MASON v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LENWOOD MASON, CIVIL ACTION

Petitioner,

v.

JOHN WETZEL, et al., NO. 17-3759

Respondents.

MEMORANDUM OPINION

Before the Court is Lenwood Mason’s Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254. Upon referral, the Magistrate Judge issued a Report and Recommendation to

which Mason has filed counseled objections. After de novo review, the Court will deny relief as

to Mason’s claims challenging his first-degree murder conviction.1

I. BACKGROUND

In 1994, Mason stabbed his girlfriend, Iona Jeffries, to death. Two years later, he was

convicted in state court of first-degree murder, burglary, and possessing an instrument of crime

in connection with Jeffries’ death.

The details of Mason’s case are set forth at length in the Report and Recommendation.

Relevant to the present Petition are the following facts: In early 1994, Philadelphia Police

Officers Terry Brown and Karen Moore encountered Mason and Jeffries when investigating a

disturbance. Brown noticed bruises on Jeffries and asked if she was okay. She told him that

Mason caused her injuries but that if Mason was arrested, he would kill her. Brown did arrest

Mason, who was then transported to the police station while Jeffries was taken to a hospital.

Upon his release from prison, Mason and Jeffries resumed their relationship. Mason

1 The parties have entered into a stipulation by which the Commonwealth agreed to the grant of habeas corpus relief

as to Mason’s death sentence, which stipulation was so-ordered by the Court.

testified at trial that the night before Jeffries’ death, the two drank and smoked marijuana laced

with phencyclidine (“PCP”) at a local bar. Jeffries then decided to go to a different club and

asked someone to drive Mason home, as she did not want him to come with her. Mason yelled at

Jeffries “[y]ou want it like that?” and stormed out of the bar.

At approximately 9:30 a.m. the following morning, Mason banged on the door of

Jeffries’ mother’s house, demanding to see Jeffries. Jeffries’ mother told Mason that he would

have to wait to speak to her, at which point Mason forced the door open and went upstairs to

Jeffries’ bedroom. Jeffries’ mother called the police, grabbed a knife, and started toward

Jeffries’ room. She saw Mason descending the stairs, and heard him say “I got her now.” She

continued to the bedroom and found Jeffries on the floor, bleeding from multiple stab wounds.

Jeffries was pronounced dead shortly thereafter. Mason surrendered to the police later that day.

At trial in the Philadelphia Court of Common Pleas, Mason took the stand. He described

the night prior to Jeffries’ death, and how after he ingested the PCP-laced marijuana, “everything

went blurry.” He testified that he had never used PCP before, and that he did not regain his

senses until the following evening, when he was already in jail. Mason’s mother and brother

also testified in his defense, stating that although they had seen Mason high in the past, they had

never seen him in a state similar to the one he was in the morning of Jeffries’ murder.

Mason was convicted, and the trial court held a penalty hearing. During the hearing,

Mason’s counsel presented Dr. Allan Tepper, an expert in forensic and clinical psychology and a

practicing criminal defense attorney. Dr. Tepper had examined Mason on two occasions, and

opined during the penalty hearing as to Mason’s low IQ and other mitigating circumstances.

Following the hearing, the jury returned a verdict of death.

Represented by new counsel, Mason filed a direct appeal. The Pennsylvania Supreme

Court unanimously affirmed the judgment of sentence, which became final on October 2, 2000,

when the United States Supreme Court denied certiorari. Mason then filed in the Court of

Common Pleas a pro se petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42

Pa. Con. Stat. Ann. §§ 9541-46. Following the withdrawal of his initially-appointed counsel, the

Federal Community Defender Office entered an appearance on Mason’s behalf and filed an

amended petition. After several years of motion practice, the Common Pleas Court ordered an

evidentiary hearing on the issue of whether trial counsel rendered ineffective assistance at the

trial’s penalty phase by failing to adequately investigate and present evidence of Mason’s mental

health condition and history of substance abuse.

