EDMONDS v. CAPOZZA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMIR EDMONDS : CIVIL ACTION

:

v. : NO. 20-6161

:

MARK CAPOZZA, et al. :

AMENDED MEMORANDUM1

KEARNEY, J. February 17, 2022

A Delaware County, Pennsylvania jury of white citizens convicted an African American

man after his lawyer twice challenged the potential jury pool consisting of one African American

among the seventy potential jurors. The trial judge held an evidentiary hearing on trial counsel’s

objections. The judge evaluated the testimony of two officials explaining the County’s race-neutral

jury summons process. The judge found no constitutional error in the random selection of the

seventy citizens in the jury pool based on several data points. The Pennsylvania courts denied the

appeal from the conviction and post-conviction petition including arguments challenging the

panel. The man now seeks habeas relief from his conviction arguing the trial judge violated federal

law by denying his objection to the jury pool containing only one African American. Judge Reid

recommends we deny this claim. The man objects to Judge Reid’s recommendation. But he also

adds—should we agree with Judge Reid—we should find ineffectiveness by his trial and appellate

counsel for not presenting statistical and census data when contesting the jury pool.

We adopt and approve Judge Reid’s recommendation and overrule the man’s one

objection. We also deny the man’s new claim of ineffectiveness based on his counsel’s conduct in

evaluating the jury pool as waived and untimely. We deny the petition for habeas relief and a

certificate of appealability.

I. Background

A Pennsylvania trial jury of entirely white citizens sitting in Delaware County convicted

African American Jamir Edmonds of first-degree murder on May 1, 2014 following a three-day

trial. On the first day of trial, and before the start of voir dire, Mr. Edmonds’s trial counsel objected

under Batson2 to the seventy-person jury panel because it contained only one African American.3

The trial court denied his objection.4

Mr. Edmonds’s counsel renewed his objection to the entire make-up of the jury panel as

consisting of only one African American and moved to strike the entire jury panel and have another

panel brought in for jury selection.5 The trial court then held a hearing on Delaware County’s jury

selection process. Nancy Alkins, Jury Administrator for Delaware County, and Eileen Paden,

Deputy District Court Administrator for the Commonwealth’s Administrative Office of

Pennsylvania Courts, testified.6 Ms. Alkins testified the County issued 800 summons for jury duty

through the Administrative Office of Pennsylvania Courts to citizens of Delaware County

compiled from voter registration, driver’s license, tax base, and welfare rolls; the data from which

the summons are based is updated each October by the Administrative Office of Pennsylvania

Courts; and the information loaded into the County’s system does not indicate a citizen’s race.7

Ms. Alkins testified of the 800 summons issued, 214 citizens appeared for jury duty on April 29,

2014.8 Ms. Alkins testified the process of issuing summons for a particular day is randomly

generated by computer.9 A computer program then randomly selected seventy people from those

who appeared for jury duty to enter the venire for Mr. Edmonds’s trial.10 Ms. Alkins testified she

did not know the racial composition of the 214 who appeared for jury duty on April 29, 2014 or

those who did not appear for jury duty.11 Ms. Paden also testified to the random selection of

prospective jurors drawn from driver’s licenses, voting registration, welfare lists, and tax rolls.12

The state court did not hear expert evidence regarding the racial demography of Delaware County.

The judge ruled the venire was not unconstitutionally defective.

The jury convicted Mr. Edmonds after three days of trial. The trial court sentenced Mr.

Edmonds to life imprisonment without the possibility of parole.

Mr. Edmonds’s appeal and post-conviction arguments.

Mr. Edmonds timely filed a direct appeal arguing the trial court erred in denying his motion

to strike the entire seventy-person jury panel because it contained only one African American,

erred in denying his Batson challenge to the Commonwealth’s for-cause strike of the only African

American juror, and erred in evidentiary motions not relevant here. The Pennsylvania Superior

Court affirmed the judgment of sentence.13 The Pennsylvania Supreme Court denied Mr.

Edmonds’s petition for allowance of appeal.

