Appendix — Beard, Secretary, Pennsylvania Department of Corrections v. Holloway

( ne Court, U.S.

FILED

4 101 JUL 16 2004

NO.

_ OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JEFFREY A. BEARD, PH.D., Secretary, DOC; DAVID

DiGUGLIELMO, Superintendent, SCI-Graterford; THE

DISTRICT ATTORNEY OF THE COUNTY OF

PHILADELPHIA; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA,

Petitioners

v.

ARNOLD HOLLOWAY,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

THOMAS W. DOLGENOS

Chief, Federal Litigation Unit

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

ARNOLD H. GORDON

1421 Arch Street First Asst. District Attorney

Philadelphia, PA 19102 LYNNE ABRAHAM

(215) 686-5700 District Attorney

ee

ea

TABLE OF CONTENTS

PAGE

Order of the United States Court of Appeals

for the Third Circuit denying rehearing,

March 3, 2004 App. 1-2

Judgment and Opinion of the United States

Court of Appeals for the Third Circuit,

January 22, 2004 App. 3-45

Opinion and Order of the United States

District Court for the Eastern District

of Pennsylvania, August 27, 2001 App. 46-303

App. 1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT |

Nos. 01-9009 & 01-9010

ARNOLD HOLLOWAY,

Appellant, No. 01-9009

V.

MARTIN HORN, SECRETARY, DOC;

DONALD VAUGHN, SUPERINTENDENT,

SCI-GRATERFORD; THE DISTRICT ATTORNEY

OF THE COUNTY OF PHILADELPHIA; THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA,

Appellants, No. 01-9010

SUR PETITION FOR REHEARING

Present: SCIRICA, Chief Judge,

SLOVITER, NYGAARD, ALITO,

ROTH, McKEE, BARRY, AMBRO,

FUENTES, SMITH, CHERTOFF,

and COWEN*%, Circuit Judges

*Limited to Panel Rehearing Only.

App. 2

The petition for rehearing filed by appellees/cross-

appellants in the above-entitled cases having been submitted

to the judges who participated in the decision of this Court

and to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular service not having

voted for rehearing, the petition for rehearing by the panel

and the Court en banc, is denied.

BY THE COURT,

/s/ Robert E. Cowen

Circuit Judge

Dated: March 3, 2004

ghb/ce: (Billy Nolas, Esq.

Matthew C. Lawry, Esq.

David W. Wycoff, Esq.

Thomas W. Dolgenos, Esq.

App. 3

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 01-9009 & 01-9010

ARNOLD HOLLOWAY,

Appellant, No. 01-9009

V.

MARTIN HORN, SECRETARY, DOC;

DONALD VAUGHN, SUPERINTENDENT,

SCI-GRATERFORD; THE DISTRICT ATTORNEY

OF THE COUNTY OF PHILADELPHIA; THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA,

Appellants, No. 01-9010

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 00-cv-01757)

District Judge: Hon. Franklin S. VanAntwerpen

Argued October 27, 2003

BEFORE: SLOVITER, MC KEE and COWEN,

Circuit Judges

App. 4

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District of

Pennsylvania and was argued on October 27, 2003. On con-

sideration whereof, it is now here ordered and adjudged that

the judgment of the District Court entered on August 27,

2001, be and the same hereby is REVERSED and the matter

REMANDED. All of the above in accordance with the opin-

ion of this Court. Costs taxed against appellee at 01-9009;

each party to bear its own costs at Docket No. 01-9010.

ATTEST:

/s/ Marcia M. Waldron

Clerk

DATED: January 22, 2004

App. 5

PRECEDENTIAL

Filed January 22, 2004

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 01-9009/01-9010

ARNOLD HOLLOWAY,

Appellant, No. 01-9009

V.

MARTIN HORN, SECRETARY, DOC;

DONALD VAUGHN, SUPERINTENDENT,

SCI-GRATERFORD; THE DISTRICT ATTORNEY

OF THE COUNTY OF PHILADELPHIA; THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA,

Appellants, No. 01-9010

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 00-cv-01757)

District Judge: Hon. Franklin S. VanAntwerpen

Argued October 27, 2003

BEFORE: SLOVITER, MC KEE and COWEN,

Circuit Judges

iia

pores

App. 6

(Filed: January 22, 2004)

Matthew c. Lawry, Esq.

Billy H. Nolas, Esq.

David W. Wycoff, Esq. (Argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 10106

Counsel for Appellant/Cross

Appellee

Thomas W. Dolgenos, Esq. (Argued)

Office of District Attorney

1421 Arch Street

Philadelphia, PA 19102

Counsel for Appellees/Cross

Appellants

OPINION OF THE COURT

COWEN, Circuit Judge.

A Philadelphia jury convicted Amold Holloway of

first-degree murder for the brutal slaying of Richard Caldwell

and imposed a sentence of death. Holloway raises several

claims of constitutional error in this federal habeas corpus

proceeding. We need only reach his contention that the

Commonwealth of Pennsylvania used its peremptory strikes

Sa

App. 7

to exclude African-Americans from the petit jury in violation

of the Equal Protection Clause and Batson v. Kentucky, 476

U.S. 79 (1986). The District Court held that Holloway pro-

cedurally defaulted his Batson claim by failing to raise it on

direct appeal in state court, and alternatively held that the

claim was without merit. We conclude that Holloway

exhausted his Batson claim both on direct appeal and in state

post-conviction proceedings, and committed no procedural

default to bar review in federal court. On the merits, the use

by the Commonwealth of eleven of its twelve peremptory

strikes to exclude African-Americans from the jury, together

with the failure to offer race-neutral reasons for the strikes,

particularly of venireperson John Hackley, Sr., violated the

principles of Batson. Accordingly, we will reverse the Dis-

trict Court’s judgment and remand for issuance of the writ

conditioned upon the Commonwealth’s right to conduct a

retrial.

I. Background & Procedural History

In the early morning hours of May 16, 1980, Philadel-

phia police found the body of seventeen-year-old Richard

Caldwell on a secluded North Philadelphia street corner,

dead from strangulation and two shotgun wounds to the head.

The murder remained unsolved until January 1985, when the —

police arrested a neighborhood heroin dealer, Shirley Baker,

who was wanted for sentencing on several drug-related con-

victions and had become a suspect in the murder. While in

custody, Baker told the police that her fellow dealers, Hollo-

way and Danny Freeman, had murdered Caldwell.

According to Baker, Holloway was a middleman who

supplied heroin to Baker, Freeman, and Caidwell for street-

level distribution. Holloway, in turn, answered to an individ-

ual named Leroy Johnson. Johnson came to believe that

ee ee — se

App. 8

Caldwell was “messing up the money” and otherwise

interfering with his business plans, and he instructed Hollo-

way to kill Caldwell. Baker claimed that she was in her

apartment with Johnson ingesting cocaine around midnight

on May 16, when Freeman and Holloway arrived and asked

to use Johnson’s van. Johnson informed Holloway that Cald-

well was in the van, and Holloway replied, “I can take care of

that now.” Holloway and Freeman retrieved a shotgun from

Holloway’s upstairs apartment and departed in the van. They

returned around thirty minutes later, at which point Holloway

whispered with Johnson about having tied up and strangled

Caldwell. Holloway, Johnson, and Freeman then left Baker’s

apartment, with Johnson asking Holloway if he had cleaned

up the van.

In May 1985, Philadelphia police located Holloway

and took him into custody. According to the Common-

wealth’s trial evidence, Holloway confessed to the murder

while in custody by providing a typewritten statement to

Detective Ernest Gilbert, which he refused to sign. Hollo-

way’s statement was largely consistent with Baker’s account

of the murder. Holloway added, however, that he murdered

Caldwell because of a threat to his own life from Johnson.

He admitted that he and Freeman tied Caldwell’s hands

together, drove the van several blocks from the apartment,

and pushed Caldwell into the street. They strangled Caldwell

by taking turns pulling at a belt around his neck, and then

shot him twice in the head at close range.

The Commonweaith charged Holloway in the Phila-

delphia County Court of Common Pleas with first-degree

murder, criminal conspiracy, and possession of an instrument

of crime. Pretrial litigation arose primarily from the fact that,

days prior to Holloway’s arrest, a jury had acquitted his

alleged accomplice Danny Freeman on charges of murdering

App. 9

Caldwell. Holloway moved to suppress his custodial state-

ment, claiming, inter alia, that he never made it and would

not have done so because he knew at the time of his arrest

that Freeman had been acquitted. The trial court denied the

suppression motion. The trial court also granted a Common-

wealth motion to preclude discussion before the jury of Free-

man’s acquittal. That ruling barred Holloway from arguing

that his custodial statement should be disbelieved because he

and Detective Gilbert both knew of Freeman’s acquittal at

the time the statement was purportedly made.

The voir dire examination of prospective jurors, dis-

cussed in greater detail below, was conducted over the course

of three days. The Commonwealth exercised a total of

twelve peremptory challenges, eleven of which were used to

strike African-Americans. Holloway, an African-American,

raised objections, created a record as to the race of the

stricken venirepersons, and moved for a mistrial on the

ground that a pattern of purposeful discrimination had been

established. The prosecutor responded by explaining his

reasons for three of the strikes, but the trial court rendered no

express or otherwise articulated ruling on Holloway’s objec-

tions; instead, it implicitly rejected the Batson challenge by

letting the matter proceed to trial.

At trial the Commonwealth relied primarily upon the

testimony of Shirley Baker and Detective Gilbert. Holloway

testified in his own defense, claiming that Detective Gilbert

fabricated his custodial statement. Holloway’s wife, Delores

Kareem, bolstered this assertion by testifying regarding a

phone call she received from Holloway shortly after he made

the purported statement. Holloway also called as a witness

the victim’s adopted brother, Alfonso Walker, who testified

that other drug dealers were angry with and had assaulted

Caldwell shortly before his death. Finally, Holloway

App. 10

presented an alibi defense, seeking to establish that he was

intoxicated and at the home of Carmella Davis the night of

the murder, in support of which he presented the testimony of

Davis and her then-boyfriend.

The jury convicted Holloway on all counts after a

three-day trial. A capital sentencing proceeding was con-

ducted immediately following the verdict. The Common-

wealth rested on its trial evidence at sentencing, while

Holloway presented his wife as the sole sentencing witness.

The jury found the two aggravating circumstances asserted

by the Commonwealth: (1) Holloway paid or was paid by

another person, had contracted to pay or be paid by another

person, or had conspired to pay or be paid by another person

for the killing, 42 Pa. Cons. Stat. § 9711(d)(2); and (2) the

killing was effectuated by means of torture, id. at § 9711

(d)(8). The jury also found the two mitigating circumstances

upon which it was charged: (1) Holloway had no significant

history of prior convictions (to which the Commonwealth

had stipulated), id. at § 9711(e)(1); and (2) evidence pertain-

ing to Holloway’s character, id. at § 9711(e)(8). It concluded

that the two aggravating circumstances outweighed the two

mitigating circumstances and imposed a death sentence for

the murder conviction. The court also sentenced Holloway to

consecutive terms of five to ten years for conspiracy to com-

mit murder, and two and one-half to five years for possessing

an instrument of crime.

Holloway pursued a direct appeal as of right to the

Pennsylvania Supreme Court, which affirmed the convictions

and sentences. Commonwealth v. Holloway, 572 A.2d 687

(Pa. 1990) (“Holloway I’). In 1991, Holloway filed a peti-

tion for state-court collateral review under the Pennsylvania

Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-9546

(“PCRA”). The trial court denied the petition after an

App. 11

evidentiary hearing, and the Pennsylvania Supreme Court

affirmed. Commonwealth v. Holloway, 739 A.2d 1039

(1999) (“Holloway IT’).

On April 4, 2000, Holloway timely filed a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of Penn-

sylvania, raising sixteen grounds for relief. The District

Court conducted a limited evidentiary hearing regarding the

purported procedural default of Holloway’s Batson claim,

and thereafter issued an opinion denying relief on all trial-

phase claims. Holloway v. Horn, 161 F. Supp. 2d 452 (E.D.

Pa. 2001) (“Holloway IIT’). The District Court held in perti-

nent part that the Batson claim was procedurally defaulted

and, in any event, was without merit. As to the sentencing

phase, the District Court concluded that Holloway’s counsel

provided ineffective assistance in failing to investigate

mental-health issues and request the assistance of a mental-

health expert. The District Court thus issued the writ condi-

tioned upon the Commonwealth’s right to conduct a new

sentencing proceeding. Holloway timely appealed (C.A. No.

01-9009), and the Commonwealth timely cross-appealed

(C.A. No. 01-9010).

II. Jurisdiction & Standard of Review

We granted Holloway a certificate of appealability to

raise six issues on appeal, including whether the

Commonwealth used its peremptory strikes in violation of

Batson.' Given our disposition of the Batson issue, we need

. The other five issues are as follows: (1) whether the trial

court improperly excluded evidence that Holloway and Detective

Gilbert were aware of Danny Freeman’s acquittal, offered for the

(Continued)

App. 12

not address Holloway’s remaining claims. Nor do we reach

the Commonwealth’s challenge on cross-appeal to the Dis-

trict Court’s issuance of the writ based on its finding that

counsel provided ineffective assistance at sentencing.

We have appellate jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253(a). We conduct a plenary review of the

District Court’s legal conclusions and review its factual

conclusions for clear error. Whitney v. Horn, 280 F.3d 240,

249 (3d Cir. 2002). Our review is also plenary as to the

District Court’s determinations regarding exhaustion and

procedural default. Jd.; Hull v. Kyler, 190 F.3d 88, 97 (3d

Cir. 1999).

Ill. The Batson Claim

1. Procedural Default

In Holloway II, the Pennsylvania Supreme Court held

that Holloway’s Batson claim was procedurally defaulted,

(Continued)

limited purpose of showing Holloway’s state of mind and the

motivation of Detective Gilbert at the time of the supposed confes-

sion; (2) whether the prosecutor’s guilt phase argument was egre-

giously improper and violated due process; (3) whether

Holloway’s conviction of the crime of conspiracy, which was

barred by the statute of limitations, violated due process and the

ex post facto clause; whether the trial court’s instructions on

accomplice liability violated due process; and together, whether

these violations prejudicially affected the jury’s deliberations on

the charge of first-degree murder; (4) whether the jury instructions

unconstitutionally indicated that the jury had to unanimously find

any mitigating circumstances before giving it effect in its sentenc-

ing decision; and (5) whether the District Court erred in holding

these claims procedurally defaulted.

App. 13

because it had not been raised before the PCRA trial court.

In Holloway III, the District Court agreed with the Pennsyl-

vania Supreme Court that the Batson claim had been

defaulted. As discussed below, we find no procedural

default.

In its reading of the record, the District Court con-

cluded that Holloway committed a procedural default

because it believed that the Pennsylvania Supreme Court

refused on the PCRA appeal to reach the merits of the Batson-

claim due to a waiver caused by counsel’s failure to raise the

Batson claim on direct appeal. The record is clear, however,

that the Pennsylvania Supreme Court did not fault Holloway

for counsel’s failure to raise the Batson claim on direct

appeal. Rather, the Court believed (mistakenly) that Hollo-

way had not raised his Batson claim at the PCRA trial level,

and held that, for that reason alone, the Batson argument was

waived from appellate review on the merits. See Holloway

IT, 739 A.2d at 1044. Relying upon its decision in Common-

wealth v. Albrecht, 720 A.2d 693 (Pa. 1998) which held that

a PCRA petitioner’s waiver at the trial level would only be

excused upon a demonstration of ineffectiveness of counsel

in waiving the issue, the Court addressed Holloway’s Batson

claim solely as an assertion of counsel’s ineffectiveness in

waiving the claim. Holloway IT, 739 A.2d at 1044-46.

Given this record, the District Court erred in conclud-

ing that Holloway committed a procedural default due to

counsel’s failure to raise the Batson claim on direct appeal.

The Pennsylvania Supreme Court never expressly or other-

wise held the claim defaulted for that reason in Holloway II.

A federal habeas court is “not bound to enforce a state proce-

dural rule when the state itself has not done so, even if the

procedural rule is theoretically applicable to [the] facts.”

Smith v. Freeman, 892 F.2d 331, 337 (3d Cir. 1989); see also

———E aaa

App. 14

Harris v. Reed, 489 U.S. 255, 263 (1989) (“[A] procedural

default does not bar consideration of a federal claim on either

direct or habeas review unless the last state court rendering a

judgment in the case clearly and expressly states that its judg-

ment rests on a state procedural bar.”) (citations and quota-

tion marks omitted). For these reasons, we hold that the

Batson claim was not defaulted.

2. Exhaustion

We must next determine whether Holloway

exhausted state-court remedies on his Batson claim, which

Holloway claims to have done on direct appeal. The District

Court rejected that contention and the Commonwealth urges

affirmance on that ground. The Commonwealth argues that

the exhaustion requirement was not met because Holloway

raised the Batson argument to the Pennsylvania Supreme

Court on direct appeal solely in a pro se supplemental brief,

and not in his counseled appellate brief. We conclude that

Holloway satisfied the exhaustion requirement on direct

appeal.

A federal court will not grant a state prisoner’s peti-

tion for a writ of habeas corpus unless available state-court

remedies on the federal constitutional claim have been

exhausted. 28 U.S.C. § 2254(b)(1); Stevens v. Del. Corr.