The case was then assigned to a new judge, who presided over a five-day evidentiary

hearing. In addition to the testimony of his own trial counsel, direct appeal counsel, and family

members, Mason presented the testimony of Dr. Tepper and two other retained experts: Dr.

Robert Sadoff, an expert in forensic psychology, and Dr. Gerald Cooke, an expert in forensic

neuropsychology. Mason also presented the rebuttal testimony of Dr. Richard Restak, an expert

in neurology. Following post-hearing submissions and oral argument, the court denied

postconviction relief. Mason appealed and the Pennsylvania Supreme Court affirmed in part,

remanding the suit on a limited question not relevant to the present matter. See Mason v.

Commonwealth, 130 A.3d 601, 653-71 (Pa. 2015). On remand, the Common Pleas Court entered

a judgment denying Mason’s postconviction petition. Mason filed a pro se appeal, and the

Pennsylvania Supreme Court affirmed. See Commonwealth v. Mason, 196 A.3d 125 (2018).

While Mason’s second appeal was pending before the Pennsylvania Supreme Court,

Mason filed the present federal habeas petition.

II. LEGAL STANDARDS

Upon receiving a report and recommendation on a habeas petition referred to a magistrate

judge, the district court “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made . . . [and] . . . may

accept, reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Review in this case is governed by the following

legal standards.

A. AEDPA

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

petition for habeas corpus may be granted on behalf of a petitioner in custody pursuant to a state

court judgment only if the petitioner “is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). For habeas relief to issue, the state court’s

decision must have: (1) been “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”; or (2) “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). “Factual issues determined by a state court are

presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear

and convincing evidence.” Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C.

§ 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable in light

of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322,

340 (2003).

B. Exhaustion and Procedural Default

Habeas petitioners are required to exhaust state court remedies before obtaining habeas

relief. 28 U.S.C. § 2254(b)(1)(A). This “exhaustion requirement ensures that state courts have

the first opportunity to review federal constitutional challenges to state convictions and preserves

the role of state courts in protecting federally guaranteed rights.” Caswell v. Ryan, 953 F.2d 853,

857 (3d Cir. 1992). To satisfy this requirement, a petitioner must have “fairly presented” the

merits of his federal claim “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, 260-61 (3d Cir. 1999).

Where the state courts refuse to review the merits of a claim due to an independent and

adequate state procedural rule, the claim is procedurally defaulted. See Coleman v. Thompson,

501 U.S. 722, 750 (1991); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012). Review of

defaulted claims is generally barred unless “the [petitioner] can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure

to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at

750.

If the court reaches the merits of a defaulted claim, review is de novo. Lark v. Sec’y Pa.

Dep’t of Corr., 645 F.3d 596, 618 (3d Cir. 2011) (“[W]hen, as here, the state courts do not

adjudicate a claim on the merits, and that claim is presented properly to a federal court in a

petition for a writ of habeas corpus, the deferential standards of the AEDPA do not apply [and]

our review is entirely de novo.”).

C. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a petitioner must show that: (1) counsel’s

performance was deficient; and (2) counsel’s deficient performance caused the petitioner

prejudice. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). “Deficient performance”

means that “counsel’s representation fell below an objective standard of reasonableness” and that

“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687-88. In reviewing counsel’s performance, the

court must make “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. There is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

As to prejudice, the petitioner bears the burden of:

demonstrat[ing] “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” It

is not enough “to show that the errors had some conceivable effect on the outcome

of the proceeding.” Counsel’s errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.”

Harrington v. Richter, 562 U.S. 86, 104 (2011) (citations omitted). Thus, “counsel cannot be

deemed ineffective for failing to raise a meritless claim.” Ross v. Dist. Attorney of the Cty. of

Allegheny, 672 F.3d 198, 211 n.9 (3d Cir. 2012) (quoting Werts, 228 F.3d at 202).

When the state courts have adjudicated and rejected a claim of ineffective assistance of

counsel on the merits, AEDPA’s review provisions apply and the question becomes “not whether

counsel’s actions were reasonable,” but rather “whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105; see also id.

