Holloway v. Horn

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-22-2004
Holloway v. Horn
Precedential or Non-Precedential: Precedential
Docket No. 01-9009
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PRECEDENTIAL
Filed January 22, 2004
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-9009/9010
ARNOLD HOLLOWAY,
Appellant, No. 01-9009
v.
MARTIN HORN, SECRETARY, DOC; DONALD VAUGHN,
SUPERINTENDENT, SCI-GRATERFORD; THE DISTRICT
ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE
ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA,
Appellants, No. 01-9010
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 00-cv-01757)
District Judge: Hon. Franklin S. VanAntwerpen
Argued October 27, 2003
Before: SLOVITER, MCKEE and COWEN, Circuit Judges
(Filed: January 22, 2004)
2
Matthew C. Lawry, Esq.
Billy H. Nolas, Esq.
David W. Wycoff, Esq. (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Counsel for Appellant/Cross
Appellee
Thomas W. Dolgenos, Esq. (Argued)
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Counsel for Appellees/Cross
Appellants
OPINION OF THE COURT
COWEN, Circuit Judge.
A Philadelphia jury convicted Arnold Holloway of first-
degree murder for the brutal slaying of Richard Caldwell
and imposed a sentence of death. Holloway raises several
claims of constitutional error in this federal habeas corpus
proceeding. We need only reach his contention that the
Commonwealth of Pennsylvania used its peremptory strikes
to exclude African-Americans from the petit jury in violation
of the Equal Protection Clause and Batson v. Kentucky, 476
U.S. 79 (1986). The District Court held that Holloway
procedurally defaulted his Batson claim by failing to raise
it on direct appeal in state court, and alternatively held that
the claim was without merit. We conclude that Holloway
exhausted his Batson claim both on direct appeal and in
state post-conviction proceedings, and committed no
procedural default to bar review in federal court. On the
merits, the use by the Commonwealth of eleven of its twelve
peremptory strikes to exclude African-Americans from the
jury, together with the failure to offer race-neutral reasons
for the strikes, particularly of venireperson John Hackley,
3
Sr., violated the principles of Batson. Accordingly, we will
reverse the District Court’s judgment and remand for
issuance of the writ conditioned upon the Commonwealth’s
right to conduct a retrial.
I. Background & Procedural History
In the early morning hours of May 16, 1980, Philadelphia
police found the body of seventeen-year-old Richard
Caldwell on a secluded North Philadelphia street corner,
dead from strangulation and two shotgun wounds to the
head. The murder remained unsolved until January 1985,
when the police arrested a neighborhood heroin dealer,
Shirley Baker, who was wanted for sentencing on several
drug-related convictions and had become a suspect in the
murder. While in custody, Baker told the police that her
fellow dealers, Holloway and Danny Freeman, had
murdered Caldwell.
According to Baker, Holloway was a middleman who
supplied heroin to Baker, Freeman, and Caldwell for street-
level distribution. Holloway, in turn, answered to an
individual named Leroy Johnson. Johnson came to believe
that Caldwell was “messing up the money” and otherwise
interfering with his business plans, and he instructed
Holloway to kill Caldwell. Baker claimed that she was in
her apartment with Johnson ingesting cocaine around
midnight on May 16, when Freeman and Holloway arrived
and asked to use Johnson’s van. Johnson informed
Holloway that Caldwell was in the van, and Holloway
replied, “I can take care of that now.” Holloway and
Freeman retrieved a shotgun from Holloway’s upstairs
apartment and departed in the van. They returned around
thirty minutes later, at which point Holloway whispered
with Johnson about having tied up and strangled Caldwell.
Holloway, Johnson, and Freeman then left Baker’s
apartment, with Johnson asking Holloway if he had cleaned
up the van.
In May 1985, Philadelphia police located Holloway and
took him into custody. According to the Commonwealth’s
trial evidence, Holloway confessed to the murder while in
custody by providing a typewritten statement to Detective
4
Ernest Gilbert, which he refused to sign. Holloway’s
statement was largely consistent with Baker’s account of
the murder. Holloway added, however, that he murdered
Caldwell because of a threat to his own life from Johnson.
He admitted that he and Freeman tied Caldwell’s hands
together, drove the van several blocks from the apartment,
and pushed Caldwell into the street. They strangled
Caldwell by taking turns pulling at a belt around his neck,
and then shot him twice in the head at close range.
The Commonwealth charged Holloway in the Philadelphia
County Court of Common Pleas with first-degree murder,
criminal conspiracy, and possession of an instrument of
crime. Pretrial litigation arose primarily from the fact that,
days prior to Holloway’s arrest, a jury had acquitted his
alleged accomplice Danny Freeman on charges of
murdering Caldwell. Holloway moved to suppress his
custodial statement, claiming, inter alia, that he never
made it and would not have done so because he knew at
the time of his arrest that Freeman had been acquitted. The
trial court denied the suppression motion. The trial court
also granted a Commonwealth motion to preclude
discussion before the jury of Freeman’s acquittal. That
ruling barred Holloway from arguing that his custodial
statement should be disbelieved because he and Detective
Gilbert both knew of Freeman’s acquittal at the time the
statement was purportedly made.
The voir dire examination of prospective jurors, discussed
in greater detail below, was conducted over the course of
three days. The Commonwealth exercised a total of twelve
peremptory challenges, eleven of which were used to strike
African-Americans. Holloway, an African-American, raised
objections, created a record as to the race of the stricken
venirepersons, and moved for a mistrial on the ground that
a pattern of purposeful discrimination had been
established. The prosecutor responded by explaining his
reasons for three of the strikes, but the trial court rendered
no express or otherwise articulated ruling on Holloway’s
objections; instead, it implicitly rejected the Batson
challenge by letting the matter proceed to trial.
At trial the Commonwealth relied primarily upon the
testimony of Shirley Baker and Detective Gilbert. Holloway
5
testified in his own defense, claiming that Detective Gilbert
fabricated his custodial statement. Holloway’s wife, Delores
Kareem, bolstered this assertion by testifying regarding a
phone call she received from Holloway shortly after he
made the purported statement. Holloway also called as a
witness the victim’s adopted brother, Alfonso Walker, who
testified that other drug dealers were angry with and had
assaulted Caldwell shortly before his death. Finally,
Holloway presented an alibi defense, seeking to establish
that he was intoxicated and at the home of Carmella Davis
the night of the murder, in support of which he presented
the testimony of Davis and her then-boyfriend.
The jury convicted Holloway on all counts after a three-
day trial. A capital sentencing proceeding was conducted
immediately following the verdict. The Commonwealth
rested on its trial evidence at sentencing, while Holloway
presented his wife as the sole sentencing witness. The jury
found the two aggravating circumstances asserted by the
Commonwealth: (1) Holloway paid or was paid by another
person, had contracted to pay or be paid by another
person, or had conspired to pay or be paid by another
person for the killing, 42 Pa. Cons. Stat. § 9711(d)(2); and
(2) the killing was effectuated by means of torture, id. at
§ 9711(d)(8). The jury also found the two mitigating
circumstances upon which it was charged: (1) Holloway had
no significant history of prior convictions (to which the
Commonwealth had stipulated), id. at § 9711(e)(1); and (2)
evidence pertaining to Holloway’s character, id. at
§ 9711(e)(8). It concluded that the two aggravating
circumstances outweighed the two mitigating
circumstances and imposed a death sentence for the
murder conviction. The court also sentenced Holloway to
consecutive terms of five to ten years for conspiracy to
commit murder, and two and one-half to five years for
possessing an instrument of crime.