Ctr., 295 F.3d 361, 369 (3d Cir. 2002). The exhaustion

requirement is satisfied only if the petitioner can show that he

fairly presented the federal claim at each level of the

established state-court system for review. O'Sullivan v.

Boerckel, 526 U.S. 838, 844-45 (1999); Whitney, 280 F.3d at

250.’ “Fair presentation” of a claim means that the petitioner

. The established system for review in Pennsylvania capital

(Continued)

App. 15

“must present a federal claim’s factual and legal substance to

the state courts in a manner that puts them on notice that a

federal claim is being asserted.” McCandless v. Vaughn, 172

F.3d 255, 261 (3d Cir. 1999) (citations omitted).

After the denial of his post-verdict motion for a new

trial, Holloway was appointed new counsel for his direct

appeal as of right. Counsel did not brief a Batson issue to the

Pennsylvania Supreme Court, although trial counsel had

preserved that issue by moving for a mistrial based on the

prosecutor’s pattern of striking potential African-American

jurors. Holloway himself, however, raised a Batson claim in

a pro se appellate brief that he filed several months after the

counseled brief was filed. He also filed an application for

permission to file the pro se brief as a supplement to the

counseled brief. Holloway argued the legal and factual

substance of a claim of purposeful discrimination, cited the

Equal Protection Clause as well as Batson and other relevant

case law, and claimed that the trial court erred in failing to

grant his motion for a mistrial based on the prosecutor’s

pattern of strikes and the failure to offer race-neutral

explanations. App. Vol. II at 442. Holloway objected in

particular to the strikes of venirepersons Robert Keel and

John Hackley, Sr. (discussed infra), and claimed that “the

prosecutor used his peremptory challenges to strike African-

American people from sitting on the jury.” Jd. at 442-43.

The Pennsylvania Supreme Court entered an order

deferring consideration of Holloway’s application to file the

(Continued)

cases is an appeal from the trial level directly to the Pennsylvania

Supreme Court; this system applies both on direct review follow-

ing conviction and sentencing, see 42 Pa. Cons. Stat. §§ 722(4),

9711(h)(1), and in PCRA proceedings, see id. at § 9546(d).

App. 16

pro se supplemental brief until the time of oral argument on

the appeal. App. Vol. III at 450. In its opinion in Holloway

I, however, the court made no mention of the pro se brief or

the Batson claim, and issued no order or decision on whether

it had accepted or rejected the pro se brief for consideration.

The District Court held a limited evidentiary hearing

to determine whether Holloway could show “cause” to

overcome what the District Court perceived to be a proce-

dural default caused by counsel’s failure to raise the Batson

claim on direct appeal.’ The lone witness at the federal hear-

ing was Holloway’s counsel on direct appeal, who testified

that although he could recall no discussion on the Batson

claim at oral argument, the Pennsylvania Supreme Court

indicated that it would take all issues presented under advise-

ment, including those presented in the pro se supplemental

brief. See App. Vol. IV at 625-26 (“[T]he Court said it

would consider all the matters contained in the pleadings set

forth and the Batson issue was one of them.”); id. at 626

’ A federal court may not consider the merits of a proce-

durally defaulted claim unless the petitioner establishes “cause

and prejudice” or a “fundamental miscarriage of justice” to excuse

the default. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To

show “cause,” the petitioner “must demonstrate some objective

factor external to the defense that prevented compliance with the

state’s procedural requirements.” /d. at 753; see also Cristin v.

Brennan, 281 F.3d 404, 420 (3d Cir.), cert. denied, 123 S. Ct. 195

(2002).

Holloway committed no procedural default on direct

appeal, as discussed below, as he exhausted the Batson claim by

way of his pro se brief. Thus, even if he violated a state proce-

dural rule in the PCRA proceedings (which he did not), the sub-

stance of his Batson claim can be reviewed on the merits by virtue

of the direct appeal exhaustion.

App. 17

(“[T]he Court even noted the fact that it would consider the

Batson issue or at least his pro se brief.”); id. at 642 (“[T]he

Court had duly noted that it had received the pro se brief, was

taking it under advisement, taking all the matters raised

under advisement after oral argument.”). The Common-

wealth, for its part, presented no evidence at the federal hear-

ing to rebut or cast any doubt upon counsel’s recollection that

the state court accepted the pro se supplemental brief for

consideration. On this record, Holloway has met his burden

of showing that he exhausted the Batson claim on direct

appeal, as he placed the state court on notice of the factual

and legal substance of his federal equal protection argument

and raised the claim through the established system for

review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176 n.8 (3d Cir.

1999) (noting in a capital case that counseled petitioner

exhausted claims by presenting them in a pro se brief to the

Pennsylvania Supreme Court).

The Commonwealth argues that we cannot rely on the

testimony of Holloway’s direct appeal counsel because the

District Court lacked authority under 28 U.S.C. § 2254(e)(2)

to hold an evidentiary hearing.* Appellees Br. at 55-57. This

. Section 2254(e)(2) provides as follows:

If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold

an evidentiary hearing on the claim unless the applicant

shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(Continued)

App. 18

Court has held, however, that it is within a District Court’s

authority to grant a hearing on a petitioner’s ability to

establish cause to excuse a procedural default, and therefore

“§ 2254(e)(2) is inapplicable to those hearings.” Cristin v.

Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert. denied, 537

U.S. 897, 123 S. Ct. 195 (2002). Appellate counsel’s testi-

mony regarding the direct appeal proceedings fell within the

scope of the evidentiary hearing, which was conducted to

determine whether there was any “objective factor external to

the defense” that prevented counsel from pressing the Batson

claim in the counseled direct appeal brief. Thus, the evi-

dence adduced at the hearing is properly considered for pur-

poses of the exhaustion analysis.

Our conclusion that Holloway exhausted the Batson

claim by means of his pro se brief is fully supported by the

Pennsylvania Supreme Court’s practice, at the time of Hollo-

way's appeal, of considering issues raised pro se even if

counseled briefs were filed. In a capital case decided while

Holloway’s direct appeal was pending, Commonwealth v.

Billa, 555 A.2d 835 (Pa. 1989), the Pennsylvania Supreme

Court noted that appellate counsel neglected to raise an issue

concerning the trial court’s failure to render an appropriate

jury instruction. The appellant himself, however, raised a

challenge on that basis in a pro se supplemental brief. Jd. at

842. The Pennsylvania Supreme Court granted permission to

(Continued)

(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.

App. 19

file the pro se brief as a supplement to the counse/ed brief

and further granted relief on the merits of the claim. Jd. In

several subsequent capital cases, the Pennsylvania Supreme

Court again considered the merits of pro se claims raised by a

counseled appellant. See, e.g., Commonwealth v. Williams,

615 A.2d 716, 720 n.6 (Pa. 1992); Commonwealth v. Zook,

615 A.2d 1, 22 (Pa. 1992); Commonwealth v. Chambers, 599

A.2d 630, 633 (Pa. 1991); Commonwealth y. Tilley, 595 A.2d

575, 579 n.9 (Pa. 1991).

The Pennsylvania Supreme Court first indicated that

it might change course with regard to accepting pro se sup-

plemental briefs in Commonwealth v. Ellis, 626 A.2d 1137

(Pa. 1993). In Ellis, a non-capital case, the Court affirmed

the intermediate Superior Court’s practice of refusing to

entertain pro se briefs if the appellant is represented by coun-

sel. The Superior Court had held that it “will accept for

filing pro se appellate briefs, but [ ] will not review a pro se

brief if a counseled brief has been filed, either before, simul-

taneously with, or after the pro se, due to the judicial confu-

sion and delay that ensues.” Commonweaith v. Ellis, 581

A.2d 595, 600 (Pa. Super. Ct. 1990). The Pennsylvania Su-

preme Court approved this practice. It explained that crimi-

nal appellants possess no constitutional right to hybrid

representation and, therefore, a refusal to consider pro se

briefs from counseled litigants is warranted so as not to “con-

fuse and overburden the court.” 626 A.2d at 1140; see also

Commonwealth v. Rogers, 645 A.2d 223, 224 (Pa. 1994)

(explaining that “E/lis specifically condemns the practice of

filing separate pro se briefs” and holding that an appellant

cannot terminate counsel after the filing of a counseled brief

“simply because he wishes to file pro se appellate briefs”).

The Pennsylvania Supreme Court then applied the E//is prin-

ciple in a direct capital appeal, Commonwealth v. Reid, 642

A.2d 453 (Pa. 1994), where the appellant filed a pro se

App. 20

supplemental brief raising four claims of error after the coun-

seled brief had been filed. Citing its reasoning in Ellis, the

Court rejected the supplemental brief, holding that “Appel-

lant’s pro se claims are improper and will not be considered

by this Court.” Jd. at 462.

Ellis and Reid marked a retreat from the consideration

of pro se claims in counseled cases. Prior case law indicates,

however, that the Pennsylvania Supreme Court generally

entertained the merits of supplemental pro se claims. The

Commonwealth disagrees and argues that “the Ellis rule is

well-known in Pennsylvania, and has been for a very long

time.” Appellee/Cross-Appellant’s Br. at 61. In support of

this assertion, the Commonwealth relies upon various deci-

sions of the intermediate Superior Court from 1985 and

earlier, indicating that pro se supplemental briefs had long

been disfavored in the Superior Court. Jd. The present case,

however, is a capital proceeding, which entails an appeal

taken directly to the Pennsylvania Supreme Court. It is thus

irrelevant to our inquiry whether the intermediate Superior

Court had a practice of rejecting pro se supplemental briefs in

non-capital cases prior to the time of Holloway’s appeal. As |

noted, Pennsylvania Supreme Court decisions around the

time of Holloway’s direct appeal are fully consistent with the

record here that the Court assented to consideration of the

pro se supplemental claims, including the Batson issue. We

simply have no reason to believe that the Court refused to

consider Holloway’s pro se brief, particularly since such a

refusal would have been contrary to its practice at the time.

The District Court rejected Holloway’s argument of

exhaustion on direct appeal primarily because it faulted Hol-

loway for failing to raise his exhaustion argument during the

PCRA proceedings. Holloway III, 161 F. Supp. 2d at 502

n.38. It is well-settled that “once [a] federal claim has been

App. 21

fairly presented to the state courts, the exhaustion require-

ment is satisfied.” Picard v. Connor, 404 U.S. 270, 275

(1971). As discussed, “fair presentation” requires raising the

federal claim itself; a petitioner has no separate obligation to

present a federal exhaustion argument to the state courts for

review. Moreover, if a claim is exhausted on direct review

but the state court fails to adjudicate the claim, the petitioner

need not reassert the claim in a state post-conviction proceed-

ing. Thus, Holloway’s decision to reassert the Batson claim

on PCRA review does nothing to diminish his exhaustion of

the claim on direct appeal.

Even if the Pennsylvania Supreme Court were to have

held on the PCRA appeal that Holloway’s claim was previ-

ously litigated by virtue of the pro se direct appeal brief and

therefore barred from state collateral review, such a finding

would not have prevented a federal court from reaching the

merits. See Yist v. Nunnemaker, 501 U.S. 797, 805 (1991);

Lambert v. Blackwell, 134 F.3d 506, 519-20 (3d Cir. 1997).

It is “too obvious to merit extended discussion that whether

the exhaustion requirement of 28 U.S.C. § 2254(b) has been

satisfied cannot turn upon whether a state appellate court

chooses to ignore in its opinion a federal constitutional claim

squarely raised in petitioner’s brief in the state court.” Smith

v. Digmon, 434 U.S. 332, 333 (1978) (per curiam); see also

McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir. 1987);

Swanger v. Zimmerman, 750 F.2d 291, 295-96 (3d Cir.

1984). Thus, the Pennsylvania Supreme Court’s failure to

rule on the merits of Holloway’s Batson claim on direct ap-

peal can have no bearing on our exhaustion analysis. Conse-

quently, we must reject the District Court’s conclusion that

Holloway “defaulted” his exhaustion argument by failing to

raise that argument on PCRA review.

App. 22

Holloway fairly presented and exhausted his Batson

claim on direct appeal. “A petitioner who has raised an issue

on direct appeal . . . is not required to raise it again in a state

post-conviction proceeding.” Lambert, 134 F.3d at 513; see

also Peoples v. Fulcomer, 882 F.2d 828, 829 n.1 (3d Cir.

1989). Because Holloway’s direct appeal exhaustion is

sufficient in itself to bring the Batson claim before a federal

habeas court for review, we turn to the merits of his claim.°

3. Scope of review

Under the Anti-Terrorism and Effective Death Pen-

alty Act of 1996 (““AEDPA”), a state prisoner’s habeas peti-

tion must be denied as to any claim that was “adjudicated on

the merits in State court proceedings” unless the adjudication

was “‘contrary to, or invoived an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States,” or was “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1) & (2). We have interpreted § 2254(d)’s

“adjudication on the merits” language to mean that “when,

although properly preserved by the defendant, the state court

has not reached the merits of a claim thereafter presented to a

federal habeas court, the deferential standards provided by

AEDPA ...do not apply.” Appel v. Horn, 250 F.3d 203,

210 (3d Cir. 2001); see also Everett v. Beard, 290 F.3d 500,

507-08 (3d Cir. 2002) (“The AEDPA standard of review

does not apply unless it is clear from the face of the state

. We note, in any event, that Holloway also exhausted the

Batson claim on PCRA review, as he presented the claim in his

Amended PCRA Petition and again on appeal to the Pennsylvania

Supreme Court. Furthermore, as explained above, Holloway com-

mitted no default of the claim on PCRA review.

App. 23

court decision that the merits of the petitioner’s constitutional

claims were examined in light of federal law as established

by the Supreme Court of the United States.”). Holloway

presented his Batson claim to the Pennsylvania Supreme

Court on direct appeal, but the Court failed to even mention

the claim (much less adjudicate the merits) in its disposition.

Cf Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000)

(claim was not “adjudicated on the merits” because Delaware

Supreme Court failed to address it “even though it had the

opportunity to do so”). Consequently, pre-AEDPA standards

govern.

Additionally, pre-AEDPA standards govern our

review even if we limit our analysis to the state court’s ruling

in the PCRA proceeding. The Pennsylvania Supreme Court

treated Holloway’s Batson argument on PCRA review solely

as a claim of ineffective assistance of counsel because it

believed that Holloway raised the Batson claim for the first

time on the PCRA appeal. The record reflects, however, that

Holloway in fact raised his Batson claim in the PCRA trial

court. The Pennsylvania Supreme Court denied relief on the

Batson claim for the following reasons:

[Holloway] claims that the Commonwealth used its

peremptory strikes in a racially discriminatory manner

in violation of [Batson]. However, [Holloway] has

failed to make a record “identifying the race of veni-

repersons stricken by the Commonwealth, the race of

prospective jurors acceptable to the Commonwealth

but stricken by the defense, and the racial composi-

tion of the final jury selected.” Commonwealth v.

Bronshtein, 547 Pa. 460, 691 A.2d 907, cert. denied,

522 U.S. 936 (1997). “Where an appellant fails to

make a record for review of a Batson challenge, this

Court is unable to consider a claim that the tria! court

App. 24

failed to find a prima facie case under Batson.” Com-

monwealth v. Spence, 534 Pa. 233, 627 A.2d 1176

(1993). Therefore, it is impossible to determine if

[Holloway] 's claim has arguable merit. Moreover,

[Holloway] does not even allege that counsel’s inef-

fectiveness with respect to this issue “so undermined

the truth-determining process that no reliable adjudi-

cation of guilt or innocence could have taken place.”

42 Pa.C.S. § 9543(a)(2)(ii). Accordingly, no relief is

due.

Holloway II, 739 A.2d at 1045-46 (emphasis added).

Given that the state court found it “impossible to

determine” whether Holloway’s underlying Batson claim

“has arguable merit,” it plainly did not render an

“adjudication on the merits” of that claim for purposes of

applying the AEDPA standards. Accordingly, our review is

under pre-AEDPA law with regard to the PCRA decision, as

well.°

Batson claims present mixed questions of law and

fact. Riley v. Taylor, 277 F.3d 261, 277 (3d Cir. 2001) (en

banc). Under pre-AEDPA standards, the legal conclusions of

state courts are reviewed de novo. McCandless, 172 F.3d at

260. We must presume that the state court’s factual findings

are correct unless, inter alia, they are not “ ‘fairly supported

by the record.’ ” Pemberthy v. Beyer, 19 F.3d 857, 864 (3d

Cir. 1994) (quoting 28 U.S.C. § 2254(d)(8)). “[T]he question

in a federal habeas proceeding is not whether the federal

courts agree with the state court’s factual finding, but

. As explained below, our result would be the same on the

Batson issue even if we reviewed the claim under the deferential

AEDPA standards.

App. 25

whether that finding is fairly supported by the record.” Mey-

ers v. Gillis, 93 F.3d 1147, 1149 (3d Cir. 1996).

4. The Batson standard’

The Supreme Court reaffirmed in Batson the long-

standing principle that the Fourteenth Amendment’s Equal

Protection Clause prohibits a prosecutor from using a

peremptory challenge to strike a prospective juror solely on

account of race. 476 U.S. at 88. As the Court explained,

“[{t]he harm from discriminatory jury selection extends

beyond that inflicted on the defendant and the excluded juror

to touch the entire community. Selection procedures that

purposefully exclude black persons from juries undermine

public confidence in the fairness of our system of justice.”

