476 U.S. 79 (1986). We will affirm.
I
Because we write for the parties, who are well acquainted with the case, we
recount only the essential facts and procedural history.
In September 2004, Saunders was tried and convicted in Pennsylvania state court
on one count of conspiracy to commit escape of a prisoner. The Honorable Renee
Cardwell Hughes presided over his trial. During jury selection, the prosecution and the
defense each received nine peremptory strikes to be used during the selection of the
twelve-juror panel and one peremptory strike to be used during the selection of two
alternate jurors. After several individuals in the initial forty-person venire were stricken
for cause, remaining candidates were questioned individually. When individual voir dire
concluded, the proceedings went off the record and the parties took turns exercising their
peremptory strikes.
After the prosecutor had exercised eight of his nine peremptory strikes, defense
counsel objected that the prosecutor was discriminating against African-American women
in violation of Batson. Of the twenty-five jurors who were not stricken for cause, thirteen
were African-American women. At the time of Saunders’s objection, every one of the
prosecutor’s exercised strikes had been used to remove an African-American woman
from the venire. At that point, ten jurors had been selected: four African-American
women, three white women, two African-American males, and one white male.
2
There is substantial uncertainty regarding what occurred after Saunders’s
objection. The trial record reflects only the following ruling by the state court:
COURT: [Y]ou do understand that you cannot make out a Batson[] [challenge]
if there are four African American women on the panel. And that is the
dominant racial demographic on the panel. . . .
....
. . . If there was [sic] no African American females seated on this panel, you
can [sic] rightfully say the Commonwealth has stricken a particular class. But
. . . there have been four African American females that the Commonwealth
agreed to place on the panel, and at least one other African American female
the Commonwealth desires who was stricken by the Defense.
. . . So at this point, I cannot deem that you’ve made out a Batson[] claim.
The Commonwealth is not required to respond. But your objection is noted for
the record.
(App. 171.) The parties agree that the prosecutor never justified his peremptory strikes on
the record, but there are other indications that he offered race-neutral explanations off the
record.
In Judge Hughes’s opinion rejecting Saunders’s post-trial Batson motion, she
wrote:
The Commonwealth did strike eight (8) African American females during the
voir dire process and provided a race neutral basis for each strike. The
Commonwealth’s position was further supported by the fact that of the ten
jurors chosen, four (4) were African American females. These four were the
dominant race and gender of the panel. Given that African American females
comprised the majority group on the panel and each strike exercised by the
Commonwealth was race neutral, the appellant has no viable claim of
purposeful discrimination. Appellant’s Batson challenge fails as he cannot
make out a prima facie case showing that the circumstances created an
inference that the prosecutor struck one or more prospective jurors on the basis
3
of race.
(App. 504 (emphasis added) (citations omitted).) Although Judge Hughes’s opinion
purported to cite to pages in the trial transcript containing the prosecutor’s race-neutral
explanations, the referenced pages contain no such record. Nevertheless, the fact that the
prosecutor at some point provided race-neutral reasons for his strikes is corroborated by
both a certificate filed by Judge Hughes with the District Court pursuant to 28 U.S.C.
§ 2245 and the prosecutor’s testimony at a subsequent federal evidentiary hearing.
At the evidentiary hearing, the prosecutor testified that the parties and Judge
Hughes discussed the Batson challenge for ten to fifteen minutes in the robing room with
no court reporter present. According to the prosecutor, defense counsel restated the
Batson objection, both sides presented race-neutral reasons for their strikes, and the court
reviewed the race and gender of each stricken and seated juror. The prosecutor claimed
he struck the eight African-American women primarily pursuant to his general jury-
selection philosophies disfavoring social workers and psychiatrists, as well as former
arrestees and their relatives and friends, and preferring law enforcement personnel, public
employees, victims of crime, older jurors, and those born and raised outside of
Philadelphia.
Judge Hughes’s § 2245 certificate stated that she asked both sides to explain their
strikes at a sidebar and that the prosecutor “gave unequivocal, race-neutral explanations
for each of his peremptory challenges.” (App. 328.) The certificate also reiterated the
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basis for the Batson ruling:
After considering the facts and the responses of counsel, including the fact that
the majority of the jurors selected at the time of the motion were African-
American and of that number, exactly half of the jury was comprised of
African-American women, I concluded that neither side was engaging in race-
based strikes, and that objecting counsel had failed to establish a prima facie
showing of discrimination.