Holloway pursued a direct appeal as of right to the
Pennsylvania Supreme Court, which affirmed the
convictions and sentences. Commonwealth v. Holloway, 572
A.2d 687 (Pa. 1990) (“Holloway I”). In 1991, Holloway filed
a petition for state-court collateral review under the
Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat.
6
§§ 9541-9546 (“PCRA”). The trial court denied the petition
after an evidentiary hearing, and the Pennsylvania Supreme
Court affirmed. Commonwealth v. Holloway, 739 A.2d 1039(1999) (“Holloway II”).
On April 4, 2000, Holloway timely filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of
Pennsylvania, raising sixteen grounds for relief. The District
Court conducted a limited evidentiary hearing regarding the
purported procedural default of Holloway’s Batson claim,
and thereafter issued an opinion denying relief on all trial-
phase claims. Holloway v. Horn, 161 F. Supp. 2d 452 (E.D.
Pa. 2001) (“Holloway III”). The District Court held in
pertinent part that the Batson claim was procedurally
defaulted and, in any event, was without merit. As to the
sentencing phase, the District Court concluded that
Holloway’s counsel provided ineffective assistance in failing
to investigate mental-health issues and request the
assistance of a mental-health expert. The District Court
thus issued the writ conditioned upon the Commonwealth’s
right to conduct a new sentencing proceeding. Holloway
timely appealed (C.A. No. 01-9009), and the Commonwealth
timely cross-appealed (C.A. No. 01-9010).
II. Jurisdiction & Standard of Review
We granted Holloway a certificate of appealability to raise
six issues on appeal, including whether the Commonwealth
used its peremptory strikes in violation of Batson.1 Given
1. The other five issues are as follows: (1) whether the trial court
improperly excluded evidence that Holloway and Detective Gilbert were
aware of Danny Freeman’s acquittal, offered for the limited purpose of
showing Holloway’s state of mind and the motivation of Detective Gilbert
at the time of the supposed confession; (2) whether the prosecutor’s guilt
phase argument was egregiously improper and violated due process; (3)
whether Holloway’s conviction of the crime of conspiracy, which was
barred by the statute of limitations, violated due process and the ex post
facto clause; whether the trial court’s instructions on accomplice liability
violated due process; and together, whether these violations prejudicially
affected the jury’s deliberations on the charge of first-degree murder; (4)
whether the jury instructions unconstitutionally indicated that the jury
had to unanimously find any mitigating circumstances before giving it
effect in its sentencing decision; and (5) whether the District Court erred
in holding these claims procedurally defaulted.
7
our disposition of the Batson issue, we need not address
Holloway’s remaining claims. Nor do we reach the
Commonwealth’s challenge on cross-appeal to the District
Court’s issuance of the writ based on its finding that
counsel provided ineffective assistance at sentencing.
We have appellate jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(a). We conduct a plenary review of the
District Court’s legal conclusions and review its factual
conclusions for clear error. Whitney v. Horn, 280 F.3d 240,
249 (3d Cir. 2002). Our review is also plenary as to the
District Court’s determinations regarding exhaustion and
procedural default. Id.; Hull v. Kyler, 190 F.3d 88, 97 (3d
Cir. 1999).
III. The Batson Claim
1. Procedural Default
In Holloway II, the Pennsylvania Supreme Court held
that Holloway’s Batson claim was procedurally defaulted,
because it had not been raised before the PCRA trial court.
In Holloway III, the District Court agreed with the
Pennsylvania Supreme Court that the Batson claim had
been defaulted. As discussed below, we find no procedural
default.
In its reading of the record, the District Court concluded
that Holloway committed a procedural default because it
believed that the Pennsylvania Supreme Court refused on
the PCRA appeal to reach the merits of the Batson claim
due to a waiver caused by counsel’s failure to raise the
Batson claim on direct appeal. The record is clear, however,
that the Pennsylvania Supreme Court did not fault
Holloway for counsel’s failure to raise the Batson claim on
direct appeal. Rather, the Court believed (mistakenly) that
Holloway had not raised his Batson claim at the PCRA trial
level, and held that, for that reason alone, the Batson
argument was waived from appellate review on the merits.
See Holloway II, 739 A.2d at 1044. Relying upon its
decision in Commonwealth v. Albrecht, 720 A.2d 693 (Pa.
1998) which held that a PCRA petitioner’s waiver at the
trial level would only be excused upon a demonstration of
ineffectiveness of counsel in waiving the issue, the Court
8
addressed Holloway’s Batson claim solely as an assertion of
counsel’s ineffectiveness in waiving the claim. Holloway II,
739 A.2d at 1044-46.
Given this record, the District Court erred in concluding
that Holloway committed a procedural default due to
counsel’s failure to raise the Batson claim on direct appeal.
The Pennsylvania Supreme Court never expressly or
otherwise held the claim defaulted for that reason in
Holloway II. A federal habeas court is “not bound to enforce
a state procedural rule when the state itself has not done
so, even if the procedural rule is theoretically applicable to
[the] facts.” Smith v. Freeman, 892 F.2d 331, 337 (3d Cir.
1989); see also Harris v. Reed, 489 U.S. 255, 263 (1989)
(“[A] procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the
last state court rendering a judgment in the case clearly
and expressly states that its judgment rests on a state
procedural bar.”) (citations and quotation marks omitted).
For these reasons, we hold that the Batson claim was not
defaulted.
2. Exhaustion
We must next determine whether Holloway exhausted
state-court remedies on his Batson claim, which Holloway
claims to have done on direct appeal. The District Court
rejected that contention and the Commonwealth urges
affirmance on that ground. The Commonwealth argues that
the exhaustion requirement was not met because Holloway
raised the Batson argument to the Pennsylvania Supreme
Court on direct appeal solely in a pro se supplemental brief,
and not in his counseled appellate brief. We conclude that
Holloway satisfied the exhaustion requirement on direct
appeal.
A federal court will not grant a state prisoner’s petition
for a writ of habeas corpus unless available state-court
remedies on the federal constitutional claim have been
exhausted. 28 U.S.C. § 2254(b)(1); Stevens v. Del. Corr. Ctr.,
295 F.3d 361, 369 (3d Cir. 2002). The exhaustion
requirement is satisfied only if the petitioner can show that
he fairly presented the federal claim at each level of the
established state-court system for review. O’Sullivan v.
9
Boerckel, 526 U.S. 838, 844-45 (1999); Whitney, 280 F.3d
at 250.2 “Fair presentation” of a claim means that the
petitioner “must present a federal claim’s factual and legal
substance to the state courts in a manner that puts them
on notice that a federal claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)
(citations omitted).
After the denial of his post-verdict motion for a new trial,
Holloway was appointed new counsel for his direct appeal
as of right. Counsel did not brief a Batson issue to the
Pennsylvania Supreme Court, although trial counsel had
preserved that issue by moving for a mistrial based on the
prosecutor’s pattern of striking potential African-American
jurors. Holloway himself, however, raised a Batson claim in
a pro se appellate brief that he filed several months after
the counseled brief was filed. He also filed an application
for permission to file the pro se brief as a supplement to the
counseled brief. Holloway argued the legal and factual
substance of a claim of purposeful discrimination, cited the
Equal Protection Clause as well as Batson and other
relevant case law, and claimed that the trial court erred in
failing to grant his motion for a mistrial based on the
prosecutor’s pattern of strikes and the failure to offer race-
neutral explanations. App. Vol. III at 442. Holloway
objected in particular to the strikes of venirepersons Robert
Keel and John Hackley, Sr. (discussed infra), and claimed
that “the prosecutor used his peremptory challenges to
strike African-American people from sitting on the jury.” Id.
at 442-43.