Id. at 87.

Batson’s primary significance lay in the Court’s

repudiation of the evidentiary burden that it had previously

placed on defendants in making an equal protection claim. In

Swain v. Alabama, 380 U.S. 202 (1965), the Court had held

that a defendant could make a prima facie case of purposeful

discrimination only by showing that a prosecutor, “in case

after case, whatever the circumstances, whatever the crime

and whoever the defendant or the victim may be, is responsi-

ble 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.” Jd. at 223. Batson rejected the

Swain standard in favor of a three-part burden-shifting

: The Supreme Court issued Batson on April 30, 1986,

approximately two weeks before jury selection commenced at

Holloway’s trial. Holloway, therefore, was plainly entitled to the

benefit of the Batson decision.

App. 26

process by which a trial court can evaluate an objection to

race-based juror exclusion in light of events as they occur in

the case before it. The Court explained the process as fol-

lows:

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 (2003) (citations

to Batson omitted).

Under Batson, although “a defendant has no right to a

petit jury composed in whole or in part of persons of his own

race . . . the defendant does have the right to be tried by a jury

whose members are selected jpursuant to nondiscriminatory

criteria.” Batson, 476 U.S. at: 85-86 (internal quotations,

citations, and footnote omitted). Consistent with this princi-

ple, courts have recognized that a prosecutor’s purposeful

discrimination in excluding even a single juror on account of

race cannot be tolerated as comsistent with the guarantee of

equal protection under the law. See Harrison v. Ryan, 909

F.2d 84, 88 (3d Cir. 1990) (holding that relief must be

granted under Batson “when even one black person is

excluded for racially motivated reasons”); see also United

States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)

(recognizing that “the Constitution forbids striking even a

singie prospective juror for a discriminatory purpose”);

United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987)

(“[W]e emphasize that under Batson, the striking of a single

App. 27

black juror for racial reasons violates the equal protection

clause, even though other black jurors are seated, and even

when there are valid reasons for the striking of some black

jurors.”). Moreover, a prosecutor who intentionally discrimi-

nates against a prospective juror on the basis of race can find

no refuge in having accepted others venirepersons of that

race for the jury. See Lancaster v. Adams, 324 F.3d 423, 434

(6th Cir. 2003) (“Where purposeful discrimination has

occurred, to conclude that the subsequent selection of an

African-American juror can somehow purge the taint of a

prosecutor’s impermissible use of a peremptory strike to

exclude a venire member on the basis of race confounds the

central teachings of Batson.”), cert. denied, 124 S. Ct. 535

(2003).

5. Holloway’s Batson challenge and the prosecutor’s

explanations

Holloway first objected to the prosecutor’s peremp-

tory strikes on the second day of the voir dire proceedings,

after the prosecutor struck Brenda Forrest, an African-

American female. Holloway’s counsel noted, “I believe the

District Attorney has now used all his challenges on black

jurors. I believe he has developed a pattern of striking

them.” App. Vol VII at 1355. The trial court deferred a

discussion of the issue because another prospective juror was

entering the courtroom, and jury selection continued. After

several additional potential jurors were struck by agreement

or for cause, Holloway’s counsel formally asserted his objec-

tion, stating, “I think the District Attorney has now developed

a pattern of striking only black prospective jurors. I think

that pattern has now developed, and there are nine jurors

selected, and two black jurors out of that particular nine.

And I would ask for a mistrial and [to] start all over again.”

App. Vol. VII at 1367-68.

App. 28

Without indicating whether it thought Holloway

established a prima facie case, the trial court invited a

response from the prosecutor, asking, “Does the Common-

wealth have anything to say at this time?” Jd. at 1368. The

prosecutor replied, “Sure, Judge. As [defense counsel] has

indicated, number one, we have nine seated in the box, two

of them [sic] whom are black. One black male and one black

female. [Counsel] is incorrect when he tells the Court that I

have used my pre-empts exclusively on blacks, that’s not

true. I’ve struck a white woman also.” Jd. The trial judge

then observed that Holloway too had used a peremptory

strike against a black female the previous day.’ After a brief

discussion with Holloway as to the reasons why he excluded

that potential black juror, id. at 1368-69, the trial court ended

the matter without expressly ruling on whether the prosecutor

had struck A frican-Americans because of their race. The

judge concluded, “[Holloway] also knocked off a potential

black juror, but the record will speak for itself.” Jd. at 1369.

At that point in the proceedings, the record was clear that the

prosecutor had used seven of eight peremptory strikes against

African-Americans.

The prosecutor subsequently exercised four additional

peremptory strikes, all against African-Americans. After the

first of those strikes, against Starlett Sandoval, Holloway’s

counsel noted for the record that “the Commonwealth has

struck another black juror.” Jd. at 1376. The prosecutor

, In Batson, the Supreme Court expressed no view on

whether the Constitution imposed any limitation upon a criminal

defendant’s exercise of peremptory challenges. 476 U.S. at 89

n.12. Several years after Batson, the Court held in Georgia v.

McCollum, 505 U.S. 42, 56 (1992), that prosecutors may assert

such a Batson challenge.

App. 29

offered no explanation for the strike, nor did the court request

one. The prosecutor later struck Robert Keel, after which

defense counsel noted, “Let the record indicate a black

male.” Jd. at 1397. Without prompting from the trial court,

the prosecutor elected to explain the strike, stating, “May the

record indicate a single, young, unemployed, on welfare,

black male.” Jd. The prosecutor next used a peremptory

strike against John Hackley, Sr., and Holloway again noted

the venireperson’s race. App. Vol. VIII at 1488. The prose-

cutor explained, “Let the record further show that it is a black

juror, black male juror approximately the same age as the

defendant.” Jd. Finally, the prosecutor exercised a peremp-

tory strike against Elouise Baldi, and after Holloway made

note of her race, the prosecutor explained that she was “a

Black female, whose brother-in-law was convicted of narcot-

ics charges. Narcotics would play a central role in the testi-

mony of this case.” Jd. at 1493-94.

The matter proceeded to trial with a jury of nine white

jurors and three black jurors, with two white alternate jurors.”

Holloway renewed his Batson challenge, albeit in a cursory

fashion, in a post-verdict motion for a new trial.'° The trial

: There was some confusion in the state court proceedings

as to the racial composition of the jury, with Holloway argu:ng in

the PCRA proceeding that the jury consisted of ten white jurors

and two black jurors. It became clear in this federal habeas pro-

ceeding that the final composition was actually nine white jurors

and three black jurors. This discrepancy in the final numbers,

however, is not material to our analysis under Batson.

” Holloway’s trial counsel, Barry Denker, Esq., filed the

motion for a new trial but was unable to argue the motion or to file

a brief in support. Holloway was represented at a hearing on the

motion by an associate of Denker’s who had not entered an

(Continued)

App. 30

court summarily rejected the post-trial Batson argument as

“unspecific.”

6. Merits Analysis

A.

We have little difficulty in concluding that Holloway

met his burden under the first step of the Batson analysis. A

court should consider “all relevant circumstances” in

assessing whether a prima facie showing of discrimination

has been made. Batson, 476 U.S. at 96. This Court has

identified five factors that are generally relevant in this

inquiry: “1) the number of racial group members in the

panel; 2) the nature of the crime; 3) the race of the defendant;

4) a pattern of strikes against racial group members; and 5)

the questions and statements during the voir dire.” United

States v. Clemons, 843 F.2d 741, 748 (3d Cir. 1988).

The most striking factor in this case is the prosecu-

tor’s pattern of strikes. Holloway moved for a mistrial after

the prosecutor had used seven of eight peremptory strikes

against African-Americans; the Commonwealth ultimately

used eleven of twelve strikes in that manner. As the Court

explained in Batson, “a ‘pattern’ of strikes against black

jurors in the particular venire might give rise to an inference

of discrimination.” 476 U.S. at 97. The pattern here was

certainly strong enough to suggest an intention of keeping

blacks off the jury. Cf Harrison, 909 F.2d at 87 (finding

prima facie case where prosecutor used six of eight

(Continued)

appearance at trial. Denker had become unavailable to Holloway

shortly after trial because he entered the Federal Witness Protec-

tion Program following his federal convictions for bribing Phila-

delphia judges and court officials.

—

App. 31

peremptory challenges against African-Americans); see also

Ciemons, 843 F.2d at 747 (recognizing that “[s]triking a

single black juror could constitute a prima facie case even

when blacks ultimately sit on the panel and even when valid

reasons exist for striking other blacks”).

In addition, for purposes of a prima facie showing,

Holloway is entitled “to rely on the fact, as to which there

can be no dispute, that peremptory challenges constitute a

jury selection practice that permits ‘those to discriminate who

are of a mind to discriminate.’ ” Batson, 476 U.S. at 96

(quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)). In |

responding to Holloway’s motion for a mistrial, the prosecu-

tor agreed as to the racial composition of the nine jurors

seated to that point (seven whites, two blacks), and explained

that he had not used his “pre-empts exclusively on blacks”

because he had “struck a white woman also.” App. Vol. VII

at 1368. This explanation, however, did nothing to dispel

Holloway’s suggestion that the prosecutor harbored a

discriminatory intent in striking the seven prospective black

jurors. A prosecutor cannot undermine a pattern of strikes

that appears racially motivated by merely pointing to a lone

juror of a different race whom he also found objectionable.

A prosecutor also cannot “rebut the defendant’s case merely

by denying that he had a discriminatory motive or affirming

his good faith in making individual selections.” Batson, 476

U.S. at 98 (internal quotation marks and citation omitted). A

further relevant circumstance here is that while Holloway, the

victim, and key prosecution witness Shirley Baker were all

black, the officer who took Holloway’s custodial statement,

Detective Gilbert, was white. Given that Holloway’s defense

would rise or fall largely on his claim that the custodial

statement was fabricated, Holloway’s credibility versus that

App. 32

of Detective Gilbert, a white police officer, was a crucial

issue for the jury."

In short, there was “sufficient reason to believe that

discrimination may have been at work here to require the

state to come forward with an explanation of its actions.”

Johnson, 40 F.3d at 666. The trial court, as noted, did ask

the prosecutor for an explanation following Holloway’s

motion for a mistrial, but we cannot infer from the court’s

question — “Does the Commonwealth have anything to say

at this time?” — that it found a prima facie case. The court’s

query suggests that the Commonwealth was under no obliga-

tion to provide any response at all, thereby indicating that the

second stage of the Batson inquiry had not been reached. If

_ We note that Holloway did not establish the number of

blacks in the venire during the course of the state court proceed-

ings. The parties were able to ascertain the composition in this

habeas proceeding, largely by relying on the prosecutor’s voir dire

notes once they were turned over to Holloway as part of the lim-

ited discovery conducted before the District Court. Eighty-seven

potential jurors were questioned during the voir dire, forty-two of

whom were struck for cause. Of the remaining forty-five potential

jurors, the defense struck nine before the prosecutor had an

Opportunity to use a peremptory challenge. The parties agree that —

of the thirty-six venirepersons the prosecutor had an opportunity

to strike, fourteen were black and twenty-two were white. The

prosecutor, as noted, used eleven strikes against blacks. Thus, the

prosecutor struck eleven of the fourteen blacks he had an opportu-

nity to strike.

Although this evidence further supports Holloway’s prima

facie showing, it is by no means necessary to establish a prima

facie showing under Batson given the other evidence of record.

Moreover, because Holloway failed to develop this information in

state court, we do not consider it here.

App. 33

anything, we can assume the trial court found no prima facie

case because it allowed the matter to proceed without expla-

nation from the Commonwealth as to the basis for the indi-

vidual strikes. Insofar as the trial court found no evidence

sufficient to support a prima facie showing of discrimination,

we must reject that unexplained determination as inconsistent

with Batson and not fairly supported by the record.

Significantly, we have recognized that the question of

whether a prima facie case has been established becomes

moot, and thus need not even be addressed, when the prose-

cutor provides explanations for the strikes despite the

absence of a request from the trial court. See Johnson, 40

F.3d at 663-65. We have explained that,

independent of the strength of the evidence tendered

as a prima facie case, once a prosecutor attempts to

explain a peremptory challenge, we believe the trial

and reviewing courts should look to the entire record

to determine if intentional discrimination is present.

If the prosecutor’s explanation raises more concern

than it puts to rest, courts cannot effectively close

their eyes to that fact by simply deciding that the

defendant has not made out a prima facie case.

Clemmons, 892 F.2d at 1156; see also Hernandez v. New

York, 500 U.S. 352, 359 (1991) (plurality opinion) (“Once a

prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the prelimi-

nary issue of whether the defendant had made a prima facie

showing becomes moot.”). Thus, based on the prosecutor’s

explanations alone, the trial court should have reached the

second and third steps in the Batson inquiry in this case.

App. 34

The second Batson step requires that the prosecutor

provide a “neutral, nonpretextual explanation for striking the

black venirepersons from the venire panel.” Jones, 987 F.2d

at 973. After the motion for a mistrial was rejected, Hollo-

way duly noted each peremptory challenge exercised against

an African-American, and the prosecutor elected to make a

record of his reasons for three of those four strikes. Although

we are troubled by the lack of race-neutrality in each of the

prosecutor’s explanations, and perhaps more troubled by the

lack of any explanation at all for eight of his eleven strikes,

the explanation given as to venireperson John Hackley, Sr.,

was plainly insupportable under Batson and warrants relief.

The prosecutor explained the Hackley strike on the

ground that Hackley “is a black juror, black male juror

approximately the same age as the defendant.” In other

words, the prosecutor cited Hackley’s race, age, and gender

as the reasons for the strike. Race, obviously, was impermis-

sible, but we will assume that the prosecutor referred to

Hackley’s race merely as a concession that Hackley was

black so that his race would be clear as a matter of record.

Thus, we focus on the prosecutor’s stated reasons of age and

gender.'? This Court has firmly established that “[a] com-

parison between a stricken black juror and a sitting white

juror is relevant to determining whether the prosecution’s

asserted justification for striking the black juror is

me In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the

Supreme Court extended Batson to prohibit discrimination on the

basis of gender. Holloway’s objection to the exclusions here,

however, centered solely on race, and thus we limit our analysis

accordingly. We note, nevertheless, the Court’s observation in

J.E.B. that “[bJecause gender and race are overlapping categories,

gender can be used as a pretext for racial discrimination.” Jd. at

145.

App. 35

pretextual.” Riley v. Taylor, 277 F.3d 261, 282 (3d Cir.

2001) (en banc). Hackley was born in 1950 and thus was

nine years younger than Holloway, who was born in 1941.

Using this nine-year measure for age proximity, the record

shows the prosecutor accepted three white jurors “approxi-

mately the same age” as Holloway, two of whom were

males — Joseph Zingone (born 1935), Patricia Connor

(1948), and John Jackubiak (1943). In addition, he chose not

to exercise a peremptory strike against four other white jurors

(one male) of approximately the same age who ultimately did

not serve on the jury — Thomas St. Joseph (1941), Blanche

Cohen (1933), Kathleen Fallon (1940), and Dolores Kovack

(1937). “The presence of white jurors who possessed the

same characteristic indicates that this explanation was pretex-

tual.” Jones, 987 F.2d at 973. We find nothing in the prose-

cutor’s explanation of the Hackley strike, or in the record as a

whole, to indicate that he harbored anything but a discrimina-

tory intent to remove Hackley because of his race.

The Commonwealth defends the Hackley strike by

looking to the voir dire transcript for information that might

have motivated the prosecutor’s decision beyond the reasons

stated on the record. In particular, the Commonwealth notes

that Hackley indicated that he lived in the neighborhood

where the murder took place and knew “some people around

that neighborhood . . . but not by the names.” App. Vol. VII

at 1485. The Commonwealth suggests that “[t]he prosecutor

could well have been concerned that Mr. Hackley’s similarity

in age and his connections to the neighborhood could trans-

late into familiarity with ‘some of the people’ involved in the

case.” Appellee/Cross-Appellant’s Br. at 73. This specula-

tion, however, does not aid our inquiry into the reasons the

prosecutor actually harbored for the Hackley strike. Batson

is concerned with uncovering purposeful discrimination, and

where a prosecutor makes his explanation for a strike a

App. 36

matter of record, our review is focused solely upon the

reasons given. As we noted in Riley, “[a]pparent or potential

reasons do not shed any light on the prosecutor’s intent or

state of mind when making the peremptory challenge.” 277

F.3d at 282. Thus, the Commonwealth’s attempt to recast

the prosecutor’s stated reasons must be rejected.

In any event, Hackley’s statements during voir dire

give no indication of an independent basis for the prosecu-

tor’s action. Although Hackley lived in the neighborhood

where the murder took place, the prosecutor explored that

fact with a single question seeking an assurance that Hack-

ley’s residence would not influence his consideration of the

case. App. Vol. VII at 1485. Hackley stated that he was

“sure” it would have no influence. Jd. Hackley was also une-

quivocal in stating that he could impose the death penalty if

warranted. He noted that he was married with two teenage

children and held steady employment, and he stated that he

could be fair to both sides in hearing the case. The prosecu-

tor, nevertheless, exercised the peremptory strike after

defense counsel indicated that he had no questions for

Hackley. On this record, we could not impute a proper

motive to the prosecutor’s action even if it were proper to

hypothesize potential reasons for the strike beyond those

given. Relief, therefore, must be granted.