When I returned to the bench, I formally recited on the record, the race and
gender of each juror stricken by the prosecutor and the racial composition of
the eight jurors who had been chosen prior to the motion . . . in order to ensure
that the defendants understood from me why the motion was not being
entertained further as the defense could not make out a prima facie case. 1
(App. 328.)
After the Court ruled from the bench, the prosecutor sought to state his race-
neutral reasons on the record. But the Court demurred: “Having determined that the
defense had not demonstrated a prima facie case . . . there was no need for [the
prosecutor] to restate his reasons for striking the jurors.” (App. 328.) When jury
selection resumed, the prosecutor opted not to use his ninth peremptory strike.
After his post-trial motions were denied, Saunders raised his Batson claim pro se
on direct appeal to the Pennsylvania Superior Court. Finding that “a portion of the
discussion regarding [Saunders’s] Batson claim apparently occurred ‘off the record’” and
noting that “[t]he certified record contains nothing more than the trial court identifying
the race and gender of the potential jurors who were struck by the parties,” the
5
Pennsylvania Superior Court summarily found “no abuse of discretion” by the trial court.
Commonwealth v. Saunders, 946 A.2d 776, 782–84 (Pa. Super. Ct. 2008). The
Pennsylvania Supreme Court denied Saunders’s request for an appeal. Commonwealth v.
Saunders, 958 A.2d 1047 (Pa. 2008). Saunders then filed a habeas petition under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania
on May 4, 2009.
After the case proceeded to federal court, Magistrate Judge Timothy Rice held an
evidentiary hearing to develop the record regarding Saunders’s Batson claim. As
described above, the prosecutor testified regarding the trial proceedings surrounding
Saunders’s Batson claim and the prosecution’s justifications for striking eight African-
American women from the jury pool. The Magistrate Judge found that Judge Hughes had
ended her inquiry at the prima facie stage of the Batson inquiry, citing her statements at
trial, her post-trial opinion, and her § 2245 certificate. He disregarded her § 2245
certificate, finding that she offered inconsistent explanations for her Batson ruling, her
decision was based on unsupported facts and inaccurate statements of the law, and her
description of the off-the-record Batson discussion was implausible and inconsistent with
the prosecutor’s testimony. The Magistrate Judge further concluded that Judge Hughes’s
determination that the prosecutor’s strike pattern failed to create an inference of
1
Judge Hughes’s assertion in her § 2245 certificate that only eight jurors had been
chosen for the final panel at the time of Saunders’s Batson objection contradicts the trial
record, which shows that ten jurors had been seated at that time. (See App. 171.)
6
discrimination sufficient to establish a prima facie Batson claim was contrary to clearly
established Supreme Court precedent. Therefore, he accorded no deference to Judge
Hughes’s decision and proceeded to determine de novo whether Saunders’s Batson claim
was meritorious at step three based on the plausibility of the prosecutor’s race-neutral
explanations for his strikes. The Magistrate Judge concluded that Saunders’s Batson
claim ultimately failed because “the evidence . . . [did] not establish that the
Commonwealth engaged in purposeful discrimination against African-American and/or
female jurors.” (App. 357.) Accordingly, the Magistrate Judge recommended that
Saunders’s habeas petition be denied.
In a comprehensive forty-three page opinion, the District Court likewise concluded
that Saunders’s habeas petition should be denied because his Batson claim failed. In that
opinion, the District Court disagreed with the Magistrate Judge regarding the weight to be
given to Judge Hughes’s certificate and the extent of her Batson analysis at trial.
Affording the § 2245 certificate the presumption of correctness generally applied to state
court findings under § 2254(e)(1) and finding “nothing in the record to contradict Judge
Hughes’s statement that [the prosecutor] gave ‘unequivocal, race neutral explanations for
each of his peremptory challenges’ in the off the record conversation,” the District Court
found that Judge Hughes had proceeded through a full, three-step Batson analysis at trial,
albeit only implicitly and largely off the record. Saunders v. Tennis, No. 09-1916, 2011
WL 2117559, at *10, *13–14 (E.D. Pa. May 26, 2011). Therefore, although the District
7
Court agreed with the Magistrate Judge that Judge Hughes had “incorrectly interpreted
Batson at trial” and in her post-trial opinion with respect to Saunders’s prima facie
burden, id. at *11–12, the District Court applied the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254, and affirmed the state-court determination that
“Saunders did not meet his burden of showing that purposeful racial discrimination, and
not the proffered explanation[s], actually motivated the prosecutor’s conduct,” id. at *15.