The Pennsylvania Supreme Court entered an order
deferring consideration of Holloway’s application to file the
pro se supplemental brief until the time of oral argument
on the appeal. App. Vol. III at 450. In its opinion in
Holloway I, however, the court made no mention of the pro
se brief or the Batson claim, and issued no order or
2. The established system for review in Pennsylvania capital cases is an
appeal from the trial level directly to the Pennsylvania Supreme Court;
this system applies both on direct review following conviction and
sentencing, see 42 Pa. Cons. Stat. §§ 722(4), 9711(h)(1), and in PCRA
proceedings, see id. at § 9546(d).
10
decision on whether it had accepted or rejected the pro se
brief for consideration.
The District Court held a limited evidentiary hearing to
determine whether Holloway could show “cause” to
overcome what the District Court perceived to be a
procedural default caused by counsel’s failure to raise the
Batson claim on direct appeal.3 The lone witness at the
federal hearing was Holloway’s counsel on direct appeal,
who testified that although he could recall no discussion on
the Batson claim at oral argument, the Pennsylvania
Supreme Court indicated that it would take all issues
presented under advisement, including those presented in
the pro se supplemental brief. See App. Vol. IV at 625-26
(“[T]he Court said it would consider all the matters
contained in the pleadings set forth and the Batson issue
was one of them.”); id. at 626 (“[T]he Court even noted the
fact that it would consider the Batson issue or at least his
pro se brief.”); id. at 642 (“[T]he Court had duly noted that
it had received the pro se brief, was taking it under
advisement, taking all the matters raised under advisement
after oral argument.”). The Commonwealth, for its part,
presented no evidence at the federal hearing to rebut or
cast any doubt upon counsel’s recollection that the state
court accepted the pro se supplemental brief for
consideration. On this record, Holloway has met his burden
of showing that he exhausted the Batson claim on direct
appeal, as he placed the state court on notice of the factual
and legal substance of his federal equal protection
3. A federal court may not consider the merits of a procedurally defaulted
claim unless the petitioner establishes “cause and prejudice” or a
“fundamental miscarriage of justice” to excuse the default. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). To show “cause,” the petitioner
“must demonstrate some objective factor external to the defense that
prevented compliance with the state’s procedural requirements.” Id. at
753; see also Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir.), cert.
denied, 123 S. Ct. 195 (2002).
However, Holloway committed no procedural default on direct appeal,
as discussed below, as he exhausted the Batson claim by way of his pro
se brief. Thus, even if he violated a state procedural rule in the PCRA
proceedings (which he did not), the substance of his Batson claim can be
reviewed on the merits by virtue of the direct appeal exhaustion.
11
argument and raised the claim through the established
system for review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176
n.8 (3d Cir. 1999) (noting in a capital case that counseled
petitioner exhausted claims by presenting them in a pro se
brief to the Pennsylvania Supreme Court).
The Commonwealth argues that we cannot rely on the
testimony of Holloway’s direct appeal counsel because the
District Court lacked authority under 28 U.S.C. § 2254(e)(2)
to hold an evidentiary hearing.4 Appellees Br. at 55-57. This
Court has held, however, that it is within a District Court’s
authority to grant a hearing on a petitioner’s ability to
establish cause to excuse a procedural default, and
therefore “§ 2254(e)(2) is inapplicable to those hearings.”
Cristin v. Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert.
denied, 537 U.S. 897, 123 S. Ct. 195 (2002). Appellate
counsel’s testimony regarding the direct appeal proceedings
fell within the scope of the evidentiary hearing, which was
conducted to determine whether there was any “objective
factor external to the defense” that prevented counsel from
pressing the Batson claim in the counseled direct appeal
brief. Thus, the evidence adduced at the hearing is properly
considered for purposes of the exhaustion analysis.
Our conclusion that Holloway exhausted the Batson
claim by means of his pro se brief is fully supported by the
Pennsylvania Supreme Court’s practice, at the time of
4. Section 2254(e)(2) provides as follows:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
12
Holloway’s appeal, of considering issues raised pro se even
if counseled briefs were filed. In a capital case decided while
Holloway’s direct appeal was pending, Commonwealth v.
Billa, 555 A.2d 835 (Pa. 1989), the Pennsylvania Supreme
Court noted that appellate counsel neglected to raise an
issue concerning the trial court’s failure to render an
appropriate jury instruction. The appellant himself,
however, raised a challenge on that basis in a pro se
supplemental brief. Id. at 842. The Pennsylvania Supreme
Court granted permission to file the pro se brief as a
supplement to the counseled brief and further granted relief
on the merits of the claim. Id. In several subsequent capital
cases, the Pennsylvania Supreme Court again considered
the merits of pro se claims raised by a counseled appellant.
See, e.g., Commonwealth v. Williams, 615 A.2d 716, 720
n.6 (Pa. 1992); Commonwealth v. Zook, 615 A.2d 1, 22 (Pa.
1992); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa.
1991); Commonwealth v. Tilley, 595 A.2d 575, 579 n.9 (Pa.
1991).
The Pennsylvania Supreme Court first indicated that it
might change course with regard to accepting pro se
supplemental briefs in Commonwealth v. Ellis, 626 A.2d
1137 (Pa.1993). In Ellis, a non-capital case, the Court
affirmed the intermediate Superior Court’s practice of
refusing to entertain pro se briefs if the appellant is
represented by counsel. The Superior Court had held that
it “will accept for filing pro se appellate briefs, but [ ] will
not review a pro se brief if a counseled brief has been filed,
either before, simultaneously with, or after the pro se, due
to the judicial confusion and delay that ensues.”
Commonwealth v. Ellis, 581 A.2d 595, 600 (Pa. Super. Ct.
1990). The Pennsylvania Supreme Court approved this
practice. It explained that criminal appellants possess no
constitutional right to hybrid representation and, therefore,
a refusal to consider pro se briefs from counseled litigants
is warranted so as not to “confuse and overburden the
court.” 626 A.2d at 1140; see also Commonwealth v.
Rogers, 645 A.2d 223, 224 (Pa. 1994) (explaining that “Ellis
specifically condemns the practice of filing separate pro se
briefs” and holding that an appellant cannot terminate
counsel after the filing of a counseled brief “simply because
he wishes to file pro se appellate briefs”). The Pennsylvania
13
Supreme Court then applied the Ellis principle in a direct
capital appeal, Commonwealth v. Reid, 642 A.2d 453 (Pa.
1994), where the appellant filed a pro se supplemental brief
raising four claims of error after the counseled brief had
been filed. Citing its reasoning in Ellis, the Court rejected
the supplemental brief, holding that “Appellant’s pro se
claims are improper and will not be considered by this
Court.” Id. at 462.
Ellis and Reid marked a retreat from the consideration of
pro se claims in counseled cases. Prior case law indicates,
however, that the Pennsylvania Supreme Court generally
entertained the merits of supplemental pro se claims. The
Commonwealth disagrees and argues that “the Ellis rule is
well-known in Pennsylvania, and has been for a very long
time.” Appellee/Cross-Appellant’s Br. at 61. In support of
this assertion, the Commonwealth relies upon various
decisions of the intermediate Superior Court from 1985 and
earlier, indicating that pro se supplemental briefs had long
been disfavored in the Superior Court. Id. The present case,
however, is a capital proceeding, which entails an appeal
taken directly to the Pennsylvania Supreme Court. It is
thus irrelevant to our inquiry whether the intermediate
Superior Court had a practice of rejecting pro se
supplemental briefs in non-capital cases prior to the time of
Holloway’s appeal. As noted, Pennsylvania Supreme Court
decisions around the time of Holloway’s direct appeal are
fully consistent with the record here that the Court
assented to consideration of the pro se supplemental
claims, including the Batson issue. We simply have no
reason to believe that the Court refused to consider
Holloway’s pro se brief, particularly since such a refusal
would have been contrary to its practice at the time.