We are not unmindful that the state trial court failed

to acknowledge or expressly follow the three-step Batson

analysis in this case. In particular, the court never formally

asked the prosecutor to provide a full expianation for the

strikes. Ordinarily, an evidentiary hearing at which the

prosecutor might rely upon his recollection of the voir dire

and make reference to his trial notes would seem warranted.

Here, however, the parties agree that the prosecutor is “psy-

chiatrically disabled” and has been for some time, and thus

App. 37

would be unable to testify meaningfully at a hearing. Hollo-

way’s trial counsel is deceased (as noted, he became unavail-

able shortly after the trial), as is the presiding trial judge. It

seems unlikely at this stage — some seventeen years after the

trial — that the prosecutor, even were he not “disabled,”

could accurately recall his reasons for the strikes or provide

meaningful elaboration upon the reasons that he placed on

the voir dire record. Furthermore, given the unavailability of

the relevant participants, there would be no benefit to a hear-

ing at this point. See Riley, 277 F.3d at 293-94. The long

delay in reaching this stage is certainly regrettable, both for

the Commonwealth and for Holloway, but we cannot fault

Holloway, who has pursued the Batson argument at every

stage of this case since the time of trial in 1986.

B.

Although it did not address the Batson claim on direct

appeal, the Pennsylvania Supreme Court rejected the claim

on PCRA appeal because it found that Holloway failed to

make a record identifying (1) the race of venirepersons

stricken by the Commonwealth, (2) the race of prospective

jurors acceptable to the Commonwealth but stricken by the

defense, and (3) the racial composition of the final jury

selected. Holloway II, 739 A.2d at 1045 (citing Common-

wealth v. Bronshtein, 691 A.2d 907 (Pa. 1997)). The Court

explained that, “[w]here an appellant fails to make a record

for review of a Batson challenge, this Court is unable to

consider a claim that the trial court failed to find a prima

facie case under Batson.” Id. (citing Commonwealth v.

Spence, 627 A.2d 1176 (Pa. 1993)). We find this analysis

inconsistent with the teachings of Batson.

The state court’s rejection of Holloway’s claim for

want of evidentiary support was an application of what the

App. 38

parties here call the “Spence rule.” In Commonwealth v.

Spence, the Pennsylvania Supreme Court affirmed the denial

of a capital defendant’s Batson claim on the ground that he

failed to make an adequate record to permit meaningful

review of the trial court’s failure to find a prima facie case.

672 A.2d at 1183. The Court observed that the defendant

had not “specifically identif[ied] the race of all the veniremen

who had been removed by the prosecution, the race of all the

jurors who served, or the race of jurors acceptable to the

Commonwealth who had been stricken by the defense.” Jd.

at 1182-83. Applying this rule, the Court noted the defen-

dant’s claim that ten of twelve Commonwealth peremptory

strikes were used against African-Americans, but it denied

relief because the defendant had identified for the record only

four, not ten, potential jurors as being black. Jd.

The evidentiary requirements set forth in Spence —

that the defendant identify the race of all veniremen removed

by the prosecution, the race of all the jurors who served, and

the race of jurors acceptable to the Commonwealth but struck

by the defenss — seem to have developed under Pennsylva-

nia law into a standard for assessing whether a defendant can

make a prima facie showing of purposeful discrimination so

as to move beyond the first step in the Batson analysis. For

example, in Commonwealth v. Bronshtein, 691 A.2d 907 (Pa.

1997), which was cited to support the rejection of Hollo-

way’s Batson claim, the Pennsylvania Supreme Court

explained the rule as follows: “In order to establish a prima

facie case on a Batson claim, defendant must make a record

identifying the race of venirepersons stricken by the Com-

monwealth, the race of prospective jurors acceptable to the

Commonwealth but stricken by the defense, and the racial

composition of the final jury selected.” Jd. at 915.

w :

App. 39

In Commonwealth v. Simmons, 662 A.2d 621, 631

(Pa. 1995), the Court fully explained the workings of the

Spence rule and its role in the Batson analysis:

To sustain a prima facie case of improper use of

peremptory challenges, a defendant must establish the

following: (1) the defendant is a member of a cogni-

zable racial group and the prosecutor exercised per-

emptory challenges to remove members of the

defendant’s race from the venire; (2) the defendant

can then rely on the fact that the use of peremptory.

challenges permits those to discriminate who are [of]

a mind to discriminate; and, (3) the defendant,

through facts and circumstances, must raise an infer-

ence that the prosecutor excluded members of the

venire on account of their race. Commonwealth v.

Dinwiddie, 601 A.2d 1216, 1218 (1992). This third

prong requires defendant to make a record specifi-

cally identifying the race of all the venirepersons

removed by the prosecution, the race of the jurors

who served and the race of jurors acceptable to the

Commonwealth who were stricken by the defense.

After such a record is established, the trial court must

consider the totality of the circumstances to determine

whether challenges were used to exclude venireper-

sons on account of their race. If the trial court finds

in the affirmative, it may then require the prosecutor

to explain his or her reasons for the challenge.

Id. at 631. Thus, as Simmons and subsequent cases make

clear, to raise an inference of discrimination in support of a

prima facie Batson showing, a Pennsylvania defendant must

first make a record under the Spence rule. See Common-

wealth v. Marshall, 810 A.2d 1211, 1216 (Pa. 2002); Com-

monwealth v. Baez, 720 A.2d 711, 736 (Pa. 1998);

App. 40

Commonwealth v. Gibson, 688 A.2d 1152, 1159 (Pa. 1997);

Commonwealth v. Jones, 668 A.2d 491, 518 (Pa. 1995);

Commonwealth v. Johnson, 668 A.2d 97, 102 (Pa. 1995);

Commonwealth v. Hill, 727 A.2d 578, 582 (Pa. Super. Ct.

1999)."°

In Batson, the Supreme Court discussed the

requirements for a prima facie case in the following terms:

To establish such a case, the defendant first must

show that he is a member of a cognizable racial group

... and that the prosecutor has exercised peremptory

challenges to remove from the venire members of the

defendant’s race. Second, the defendant is entitled to

rely on the fact, as to which there can be no dispute,

that peremptory challenges constitute a jury selection

practice that permits “those to discriminate who are

of a mind to discriminate.” ... Finally, the defendant

must show that these facts and any other relevant

circumstances raise an inference that the prosecutor

used that practice to exclude the veniremen from the

petit jury on account of their race. This combination

of factors in the empaneling of the petit jury, as in the

> In some recent cases, usually those involving claims of

improper exclusions based on gender, the Pennsylvania Supreme

Court has expanded the three Spence categories to require two

additional showings in order to state a prima facie case—the race

(or gender) of all venirepersons remaining after challenges for

cause, and the race (or gender) of all the venirepersons in the jury

pools. See, e.g., Commonwealth v. Rico, 711 A.2d 990, 993 (Pa.

1998); Jones, 668 A.2d at 518. In other recent cases, however, the

Court has invoked only the original three categories. See, e.g.,

Marshait, 810 A.2d at 1216; Commonwealth v. Hackett, 735 A.2d

688, 694 (Pa. 1999).

App. 41

selection of the venire, raises the necessary inference

of purposeful discrimination.

In deciding whether the defendant has made

the requisite showing, the trial court should consider

all relevant circumstances. For example, a “pattern”

of strikes against black jurors included in the particu-

lar venire might give rise to an inference of discrimi-

nation. Similarly, the prosecutor’s questions and

statements during voir dire examination and in exer-

cising his challenges may support or refute an infer-

ence of discriminatory purpose. These examples are

merely illustrative. We have confidence that trial

judges, experienced in supervising voir dire, will be

able to decide if the circumstances concerning the

prosecutor’s use of peremptory challenges creates a

prima facie case of discrimination against black 7

jurors.

Batson, 476 US. at 96-97.

The Batson standard for assessing a prima facie

showing is fluid, mainly because it places great confidence in

the ability of trial judges to assess whether discrimination is

at work based on the evidence at hand. The judge’s assess-

ment “largely will turn on evaluation of credibility,” id. at 98

n.21, and “(t]he analysis set forth in Batson permits prompt

rulings on objections to peremptory challenges without sub-

stantial disruption of the jury selection process.” Hernandez

v. New York, 500 U.S. 352, 358 (1991). The defendant’s

burden at the initial stage is to show merely that jurors of his

race have been struck and that the strikes are indicative of an

improper motive. The defendant generally meets this burden

if there is a pattern of strikes or if the prosecutor’s questions

and statements during voir dire support an inference of

App. 42

discriminatory purpose. Notably absent from the Batson

discussion of the prima facie case is any call for trial judges

to seek the type of statistical accounting required by the

Spence rule — nor do we see how such an accounting fits

within Batson’s first step. A trial judge undoubtedly might

find in a given case that a full accounting regarding the race

of the venire and the jurors struck would be helpful at the

third stage of the Batson analysis, after it has heard the prose-

cutor’s explanation for the strikes and must “determine if the

defendant has established purposeful discrimination.” Jd. at

98. But requiring the presentation of such a record simply to

move past the first stage in the Batson analysis places an

undue burden upon the defendant.

Under the Batson process, a defendant must identify

the race of the venireperson struck if he wishes to raise a

challenge to the strike based on race. If the defendant is

claiming a pattern of strikes to support an inference of dis-

crimination, then a record of the race-based strikes that

preceded the objection is also required. But a defendant’s

Batson objection need not always be based on a “pattern” of

strikes; it can be based, for example, on a single strike

accompanied by a showing that the prosecutor’s statements

and questions to the juror (or to prior jurors) support an

inference of discrimination. Requiring a defendant in that

circumstance to identify “the race of all the venirepersons

removed by the prosecution” is not necessary to support a

prima facie case, and places an irrelevant hurdle in the way

of reaching the second step in the Batson process.

Similarly, and perhaps more troubling, is the

requirement that defendants support a prima facie case by

identifying “the race of the jurors who served and the race of

jurors acceptable to the Commonwealth who were stricken

by the defense.” Simmons, 662 A.2d at 631. As noted,

App. 43

Batson is premised on the fact that defendants “have the nght

to be tried by a jury whose members are selected pursuant to

nondiscriminatory criteria,” and the “Equal Protection Clause

guarantees the defendant that the State will not exclude mem-

bers of his race from the jury venire on account of race.”

Batson, 476 U.S. at 85-86. The final composition of the jury

(or even the composition of the jury at the time the Batson

objection is raised) offers no reliable indication of whether

the prosecutor intentionally discriminated in excluding a

member of the defendant’s race. Indeed, the composition of

a jury is decided by many factors, including the defendant’s

use of peremptory challenges, challenges for cause, and

jurors’ claims of hardship. Thus, “a Batson inquiry focuses

on whether or not racial discrimination exists in the striking

of a black person from the jury, not on the fact that other

blacks may remain on the jury panel.” United States v. John-

son, 873 F.2d 1137, 1139 n.1 (8th Cir. 1989). A defendant

can make a prima facie case of discrimination without refer-

ence to the jury’s racial makeup.

Likewise, evidence of “the race of jurors acceptable

to the Commonwealth who were stricken by the defense,”

Simmons, 662 A.2d at 631, finds no place in the prima facie

case, as defense strikes are irrelevant to the determination of

whether the prosecutor has engaged in discrimination.

Batson nowhere suggests that a defendant must support his

challenge to the prosecutor’s actions by showing that he has

“clean hands,” or by admitting that he too struck black jurors

from the jury (which is what the trial court here seemed to

ask of Holloway when it raised the fact that Holloway had

also struck a black juror from the venire). While Batson

permits a trial judge to focus at the prima facie stage upon

“all relevant circumstances,” the nature of a defendant’s |

strikes fails the test for relevancy. Instead, the focus properly

falls on the prosecutor’s actions, looking primarily at whether |

App. 44

there is a pattern of strikes and whether the prosecutor’s

questions and statements support or refute an inference of

discrimination.

In the instant case, the Pennsylvania Supreme Court

determined that Holloway’s failure to comply with the

Spence rule rendered the Court “unable to consider a claim

that the trial court failed to find a prima facie case under

Batson.” Holloway IT, 739 A.2d at 1045. As a result, the

Court found it “impossible to determine if [Holloway]’s

claim has arguable merit.” Jd. Given the record Holloway

established on the Batson claim during voir dire, we con-

clude that he stated not only a prima facie case, but also an

entitlement to relief under Batson’s third step. The voir dire

transcript reflects a sufficient “pattern” of strikes at the time

of the motion for a mistrial (seven of eight), as well as the

prosecutor’s evasive statement in response. The record also

reflects the prosecutor’s inadequate explanations as to three

of the four strikes, particularly the Hackley strike, to which

Holloway subsequently objected. Thus, there was ample

evidence under Batson’s first step from which the Pennsylva-

nia Supreme Court could have assessed whether the trial

court erred in failing to find a prima facie case. The Court’s

finding of an insufficient record is not fairly supported and is

inconsistent with Batson’s mandate.

As a final matter, we note that relief would be war-

ranted even if our analysis were confined by the requirements

of AEDPA, as the Pennsylvania Supreme Court’s PCRA

decision was “contrary to” and an “unreasonable application

of” the Batson standard. “A state-court decision will cer-

tainly be contrary to [the Supreme Court’s] clearly estab-

lished precedent if the state court applies a rule that

contradicts the governing law set forth in [the Supreme

Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405

App. 45

(2000). Application of the Spence rule is at odds with Bat-

son's first step because it places a burden upon the defendant

to make a record of largely irrelevant information in order to

raise an inference that the prosecutor excluded members of

the venire on account of race. The Spence rule runs contrary

to federal law insofar as it prevents a court from shifting the

burden to the prosecutor upon a defendant’s showing, based

on the factors required by Batson, that discrimination is at

work. In that the Spence rule provided a justification for

refusing to reach the merits of Holloway’s prima facie case,

the Pennsylvania Supreme Court engaged in an unreasonable

application of the clearly established Batson standard.

Accordingly, we must reject the Pennsylvania Supreme

Court’s PCRA disposition under AEDPA, as well.

IV. Conclusion

For the reasons stated, the judgment of the District

Court entered on August 27, 2001, will be reversed. The

matter will be remanded to the District Court with instruc-

tions to issue a writ of habeas corpus conditioned upon the

Commonwealth’s right to conduct a retrial within 120 days

from entry of the District Court’s order granting the petition.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

ee a

~ ae

et ee ee eee. ee ree Perr

ee *

App. 46

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

J

ARNOLD HOLLOWAY, ) CIVIL ACTION

Petitioner, )

)

v.

)

MARTIN HORN, Commissioner, ) NO. 00-CV-1757

Pennsylvania Department of Cor- )

rections, and DONALD VAUGHN, )

Superintendent, State Correctional )

Institution at Graterford, )

Respondents. ) CAPITAL CASE

FILED AUG 27, 2001

ENTERED AUG 27, 2001

OPINION AND ORDER

Van Antwerpen, J. August 27, 2001

I. INTRODUCTION

This matter is before us pursuant to a Petition for a

Writ of Habeas Corpus, filed by Amold Holloway (“Peti-

tioner’’), a/k/a Nasir Kareem, a/k/a Arnold L. Walker, a/k/a/

Prince Lee Holloway, on April 3, 2000. Petitioner presents

sixteen claims and numerous subclaims under the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”), 28

U.S.C. § 2254, in pursuit of relief from his state murder con-

viction and death sentence. Petitioner was arrested o1 May

30, 1985 and charged with possession of the instrument of a

crime, criminal conspiracy and first degree murder arising

from the death of Richard Caldwell on May 16, 1980.

y

App. 47

ae) SSS ae eee ee eee

Richard H. Knox, Esq. was appointed by the state trial court

to assist Petitioner in presenting his defense, but he withdrew

upon the entry of appearance by the privately retained Barry

Denker, Esq. (“trial counsel”). Petitioner was prosecuted by

Assistant District Attorney Drew R. Barth (“the ADA” or

“the prosecutor’). Petitioner was found guilty by a jury on

all charges in the Court of Common Pleas, Philadelphia

County, June Term, 1985, Nos. 1305-1308, Hon. Albert F. 7

Sabo, presiding, on May 22, 1986. The same jury fixed the :

penalty at death the next day in a bifurcated proceeding. Mr.

Denker filed post-verdict motions, but then sought to with-

draw as counsel because of Petitioner’s dissatisfaction with

his performance and his own ill health, but Judge Sabo

ordered that his firm continue to represent Petitioner. There-

after Petitioner was represented at post-verdict proceedings

by Mary Zell, Esq., an associate of Mr. Denker’s, who

refused to argue Mr. Denker’s ineffectiveness. In an opinion

dated September 21, 1987, Judge Sabo denied relief on all

grounds raised in the motion. Petitioner filed a timely appeal

to the Pennsylvania Supreme Court. He was represented on

direct appeal by Richard R. Redmond, Esq. (“appellate

counsel” or “direct appeal counsel”), who filed a brief on his

behalf on November 2, 1988. The Pennsylvania Supreme

Court denied relief on March 20, 1990. Commonwealth v.

Holloway (“Holloway I’), 572 A.2d 687 (Pa. 1990).

