Lark v. Secretary Pennsylvania Department of Corrections

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 07-9004

______________

ROBERT LARK

v.

*SECRETARY PENNSYLVANIA DEPARTMENT

OF CORRECTIONS, ET AL; THE DISTRICT ATTORNEY

OF PHILADELPHIA COUNTY;

THE ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA,

Appellants

*(Pursuant to Rule 43(c), Fed. R. App. P.)

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 01-01252)

Honorable John R. Padova, District Judge

______________

Argued February 2, 2011

BEFORE: McKEE, Chief Judge, and SCIRICA and

GREENBERG, Circuit Judges

(Filed: June 16, 2011)

______________

Maureen Kearney Rowley

Chief Federal Defender

Stuart B. Lev (argued)

Michael Wiseman

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106-0000

Attorneys for Appellee

Thomas W. Dolgenos (argued)

Chief, Federal Litigation

Ronald Eisenberg

Deputy District Attorney

Law Division

Arnold H. Gordon

First Assistant District Attorney

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Attorneys for Appellants

2

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OPINION OF THE COURT

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GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on appeal from a

final order entered in the District Court on July 5, 2007,

conditionally granting Appellee Robert Lark a writ of habeas

corpus, vacating his Pennsylvania state court death sentence,

and ordering the Commonwealth of Pennsylvania to retry Lark

within 180 days or release him. 1 See Lark v. Beard, 495 F.

Supp. 2d 488 (E.D. Pa. 2007) (“Lark II”). The Court granted the

writ based on Lark’s claim that at his trial the Commonwealth

violated the Fourteenth Amendment’s Equal Protection Clause

that the Supreme Court applied in Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712 (1986), when the Supreme Court reviewed a

prosecutor’s exercise of peremptory challenges in jury selection.

Appellants, the Secretary of the Pennsylvania Department of

Corrections, the District Attorney of Philadelphia County, and

the Attorney General of the Commonwealth of Pennsylvania

(collectively “the Commonwealth”), filed a timely notice of

1

The District Court, at the unopposed request of the

Commonwealth, issued an order on July 17, 2007, staying its

conditional grant of habeas corpus relief pending the outcome of

this appeal.

3

appeal from the Court’s order. For the following reasons we

will vacate the Court’s July 5, 2007 order and remand the case

for further proceedings.

II. BACKGROUND & PROCEDURE

We take the following facts from the Pennsylvania

Supreme Court’s opinion affirming the denial of Lark’s first

petition for state post-conviction relief:

[I]n late 1978, Lark robbed Tae Bong Cho while

putting a gun to the head of the victim’s infant

child. He was apprehended shortly after the

robbery and was charged with the crime.

Approximately two months later, Lark murdered

Mr. Cho in order to prevent him from testifying

against Lark in the robbery trial. No witness was

able to identify the killer, because he wore a ski

mask. However, Lark bragged to a number of

acquaintances that he had killed ‘the Korean.’

Lark failed to appear for trial on the robbery

charge and he was convicted in absentia.

Thereafter, Lark repeatedly threatened the

prosecutor in the robbery case and detectives

investigating the Cho homicide. He was captured

on January 9, 1980 after he took a mother and her

two small children hostage. While he was

barricaded inside the hostage’s house, he told

police: ‘I’ll kill you all like that [expletive] . . . I’ll

4

shoot you in the legs.’

Following capture, Lark was charged with

offenses related to the murder of Mr. Cho,

terroristic threats against the prosecutor in the

robbery case, and the kidnapping of the woman

and her two children. The first trial ended in

mistrial as the result of an inadvertent question

asked by the trial court . . . .

Commonwealth v. Lark, 698 A.2d 43, 46 (Pa. 1997).

At his second trial, in 1985, Peter Rogers represented

Lark, who is African-American, and assistant district attorney

John Carpenter represented the Commonwealth. 2 Voir dire

lasted for four days. 3 On June 7, 1985, the third day of voir

dire, after Carpenter exercised a peremptory challenge to strike a

female African-American juror, the following exchange

occurred:

Mr. Rogers: Your Honor, Before the other juror

comes in, can we . . . may the

2

Prior to his second trial, Lark moved to dismiss the charges

against him on double jeopardy grounds. The trial court denied

the motion and the Pennsylvania Superior Court, on

interlocutory appeal, affirmed. Commonwealth v. Lark, 479

A.2d 522 (Pa. Super. Ct. 1984).

3

Jury selection actually began on June 4, 1985, but inasmuch as

the Court did not make any selections on that day, we are

concerned only with June 5, 6, 7, and 10, 1985.

5

records be preserved to indicate the

racial composition of the jurors

who are coming by so as to

preserve an opportunity for me to

make a challenge that the

Commonwealth may in fact be

excluding all blacks who come

before this panel? Only way I can

determine that is if I have the

records made available to me. Not

today, Your Honor, but I just ask –

The Court: What records are we talking about?

Mr. Rogers: The records which will – that

defense counsel doesn’t get a

chance to see and I guess the

Commonwealth doesn’t but I think

it should indicate addresses, phone

numbers, race, things like that,

Your Honor.

Mr. Carpenter:Judge–

The Court: I don’t know that there’s any

indication of race at all.

Mr. Carpenter:My recollection is that–

Mr. Rogers: As of this afternoon, Your Honor,

he is striking all blacks.

Mr. Carpenter:Oh. How awful.

App. at 611-12.

The discussion between Rogers and the trial court

continued with Rogers insisting that Carpenter was striking

6

blacks and asking the court to preserve a record of the race of

the jurors. The trial court responded by asserting that there was

“nothing on the record as to who was white and who was black,”

and that there was no way to determine the race of the jurors.

Id. at 613. Rogers stated that he wanted the records preserved

only from the last jury panel and he was not arguing that

Carpenter had exercised his peremptory challenges in a

discriminatory manner during the prior two days of jury

selection. Carpenter stated, however, that he had not

systematically excluded jurors, pointing out that there were three

jurors on the panel of the same race as Lark. The trial court,

applying the law as it stood at the time of the trial, indicated that

“neither one of [the attorneys] has to give any reason for

[exercising a peremptory challenge].” Id. at 614. Ultimately,

the trial court denied Rogers’ request, indicating that there was

no record of the race of the jurors. Rogers did not raise the

equal protection peremptory challenge issue again.

On June 28, 1985, the jury returned a verdict finding

Lark guilty of first-degree murder, possession of an instrument

of crime, terroristic threats, and two counts of kidnapping. In

the penalty phase of the trial which followed, the jury found that

there were no mitigating circumstances but that there was one

aggravating circumstance--the murder of a state’s witness--and

set the penalty at death. The trial court denied all post-trial

motions and imposed Lark’s death sentence on April 24, 1986.

On April 30, 1986, six days after the court sentenced

Lark, the United States Supreme Court issued its opinion in

Batson v. Kentucky which lessened the burden of proof that

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), had

required for a defendant to show that a prosecutor engaged in

7

discriminatory jury selection. One year later, that Court

determined that the rule in Batson would apply retroactively to

all cases pending on direct review at the time that it decided

Batson. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,

716 (1987).

Lark filed a direct appeal from his conviction and

sentence to the Pennsylvania Supreme Court. 4 On that appeal

Lark, still represented by Rogers, did not raise a Fourteenth

Amendment Equal Protection Clause claim based on

Carpenter’s use of peremptory strikes during voir dire. On May

20, 1988, the Pennsylvania Supreme Court affirmed Lark’s

convictions and sentence. Commonwealth v. Lark, 543 A.2d

491 (Pa. 1988). Lark did not file a petition for a writ of

certiorari to the United States Supreme Court and thus the direct

review of his conviction and sentence was completed on August

18, 1988, 90 days after the Pennsylvania Supreme Court

affirmed his conviction. See U.S. Sup. Ct. R. 13. Nevertheless,

inasmuch as Lark’s direct appeal was pending at the time that

the Supreme Court decided Batson, the rule in Batson is

applicable to his case. 5

After completion of Lark’s direct appeal the judicial

4

Under Pennsylvania law, all sentences of death are directly

appealable to the state Supreme Court. 42 Pa. Cons. Stat. Ann.

§ 9711(h)(1) (West 1998); 42 Pa. Cons. Stat. Ann. § 722 (West

2004).

5

Of course, the applicability of Batson is subject to the various

jurisdictional and procedural rules that we discuss below.

8

proceedings in his case lay dormant as he did not file any further

applications or motions until six years later when, in November

1994, after the Governor of Pennsylvania signed a warrant for

his execution, he sought a stay of execution in the Philadelphia

Court of Common Pleas. That court denied Lark’s request for a

stay on November 7, 1994, following which on November 8,

1994, Lark filed a pro se motion in the District Court seeking an

order staying his execution. The District Court granted the stay

to enable Lark to file a state post-conviction petition. 6

On November 4, 1994, Lark filed his first Post

Conviction Relief Act (PCRA), 42 Pa. Const. Stat. Ann. § 9541

et seq. (West 1989), petition in the Philadelphia Court of

Common Pleas. After appointment of counsel, Lark filed an

amended PCRA petition on February 8, 1995, raising 25 claims

of trial court error and ineffective assistance of counsel but the

claims did not include an assertion that there had been a Batson

violation. The Commonwealth moved to dismiss the petition,

and the PCRA court, without holding an evidentiary hearing,

granted that motion. Lark appealed from the dismissal to the

Pennsylvania Supreme Court.

In April 1997, while Lark’s appeal was pending in the

Pennsylvania Supreme Court, the Philadelphia District

Attorney’s Office released a video tape (the “McMahon tape”)

6

The Pennsylvania Supreme Court also issued a stay to permit

the filing of a state post-conviction petition. See

Commonwealth v. Lark, Capital Appeal No. 77 (Pa. Nov. 10,

1994) (unpublished order). See Lark v. Beard, Civ. No. A 01-

1252, 2006 WL 1489977, at *2 (E.D. Pa. May 23, 2006).

9

in which former assistant prosecutor Jack McMahon instructs

his prosecutorial colleagues to exclude potential jurors on the

basis of race, gender, occupation, and neighborhood. On the

tape that McMahon made after the Supreme Court’s decision in

Batson, he advised against striking all African-Americans and

stated that his ideal jury would be composed of eight whites and

four blacks. 7 On July 1, 1997, Lark applied to the Supreme

Court of Pennsylvania for a remand of his PCRA petition to

allow him to assert a claim based on the McMahon tape. On

July 23, 1997, the Pennsylvania Supreme Court affirmed the

denial of post-conviction relief and on July 30, 1997, in a

separate order, it denied Lark’s application for a remand.

Commonwealth v. Lark, 698 A.2d at 52.

On August 29, 1997, Lark filed a second PCRA petition

in the Court of Common Pleas. In his second petition, Lark

advanced several claims predicated on newly discovered facts,

including a claim of discriminatory jury selection based on: (1)

the McMahon tape; (2) the prosecutor’s allegedly discriminatory

pattern of strikes; and (3) a report that Professors David Baldus

and George Woodworth had authored on jury selection practices

in Philadelphia capital cases from 1983-1993 (“the Baldus

study”). Lark requested discovery and an evidentiary hearing to

present evidence regarding the racial makeup of the jurors that

Carpenter had struck and his motivation for striking the jurors.

Lark also sought the hearing to present evidence regarding the

7

For a more comprehensive discussion of the contents of the

McMahon tape, see Wilson v. Beard, 426 F.3d 653, 656-58 (3d

Cir. 2005).

10

jury selection policies of the Philadelphia District Attorney’s

office. The PCRA court, without holding an evidentiary

hearing, denied the petition as untimely because Lark filed the

petition beyond the one-year statute of limitations applicable to

PCRA petitions. See 42 Pa. Stat. Ann. § 9545(b) (West 1998).

On appeal from the denial of post-conviction relief, the

Pennsylvania Supreme Court held that Lark’s Batson claim was

timely to the extent it was based on the McMahon tape because

the facts underpinning that claim did not become available until

the Philadelphia District Attorney’s Office released the tape in

April 1997, and thus Lark’s Batson claim insofar as based on the

McMahon tape came within the exception to the one-year

deadline for filing PCRA petitions predicated on newly

discovered facts. See id. at § 9545(b)(ii); Commonwealth v.

Lark, 746 A.2d 585, 588 (Pa. 2000). The court, however,

affirmed the PCRA court’s denial on the merits as it concluded

that the contents of the McMahon tape did not demonstrate that

Lark had made a prima facie showing that there had been

discrimination in the jury selection at his trial. Id. at 588-89.