The District Court rejected Holloway’s argument of
exhaustion on direct appeal primarily because it faulted
Holloway for failing to raise his exhaustion argument
during the PCRA proceedings. Holloway III, 161 F. Supp. 2d
at 502 n.38. It is well-settled that “once [a] federal claim
has been fairly presented to the state courts, the
exhaustion requirement is satisfied.” Picard v. Connor, 404
U.S. 270, 275 (1971). As discussed, “fair presentation”
requires raising the federal claim itself; a petitioner has no
14
separate obligation to present a federal exhaustion
argument to the state courts for review. Moreover, if a claim
is exhausted on direct review but the state court fails to
adjudicate the claim, the petitioner need not reassert the
claim in a state post-conviction proceeding. Thus,
Holloway’s decision to reassert the Batson claim on PCRA
review does nothing to diminish his exhaustion of the claim
on direct appeal.
Even if the Pennsylvania Supreme Court were to have
held on the PCRA appeal that Holloway’s claim was
previously litigated by virtue of the pro se direct appeal
brief and therefore barred from state collateral review, such
a finding would not have prevented a federal court from
reaching the merits. See Ylst v. Nunnemaker, 501 U.S. 797,
805 (1991); Lambert v. Blackwell, 134 F.3d 506, 519-20 (3d
Cir. 1997). It is “too obvious to merit extended discussion
that whether the exhaustion requirement of 28 U.S.C.
§ 2254(b) has been satisfied cannot turn upon whether a
state appellate court chooses to ignore in its opinion a
federal constitutional claim squarely raised in petitioner’s
brief in the state court.” Smith v. Digmon, 434 U.S. 332,
333 (1978) (per curiam); see also McMahon v. Fulcomer, 821
F.2d 934, 941 (3d Cir. 1987); Swanger v. Zimmerman, 750
F.2d 291, 295-96 (3d Cir. 1984). Thus, the Pennsylvania
Supreme Court’s failure to rule on the merits of Holloway’s
Batson claim on direct appeal can have no bearing on our
exhaustion analysis. Consequently, we must reject the
District Court’s conclusion that Holloway “defaulted” his
exhaustion argument by failing to raise that argument on
PCRA review.
Holloway fairly presented and exhausted his Batson claim
on direct appeal. “A petitioner who has raised an issue on
direct appeal . . . is not required to raise it again in a state
post-conviction proceeding.” Lambert, 134 F.3d at 513; see
also Peoples v. Fulcomer, 882 F.2d 828, 829 n.1 (3d Cir.
1989). Because Holloway’s direct appeal exhaustion is
sufficient in itself to bring the Batson claim before a federal
habeas court for review, we turn to the merits of his claim.5
5. We note, in any event, that Holloway also exhausted the Batson claim
on PCRA review, as he presented the claim in his Amended PCRA
Petition and again on appeal to the Pennsylvania Supreme Court.
Furthermore, as explained above, Holloway committed no default of the
claim on PCRA review.
15
3. Scope of review
Under the Anti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a state prisoner’s habeas petition must
be denied as to any claim that was “adjudicated on the
merits in State court proceedings” unless the adjudication
was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1) & (2). We have interpreted § 2254(d)’s
“adjudication on the merits” language to mean that “when,
although properly preserved by the defendant, the state
court has not reached the merits of a claim thereafter
presented to a federal habeas court, the deferential
standards provided by AEDPA . . . do not apply.” Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001); see also Everett v.
Beard, 290 F.3d 500, 507-08 (3d Cir. 2002) (“The AEDPA
standard of review does not apply unless it is clear from the
face of the state court decision that the merits of the
petitioner’s constitutional claims were examined in light of
federal law as established by the Supreme Court of the
United States.”). Holloway presented his Batson claim to
the Pennsylvania Supreme Court on direct appeal, but the
Court failed to even mention the claim (much less
adjudicate the merits) in its disposition. Cf. Hameen v.
Delaware, 212 F.3d 226, 248 (3d Cir. 2000) (claim was not
“adjudicated on the merits” because Delaware Supreme
Court failed to address it “even though it had the
opportunity to do so”). Consequently, pre-AEDPA standards
govern.
Additionally, pre-AEDPA standards govern our review
even if we limit our analysis to the state court’s ruling in
the PCRA proceeding. The Pennsylvania Supreme Court
treated Holloway’s Batson argument on PCRA review solely
as a claim of ineffective assistance of counsel because it
believed that Holloway raised the Batson claim for the first
time on the PCRA appeal. The record reflects, however, that
Holloway in fact raised his Batson claim in the PCRA trial
court. The Pennsylvania Supreme Court denied relief on the
Batson claim for the following reasons:
16
[Holloway] claims that the Commonwealth used its
peremptory strikes in a racially discriminatory manner
in violation of [Batson]. However, [Holloway] has failed
to make a record “identifying the race of venirepersons
stricken by the Commonwealth, the race of prospective
jurors acceptable to the Commonwealth but stricken by
the defense, and the racial composition of the final jury
selected.” Commonwealth v. Bronshtein, 547 Pa. 460,
691 A.2d 907, cert. denied, 522 U.S. 936 (1997).
“Where an appellant fails to make a record for review
of a Batson challenge, this Court is unable to consider
a claim that the trial court failed to find a prima facie
case under Batson.” Commonwealth v. Spence, 534 Pa.
233, 627 A.2d 1176 (1993). Therefore, it is impossible
to determine if [Holloway]’s claim has arguable merit.
Moreover, [Holloway] does not even allege that
counsel’s ineffectiveness with respect to this issue “so
undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have
taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Accordingly, no
relief is due.
Holloway II, 739 A.2d at 1045-46 (emphasis added).
Given that the state court found it “impossible to
determine” whether Holloway’s underlying Batson claim
“has arguable merit,” it plainly did not render an
“adjudication on the merits” of that claim for purposes of
applying the AEDPA standards. Accordingly, our review is
under pre-AEDPA law with regard to the PCRA decision, as
well.6
Batson claims present mixed questions of law and fact.
Riley v. Taylor, 277 F.3d 261, 277 (3d Cir. 2001) (en banc).
Under pre-AEDPA standards, the legal conclusions of state
courts are reviewed de novo. McCandless, 172 F.3d at 260.
We must presume that the state court’s factual findings are
correct unless, inter alia, they are not “ ‘fairly supported by
the record.’ ” Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir.
1994) (quoting 28 U.S.C. § 2254(d)(8)). “[T]he question in a
federal habeas proceeding is not whether the federal courts
6. As explained below, our result would be the same on the Batson issue
even if we reviewed the claim under the deferential AEDPA standards.
17
agree with the state court’s factual finding, but whether
that finding is fairly supported by the record.” Meyers v.
Gillis, 93 F.3d 1147, 1149 (3d Cir. 1996).
4. The Batson standard7
The Supreme Court reaffirmed in Batson the long-
standing principle 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. 476 U.S. at 88. As the Court explained,
“[t]he harm from discriminatory jury selection extends
beyond that inflicted on the defendant and the excluded
juror to touch the entire community. Selection procedures
that purposefully exclude black persons from juries
undermine public confidence in the fairness of our system
of justice.” Id. at 87.
Batson’s primary significance lay in the Court’s
repudiation of the evidentiary burden that it had previously
placed on defendants in making an equal protection claim.
In Swain v. Alabama, 380 U.S. 202 (1965), the Court had
held that a defendant could make a prima facie case of
purposeful discrimination only by showing that a
prosecutor, “in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the victim
may be, is responsible for the removal of Negroes who have
been selected as qualified jurors by the jury commissioners
and who have survived challenges for cause, with the result
that no Negroes ever serve on petit juries.” Id. at 223.