On May 3, 1991 Petitioner filed a pro se petition for

collateral post-conviction relief under *%» Pennsylvania Post

Conviction Relief Act (““PCRA”), 42 Pa. Cons. Stat. § 9541

et seq. On August 5, 1991, John P. Cotter, Esq. (““PCRA

counsel”) was appointed to represent Petitioner in his post-

conviction proceedings. PCRA counsel filed an Amended

Petition and Memorandum of Law on June 21, 1993. Several

more counseled and pro se supplemental petitions and

memoranda of law were filed. On July 19, 1995, Judge Sabo

App. 48

ordered that an evidentiary hearing be held in conjunction

with Petitioner’s claims for state post-conviction relief, and

such nearing was held on February 10, 1997. Pee cioner’s

post-conviction claims were denied in the Court of Common

Pleas of Philadelphia County, Criminal Appeals/Post Trial

Unit, on July 16, 1997. Petitioner then filed a timely appeal

to the Pennsylvania Supreme Court, and briefs were filed by

new counsel. The appeal was denied on October 1, 1999,

and the decision of the Court of Common Pleas, Hon. Albert

F. Sabo, was affirmed. See Commonwealth v. Holloway

(“Holloway II’), 739 A.2d 1039 (Pa. 1999).

This case comes before us under § 2254 of the

AEDPA, which permits federal courts to grant, under certain

circumstances, a writ of habeas corpus to prisoners convicted

in state court. Petitioner filed his Petition for a Writ of Ha-

beas Corpus (“Petition” or “Pet.”’) in this Court on April 3,

2000. His Petition was followed by a Memorandum of Law

in Support of Petition for a Writ of Habeas Corpus (“Memo-

randum of Law” or “Pet. Mem. L.”) and a Motion for Dis-

covery on June 22 of that year.’ We denied the Motion for

Discovery on August 9, 2000. The Commonwealth submit-

ted its Response to Petition for Writ of Habeas Corpus

(“Comm. Resp.”) on February 28, 2001. On March 23, 2001,

we ordered that the Clerk of Quarter Sessions Court of Phila-

delphia County file with the Clerk of this Court all records of

Petitioner’s state court proceedings, and we received such

records on April 20, 2001. Petitioner filed a Reply

Memorandum in Support of Petition for a Writ of Habeas

l

The Memorandum of Law appears to have been filed on

that date, but due to a filing error, it was never docketed. We

brought the discrepancy in the docket to the attention of Petition-

er’s counsel, and a Corrected Memorandum of Law in Support of

the Petition was filed on June 24, 2001.

App. 49

Corpus (“Pet. Reply Mem.”’) on May 10, 2001. After review-

ing the entire record and the filings of the parties, we found

that Petitioner had shown good cause for us to exercise our

discretion and order limited discovery of evidence supporting

the claim of racial discrimination in the selection of Petition-

er’s jury, which we ordered on July 5, 2001. The parties

provided such discovery to each other and the Court by July

24, 2001. Oral arguments thereon were held on August 2,

2001, at which time Petitioner submitted a Motion for Sum-

mary Judgment on the Batson Claim. On August 6, 2001 we

scheduled an evidentiary hearing to be held on August 16,

2001 as to direct appeal counsel’s reasons for not raising the

Batson claim. On August 14, 2001 the Commonwealth filed

a Response to Petitioner’s Motion for Summary Judgment on

the Batson Claim and a Motion for Reconsideration of Grant

of Evidentiary Hearing. The evidentiary hearing was held on

August 16, 2001, at which time we denied the Motion for

Reconsideration. Both parties filed post-hearing letter-briefs

on August 17, 2001. All papers, oral arguments, evidence

from the hearing, and the expanded record have been consid-

ered herein, except as specifically noted. We have placed the

burden of proof on Petitioner to establish by a preponderance

of the evidence any or all of the sixteen claims and numerous

subclaims included in his Petition, and find that he has

satisfied this burden with respect to one of his subclaims.

We therefore vacate Petitioner’s death sentence and remand

his case to the Pennsylvania courts with an order that there be

a resentencing proceeding.

II. FACTUAL BACKGROUND

The Commonwealth’s evidence at trial consisted

primarily of Petitioner’s unsigned statement, the statement

and testimony of Shirley “Bones” Baker (Baker), and the

testimony of a medical examiner and several police officers.

App. 50

On May 16, 1980, at approximately 1:45 a.m., police

were summoned to the 300 block of West Sedgley Street in

Philadelphia, where, lying in the street, was a dead body later

identified as Richard Caldwell (“Caldwell” or “the victim”).

Baker was arrested in January 1985 on bench war-

rants arising from her failure to appear for sentencing on

several drug charges. While under arrest, she made a state-

ment to the police regarding her knowledge of the murder of

Caldwell, implicating Petitioner and others. She testified at

Petitioner’s trial, and her testimony was consistent in most

material aspects with her previous statement.

At trial, Baker described an operation in which she,

Petitioner, Danny “Black” Freeman (Freeman), and Caldwell

sold heroin for Leroy “Bubbles” Johnson (Johnson). Peti-

tioner obtained heroin from Johnson and then distributed it to

Baker, Freeman and Caldwell who sold it on the street. The

money was split between the dealers who sold the heroin on

the street and Petitioner, who then gave the money to John-

son. In May of 1980, Johnson grew impatient because Cald-

well owed him money for drugs he sold. (N.T. 5/19/86 at

70-76, 85.) Petitioner revealed in his statement that Johnson

was also angry at Caldwell because Caldwell owed money to

a rival drug dealer with whom Johnson wanted to do busi-

ness, and Caldwell’s debt was interfering with his plans.

(N.T. 5/19/86 at 164-165.) |

Baker testified that around midnight on May 16, 1980

she was selling heroin at a bar at 7th and Allegheny Avenues

in North Philadelphia. Johnson arrived and offered Baker

some cocaine, so they left the bar and went to Baker’s apart-

ment. After snotting the cocaine, Petitioner and Freeman

arrived, and Petitioner asked to borrow Johnson’s van.

App. 51

Johnson informed them that Caldwell was in the van, and

Petitioner replied, “I can take care of that now.” Then, Peti-

tioner and Freeman went upstairs, got a shotgun, and left the

apartment. Petitioner and Freeman returned between a half

hour and an hour later and whispered with Johnson about

shooting and strangling Caldwell. Petitioner, Johnson, and

Freeman then left the apartment and Baker returned to the

bar. (N.T. 5/19/86 at 79-83; 131.)

Petitioner’s unsigned statement to police made after

he was arrested in May 1985 presents a similar account with

some significant differences. Petitioner stated that he, John-

son, Baker, and Freeman were all snorting cocaine in Peti-

tioner’s apartment, while Caldwell was passed out in

Johnson’s van.? Johnson instructed Petitioner to “Go, get on

your job.” Petitioner protested, wondering if he might simply

hurt Caldwell instead of killing him. Johnson replied, “It’s

either you or him.” According to the statement, Johnson had

earlier told Petitioner: “When I get him set up take him out

and shoot him.” After getting the shotgun and leaving the

apartment, Petitioner and Freeman tied Caldwell’s hands .

together, and drove several blocks to 3rd and Sedgley Streets.

They pushed Caldwell out of the van, strangled him, taking

turns pulling at a belt around his neck, and each shot him

once in the head. They then drove the van back to Seventh

Street, and informed Johnson that the job was done. (N.T.

5/19/86 at 161-162.)

The medical examiner, Dr. Halbert Fillinger, testified

that the cause of Caldwell’s death was two shotgun blasts to

. Petitioner and Baker both had apartments in the same

house. It is not clear from his statement whether he was referring

to his apartment or the house as the place that they were snorting

cocaine.

App. 52

the head and strangulation by ligature. He revealed that the

shotgun wounds had been inflicted at contact range on the

right side of the victim’s head, and also testified that a 1.3 cm

wide groove extended around the victim’s neck, indicating

strangulation. (N.T. 5/19/86 at 57-58, 60.)

Petitioner was tried for the first degree murder of

Richard Caldwell, criminal conspiracy and possession of the

instrument of a crime. He was convicted by a jury and sen-

tenced to death. He has been denied relief from his convic-

tion and sentence both on direct appeal and in state collateral

proceedings under the PCRA. He now petitions this court for

federal habeas corpus relief pursuant to § 2254 of the

AEDPA.

III. DISCUSSION

A. Exhaustion And Procedural Default

Before filing a petition for habeas corpus relief under

28 U.S.C. § 2254, a petitioner must exhaust all available state

court remedies. 28 U.S.C. § 2254(b)(1)(A). The exhaustion

requirement is a rule of comity, not jurisdiction, Castille v.

Peoples, 489 U.S. 346, 349 (1989), and is designed to allow

state courts the opportunity to correct a state’s alleged viola-

tion of federal constitutional law before federal courts con-

sider the matter. O'Sullivan v. Boerckel, 526 U.S. 838,

844-45 (1999). “An applicant shall not be deemed to have

exhausted the reiiizdies available in the courts of the State . . .

if he has the right under the law of the State to raise, by any

available procedure, the question presented.” 28 U.S.C. §

2254(c).

Exhaustion requires that petitioner fairly present his

claims to every level of state court, including offering each

App. 53

claim for discretionary review by a State’s highest court, and

afford each reviewing court a fair opportunity to act on those

claims.’ O'Sullivan, 526 U.S. at 845; Picard v. Connor, 404

U.S. 270, 275-76 (1971). To satisfy the “fair presentation”

requirement, the state court pleadings must demonstrate that

the legal theory and supporting facts asserted in the federal

habeas petition are “substantially equivalent” to those pre-

sented to the state courts, see Doctor v. Walters, 96 F.3d 675,

678 (3d Cir. 1996), and the method of legal analysis to be

applied in federal court was available to the state courts, see

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).*

' This requirement is currently being questioned in Pennsyl-

vania with regard to non-capital cases. See Mattis v. Vaughn, 128

F. Supp. 2d 249, 259 (E.D. Pa. 2001) (upholding an order by the

Pennsylvania Supreme Court making discretionary review by that

court “unavailable” for purposes of federal habeas review). The

Pennsylvania Supreme Court, however, exercises mandatory _

review of all death sentences, thereby making the order addressed

in Mattis inapplicable here.

7 The Third Circuit has interpreted this standard and estab-

lished four criteria to determinewhether a federal claim is fairly

presented when state court pleadings do not refer to aaa

appropriate portions of the Constitution:

(a) reliance on pertinent federal cases employing constitu-

tional analysis, (b) reliance on state cases employing con-

stitutional analysis in like fact situations, (c) assertion of

the claim in terms so particular as to call to mind a spe-

cific right protected by the Constitution, and (d) allegation

of a pattern of facts that is well within the mainstream of

constitutional litigation.

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (quoting

Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d

er 1227, 1232 (3d Cir. 1992)).

App. 54

The petitioner bears the burden of proving that he has

exhausted available state remedies. See Landano v. Rafferty,

897 F.2d 661, 668 (3d Cir. 1990); Santana v. Fenton, 685

F.2d 71, 73 (3d Cir. 1982). The petitioner is not, however,

required to revisit claims raised on direct appeal in state

collateral proceedings, see O'Sullivan, 526 U.S. at 844 (cit-

ing Brown v. Allen, 344 U.S. 443, 447 (1953)), or seek alter-

natives to state habeas such as “a suit for injunction, a writ of

prohibition, or mandamus or a declaratory judgment in the

state courts.” Jd. (citing Wilwording v. Swenson, 404 U.S.

249, 249-50 (1971) (per curiam)). If the petitioner is unable

to prove that all claims in his petition satisfy the statutory

exhaustion requirements, his entire petition must be dis-

missed without prejudice and returned to the state courts for

consideration of the unexhausted claims. Rose v. Lundy, 455

U.S. 509, 522 (1982); Lines v. Larkins, 208 F.3d 153, 159-60

(3d Cir. 2000). In the clear absence of any colorable federal

claim, unexhausted claims may be dismissed on their merits.

See Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir. 1997)

(interpreting 28 U.S.C. § 2254(b)(2): “An application for a

writ of habeas corpus may be denied on the merits, notwith-

standing the failure of the applicant to exhaust the remedies

available in the courts of the State.”.

If, however, state procedural rules bar a petitioner

from seeking further relief in state courts, “the exhaustion

requirement is satisfied because there is ‘an absence of avail-

able State corrective process.”” McCandless v. Vaughn, 172

F.3d at 260 (citing 28 U.S.C. § 2254(b)); see also Gray v.

Netherland, 518 U.S. 152, 161-62 (1996) (“Because [the

exhaustion] ‘requirement . . . refers only to remedies still

available at the time of the federal petition,’ it is satisfied ‘if

it is clear that [the habeas petitioner’s] claims are now proce-

durally barred under [state] law.’” (citations omitted)); Cole-

man v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas

App. 55

petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion; there are no

state remedies any longer ‘available’ to him.”’).

A federal court may not, however, proceed to the

merits of a claim simply because that claim satisfies the

exhaustion requirement cf 28 U.S.C. § 2254(b)(1)(A) and §

2254(c) because of a lack of available state process. Rather,

“{ijn all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claims is barred.” Coleman, 501 U.S. at 750; see also Lines

v. Larkins, 208 F.3d at 160 (quoting McCandless v. Vaughn,

172 F.3d at 160).

Like exhaustion, the procedural default doctrine is

based on principles of comity, and is intended to “reduce[]

friction between the state and federal court systems by avoid- -

ing the ‘unseem[liness]’ of a federal district court’s overturn-

ing a state court conviction without the state courts having

had an opportunity to correct the constitutional violation in

the first instance.” O Sullivan, 526 U.S. at 844-45. A claim

is procedurally defaulted if the state court of last resort

refuses to consider its merits. See Yist v. Nunnemaker, 501

U.S. 797, 801 (1991) (“If the last state court to be presented

with a particular federal claim reaches the merits, it removes

any bar to federal-court review that might otherwise have

been available.”); County Court v. Allen, 442 U.S. 140,

152-53 (1979) (finding that, because the trial court “ruled on

the merits” rather than on some state procedural ground, that

the court “implicitly decided that there was no procedural

default”).

The Commonwealth argues that a number of Petition-

er’s claims or subclaims were not fairly presented, because

App. 56

Petitioner either never raised them at all, or did not analyze

them in sufficient depth to put the Pennsylvania Supreme

Court on notice that a federal claim was being raised. The

Commonwealth further argues that such claims or subclaims

would not be reviewable now in state court, because 42 Pa.

Cons. Stat. § 9545(b), the timing requirement of PCRA,

would bar a subsequent petition by Petitioner, and therefore

the exhaustion requirement as to these subclaims is satisfied

by procedural default “because there is ‘an absence of avail-

able State corrective process.”” McCandless v. Vaughn, 172

F.3d at 260 (citing 28 U.S.C. § 2254(b)).

We agree with the Commonwealth that any claims

not fairly presented by Petitioner could not be raised in state

court now because of the operation of § 9545(b). See Hol-

land v. Horn, -- F. Supp. 2d --, No. 99-CV-2251, slip op. at

17-24, 2001 WL 704493, *9-*13 (E.D. Pa. April 25, 2001).

Petitioner had already amended his PCRA petition several

times, but he could have amended it again during the sixty-

day window of opportunity from November 17, 1995, when §

9545(b) was enacted, until it took effect on January 16, 1996,

to include any omitted claims, without running afoul of the

statute’s one year time limit. Not only does § 9545 bar Peti-

tioner from raising any omitted claims in a subsequent PCRA

petition; it also causes such claims before us tobe proce-

durally defaulted. Section 9545 is an independent and ade-

quate state ground barring our review of such claims absent a

showing of cause and prejudice. See Holland, -- F. Supp. 2d

at --, slip op. at 17-24, 2001 WL 704493, *9-*13; see also

Part Il. B. 2, infra.

Nearly all of the claims and subclaims explicitly

raised by Petitioner are exhausted under 28 U.S.C. § 2254 by

virtue of their having been fairly presented in state court.

Upon reviewing the state court pleadings and the claims

App. 57

before us, we find that most of the legal theories and support-

ing facts asserted in the federal habeas petition are “substan-

tially equivalent” to those presented to the Pennsylvania

Supreme Court and Pennsylvania trial courts, see Doctor v.

Walters, 96 F.3d 675, 678 (3d Cir. 1996), and the method of

legal analysis to be applied by us was available to the state

courts, see McCandless v. Vaughn, 172 F.3d at 261. There-

fore, the vast majority of claims and subclaims explicitly

raised are exhausted by virtue of having been fairly presented

to the Pennsylvania Supreme Court and trial-level state

courts, and the few that were not fairly presented are

exhausted by application of the time bar of § 9545(b).

B. Standards Of Review

1. Review Under The AEDPA

Under the Anti-Terrorism and Effective Death

Penalty Act of 1996, 28 U.S.C. § 2254, a petitioner may not

be granted federal habeas relief if his claims were adjudicated

on the merits in state court,’ unless the state court decision

was

' If a court relied on procedural grounds to decline to decide

a federal claim, or if it examined the merits of a claim only in the

course of deciding a different claim, it has not adjudicated the

claim on the merits. See Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d

Cir. 1996) (citing Harris v. Reed, 489 U.S. 255 (1989)). Other-

wise, if the court cites to the controlling Supreme Cout precedent

or if it cites to state precedent or the progeny of state precedent

that relies on the Supreme Court precedent, or even if no law is

cited, and the decision is neither contrary to nor an unreasonable

application of the relevant Supreme Court precedent, the state

court will be deemed to have decided the federal claim on the

merits. See Werts v. Vaughn, 228 F.3d 178, 202-05 (3d Cir.