(“Federal habeas courts must guard against the danger of equating unreasonableness under

Strickland with unreasonableness under § 2254(d).”).

III. DISCUSSION

Mason asserts three claims for habeas relief. In Claim One, he asserts that his trial

counsel was ineffective for failing to investigate and present available evidence to support the

defense of voluntary intoxication/diminished capacity, and that his appellate counsel failed to

adequately investigate and litigate this issue on appeal. In Claim Two, he asserts that trial

counsel was ineffective for failing to make a Confrontation Clause objection under the Sixth

Amendment to certain testimony elicited by the Commonwealth during trial, and that his

appellate counsel was ineffective in failing to raise this issue on appeal. In Claim Three, Mason

asserts that trial counsel was ineffective for failing to make a Batson objection to certain

peremptory challenges exercised by the Commonwealth during jury selection, and that his

appellate counsel was ineffective in failing to raise this issue on appeal.

The Magistrate recommended denying relief on all claims. As to Claims Two and Three,

the Magistrate found these claims procedurally defaulted and determined that this default could

not be excused. The Magistrate thus recommended dismissing these claims as unreviewable,

without reaching the merits arguments briefed by Mason and the Commonwealth. As to Claim

One, the Magistrate found this claim exhausted and thus reviewable, but determined that the state

court’s adjudication of this claim was based on a reasonable determination of the facts and not

contrary to federal law, such that Mason could not satisfy his burden under AEDPA for obtaining

habeas relief.

Mason objects to the Magistrate’s recommendation on two grounds. First, he contends

that the Magistrate misapplied the relevant law in determining that Claims Two and Three were

defaulted. Specifically, he objects to the Magistrate’s conclusion that this procedural default

could not be excused pursuant to the United States Supreme Court’s decision in Martinez v.

Ryan, 566 U.S. 1 (2012). Second, he argues that the Magistrate erred in finding that the state

court’s adjudication of Claim One was based on a reasonable determination of the facts.

Upon de novo review, the Court accepts the Magistrate’s recommendation as to Claim

One,2 but will modify the Magistrate’s recommendations as to Claims Two and Three as follows.

A. Claims Two and Three

Mason does not object to the Magistrate’s finding that Claims Two and Three were

procedurally defaulted, nor could he: In addressing Mason’s appeal of the Common Pleas

Court’s denial of his PCRA petition, the Pennsylvania Supreme Court refused to reach the merits

of either claim, finding that neither was properly preserved by Mason’s initial postconviction

counsel. Mason, 130 A.3d at 639, 640. As noted, however, a procedural default may be excused

where the petitioner demonstrates “cause for the default and actual prejudice as a result of the

alleged violation of federal law.” Coleman, 501 U.S. at 750. Contrary to the Magistrate’s

recommendation, Mason contends that the ineffectiveness of his state postconviction counsel in

failing to raise these claims provides cause to overcome their default under the Supreme Court’s

Martinez decision and its progeny.

“Ordinarily, attorney error committed by defense counsel during state postconviction

proceedings is not ‘cause to excuse a procedural default.’” Gonzalez v. Superintendent

2 With respect to Claim One, Mason argues that because the PCRA court did not hold an evidentiary hearing on

whether his counsel rendered ineffective assistance by failing to investigate and present evidence supporting his

diminished capacity defenses the Pennsylvania Supreme Court’s findings as to this claim are unreasonable.

Specifically, he contends that because there was no evidentiary hearing, the record is unclear as to whether, in Dr.

Tepper’s view, Mason was capable of forming a specific intent to kill at the time of the offense. Under AEDPA, a

federal habeas court is required to give deference to the state court’s factual findings, regardless of whether the state

court has held an evidentiary hearing as to any specific issue. Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir. 2006)

(citing Lambert v. Blackwell, 387 F.3d 210, 237 (3d Cir. 2004)). Nevertheless, “state fact-finding procedures may

be relevant when deciding whether the [state court’s] determination was ‘reasonable’ or whether a petitioner has

adequately rebutted a fact.” Id. Here, however, the record on this issue was sufficiently developed to support the

Pennsylvania Supreme Court’s finding that Dr. Tepper believed Mason able to form a specific intent to kill, and

Mason presents no evidence which would rebut that finding.