Nevertheless, the District Court also conducted a thorough de novo analysis of the
plausibility of the prosecutor’s race-neutral justifications, ultimately reaching the same
conclusion as the Magistrate Judge: “[W]hile the pattern of strikes and other statistical
evidence was sufficient to meet Saunders’s[] burden at step one, Saunders has failed to
meet his steps two and three burden of persuasion to establish that the Commonwealth
exercised its peremptory strikes based on discriminatory motivation.” Id. at *16–17.
The District Court granted a certificate of appealability on Saunders’s Batson
claim—specifically as to the degree of deference owed to Judge Hughes’s § 2245
certificate and whether the prosecutor “exercised [his] peremptory strikes in a racially
discriminatory manner in violation of Batson” (App. 3)—and Saunders timely appealed.2
II
We exercise plenary review over the District Court’s denial of habeas corpus, and
we review its factual findings for clear error. United States v. Lilly, 536 F.3d 190, 195
8
(3d Cir. 2008). Under AEDPA, 28 U.S.C. § 2254(d), we may not grant Saunders habeas
relief unless the state court’s Batson ruling was “contrary to or an unreasonable
application of clearly established Supreme Court law, or . . . involve[d] an unreasonable
determination of the facts.” Bond v. Beard, 539 F.3d 256, 263 (3d Cir. 2008) (citing 28
U.S.C. § 2254(d)(1)–(2)).
A
It is well-established under Batson that “the Fourteenth Amendment’s Equal
Protection Clause prohibits a prosecutor from using a peremptory challenge to strike a
prospective juror solely on account of race.” Holloway, 355 F.3d at 719 (citing Batson,
476 U.S. at 88). The Batson analysis proceeds in three steps:
First, the trial court must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory challenge on the
basis of race. Second, if the showing is made, the burden shifts to the
prosecutor to present a race-neutral explanation for striking the juror in
question. Although the prosecutor must present a comprehensible reason,
“[t]he second step of this process does not demand an explanation that is
persuasive, or even plausible”; so long as the reason is not inherently
discriminatory, it suffices. Third, the court must then determine whether the
defendant has carried his burden of proving purposeful discrimination. This
final step involves evaluating “the persuasiveness of the justification”
proffered by the prosecutor, but “the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the opponent of the strike.”
Rice v. Collins, 546 U.S. 333, 338 (2006) (citations omitted) (quoting Purkett v. Elem,
514 U.S. 765, 767–68 (1995) (per curiam)); accord Miller-El v. Dretke, 545 U.S. 231,
2
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254, and
we have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
9
251–52 (2005). At the third step, “something more than a ‘terse,’ ‘abrupt’ comment that
the prosecutor has satisfied Batson” is required. Riley v. Taylor, 277 F.3d 261, 289 (3d
Cir. 2001) (citations omitted).
Saunders argues—and both the Magistrate Judge and the District Court found—
that the state court’s step-one determination that Saunders failed to demonstrate a prima
facie case was contrary to Batson. We agree. First, the state court unreasonably applied
Batson when it rejected Saunders’s objection on the basis that four African-American
women had been selected for the jury, making African-American women the best-
represented demographic on the panel. Batson makes clear that “the State’s privilege to
strike individual jurors through peremptory challenges” is restricted by the Equal
Protection Clause. Batson, 476 U.S. at 89 (emphasis added). Accordingly, “a
prosecutor’s purposeful discrimination in excluding even a single juror on account of race
cannot be tolerated . . . [and] a prosecutor . . . can find no refuge in having accepted
other[] venirepersons of that race for the jury.” Holloway, 355 F.3d at 720. Second, the
prosecutor’s pattern of striking eight African-American women in a row, thus using all of
his strikes exercised at that point to remove African-American women, was clearly
sufficient to satisfy Saunders’s step-one burden. See, e.g., Batson, 476 U.S. at 97 (noting
that a pattern of strikes against black jurors can create an inference of discrimination);
Williams v. Beard, 637 F.3d 195, 215 (3d Cir. 2011) (use of 85% of peremptory strikes to
eliminate African-Americans was sufficient); Brinson v. Vaughn, 398 F.3d 225, 235 (3d
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Cir. 2005) (use of thirteen out of fourteen strikes against African-American jurors was
“alone sufficient to establish a prima facie case”); see also Williams, 637 F.3d at 214(noting that step one “is not intended to be particularly onerous”).