(Continued)

App. 58

(1) . . . contrary to, or involved an unreasonable appli-

cation of, clearly established federal law, as deter-

mined by the Supreme Court of the United States; or

(2) . .. based on an unreasonable determination of the

facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). Factual issues decided by the state

court “shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).°

(Continued)

2000). In rare cases, the state court cites to and applies Supreme

Court precedent that is not actually controlling with respect to the

federal claim that the state court is attempting to adjudicate. In

such cases the state court has not adjudicated the federal claim on

the merits. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)

(finding that the state court should have analyzed a claim of right

to counsel under United States v. Cronic, 466 U.S. 648 (1984), but

instead analyzed the claim as one of ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984));

Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000)

(finding that the state court should not have relied on Gregg v. .

Georgia, 428 U.S. 153 (1976), because it did not it control the claim

before it).

, If no state court record exists with respect to a petitioner’s

claims, and Petitioner has “failed to develop the factual basis of

the claim in state court,” a federal evidentiary hearing may be held

on the matter only if the petitioner satisfies two narrow criteria.

First, he must show that his claim relies on either a new, retroac-

tive constitutional law that was previously unavailable, or a fac-

tual predicate that could not, with the exercise of due diligence,

(Continued)

App. 59

The “threshold question under AEDPA is whether

[petitioner] seeks to apply a rule of law that was clearly

established at the time his state court conviction became

final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). An

existing federal law is “clearly established” unless it either

“breaks new ground or imposes a new obligation on the

States,” id. at 391, or was not “dictated” by precedent exist-

ing when the petitioner’s conviction became final. Jd.; see

also Teague v. Lane, 489 U.S. 288, 301 (1989). The fact that

a federal standard “of necessity requires a case-by-case

examination of the evidence, obviates neither the clarity of

the rule nor the extent to which the rule must be seen as ‘es-

tablished’ by this Court.” Williams, 529 U.S. at 391 (citation

omitted) (finding the Strickland standard for ineffective

assistance of counsel to be clearly established).

A state court decision is contrary to federal law as

determined by the Supreme Court “if the state court arrives at

a conclusion opposite to that reached by this Court on a ques-

tion of law or if the state court decides a case differently than

this Court has on a set of materially indistinguishable facts.”

Williams, 529 U.S. at 413. “[I]t is not sufficient for the peti-

tioner to show merely that his interpretation of Supreme

Court precedent is more plausible than the state court’s;

rather, the petitioner must demonstrate that Supreme Court

precedent requires the contrary outcome.” Matteo v. Super-

intendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999). It is

(Continued)

have been previously discovered. Second, the petitioner must

establish that the facts supporting his claim are sufficient to estab-

lish, by clear and convincing evidence, that but for constitutional

error no reasonable fact-finder would have found him guilty of the

underlying offense. 28 U.S.C. § 2254(e)(2).

App. 60

likewise not necessary for a petitioner to cite factually identi-

cal Supreme Court precedent. He may instead rely on a

Supreme Court rule that, by virtue of its factual similarity or

intention to apply to variant factual situations, “can fairly be

said to require a particular result in a particular case.” Jd. at

888-89.

A state court adjudication is an “unreasonable appli-

cation” of clearly established federal law if the court “‘identi-

fies the correct governing legal principle from this Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Williams, 529 U.S. at 413. “[A]

federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreason-

able.” Id. at 409 (emphasis added). Although the term “un-

reasonable” is often difficult to define, the most important

distinction is that “an unreasonable application of federal

law is different from an incorrect application of federal law.’

Id. at 410 (emphasis in original). A state court decision

cannot be found unreasonable unless, “evaluated objectively

and on the merits, [it] resulted in an outcome that cannot

reasonably be justified under existing Supreme Court prece-

dent.” Matteo, 171 F.3d at 890. The Third Circuit is of the

view that in evaluating reasonableness, federal habeas courts |

are not precluded from considering the decisions of lower

courts. Matteo, 171 F.3d at 890 (citing O’Brien v. DuBois,

145 F.3d 16, 25 (1st Cir. 1998)). In fact, such lower court

decisions may serve as “helpful amplifications” of Supreme

Court precedent. Jd.

’

2. Procedurally Defaulted Claims

A federal claim is procedurally defaulted and federal

habeas review of the claim is barred if the state court of last

App. 61

resort refuses to consider its merits, see Y/st v. Nunnemaker,

501 U.S. 797, 801 (1991), if such refusal is “pursuant to an

independent and adequate state procedural rule,” see Cole-

man v. Thompson, 501 U.S. 722, 750 (1991); see also Lines

v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000).

In its decision on Petitioner’s PCRA appeal, the

Pennsylvania Supreme Court relied on two procedural

grounds to refuse to adjudicate the merits of a number of

Petitioner’s federal claims. See Holloway IT, 739 A.2d 1039,

1044 (1999). First, it relied on its long-established rule that

the failure of trial counsel to contemporaneously object to

errors occurring at trial, and thus preserve these issues for

appeal, results in a waiver of these issues. See id. (citing

Commonwealth v. Williams, 660 A.2d 1316 (1995)). Such

issues may only be considered on their merits if trial counsel

is first shown to be constitutionally ineffective for failing to

preserve the issues for appeal, and thus the Pennsylvania

Supreme Court considered all such claims raised by Peti-

tioner as claims of trial counsel’s ineffectiveness. See id.

(citing Commonwealth v. Albrecht, 720 A.2d 693 (1998)).

The court also relied on the interplay between two provisions

of the PCRA, 42 Pa. Cons. Stat. § 9543(a)(3), which bars the

Pennsylvania Supreme Court from hearing any claim that

was previously litigated on direct appeal or was waived, and

§ 9544(b), under which “an issue is waived if the petitioner

could have raised it but failed to do so before trial, at trial,

. .. On appeal or in a prior state postconviction proceeding,”

to find that any claim not raised at trial, on direct appeal,

before the PCRA trial court, or any combination thereof, was

waived. Holloway II, 739 A.2d at 1044. Again, however,

such waiver could be overcome if counsel were shown to be

constitutionally ineffective for failing to raise such claims at

the proper time, and thus all such claims were considered to

be, and adjudicated as, claims of ineffectiveness of counsel

App. 62

for failure to timely raise the claims. /d. If either of these

grounds are independent and adequate state procedural rules,

we would be barred from examining the underlying claims

on the merits.’

A state procedural rule is considered independent if it

does not rely on the merits of a federal claim or “rest[] its

decision primarily on federal law.” Harris v. Reed, 489 U.S.

255, 260-61 (1989); see also Ford v. Stepanik, 1998 WL

297626, at *3 (E.D. Pa. June 2, 1998). Such a rule is ade-

quate under the procedural default doctrine if it is “firmly

established and regularly followed” within the state. James

v. Kentucky, 466 U.S. 341, 348 (1984); see also Ford v.

Georgia, 498 U.S. 411, 423-24 (1991) (stating that a state

procedural rule may not be adequate if “the defendant . . .

could not be ‘deemed to have been apprised of its exis-

tence’”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988)

(“[A] state procedural ground is not ‘adequate’ unless the

procedural rule is ‘strictly or regularly followed.’”); Barr v.

City of Columbia, 378 U.S. 146, 149 (1964). But see

Jamison v. Collins, 100 F. Supp. 2d 521, 559 (S.D. Ohio

1998) (“‘A state procedural rule that was not firmly estab-

lished at the time it should have been complied with by the

7

On PCRA appeal, the Pennsylvania Supreme Court also

ruled that it could not examine several claims that it had addressed

on direct appeal, because they fell within the “previously liti-

gated” bar of 42 Pa. Cons. Stat. § 9543(a)(3). We need not decide

whether this bar is also bars us from examining such claims on the

merits; we simply review any claims that were adjudicated on

direct appeal under the AEDPA standard. If such claims were not

actually adjudicated, however, we will examine them under the

standard outlined in Part III. B. 3., infra.

There is no dispute that such procedural rules are inde-

pendent.

App. 63

petitioner, and therefore is applied retroactively, is not an

adequate state ground that bars federal habeas review.”’). The

phrase “firmly established and regularly followed” requires

that a petitioner have some sort of notice, at the time of his

state court procedural default, of a state procedural rule’s

potential impact on his case before that rule can be consid-

ered adequate. See Ford v. Georgia, 498 U.S. at 423-24;

N.A.A.C.P. v. Alabama, 357 U.S. 449, 457 (1958) (“{A] local

procedural rule, although it may now appear in retrospect to

form part of a consistent pattern of procedures . . . cannot

avail the State here, because petitioner could not fairly be

deemed to have been apprised of its existence. Novelty in

procedural requirements cannot be permitted to thwart

review in this Court... .”); Cabrera v. Barbo, 175 F.3d 307,

313 (3d Cir. 1999) (“The reason for these requirements is

that a petitioner should be on notice of how to present his

claims in the state courts if his failure to present them is to

bar him from advancing them in a federal court.”). The

Third Circuit found this notice requirement satisfied when a

presiding judge in a collateral proceeding specifically asked a

petitioner if he had anything else to present. Cabrera, 175

F.3d at 313 (finding that petitioner had “ample opportunity”

to present his defaulted claims in state court because “the

judge at the hearing repeatedly gave Cabrera, who was pre-

sent at the hearing, an opportunity to say ‘anything””).

Petitioner asserts that the §§ 9544(b) and 9543(a)(3)

rules are not adequate, because the “relaxed waiver” doctrine

makes such rules not “firmly established and regularly fol-

lowed.” Under the “relaxed waiver” doctrine, the Pennsylva-

nia Supreme Court reserved its discretion “to address all

issues arising in a death penalty case, irrespective of a finding

of waiver.” Commonwealth v. Travaglia, 661 A.2d 352, 356

n.6 (Pa. 1995). Petitioner suggests that the doctrine’s exis-

tence led him to believe that his state collateral claims would

App. 64

be preserved despite his violation of §§ 9544(b) and 9543

(a)(3), and that he therefore was without proper notice of the

statute’s potentially preclusive effect.

We believe that these PCRA rules are adequate state

grounds barring our review of the underlying claims on the

merits. Petitioner is correct in citing the existence of such a

doctrine, at least prior to the PCRA amendments of Novem-

ber 17, 1995, at which time the doctrine appears to have been

eradicated by the language of those amendments, which state

that “[e]xcept as specifically provided otherwise, all provi-

sions of this subchapter shall apply to capital and noncapital

cases.” 42 Pa. Cons. Stat. § 9542 (emphasis added). The

Pennsylvania Supreme Court verified this interpretation in

Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), in

which it upheld the constitutionality of the 1995 PCRA

amendments against challenges that they could not, in con-

junction with the relaxed waiver doctrine, provide reliable

notice of the availability of state collateral review. The clear

language of the 1995 amendments, in conjunction with the

Pennsylvania Supreme Court’s ruling that the relaxed waiver

doctrine could not trump the statute’s authority, leads us to

conclude that Petitioner could not have justifiably relied on

the relaxed waiver doctrine as grounds for failing to timely

raise his claims. See Holland v. Horn, -- F. Supp. 2d --, No.

99-CV-2251, slip op. at 19 n.11, 2001 WL 704493, *10 (E.D.

Pa. April 25, 2001) (finding that to the extent relaxed waiver

existed, it ended with the enactment of the 1995 PCRA

amendments).

Furthermore, the relaxed waiver doctrine was never

as broad or as widespread as Petitioner asserts. See Com-

monwealth v. Williams, 660 A.2d 1316, 1319-1320 (Pa.

1995) (“While we have recognized that waiver rules are often

relaxed in capital cases, ... we have held in other capital

eae

App. 65

cases that issues not raised before the trial court were

waived. ... This Court does not countenance trial counsel

intentionally sitting by silently at trial only later to complain

of trial errors on appeal after an unfavorable verdict. That a

matter is a death penalty case in no way relieves trial counsel

of the duty to raise appropriate contemporaneous objections

at trial to allow the trial court to cure any alleged error as

well as preserve issues for appellate review.”) (citing Com-

monwealth v. Goins, 495 A.2d 527, 530 (1985) (plurality)

(appellant’s claims of prosecutorial misconduct are waived

for trial counsel’s failure to object); Commonwealth v.

Peterkin, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070

(1987) (even though issue of whether exclusion of prospec-

tive jurors was of constitutional dimension, the issue was

waived because defense counsel indicated he had no objec-

tion to the challenges for cause of the two jurors); Common-

wealth v. Szuchon, 484 A.2d 1365 (1984) (whether

prospective jurors were improperly excluded is waived and

cannot be addressed for the first time on appeal because trial

counsel failed to object to the challenge of prospective jurors.

or to rehabilitate them through further questioning)). Clearly,

relaxed waiver was not so widespread that Petitioner could

have justifiably relied on it to believe that the PCRA waiver

rules regarding the requirement of raising claims at the earli-

est opportunity were not “firmly established and regularly

followed.” James v. Kentucky, 466 U.S. 341, 348 (1984).

The phrase “firmly established and regularly followed” re-

quires that a petitioner have some sort of notice, at the time

of his state court procedural default, of a state procedural

rule’s potential impact on his case before that rule can be

considered adequate. See Ford v. Georgia, 498 U.S. 411,

423-24 (1991). Nor could Petitioner be deemed not “‘to have

been apprised of [the] existence’” of such rules. Jd. (quoting

N.A.A.C.P. v. Alabama, 357 U.S. 449, 457 (1958)). Because

the relaxed waiver doctrine was not so broadly or frequently

App. 66

applied as to justify reliance on it or justify a belief that the

PCRA rules at issue were not “firmly established and regu-

larly followed,” we find such rules to be “adequate” so as to

bar our direct review of the underlying claims.

Even if the relaxed waiver doctrine were sufficiently

widespread such that Petitioner could have believed that any

claim not raised on direct appeal could be raised on the mer-

its in his PCRA petition without a showing that direct appeal

counsel was ineffective for failing to assert the claim, Peti-

tioner would still be faced, as to many claims, with the

waiver that occurred when trial counsel failed to preserve

such issues for appeal. Such waiver rests not only on the

PCRA rules, but on the longstanding independent rule that

any issues not preserved by trial counsel’s contemporaneous

objection could only be reviewed as claims of trial counsel’s

ineffectiveness for failing to raise them. The “relaxed

waiver” doctrine never, or at least rarely, applied to such

waivers, see Commonwealth v. Williams, 660 A.2d at 13 16,

and cases cited therein, and therefore the contemporaneous

objection rule must also be considered “adequate” so as to

bar our direct review of the underlying trial errors.

Federal review of defaulted claims is prohibited,

unless Petitioner is able to “demonstrate cause for the default

and actual prejudice as a result of the alleged violation of

federal law.”” Coleman, 501 U.S. at 750. The Supreme

. Another exception to the procedural default doctrine is

recognized in cases where preclusion of federal review would

result in a “fundamental miscarriage of justice.” Murray, 477

U.S. at 495. This is a particularly rare exception, applicable only

in cases “where a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Jd. at 496.

(Continued)

App. 67

Court has identified three circumstances in which procedural

default may be excused for cause: (1) if the “factual or legal

basis for a claim was not reasonably available to counsel,”

(2) if some interference by officials made compliance [with

state procedural rules] impracticable,”"® or (3) “if the

procedural default is the result of ineffective assistance of

(Continued)

Actual innocence alone, however, is not a cognizable claim for

habeas relief; petitioner must instead “supplement/[] his constitu-

tional claim with a colorable showing of factual innocence.” Her-

rera v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original).

To establish actual innocence due to errors at trial, “the petitioner

must show that it is more likely than not that no reasonable juror

would have convicted him in the light of the new evidence.”

Schlup v. Delo, 513 U.S. 298, 327 (1995). This represents a

“stronger showing than that needed to establish prejudice.” Jd. In

order to demonstrate actual innocence as a result of errors ;

committed at sentencing, “one must show by clear and convincing

evidence that, but for a constitutional error, no reasonable juror

would have found petitioner eligible for the death penalty under

the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336

(1992). Petitioner does claim generally that the many errors in his

case resulted in a colorable showing of factual innocence, but we

find that none of the underlying claims that go to innocence have

merit, so no miscarriage of justice existed with respect to any of

those claims.

- Petitioner argues that Commonwealth should be estopped

from arguing that certain claims were defaulted because of the

statement of ADA Ronald Eisenberg to the Pennsylvania Supreme

Court in response to Petitioner’s attempts to file pro se briefs on

direct appeal while represented: “[Should he] later be dissatisfied

with the outcome of his direct appeal, he may then pursue any

additional claims through state collateral review.” (Pet. Reply

Mem. App. A.) This argument has no merit. On the original

(Continued)

(Continued)

record, we cannot even determine which claims would fall within

the scope of this argument, because the pro se direct appeal filing

is not in the record. The record includes Petitioner’s pro se PCRA

petition and Petitioner alleges that the direct appeal filing had the

same claims as those in the pro se PCRA petition, but there is no

evidence that such is the case. During the evidentiary hearing that

we held for the sole and limited purpose of establishing direct

appeal counsel’s reasons for not raising the Batson claim, in order

to determine whether cause was shown for the procedural default

that arose from the failure to raise the claim on direct appeal,

Petitioner submitted as Petitioner’s Exhibit 1 the missing pro se

filing. However, as we explain infra at n.56, we may only con-

sider such evidence for the purpose of determining whether cause

exists. Furthermore, we find that the letter is ambiguous. ADA

Eisenberg’s statement can as easily understood to mean that Peti-

tioner could pursue claims directly on the merits in collateral

proceedings as to mean that in collateral proceedings Petitioner

could allege that direct appeal counsel was ineffective for not

raising the omitted claims.