Batson rejected the Swain standard in favor of a three-part
burden-shifting process by which a trial court can evaluate
an objection to race-based juror exclusion in light of events
as they occur in the case before it. The Court explained the
process as follows:
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race. Second, if that showing has been made,
the prosecution must offer a race-neutral basis for
7. The Supreme Court issued Batson on April 30, 1986, approximately
two weeks before jury selection commenced at Holloway’s trial. Holloway,
therefore, was plainly entitled to the benefit of the Batson decision.
18
striking the juror in question. Third, in light of the
parties’ submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations
to Batson omitted).
Under Batson, although “a defendant has no right to a
petit jury composed in whole or in part of persons of his
own race . . . the defendant does have the right to be tried
by a jury whose members are selected pursuant to
nondiscriminatory criteria.” Batson, 476 U.S. at 85-86(internal quotations, citations, and footnote omitted).
Consistent with this principle, courts have recognized that
a prosecutor’s purposeful discrimination in excluding even
a single juror on account of race cannot be tolerated as
consistent with the guarantee of equal protection under the
law. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990)
(holding that relief must be granted under Batson “when
even one black person is excluded for racially motivated
reasons”); see also United States v. Vasquez-Lopez, 22 F.3d
900, 902 (9th Cir. 1994) (recognizing that “the Constitution
forbids striking even a single prospective juror for a
discriminatory purpose”); United States v. Battle, 836 F.2d
1084, 1086 (8th Cir. 1987) (“[W]e emphasize that under
Batson, the striking of a single black juror for racial
reasons violates the equal protection clause, even though
other black jurors are seated, and even when there are
valid reasons for the striking of some black jurors.”).
Moreover, a prosecutor who intentionally discriminates
against a prospective juror on the basis of race can find no
refuge in having accepted others venirepersons of that race
for the jury. See Lancaster v. Adams, 324 F.3d 423, 434
(6th Cir. 2003) (“Where purposeful discrimination has
occurred, to conclude that the subsequent selection of an
African-American juror can somehow purge the taint of a
prosecutor’s impermissible use of a peremptory strike to
exclude a venire member on the basis of race confounds the
central teachings of Batson.”), cert. denied, 124 S. Ct. 535(2003).
19
5. Holloway’s Batson challenge and the prosecutor’s expla-
nations
Holloway first objected to the prosecutor’s peremptory
strikes on the second day of the voir dire proceedings, after
the prosecutor struck Brenda Forrest, an African-American
female. Holloway’s counsel noted, “I believe the District
Attorney has now used all his challenges on black jurors. I
believe he has developed a pattern of striking them.” App.
Vol VII at 1355. The trial court deferred a discussion of the
issue because another prospective juror was entering the
courtroom, and jury selection continued. After several
additional potential jurors were struck by agreement or for
cause, Holloway’s counsel formally asserted his objection,
stating, “I think the District Attorney has now developed a
pattern of striking only black prospective jurors. I think
that pattern has now developed, and there are nine jurors
selected, and two black jurors out of that particular nine.
And I would ask for a mistrial and [to] start all over again.”
App. Vol. VII at 1367-68.
Without indicating whether it thought Holloway
established a prima facie case, the trial court invited a
response from the prosecutor, asking, “Does the
Commonwealth have anything to say at this time?” Id. at
1368. The prosecutor replied, “Sure, Judge. As [defense
counsel] has indicated, number one, we have nine seated in
the box, two of them [sic] whom are black. One black male
and one black female. [Counsel] is incorrect when he tells
the Court that I have used my pre-empts exclusively on
blacks, that’s not true. I’ve struck a white woman also.” Id.The trial judge then observed that Holloway too had used a
peremptory strike against a black female the previous day.8
After a brief discussion with Holloway as to the reasons
why he excluded that potential black juror, id. at 1368-69,
the trial court ended the matter without expressly ruling on
whether the prosecutor had struck African-Americans
8. In Batson, the Supreme Court expressed no view on whether the
Constitution imposed any limitation upon a criminal defendant’s exercise
of peremptory challenges. 476 U.S. at 89 n.12. Several years after
Batson, the Court held in Georgia v. McCollum, 505 U.S. 42, 56 (1992),
that prosecutors may assert such a Batson challenge.
20
because of their race. The judge concluded, “[Holloway] also
knocked off a potential black juror, but the record will
speak for itself.” Id. at 1369. At that point in the
proceedings, the record was clear that the prosecutor had
used seven of eight peremptory strikes against African-
Americans.
The prosecutor subsequently exercised four additional
peremptory strikes, all against African-Americans. After the
first of those strikes, against Starlett Sandoval, Holloway’s
counsel noted for the record that “the Commonwealth has
struck another black juror.” Id. at 1376. The prosecutor
offered no explanation for the strike, nor did the court
request one. The prosecutor later struck Robert Keel, after
which defense counsel noted, “Let the record indicate a
black male.” Id. at 1397. Without prompting from the trial
court, the prosecutor elected to explain the strike, stating,
“May the record indicate a single, young, unemployed, on
welfare, black male.” Id. The prosecutor next used a
peremptory strike against John Hackley, Sr., and Holloway
again noted the venireperson’s race. App. Vol. VIII at 1488.
The prosecutor explained, “Let the record further show that
it is a black juror, black male juror approximately the same
age as the defendant.” Id. Finally, the prosecutor exercised
a peremptory strike against Elouise Baldi, and after
Holloway made note of her race, the prosecutor explained
that she was “a Black female, whose brother-in-law was
convicted of narcotics charges. Narcotics would play a
central role in the testimony of this case.” Id. at 1493-94.
The matter proceeded to trial with a jury of nine white
jurors and three black jurors, with two white alternate
jurors.9 Holloway renewed his Batson challenge, albeit in a
cursory fashion, in a post-verdict motion for a new trial.10
9. There was some confusion in the state court proceedings as to the
racial composition of the jury, with Holloway arguing in the PCRA
proceeding that the jury consisted of ten white jurors and two black
jurors. It became clear in this federal habeas proceeding that the final
composition was actually nine white jurors and three black jurors. This
discrepancy in the final numbers, however, is not material to our
analysis under Batson.
10. Holloway’s trial counsel, Barry Denker, Esq., filed the motion for a
new trial but was unable to argue the motion or to file a brief in support.
21
The trial court summarily rejected the post-trial Batson
argument as “unspecific.”
6. Merits Analysis
A.
We have little difficulty in concluding that Holloway met
his burden under the first step of the Batson analysis. A
court should consider “all relevant circumstances” in
assessing whether a prima facie showing of discrimination
has been made. Batson, 476 U.S. at 96. This Court has
identified five factors that are generally relevant in this
inquiry: “1) the number of racial group members in the
panel; 2) the nature of the crime; 3) the race of the
defendant; 4) a pattern of strikes against racial group
members; and 5) the questions and statements during the
voir dire.” United States v. Clemons, 843 F.2d 741, 748 (3d
Cir. 1988).
The most striking factor in this case is the prosecutor’s
pattern of strikes. Holloway moved for a mistrial after the
prosecutor had used seven of eight peremptory strikes
against African-Americans; the Commonwealth ultimately
used eleven of twelve strikes in that manner. As the Court
explained in Batson, “a ‘pattern’ of strikes against black
jurors in the particular venire might give rise to an
inference of discrimination.” 476 U.S. at 97. The pattern
here was certainly strong enough to suggest an intention of
keeping blacks off the jury. Cf. Harrison, 909 F.2d at 87(finding prima facie case where prosecutor used six of eight
peremptory challenges against African-Americans); see also
Clemons, 843 F.2d at 747 (recognizing that “[s]triking a
single black juror could constitute a prima facie case even
when blacks ultimately sit on the panel and even when
valid reasons exist for striking other blacks”).