Mr. Edmonds filed a timely pro se petition for relief under Pennsylvania’s Post Conviction

Relief Act.14 He did not raise his ineffective assistance claim regarding statistical evidence. He

requested, and the post-conviction court appointed, counsel. Mr. Edmonds pro se moved to

discharge his post-conviction counsel and have the post-conviction court appoint new counsel. The

post-conviction court denied his motion. Post-conviction counsel filed a Finley “no merit” letter

and moved to withdraw his appearance.15 Mr. Edmonds responded to the “no merit” letter. Mr.

Edmonds failed to raise his ineffective assistance of counsel claim regarding statistical evidence

in his response to the “no merit” letter. The post-conviction court granted counsel’s application to

withdraw his appearance and noticed its intent to dismiss the post-conviction petition without an

evidentiary hearing.

The post-conviction court dismissed Mr. Edmonds’s petition. He timely appealed to the

Pennsylvania Superior Court. The Pennsylvania Superior Court refused to consider Mr.

Edmonds’s claims because he failed to file a Pennsylvania Rule of Appellate Procedure 1925(b)

statement and found his claims waived. The Pennsylvania Supreme Court denied a petition for

allowance of appeal.16

Mr. Edmonds’s five timely habeas claims.

Mr. Edmonds pro se filed a habeas petition raising five issues: (1) “Did the state courts

violate clearly established federal law where they denied Petitioner’s general Batson objection to

the fact that the entire jury pool contained only one African American?”; (2) “Did the state courts

violate clearly established federal law where they denied [Petitioner’s] Batson challenge by

striking the only African American juror of entire jury panel?”; (3) “Did the state courts misapply

clearly established federal law when they failed to find [trial counsel] ineffective for failing to call

[witness] to rebut the Commonwealth’s contention that the telephone conversation [Petitioner]

made from the Delaware County Jail contained discussions about receiving money for a contract

killing?”; (4) “Did the state courts misapply clearly established federal law when they failed to

find [trial counsel] ineffective for failing to investigate and present [witness] where [witness’s]

testimony would have verified the account of events that [Petitioner] gave in his statement to

police?”; and (5) “Did the state courts misapply clearly established federal law when they failed

to find [trial counsel] ineffective for failing to object to the presentation of Commonwealth witness

… solely for the purpose of having [witness] repeatedly refuse to answer questions in front of the

jury?”17

Mr. Edmonds did not claim ineffectiveness of counsel relating to the challenge to a fair

cross-section of Delaware County on the jury. Judge Reid found the fair cross-section jury habeas

claims fail on their merits and recommended we deny them.18 Judge Reid also found his three

ineffective assistance of counsel claims as procedurally defaulted and recommended we dismiss

them.19

Mr. Edmonds objects to one finding and raises a new ineffectiveness claim.

Mr. Edmonds objects only to Judge Reid’s recommendation we deny his habeas claim

based on a Batson challenge to the jury venire.20 Mr. Edmonds seemingly recognizes the difficulty

in his objection because he then suggests - should we adopt Judge Reid’s analysis - “it is clear”

his trial counsel and direct appeal counsel “rendered ineffective assistance of counsel at trial during

the … pre-trial hearing, in failing to present any statistical evidence to support [his] underlying

claim, as well as on direct appeal to the Superior Court of Pennsylvania.”21

Concerned with the timeliness and possible waiver of Mr. Edmonds’s alternative

previously unpleaded ineffectiveness claim, we ordered Mr. Edmonds show cause why his new

ineffectiveness “statistical evidence” claim is not time-barred.22 He responded if we find his new

ineffective assistance claim is procedurally defaulted, we should excuse his default under Martinez

v. Ryan.23 The Commonwealth responds Mr. Edmonds’s new ineffective assistance of counsel

claim is waived, time-barred, and not excused by Martinez.24

II. Analysis

We today review Mr. Edmonds’s one objection to Judge Reid’s recommendation. We

overrule this objection. The Supreme Court’s Batson analysis is not at issue when challenging the

entire jury panel. Rejecting Mr. Edmonds’s petition on the fair cross-section argument, Judge Reid

found Mr. Edmonds failed to argue a systematic exclusion of African American jurors violated his

right to a fair cross-section of County citizens and he failed to come forward with facts supporting

such an argument.25

Mr. Edmonds’s new ineffective assistance of counsel claim relating to statistical evidence

is waived and time-barred. There is no basis to allow Mr. Edmonds’s new ineffectiveness claim to

relate back to his timely habeas claims. We deny Mr. Edmonds’s habeas petition.