Finally, the letter refers to Petitioner as being represented.

The Pennsylvania Supreme Court is not required to accept and

consider pro se filings from a represented appellant, but may do so

in its discretion. See Commonwealth v. Ellis, 626 A.2d 1137,

1139 (Pa. 1993) (“[T]here is no constitutional right to hybrid

representation either at trial or on appeal . . . and no statute man-

dates hybrid representation on appeal.”) (citing Commonwealth v.

Colson, 490 A.2d 811, 821 (1985) (no right to hybrid representa-

tion at trial)); id. at 1140 (“[I]f appellate counsel’s arguments do

not prevail and the appellant is convinced that his own unheeded

arguments should have been presented, he need only file a petition

pursuant to the Post Conviction Relief Act, claiming appellate

counsel’s ineffectiveness.”); see also, e.g., Commonwealth v.

Henry, 491 A.2d 193, n.2 (Pa. Super. 1985); Commonwealth v.

Kibler, 439 A.2d 734 (Pa. Super. 1982). Even when the Pennsyl-

(Continued)

App. 69

counsel.”'' Murray v. Carrier, 477 U.S. 478, 488 (1986). If

cause is established, a petitioner must then also demonstrate

actual prejudice as a result of the procedural default. Actual

prejudice requires that the petitioner “shoulder the burden of

showing, not merely that the errors at his trial created a possi-

bility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” United States v. Frady, 456

U.S. 152, 170 (1982) (emphasis in original). Petitioner does

not contend that either of the first two circumstances demon-

strating cause are relevant to his claims, except as we have

explained in note 10, and we agree and so find. Although

Petitioner argues that none of his claims are defaulted, he

argues that if we were to find such a default, his trial and

appellate counsel were constitutionally ineffective in not

raising his defaulted claims. We will therefore limit our

(Continued)

vania Supreme Court does consider such briefs, it often merely

dismisses the claims therein as being without merit with little or

no discussion.

Each of these three reasons is sufficient for us to find that

the Commonwealth should not be estopped because of the Eisen- _

berg letter from arguing procedural default of claims not raised in

the counseled direct appeal brief, and we so find.

" The AEDPA has, in some circumstances, eliminated the

cause and prejudice exception to procedural default in lieu of a

more deferential standard of review for all capital habeas claims

arising under § 2254. See 28 U.S.C. § 2264. This standard only

applies, however, to convictions in states that satisfy the criteria

set forth in 28 U.S.C. § 2261. Since Pennsylvania does not satisfy

these criteria, we therefore continue to apply the traditional cause

and prejudice analysis in Petitioner’s case. See Death Row Pris-

oners of Pennsylvania v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997).

App. 70

analysis of Petitioner’s defaulted claims to the adequacy of

his legal representation."

™ As mentioned above, Petitioner fairly presented claims of

ineffective assistance of trial and appellate counsel in the state

courts. The Pennsylvania Supreme Court determined that his

constitutional right to counsel had not been violated. Holloway I,

572 A.2d at 691-94; Holloway IT, 739 A.2d at 1044-48. There-

fore, he may now argue that his deficient representation amounts

to an appropriate ground for finding cause. See Edwards v. Car-

penter, 529 U.S. 446, 452 (2000) (“‘[A] claim of ineffective assis-

tance’ generally must ‘be presented to the state courts as an

independent claim before it may be used to establish cause for a

procedural default.’” (quoting Murray v. Carrier, 477 U.S. 478,

489 (1986)); Holloway IT, 739 A.2d 1039, 1044 (Pa. 1999)

(acknowledging that Petitioner alleges “that all his prior counsel

were ineffective”).

28 U.S.C. § 2254(d) empowers federal courts to granta __

writ of habeas corpus pursuant to “any claim that was adjudicated

on the merits in State court proceedings” if the federal court finds

that the state adjudication of the claim “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established federal law.” Recent decisions have refrained

from applying this highly deferential standard in cases involving

claims of cause and prejudice to excuse state procedural default.

See Edwards, 529 U.S. at 452-54. In Edwards, the Supreme Court

required that claims of cause on the grounds of ineffectiveness of

counsel had to be exhausted in state court. Jd. The Court did not

address whether, in reviewing exhausted claims of ineffectiveness

of counsel, we should now apply the standard set forth in 28

U.S.C. § 2254(d), as opposed to that established by Murray v.

Carrier. Id. See also Holland v. Horn, -F. Supp. 2d -, No.

99-CV-2251, slip op. at 62-65, 2001 WL 704493, *29-31 (E.D. Pa.

April 25, 2001). We believe that the procedural default doctrine

addressed by the Supreme Court in Murray v. Carrier is control-

(Continued)

App. 71

Ineffective assistance of counsel is a violation of the

Sixth Amendment, which guarantees every defendant “[i]n

all criminal prosecutions . . . the Assistance of Counsel for

his defense.” A showing of ineffective assistance requires

satisfaction of two components. First, counsel must have

been so deficient that his “representation fell below an objec-

tive standard of reasonableness.” Strickland v. Washington,

466 U.S. 668, 688 (1984). Second, a petitioner must show

that counsel’s “deficient performance prejudiced the

defense.” Jd. In determining whether counsel acted reasona-

bly, there remains a “strong presumption that counsel’s con-

duct falls within the wide range of reasonable professional

assistance.” Jd. at 689; Diggs v. Owens , 833 F.2d 439,

444-45 (3d Cir. 1987). Counsel’s actions are evaluated “‘on

the facts of the particular case, viewed as of the time of coun-

sel’s conduct.’” Lockhart v. Fretwell, 506 U.S. 364, 371

(1993) (quoting Strickland, 466 U.S. at 690). A lack of suc-

cess is not proof of unreasonableness, see Strickland, 466

U.S. at 689, and strategic and tactical decisions are not

(Continued)

ling and unchanged by 28 U.S.C. § 2254(d). Jd.

The standard set forth in 28 U.S.C. § 2254(d) applies to a

federal court’s review of “any claim.” When a petitioner, in trying

to establish “cause” for his procedural default, contends that his

counsel was ineffective, he is not seeking review of a state court’s

determination of ineffectiveness of counsel; i.e. he is not seeking

review of the state court’s decision as a ground for habeas relief.

Rather, he is using his ineffectiveness of counsel allegation to

excuse his failure to present claims to the state court. Cause and

prejudice are merely an excuse to overcome a procedural default;

they are not a claim in themselves. Therefore, our review of an

allegation of ineffectiveness as an excuse is independent of our

review of the Pennsylvania Supreme Court’s adjudication of an

ineffectiveness claim.

App. 72

grounds for an ineffective assistance claim unless counsel

displayed “ineptitude, inexperience, lack of preparation or

unfamiliarity with basic legal principles.” Commonwealth of

the Virgin Islands v. Weatherwax (““Weatherwax I’), 20 F.3d

572, 579 (3d Cir. 1994), rev'd on other grounds, Common-

wealth of the Virgin Islands v. Weatherwax (“Weatherwax

IT’), 77 F.3d 1425, 1435 (3d Cir. 1996).

Prejudice exists if there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694; see also United States v. DeRewal, 10 F.3d 100, 104

(3d Cir. 1993) (defining prejudice as deprivation of “a trial

whose result is reliable”). A reasonable probability is “‘a

probability sufficient to undermine confidence in the out-

come.” Strickland, 466 U.S. at 694. In assessing the likeli-

hood that the result would have been different, courts “must

consider the totality of the evidence before the judge or jury.”

Id. at 695. This standard of prejudice applies when counsel’s

deficiencies deprive his client of a substantive or procedural

right. See Williams v. Taylor, 529 U.S. 362, 391-93.

In a limited number of cases, when counsel’s defi-

ciencies do not deprive his client of another substantive or

procedural right, the Strickland prejudice analysis is insuffi-

cient to determine whether a petitioner has been deprived of

his right to assistance of counsel, and the focus is instead on

fundamental faimess. Williams, 529 U.S. at 391-93 (citing

Lockhart, 506 U.S. at 369; Nix v. Whiteside, 475 U.S. 157,

175 (1986) (“[T]he ‘benchmark’ of an ineffective assistance

claim is the fairness of the adversary proceeding.”)). In order

to establish prejudice as a result of deficient representation in

such cases, a defendant must demonstrate that “‘counsel’s

unprofessional errors so upset the adversarial balance

between defense and prosecution that the trial was rendered

App. 73

unfair and the verdict rendered suspect.” Lockhart, 506 U.S.

at 369 (citing Kimmelman v. Morrison, 477 U.S. 365, 374

(1986)). When counsel’s deficiency does result in the depri-

vation of a right that his client is entitled to, however,

“{c]ases such as [Nix and Lockhart] do not justify a departure

from a straightforward application of Strickland.” Williams,

529 US. at 393.

The prejudice standard applied in the ineffective

assistance context is nearly identical to the actual prejudice

standard for excusing a procedural default articulated in

Coleman. As a result, we may rely on any findings of preju-

dice within our ineffectiveness inquiry to satisfy any claims

of actual prejudice to Petitioner. Furthermore, the standard

used to determine ineffective assistance as grounds for cause

is identical to that applied with respect to substantive claims

for relief under the Sixth Amendment. As a result, we rely

on our above explanation of the Strickland standard in all our

ineffective assistance inquiries.

If we find sufficient cause and prejudice under Cole-

man to excuse the procedural default caused by the failure of

trial counsel to contemporaneously object, or caused by

direct appeal counsel for failure to raise a claim, or both, as

would be necessary in some cases, we believe we would then ©

exercise plenary review the of the merits of the underlying

claim. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir.

2001) (“It follows that when, although properly preserved by

the defendant, the state court has not reached the merits of a

claim thereafter presented to a federal habeas court, the def-

erential standards provided by AEDPA and explained in

Williams do not apply . . . [and] the federal habeas court must

conduct a de novo review over pure legal questions and

mixed questions of law and fact, as a court would have done

prior to the enactment of AEDPA.”); Hameen v. State of

App. 74

Delaware, 212 F.3d 226, 248 (3d Cir. 2000) (“{U]nder the

AEDPA the limitation on the granting of an application for a

writ of habeas corpus is only ‘with respect to any claim that

was adjudicated on the merits in state court proceedings.’

Hence we exercise pre-AEDPA independent judgment

...+); Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.

1999) (finding that under AEDPA “we are generally subject

to two different frameworks of review, depending upon

whether the state courts addressed the merits of the claim for

relief. If the state courts have not heard the claim on its mer-

its, we review the district court’s legal conclusions de novo).

Even if the Pennsylvania Supreme Court determined, in the

course of adjudicating a claim of ineffectiveness, that the _

underlying, procedurally defaulted claim had no merit, we

would not be bound by this purported determination of the

merits of that claim. See Sistrunk v. Vaughn, 96 F.3d 666,

673 (3d Cir. 1997).

We also note that in Sistrunk, the Third Circuit

explained that the doctrine that an independent and adequate

state ground bars federal relief “applies whenever the state

court relies upon such an adequate and independent state

ground, even when it goes on to address the federal claim in

an alternative holding.” Jd. (citing Harris v. Reed, 489 U.S.

255 (1989)). The Third Circuit further reasoned that “[i]f

federal review of a federal claim is foreclosed when the state

court addresses the merits of the federal claim in an alterna-

tive holding directed to that claim, surely federal review must

also be foreclosed when the state court addresses the merits

of the federal claim only in the course of resolving another,

independent claim.” Jd. at 675. Thus, if the Pennsylvania

Supreme Court relied upon an independent and adequate

state ground with respect to any subclaim and we find the

procedural default to be excused, we may examine the

underlying claim and apply de novo review to it rather than

App. 75

the AEDPA standard. See Appel v. Horn, 250 F.3d at 210;

Hameen vy. State of Delaware, 212 F.3d at 248. We would

still presume that any state court’s factual determinations are

correct, rebuttable only on a showing of clear and convincing

evidence. See Appel, 250 F.3d at 210 (citing 28 U.S.C. §

2254(e)(1)); see also Smallwood, 191 F.3d at 1264 (state

court factual findings are reviewed for clear error).

3. Fairly Presented Claims That Were Neither

Adjudicated On The Merits, Nor Procedurally

Defaulted

As with claims for which a procedural default was

overcome by a showing of cause and prejudice, we would

also review de novo any claim that was not adjudicated on

the merits by the Pennsylvania Supreme Court due to the

erroneous application of the “previously litigated” bar of

42 Pa. Cons. Stat. § 9543(a)(3) and-§ 9544(a), because such a

bar would not be “adequate” to prevent our review. In the

course of deciding Petitioner’s PCRA appeal, the Pennsylva-

nia Supreme Court invoked the “previously litigated”’ bar to

decline to review a number of claims, asserting that it had

addressed such claims on direct appeal. Holloway II, 739

A.2d at 1044. We respectfully find that, in several instances,

some of these claims or subclaims were not actually :

addressed by the Pennsylvania Supreme Court, even if its

decision in Holloway I is read broadly. Even though the

Pennsylvania Supreme Court could have properly found such

claims to be waived for failure to raise them on direct appeal,

it did not rely on that procedural bar, and we are therefore not

bound by the existence of such a bar, even though we would

be bound by it had the court asserted it. Because such claims

are therefore not procedurally defaulted, and were not, in

fact, adjudicated on the merits, but were fairly presented, we

App. 76

review them de novo. See Appel v. Horn, 250 F.3d at 210;

Hameen v. State of Delaware, 212 F.3d at 248.

C. Petitioner’s Substantive Claims

1. Claim I—-Exclusion Of Evidence Of Alleged

Accomplice’s Acquittal

Petitioner claims that the exclusion of his knowledge

and the knowledge of Detective Gilbert, who interrogated

him, of the acquittal of Freeman, offered for the purpose of

showing Petitioner’s state of mind and the detective’s motive

to fabricate Petitioner’s alleged confession, was a violation of

Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment

rights to due process, present a defense, and to a fair trial. He

also claims that all prior counsel were ineffective to the

extent that they failed to fully, timely, and properly raise this

issue. Petitioner argues that because he knew that his alleged

accomplice, Freeman, had been acquitted, he had a strong

motive not to make any statement. According to Petitioner,

the only evidence against either Freeman or him was the

statement of Shirley Baker, and Freeman was acquitted on

that evidence, so Petitioner allegedly reasoned that he would

likewise be acquitted, and therefore he never would have

made the statement. Petitioner further argues that because

the detective also knew of both Freeman’s acquittal and

Baker’s testimony, the detective concocted Petitioner’s

alleged confession using Baker’s testimony, so that at least

someone would be convicted for the Caldwell murder.

Petitioner raised these issues both in his amended

PCRA Petition to the PCRA hearing court and in his initial

App. 77

PCRA brief before the Pennsylvania Supreme Court."”

Because the Pennsylvania Supreme Court found that these

issues were not raised on direct appeal or before the PCRA

trial court, however, the Pennsylvania Supreme Court

deemed them to be waived.'* Commonwealth v. Holloway

7" The Commonwealth takes issue with Petitioner’s allega-

tion that his previous claim rested on all of these amendments,

arguing that some were not raised. Petitioner did claim, however,

that his rights to due process and a fair trial were violated, so we

find that he did raise claims under the Fifth, Sixth, and Fourteenth

Amendments. We understand Petitioner to be arguing that he was

deprived of “a meaningful opportunity to present a complete

defense,” which could be brought as either a due process or fair

trial claim. Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also

Strickland v. Washington, 466 U.S. 668, 684-85 (1984) (“The

Constitution guarantees a fair trial through the Due Process _

Clauses, but it defines the basic elements of a fair trial largely

through the several provisions of the Sixth Amendment.”).

Because substantially the same facts and legal theories were avail-

able to the Pennsylvania Supreme Court, and, notwithstanding the

Pennsylvania Supreme Court’s assertion to the contrary, also to

the PCRA hearing court, we find that Petitioner’s Fifth, Sixth, and

Fourteenth Amendment claims were fairly presented. See O'Sulli-

van v. Boerckel, 526 U.S. 838, 844 (1999); Doctor v. Walters, 96

F.3d 675, 678 (3d Cir. 1996). Petitioner has made no argument to

us regarding the alleged Eighth Amendment violation, and there-

fore we deem such a claim to be waived.

a Although Petitioner’s trial counsel did not use the magic

word “objection,” when Judge Sabo ruled at the suppression hear-

ing that Freeman’s acquittal may not be referred to at trial, trial

counsel strenuously argued that such information was crucial to

Petitioner’s defense. (N.T. 5/13/86, at 89-93.) The Supreme

Court of Pennsylvania, however, appears to have treated this claim

as waived both for a failure to contemporaneously object at trial

(Continued)

App. 78

(Holloway II), 739 A.2d 1039, 1044-45 (Pa. 1999). Because

Petitioner alleged ineffectiveness of all prior counsel, how-

ever, the court adjudicated the claims from the standpoint of

a ineffectiveness claim. See id. We must therefore do so as

well, applying the AEDPA standard.