Houtzdale SCI, 802 F. App’x 45, 47-48 (3d Cir. 2020) (quoting Davila v. Davis, --- U.S. ----, 137

S. Ct. 2058, 2065 (2017)). In Martinez, however, the Supreme Court recognized a narrow

equitable exception to this general rule, holding that when state law requires a defendant to defer

claims of ineffective assistance of trial counsel to state postconviction review, a claim of

ineffective assistance of state postconviction counsel for failing to raise a “substantial” trial

counsel ineffective assistance claim might excuse the default of that claim. Martinez, 566 U.S.

at 17.

In Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court applied Martinez to

Texas’s appellate review system and concluded that the Martinez exception also applies when a

state’s appellate process makes it “virtually impossible” in practice, if not in theory, to litigate

claims of ineffective assistance of trial counsel while still on direct appeal. Id. at 417. As the

Third Circuit has explained:

Texas law, at issue in Trevino, ostensibly permitted (though it did not require)

criminal defendants to raise ineffective assistance of trial counsel claims on direct

appeal. In practice, however, Texas’ criminal justice system “[did] not offer most

defendants a meaningful opportunity” to do so. As the Texas courts themselves

had observed, trial records often lacked information necessary to substantiate

ineffective assistance of trial counsel claims, and motion filing deadlines, coupled

with the lack of readily available transcripts, generally precluded raising an

ineffective assistance claim in a post-trial motion. Moreover, the Texas courts had

invited, and even directed, defendants to wait to pursue such claims until collateral

review. The Court “conclude[d] that where, as [in Texas], state procedural

framework, by reason of its design and operation, makes it highly unlikely in a

typical case that a defendant will have a meaningful opportunity to raise a claim of

ineffective assistance of trial counsel on direct appeal, [the] holding

in Martinez applies.”

Cox v. Horn, 757 F.3d 113, 119-20 (3d Cir. 2014) (alterations in original) (citations omitted).

In recommending that Claims Two and Three be dismissed as procedurally defaulted, the

Magistrate noted that Mason’s direct appeal took place prior to the Pennsylvania Supreme

Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which found that “as a

general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until

collateral review.” Id. at 738. Prior to Grant, Pennsylvania law generally required that claims of

ineffective assistance of trial counsel be raised at the first opportunity that trial counsel was

replaced. See Commonwealth v. Hubbard, 372 A.2d 687, 695 (Pa. 1977). Mason was appointed

a new attorney on direct appeal, and thus should have presented his ineffective assistance claims

at that time. Martinez, however, applies only when the postconviction collateral review process

was the first opportunity for a petitioner to raise claims of ineffective assistance. See Martinez,

566 U.S. at 17. Because Mason was not required to defer his ineffective assistance claims until

collateral review, the Magistrate determined that the Martinez exception could not apply.

Mason, on the other hand, contends that the pre-Grant criminal justice system in

Pennsylvania resembled that of the Texas system considered by the Supreme Court in Trevino.

He argues that while it was theoretically possible to raise ineffectiveness claims on direct appeal,

the practicalities of the direct appeal process did not allow for a meaningful opportunity to

develop extra-record claims of trial counsel ineffectiveness. See, e.g., Commonwealth v. Turner,

365 A.2d 847, 849 (Pa. 1976) (“The problem in this case, as in most cases where the claim of

ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of

any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged.”).

The Third Circuit has recently suggested—albeit in a nonprecedential decision—that “the

design or operation of Pennsylvania’s pre-Grant regime did not likely deprive a typical

defendant of a meaningful opportunity to raise an ineffective-assistance-of-trial-counsel claim.”