A. We overrule Mr. Edmonds’s objection to Judge Reid’s recommendation we

deny his challenge to the make-up of the jury panel.

Congress, through the Antiterrorism and Effective Death Penalty Act (“AEDPA”), directs

we “shall not” grant habeas relief “with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”26 As

the Supreme Court instructs, this is a “highly deferential standard for evaluating state-court

rulings” and “demands that state-court decisions be given the benefit of the doubt.”27 Mr. Edmonds

argues Judge Reid erred in finding the Pennsylvania Superior Court’s decision: (1) is not contrary

to federal law and (2) is not based on an unreasonable determination of the facts.

Mr. Edmonds first argues the Pennsylvania Superior Court violated clearly established

federal law by relying on Commonwealth v. Craver28 in denying his objection to the jury venire as

containing only one African American. In Craver, a criminal defendant convicted of murder in

Pennsylvania state court challenged the jury venire summoning procedures he claimed

systematically excluded from the pool of prospective jurors African Americans, a certain age-

range of adults, and the economically disadvantaged.29 Under the United States Supreme Court’s

decision in Duren v. Missouri, the “systematic exclusion” of persons during jury selection resulting

in jury pools “not reasonably representative of the community” denies a criminal defendant his

Sixth and Fourteenth Amendment rights to a jury “selected from a fair cross section of the

community.”30

Relying on Duren, the Pennsylvania Supreme Court in Craver held to establish a prima

facie violation of the right to a jury array fairly representative of the community, a defendant must

show: “(1) the group allegedly excluded is a distinctive group in the community; (2) the

representation of this group in venires from which juries are selected is not fair and reasonable in

relation to the number of such people in the community; and (3) this underrepresentation is due to

systematic exclusion of the group in the jury selection process.”31 The term “systematic” means

“caused by or inherent in the system by which juries were selected.”32 The elements articulated by

the Pennsylvania Supreme Court in Craver are identical to the elements in Duren.33

The Pennsylvania Superior Court reviewing Mr. Edmonds’s challenge to the jury venire

on direct appeal applied all three of the Craver elements and found he failed to make a prima facie

showing. It reasoned even if Mr. Edmonds met the first two prongs of the Craver elements, he did

not meet the third prong because he failed to argue the underrepresentation of African Americans

in the jury pool is due to a systematic exclusion.34 The Pennsylvania Superior Court cited to the

testimony of Ms. Alkins at the pre-trial hearing. Ms. Alkins testified to the random nature of the

jury selection process. She testified to four sources from which prospective jurors are selected:

voter registration lists; driver’s license lists; tax rolls; and welfare rolls. She testified the random

selection does not indicate the race of prospective jurors.35 Based on the evidence adduced at the

hearing, the Superior Court concluded the County’s jury summons procedure does not

systematically produce jury panels in which African Americans are underrepresented.36

Judge Reid concluded the Pennsylvania Superior Court properly applied the three Craver

elements to the testimony from the pre-trial hearing. Judge Reid found Mr. Edmonds, while

claiming a violation of his Sixth Amendment right to a fair cross-section of Delaware County

residents in his jury panel, did not argue the claimed violation is due to a systematic exclusion of

African American jurors or identify facts supporting such an argument. Judge Reid concluded the

Pennsylvania Superior Court’s reliance on Craver is neither contrary to nor an unreasonable

application of clearly established federal law.37

Mr. Edmonds objects to Judge Reid’s conclusion regarding the reliance and application of

Craver. He contends Judge Reid erred because it is the Commonwealth’s burden to “rebut the

prima facie showing of an absence of discriminatory intent” and, absent “statistical evidence

presented to the state court,” the testimony of Ms. Alkins at the pre-trial hearing is insufficient to

rebut the presumption.38

Mr. Edmonds does not provide authority the Commonwealth has the burden to “rebut the

prima facie showing of an absence of discriminatory intent.”39 He is incorrect on this burden. To

establish a prima facie claim of a fair cross-section violation under Craver and Duren, Mr.