Holloway was represented at a hearing on the motion by an associate of
Denker’s who had not entered an appearance at trial. Denker had
become unavailable to Holloway shortly after trial because he entered the
Federal Witness Protection Program following his federal convictions for
bribing Philadelphia judges and court officials.
22
In addition, for purposes of a prima facie showing,
Holloway is entitled “to rely on the fact, as to which there
can be no dispute, that peremptory challenges constitute a
jury selection practice that permits ‘those to discriminate
who are of a mind to discriminate.’ ” Batson, 476 U.S. at 96(quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)). In
responding to Holloway’s motion for a mistrial, the
prosecutor agreed as to the racial composition of the nine
jurors seated to that point (seven whites, two blacks), and
explained that he had not used his “pre-empts exclusively
on blacks” because he had “struck a white woman also.”
App. Vol. VII at 1368. This explanation, however, did
nothing to dispel Holloway’s suggestion that the prosecutor
harbored a discriminatory intent in striking the seven
prospective black jurors. A prosecutor cannot undermine a
pattern of strikes that appears racially motivated by merely
pointing to a lone juror of a different race whom he also
found objectionable. A prosecutor also cannot “rebut the
defendant’s case merely by denying that he had a
discriminatory motive or affirming his good faith in making
individual selections.” Batson, 476 U.S. at 98 (internal
quotation marks and citation omitted). A further relevant
circumstance here is that while Holloway, the victim, and
key prosecution witness Shirley Baker were all black, the
officer who took Holloway’s custodial statement, Detective
Gilbert, was white. Given that Holloway’s defense would
rise or fall largely on his claim that the custodial statement
was fabricated, Holloway’s credibility versus that of
Detective Gilbert, a white police officer, was a crucial issue
for the jury.11
11. We note that Holloway did not establish the number of blacks in the
venire during the course of the state court proceedings. The parties were
able to ascertain the composition in this habeas proceeding, largely by
relying on the prosecutor’s voir dire notes once they were turned over to
Holloway as part of the limited discovery conducted before the District
Court. Eighty-seven potential jurors were questioned during the voir
dire, forty-two of whom were struck for cause. Of the remaining forty-five
potential jurors, the defense struck nine before the prosecutor had an
opportunity to use a peremptory challenge. The parties agree that of the
thirty-six venirepersons the prosecutor had an opportunity to strike,
fourteen were black and twenty-two were white. The prosecutor, as
noted, used eleven strikes against blacks. Thus, the prosecutor struck
eleven of the fourteen blacks he had an opportunity to strike.
23
In short, there was “sufficient reason to believe that
discrimination may have been at work here to require the
state to come forward with an explanation of its actions.”
Johnson, 40 F.3d at 666. The trial court, as noted, did ask
the prosecutor for an explanation following Holloway’s
motion for a mistrial, but we cannot infer from the court’s
question — “Does the Commonwealth have anything to say
at this time?” — that it found a prima facie case. The
court’s query suggests that the Commonwealth was under
no obligation to provide any response at all, thereby
indicating that the second stage of the Batson inquiry had
not been reached. If anything, we can assume the trial
court found no prima facie case because it allowed the
matter to proceed without explanation from the
Commonwealth as to the basis for the individual strikes.
Insofar as the trial court found no evidence sufficient to
support a prima facie showing of discrimination, we must
reject that unexplained determination as inconsistent with
Batson and not fairly supported by the record.
Significantly, we have recognized that the question of
whether a prima facie case has been established becomes
moot, and thus need not even be addressed, when the
prosecutor provides explanations for the strikes despite the
absence of a request from the trial court. See Johnson, 40
F.3d at 663-65. We have explained that,
independent of the strength of the evidence tendered as
a prima facie case, once a prosecutor attempts to
explain a peremptory challenge, we believe the trial and
reviewing courts should look to the entire record to
determine if intentional discrimination is present. If the
prosecutor’s explanation raises more concern than it
puts to rest, courts cannot effectively close their eyes to
that fact by simply deciding that the defendant has not
made out a prima facie case.
Although this evidence further supports Holloway’s prima facie
showing, it is by no means necessary to establish a prima facie showing
under Batson given the other evidence of record. Moreover, because
Holloway failed to develop this information in state court, we do not
consider it here.
24
Clemmons, 892 F.2d at 1156; see also Hernandez v. New
York, 500 U.S. 352, 359 (1991) (plurality opinion) (“Once a
prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the
preliminary issue of whether the defendant had made a
prima facie showing becomes moot.”). Thus, based on the
prosecutor’s explanations alone, the trial court should have
reached the second and third steps in the Batson inquiry in
this case.
The second Batson step requires that the prosecutor
provide a “neutral, nonpretextual explanation for striking
the black venirepersons from the venire panel.” Jones, 987
F.2d at 973. After the motion for a mistrial was rejected,
Holloway duly noted each peremptory challenge exercised
against an African-American, and the prosecutor elected to
make a record of his reasons for three of those four strikes.
Although we are troubled by the lack of race-neutrality in
each of the prosecutor’s explanations, and perhaps more
troubled by the lack of any explanation at all for eight of his
eleven strikes, the explanation given as to venireperson
John Hackley, Sr., was plainly insupportable under Batson
and warrants relief.
The prosecutor explained the Hackley strike on the
ground that Hackley “is a black juror, black male juror
approximately the same age as the defendant.” In other
words, the prosecutor cited Hackley’s race, age, and gender
as the reasons for the strike. Race, obviously, was
impermissible, but we will assume that the prosecutor
referred to Hackley’s race merely as a concession that
Hackley was black so that his race would be clear as a
matter of record. Thus, we focus on the prosecutor’s stated
reasons of age and gender.12 This Court has firmly
established that “[a] comparison between a stricken black
12. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Supreme
Court extended Batson to prohibit discrimination on the basis of gender.
Holloway’s objection to the exclusions here, however, centered solely on
race, and thus we limit our analysis accordingly. We note, nevertheless,
the Court’s observation in J.E.B. that “[b]ecause gender and race are
overlapping categories, gender can be used as a pretext for racial
discrimination.” Id. at 145.
25
juror and a sitting white juror is relevant to determining
whether the prosecution’s asserted justification for striking
the black juror is pretextual.” Riley v. Taylor, 277 F.3d 261,
282 (3d Cir. 2001) (en banc). Hackley was born in 1950 and
thus was nine years younger than Holloway, who was born
in 1941. Using this nine-year measure for age proximity,
the record shows the prosecutor accepted three white
jurors “approximately the same age” as Holloway, two of
whom were males — Joseph Zingone (born 1935), Patricia
Connor (1948), and John Jackubiak (1943). In addition, he
chose not to exercise a peremptory strike against four other
white jurors (one male) of approximately the same age who
ultimately did not serve on the jury — Thomas St. Joseph
(1941), Blanche Cohen (1933), Kathleen Fallon (1940), and
Dolores Kovack (1937). “The presence of white jurors who
possessed the same characteristic indicates that this
explanation was pretextual.” Jones, 987 F.2d at 973. We
find nothing in the prosecutor’s explanation of the Hackley
strike, or in the record as a whole, to indicate that he
harbored anything but a discriminatory intent to remove
Hackley because of his race.
The Commonwealth defends the Hackley strike by
looking to the voir dire transcript for information that might
have motivated the prosecutor’s decision beyond the
reasons stated on the record. In particular, the
Commonwealth notes that Hackley indicated that he lived
in the neighborhood where the murder took place and knew
“some people around that neighborhood . . . but not by the
names.” App. Vol. VIII at 1485. The Commonwealth
suggests that “[t]he prosecutor could well have been
concerned that Mr. Hackley’s similarity in age and his
connections to the neighborhood could translate into
familiarity with ‘some of the people’ involved in the case.”