Gonzalez, 802 F. App’x at 48. Nevertheless, in responding to Mason’s objections, the

Commonwealth concedes “that whether Martinez applies to Mason’s claims presents a closer

question than the merits.” Compare, e.g., White v. Warden, Ross Corr. Inst., 940 F.3d 270, 277-

78 (6th Cir. 2019) (Martinez can provide cause to overcome defaults arising from failure to raise

claims on direct appeal in Ohio); Brown v. Brown, 847 F.3d 502, 510-13 (7th Cir. 2017) (same as

to Indiana); Runningeagle v. Ryan, 825 F.3d 970, 980-82 (9th Cir. 2016) (same as to Arizona);

Sutton v. Carpenter, 745 F.3d 787, 792-95 (6th Cir. 2014) (same as to Tennessee), with Pavatt v.

Carpenter, 928 F.3d 906, 934 (10th Cir. 2019) (en banc) (Martinez does not provide cause to

overcome defaults arising from failure to raise claims on direct appeal in Oklahoma); Crutchfield

v. Dennison, 910 F.3d 968, 976-78 (7th Cir. 2018) (same as to Illinois); Lee v. Corsini, 777 F.3d

46, 60-61 (1st Cir. 2015) (same as to Massachusetts). It therefore requests that the Court bypass

the issue of default and instead proceed directly to the merits of Claims Two and Three.

“An application for a writ of habeas corpus may be denied on the merits, notwithstanding

the failure of the applicant to exhaust the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(2). Because the Court agrees with the Commonwealth that Claims Two and

Three are meritless, these claims will be denied on that basis and, because the government has

affirmatively waived the issue of default, without a determination as to whether Mason can

overcome their default under Martinez and Trevino.

1. Claim Two

In Claim Two, Mason contends that trial and direct appeal counsel were ineffective for

failing to object to certain testimony elicited by the Commonwealth during trial and for failing to

raise this issue on appeal. This claim concerns the testimony of Officer Terry Brown, who, in

1994, arrested Mason for assaulting Jeffries. Brown testified as follows:

[BROWN]: I spoke with the female, asked her was she okay and I asked her if she

wanted to press charges, at which time she was very unsure and I said, well, he’s

under arrest anyway for what I see and from what you stated, he’s under arrest.

She—

[PROSECUTOR]: What—go ahead.

[BROWN]: At which time she says if you place him under arrest he’s going to kill

me.

Mason contends that Brown’s testimony constitutes hearsay, such that its admission violated his

rights under the Sixth Amendment’s Confrontation Clause.

The Confrontation Clause guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. Const. amend VI. As the parties acknowledge, there are

two Confrontation Clause precedents governing Mason’s claim. The first is the precedent in

place at the time of Mason’s trial, Ohio v. Roberts, 448 U.S. 56 (1980), in which the Supreme

Court held that “an absent witness’s hearsay statement could be introduced against a criminal

defendant only if the witness was unavailable at trial and the statement bore certain ‘indicia of

reliability,’ either by ‘fall[ing] within a firmly rooted hearsay exception” or by showing

‘particularized guarantees of trustworthiness.’” United States v. Berrios, 676 F.3d 118, 125 (3d

Cir. 2012) (alteration in original) (quoting Roberts, 448 U.S. at 66). The second is the precedent

currently governing Confrontation Clause claims. In Crawford v. Washington, 541 U.S. 36

(2004), the Supreme Court partially abrogated Roberts, adopting instead “a per se rule that where

testimonial hearsay is concerned and the declarant is absent from trial, the Confrontation Clause

requires that the witness be unavailable and that the defendant have had a prior opportunity for

cross-examination.” Berrios, 676 F.3d at 125.

As discussed, to succeed on his ineffective assistance claim, Mason must show that his

counsel’s performance was deficient and that this deficient performance caused him prejudice.