Edmonds must show: “(1) blacks were a “‘distinctive’ group in the community”; (2)

“representation of [blacks] in venires from which juries [were] selected [was] not fair and

reasonable in relation to the number of such persons in the community”; and (3) “this

underrepresentation [was] due to systematic exclusion of [blacks] in the jury selection process.”40

If Mr. Edmonds meets his burden, the burden shifts to the Commonwealth to “bear[] the burden

of justifying this infringement by showing attainment of a fair cross section to be incompatible

with a significant state interest.”41 The Pennsylvania Superior Court concluded Mr. Edmonds did

not meet his burden at the third prong.

Mr. Edmonds did not meet his burden of showing underrepresentation of African

Americans caused by systematic exclusion in the jury selection process. We are guided by our

Court of Appeals’s 2019 analysis in Howell v. Superintendent Rockview SCI finding even if the

demographic analysis is found inadequate under Craver’s second prong, the jury array is

constitutionally permissible if the petitioner cannot show systematic exclusion in the jury selection

process.42 Our Court of Appeals instructs trial judges facing a fair cross-section challenge under

Craver’s third element must “consider the nature of the system, length of time studied, and ‘efforts

at reform to increase the representativeness of jury lists’ in determining whether the jury selection

system caused the under-representation.”43 Mr. Edmonds did not offer a basis to find “a large

discrepancy over time such that the system must be said to bring about the underrepresentation.”44

The testimony of Ms. Alkins and Ms. Paden at the pre-trial hearing confirmed the facially

neutral selection process: Delaware County issued 800 summons for jury duty through the

Administrative Office of Pennsylvania Courts to Delaware County citizens compiled from voter

registration, driver’s license rolls, tax base rolls, and welfare rolls; the data from which the

summons are based is updated each October by the Administrative Office of Pennsylvania Courts;

the information loaded into the County’s system does not indicate a citizen’s race;45 the process of

issuing summons for a particular day is randomly generated by computer;46 a computer program

then randomly selected seventy people from those who appeared for jury duty to go into the venire

for Mr. Edmonds’ trial;47 and Ms. Alkins testified she did not know the racial composition of the

citizens who appeared for jury duty or those who did not appear for jury duty.48

Mr. Edmonds did not present evidence to the contrary. We overrule Mr. Edmonds’s

objection to Judge Reid’s Report and Recommendation.

B. Mr. Edmonds’s new ineffective assistance argument is waived and time-

barred.

Mr. Edmonds asserts prejudice by trial counsel’s failure to gather statistical evidence to

support his burden of showing Delaware County systematically excluded African American jurors

from the jury panel. He argues this decision could not have been the result of a rational, strategic

decision. He argues post-conviction counsel’s failure to raise this issue is not a rational, strategic

decision. He argues trial counsel should have obtained: (a) census data from 2010-2014 for

Pennsylvania and Chester and Delaware Counties; (b) Pennsylvania Department of Motor Vehicle

records from 2001-2014; (c) voter registration lists for Delaware County; (d) state and federal tax

rolls for Chester and Delaware Counties; (e) Department of Public Welfare Rolls for Chester and

Delaware Counties; and (f) “any other sources of available records from which Petitioner’s petit

jury was chosen from.”49

1. Mr. Edmonds waived his new ineffectiveness claim.

Recognizing we may adopt Judge Reid’s sound analysis, Mr. Edmonds now pro se blames

his lawyers for failing to adduce the evidence necessary to strike the entire jury panel.

Mr. Edmonds cannot raise grounds for habeas relief for the first time in objections to a

magistrate judge’s report and recommendation. Local Rule of Civil Procedure 72.1 IV(c) requires:

“All issues and evidence shall be presented to the magistrate judges, and unless the interest of

justice requires it, new issues and evidence shall not be raised after the filing of the Magistrate

Judge’s Report and Recommendation if they could have been presented to the magistrate judge.”