Appellee/Cross-Appellant’s Br. at 73. This speculation,
however, does not aid our inquiry into the reasons the
prosecutor actually harbored for the Hackley strike. Batson
is concerned with uncovering purposeful discrimination,
and where a prosecutor makes his explanation for a strike
a matter of record, our review is focused solely upon the
reasons given. As we noted in Riley, “[a]pparent or potential
reasons do not shed any light on the prosecutor’s intent or
state of mind when making the peremptory challenge.” 277
26
F.3d at 282. Thus, the Commonwealth’s attempt to recast
the prosecutor’s stated reasons must be rejected.
In any event, Hackley’s statements during voir dire give
no indication of an independent basis for the prosecutor’s
action. Although Hackley lived in the neighborhood where
the murder took place, the prosecutor explored that fact
with a single question seeking an assurance that Hackley’s
residence would not influence his consideration of the case.
App. Vol. VII at 1485. Hackley stated that he was “sure” it
would have no influence. Id. Hackley was also unequivocal
in stating that he could impose the death penalty if
warranted. He noted that he was married with two teenage
children and held steady employment, and he stated that
he could be fair to both sides in hearing the case. The
prosecutor, nevertheless, exercised the peremptory strike
after defense counsel indicated that he had no questions for
Hackley. On this record, we could not impute a proper
motive to the prosecutor’s action even if it were proper to
hypothesize potential reasons for the strike beyond those
given. Relief, therefore, must be granted.
We are not unmindful that the state trial court failed to
acknowledge or expressly follow the three-step Batson
analysis in this case. In particular, the court never formally
asked the prosecutor to provide a full explanation for the
strikes. Ordinarily, 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. Here, however, the parties agree that the
prosecutor is “psychiatrically disabled” and has been for
some time, and thus would be unable to testify
meaningfully at a hearing. Holloway’s trial counsel is
deceased (as noted, he became unavailable shortly after the
trial), as is the presiding trial judge. It seems unlikely at
this stage — some seventeen years after the trial — that the
prosecutor, even were he not “disabled,” could accurately
recall his reasons for the strikes or provide meaningful
elaboration upon the reasons that he placed on the voir
dire record. Furthermore, given the unavailability of the
relevant participants, there would be no benefit to a hearing
at this point. See Riley, 277 F.3d at 293-94. The long delay
in reaching this stage is certainly regrettable, both for the
27
Commonwealth and for Holloway, but we cannot fault
Holloway, who has pursued the Batson argument at every
stage of this case since the time of trial in 1986.
B.
Although it did not address the Batson claim on direct
appeal, the Pennsylvania Supreme Court rejected the claim
on PCRA appeal because it found that Holloway failed to
make a record identifying (1) the race of venirepersons
stricken by the Commonwealth, (2) the race of prospective
jurors acceptable to the Commonwealth but stricken by the
defense, and (3) the racial composition of the final jury
selected. Holloway II, 739 A.2d at 1045 (citing
Commonwealth v. Bronshtein, 691 A.2d 907 (Pa. 1997)). The
Court explained that, “[w]here an appellant fails to make a
record for review of a Batson challenge, this Court is unable
to consider a claim that the trial court failed to find a prima
facie case under Batson.” Id. (citing Commonwealth v.
Spence, 627 A.2d 1176 (Pa. 1993)). We find this analysis
inconsistent with the teachings of Batson.
The state court’s rejection of Holloway’s claim for want of
evidentiary support was an application of what the parties
here call the “Spence rule.” In Commonwealth v. Spence, the
Pennsylvania Supreme Court affirmed the denial of a
capital defendant’s Batson claim on the ground that he
failed to make an adequate record to permit meaningful
review of the trial court’s failure to find a prima facie case.
672 A.2d at 1183. The Court observed that the defendant
had not “specifically identif[ied] the race of all the
veniremen who had been removed by the prosecution, the
race of all the jurors who served, or the race of jurors
acceptable to the Commonwealth who had been stricken by
the defense.” Id. at 1182-83. Applying this rule, the Court
noted the defendant’s claim that ten of twelve
Commonwealth peremptory strikes were used against
African-Americans, but it denied relief because the
defendant had identified for the record only four, not ten,
potential jurors as being black. Id.
The evidentiary requirements set forth in Spence — that
the defendant identify the race of all veniremen removed by
28
the prosecution, the race of all the jurors who served, and
the race of jurors acceptable to the Commonwealth but
struck by the defense — seem to have developed under
Pennsylvania law into a standard for assessing whether a
defendant can make a prima facie showing of purposeful
discrimination so as to move beyond the first step in the
Batson analysis. For example, in Commonwealth v.
Bronshtein, 691 A.2d 907 (Pa. 1997), which was cited to
support the rejection of Holloway’s Batson claim, the
Pennsylvania Supreme Court explained the rule as follows:
“In order to establish a prima facie case on a Batson claim,
defendant must make a record identifying the race of
venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but
stricken by the defense, and the racial composition of the
final jury selected.” Id. at 915.
In Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa.
1995), the Court fully explained the workings of the Spence
rule and its role in the Batson analysis:
To sustain a prima facie case of improper use of
peremptory challenges, a defendant must establish the
following: (1) the defendant is a member of a cognizable
racial group and the prosecutor exercised peremptory
challenges to remove members of the defendant’s race
from the venire; (2) the defendant can then rely on the
fact that the use of peremptory challenges permits
those to discriminate who are [of] a mind to
discriminate; and, (3) the defendant, through facts and
circumstances, must raise an inference that the
prosecutor excluded members of the venire on account
of their race. Commonwealth v. Dinwiddie, 601 A.2d
1216, 1218 (1992). This third prong requires defendant
to make a record specifically identifying the race of all
the venirepersons removed by the prosecution, the race
of the jurors who served and the race of jurors
acceptable to the Commonwealth who were stricken by
the defense. After such a record is established, the trial
court must consider the totality of the circumstances
to determine whether challenges were used to exclude
venirepersons on account of their race. If the trial court
finds in the affirmative, it may then require the
29
prosecutor to explain his or her reasons for the
challenge.
Id. at 631. Thus, as Simmons and subsequent cases make
clear, to raise an inference of discrimination in support of
a prima facie Batson showing, a Pennsylvania defendant
must first make a record under the Spence rule. See
Commonwealth v. Marshall, 810 A.2d 1211, 1216 (Pa.
2002); Commonwealth v. Baez, 720 A.2d 711, 736 (Pa.
1998); Commonwealth v. Gibson, 688 A.2d 1152, 1159 (Pa.
1997); Commonwealth v. Jones, 668 A.2d 491, 518 (Pa.
1995); Commonwealth v. Johnson, 668 A.2d 97, 102 (Pa.
1995); Commonwealth v. Hill, 727 A.2d 578, 582 (Pa.
Super. Ct. 1999).13
In Batson, the Supreme Court discussed the
requirements for a prima facie case in the following terms:
To establish such a case, the defendant first must
show that he is a member of a cognizable racial group
. . . and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the
defendant’s race. Second, the defendant is entitled to
rely on the fact, as to which there can be no dispute,
that peremptory challenges constitute a jury selection
practice that permits “those to discriminate who are of
a mind to discriminate.” . . . Finally, the defendant
must show that these facts and any other relevant
circumstances raise an inference that the prosecutor
used that practice to exclude the veniremen from the
petit jury on account of their race. This combination of
factors in the empaneling of the petit jury, as in the
selection of the venire, raises the necessary inference of
purposeful discrimination.