Richter, 562 U.S. at 104. The adequacy of counsel’s performance is judged by the law in

existence at the time of the alleged deficient performance. See Sistrunk v. Vaughn, 96 F.3d 666,

671-72 (3d Cir. 1996) (noting general rule that counsel cannot be considered ineffective for

failing to predict changes in the law). Prejudice, however, is judged by the law in existence at

the time of habeas review. See Lockhart v. Fretwell, 506 U.S. 364, 372-73 (1993) (failure to

obtain relief in accordance with then-existing, but subsequently-overruled, precedent does not

constitute constitutional “prejudice”). Thus, Mason’s contention that his counsel’s performance

was deficient will be measured by the Confrontation Clause jurisprudence set forth in Roberts. If

he meets his burden of establishing deficient performance, his contention that he suffered

prejudice as a result of his counsel’s performance will be measured by the Supreme Court’s

current understanding of the Confrontation Clause as articulated in Crawford.

As to whether counsel’s performance was deficient, Mason suggests that he would have

had a meritorious Confrontation Clause objection at the time of trial because Brown’s testimony

that Jeffries said “if you place him under arrest he’s going to kill me” constituted an out-of-court

statement offered to prove the truth of the matter asserted and lacked sufficient “indicia of

reliability” to justify admittance. Under Roberts, “[r]eliability [could] be inferred without more

in a case where the evidence [fell] within a firmly rooted hearsay exception.” Roberts, 448 U.S.

at 66; Bourjaily v. United States, 483 U.S. 171, 182-83 (1987). Mason argues that Brown’s

testimony does not fall under a hearsay exception, such that its admittance was objectionable.

Initially, it is difficult to see how Brown’s testimony could have been offered for the truth

of the assertion “if you place him under arrest he’s going to kill me,” which is something no

person could have known and asserted as a fact. Instead, Mason appears to be suggesting that

the testimony was offered for the truth of the implied assertion that Jeffries feared she would be

killed if Mason were arrested. The Third Circuit has “held that statements containing express

assertions not offered for their truth may contain implied assertions that qualify as hearsay

because the truth of the implied assertions is at issue and relevant to guilt.” United States v.

McGlory, 968 F.2d 309, 332 (3d Cir. 1992) (citing United States v. Reynolds, 715 F.2d 99, 103

(3d Cir. 1983)). That court thus “disfavor[s] the admission of statements which are not

technically admitted for the truth of the matter asserted, whenever the matter asserted, without

regard to its truth value, implies that the defendant is guilty of the crime charged.” Id. Here,

Mason contends that evidence that Jeffries feared she would be killed if Mason were arrested

went directly to the contested issue of Mason’s specific intent to kill.

Even assuming Mason’s position is correct, under the precedent in place at the time of

Mason’s trial, the admission of hearsay testimony did not violate the Confrontation Clause where

the testimony fell under an established hearsay exception. See Roberts, 448 U.S. at 66. In this

case, Jeffries’ statement was admissible as an excited utterance, that is, “[a] statement relating to

a startling event or condition, made while the declarant was under the stress of excitement that it

caused.” Fed. R. Evid. 803(2); Pa. R. Evid. 803(2); see also Kontakis v. Beyer, 19 F.3d 110, 119

(3d Cir. 1994) (“excited utterance” hearsay exception is “firmly rooted” and satisfied

Confrontation Clause under then-governing Roberts). “The basis for the ‘excited utterance’

exception . . . is that such statements are given under circumstances that eliminate the possibility

of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the

making of the statement provide sufficient assurance that the statement is trustworthy . . . .”

Idaho v. Wright, 497 U.S. 805, 820 (1990).

Here, Jeffries had just been informed by Brown that the latter would be arresting Mason

regardless of whether Jeffries wanted to press charges, to which Jeffries responded that if Brown

did arrest Mason, Mason would kill Jeffries. The circumstances surrounding Jeffries’ statement

sufficiently demonstrate that she was under the stress of the excitement caused by Brown’s

decision to arrest Mason when she issued her statement; indeed, the statement relates directly to

Brown’s decision to arrest Mason and was issued by Jeffries immediately upon learning of

Brown’s decision. Because Brown’s testimony was admissible under the excited utterance

exception to the hearsay rule, Mason fails to meet his burden of showing that his trial counsel’s

failure to object to this testimony and his direct appeal counsel’s failure to raise this issue on

appeal “fell below an objective standard of reasonableness.” See Strickland, 466 U.S. at 687.