Mr. Edmonds waived his new ineffective assistance of counsel claim.50

2. Mr. Edmonds’s new ineffectiveness claim is time-barred.

Mr. Edmonds’s new alternative ineffectiveness claim is also time-barred. Congress in

section 2244(d) provides a one-year statute of limitations “to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court.”51 Mr. Edmonds filed his

habeas petition on December 14, 2020 but he did not claim ineffective assistance of counsel for

failing to obtain statistical evidence to show systematic exclusion of African Americans from jury

pools. Mr. Edmonds did not raise this ineffective assistance of counsel claim until his October 8,

2021 Objections to Judge Reid’s Report and Recommendation, well after the one-year limitations

period. His new ineffective assistance of counsel claim is time-barred.

The statute of limitations begins to run from the latest of “(A) the date on which the

judgment became final by the conclusion of direct review or the expiration of the time seeking

such review; (B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the applicant was

prevented from filing by such State action; (C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on

which the factual predicate of the claim or claims presented could have been discovered through

the exercise of due diligence.”52 The statute of limitations is tolled “during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending.”53

Mr. Edmonds’s judgment of sentence became final on June 21, 2016, ninety days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal.54 Mr. Edmonds had one

year to file a post-conviction petition.55 Mr. Edmonds timely petitioned for post-conviction relief

on November 10, 2016, 142 days into his one-year period in which to file the post-conviction

petition. This left a balance of 223 days during which his one-year limitations period to file a

habeas petition remained tolled. The Pennsylvania Supreme Court denied Mr. Edmonds’s petition

for allowance of appeal on August 18, 2020. Mr. Edmonds had 223 days from August 18, 2020 to

file a habeas petition; that is, March 29, 2021.

Mr. Edmonds timely petitioned for habeas relief on December 14, 2020. He timely raised

two challenges to the state court’s holdings and three ineffectiveness challenges. He did not raise

an ineffectiveness claim based on counsel’s efforts during jury selection until objecting to Judge

Reid’s Report and Recommendation on October 8, 2021. His claim is untimely unless Mr.

Edmonds shows a basis for us to toll the limitations or the alternative claim can relate back to his

timely December 14, 2020 objections.

3. There is no basis to toll the limitations period.

Mr. Edmonds bears the burden of showing we can toll the one-year limitations period

under a theory of statutory tolling, equitable tolling, or based on actual innocence. He does not

argue for tolling. He offers no basis to toll the one year limitations period.

4. Mr. Edmonds’s new ineffectiveness claim does not relate back to his timely

ineffectiveness claims.

Habeas Corpus Rule 2(c) mandates petitioners to “specify all the grounds for relief

available” in their petition.56 The Federal Rules of Civil Procedure may be applied to habeas

proceedings to the extent they are not inconsistent with any applicable statute or rule.57 Habeas

petitions may be amended or supplemented to the extent provided in the rules of civil procedure

applicable to civil actions.58 Federal Rule of Civil Procedure 15 governs the amendment and

relation back of a habeas petition.59 “Amendments made after the statute of limitations has run

relate back to the date of the original pleading if the original and amended pleadings ‘ar[i]se out

of the conduct, transaction, or occurrence.’”60

The Supreme Court in Mayle v. Felix instructed an amended habeas petition does not relate

back when it “asserts a new ground for relief supported by facts that differ in both time and type

from those the original pleading set forth.”61 Claims asserted after the one-year limitations period

do not relate back simply because they relate to the same trial, conviction, or sentence.62

Mr. Edmonds’s newly asserted ineffective assistance theory does not relate back to his

timely habeas petition. His new claim is different in “time and type” to the five claims in his

original petition. Mr. Edmonds asserting ineffective assistance claims in his petition is insufficient

alone to relate back his new ineffective assistance claim.63 We assess whether the new claim is

“tied to a common core of operative fact” of the original claims to determine whether relation back

is in order.64 We will allow relation back if Mr. Edmonds’s timely petition gave the

Commonwealth “fair notice of the general fact situation and the legal theory” offered in his

untimely objections.65 Mr. Edmonds’s new claim is either unrelated to the general fact situations

raised in the five timely claims or raises an entirely different legal theory relating to the fair cross-

section claim.