The court also held that the remaining bases for Lark’s Batson

claims, namely the allegations arising from the race of each

potential juror and the prosecutor’s “Oh. How awful” statement

at trial, were present at the inception of his trial and thus did not

fall into an exception from the one-year rule in section 9545(b).8

8

In an alternative holding, the Supreme Court held that Lark

waived these claims because he did not raise them on direct

appeal or in his first PCRA petition. Inasmuch as the parties

agreed in the District Court that the Supreme Court applied only

the PCRA time bar and not the doctrine of waiver to deny

11

While his appeal was pending from the denial of his

second PCRA petition in the Pennsylvania Supreme Court,

Lark, in recognition of the possibility that if he did not act

promptly the Anti-Terrorism and Effective Death Penalty Act’s

(AEDPA) one-year statute of limitations would preclude him

from seeking federal relief, filed a habeas corpus petition in the

District Court. Lark admitted that his federal petition contained

unexhausted claims that had been included in his second PCRA

petition. The District Court dismissed the petition without

prejudice but ordered that the filing date that Lark filed another

petition would relate back to the date of the filing of the

dismissed habeas corpus petition. See Lark v. Beard, Civ. No.

A. 01-1252, 2006 WL 1489977, at *3 (E.D. Pa. May 23, 2006)

(“Lark I”).

On March 16, 2001, after the Pennsylvania Supreme

Court denied Lark’s appeal, he timely filed another habeas

corpus petition in the District Court, this time raising 15 claims.9

Lark’s Batson claims, we will not discuss the Supreme Court’s

waiver holding as a basis for procedural default. Lark v. Beard,

Civ. No. A 01-1252, 2006 WL 1489977, at *5 n.8 (E.D. Pa.

May 23, 2006).

9

The claims were: (1) The prosecutor used his peremptory

challenges in a racially discriminatory manner and as part of a

discriminatory policy of the Philadelphia District Attorney’s

Office, in violation of the Sixth, Eighth and Fourteenth

Amendments; (2) Trial counsel was ineffective during the guilt

phase of the trial by failing to object to, and opened the door for,

the admission of highly prejudicial, inadmissible evidence; and

12

he failed to investigate and present relevant and exculpatory

evidence; (3) Trial counsel was ineffective at sentencing for

failing to investigate, develop, prepare, or present available,

relevant and compelling mitigating evidence regarding Lark’s

childhood abuse; deprivations and mental health impairments;

and gave an ineffectual closing argument in which he failed to

ask the jury to find mitigating evidence; (4) The trial court erred

in answering the jury’s question regarding the “meaning” of the

death penalty in Pennsylvania; (5) Lark was forced to stand trial

a second time in violation of the Double Jeopardy clause of the

Fifth Amendment, after the prosecutor intentionally goaded

defense counsel into requesting a mistrial; (6) Lark is entitled to

relief from his death sentence because the penalty phase jury

instructions and verdict sheet indicated that the jury must find

mitigating factors unanimously; (7) The trial court’s instructions

on reasonable doubt at both phases of trial and on Lark’s burden

of proof at the penalty phase were unconstitutionally erroneous;

(8) Lark did not receive the meaningful “proportionality review”

that 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (West 1998) and

federal constitutional law mandated; (9) Lark’s death sentence

was the product of improper racial discrimination in violation of

the U.S. Constitution; (10) The Philadelphia District Attorney’s

policy of providing lodging and cash payments to witnesses

violates the U. S. Constitution; (11) Lark was denied his right to

an impartial jury and a fair trial when some jury members saw

him in handcuffs; (12) The trial court denied Lark a fair and

impartial trial because the voir dire failed to ensure that the

jurors selected would consider the possibility of a life sentence;

(13) The trial court violated Lark’s constitutional rights by

refusing to sever unrelated criminal charges from his capital

13

Lark filed a motion for an evidentiary hearing on his habeas

corpus petition but the Commonwealth objected to the granting

of that hearing as it contended that he was not entitled to an

evidentiary hearing on the Batson claim inasmuch as he failed to

develop a factual record for that claim in the state court. The

Commonwealth also objected to the Batson claim on the

grounds that it was unexhausted and procedurally defaulted

inasmuch as Lark failed to comply with the PCRA’s one-year

statute of limitations. See 42 Pa. Stat. Ann. § 9545(b).

In an order entered on May 23, 2006, the District Court

held that Pennsylvania’s one-year statute of limitations for

PCRA petitions was not in force at the time of Lark’s alleged

default and, relying in part on our holding in Bronshtein v.

Horn, 404 F.3d 700 (3d Cir. 2005), held that the time bar was

not an independent and adequate state law barrier to federal

habeas corpus review of Lark’s claims. Lark I, 2006 WL

1489977, at *7. In a related holding, the Court determined that,

inasmuch as the PCRA court and the Pennsylvania Supreme

Court denied Lark’s request for an evidentiary hearing pursuant

to the same one-year statute of limitations which it had found to

be an inadequate state ground to bar habeas corpus relief, Lark

had not failed to develop the factual basis of his Batson claim to

the end that 28 U.S.C. § 2254(e)(2) prevented the Court from

murder trial and when it allowed evidence of Lark’s prior

criminal activity to be introduced; (14) State court counsel was

ineffective to the extent he failed to raise the claims Lark now

raises; (15) Lark is entitled to relief from his conviction and

sentence because of the prejudicial effects of the cumulative

errors in his case.

14

exercising its discretion to grant him an evidentiary hearing.

The Court also found that Lark alleged facts, which if proven

true, would establish a prima facie showing that Carpenter

exercised peremptory challenges based on race. In particular,

Lark alleged that Carpenter’s high strike rate of African-

American jurors, the absence of any race-neutral reasons for the

strikes in the transcripts, and the trial prosecutor’s remark of

“Oh. How awful” in response to defense counsel’s comment

that he was striking all the blacks from the jury, demonstrated a

Fourteenth Amendment Equal Protection Clause violation.

Finally, the Court exercised its discretion and granted Lark an

evidentiary hearing on his claim of jury discrimination and

ineffective assistance of counsel at the guilt and sentencing

phases of his trial. 10

At the evidentiary hearing on November 8, 2006, the

Commonwealth presented Carpenter’s testimony to answer the

allegations that he struck jurors based on their race. Carpenter

testified that at the time of Lark’s trial he had been a prosecutor

for ten years, and had not received formal training on jury

selection practices, the Philadelphia District Attorney’s Office

did not have formal rules about how to make peremptory strikes,

and, although he knew Jack McMahon, that he did not take

directions from him on how to pick a jury. Apparently referring

10

The Commonwealth has conceded that Lark’s trial counsel

was ineffective for failing to investigate and present mitigating

evidence in the penalty phase of the trial. However, inasmuch

as the Batson claim is the only issue before us on this appeal, we

will not discuss the ineffective assistance of counsel claim any

further.

15

to the time of the evidentiary hearing as McMahon did not make

the tape until after Lark’s trial, he said that while he had heard

of the McMahon tape he had never seen it and was not familiar

with its contents. Carpenter also stated that while he was aware

that systematic exclusion of jurors based on race “wasn’t right”

under the law at the time of the trial, he was unsure, prior to

Batson, whether the law permitted a prosecutor to strike

individual jurors on the basis of their race. App. at 1021.

Carpenter further testified that he remembered Lark’s

trial because it was the only case in which he obtained a death

sentence and because of his tense relationship with Rogers

during the trial. In preparation for his testimony at the

evidentiary hearing, Carpenter reviewed the transcript of the

voir dire but he could not recall much of that process and could

not recall specific jurors. Carpenter also reviewed the

handwritten notes he took during jury selection, but they did not

refresh his recollection of his reasons for his strikes of

individual jurors and Carpenter testified that, while he used

abbreviations and symbols, he was not systematic in his note-

taking. 11

11

The record contains only Carpenter’s notes from the last two

days of jury selection. We note that even these records are

incomplete as some jurors questioned in the transcript do not

appear on Carpenter’s jury sheets. On the third day of the voir

dire Carpenter wrote letter symbols such as “A,” “D,” “H,” and

“J,” as well as word notations. On the fourth day, he used

numbers corresponding to a key he placed at the bottom of the

page. Carpenter identified the letter “D” as corresponding to a

possible bias in favor of the defendant. He identified the symbol

16

The Commonwealth then questioned Carpenter about

each of his individual peremptory strikes. Except as to one

juror, Charles Rabb, Carpenter had no independent or refreshed

recollection of reasons for any of the peremptory strikes he

exercised during Lark’s trial. However, based on the

circumstantial evidence that Carpenter provided, the District

Court found that the Commonwealth had offered race-neutral

reasons for every peremptory strike the Commonwealth

questioned him about except for three jurors. Inasmuch as the

District Court later based its grant of the conditional writ on

Carpenter’s failure to provide a race-neutral explanation for

these three jurors, we will focus on those jurors in this appeal.

However, we think it is important to recognize that, despite our

focus on these three jurors, on remand the District Court may

conclude at the third step of the Batson process that any one of

Carpenter’s 13 peremptory strikes against African-Americans

amounted to purposeful discrimination.

The first juror Carpenter could not recall striking and

could not provide circumstantial evidence for removing was

Shirley Sampson, an African-American female, who was the

subject of his first peremptory challenge. Carpenter could not

recall independently why he struck Sampson and when he read

the transcript of her questioning his memory as to why he struck

her was not refreshed. Carpenter, however, unequivocally

denied that he struck her because she was African-American and

“H” as indicating juror hardship. Although Carpenter could not

recall what the letter “A” symbolized, he denied that he used

that letter to denote a venireperson as an African-American.

17

averred that striking any juror because of his or her race was

legally and morally abhorrent to him.

Before proceeding to the next juror, the Commonwealth’s

attorney asked Carpenter questions about his general jury

selection practices. Carpenter stated that the neighborhood

where a potential juror lived was important because he did not

want jurors who lived near the defendant or the place where the

incident involved in the trial had occurred. Though Carpenter

indicated that he did not want a juror who lived too close to the

defendant or who lived close to the crime scene, he did not state

that he struck Sampson for either of these reasons. Later,

Carpenter testified that he took into account a potential juror’s:

(1) employment status and nature of employment, as having a

job showed that person had roots in the community but that he

nevertheless did not want teachers or social workers on the jury;

(2) a juror’s age, as older jurors were wiser and more

responsible; (3) children, as Carpenter did not want jurors who

had children who were the same age as the defendant; (4) home

ownership, as a homeowner had a stake in the community; (5)

hardship; (6) prior jury experience; (7) history as a victim of

crime or a witness or defendant in a criminal case; (8)

relationship with police officers, as Carpenter viewed jurors

positively if they had family members who were police officers;

(9) acquaintance with any potential witnesses in the trial; and

(10) feelings about the death penalty.

The second venireperson for whom Carpenter could not

give a specific reason, or a reason based on circumstantial

evidence, for striking was Florence Williams, also an African-

American female. Carpenter could not find anything

“particularly wrong” with Williams by looking at the trial

18

transcript. Id. at 1044. He, however, did state that there were

other circumstances that might not appear in the transcript,

“[f]or example, if I don’t like the juror, I think . . . it’s a good bet

she doesn’t like me.” Id. at 1045. When the District Court stated

that “there could have been body language there,” Carpenter

responded by saying “exactly.” Id.

As was the case with Williams, Carpenter could not

recall a specific or circumstantial reason for striking the third

juror, Edison Sisco, 12 an African-American male. Carpenter,

however, noted that neither he nor defense counsel asked Sisco

many questions. When asked whether there was anything in the

transcript which might indicate why he struck Sisco, Carpenter

answered “No. Except one thing he said was, when he was

asked when [sic] was the last school he attended, he said

Dobbins and then he said ‘No, Overbrook.’ I don’t know it

looks like he – I don’t know.” Id. at 1053.

After the hearing, the parties filed two stipulations as to

the race of potential jurors that Carpenter struck and seated on

the jury. The stipulated list of 29 persons included the race and

gender of the selected jurors, the selected alternates, and the

prospective jurors that Carpenter excused with peremptory

challenges. According to the stipulations, the jury in Lark’s

case was composed of four African-Americans and eight

Caucasians. Carpenter did not exercise all of the peremptory

12

Although the District Court referred to this juror as “Edison

Cisco,” the parties refer to him as “Edison Sisco,” and his name

appears as Sisco on the juror sheets from the trial.