Thus, Claim Two will be denied. Because Mason fails to establish that trial counsel’s

performance was deficient, the prejudice prong of the Strickland analysis need not be addressed.

2. Claim Three

In Claim Three, Mason claims that trial counsel rendered ineffective assistance by failing

to object during the jury selection process to peremptory challenges exercised by the prosecution

which, according to Mason, demonstrated that the prosecutor was intentionally discriminating

against female venire members on the basis of their gender.3

The Equal Protection Clause bars the use of peremptory challenges against potential

jurors on the basis of race, Batson v. Kentucky, 476 U.S. 79, 88-89 (1986), or gender, J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 141-42 (1994). To succeed on Claim Three, Mason must, as

discussed above, “show both that his counsel provided deficient assistance and that there was

prejudice as a result.” Richter, 562 U.S. at 104. With respect to the first prong, counsel’s

performance could only be deficient if there was a reasonable likelihood that his proposed

Batson objection to the Commonwealth’s use of its peremptory challenges would have been

sustained.

3 At times, Mason appears to frame Claim Three as a substantive Batson claim, rather than a claim of ineffective

assistance arising from trial counsel’s failure to raise a Batson challenge during jury selection. However, “in failing

to raise an objection at trial to the prosecutor’s use of peremptory challenges, [Mason] forfeited his right to raise a

Batson claim on appeal.” Clausell v. Sherrer, 594 F.3d 191, 194-95 (3d Cir. 2010) (citing Lewis v. Horn, 581 F.3d

92, 102 (3d Cir. 2009)). Thus, Mason’s claim concerning the jury selection process is one of ineffective assistance

of counsel.

To state a Batson claim, the party asserting the claim must first establish a prima facie

case of purposeful discrimination. “Establishment of a prima facie case requires the defendant to

show that ‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’”

Williams v. Beard, 637 F.3d 195, 214 (3d Cir. 2011) (quoting Johnson v. California, 545 U.S.

162, 168 (2005)). While “[t]his step is not intended to be particularly onerous,” the Third Circuit

has “emphasized that ‘peremptory strikes are presumptively valid’ and ‘need not be supported by

any reason’ so long as they are not ‘exercised on an unconstitutional basis,’” such as gender. Id.

(quoting United States v. DeJesus, 347 F.3d 500, 505 (3d Cir. 2003)). The Supreme Court has

identified “a ‘pattern’ of strikes against [female] jurors included in the particular venire” and “the

prosecutor’s questions and statements during voir dire examination and in exercising his

challenges” as relevant to whether the defendant has established a prima facie case of

discrimination. See Batson, 476 U.S. at 96-97; see also Copenhefer v. Horn, 696 F.3d 377, 391

(3d Cir. 2012) (relevant considerations at first step of Batson analysis are “(1) the number of

[female] members in the panel; (2) the nature of the crime; (3) the [gender] of the defendant and

the victim (4) a pattern of strikes against [females]; and (5) the questions and statements during

the voir dire” (alterations in original) (quoting Holloway v. Horn, 355 F.3d 707, 722 (3d Cir.

2004))). If a prima facie case is established, the burden shifts to the user of the challenged

peremptory strikes to provide a gender-neutral explanation for its conduct. See Batson, 476 U.S.

at 97. The court then determines whether purposeful discrimination has been established by a

preponderance of the evidence. Id. at 98.

Here, Mason suggests that statistical evidence shows a pattern of discrimination sufficient

to establish a prima facie case of intentional gender discrimination, such that his counsel was

deficient for failing to raise a Batson objection at trial.4 The Third Circuit has found that such

statistical evidence is relevant at the first stage of the Batson inquiry. See Abu-Jamal v. Horn,

520 F.3d 272, 290 (3d Cir. 2008). Particularly relevant are the prosecution’s strike and exclusion

rates: The strike rate “is computed by comparing the number of peremptory strikes the

prosecutor used to remove [female] potential jurors with the prosecutor’s total number of

peremptory strikes exercised,” whereas the exclusion rate “is calculated by comparing the

percentage of exercised challenges used against [female] potential jurors with the percentage of

[female] potential jurors known to be in the venire.” Id.