Mr. Edmonds’s petition asserts three ineffectiveness claims relating to his lawyer’s

treatment of witnesses and evidence. He does not challenge his lawyer’s effectiveness in jury

selection. The factual basis of Mr. Edmonds’s ineffective assistance claim relates to his trial

counsel’s trial conduct. The timely claims relate to trial conduct and the belated claim relies

entirely on conduct occurring before trial began. The new claim is not related to the general same

conduct, transaction, or occurrence required for relation back.66

Mr. Edmonds’s two other timely habeas claims arguably challenge the same general facts

concerning jury selection as now raised in his untimely objection. One claim challenges the

striking of the only African American member of the jury pool under Batson. Those facts and legal

arguments are factually and legally distinct from the law and operative facts relating to the fair

cross-section of the County argument.

Mr. Edmonds’s remaining timely habeas claim challenges the Pennsylvania courts for not

striking the entire jury pool as violative of federal law. His claim focuses entirely on the state

courts’ alleged errors.

We could find this challenge falls within the same occurrence addressed in the untimely

objection and is arguably tied to a common core of operative facts.67 But there is no basis to find

the timely habeas claim gave fair notice to the Commonwealth of Mr. Edmonds changing his

theory and now arguing his failure to meet the burden under Craver is due to his lawyer’s

ineffective assistance. He is changing the entire legal theory. We cannot find a basis to allow an

ineffective assistance claim to relate back to a substantive claim simply because a Report and

Recommendation rejects the substantive claim. Mr. Edmonds is essentially saying: If I lose on the

substance which I have argued at every stage, then my loss is because my lawyers provided

ineffective assistance on this issue. The legal theories are not the same. The substantive claim

assumes the lawyers met their burden and the Commonwealth did not. It focuses on the facts

relating to the quantum of evidence reviewed by the state court. Mr. Edmonds’s alternative waived

claim focuses on whether his lawyers so deviated from the standard expected of counsel in criminal

matters so as to call into question the jury’s verdict. Mr. Edmonds repeatedly swore his lawyers

met the burden. He cannot now turn around and argue they did not in the same case with an entirely

different theory.

Mr. Edmonds’s newly asserted ineffective assistance claim based on his trial counsel not

adducing sufficient evidence to meet the standards do not relate back to his timely habeas petition.

C. We find no basis for a certificate of appealability.

“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court.”68 We may issue a certificate

of appealability if “the applicant has made a substantial showing of the denial of a constitutional

right.”69 A petitioner “satisfies this standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”70 We decline to issue

a certificate of appealability. Reasonable jurists could not disagree with our resolution of Mr.

Edmonds’s constitutional claims. Mr. Edmonds’s objections to Judge Reid’s Report &

Recommendation lack merit.

III. Conclusion

We overrule Mr. Edmonds’s Objection, approve and adopt Judge Reid’s detailed Report

and Recommendation, and deny and dismiss Mr. Edmonds’s habeas petition. Mr. Edmonds fails

to make a “substantial showing of the denial of a constitutional right” required under 28 U.S.C. §

2253(c)(2). We deny a certificate of appealability.71

1 We amend our February 16, 2022 Memorandum (ECF Doc. No. 28) only to correct an inadvertent

typographical error in a heading on page 5 without affecting the reasoning or basis for our February

16, 2022 Order (ECF Doc. No. 29).

2 Batson v. Kentucky, 476 U.S. 79 (1986).

3 Commonwealth v. Edmonds, No. 1936-13, Delaware County Court of Common Pleas, Notes of

Testimony (“N.T.”) April 29, 2014 at 3.

