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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 976

## Text

( 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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0891%3A2. Public record. Not legal advice.