Mason states that the prosecutor exercised 14 of his 18 peremptory strikes against

women, accepting 9 men and striking 4 and accepting 10 women and striking 14. Thus, the

prosecution struck female potential jurors at a rate of 78%. He further states that the prosecutor

had the chance to strike 24 women and struck 14, for an exclusion rate of 58.3%. By contrast, he

states that the prosecutor had the chance to strike 13 men and struck 4, for an exclusion rate of

30.7%. Even assuming the accuracy of these figures, Mason fails to provide any authority

finding a prima facie case of intentional discrimination under similar circumstances. See, e.g.,

Williams, 637 F.3d at 215 (finding prima facie showing where the venire was less than 40%

black and black jurors were struck at a rate of 87.5%); Howard v. Horn, 56 F. Supp.3d 709, 723

(E.D. Pa. 2014) (exclusion rate of 58.3% insufficient to raise an inference of discrimination).

It is, moreover, undisputed that the prosecutor accepted more female venire members

than male venire members and that a majority—namely, 8 out of 12—of the jurors who served

on Mason’s jury were women. See, e.g., Copenhefer, 696 F.3d at 391 (no inference of

4 Mason also notes that a “review of the qualifications of the struck women” establishes a prima facie case of gender

discrimination, explaining that “[n]either [the jurors’] brief account of their life circumstances, nor their responses in

voir dire gave any apparent non-gender grounds for the strike.” However, whether there is a neutral explanation for

the prosecution’s exercise of its peremptory challenges is not relevant at the first step of the Batson analysis.

discrimination where “there was an equal number of each gender on the jury that actually

deliberated”); Bond v. Beard, 539 F.3d 256, 269 (3d Cir. 2008) (inference of intentional

discrimination undermined where black jurors ultimately formed a larger percentage of the jury

than they did of the venire panel). Considering “the totality of the relevant facts,” see Johnson,

545 U.S. at 168, Mason’s statistical evidence is insufficient to make out a prima facie Batson

claim. And because the record does not indicate that a Batson challenge was likely to succeed,

Mason fails to meet his Strickland burden of establishing that his trial counsel was deficient for

failing to make a Batson objection or that his direct appeal counsel was deficient for failing to

raise this issue on appeal.5 See Johnson v. Tennis, 549 F.3d 296, 301 (3d Cir. 2008). Thus,

Claim Three will also be denied.6

An appropriate order follows.

August 20, 2021 BY THE COURT:

/s/Wendy Beetlestone, J.

_______________________________

WENDY BEETLESTONE, J.

5 Mason’s reliance on a declaration of trial counsel obtained by Mason’s postconviction counsel is misplaced. He

characterizes trial counsel as able to “offer no reason for failing to raise this claim,” implying that counsel may have

thought there was a potentially-meritorious Batson claim to raise. This characterization misreads the declaration,

which states that trial counsel did not remember “any issues of race and gender discrimination” arising during jury

selection.

6 Mason contends that this Court cannot resolve his claims without holding an evidentiary hearing. “[A] district

court is permitted to hold an evidentiary hearing on a claim asserted in a § 2254 petition so long as such a hearing is

not barred by 28 U.S.C. § 2254(e)(2).” Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010). “Under that section,

a habeas court is barred from holding the evidentiary hearing unless the petitioner was diligent in his attempt to

develop a factual basis for his claim in the state court proceedings, or the petitioner satisfies the criteria set forth in §

2254(e)(2)(A) and (B).” Id. (citation and footnote omitted). Otherwise, the district court has discretion to decide

whether to hold a hearing. Schriro v. Landrigan, 550 U.S. 465, 468 (2007). In exercising this discretion, the court

“must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if

true, would entitle the applicant to federal habeas relief.” Id. at 474. “[I]f the record refutes the applicant’s factual

allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.

Because the record in this case precludes habeas relief, an evidentiary hearing is unnecessary.