4 Edmonds, No. 1936-13, N.T. April 29, 2014 at 5.

5 Id. at 123-24; 130-32. Mr. Edmonds’s trial counsel also objected to the dismissal of the only

African American juror for cause on the Commonwealth’s motion. During voir dire, the only

African American on the panel indicated he does not understand English well, has a diagnosed

learning disability, received special education in school until the ninth grade, had difficulty

understanding the court’s instructions, and required the assistance of his girlfriend to fill out his

jury questionnaire. Id. at 84-101. The Commonwealth moved to strike the juror for cause based on

his learning disability making him unable to understand instructions. Defense counsel objected to

the motion to strike for cause. The trial court granted the Commonwealth’s motion to strike the

juror for cause, finding the reasons for striking the African American juror were race-neutral. The

Pennsylvania Superior Court affirmed the trial court’s decision. On habeas review, Judge Reid

concluded the state court’s decision is not contrary to federal law, whether the claim is a Batson

claim or an equal protection claim. Judge Reid also found the Pennsylvania Superior Court’s

decision is not based on an unreasonable interpretation of the facts because the sole African

American juror told the court his learning disabilities prevented his understanding of the court’s

instructions. Mr. Edmonds does not object to this portion of Judge Reid’s Report and

Recommendation.

6 Id. at 132-65; 165-79.

7 Id. at 147-48.

8 Id. at 149.

9 Id. at 148, 159.

10 Id. at 148-49. Ms. Alkins swore 214 of the 800 summons appeared for jury duty on the day Mr.

Edmonds’s trial began. Id. at 148. Of the 214, seventy were randomly selected to enter the pool

for Mr. Edmonds’s trial. Ms. Alkins swore of the 800 summons, 266 jurors qualified for jury duty,

attributing the number to requests for excuses for prospective jurors over the age of seventy; those

with medical issues; practicing attorneys; and approximately 200 people who ignored the

summons. Id. at 149-51.

11 Id. at 149-151.

12 Id. at 168-72.

13 Commonwealth v. Edmonds, No. 2294 EDA 2014, 2015 WL 6663271 (Pa. Super. Ct. Oct. 30,

2015).

14 42 Pa. Cons. Stat. § 9541, et seq.

15 Pennsylvania v. Finley, 481 U.S. 551 (1987).

16 Commonwealth v. Edmonds, No. 2506 EDA 2019, 2020 WL 1303728 (Pa. Super. Ct. Mar. 18,

2020).

17 ECF Doc. No. 1.

18 We may refer a habeas petition to Magistrate Judge Reid for “proposed findings of fact and

recommendations” for disposition. 28 U.S.C. § 636(b)(1)(B). If objections are filed to the proposed

findings and recommendations, we must conduct a de novo review of those portions of the Report

and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). We “may accept,

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

judge.” Id.

19 ECF Doc. No. 16.

20 ECF Doc. No. 19. As analyzed below, a challenge the jury fails to fairly represent a cross-section

of the community falls under Duren v. Missouri, 439 U.S. 357 (1979).

21 ECF Doc. No. 19 at 8.

22 ECF Doc. No. 21.

23 566 U.S. 1 (2012).

24 ECF Doc. No. 25.

25 ECF Doc. No. 16 at 9.

26 28 U.S.C. § 2254(d).

27 Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7

(1997) and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

28 688 A. 2d 691 (Pa. 1997).

29 Id. at 695.

30 Duren v. Missouri, 439 U.S. 357, 358-59 (1979) (internal quotations omitted) (citing Taylor v.

Louisiana, 419 U.S. 522 (1975)). In Duren, the Supreme Court held a Missouri law providing an

automatic exemption from jury service for women requesting not to serve constitutes systematic

exclusion violating the Constitution’s fair cross-section requirement. Id. at 359; see also Howell v.

Superintendent Rockview SCI, 939 F.3d 260, 262, 264 (3d Cir. 2019) (criminal defendants are

deprived of their Sixth Amendment right to a jury selected from a broad representation of the

community when distinctive groups are systematically excluded from the jury selection process)

(citing Duren, 439 U.S. at 363-64 and Taylor, 419 U.S. at 530-31)).

31 Craver, 688 A.2d at 696 (citing Duren, 439 U.S. at 364).

32 Id. (citing Duren, 439 U.S. at 366-67).

33 Under the Supreme Court’s analysis in Duren, a defendant claiming a violation of the “fair cross

section of the community requirement” must make a prima facie showing: “(1) that the group

alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this

group in venires from which juries are selected is not fair and reasonable in relation to the number

of such persons in the community; and (3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364.