Because we conclude that Saunders satisfied his step-one burden by objecting on
the basis of the prosecutor’s use of eight out of eight strikes against African-American
women, it would have been “contrary to” or an “unreasonable application of” Batson for
the state court to end its inquiry there. Bond, 539 F.3d at 264; Hardcastle v. Horn, 368
F.3d 246, 259 (3d Cir. 2004). The parties dispute whether that occurred, however, and
the Magistrate Judge and the District Court likewise disagree.3 Relatedly, the parties
dispute the degree of deference owed to Judge Hughes’s § 2245 certificate, which could
inform the factual determination of whether she ruled on Saunders’s Batson claim at step
one or proceeded to steps two and three. Indeed, the District Court found that the
Magistrate Judge did not sufficiently defer to the certificate.4 If the state court failed to
3
Our precedents confirm the difficulty of gleaning from ambiguous state trial
court rulings which Batson steps were performed. See Bond, 539 F.3d at 268 (finding
that the state trial court’s post-trial explanation of its Batson ruling showed it conducted a
step-three analysis, curing its “inartful[]” statements at trial suggesting that it stopped at
step two); Hardcastle, 368 F.3d at 256 (noting that the Pennsylvania Supreme Court first
conflated steps one and two and then “proceeded to step three, only to conclude that
Hardcastle had failed to establish a prima facie case of discrimination, thus indicating
that, technically speaking, its analysis never proceeded beyond step one”).
4
The degree of deference owed to a state judge’s § 2245 certificate is an open
question. See Weidner v. Thieret, 932 F.2d 626, 633 (7th Cir. 1991) (“Where state trial
judges fail to adequately develop the relevant facts so that not even implicit findings can
be gleaned from the record, the habeas procedure is better served by a de novo hearing
11
conduct either step two or three, “we would not apply AEDPA deference” to its Batson
ruling and “would review the issue de novo.” Bond, 539 F.3d at 264. The
Commonwealth also contends that the evidentiary hearing was improper under both
Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and § 2254(e)(2). If we concluded that the
prosecutor never offered race-neutral justifications at step two or that the state court never
conducted a step-three analysis, an “evidentiary hearing at which the prosecutor might
rely upon his recollection of the voir dire and make reference to his trial notes would
seem warranted.” Holloway, 355 F.3d at 725; accord, e.g., Coombs v. Diguglielmo, 616
F.3d 255, 263 (3d Cir. 2010); Brinson, 398 F.3d at 235 (remanding for an evidentiary
hearing and de novo review where the state court’s failure to proceed to step two was
contrary to Batson). The propriety of the evidentiary hearing would further depend on
whether Saunders diligently sought to amplify the Batson-challenge record in state court.
See 28 U.S.C. § 2254(e)(2).
These disputed issues raise difficult questions best left for another day because
they are not outcome-determinative here. Even if we grant Saunders every benefit of the
doubt—i.e., (1) by assuming that the federal evidentiary hearing was properly held; (2) by
declining to afford AEDPA deference; and (3) by accepting Saunders’ argument that no
than by allowing state judges to cast their minds back to the state trial.” (citation
omitted)); Wang v. Withworth, 811 F.2d 952, 956–57 (6th Cir. 1987) (rejecting a judge’s
certificate asserting that he granted a mistrial where the trial record plainly showed he
found a lack of sufficient evidence to convict); Strader v. Troy, 571 F.2d 1263, 1267 (4th
Cir. 1978) (rejecting a trial judge’s certificate on the basis that it was “equivocal”).
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deference is owed to Judge Hughes’s certificate—we agree fully with the District Court
that Saunders’s Batson claim fails at step three. For the reasons set forth in the District
Court’s de novo analysis, Saunders, 2011 WL 2117559, at *16–17, Saunders has not
satisfied his burden of showing purposeful discrimination in the prosecutor’s peremptory
strikes because he has not discredited the prosecutor’s race-neutral reasons or further
demonstrated discriminatory motive. Cf., e.g., Miller-El, 545 U.S. at 240–63 (describing
ways in which Batson objectors may show that the opponent’s race-neutral explanations
are pretextual or implausible). Therefore, we will affirm the District Court’s judgment
denying Saunders’s petition for writ of habeas corpus.
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