We will adopt the parties’ spelling in this opinion.

19

strikes allotted to the prosecution and had five peremptory

strikes remaining at the end of voir dire; however, out of the 15

peremptory strikes Carpenter used, 13 were used to strike

African-Americans. Id. at 948-52.

On July 3, 2007, the District Court granted the writ on the

strength of the Batson claim, ordering the Commonwealth to

retry Lark within 180 days or release him. The Court examined

Lark’s claim under the familiar three-step Batson analysis:

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 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, 123 S.Ct. 1029,

1035 (2003) (hereinafter “Cockrell”) (citations omitted).

As we indicated above, the District Court, in its May 23,

2006 order holding that the one-year PCRA time bar was not an

independent and adequate ground to bar Lark’s petition in that

Court, determined that Lark met the first step of the Batson

20

inquiry.13 At the second step, the Court determined that because

Carpenter could not articulate a race-neutral reason for his

peremptory strikes of Sampson, Williams, and Sisco, the

Commonwealth failed to meet its burden of production. The

Court held that where the state fails to meet its Batson duty of

production at step two, the analysis ends with a finding that

there was a Batson violation. The Court did not reach the issue

of whether Lark’s reliance on the Baldus study and the

McMahon tape to prove discrimination at the third step

supported his Batson claim. 14 The Commonwealth filed a

timely notice of appeal challenging the Court’s conditional grant

of the writ. 15

III. JURISDICTION AND STANDARDS OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 2241 and 2254 and we have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253. The parties dispute the appropriate

standard of review. They agree that we exercise plenary review

over the Court’s conclusions of law and review its factual

13

Actually in its May 23, 2006 opinion and order the District

Court merely indicated that Lark made allegations satisfying the

first Batson step.

14

The District Court did not address any of Lark’s remaining

guilt phase claims.

15

The Commonwealth did not need a certificate of appealability

to appeal. See Hardcastle v. Horn, 368 F.3d 246, 253 (3d Cir.

2004).

21

findings for clear error. See Holloway v. Horn, 355 F.3d 707,

713 (3d Cir. 2004). But they differ with respect to the degree of

deference that we must afford the Court’s finding of intentional

discrimination in the jury selection process.

Lark asserts that once a district court concludes that a

petitioner has shown that there was intentional discrimination in

the jury selection process, a court of appeals may not reject that

determination unless the district court’s conclusion is shown to

be clearly erroneous. Wilson v. Beard, 426 F.3d 653, 668-69

(3d Cir. 2005). The Commonwealth characterizes this approach

as too simple and incorrect for use in this case, as it argues that

the District Court predicated its finding of intentional

discrimination on a misapplication of Batson’s legal principles.

Accordingly, the Commonwealth asserts that we exercise

plenary review of the Court’s finding.

Lark’s citation of Wilson for the standard of review is

misleading. In Wilson, we upheld a district court’s factual

finding of intentional discrimination at the third step of the

Batson analysis. Id. at 670. But the district court based that

finding on its credibility determination that the prosecutor acted

with a discriminatory intent in exercising his peremptory strikes.

Id. Here, the District Court did not base its decision on a

credibility determination nor did it proceed to the third step of

the Batson analysis. Rather, the Court ruled that the

Commonwealth did not offer any explanation for making the

three peremptory strikes and, therefore, as a matter of law, it

failed to meet its burden at step two of the Batson analysis. But

the Court’s approach here was problematic, for we have stated,

“the Batson inquiry ends and the conviction must be vacated at

the second stage of the analysis if the state’s explanation is such

22

that, taken at face value, it either demonstrates an equal

protection violation or would otherwise be inadequate as a

matter of law to support the conviction.” Johnson v. Love, 40

F.3d 658, 668 (3d Cir. 1994) (internal citation omitted).

Therefore, because the District Court did not indicate that

Carpenter’s explanations at step two demonstrated an equal

protection violation, the Court necessarily determined that

Carpenter’s explanations for using peremptory challenges to

strike Sampson, Williams, and Sisco were inadequate as a

matter of law. We will exercise plenary review over that legal

conclusion. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.

2002).

IV. DISCUSSION

A. Timely Batson Objection

First, the Commonwealth argues that Lark did not make

an adequate “Batson-style objection at trial,” and therefore,

under our precedent, he is not entitled to relief on the Batson

claim. Appellant’s br. at 13. Lark counters by asserting that the

Commonwealth impermissibly is raising this argument on

appeal for the first time. In reply, the Commonwealth asserts

that it raised the issue at several points in its original response to

the petition. Further, the Commonwealth argues that, inasmuch

as we have held that a timely objection at trial is required to

preserve a Batson claim, Lark has the burden to prove that he

raised a timely Batson objection at trial and thus the

Commonwealth did not need to raise the issue as an affirmative

defense. See Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir.

2009).

23

The Commonwealth argues that, in any event, in these

habeas corpus proceedings it raised Lark’s failure to object by

stating, in its response to Lark’s petition, that: (1) defense

counsel “objected to, at most, four peremptory challenges which

the prosecutor had made during the afternoon session of June 7,

1985”; (2) “trial counsel did not specify the exact strikes to

which he was objecting”; (3) “as a result of [Lark’s] dereliction

in pursuing the Batson claim in state court, the record was not

preserved”; (4) “[T]he record reflects that defense counsel told

the court he had what he needed to make a record, but he never

raised the subject again.” Appellant’s reply br. at 5 (internal

citations and quotation marks omitted).

These statements, however, did not put the District Court

on notice of the legal argument that the Commonwealth now

wishes to raise: that Lark’s objection at trial was not sufficient

and timely and Lark therefore has waived the Batson claim for

the purposes of federal habeas corpus review. 16 See Bagot v.

Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (stating that the

crucial question regarding waiver is whether the petitioner

presented the argument with sufficient specificity to alert the

district court). It is unsurprising, therefore, that the District

16

In fact, as Lark points out, the Commonwealth consistently

accepted the adequacy of Rogers’ objection in several

documents submitted to the District Court. See, e.g.,

Commonwealth’s Memorandum of Law, Lark v. Beard, 01-cv-

1252, at 38 (“On June 7, 1985, petitioner objected to certain

peremptory strikes of the prosecutor.”).

24

Court did not address this argument either in its May 23, 2006

order granting an evidentiary hearing or in its July 3, 2007 order

granting the conditional writ. The Court only held that “Lark’s

trial counsel, Peter Rogers, raised the issue of the

Commonwealth’s improper peremptory strikes during the voir

dire and sought to preserve a record of the racial composition of

the jury.” 495 F. Supp. 2d at 492. “As a general rule, we

do not consider on appeal issues that were not raised before the

district court.” Appalachian States Low-Level Radioactive

Waste Comm’n v. Pena, 126 F.3d 193, 196 (3d Cir. 1997)

(internal quotation marks omitted). Nevertheless, in

Appalachian States we noted that the enforcement of a waiver

involves the exercise of discretion and thus the rule providing

for waiver may be relaxed “whenever the public interest or

justice so warrants.” Id. (citations and internal quotation marks

omitted). But even if we held that it was appropriate to relax the

ordinary appellate review rule in order to consider the issue that

the Commonwealth raises, i.e., that Lark did not make an

adequate Batson objection at his trial, and we agreed with the

Commonwealth that a defendant must make a timely Batson

objection at trial to preserve a Batson issue and that the

requirement that he do so cannot be waived, we would find that

Lark made a timely objection at trial so as to preserve the

Batson issue for later habeas corpus review.

We have held that, even in trials before the Supreme

Court’s decision in Batson, a timely objection to the

prosecutor’s exercise of peremptory strikes is a prerequisite to

raising a Batson claim on appeal. Lewis v. Horn, 581 F.3d at

102, citing Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir.

2008), vacated on other grounds sub nom., Beard v. Abu-Jamal,

25

130 S.Ct. 1134 (2010).17 We explained that, “a timely objection

of racial bias involving jury composition would have alerted the

judge to errors that might be corrected in the first instance and

given the judge the opportunity to develop a complete record of

the jury selection process for appellate review.” Abu-Jamal, 520

F.3d at 282. Thus, in Abu-Jamal the petitioner forfeited his

Batson claim because he “did not object to the prosecutor’s use

of peremptory challenges at any point during voir dire or at his

1982 trial.” Id. at 283-84. Likewise, in Lewis we held that the

petitioner’s statement of “So prejudiced. So prejudiced,” and “I

knew he would do that” after the prosecution’s use of

peremptory strikes was not sufficient to alert the trial judge to a

claim that the prosecution was striking venire members in a

racially discriminatory manner. Lewis, 581 F.3d at 102.

As was true for the petitioners in Lewis and Abu-Jamal,

Lark’s trial was prior to the Supreme Court’s decision in Batson

and thus was at a time that Swain v. Alabama, 380 U.S. 202, 85

S.Ct. 824, set forth the standard governing the review of the use

of peremptory challenges. In order to show a Fourteenth

Amendment Equal Protection Clause violation under Swain, the

defendant had “to show a pattern and practice of racial

17

On the remand from the Supreme Court we adhered to the

result we reached in our vacated opinion and affirmed the

district court’s order granting the petitioner habeas corpus relief

to the extent that he had been sentenced to death in the state

court. Abu-Jamal v. Sec’y Pa. Dep’t of Corr., No. 01-9014,

____ F.3d. ____, 2011 WL 1549231 (3d Cir. Apr. 26, 2011).

But our opinion on the remand does not affect the dispositions

for which we cite our earlier opinion in that case in this opinion.

26

discrimination in jury selection across multiple prosecutions,”

Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir. 1996), but the

prosecutor did not need to give reasons for the use of individual

peremptory challenges to avoid a finding that there had been an

equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct.

at 837. An equal protection objection under Swain, however,

“necessarily states an equal protection violation subject to proof

under the Batson standard . . . .” Ford v. Georgia, 498 U.S. 411,

420, 111 S.Ct. 850, 856 (1991).

Here it is clear that Rogers, Lark’s trial attorney, raised a

timely objection to what he perceived was the prosecutor’s

exercise of discriminatory peremptory challenges. At the trial

on June 7, 1985, Rogers asked that:

[T]he records be preserved to indicate the racial

composition of the jurors who are coming by so

as to preserve an opportunity for me to make a

challenge that the Commonwealth may in fact be

excluding all blacks who come before this panel?

Only way I can determine that is if I have the

records made available to me.

App. at 611-12.

Counsel later stated that “as of this afternoon, your honor,

he is striking all blacks.” Id. at 612. The trial court refused to

make a record as it stated that there was no way to determine a

person’s race or color and that neither attorney had to explain

his reasons for exercising peremptory challenges. Rogers’

27

statements that the prosecutor was striking all of the black jurors

put the trial court on notice of Lark’s claim and distinguishes his

case from Lewis and Abu-Jamal. Specifically, Rogers timely

pointed out what he perceived was the Commonwealth’s racially

motivated peremptory strikes and he thus invited the trial court

to develop a record on the issue for appellate review. This

notice was all that Abu-Jamal requires. See Williams v. Beard,

637 F.3d 195, 208 n.12 (3d Cir. 2011).

The Commonwealth’s contentions that Rogers only made

a “vague request for records,” did not ask the trial court to order

Carpenter to explain himself, and only questioned the challenge

of four jurors, do not demonstrate that Rogers did not make an

objection at trial to the allegedly race based peremptory

challenges. Appellant’s reply br. 8-10 (internal quotation marks

omitted). It would have been futile for Rogers to ask that

Carpenter be required to explain the reason for his individual

peremptory challenges or for Rogers to renew the objection

when each African-American juror was excused for under the

Supreme Court case law at the time of Lark’s trial, individual

challenges in one case could not be the basis for finding that

there had been an equal protection violation. 18 See Swain, 380

18

The Commonwealth cites Galarza v. Keane, 252 F.3d 630,

638 (2d Cir. 2001), for the proposition that a party must raise an

objection in a manner that would allow a trial court to remedy

the problem at trial. Galarza is inapposite because the trial in

that case occurred three years after the Supreme Court’s

decision in Batson. Id. at 633.

28

U.S. at 222, 85 S.Ct. at 837. Indeed, the trial court indicated as

much when it stated that neither Carpenter nor Rogers had to

explain the reasons behind individual peremptory strikes.

We think it is also significant that even Carpenter

recognized that Rogers was attempting to raise a Fourteenth

Amendment Equal Protection argument when Carpenter stated,

referring to the Swain standard, that “there’s obviously not

systematic exclusion when you’ve got 3 members out of 9 who

are the same race as the defendant and his attorney.” App. at

616; see Swain, 380 U.S. at 227, 85 S.Ct. at 839. Further,

Rogers’ request for a record of the race of the jurors that

Carpenter struck sought the type of evidence that would support

(or refute) an equal protection violation under Swain. See id. at

223, 85 S.Ct. at 837 (“[W]hen the prosecutor in a county, 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, the Fourteenth Amendment claim takes on added

significance.”).

Therefore, even though Rogers’ statement that Carpenter

was striking “all the blacks” from the jury and his request that

the trial court make a record of the race of the jurors did not

raise an objection with “the clarity that appropriate citations

would have promoted,” his protest reasonably raised an equal

protection claim under Swain. Ford, 498 U.S. at 418, 111 S.Ct.

at 855. Thus, the objection was adequate to raise an equal

protection claim under Batson. Id. at 420, 111 S.Ct. at 856.

29

Finally, the Commonwealth argues that, even if Lark

properly objected to Carpenter’s peremptory strikes so as to

raise an equal protection claim, the trial court’s rejection of that

objection is entitled to deference. It is true that in the habeas

corpus context federal courts owe the same deference to implicit

state court factual findings as they afford to explicit state court

factual findings. See, e.g., LaVallee v. Delle Rose, 410 U.S.

690, 692, 93 S.Ct. 1203, 1204 (1973) (per curiam); Campbell v.

Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (“[A]n implicit

finding of fact is tantamount to an express one, such that

deference is due to either determination.”). Here, however, the

trial court’s response that it was impossible to determine the

race of the jurors and that counsel did not have to give reasons

for peremptory challenges, clearly was a refusal to engage in an

equal protection analysis rather than an implicit finding of fact

entitled to deference under 28 U.S.C. § 2254(e)(1). Cf.

Campbell, 209 F.3d at 289-90 (holding that state court made

implicit credibility finding entitled to deference where court

repeatedly stated that petitioner’s ineffective assistance of

counsel claim had no legal merit); see also Coombs v.

Diguglielmo, 616 F.3d 255, 263 (3d Cir. 2010) (citation

omitted) (“Where the state court fails to undertake a full step-

three analysis, as required by Batson, we will remand for the

district court to engage in independent fact-finding.”). 19

19

Of course, we do not fault the trial court for failing to engage

in the three-step analysis at a time that the Supreme Court had

not announced that a court should engage in that analysis.

However, the trial court, by refusing to make a record of the

race of the struck jurors, failed even to undertake or at least

30

In sum, even though Lark did not present his equal

protection claim with great clarity at the trial we will not reject

his Batson claim on the basis that he failed to advance a timely

Batson objection at trial.

B. Procedural Default

We next consider whether Lark procedurally defaulted

his Batson claim by failing to advance it properly in the

Pennsylvania courts. There has been a procedural default when

“a state court declined to address a prisoner’s federal claims

because the prisoner failed to meet a state procedural

requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111

S.Ct. 2546, 2554 (1991). As a matter of comity and federalism,

a federal court may not conduct habeas corpus review of a claim

which a petitioner has procedurally defaulted in state court.

Federal review, however, is available if the procedural rule that

the state court applied to bar a federal claim was not

“independent” and “adequate.” See Albrecht v. Horn, 485 F.3d

103, 115 (3d Cir. 2007) (internal citations omitted). A state

procedural rule is an inadequate ground to bar federal review if

it was not firmly established and regularly followed by the state

courts at the time it was applied. Bronshtein, 404 F.3d at 707.

Whether a procedural rule “was firmly established and regularly

applied is determined as of the date the default occurred, and not

as of the date the state court relied on it, because a petitioner is

entitled to notice of how to present a claim in state court.”

Albrecht, 485 F.3d at 115 (internal citations omitted).

initiate an analysis under the standard then in effect under

Swain.

31

Lark first attempted to raise a specific claim under Batson

when he unsuccessfully sought an order from the Pennsylvania

Supreme Court remanding his PCRA petition to the PCRA court

so that he could raise a Batson claim. Thereafter Lark filed a

second PCRA petition in 1997 raising a Batson violation as a

ground for relief and requesting that the court grant him an

evidentiary hearing to present proof of the race of the

venirepersons at his trial and to enable him to advance the

McMahon tape in support of his claim. The PCRA court,

without holding an evidentiary hearing, dismissed the petition as

untimely under the PCRA deadline set forth in 42 Pa. Cons.

Stat. Ann. § 9545(b).

On appeal from the dismissal of the second PCRA

petition, the Pennsylvania Supreme Court invoked section

9545(b)(1)(ii) 20 to hold that the petition so far as it asserted a

Batson claim was timely but only to the extent that Lark

predicated the claim on the McMahon tape. 746 A.2d at 588.

Thus, the court held that it could not review the Batson claim to

the extent Lark predicated it on the Baldus study, the

prosecutor’s “Oh. How awful,” statement, and the race of the

potential jurors inasmuch as those aspects of the claim were

ascertainable more than one year before Lark filed his second

PCRA petition, and a Batson claim on any of these three bases

did not fall within the exception set forth in section

20

Section 9545(b)(1)(ii) provides that a claim is not untimely if

“the facts upon which the claim is predicated were unknown to

the petitioner and could not have been ascertained by the

exercise of due diligence.”

32

9545(b)(1)(ii). Id. at 589. On the merits, the court held that the

McMahon tape was not sufficient to establish a policy of

discrimination by the prosecutors in the Philadelphia District

Attorney’s Office. Id. (citing Commonwealth v. Rollins, 738

A.2d 435, 443 n.10 (Pa. 1999)).

As we recently discussed in Morris v. Beard, 633 F.3d

185 (3d Cir. 2011), the PCRA one-year statute of limitations in

42 Pa. Cons. Stat. Ann. § 9545(b) was not firmly established and

regularly followed prior to 1998:

In Bronshtein, we explained that the PCRA’s one-

year statute of limitations was not an adequate

state bar to federal habeas review of claims

defaulted prior to, at the very least, October 20,

1998. [Bronshtein, 404 F.3d] at 709. Before that

date, Pennsylvania courts frequently applied a

‘relaxed waiver’ rule in capital cases. Id. In other

words, courts refused to enforce procedural rules-

-such as the PCRA’s one-year statute of

limitations--in capital cases because of the

‘overwhelming public interest in preventing

unconstitutional executions.’ Id. at 708 (quoting

Commonwealth v. McKenna, 476 Pa. 428, 383

A.2d 174, 180-81 (Pa. 1978)) (internal quotation

marks omitted). Although a trio of Pennsylvania

Supreme Court decisions in 1998 and 1999

interred the relaxed waiver doctrine, see, e.g,

Commonwealth v. Banks, 556 Pa. 1, 726 A.2d

374 (Pa. 1999), we observed in Bronshtein that it

was not clear that the rule would be unavailable as

of October 20, 1998--the date of Bronshtein’s

33

default. See 404 F.3d at 709-10. Because the

PCRA’s one-year statute of limitations ‘was not

firmly established and regularly followed’ as of

that date, we held it was an inadequate state bar to

federal habeas review of Bronshtein’s claims. Id.

Morris, 633 F.3d at 191.

Here, the default in the timeliness of the filing of Lark’s

second PCRA petition was on January 16, 1996, 21 or the

effective date of the PCRA time bar, at a time that the PCRA

one-year time bar was not firmly established due to the

21

The District Court set the default date as August 18, 1989, or

one year after completion of the direct appeal in Lark’s case, but

that date fails to account for the statutorily created one-year

grace period for filing PCRA petitions where, as here, the

judgment of sentence became final before the effective date of

the time bar, or January 16, 1996. See Commonwealth v.

Peterkin, 722 A.2d 638, 641 (Pa. 1998). Lark’s first PCRA

petition, filed in 1994 and thus before the one-year deadline,

was not subject to the one-year deadline. Inasmuch as the grace

period does not apply to second or subsequent petitions, the date

of default for the second petition is the effective date of the time

bar or January 16, 1996. See Commonwealth v. Crawley, 739

A.2d 108, 109 (Pa. 1999). As a matter of law, however, the

error has no consequence on this appeal because the relaxed

waiver rule was followed in Pennsylvania until after the default

here.

34

Pennsylvania Supreme Court’s “relaxed waiver” rule. 22

Bronshtein, 404 F.3d at 708 (citing Commonwealth v.

McKenna, 383 A.2d 174 (Pa. 1978)). Therefore, as we held in

Bronshtein and most recently re-affirmed in Morris in a similar

situation, the one-year PCRA time bar cannot justify a federal

court determination that Lark’s Batson claim has been

procedurally defaulted.

The Commonwealth argues that the state time-bar rule

was an adequate basis to find that Lark had procedurally

defaulted his Batson claim because he had notice of the time bar

which the Pennsylvania General Assembly made explicitly

applicable to capital cases and, further, that the Pennsylvania

Supreme Court never applied the relaxed waiver rule to the time

bar. But our reasoning in Bronshtein refutes these arguments

and we have reaffirmed the Bronshtein reasoning in subsequent

cases and, therefore, we need not address the Commonwealth’s

arguments any further. 23 See Morris, 633 F.3d at 195; Holland

v. Horn, 519 F.3d 107, 115 (3d Cir. 2008).

In holding that the time bar was not an independent and

22

The Pennsylvania Supreme Court since has made it clear that

it no longer would relax procedural requirements in capital

cases. See Whitney v. Horn, 280 F.3d 240, 251 n.12

(3d Cir. 2002).

23

The Commonwealth seems to acknowledge this point, stating

that it was including the procedural default argument in order to

preserve the issue for “possible en banc or

Supreme Court review.” Appellant’s br. at 34.

35

adequate state ground for denying relief for purposes of a later

procedural default analysis in a federal district court, we have

considered the two most recent Supreme Court decisions

addressing the adequate and independent state rule doctrine,

Walker v. Martin, 131 S.Ct. 1120 (2011), and Beard v. Kindler,

130 S.Ct. 612 (2009). In Kindler, the Court considered a very

narrow question not implicated here: whether a state procedural

ground is automatically inadequate and unenforceable on federal

habeas corpus review because the state procedural rule is

discretionary rather than mandatory. Id. at 614-15.24 Similarly,

in Walker the Court held that California’s judge-made rule that a

state habeas corpus petition “should be filed as promptly as the

circumstances allow . . .” is an independent and adequate state

rule for purposes of procedural default. Walker, 131 S.Ct. at

1125 (internal quotation marks and citation omitted). The Court

held that the California rule, though discretionary, met the

“firmly established” criterion because the California courts’

application of the rule in particular circumstances supplied the

requisite clarity for habeas corpus petitioners. Id. at 1128.

24

Kindler vacated our decision in Kindler v. Horn, 542 F.3d 70

(3d Cir. 2008), in which we held that the Pennsylvania fugitive

forfeiture doctrine pursuant to which the petitioner’s conviction

was affirmed did not provide an adequate basis to bar federal

habeas corpus review. On the remand from the Supreme Court

we adhered to our prior result on the ground that the

Pennsylvania courts rather than applying a discretionary rule

“applied a mandatory rule that represented a break from past

decisions.” Kindler v. Horn, No. 03-9010,____ F.3d ____,

____, 2011 WL 1602083, at *1 (3d Cir. Apr. 29, 2011).

36

Further, the rule was “regularly followed” even though at times

the California courts bypassed the rule and summarily dismissed

petitions on the merits. Id. at 1129.

The Supreme Court’s holdings in Walker and Kindler

have not affected our holding in Bronshtein that prior to 1998

capital petitioners in Pennsylvania could rely on state courts to

relax procedural rules, including the one-year PCRA time bar.

Bronshtein, 404 F.3d at 709. 25 Both Walker and Kindler

concerned discretionary and independent state procedural rules

which state courts consistently applied to bar federal claims. In

contrast, Pennsylvania’s PCRA time bar is a facially mandatory

state procedural rule which was not clearly followed in capital

cases at the time of Lark’s state court default due to the

Pennsylvania Supreme Court’s judicially created doctrine of

“relaxed waiver.” See, e.g., Bostick v. Stevenson, 589 F.3d

160, 165 n.6 (4th Cir. 2009) (“We do not read Kindler to apply

to facially mandatory rules that state courts nonetheless apply

arbitrarily.”). Indeed, by the Pennsylvania Supreme Court’s

own recognition, the “relaxed waiver” rule “virtually eliminated

any semblance of finality in capital cases . . . .” Commonwealth

v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). Thus, it cannot be

argued plausibly that the PCRA time bar regularly was followed

or firmly was established at the time of Lark’s procedural

default in 1996.