In deciding the ineffectiveness claim, the Pennsylva-

nia Supreme Court noted that Petitioner’s underlying federal

claim was based on a due process theory, explained the

claim, and then decided that the claim had no merit. See

Holloway IT, 739 A.2d at 1044-45. The court then proceeded

to examine Petitioner’s state law claim as to the exclusion of

this evidence. Petitioner argues that because the case relied

upon by the Pennsylvania Supreme Court in this latter

discussion, Meredith v. Commonwealth, 425 A.2d 334

(1981), was simply a state law case, and neither it nor any

case it cited to discussed due process issues, the court never

decided the federal claim. We find that the court did not

adjudicate the federal claim within the meaning of the

AEDPA, 28 U.S.C. § 2254(d), but that it adjudicated the

claim of ineffectiveness of counsel for failure to raise this

evidentiary issue previously on the basis that neither the

federal claim nor the state claim had merit. See Strickland v.

Washington, 466 U.S. 668, 691 (1984) (counsel cannot be

_ Ineffective for failing to raise a meritless claim). The court’s

(Continued)

and for failure to raise on direct appeal as required by 42 Pa.

Cons. Stat. §§ 9543(a)(3) and 9544(b). We will assume that both

of these bases for the waiver are independent and adequate state

grounds barring our review of the underlying substantive claim,

and that each were properly applied by the Pennsylvania Supreme

Court as to this claim. Therefore, to review this claim on the

merits, we would be required to find cause and prejudice or a

fundamental miscarriage of justice to excuse the procedural

default. See Part III. B. 2, supra.

App. 79

brief description of Petitioner’s due process claim and the

decision that the claim has no merit would suffice for us to

conclude that it considered and decided the federal claim so

as to be “adjudicated on the merits” for the purpose of apply-

ing AEDPA, were the claim in such a procedural posture that

the court was examining the claim directly, see Werts v.

Vaughn, 228 F.3d 178, 204 (3d Cir. 2000), therefore they

suffice for us to conclude that it decided the issue as an

underlying basis for the claim of ineffective assistance of

counsel.'* It appears that the court simply moved on to

examine the state-law issue without using a transition sen-

tence.

We have reviewed the court’s ineffectiveness adjudi-

cation under the AEDPA standard, and we find that it is

neither contrary to, nor an unreasonable application of,

clearly established federal law as determined by the Supreme

Court of the United States. In the process of our review, we

also find that we agree with the Pennsylvania Supreme Court

that the underlying claim has no merit. Therefore, not only

do we find that the Pennsylvania Supreme Court’s decision

must be upheld under the AEDPA and thus deny relief; if we

were to examine the underlying claim de novo, either by

concluding that it had been fairly presented but not

adjudicated on the merits, or after a showing of cause and

prejudice, we would likewise deny relief.'®

. We conclude that the court decided the ineffectiveness

claim based not only upon the underlying due process claim, but

also upon the underlying claims based on the rights to present a

defense and to a fair trial. See n.13, supra.

- Because we have come to this conclusion, we need not

examine whether Petitioner’s procedural default for failing to

(Continued)

.

4

AY

Ay

ia

App. 80

Petitioner argues that under Chambers v. Mississippi,

410 U.S. 284 (1973), and Crane v. Kentucky, 476 U.S. 683,

689-90 (1986),'’ his rights to due process, to present a

defense and to a fair trial were violated. He argues that he

should have been permitted to offer evidence of his and

Detective Gilbert’s knowledge of Freeman’s acquittal solely

for the purpose of showing that Petitioner had no motive to

- make the statement and thus never would have, and that

Detective Gilbert had a motive to create the statement.

The Supreme Court has traditionally been reluctant to

“impose constitutional constraints on ordinary evidentiary

rulings by state trial courts.” Crane, 476 U.S. at 689. The

Constitution gives trial judges “wide latitude” to exclude

evidence that is “repetitive,” “only marginally relevant,” or

that poses an undue risk of “harassment, prejudice, or confu-

sion of the issues.” See Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986). Further, the Court has “never questioned

the power of States to exclude evidence through the

(Continued)

timely raise the claim can be excused by a showing of cause and

prejudice or fundamental miscarriage of justice. Indeed, we need

not even decide whether the claim really was defaulted. In addi-

tion to arguing that the PCRA and contemporaneous objection

rules are either not independent and adequate state procedural

grounds barring our review of the merits, or that they were errone-

ously applied to Petitioner, or both, Petitioner argues that Com-

monwealth should be estopped from arguing that the claim was

defaulted. See n.10, supra. These issues are moot.

. Crane was decided after Petitioner’s trial but before his

direct appeal was final. Therefore Petitioner may use it as a basis

for seeking the writ. See 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 390 (2000).

App. 81

application of evidentiary rules that themselves serve the

interests of fairness and reliability—even if the defendant

would prefer to see the evidence admitted.” Crane, 476 U.S.

at 690 (citing Chambers, 410 U.S. at 302.). Nevertheless, the

Court has held in a few limited cases that state court eviden-

tiary rulings violated the defendant’s Fifth or Sixth Amend-

ment rights.

In Chambers, the Court held that under the facts of

that case, the defendant’s right to due process was violated.

410 U.S. at 286. The trial court had excluded evidence that a

third person on separate occasions orally confessed to three

different friends to the murder for which Chambers was

convicted, under circumstances that bore substantial assur-

ances of trustworthiness, as well as evidence that this person

made, but later repudiated, a sworn wnitten confession. Jd. at

287-90. The testimony of the three persons to whom the oral

confessions were made, as well as the repudiated written

statement were excluded as hearsay, because Mississippi

recognized no exception for admissions against penal inter-

est. Further, because of Mississippi’s common-law voucher

rule, the trial court prevented Chambers from cross-

examining this third person when he called him as a witness.

The Court held that, due to this combination of evidentiary

rulings, Chambers was deprived of his right to due process.

The Court emphasized that it was establishing no new princi-

ples of constitutional law and /imited its holding to the facts

and circumstances of the case before it. Jd. at 302-303.

Therefore Chambers provides little support for Petitioner.

Crane, which dealt with the exclusion of evidence of

the circumstances surrounding a confession, is somewhat

more helpful to Petitioner and is the standard by which we

determine whether the Pennsylvania Supreme Court’s deci-

sion that the exclusion of the evidence at issue did not violate

App. 82

Petitioner’s right to due process (and to a fair trial) was an

unreasonable application of, or contrary to, federal law. In

Crane, the trial court excluded testimony concerning the

circumstances of defendant’s confession because it pertained

to the issue of voluntariness, which had been resolved against

the defendant in a pretrial ruling.'* 476 U.S. at 684-85. The

defendant, however, offered the testimony to show that the

statement was not credible. The Court held that the exclu-

sion of the testimony deprived the defendant of a fair trial.

In Crane, the Court held that even though a trial court

may have ruled on the issue of the voluntariness of a confes-

sion, a defendant may offer proof on the circumstances of the

confession that go to voluntariness, not because voluntariness

may be relitigated, but because those very same circum-

stances go to the credibility of the confession, i.e. whether

the contents are true, and because such information is par-

ticularly relevant where there is no physical evidence linking

the defendant to the crime and the entire defense is that, for a

variety of reasons, the defendant’s earlier admission of guilt

should not be believed. Here, Petitioner wants to offer the

circumstance of his state of mind, i.e. of the knowledge that

he had, to show that he never would have made the statement

he is alleged to have made, and therefore did not make it.

Chambers deals with the credibility of the confession; the

instant case deals with the credibility of the defendant on the

stand denying that he made the statement; both are jury

issues. The narrow language of Crane covers the

. The sixteen-year-old defendant asserted that he “had been

detained in a windowless room for a protracted period of time,

that he had been surrounded by as many as six police officers

during the interrogation, that he had repeatedly requested and been

denied permission to telephone his mother, and that he had been

badgered into making a false confession.” Crane, 476 U.S. at 685.

App. 83

circumstances in which the confession occurred, i.e. the

physical and psychological environment that yielded the

confession. /d. at 688-89. Under such a reading, Crane

would not provide an avenue for relief for a defendant who

claims that he never even made the statement.

One could also read Crane as standing for the propo-

sition that a defendant must be allowed to offer evidence that

goes to credibility even though that evidence would be

excluded if offered for a different reason, such as a pretrial

issue that may not be relitigated or an issue that is otherwise

irrelevant. Crane instructs that a defendant must have “a

meaningful opportunity to present a complete defense”

including “‘an opportunity to be heard.” Jd. at 690 (citing Jn

re Oliver, 333 U.S. 257, 273 (1948)). Such opportunity

requires that a defendant be allowed to present “competent,

reliable evidence bearing on the credibility of a confession

when such evidence is central to the defendant’s claim of

innocence.” Crane at 690. “[E]xclusion of this kind of

exculpatory evidence deprives a defendant of the basic right

to have the prosecution’s case encounter and ‘survive the

crucible of meaningful adversarial testing.’” Jd. at 690-91

(quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).

Even under this broader reading of Crane Petitioner is not

entitled to relief.

Here, the claim that the confession was fabricated

was central to Petitioner’s claim of innocence, and the evi-

dence of Freeman’s acquittal and Petitioner’s knowledge

thereof was central to Petitioner’s claim that he had no

motive to make such a statement, but rather had motive not

to make it. For this case to fall within the teaching of Crane,

there must be “competent, reliable evidence” that Petitioner

knew of Freeman’s acquittal. The only evidence is Peti-

tioner's statement at the suppression hearing that he knew of

App. 84

the acquittal, as well as Petitioner and his wife’s blurting out

at trial that Petitioner knew that Freeman had been acquitted.

Such uncorroborated self-serving statements by Petitioner are

inherently biased and therefore cannot be said to be compe-

tent and reliable. The statement by Petitioner’s wife would

seem to be based upon a hearsay statement by Petitioner."°

Petitioner’s argument also rests on the assumption

that because he knew of Freeman’s acquittal, he would have

had no motive to confess. This is a faulty assumption. Peo-

ple confess to crimes for a variety of reasons, even when it is

not in their interest to do so. Here, there are several obvious

reasons Petitioner could have confessed and tried to obtain

leniency by implicating Johnson in the murder. First, as the

Commonwealth argued at trial, he knew that Baker had

implicated him in the murder and was willing to testify at his

trial. Second, if he knew of Freeman’s acquittal, he could be

concerned that Freeman, his alleged co-conspirator, could

make a statement or testify against Petitioner, implicating

him in the murder. Freeman could not be retried, even if he

implicated himself while implicating Petitioner. Therefore,

what may have been the strongest reason for Freeman to

refrain from making a statement about Petitioner’s

involvement no longer existed. Third, because Freeman had

been acquitted, there was a higher likelihood that one of the

other suspects in the case, of which Petitioner was one, was

the murderer. Any of these motives, alone or in combination,

could suffice for Petitioner to confess while attempting to

19

The common law evidence rule in effect in Pennsylvania

at the time of the trial did not favor the admission of self-serving

statements on behalf of the person making them. Emmons v.

McCreery, 307 Pa. 62, 66-67 (Pa. 1932); Brown, Pennsylvania

Evidence at 132, VI Admissions.

App. 85

deflect the blame for the murder from himself as much as

possible.

Petitioner’s argument also rests on the deduction that

he would be acquitted because Freeman had been acquitted

on the same evidence. This reasoning is also faulty because

there were separate trials and juries, and it also assumes that

all of the evidence against each defendant would be the same,

and it ignores credibility issues. There is no reason to believe

that Petitioner and Freeman were equally credible, or even

that each jury would find that the respective defendant was

more credible than Baker. Further, the assumption requires

that Baker’s statement or testimony implicate both Petitioner

and Freeman equally, and that the juries understand that to be

the case. Baker’s statement and testimony at the two trials

show that it was Petitioner who did most, if not all, of the

talking to Johnson, with Baker present, about the murder of

Caldwell. Further, Baker testified and stated that Johnson

either ordered Petitioner to commit the murder or alerted him

to the opportunity to commit the murder. Johnson did not

direct these comments at Freeman. Rather, it was Petitioner

who ordered Freeman to accompany him. With such facts, it

would be incorrect to deduce that because Freeman was

acquitted, Petitioner would also be acquitted.

Finally, we must note that the reason for which Peti-

tioner sought to introduce the evidence was very close to the

reason for which it may not be offered. Evidence of an

alleged co-conspirator’s acquittal may not be introduced to

persuade the jury that the defendant should likewise be

acquitted. See, e.g., United States v. Sanders, 95 F.3d 449,

454 (6th Cir. 1996); United States v. Fernandez-Roque, 703

F.2d 808, 813 (Sth Cir. 1983); Commonwealth v. Meredith,

425 A.2d 334, 337 (Pa. 1981); Commonwealth v. Quaranta,

145 A. 89, 91-92 (Pa. 1928); cf United States v. Gambino,

App. 86

818 F. Supp. 536, 539 (E.D.N.Y. 1993), aff'd 59 F.3d 353,

367 (2d Cir. 1995) (evidence of defendant’s own prior

acquiital is not admissible for purpose of demonstrating

government’s motive to fabricate prosecution, based on

alleged frustration with its inability to obtain conviction).

Petitioner wanted to tell the jury that he himself made that

deduction, and therefore he never would have made the state-

ment. Such an offer of proof is tantamount to offering the

acquittal for the purpose of enticing the jury to make the

same deduction that the Petitioner allegedly made. Although

Judge Sabo could have instructed the jury to limit the use of

the evidence of the acquittal, it is doubtful that any instruc-

tion would have effectively prevented the jury from using it

in just the way defendant claims he did. Therefore, under

facts such as these where the impermissible use is inextrica-

bly intertwined with the use for which the defendant proffers

the evidence, and where the impermissible use is highly

likely to confuse the issues and prejudice the jury, the evi-

dence may properly be excluded. Even for the limited reason

for which the evidence was proffered, it posed an undue risk

of causing confusion of the issues and prejudice against the

Commonwealth.

Therefore, we must conclude that the exclusion of

this evidence did not violate Crane. Thus the decision of the

Pennsylvania Supreme Court that the exclusion of this evi-

dence did not deny Petitioner due process of law was neither

contrary to, nor an unreasonable application of, clearly estab-

lished federal law as determined by the Supreme Court in

Crane, and therefore its decision that counsel was not inef-

fective was not contrary to, or and unreasonable application

of, Strickland v. Washington. Further, because in the process

of reviewing the reasonableness of this decision we were

forced to consider the merits of the underlying claim

App. 87

ourselves, and concluded that Crane was not violated, we

need not consider this isswe further.

2. Claim [I-Improper Closing Arguments By The

Prosecutor

In his second claim, Petitioner argues that he is enti-

tled to habeas corpus relief because the prosecutor’s closing

arguments were “egregiously improper and violated petition-

er’s rights to due process and a fair trial.” (Pet. Mem. L. at

19.) Specifically, Petitioner makes four separate subclaims

in support of his larger claim, objecting to various points in

the prosecutor’s closing argument that he feels deprived him

of his rights. Petitioner alleges that:

1) The prosecutor claimed that Petitioner’s alleged

co-conspirator had been convicted, when in fact

he had been found not guilty;

2) The prosecutor repeatedly stated his personal

belief that Petitioner was guilty;

3) The prosecutor repeatedly stated his personal

belief that Petitioner was lying; and

4) The prosecutor stated his belief that Petitioner

was a threat to witness Shirley Baker, and she

was afraid for her life, although there was no

evidence in the record to support either assertion.

Before considering the claims themselves, we must

determine whether they are properly before us. See 28

U.S.C. §2254(c). Petitioner’s first three subclaims were

presented both on the merits and as part of claims of ineffec-

tive assistance of counsel to the PCRA hearing court in the

App. 88

Supplemental Amended Petition under PCRA and then to the

Pennsylvania Supreme Court on PCRA review. Petitioner’s

fourth subclaim, that the prosecutor improperly stated his

belief that Baker feared Petitioner would kill her, was pre-

sented on direct appeal. The Commonwealth argues that this

claim was not fairly presented to the Pennsylvania Supreme

Court because it was presented in a substantially different

form. The Commonwealth offers no explanation for this

argument, and the record discloses that the Pennsylvania

Supreme Court both heard and ruled on an argument substan-

tially similar to the one presented to this Court. Holloway I,

572 A.2d at 639. We therefore find that all four of these

subclaims were fairly presented to the PCRA hearing court

and the Pennsylvania Supreme Court on their merits, and the

first three were also fairly presented as underlying claims of

trial counsel’s ineffectiveness for failing to object to the

prosecutor’s statements. Consequently, we also find that all

of these subclaims, and the ineffectiveness claims as to the

first three, are exhausted. See O'Sullivan v. Boerckel, 526

U.S. 838, 844 (1999); Doctor v. Walters, 96 F.3d 675, 678

(3d Cir. 1996).

The Supreme Court of Pennsylvania treated the first

three subclaims as waived on their merits both for the failure

of trial counsel to contemporaneously object to the prosecu-

tor’s alleged misconduct, and for the failure of appellate

counsel to raise them on direct appeal as required by 42 Pa.

Cons. Stat. §§ 9543(a)(3) and 9544(b). Commonwealth v.

Holloway (Holloway II), 739 A.2d 1039, 1044-45 (Pa. 1999).

Because Petitioner alleged ineffectiveness of all prior coun-

sel, however, the court adjudicated these subclaims from the

standpoint of ineffectiveness claims. See id. We will assume

that both of these bases for the waiver are independent and

adequate state grounds barring our review of the underlying

substantive claims, and that each were properly applied by

App. 89

the Pennsylvania Supreme Court as to these sub

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