34 Edmonds, 2015 WL 6664371 at *2.

35 Id. at *3.

36 Id.

37 ECF Doc. No. 16 at 8-9.

38 Mr. Edmonds now attributes the lack of statistical evidence to the ineffectiveness of his trial

counsel and direct appeal counsel, a claim we address in the next section.

39 ECF Doc. No. 19 at 7.

40 Howell, 939 F.3d at 265–66 (alterations in original) (quoting Duren, 439 U.S. at 364); United

States v. Savage, 970 F.3d 217, 254 (3d Cir. 2020) (quoting Duren, 439 U.S. at 364).

41 Savage, 970 F.3d at 254, n.31 (quoting United States v. Weaver, 267 F.3d 231, 237 (3d Cir.

2001)).

42 Howell, 939 F.3d at 269 (citing Weaver, 267 F.3d at 244).

43 Id. (quoting Ramseur v. Boyer, 983 F.2d 1215, 1234-35 (3d Cir. 1992) (en banc)).

44 Id. (quoting Weaver, 267 F.3d at 244).

45 Edmonds, No. 1936-13, N.T. April 29, 2014 at 147-48.

46 Id. at 148, 159.

47 Id. at 148-51.

48 Id. at 149-51; 168-72.

49 ECF Doc. No. 22 at 17.

50 See, e.g., Hawes v. Mahalley, No. 17-5316, 2020 WL 1508267, at *10 (E.D.Pa. Mar. 30, 2020)

(collecting cases finding “arguments cannot be raised for the first time in an objection to a

Magistrate Judge’s report and recommendation; rather any such arguments are deemed waived”);

Codner v. Warden-Pike Cnty., No. 15-5176, 2016 WL 5721199, at *4 (E.D. Pa. Oct. 3, 2016)

(same); see also Boston v. Mooney, 141 F. Supp. 3d 352, 365–66 (E.D. Pa. 2015); Ramos v. Kyler,

No. 03-2051, 2004 WL 828363, at *4 (E.D. Pa. Apr. 12, 2004).

51 28 U.S.C. § 2244(d)(1).

52 28 U.S.C. § 2244(d)(1).

53 Id. § 2244(d)(2).

54 Under Pennsylvania’s Post Conviction Relief Act, “a judgment becomes final at the conclusion

of direct review, including discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa. Cons.

Stat. § 9545(b)(3). The Pennsylvania Supreme Court denied the petition for allowance of appeal

on March 23, 2016. See Commonwealth v. Burton, 158 A.3d 618, 623, n.7 (Pa. 2016) (judgment

of sentence becomes final ninety days after Pennsylvania Supreme Court denies petition for

allowance of appeal).

55 42 Pa. Cons. Stat. § 9545(b)(1).

56 Rules Governing Section 2254 Cases, Rule 2(c)(1), 28 U.S.C. foll. § 2254.

57 Id. Rule 12.

58 28 U.S.C. § 2242.

59 Mayle v. Felix, 545 U.S. 644, 655 (2005).

60 Id. at 655.

61 Id. at 650.

62 Id. at 662.

63 See Hodge v. United States, 554 F.3d 372, 378 (3d Cir. 2009) (citing Mayle, 545 U.S. at 664)

(explaining court must assess whether both ineffective assistance claims are tied to common core

of operative facts).

64 See Mayle, 545 U.S. at 664.

65 Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004).

66 See Montanez v. Oberlander, No. 19-3730, 2021 WL 4757484, at *12 (E.D. Pa. March 1, 2021)

(citing Whitaker v. Superintendent Coal Township SCI, 721 F. App’x 196, 202 (3d Cir. 2018)).

67 Mayle, 545 U.S. at 664.

68 28 U.S.C. § 2253(c)(1)(A).

69 28 U.S.C. § 2253(c)(2).

70 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

71 Slack v. McDaniel, 529 U.S. 473 (2000).