C. District Court Evidentiary Hearing

25

In any event, as we noted above, we applied Bronshtein’s rule

after the Supreme Court decided Kindler. See Morris, 633 F.3d

at 195.

37

The Commonwealth argues that, even assuming Lark’s

Batson claim is not procedurally defaulted, the District Court

should not have held an evidentiary hearing on the claim

inasmuch as Lark was not sufficiently diligent in pursuing his

Batson claim in state court as 28 U.S.C. § 2254 requires.

Section 2254(e)(2) provides that,

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.

38

28 U.S.C. § 2254(e)(2).

The Supreme Court has held that a failure to develop the

factual basis of a claim in the opening clause of section

2254(e)(2) “is not established unless there is lack of diligence,

or some greater fault, attributable to the prisoner or the

prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120

S.Ct. 1479, 1488 (2000). The Court distinguished the diligence

requirement of the opening clause of section 2254(e)(2) from the

diligence requirement of section 2254(e)(2)(A)(ii) by explaining

that the latter refers to cases in which the facts underlying a

claim could not have been discovered through due diligence

while the former asks only whether “the prisoner made a

reasonable attempt, in light of the information available at the

time, to investigate and pursue claims in state court . . . .” Id. at

435, 120 S.Ct. at 1490.

Thus, there is a separate fault requirement in the opening

clause of section 2254(e)(2) which asks whether the petitioner

adequately and diligently pursued the factual basis of his claim

in state court. If the petitioner fails in this regard and is

therefore “at fault,” the bar to relief in section (e)(2) is raised.

Otherwise, if the petitioner is not “at fault,” the court may

exercise its discretion to grant an evidentiary hearing. See

Campbell, 209 F.3d at 287 (stating that if section 2254(e)(2)

does not bar an evidentiary hearing, federal courts have

discretion to grant a hearing with the potential to advance the

petitioner’s claim). Here, the District Court held that because

the state court denied Lark’s request for an evidentiary hearing

based on an inadequate procedural rule, Lark did not fail to

develop the Batson claim and section 2254(e)(2) did not bar a

hearing in that Court. See Morris, 633 F.3d at 194-95 (citing

39

Wilson, 426 F.3d at 665). The Court, after finding section

2254(e)(2) inapplicable, exercised its discretion to grant Lark an

evidentiary hearing.

The Commonwealth contends that the District Court

improperly conflated diligence and procedural default. In

Wilson we stated that the procedural default doctrine and section

2254(e)(2)’s diligence requirement analytically were linked: “If

a petitioner requests a hearing to develop the record on a claim

in state court, and if the state courts . . . deny that request on the

basis of an inadequate state ground, the petitioner has not ‘failed

to develop the factual basis of [the] claim in State court

proceedings’ for the purposes of § 2254(e)(2).” Wilson, 426

F.3d at 665. Nevertheless, the Commonwealth argues that the

diligence standard sets a different and higher bar than the

procedural default doctrine and dismissal on the basis of an

inadequate procedural rule does not excuse years of dilatoriness

in state court. The Commonwealth also argues that Wilson is

distinguishable because McMahon himself prosecuted the

petitioner in that case and the petitioner could not have brought

the claim earlier because the tape was the “centerpiece” of his

Batson claim. Id. at 666 n.11. As the Commonwealth is quick

to point out, Lark was aware of the factual predicates of his

Batson claim – the pattern of the prosecution’s strikes, the race

of the jurors, and the prosecutor’s statement – as early as his

trial counsel’s objection during the jury selection process of his

case.

The Commonwealth makes a strong argument,

particularly inasmuch as the years of delay between the District

Court evidentiary hearing and the trial greatly prejudiced its

ability to respond to the Batson claim. As the Supreme Court

40

has noted, the principles of comity and federalism underlie the

diligence requirement:

Comity . . . dictates that when a prisoner alleges

that his continued confinement for a state court

conviction violates federal law, the state courts

should have the first opportunity to review this

claim and provide any necessary relief. For state

courts to have their rightful opportunity to

adjudicate federal rights, the prisoner must be

diligent in developing the record and presenting,

if possible, all claims of constitutional error.

Williams, 529 U.S. at 437, 120 S.Ct. at 1490-91 (internal

citation and quotation marks omitted).

It is undoubtedly reasonable to argue that Lark’s failure

to raise the Batson claim on direct appeal followed by his

inaction for six years before filing a post-conviction petition,

which even then did not raise a Batson claim, demonstrated that

he did not make a “diligent search for evidence.” Id. at 435, 120

S.Ct. at 1490. Moreover, Rogers, who was Lark’s counsel on

his direct appeal as well as at trial, was clearly aware of a

potential discriminatory jury selection claim for, as we have

discussed, he raised an objection to the prosecution’s strikes

during voir dire. Thus, though the McMahon tape and the

Baldus study may not have alerted Lark to a possibility of there

having been a “culture of discrimination” 26 in the Philadelphia

26

The District Court noted that the McMahon tape “could

conceivably reflect a culture of discrimination that is relevant to

. . . Lark’s Batson/Swain claim.” Lark I, 2006 WL 1489977, at

41

District Attorney’s Office until after his trial and direct appeal in

this case, see Cockrell, 537 U.S. at 347, 123 S.Ct. at 1045, we

reject Lark’s argument that he could not have been aware of his

Batson claim given the information available at the time of his

direct appeal and we also reject his argument that he could not

have discovered the claim through the exercise of a reasonable

investigation. Cf. Williams, 529 U.S. at 439-40, 120 S.Ct. at

1492 (holding that petitioner failed to develop facts of Brady

claim where counsel was a aware of psychiatric report but failed

to investigate in anything but a “cursory manner”). After all, the

jury selection process took place in front of him. Moreover,

inasmuch as a Batson claim, unlike a Swain claim, can be

proven by the facts in a single case relating to jury selection,

Lark did not need “culture of discrimination” materials to

establish his claim.

We nevertheless reject the Commonwealth’s arguments

regarding the delay in this case because, after the

Commonwealth submitted its brief on this appeal but before the

oral argument, we rejected an almost identical argument in

Morris. In that case, the petitioner, Kelvin Morris, was

convicted of first-degree murder and sentenced to death in

Pennsylvania state court. After he filed an unsuccessful direct

appeal and an unsuccessful PCRA petition, Morris filed a

second PCRA petition in which he raised, for the first time, a

claim that his trial attorney’s representation of his brother, Artie

*8 n.15. We, however, since have held that a district court did

not clearly err in finding that the McMahon tape did not create a

culture of discrimination in the Philadelphia District Attorney’s

Office. Bond v. Beard, 539 F.3d 256, 273 (3d Cir. 2008).

42

Morris, in a civil suit created a conflict of interest that deprived

Morris of effective assistance of counsel in his criminal trial.

Morris, 633 F.3d at 190. The PCRA court dismissed the second

petition without holding an evidentiary hearing for the sole

reason that Morris filed the petition beyond the PCRA’s one-

year statute of limitations. Id. Morris then filed a federal

habeas corpus petition raising the same claim and requesting an

evidentiary hearing. The Commonwealth, as it does in this case,

argued that, because of the lengthy delay and the timing of

Morris’ claim,27 section 2254(e)(2) barred the district court from

holding an evidentiary hearing.

Inasmuch as the petitioner in Morris and Lark are in

almost identical procedural postures, we will quote from our

opinion in Morris at length:

One might argue that [Morris’] failure to comply

with the PCRA’s one-year statute of limitations

means that he did not seek a hearing ‘in the

manner prescribed by state law.’ Williams, 529

U.S. at 427, 129 S.Ct. at 1485-86. But such an

argument runs headlong into our holding in

Bronshtein, where we observed that the PCRA’s

time bar was neither ‘firmly established’ nor

‘regularly followed’ at the time [Morris] filed his

second PCRA petition. 404 F.3d at 709-10.

Because of the uncertainty surrounding

Pennsylvania’s use of the ‘relaxed-waiver rule’ at

that time, it was effectively impossible for

27

Morris filed the claim 13 years after the trial and one month

after his brother died.

43

[Morris] to fail to comply with Pennsylvania law

on statute of limitations grounds when filing his

second PCRA petition. In Williams, the Supreme

Court explained that a finding of diligence would

turn on whether a petitioner ‘made a reasonable

attempt’ to pursue his claim ‘in light of the

information available at the time.’ 529 U.S. at

435, 129 S.Ct. at 1490. With no ‘firmly

established and regularly applied rule’ clearly

barring [Morris’] lengthy delay, Bronshtein, 404

F.3d at 708, his belated hearing request was an

acceptable attempt to pursue his claim in light of

the information available to him at the time of

filing. Because the Pennsylvania state courts

failed to hold a hearing and rule on [Morris’]

conflict-of-interest claim ‘for some reason

unrelated to [his] diligence, § 2254(e)(2) [does]

not apply and a new evidentiary hearing [is]

permitted.’ Taylor v. Horn, 504 F.3d 416, 436 (3d

Cir. 2007).

As the Commonwealth correctly argues,

merely because a petitioner has complied with

state law when seeking an evidentiary hearing

does not mean that he has been diligent for

purposes of § 2254(e)(2). The jurisdictional

standard for procedural default of § 2254(a) and

the evidentiary hearing standard of § 2254(e)(2)

are distinct provisions that will frequently require

separate analyses. But where, as here, a state court

gives no reason for denying a petitioner’s hearing

44

request other than his failure to comply with a

subsequently invalidated state statute of

limitations, we cannot say that the petitioner was

not diligent for purposes of § 2254(e)(2).

Accordingly, we hold that § 2254(e)(2) did not

prohibit the District Court from conducting an

evidentiary hearing on [Morris’] conflict-of-

interest claim.

Morris, 633 F.3d at 195-96 (emphasis added).

In a letter filed pursuant to Fed. R. App. P. 28(j), the

Commonwealth attempts to distinguish Morris by arguing that

the rule we established in that case was the following: “where a

petitioner had the opportunity and forum to litigate the merits of

the claim in state court, but failed to do so, he is not diligent

under [section] 2254(e)(2) even though his later attempt to raise

the again [sic] is barred by an inadequate rule.” Appellant’s

28(j) letter dated January 31, 2011, at 1-2. But as the excerpted

portion above demonstrates, this is a misstatement of Morris’

holding. Rather, the holding in Morris was that section

2254(e)(2) does not bar an evidentiary hearing for lack of

diligence where the only reason a state court gives for denying

an evidentiary hearing is a subsequently invalidated state

procedural rule. This is exactly what happened in Lark’s case. 28

28

We are also unconvinced by the Commonwealth’s attempt to

distinguish Morris on the ground that the conflict of interest

claim in that case, unlike Lark’s Batson claim, occurred outside

the courtroom and thus the inadequate state procedural rule

45

Furthermore, the Commonwealth’s reliance on our

opinion in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), is

unconvincing. In Taylor, the petitioner obtained an evidentiary

hearing during his first PCRA hearing and, after the PCRA court

denied the claim, unsuccessfully sought to present new expert

witnesses testimony in a second PCRA petition raising the same

claim. We affirmed the district court’s denial of the request for

an evidentiary hearing under section 2254(e)(2) despite the

Pennsylvania Supreme Court’s dismissal of Taylor’s second

PCRA petition pursuant to an inadequate state procedural

ground: “Unlike the petitioner in Wilson, Taylor’s competency

claim was raised in his first PCRA petition and addressed on the

merits. His resurrection of the claim in his second PCRA

petition does not put it under Wilson’s rule.” Id. at 436-37. The

procedural posture of Lark’s case differs from that of the

petitioner in Taylor inasmuch as Lark is not attempting to get

two bites at the apple by requesting a district court hearing to

present new evidence which was available at the time of his

state court evidentiary hearing. Id. at 437 (“The only thing that

prevented Taylor from presenting his new evidence of

incompetency before the first PCRA court was a lack of

diligence.”). Rather, Lark is requesting a hearing because the

state court prevented him from presenting his evidence in the

first instance by the application of an inadequate procedural

rule. In that respect, Lark’s request, to the extent that his Batson

prevented Morris from presenting evidence in the only forum

available to him. This rationale clearly was not the basis for our

holding in Morris.

46

claim is based on the Commonwealth’s pattern of discriminatory

strikes, falls squarely within Morris’ holding and, therefore, we

find that section 2254(e)(2) did not prevent the District Court

from granting him an evidentiary hearing on his Batson claim.

D. Merits of Lark’s Batson Claim

1. The AEDPA

We can understand why by this time a reader of this

opinion would wonder whether we ever would reach the

substantive issue on this appeal, i.e., did the District Court

correctly grant Lark habeas corpus relief leading to his release

or a new trial? But our long discussion of the procedural and

jurisdictional issues was necessitated by the remarkable

complexity of the law governing habeas corpus petitions which

to a large extent is the result of the interaction of state and

federal law inherent in our dual sovereignty system. In fact,

solving the procedural and jurisdictional issues before we could

reach the substantive issues on this appeal was a process much

like solving Rubik’s cube. But we now reach the merits issue on

this appeal.

Pursuant to the AEDPA, where a state court adjudicates

the merits of a petitioner’s claim, federal courts review the claim

under a highly deferential standard. See 28 U.S.C. § 2254(d)(1)

& (2); Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). As we

have indicated, Lark properly presented the Batson claim based

on the Commonwealth’s pattern of jury strikes to the state courts

in his second PCRA petition, but the state courts rejected that

claim largely pursuant to what clearly was a state procedural

rule inadequate to bar federal habeas corpus review. When, as

47

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. See Coombs, 616 F.3d at 260 (citing

Holloway, 355 F.3d at 718). Therefore, for the most part a

federal habeas corpus court considering Lark’s Batson claim

based on the Commonwealth’s pattern of jury strikes should

exercise de novo review. Coombs, 616 F.3d at 261. On the

other hand, to the extent that the Supreme Court of Pennsylvania

rejected Lark’s Batson claim that he predicated on the

McMahon tape on the merits we will assume that its decision is

entitled to deferential review. But that possibility is of no

consequence on this appeal as the District Court did not rely on

the McMahon tape to reach its conclusion and we are

predicating our result on our determination that as a matter of

federal law the District Court misapplied Batson. Accordingly,

our review is entirely de novo.

2. Batson Three-Step Analysis.

The Equal Protection Clause of the Fourteenth

Amendment “prohibits a prosecutor from using a peremptory

challenge to strike a prospective juror solely on account of

race.” Holloway, 355 F.3d at 719 (citing Batson, 476 U.S. at 88,

106 S.Ct. 1712). But “[a]s in any equal protection case, the

burden is . . . on the defendant who alleges discriminatory

selection of the venire to prove the existence of purposeful

discrimination.” Coombs, 616 F.3d at 261 (quoting Batson, 476

U.S. at 93, 106 S.Ct. 1712) (internal quotation marks omitted).

We have held that the exclusion of even one vernireperson from

the jury based on race requires that, under Batson, there be a

new trial. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990).

48

As we stated earlier, typically the adjudication of a

Batson violation proceeds in three steps: (1) the defendant must

make a prima facie showing that the prosecution has exercised a

peremptory challenge in a discriminatory manner; (2) once the

defendant makes that prima facie showing, the prosecutor must

offer a race-neutral reason for having exercised the challenge;

(3) the trial court, weighing the parties’ submissions, determines

whether the prosecution’s strike amounted to purposeful

discrimination violating the Equal Protection Clause of the

Fourteenth Amendment. Cockrell, 537 U.S. at 328-29, 123

S.Ct. at 1035. In this three-step process the prosecution has the

burden of production of the race-neutral reason for the strike at

the second step, but the burden of persuasion never shifts from

the opponent of the peremptory strike. See Purkett v. Elem, 514

U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995) (per curiam).

The Commonwealth argues that we should not use the

Batson three-step burden shifting procedure when making an

analysis many years after the trial because the use of the

procedure at that time is unfairly advantageous to the petitioner

and greatly prejudicial to the Commonwealth. But our

precedent clearly requires that we reject that argument. See,

e.g., Hardcastle v. Horn, 368 F.3d 246, 255-56 (3d Cir. 2004)

(applying three-step test in pre-Batson case where defense

attorney did not object until after voir dire was completed);

Love, 40 F.3d at 667 (applying three-step Batson analysis in a

post-trial context).

Certainly, when the Supreme Court developed Batson’s

burden-shifting framework, it envisioned that, inasmuch as a

timely objection would permit a prosecutor to explain use of the

49

challenges, a defendant would make an objection at trial to what

he regarded was the prosecutor’s racially based use of

peremptory challenges. After all, as the Commonwealth argues,

applying the burden shifting method several years after the trial

makes it more difficult for the prosecution to provide a race-

neutral explanation for peremptory strikes. Appellant’s br. at

37-38 citing Carter v. Hopkins, 151 F.3d 872, 875-86 (8th Cir.

1998) (holding that it is inappropriate to apply Batson’s burden

shifting where there has been a long delay between jury

selection and the filing of the claim, a voir dire record is not

available, and the petitioner did not raise a timely objection);

McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir. 1996)

(stating in dicta that where a Batson objection was raised over

three months after trial, petitioner was not entitled to benefit of

burden shifting rule). 29 Indeed, one reason that the Supreme

29

Of course we recognize that in both McCrory and Henderson,

unlike in this case, the defendants did not raise objections to the

prosecutor’s discriminatory exercise of peremptory challenges at

their respective trials and, further, the voir dire was not recorded

in either case. Carter, 151 F.3d at 873; McCrory, 82 F.3d at

1245. However, like the defendants in those cases, Lark did not

raise a Batson claim until after the trial, and thus, in light of the

passage of time between the voir dire and the time when a court

first adjudicated the merits of the Batson claim, the prosecutor’s

faded memory rendered the three-step process analysis much

more difficult for both Lark and the Commonwealth. See

Holloway, 355 F.3d at 726 (explaining that a 17-year delay

between trial and appellate review of a Batson claim “is

certainly regrettable both for the Commonwealth and for

Holloway . . . .”).

50

Court applied Batson retroactively only in cases pending on

direct review at the time that it decided Batson was the difficulty

in applying Batson long after the trial. See Allen v. Hardy, 478

U.S. 255, 260-61, 106 S.Ct. 2878, 2881 (1986) (per curiam)

(declining to hold Batson applicable to cases pending on

collateral review when the Court decided Batson).

In recognition of the delay problem, we realize that it is

one thing to apply Batson in the adjudication of a direct appeal

that was pending when the Supreme Court decided that case but

quite a different matter to apply it in a collateral proceeding

many years later merely because a direct appeal had been

pending in the case under review when the Supreme Court

decided Batson. Thus, it is not surprising that we have a line of

cases, discussed more extensively below, which provide

guidance on how to approach a prosecutor’s faded memory in

the adjudication of Batson claims brought years after trial. But

even in cases of delay in the assertion of a Batson claim, we

never have adopted the Court of Appeals for the Eighth Circuit’s

reasoning that, in order to obtain Batson relief, a petitioner has

to show “purposeful discrimination” outside of an ordinary

burden shifting analysis. Carter, 151 F.3d at 875-76. We

decline to do so now and therefore will analyze the merits of

Lark’s claim under the usual three-step burden shifting

procedure.

3. Step 1: The Prima Facie Case

The Supreme Court has indicated that in a determination

of whether a petitioner has established a prima facie case under

Batson, the prosecutor’s pattern of peremptory strikes is

significant as are the “prosecutor’s questions and statements

51

during voir dire examination and in exercising his challenges . . .

.” Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Further, in

making Batson determinations “we have identified several

additional factors, including how many members of the

cognizable racial group are in the venire panel; the nature of the

crime; and the race of the defendant and the victim.” Lewis, 581

F.3d at 103 (citations and internal quotation marks omitted).

Here, though the District Court indicated in its July 3,

2007 opinion and order that Lark established a prima facie

Batson violation, it is unclear when, if ever, the Court actually

made that finding. In its May 23, 2006 opinion, though the

Court stated that Lark alleged facts which, if proven true, would

establish a prima facie case under Batson, it noted that the

Commonwealth disputed those facts and, indeed, it granted an

evidentiary hearing, in part, to resolve that dispute. Lark I, 2006

WL 1489977, at *9; App. at 42. Those alleged facts supporting

the prima facie case included the prosecution’s high strike rate

of African-American jurors, the absence of any obvious non-

racial basis for the strikes in the voir dire transcripts, and the

trial prosecutor’s remark (“Oh. How awful”) in response to

defense counsel’s objection to his pattern of discriminatory

strikes. Id. at *8; App. at 41.

In its second opinion and order on July 3, 2007, the order

from which the Commonwealth has appealed, the District Court,

in a footnote, stated that it previously had found that Lark

established a prima facie case and cited to its May 23 opinion in

which it set forth the disputed facts. Lark II, 495 F. Supp. 2d at

501 n.10. But the problem with the Court’s reference is that

allegations are not findings. The Court then stated that Lark met

his step-one burden based on the composition of the venire and

52

the pattern of strikes exercised by the Commonwealth. Id.

The Commonwealth, however, does not challenge that

Lark has established a prima facie Batson violation. 30 We will

assume that the District Court correctly concluded that Lark met

his step-one burden based on the composition of the venire and

the pattern of strikes Carpenter exercised. Consequently, we

find it necessary to consider the prosecutor’s step-two

explanation for the strikes.

4. Step 2: A Race-Neutral Explanation

The Commonwealth argues that Carpenter’s inability to

explain the reasons for his use of three peremptory challenges at

30

The Commonwealth does argue that Carpenter’s pattern of

strikes of African-American jurors is not sufficient to prove that

any single strike was motivated by race. Appellant’s br. at 50-

51. Inasmuch as the District Court, at the third step, has a duty

to determine whether Lark has established that Carpenter

purposefully discriminated in the exercise of any of his

peremptory challenges, we will not address the

Commonwealth’s argument on this appeal. After all, it is at the

third step that the District Court must weigh all the facts and

circumstances relating to Carpenter’s intent, including the

pattern of peremptory strikes Carpenter used against African-

American jurors. See Jordan v. Lefevre, 206 F.3d 196, 200 (2d

Cir. 2000) (“[T]he third step of the Batson inquiry requires a

trial judge to make ‘an ultimate determination on the issue of

discriminatory intent based on all the facts and

circumstances.’”).

53

the second step of the Batson analysis was not a sufficient

ground to grant the conditional writ of habeas corpus because

that inability along with the other information available to the

District Court did not enable Lark to satisfy his ultimate burden

of proving intentional discrimination. We agree with the

Commonwealth’s contention.

At step two, the Commonwealth has the burden to

produce a race-neutral explanation but nevertheless the

opponent of the peremptory strike retains the ultimate burden of

proof on the Batson issue. See Purkett, 514 U.S. at 768, 115

S.Ct. at 1171 (“[T]he ultimate burden of persuasion regarding

racial motivation rests with, and never shifts from, the opponent

of the strike.”). The prosecutor’s burden at step two is not high

as the explanation does not have to be persuasive, or even

plausible. Id. at 767-68, 115 S.Ct. at 1171. Consequently,

inasmuch as the Supreme Court “purposely set a relatively low

bar at step two,” we have held that it would be rare, but not

entirely inappropriate, for a court to grant relief at that step.

Hardcastle, 368 F.3d at 257; see also Harrison, 909 F.2d at 88

(holding that prosecution’s failure to rebut petitioner’s prima

facie showing of racial discrimination as to one juror dictates the

grant of a new trial). But see Yee v. Duncan, 463 F.3d 893, 899

(9th Cir. 2006) (holding that defendant bears the ultimate burden

of proof and therefore step two never can be definitive because

defendant only has raised an inference of discrimination).

Here the District Court found that Carpenter’s failure to

articulate any race-neutral justification for the strikes of three

jurors mandated that it grant Lark habeas corpus relief. The first

juror that Carpenter challenged that we consider is Shirley

Sampson, an African-American female. Carpenter could not

54

recall why he struck Sampson and reading the transcript did not

refresh his memory. Carpenter, however, unequivocally denied

that he did so because she was African-American. Before

proceeding to the next juror, the Commonwealth’s attorney

asked Carpenter whether where the juror lived could be a

significant factor in exercising a peremptory strike. Carpenter

answered that he did not want a juror who lived too close to the

defendant or who lived close to the crime scene; however, he

did not state that he struck Sampson for either of these reasons.

Similarly, Carpenter could not recall a specific reason for

striking Florence Williams, an African-American female.

Carpenter could not find anything “particularly wrong” with

Williams by looking at the trial transcript (App. at 1044); he did,

however, state that there were other circumstances that might

not appear in the transcript, “[f]or example, if I don’t like the

juror, I think . . . it’s a good bet she doesn’t like me.” Id. at

1045. When the District Court stated that “there could have

been body language there,” Carpenter responded by saying

“exactly.” Id. The situation was slightly different with respect

to the third juror, Edison Sisco, an African-American male, even

though Carpenter could not recall a specific reason for striking

him. Carpenter did note that neither he nor defense counsel

asked Sisco many questions and that Sisco was confused about

the last school he attended. Ultimately, however, Carpenter

stated that he could not recall a reason for exercising a strike to

remove Sisco.

Carpenter’s reasons for striking Sampson, Williams, and

Sisco were inadequate to meet the Commonwealth’s burden of

production as explained in Hardcastle. Carpenter’s statement

that he might have struck Williams for reasons that did not

55

appear in the transcript is the type of vague explanation we have

rejected as inadequate to meet the prosecutor’s burden at the

second Batson step. Hardcastle, 368 F.3d at 258. Further,

Carpenter’s unequivocal denial that he struck Sampson because

of her race standing alone would not be an adequate explanation.

See Purkett, 514 U.S. at 769, 115 S.Ct. at 1771 (stating that a

prosecutor cannot satisfy burden of production by denying that

he had discriminatory motive or by merely affirming his good

faith). Finally, Carpenter did not have an independent

recollection for striking Sisco.

As we indicated above, inasmuch as the Supreme Court’s

opinion in Batson was to a degree retroactive and applies to

some trials held before Batson, as is the situation here, we have

considered habeas corpus petitions that have led to proceedings

at which a prosecutor sought to provide explanations for

peremptory challenges years after the trial. In Harrison, the first

such case we encountered, the prosecutor used six of his eight

peremptory challenges to strike all of the African-American

venirepersons and could not recall his reasons for exercising a

peremptory strike on one of the six African-American jurors he

excluded during voir dire: “[j]ust looking at these notes, I don’t

know. I don’t have her age down here. The fact that her son is

a retired police officer, I assume she is an older woman. That

could have been a factor; I don’t know.” 909 F.2d at 87. In

Harrison we balanced the burden to the state of explaining

strikes years made earlier against the interests of justice that

Batson was designed to protect:

Certain other factors, however, most notably the

interests of justice, require retroactive application

56

of Batson for cases on direct review even where a

long period of time occurs in the state court

appellate process. This is especially true here

where defense counsel timely objected to the use

of peremptory challenges, the number of

peremptory challenges exercised against Blacks

was so great, the race neutral reasons given for

striking other black jury venirepersons were so

weak, and the prosecutor was unable to articulate

a race neutral reason for striking one of the black

venirepersons.

Id. at 87-88. Ultimately, we held that the prosecution’s failure

to rebut Harrison’s prima facie showing of racial discrimination

at the second step mandated the grant of a new trial. Id. at 88.

In Johnson v. Love we held that “the Batson inquiry ends

and the conviction must be vacated at the second stage of the

analysis if the state’s explanation is such that, taken at face

value, it either demonstrates an equal protection violation or

would otherwise be inadequate as a matter of law to support the

conviction.” Love, 40 F.3d at 668 (citations omitted). In Love,

the prosecutor’s explanation for striking a young black juror was

that she would not be sympathetic to the victim of petitioner’s

crime because the victim solicited sexual favors from young

black boys prior to his death. We held that this was not a race-

neutral explanation because the assumption underlying the

prosecution’s answer was “based on a stereotypical view or

intuition that black people, because of their race, will relate to

other black persons in a way that may preclude them from

basing a verdict solely on the relevant evidence.” Id.

57

In Love we also addressed a situation in which a

prosecutor’s faded memory affects his ability to recall reasons

for a particular peremptory challenge:

There will undoubtedly be post-conviction relief

proceedings in which the state, by reason of

death, absence, or faded memory, will be unable

to produce a prosecutor with a specific

recollection of the reason for a challenge alleged

to violate Batson. Courts frequently are required

to draw inferences from circumstantial evidence

regarding a decision-maker’s state of mind,

however, and we are unwilling to rule out the

possibility that the state may be able to satisfy its

step two Batson burden by tendering

circumstantial evidence. In some post-conviction

relief proceedings, it may well be possible to

reach a reliable conclusion regarding the true

reasons for the challenge based upon the nature of

the case, the transcript of the voir dire of the

challenged juror and other prospective jurors,

contemporaneous notes of the attorneys involved,

and any other available evidence.

Id. at 667 (emphasis added). In a footnote, we

distinguished Harrison by stating that the absence of any

explanation mandated relief in that case but that Harrison

does not suggest that a state should not be permitted to

reconstruct a prosecutor’s rationale for excluding a juror

when the prosecutor cannot explain his motivation for a

strike due to his faded memory. Id. at 667 n.4.

58

Ten years later, in Hardcastle v. Horn we held that the

Pennsylvania Supreme Court unreasonably applied Batson when

it proceeded to the third step of the analysis without finding that

the Commonwealth at the second step gave an adequate

justification for the use of peremptory challenges. 368 F.3d at

259. In Hardcastle, a case tried before Batson where Batson

became retroactively applicable on direct appellate review, the

petitioner’s trial counsel did not raise an objection during voir

dire but did file a post-voir dire motion under Swain arguing that

the prosecutor’s use of peremptory strikes violated the federal

and state constitutions. The trial court denied the motion and

also denied the prosecutor’s request to state her reasons for

exercising the peremptory strikes. But an en banc panel of the

Court of Common Pleas voted to grant a new trial based on the

jury selection issue. On the initial appeal, the Pennsylvania

Superior Court reversed the grant of a new trial, finding that

Hardcastle failed to make the required showing under Swain.

Id. at 251.

On further appeal, the Pennsylvania Supreme Court,

which heard Hardcastle after the Supreme Court decided Batson,

conducted its own review of the record and held that the

prosecutor’s opportunity to observe the jurors during voir dire

and her decision not to remove two African-American

venirepersons constituted race-neutral reasons for two

peremptory strikes. Thus it determined that Hardcastle failed to

make a prima facie showing that the prosecutor’s strikes

violated the equal protection clause. Id. at 253. The district

court granted Hardcastle a writ of habeas corpus, and, on the

Commonwealth’s appeal, we affirmed, as we found that the

reasons the Pennsylvania Supreme Court accepted for the

59

striking of the two African-American jurors did not satisfy the

Commonwealth’s minimal burden of production at the second

step inasmuch as the record did not contain any evidence of the

two jurors’ demeanor or the prosecutor’s observation or

impressions. Thus, we found that the Supreme Court’s

explanation amounted “to nothing more than a statement that the

prosecutor acted on intuition and with the absence of

discriminatory intent.” Id. at 258.

In 2005, in Wilson v. Beard there was a Batson challenge

in a case in which Jack McMahon had been the prosecutor. The

district court in the habeas corpus proceedings, in light of the

fact that 20 years had elapsed between the time of the trial and

the hearing at which McMahon explained his reasons for

striking jurors at the trial, concluded that it would have been

unreasonable to expect McMahon to remember reasons for his

individual strikes. 426 F.3d at 668. Rather, the district court

held that the race-neutral reasons McMahon offered in the

McMahon tape were sufficient to carry the Commonwealth’s

burden at the second step. Inasmuch as we upheld the district

court’s conclusion that Wilson proved intentional

discrimination, we did not need to decide whether the district

court’s ruling with respect to the second step was correct.

However, we did note that, in light of the passage of time

between the trial and when McMahon offered his explanation

for striking jurors, the district court appropriately lessened the

Commonwealth’s burden of production at the second step. Id.

Though, so far as we can ascertain, the United States

Supreme Court never has addressed whether it is appropriate for

a district court to grant a writ of habeas corpus at the second step

because a prosecutor could not recall the reason for a

60

peremptory challenge many years after the trial, recent

precedent suggests that courts should be reluctant to do so for

they should act with caution before granting relief at that step of

the Batson process and our own consideration of the issue leads

us to reach the same conclusion. For example, in Purkett v.

Elem the Court of Appeals for the Eighth Circuit, in a step-two

analysis, concluded that the prosecutor’s explanation that he

used a peremptory challenge to strike a juror because the juror

had long unkempt hair and suspicious facial hair was pretextual

and was not a legitimate race-neutral reason for striking the

juror. 514 U.S. at 766-67, 115 S.Ct. at 1770. But on further

appeal the Supreme Court, reiterating that the burden never

shifts from the defendant in a Batson dispute, held that the court

of appeals improperly conflated the second and third Batson

steps:

[i]t is not until the third step that the

persuasiveness of the justification becomes

relevant-the step in which the trial court

determines whether the opponent of the strike has

carried his burden of proving purposeful

discrimination. At that stage, implausible or

fantastic justifications may (and probably will) be

found to be pretexts for purposeful discrimination.

But to say that a trial judge may choose to

disbelieve a silly or superstitious reason at step

three is quite different from saying that a trial

judge must terminate the inquiry at step two when

the race-neutral reason is silly or superstitious.

The latter violates the principle that the ultimate

burden of persuasion regarding racial motivation

61

rests with, and never shifts from, the opponent of

the strike.

Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (internal citations

omitted). The Supreme Court also stated that the requirement in

Batson that a prosecutor “must give a ‘clear and reasonably

specific’ explanation of his ‘legitimate reasons’ for exercising

the challenges” only “was meant to refute the notion that a

prosecutor could satisfy his burden of production by merely

denying that he had a discriminatory motive or by merely

affirming his good faith. . . . [A] ‘legitimate reason’ is not a

reason that makes sense, but a reason that does not deny equal

protection.” Id., 115 S.Ct. at 1771 (quoting Batson, 476 U.S. at

98, n.20, 106 S.Ct. at 1724 n.20.).

More recently, the Supreme Court discussed a second-

step issue in Johnson v. California, 545 U.S. 162, 125 S.Ct.

2410 (2005). California law required an objector, in order to

establish a prima facie Batson case, to show that it was more

likely than not that the other party’s peremptory challenges, if

unexplained, were based on impermissible bias. Id. at 168, 125

S.Ct. at 2416. The respondents, defending the California law,

contended that a Batson claimant must prove discrimination by a

preponderance of the evidence at the first step or else “a

prosecutor’s failure to respond to a prima facie case would

inexplicably entitle a defendant to judgment as a matter of law

on the basis of nothing more than an inference that

discrimination may have occurred.” Id. at 170, 125 S.Ct. at

2417. The Court held that this standard was too onerous and not

a proper application of Batson because the first two steps in the

Batson process govern only the production of evidence and the

defendant ultimately retains the burden to prove the existence of

62

purposeful discrimination. The Court also reiterated Purkett’s

holding that even if the state produces “frivolous or utterly

nonsensical justifications for its strike,” the analysis moves to

step three. Id. at 171, 125 S.Ct. at 2417. Then, in a footnote, the

Court added:

In the unlikely hypothetical in which the

prosecutor declines to respond to a trial judge’s

inquiry regarding his justification for making a

strike, the evidence before the judge would

consist not only of the original facts from which

the prima facie case was established, but also the

prosecutor’s refusal to justify his strike in light of

the court’s request. Such a refusal would provide

additional support for the inference of

discrimination raised by a defendant’s prima facie

case. Cf. United States ex rel. Vajtauer v.

Comm’r of Immigration, 273 U.S. 103, 111, 47 S.

Ct. 302, 71 L. Ed. 560 (1927).

Johnson, 545 U.S. at 171 n.6, 125 S.Ct. at 2417 n.6.

While obviously intended to apply to an objection made

during voir dire, the Johnson footnote indicates that the

prosecutor’s lack of response is evidence to be taken into

account only at step three and is not, by itself, of such

dispositive force that it establishes that there was a Batson

violation. Following that line of reasoning this case presents a

more compelling argument for proceeding to the third step of the

inquiry. The District Court’s holding that the Batson inquiry

ends if the state fails to meet its duty of production is accurate

63

only if the prosecution, at step two, demonstrates that it based its

challenge on a reason that was an equal protection violation.

Purkett, 514 U.S. at 769, 115 S.Ct. at 1771; see also Hernandez

v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866 (1991)

(plurality opinion) (“Unless a discriminatory intent is inherent in

the prosecutor’s explanation, the reason offered will be deemed

race neutral.”).

Unlike the Supreme Court’s hypothetical prosecutor in

Johnson, Carpenter’s “silence” was a product of his failure to

recall specific reasons for his three peremptory strikes.

Carpenter’s inability to recall his reasons for exercising

peremptory strikes 21 years after the trial surely is far less

suggestive that at the trial there had been purposeful

discrimination than a prosecutor’s outright refusal to answer the

trial court’s inquiry at voir dire directly after the prosecutor

exercised the peremptory challenge. After all, when at a trial the

prosecutor is asked to explain the reasons for his challenge they

should be fresh in his mind. Further, it would be anomalous to

hold that “an utterly nonsensical” reason would have satisfied

the Commonwealth’s burden of production at step two of the

Batson process, as it could have done, but that Carpenter’s

failure to recall race-neutral reasons, or any reasons for strikes,

21 years after the trial automatically should result in a finding

that his strikes were the product of discriminatory intent.

Johnson, 545 U.S. at 171, 125 S.Ct. at 2417.

More importantly, the Supreme Court in Johnson rejected

the argument that a prosecutor’s failure to respond to a prima

facie case “would inexplicably entitle a defendant to judgment

as a matter of law on the basis of nothing more than an inference

that discrimination may have occurred.” Id. at 170, 125 S.Ct. at

64

2417. Instead, the Supreme Court strongly suggested that

Batson’s burden-shifting framework is simply a means of

presenting evidence. The Court compared the Batson

framework to the burden-shifting found in Title VII employment

discrimination cases. 31 Id. at 171 n.7, 125 S.Ct. at 2418 n.7

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-510 &

n.3, 113 S.Ct. 2742, 2748 & n.3 (1993) (holding that

determinations at steps one and two of the McDonnell Douglas

framework “can involve no credibility assessment” because “the

burden-of-production determination necessarily precedes the

credibility-assessment stage,” and that the burden-shifting

framework triggered by a plaintiff’s prima facie case is

essentially just “a means of ‘arranging the presentation of

evidence’”)). In a Title VII case, even if the defendant fails to

introduce evidence of a nondiscriminatory reason for an adverse

employment action, it still can avoid liability if the plaintiff’s

prima facie case “is held to be inadequate in law or fails to

convince the factfinder.” St. Mary’s Honor Ctr., 509 U.S. at 510

n.3, 113 S.Ct. at 2748 n.3.

31

The Supreme Court established the three-step employment

discrimination framework in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that burden-

shifting framework, the plaintiff first has to make out a prima

facie case of discrimination at which point the burden shifts to

the employer to present a nondiscriminatory reason for the

adverse employment action and, finally, the employee has to

demonstrate that the reason the employer gives is pretextual.

Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d

Cir. 2009).

65

Here, the District Court clearly erred when it ended the

Batson analysis at the second step of the three-step analysis even

though, as we have indicated, Carpenter’s reasons for striking

Sampson, Williams, and Sisco were inadequate to meet the

Commonwealth’s burden of production as we explained the

burden in Hardcastle. First, though Carpenter failed to recall the

reasons for exercising three peremptory strikes to remove

African-American jurors, Lark’s prima facie case was not as

strong as the petitioner’s prima facie case was in Harrison. In

contrast to the prosecutor in Harrison who struck all the African-

Americans from the jury, Carpenter did not strike four African-

Americans and had five peremptory strikes remaining at the end

of voir dire. See United States v. DeJesus, 347 F.3d 500, 509

(3d Cir. 2003) (“Another factor that makes the government’s

race-neutral explanation more believable is that one Hispanic

and three African Americans were seated in the final jury, and

the government had three peremptory strikes remaining.”). 32

Nor was this a case, as was Hardcastle, where a state court

attempted to fashion race-neutral explanations without holding

an evidentiary hearing to give the prosecutor a chance to explain

the reasons behind the peremptory strikes. 368 F.3d at 252.

Rather, Carpenter’s memory loss, understandable considering

32

Of course, it has not escaped our attention that the

composition of Lark’s jury--four African-Americans and eight

Caucasians--is described on the McMahon tape as the ideal jury.

We also note, however, that the District Court made a factual

finding after the evidentiary hearing that, although Carpenter

knew McMahon, McMahon never was his senior or supervisor

in the District Attorney’s Office and never instructed Carpenter

on how to select a jury. Lark II, 495 F. Supp. 2d at 494.

66

the 21-year gap between the challenges and the evidentiary

hearing, prevented him from offering direct reasons behind the

exercise of his peremptory challenges.

In addition, the District Court found that Carpenter was

not systematic in his note taking and that the only notes he took

were symbols and notations he made by each juror’s name on

the jury list. 495 F. Supp. 2d at 495. The notes were incomplete

inasmuch as two of the jurors whom Carpenter could not recall

striking do not appear on the juror sheets on which Carpenter

took his notes. The other contemporaneous evidence of

Carpenter’s state of mind is his response of “Oh. How awful” to

Rogers’ complaint that he was striking all African-Americans

from the panel. Carpenter explained that he was being sarcastic

because he recognized that Rogers was attempting to raise race

as an issue. Carpenter further testified that he used sarcasm at

other points in the trial when he became frustrated with Rogers’

tactics. It is not clear whether the Court believed that

Carpenter’s explanation of his comment was credible.

There were, moreover, compelling reasons for the Court

to advance to the third step of the Batson analysis. To start with,

the Supreme Court has suggested that Batson’s burden shifting

framework is a means to present evidence and thus the

prosecution’s presentation of only thin evidence at the second

step, though perhaps damaging to its case, is not dispositive on

the question of discriminatory intent. Johnson, 545 U.S. at 170-

71, 125 S.Ct. at 2417-18. Proceeding to the third step would

have allowed the District Court to judge whether Carpenter’s

strikes violated the Equal Protection Clause through juror

comparisons, thus fulfilling the principal goal of Batson: “to

produce actual answers to suspicions and inferences that

67

discrimination may have infected the jury selection process.”

Id. at 172, 125 S.Ct. at 2418.

The District Court’s acceptance of Lark’s prima facie

case as dispositive proof of Carpenter’s intent substituted

inferences for an actual answer to the question of whether

Carpenter discriminated in the selection of jurors. We hold that

the District Court, by moving to the third step, could have

weighed all of the evidence against Lark’s prima facie case.

Instead, the District Court’s approach validated the fears of the

respondents in Johnson: the prosecutor did not come forward

with evidence at the second step and Lark received “judgment as

a matter of law on the basis of nothing more than an inference

that discrimination may have occurred.” Id. at 170, 125 S.Ct. at

2417.

Moreover, this case presents an unusual situation in

which neither party may be held culpable for the delay in the

adjudication of the Batson claim. Nevertheless, we see some

merit to the Commonwealth’s contention that Lark should have

been more diligent in pursuing the claim even though, as our

discussion of procedural default demonstrates, Pennsylvania’s

“relaxed waiver” policy created a post-conviction climate in

which the state courts would waive procedural rules in capital

cases. After all, following the Supreme Court of Pennsylvania’s

affirmance of his conviction and sentence on direct appeal, Lark

did not file any further proceedings for six years in state or

federal court seeking relief even though his life literally was at

stake. Furthermore, we do not fault the Commonwealth courts

for enforcing their procedural rules to deny Lark an evidentiary

hearing. As we noted in Hardcastle, “while the retroactive

application of the Supreme Court’s ruling in Batson undeniably

68

causes many problems, we do not believe the weight of this

burden should be borne solely by the Commonwealth.” 368

F.3d at 261. By terminating its Batson analysis at the second

step, the District Court shifted the entire consequences of

Carpenter’s memory loss to the Commonwealth, and thus

allowed Lark to obtain a writ of habeas corpus by showing only

a prima facie case of discrimination.

Finally, we have indicated that it is appropriate to lessen

the state’s burden at the second step where the passage of time

diminishes the prosecutor’s recollection of voir dire. Wilson,

426 F.3d at 668. Indeed, the Supreme Court’s limitation of the

retroactive application of Batson to cases on direct appeal when

it decided that case and not applying its holding to cases on

collateral review at the time of that decision, indicates that the

Court envisioned problems such as those present here in

applying Batson years after the trial. We think that proceeding

to the third step of the Batson analysis is preferable to the

alternative: overturning a 25-year-old jury verdict which the

Pennsylvania Supreme Court has upheld against numerous

challenges and which seems to have been predicated on

substantial evidence merely because it would be possible to

draw an inference of discrimination in jury selection.

We hold that given the recent Supreme Court case law

and the particular circumstances of this case, the District Court

should have proceeded to the third step of the Batson analysis.

V. CONCLUSION

Inasmuch as we have determined that the District Court

69

improperly applied Batson, we will vacate its order, remand the

case to the District Court, and direct that the Court perform the

third step of the Batson analysis.33 Both parties make arguments

regarding the McMahon tape’s relevance and the Baldus study’s

reliability. However, inasmuch as the District Court explicitly

declined to consider these issues, see Lark II, 495 F. Supp. 2d at

503 n.12, we do not address them on this appeal, though they

may become significant on the remand.

The District Court based its decision on the pattern of the

prosecutor’s strikes and Carpenter’s inability to articulate a

justification for three of those strikes. Any other evidence or

arguments which relate to intentional discrimination, such as

juror comparisons, properly are made at the third Batson step

and we will not consider them at this time. Miller-El, 545 U.S.

at 241, 125 S.Ct. at 2325 (“If a prosecutor’s proffered reason for

striking a black panelist applies just as well to an otherwise-

similar nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at

Batson’s third step.”). Ultimately, it is at the third step that the

District Court must make a finding regarding the prosecutor’s

motivation in exercising the challenged strikes. See Bond v.

Beard, 539 F.3d 256, 264 (3d Cir. 2008).

For the foregoing reasons we will vacate the District

Court’s order entered on July 5, 2007, granting Lark a

33

Of course, if on the remand the District Court rejects Lark’s

Batson contention, it should consider the other contentions that

he advanced but that the Court had no need to address. Some of

these contentions likely will involve complex jurisdictional,

procedural, and substantive questions.

70

conditional writ of habeas corpus, and remand the case for the

further proceedings that we have indicated in this opinion are

required. No costs shall be allowed on this appeal.

71

Lark v. Beard, 07-9004

McKee, Chief Circuit Judge, concurring

I join the majority opinion in its entirety, and fully

agree with the remand to the District Court to complete the

third step of the Batson analysis. However, I write separately

to emphasize that although my colleagues note that “we have

indicated that it is appropriate to lessen the state’s burden at

the second step where the passage of time diminishes the

prosecutor’s recollection of voir dire,” Maj. Op. 58 (citing

Wilson, 426 F.3d at 668), we have not done so here. The

majority properly concludes that the Commonwealth failed to

meet its burden at step two of the Batson analysis because the

prosecutor failed to offer race-neutral reasons for striking

three jurors. Thus, in this case, the majority’s discussion of

the appropriateness of lessening the state’s burden of

production when the prosecutor has a faded memory at step

two of the Batson analysis is purely dicta, and rightfully so.

In Wilson, we stated: “[I]n light of the passage of time,

we agree with the District Court that it was appropriate to

lessen the burden of the Commonwealth at step two.” 426

F.3d at 668. However, in Wilson, unlike here, it does not

appear that a timely objection was made at trial to the

prosecutor’s discriminatory exercise of peremptory strikes.

See Abu-Jamal, 520 F.3d at 280 n.3. As the majority quite

correctly notes, Lark’s attorney raised what was to become a

Batson claim during voir dire. Accordingly, the prosecutor

was immediately put on notice that he may later have to

explain his motivations in peremptorily striking Black jurors.

The majority suggests that the prosecutor’s burden

must necessarily be reduced at step two when the prosecutor’s

faded memory results from a long passage of time between

voir dire and a Batson hearing. However, that principle

should not apply when, as here, a timely objection is made to

the prosecutor’s use of peremptory strikes. Under such

circumstances, the fact finder may conclude that the claim of

faded memory and failure to memorialize the reasons for

certain strikes is less credible than might otherwise be the

case. I do not suggest that this necessarily undermines a

1

subsequent claim of failed memory. However, I also do not

think it appropriate to suggest that the claim of failed memory

must receive the same credibility and consideration afforded

the prosecutor in Wilson. Rather, the District Court must be

free to assess the credibility of the claim of failed memory

during its step three Batson analysis on remand.

On remand, the District Court will have to decide

whether, and to what extent, the prosecutor’s subsequent

claim of failed memory should be credited given the very

unique circumstances here and the fact that he was

immediately informed that his motivations may be examined

at a later date.

2