13. In some recent cases, usually those involving claims of improper
exclusions based on gender, the Pennsylvania Supreme Court has
expanded the three Spence categories to require two additional showings
in order to state a prima facie case—the race (or gender) of all
venirepersons remaining after challenges for cause, and the race (or
gender) of all the venirepersons in the jury pools. See, e.g.,
Commonwealth v. Rico, 711 A.2d 990, 993 (Pa. 1998); Jones, 668 A.2d
at 518. In other recent cases, however, the Court has invoked only the
original three categories. See, e.g., Marshall, 810 A.2d at 1216;
Commonwealth v. Hackett, 735 A.2d 688, 694 (Pa. 1999).
30
In deciding whether the defendant has made the
requisite showing, the trial court should consider all
relevant circumstances. For example, a “pattern” of
strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.
Similarly, the prosecutor’s questions and statements
during voir dire examination and in exercising his
challenges may support or refute an inference of
discriminatory purpose. These examples are merely
illustrative. We have confidence that trial judges,
experienced in supervising voir dire, will be able to
decide if the circumstances concerning the prosecutor’s
use of peremptory challenges creates a prima facie case
of discrimination against black jurors.
Batson, 476 U.S. at 96-97.
The Batson standard for assessing a prima facie showing
is fluid, mainly because it places great confidence in the
ability of trial judges to assess whether discrimination is at
work based on the evidence at hand. The judge’s
assessment “largely will turn on evaluation of credibility,”
id. at 98 n.21, and “[t]he analysis set forth in Batson
permits prompt rulings on objections to peremptory
challenges without substantial disruption of the jury
selection process.” Hernandez v. New York, 500 U.S. 352,
358 (1991). The defendant’s burden at the initial stage is to
show merely that jurors of his race have been struck and
that the strikes are indicative of an improper motive. The
defendant generally meets this burden if there is a pattern
of strikes or if the prosecutor’s questions and statements
during voir dire support an inference of discriminatory
purpose. Notably absent from the Batson discussion of the
prima facie case is any call for trial judges to seek the type
of statistical accounting required by the Spence rule — nor
do we see how such an accounting fits within Batson’s first
step. A trial judge undoubtedly might find in a given case
that a full accounting regarding the race of the venire and
the jurors struck would be helpful at the third stage of the
Batson analysis, after it has heard the prosecutor’s
explanation for the strikes and must “determine if the
defendant has established purposeful discrimination.” Id. at
98. But requiring the presentation of such a record simply
31
to move past the first stage in the Batson analysis places
an undue burden upon the defendant.
Under the Batson process, a defendant must identify the
race of the venireperson struck if he wishes to raise a
challenge to the strike based on race. If the defendant is
claiming a pattern of strikes to support an inference of
discrimination, then a record of the race-based strikes that
preceded the objection is also required. But a defendant’s
Batson objection need not always be based on a “pattern”
of strikes; it can be based, for example, on a single strike
accompanied by a showing that the prosecutor’s statements
and questions to the juror (or to prior jurors) support an
inference of discrimination. Requiring a defendant in that
circumstance to identify “the race of all the venirepersons
removed by the prosecution” is not necessary to support a
prima facie case, and places an irrelevant hurdle in the way
of reaching the second step in the Batson process.
Similarly, and perhaps more troubling, is the
requirement that defendants support a prima facie case by
identifying “the race of the jurors who served and the race
of jurors acceptable to the Commonwealth who were
stricken by the defense.” Simmons, 662 A.2d at 631. As
noted, Batson is premised on the fact that defendants “have
the right to be tried by a jury whose members are selected
pursuant to nondiscriminatory criteria,” and the “Equal
Protection Clause guarantees the defendant that the State
will not exclude members of his race from the jury venire
on account of race.” Batson, 476 U.S. at 85-86. The final
composition of the jury (or even the composition of the jury
at the time the Batson objection is raised) offers no reliable
indication of whether the prosecutor intentionally
discriminated in excluding a member of the defendant’s
race. Indeed, the composition of a jury is decided by many
factors, including the defendant’s use of peremptory
challenges, challenges for cause, and jurors’ claims of
hardship. Thus, “a Batson inquiry focuses on whether or
not racial discrimination exists in the striking of a black
person from the jury, not on the fact that other blacks may
remain on the jury panel.” United States v. Johnson, 873
F.2d 1137, 1139 n.1 (8th Cir. 1989). A defendant can make
a prima facie case of discrimination without reference to the
jury’s racial makeup.
32
Likewise, evidence of “the race of jurors acceptable to the
Commonwealth who were stricken by the defense,”
Simmons, 662 A.2d at 631, finds no place in the prima facie
case, as defense strikes are irrelevant to the determination
of whether the prosecutor has engaged in discrimination.
Batson nowhere suggests that a defendant must support
his challenge to the prosecutor’s actions by showing that he
has “clean hands,” or by admitting that he too struck black
jurors from the jury (which is what the trial court here
seemed to ask of Holloway when it raised the fact that
Holloway had also struck a black juror from the venire).
While Batson permits a trial judge to focus at the prima
facie stage upon “all relevant circumstances,” the nature of
a defendant’s strikes fails the test for relevancy. Instead,
the focus properly falls on the prosecutor’s actions, looking
primarily at whether there is a pattern of strikes and
whether the prosecutor’s questions and statements support
or refute an inference of discrimination.
In the instant case, the Pennsylvania Supreme Court
determined that Holloway’s failure to comply with the
Spence rule rendered the Court “unable to consider a claim
that the trial court failed to find a prima facie case under
Batson.” Holloway II, 739 A.2d at 1045. As a result, the
Court found it “impossible to determine if [Holloway]’s claim
has arguable merit.” Id. Given the record Holloway
established on the Batson claim during voir dire, we
conclude that he stated not only a prima facie case, but
also an entitlement to relief under Batson’s third step. The
voir dire transcript reflects a sufficient “pattern” of strikes
at the time of the motion for a mistrial (seven of eight), as
well as the prosecutor’s evasive statement in response. The
record also reflects the prosecutor’s inadequate
explanations as to three of the four strikes, particularly the
Hackley strike, to which Holloway subsequently objected.
Thus, there was ample evidence under Batson’s first step
from which the Pennsylvania Supreme Court could have
assessed whether the trial court erred in failing to find a
prima facie case. The Court’s finding of an insufficient
record is not fairly supported and is inconsistent with
Batson’s mandate.
As a final matter, we note that relief would be warranted
even if our analysis were confined by the requirements of
33
AEDPA, as the Pennsylvania Supreme Court’s PCRA
decision was “contrary to” and an “unreasonable
application of” the Batson standard. “A state-court decision
will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in [the Supreme
Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405
(2000). Application of the Spence rule is at odds with
Batson’s first step because it places a burden upon the
defendant to make a record of largely irrelevant information
in order to raise an inference that the prosecutor excluded
members of the venire on account of race. The Spence rule
runs contrary to federal law insofar as it prevents a court
from shifting the burden to the prosecutor upon a
defendant’s showing, based on the factors required by
Batson, that discrimination is at work. In that the Spence
rule provided a justification for refusing to reach the merits
of Holloway’s prima facie case, the Pennsylvania Supreme
Court engaged in an unreasonable application of the clearly
established Batson standard. Accordingly, we must reject
the Pennsylvania Supreme Court’s PCRA disposition under
AEDPA, as well.
IV. Conclusion
For the reasons stated, the judgment of the District Court
entered on August 27, 2001, will be reversed. The matter
will be remanded to the District Court with instructions to
issue a writ of habeas corpus conditioned upon the
Commonwealth’s right to conduct a retrial within 120 days
from entry of the District Court’s order granting the
petition.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit