Brinson v. Vaughn

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

2-8-2005

Brinson v. Vaughn

Precedential or Non-Precedential: Precedential

Docket No. 02-4466

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 02-4466 and 02-4479

____________

CURTIS BRINSON,

Appellant

v.

DONALD VAUGHN; THE DISTRICT ATTORNEY OF THE

COUNTY OF PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

District Court Judge: Honorable John P. Fullam

(D.C. No. 00-cv-6115)

____________________

Argued: September 14, 2004

Before: SCIRICA, Chief Judge, ALITO, and AM BRO, Circuit

Judges

(Opinion Filed: February 8, 2005)

NORRIS E. GELMAN (Argued)

The Public Ledger Building

620 Chestnut Street, Suite 940

Philadelphia, PA 19106

Counsel for Appellant

ROBERT M . FALIN (Argued)

Assistant District Attorney

1421 Arch Street

Philadelphia, PA 19102-1582

Counsel for Appellees

____________________

OPINION OF THE COURT

____________________

ALITO, Circuit Judge:

This is an appeal from a District Court order denying Curtis

Brinson’s petition for a writ of habeas corpus. Brinson was

convicted in state court in Pennsylvania on one count of murder in

the first degree and a lesser offense and was sentenced to

imprisonment for life. The District Court held – and we agree –

that his federal habeas petition was timely because it was proper to

apply the doctrine of equitable tolling to the period of time

following the District Court’s erroneous dismissal of Brinson’s

prior habeas petition. Contrary to the District Court, however, we

hold that Brinson made out a prima facie case of a violation of

Batson v. Kentucky, 476 U.S. 79 (1986), and we therefore reverse

the order of the District Court and remand for an evidentiary

hearing.

I.

In April 1985, Arthur Johnson was shot and killed in the

bathroom of a Philadelphia nightclub. Brinson, an African

American, was arrested for the crime, and the selection of the jury

for his trial began on April 28, 1986, two days before the Supreme

Court of the United States announced its decision in Batson.

In Batson, the Supreme Court set out a three-step procedure

for determining whether a prosecution violated the Equal

Protection Clause by peremptorily striking potential jurors based on

2

race.1 First, the party asserting the claim must make out a prima

facie case. See 476 U.S. at 96. In order to do this, the party must

point to facts that “raise an inference” that a challenged strike was

based on an impermissible ground. Id. Second, if a prima facie

case is established, the party who exercised the challenge must

“come forward with a neutral explanation.” Id. Third, if a neutral

explanation is offered, the trial judge must make a finding as to

whether the contested peremptory was based on an impermissible

ground. Id. at 98.

On May 2, 1986 – after Brinson’s jury had been selected but

before the trial began – his attorney objected that the prosecutor

had violated Batson by striking prospective African American

jurors based on race.2 Brinson’s attorney stated that the prosecutor,

Jack McMahon, had “exercised fourteen peremptory challenges,

thirteen for blacks.” He also asserted that McMahon “seldom, if

ever, questioned blacks prior to exercising his peremptory

challenges.” In response, McMahon did not deny using 13

peremptories against blacks, but he stated that he did not remember

the race of each juror whom he had peremptorily challenged, that

he recalled striking both African Americans and whites, that he had

not used all of his allotted strikes, and that three African Americans

had been selected for the jury. At this point, neither the trial judge

1

Although Batson concerned prosecution strikes based on

race, the decision was later extended to strikes by criminal

defendants, Georgia v. McCollum, 505 U.S. 42 (1992), and parties

in civil cases, Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614 (1991), and to strikes based on clasifications other than race.

See, e.g., J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994)

(gender).

2

The voir dire took place before Batson was handed down,

and Brinson’s attorney did not object when the prosecutor made the

peremptory challenges. As a result, the transcript does not reveal

the race of the individuals whom the prosecution struck. The state

courts did not hold, and the Commonwealth does not contend in

this appeal, that Brinson procedurally defaulted his Batson claim

by failing to raise an objection at the time when the challenges

were exercised.

3

nor the attorneys had actually read Batson, and the trial judge

announced that he would not rule on the defense objection prior to

trial but that the issue could be raised in a post-trial motion. The

case was then tried, and Brinson was found guilty of murder in the

first degree and possession of an instrument of crime. He was

sentenced to life imprisonment.

Brinson again raised the Batson issue in a post-trial motion.

At the hearing on the motion, Brinson’s attorney repeated his

previous assertions about McM ahon’s use of peremptory

challenges, and McMahon again disclaimed any memory of how

many strikes he had used against African Americans, stating that

“[defense counsel] says I used thirteen strikes on Blacks and one

on [a] White. I see nothing in the record to indicate that. I do not

have any recollection of that whatsoever. I am sure the Court

does.” To this, the trial judge responded: “Yes, I do.” McMahon

then stated: “Be that as it may, I know I accepted the Black that the

Defense struck.”

The trial judge orally rejected Brinson’s Batson argument on

the ground that Batson had “not yet been accepted by this

Commonwealth.” The trial judge appears to have believed that he

was still bound by pre-Batson Pennsylvania court decisions

rejecting arguments similar to the one that the Supreme Court of

the United States accepted in Batson.

The trial judge died before he could write an opinion

addressing Brinson’s post-trial motions, and the matter was

reassigned to another judge. In his opinion on these motions, the

new judge wrote the following with respect to Brinson’s Batson

argument:

In the instant case the record indicates there were at

least three black persons on the jury and the selection

of the jury was completed with the prosecutor still

having six [peremptory] strikes . . . . Thus, the

record does not show any deliberate, purposeful

exclusion of black persons from the jury in this case.

Unfortunately, the trial judge died before writing his

Opinion, and, therefore, we are without the benefit

4

of his personal observations as he conducted the voir

dire. However, we have, as was stated [in Batson3 ],

confidence, based upon the experience, character and

reputation of [the trial judge], that he would not

allow such a purposeful rejection of black persons

solely by [peremptory] challenges as to deny this

Defendant a fair jury trial.

On direct appeal, Brinson again raised the Batson issue, but

the Superior Court affirmed Brinson’s conviction. Invoking

Commonwealth v. McKendrick, 514 A.2d 144 (1986), the Superior

Court rejected the Batson claim on the ground that “where the

victim, the perpetrator and witnesses are black, a prima facie case

of racial discrimination is not present under Batson . . . .” The

Superior Court continued:

In addition, the record establishes that three of the

jurors in this case were black, the defense struck

blacks, and the Commonwealth had six peremptory

challenges left following the close of jury selection

. . . . Accordingly, appellant has failed to establish

that the prosecutor exercised peremptory challenges

to remove black venire members, as required by

[Batson]. An evidentiary hearing on this issue is not

required.

Brinson raised his Batson claim in a petition for allocatur to the

Pennsylvania Supreme Court, but the petition was denied.

In September 1993, Brinson filed a petition in state court

under the Pennsylvania Post-Conviction Relief Act (PCRA). That

petition claimed that trial counsel had been ineffective because,

among other things, he had allegedly failed to object to the

prosecution’s systematic exclusion of African Americans from the

jury. 4 Brinson’s petition was denied without a hearing in January

3

See 476 U.S. at 97.

4

The ineffective assistance of counsel claim identified six

failures by defense counsel: (1) failing to object to the systematic

5

1995. A timely appeal was taken, but the Superior Court affirmed

the dismissal for two reasons: first, that the Batson claim had been

litigated on direct appeal and therefore could not be raised under

the PCRA, see 42 Pa. Con. Stat. Ann. § 95544(a)(3), and, second,

that all of Brinson’s claims were waived because Brinson allegedly

failed to include a trial transcript as part of the official record. The

Pennsylvania Supreme Court again denied allocatur.

Following the dismissal of his first PCRA petition, Brinson

turned to the federal courts and filed a timely pro se petition for a

writ of habeas corpus in which he presented eight grounds for

relief, including his Batson claim.5 While this petition was

pending, a videotape entitled “Jury Selection with Jack McMahon”

was released to the public. This tape depicted a training session in

which McMahon advocated the use of peremptory challenges

against African Americans. After the tape was released, Brinson

filed a motion requesting that the District Court take judicial notice

of the new evidence.

exclusion of African-Americans from the jury; (2) failing to

preserve for appeal the denial of petitioner’s motion for severance;

(3) failing to challenge and preserve for appeal the issue of whether

the prosecutor violated the rules of discovery; (4) failing to

challenge and preserve for appeal the propriety of the prosecutor’s

questions regarding petitioner’s post-arrest silence; (5) failing to

challenge the admission of hearsay testimony; and (6) failing to

challenge the prosecutor’s reference to petitioner’s post-arrest

silence during summation.

5

The additional grounds for relief in this petition were: (1)

the state courts incorrectly concluded that some of his claims were

waived; (2) trial counsel was ineffective in failing to move for

severance of his trial from that of his co-defendant; (3) the

Commonwealth failed to provide complete discovery; (4) the

prosecutor violated due process by questioning him about post-

arrest silence; (5) trial counsel was ineffective in failing to object

to hearsay testimony; (6) co-defendant’s girlfriend was improperly

permitted to testify; and (7) the prosecutor made improper

statements during his closing arguments.

6

The Magistrate Judge to whom the federal habeas petition

was assigned for a report recommended that the petition be

dismissed without prejudice on the ground that the Batson claim,

as bolstered by the McMahon tape, was unexhausted and that the

petition therefore contained both exhausted and unexhausted

claims. The Magistrate Judge noted that the Batson issue had been

litigated in state court on direct appeal and that the PCRA generally

precludes re-litigation of claims, but the Magistrate Judge observed

that the PCRA’s one-year filing deadline contains an exception for

claims predicated on facts that were previously unknown to the

petitioner and that could not have been discovered through the

exercise of due diligence. See 42 Pa. Cons. Stat. Ann. §

9545(b)(1)(ii). The District Court adopted this recommendation

and dismissed the petition without prejudice on September 22,

1997.

Unfortunately, the District Court did not note that, by the

time of its decision, the PCRA time limit for filing a claim based

on newly discovered evidence – 60 days from the discovery of the

evidence (see 42 Pa. Cons. Stat. Ann. § 9545(b)(2)) – had already

passed. Moreover, in order to proceed with a new PCRA petition

raising his Batson claim, Brinson felt that he was required to

comply with the so-called “Spence rule,” see Commonwealth v.

Spence, 627 A.2d 1176 (Pa. 1993), and thus to identify the race of

“the veniremen who had been removed by the prosecution, the race

of all the jurors who served, [and] the race of jurors acceptable to

the Commonwealth who had been stricken by the defense.” Id. at

1182-83.6 With the assistance of a law professor, Brinson spent 10

months attempting to compile these statistics. Brinson eventually

filed his second PCRA action on July 30, 1998, but the PCRA

court dismissed the petition as untimely, and the Superior Court

affirmed.

On December 4, 2000, Brinson returned to federal court and

filed a second habeas petition in which he raised the same claims

6

We have held that the Spence rule is inconsistent with

Batson. See Holloway v. Horn, 355 F.3d 707, 728-29 (3d Cir.

2004).

7

presented in his first petition. The Magistrate Judge recommended

that the petition be dismissed as untimely, but the District Court did

not adopt this recommendation, ruling that the running of the

statute of limitations should be equitably tolled for the time period

following the dismissal of the timely, first petition in September of

1997. The District Court reached this conclusion for two reasons.

First, the Court stated that it had erred in dismissing Brinson’s first,

timely petition. The Court explained:

The Batson issue had actually been presented to the

state courts on direct appeal and in the first PCRA

application. My conclusion that considerations of

comity would best be served by permitting the state

courts an opportunity to reconsider the issue in light

of the recent disclosure of the McMahon tapes

turned out to be unduly generous to the

Commonwealth; petitioner’s right to seek federal

habeas relief should not be lost entirely, merely

because of this Court’s excessive deference to the

state tribunals.

Second, the District Court stated that, even if Brinson had not

exhausted his Batson claim on direct appeal, “it would have been

preferable to stay, rather than dismiss, the first federal petition.”

The District Court returned the case to the Magistrate Judge

for a recommendation on the merits of the Batson claim, and the

Magistrate Judge concluded, in an opinion adopted by the District

Court, that Brinson had failed to establish a prima facie case under

Batson. The Magistrate Judge opined that the record did not

support a finding that McMahon had in fact used 13 of his 14

peremptory strikes against African Americans and that the

McMahon tape, though “troubling,” did not establish that

McMahon had used impermissible tactics during Brinson’s trial.

Brinson then took this appeal, claiming that the District

Court erred in denying his Batson claim and in dismissing his

additional claims sub silentio. The respondents (hereinafter “the

Commonwealth”) counter that the District Court should not have

equitably tolled the statute of limitations but that, in any event,

8

Brinson’s Batson claim was properly rejected on the merits.

II.

We first consider the question whether, as the District Court

held, it was proper to toll the statute of limitations for the period

from the dismissal of Brinson’s first federal habeas petition until

the filing of his current petition. It is settled that the one-year

statute of limitations for filing a federal habeas claim under 28

U.S.C. § 2254 is subject to equitable tolling, see Miller v. New

Jersey State Dept. Of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998),

but that the doctrine should be invoked “sparingly.” Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 95 (1990). We have said that

equitable tolling is proper when the party in question “has in some

extraordinary way been prevented from asserting his or her rights.”

Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003). One such

potentially extraordinary situation is where a court has misled a

party regarding the steps that the party needs to take to preserve a

claim. See, e.g., Baldwin County Welcome Center v. Brown, 466

U.S. 147, 151 (1984) (referring to situation in which “the court has

led the plaintiff to believe that she has done everything required of

her”); Hallgren v. U.S. Dept. of Energy, 331 F.3d 588, 590 (8th

Cir. 2003); Lambert v. United States, 44 F.3d 296, 299 (10th Cir.

1995); Rys v. U.S. Postal Serv., 886 F.2d 443, 447 (1st Cir. 1989).

In this case, the District Court held that equitable tolling was

justified on this ground.

We have never decided what standard of appellate review

should govern when a District Court applies the doctrine of

equitable tolling in a habeas case, and the circuits are divided on

the issue, with some applying de novo review, some using an

abuse-of-discretion standard, and some employing different

standards in different circumstances. See Neverson v. Farquarson,

366 F.3d 32, 42 n.11 (1st Cir. 2004); Rouse v. Lee, 339 F.3d 238,

248 n.7 (4th Cir. 2003) (collecting cases). On balance, we are

inclined to believe that where, as here, the relevant facts are not

disputed, a District Court’s decision on the question whether a case

is sufficiently “extraordinary” to justify equitable tolling should be

reviewed de novo.

9

Three factors point in this direction. First, a District Court

does not have any comparative advantage in deciding whether

particular circumstances are extraordinary enough to warrant the

application of the doctrine. Second, reversal of a District Court’s

ruling on this issue will not lead to a retrial or any other

comparably burdensome proceedings. Third, de novo review leads

to greater uniformity in the application of the doctrine and better

serves the goal of ensuring that the doctrine is indeed used

“sparingly” and is not employed to upset the strong concern for

finality embodied in 28 U.S.C. § 2254.

In the present case, however, it is not necessary for us to

resolve this question, because we would sustain the District Court’s

decision on the issue of equitable tolling under any of the standards

used by other courts of appeals. We conclude that the District

Court’s mistaken dismissal of Brinson’s first petition prevented

Brinson in a sufficiently extraordinary way from asserting his

rights under the federal habeas statute. As the District Court

ultimately recognized, Brinson had fully exhausted his Batson

claim on direct appeal. It was therefore error for the District Court

to dismiss his first federal habeas petition on the ground that this

claim was not exhausted. In dismissing that petition, the District

Court reasoned that Brinson’s request for judicial notice of the

McMahon tape transformed his Batson claim into one that differed

from the claim raised on direct appeal, but this reasoning was

flawed.

First, it is questionable whether Brinson’s reliance on the

McMahon tape fundamentally altered the previously exhausted

claim because the tape merely confirmed the factual predicate of

Brinson’s Batson claim without changing its legal basis. See

Vasquez v. Hillery, 474 U.S. 254, 258 (1986); Stevens v. Del. Corr.

Ctr., 295 F.3d 361, 369 (3d Cir. 2002); Landano v. Rafferty, 897

F.2d 661, 673 (3d Cir. 1990). Second, as we explain in part III of

this opinion, without the tape, Brinson had a meritorious claim that

his trial attorney established a prima facie case under Batson and

that the state courts violated Batson by failing to move on to the

second and third steps of the Batson inquiry. Under these

circumstances, the District Court, at a minimum, should have given

Brinson the option of going forward with the precise claim that was

10

advanced on direct appeal. 7 See Rose v. Lundy, 455 U.S. 509, 510

(1982) (when petition is “mixed,” petitioner must be given “choice

of returning to state court to exhaust his claims or of amending or

resubmitting the habeas petition to present only exhausted claims

to the district court”). Instead, the District Court relegated Brinson

to another round of state court litigation that was bound to fail

because the 60-day period for raising a claim founded on newly

discovered evidence had already passed.

The Commonwealth contends that Brinson did not act with

the requisite “reasonable diligence” because he was allegedly

dilatory in filing his second PCRA petition. The Commonwealth

first faults Brinson because, when the McMahon tape was released,

he did not file his second PCRA petition within 60 days thereafter

but instead elected to proceed with his first federal habeas petition.

The Commonwealth also argues that Brinson did not exhibit

“reasonable diligence” because he did not file his second PCRA

petition within 30 or 60 days after the District Court’s dismissal of

the first federal petition. The Commonwealth takes the figure of

30 days from our decision in Crews v. Horn, 360 F.3d 146 (3d Cir.

2004), in which we held that, where a District Court stays a mixed

petition so that the petitioner can exhaust unexhausted claims, the

petitioner must file in the state court within 30 days after the entry

of the stay. The Commonwealth takes the figure of 60 days from

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), in which the

Pennsylvania Supreme Court held that, when a ground for filing a

second PCRA petition (such as the discovery of new evidence)

arises while a previous PCRA action is still pending, the second

petition is timely if it is filed within 60 days after the final

resolution of the previous PCRA action.

Whatever other flaws these arguments may have, they all

fail for the simple reason that Brinson, having already fully

exhausted his Batson claim, had no obligation to file in state court

7

It is unresolved whether additional claims presented in the

first petition were unexhausted, but if they were, Brinson should

have been given the choice of proceeding with the exhausted

Batson claim and any other exhausted claims.

11

at all. Consequently, he cannot be faulted for failing to file such

a petition within any of the time periods suggested by the

Commonwealth. We thus hold that the District Court did not err in

equitably tolling the statute of limitations.

III.

A.

We now consider the merits of Brinson’s Batson claim.

Because this claim was “adjudicated on the merits” in state court,

the standards of review set out in 28 U.S.C. § 2254(d) apply. We

must thus decide whether the state courts’ “adjudication of the

claim . . . resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

A state court adjudication is “contrary to” Supreme Court

precedent if it results from the application of “a rule that

contradicts the governing law set forth” by the Supreme Court or

is inconsistent with a Supreme Court decision in a case involving

“materially indistinguishable” facts. Williams v. Taylor, 529 U.S.

362, 405-06 (2000). “A state court decision fails the ‘unreasonable

application’ prong . . . ‘if the court identifies the correct governing

rule from the Supreme Court's cases but unreasonably applies it to

the facts of the particular case or if the state court either

unreasonably extends a legal principle from the Supreme Court's

precedent to a new context where it should not apply or

unreasonably refuses to extend the principle to a new context

where it should apply.’” Rico v. Leftridge-Byrd, 340 F.3d 178, 181

(3d Cir. 2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d

Cir. 2002)).

B.

In the present case, the explanations given by the state trial

and appellate courts were all “contrary to” Batson, or at least

represented unreasonable application of that precedent. First, the

trial judge’s statement that Batson had “not yet been accepted by

12

[the] Commonwealth” requires no comment.

Second, contrary to the post-trial opinion and the opinion of

the Superior Court, a prosecutor may violate Batson even if the

prosecutor passes up the opportunity to strike some African

American jurors.8 Batson was “designed to ensure that a State does

not use peremptory challenges to remove any black juror because

of his race.” 476 U.S. at 99 n.22 (emphasis added). Thus, a

prosecutor’s decision to refrain from discriminating against some

African American jurors does not cure discrimination against

others.

Third, the opinion on the post-trial motion was plainly

incorrect in suggesting that the trial judge must have found that the

prosecutor had not discriminated in the use of peremptories and in

deferring to that supposed finding. The trial judge never made any

findings about the prosecutor’s reasons for his strikes, and the trial

judge did not follow the three-step process outlined in Batson. The

trial judge did not decide whether Brinson’s attorney had pointed

to facts that established a prima facie case; the trial judge did not

call upon the prosecutor to state his reasons for the contested

strikes; and, as noted, the trial judge made no findings as to

whether the prosecutor had followed a strategy of discrimination.

Fourth, the Superior Court was clearly wrong in holding that

“where the victim, the perpetrator and witnesses are black, a prima

facie case of racial discrimination is not present under Batson.”

Batson held that a prima facie case is established when “all

relevant circumstances” give rise to “the necessary inference of

purposeful discrimination.” 476 U.S. at 96. Batson is very clear

8

As noted, the post-trial opinion rejected Brinson’s Batson

claim because, among other things, “there were three black persons

on the jury and the selection of the jury was completed with the

prosecutor still having six [peremptory] strikes.” Similarly, the

Superior Court rejected the Batson claim in part because “there

were at least three black persons on the jury and the selection of the

jury was completed with the prosecutor still having six

[peremptory] strikes.”

13

that such an inference may be created by a variety of different

circumstances. See id. at 96-97. The Court wrote:

For example, a “pattern” of strikes against black

jurors included in the particular venire might give

rise to an inference of discrimination. Similarly, the

prosecutor’s questions and statements during voir

dire examination and in exercising his challenges

may support or refute an inference of discriminatory

purpose. These examples are merely illustrative.

Id. at 97 (emphasis added). To be sure, the race of a victim, the

witnesses, and the defendant may be relevant because these facts

may have a bearing on a prosecutor’s motivation to use racially

based strikes in a particular case, see United States v. Clemons, 843

F.2d 741, 747 (3d Cir.), cert. denied, 488 U.S. 835 (1988), but the

rigid formula invoked by the Superior Court cannot be reconciled

with Batson.

Finally, the Superior Court’s reliance on the fact the “the

defense struck blacks” was misplaced. Suppose that the defense

dismisses a particular African American juror for a permissible

non-racial ground and that the prosecution then strikes other

African American jurors based on their race. The legitimate

defense strike would not open the door for illegitimate prosecution

strikes. Indeed, even if the defense itself violated equal protection

by striking a potential juror based on race, this would not justify

further constitutional violations by the prosecution. On the

contrary, both the defense and prosecution strikes would be

illegitimate. In sum, the various reasons given by the state courts

for rejecting Brinson’s Batson claim will not bear analysis.

C.

The District Court, as noted, held that Brinson’s attorney did

not point to facts that made out a prima facie case. We must

disagree. We hold that any decision to this effect by the state

courts would represent an unreasonable application of Batson.

1. The District Court concluded that the state court record

14

does not support Brinson’s allegation that the prosecutor used 13

of his 14 peremptories against African Americans. In our view,

however, the state court record compels such a finding.

As noted, Brinson’s attorney first made this allegation

shortly after jury selection was completed, and McMahon’s

response was telling. McMahon did not deny that he had used 13

of 14 strikes against African Americans. Nor did he deny that he

had used all but one of his strikes against African Americans. Nor

did he deny that he had used most of his strikes against African

Americans. Nor did he say that, while unable to recall the exact

figures, he remembered that his pattern of strikes was not anything

like that alleged by the defense. Instead, he merely stated: “I don’t

know how many blacks or whites I struck. I know I struck both,

that is a fact.” This was a statement that McMahon could truthfully

make so long as he did not recall the precise statistics – 13 of 14

strikes used against African Americans – that the defense alleged.

If McMahon thought that the pattern might have been slightly

different – say, 14 of 15 or 12 of 14 – M cMahon could assert

without fear of sanction from the trial judge that he did not know

“how many blacks or whites [he] struck.”

McMahon’s comments – and those of the trial judge – at the

post-trial proceeding were also revealing. When the trial judge

announced that he was not going to rule on the Batson objection

before trial but would return to the issue, if necessary, after the

trial, McMahon was put on notice regarding the significance of the

defense allegation. By the time of the post-trial hearing, McMahon

had had time to digest Batson and to attempt to reconstruct the jury

selection process, but McMahon again declined to contest the

defense allegation. At the post-trial hearing, defense counsel

repeated his charge that McMahon had used 13 of 14 strikes

against African Americans and added: “I know Your Honor has

notes with respect to this.” McMahon then stated: “I do not have

any recollection of that whatsoever. I am sure the Court does.”

The trial judge responded: “Yes, I do.” McMahon then stated: “Be

that as it may . . . .”

In context, McMahon’s responses were tantamount to an

admission that his pattern of strikes was at least similar to that

15

alleged by the defense. There is simply no other plausible

explanation for his vague responses on two separate occasions.

The trial judge’s comments are also suggestive. If the judge’s

notes or recollection differed markedly from the facts claimed by

the defense, it seems most unlikely that he would have failed to

note that point on the record. For all these reasons, we conclude

that the state court record compels the conclusion that the

prosecution’s peremptory challenges were exercised in accordance

with the pattern alleged by the defense or a very similar pattern.

2. The pattern of strikes alleged by the defense is alone

sufficient to establish a prima facie case under the circumstances

present here. In Batson, as noted, the Supreme Court stated that “a

‘pattern’ of strikes against black jurors included in the particular

venire might give rise to an inference of discrimination.” 476 U.S

at 97. The stark pattern here qualifies. Such a pattern, of course,

does not necessarily establish racial discrimination, but particularly

in the absence of any circumstance (such as a venire composed

almost entirely of African Americans) that might provide an

innocent explanation, such a pattern is more than sufficient to

require a trial court to proceed to step two of the Batson procedure.

See Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004) (finding

prima facie case established when prosecutor used 11 of 12 strikes

against African Americans).

This conclusion is not undermined by the fact that other

factors suggestive of possible racial discrimination on the part of

the prosecution are not present in the record of this case. In

Clemons, 843 F.2d at 748, we noted that, in addition to a

suspicious pattern of strikes, other factors that may be important in

determining whether a prima facie case has been made out include

an attorney’s questions and statements during the selection process,

the nature of the crime, and the race of the defendant and the

victim. Here, we are not aware of any suspicious questions or

statements made by the prosecution during the jury selection

process, and it does not appear that the crime was racially charged.

But the question whether a prima facie case has been established

must be judged based on all relevant circumstances; no rigid test

need be satisfied; and in some cases, a prima facie case may be

made out based on a single factor. This is such a case.

16

IV.

We hold that the state courts’ rejection of Brinson’s Batson

claim without proceeding to the second step of the Batson analysis

cannot be sustained under 28 U.S.C. § 2254(d)(1). We therefore

reverse the order of the District Court and remand. On remand, the

Commonwealth should be given the opportunity to provide

legitimate reasons for any strikes against African Americans. If it

is unable to provide such explanations, Brinson will be entitled to

habeas relief. If the Commonwealth is able to provide

nondiscriminatory reasons for the strikes, then the District Court

will be required to make findings as to whether the strikes were

based on race.9

9

Unless the District Court determines that Brinson is entitled

to relief on his Batson claim, the District Court on remand must

also address the other claims set out in Brinson’s habeas petition.

17