                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2004

Hardcastle v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9006




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Recommended Citation
"Hardcastle v. Horn" (2004). 2004 Decisions. Paper 661.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/661


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PRECEDENTIAL                               Thomas W. Dolgenos (Argued)
   UNITED STATES COURT OF                  Office of the District Attorney
          APPEALS                          1421 Arch Street
    FOR THE THIRD CIRCUIT                  Philadelphia, PA 19102
            ____________
                                                  Attorney for Appellants
             No: 01-9006
             ___________

      DONALD HARDCASTLE                    Robert B. Dunham (Argued)
                                           Defender Association of Philadelphia
                    v.                     Federal Capital Habeas Corpus Unit
                                           The Curtis Center, Suite 545 West
 MARTIN HORN, COMMISSIONER,                Independence Square West
PENNSYLVANIA DEPARTMENT OF                 Philadelphia, PA 19106
         CORRECTIONS;
       GEORGE R. WHITE,                           Attorney for Appellee
SUPERINTENDENT OF THE STATE
  CORRECTIONAL INSTITUTION
 AT PITTSBURGH; AND JOSEPH P.
        MAZURKIEWICZ,
SUPERINTENDENT OF THE STATE                                  OPINION
CORRECTIONAL INSTITUTION AT
          ROCKVIEW,
                                           ROTH, Circuit Judge:
                    Appellants
              ___________
          _________________
                                                   In 1982, Donald Hardcastle was
     Appeal from the United States
                                           charged by the Philadelphia District
              District Court
                                           Attorney’s Office with murder, arson, and
for the Eastern District of Pennsylvania
                                           burglary. He was tried before a jury in the
      (D.C. Civil No. 98-cv-03028)
                                           Court of Common Pleas, convicted on all
   District Judge: Honorable John R.
                                           counts, and sentenced to death. In both
                 Padova
                                           his direct appeal and state collateral
                                           review proceedings, Hardcastle asserted,
                                           inter alia, that the assistant district attorney
       Argued on May 20, 2003
                                           who conducted the jury selection at his
                                           trial exercised her peremptory strikes in a
  Before: SCIRICA, Chief Judge,
                                           racially discriminatory manner, thus
NYGAARD and ROTH, Circuit Judges
                                           violating the constitutional principle
                                           recognized by the Supreme Court in
         (Filed May 14, 2004)
Batson v. Kentucky, 476 U.S. 79 (1986),            110 1 (Pa. 1988) ( dir e c t ap p e al
and made applicable to Hardcastle’s then-          proceedings) (Ha rdcas tle I);
pending direct appeal by Griffith v.               Commonwealth v. Hardcastle, 701 A.2d
Kentucky, 479 U.S. 314 (1987). The                 541 (Pa. 1998) (appeal of post-conviction
Pennsylvania Supreme Court twice                   relief proceedings) (Hardcastle II);
rejected Hardcastle’s Batson claim and             Hardcastle v. Horn, No. 98-CV-3028,
affirmed his conviction.                           2001 WL 722781 (E.D. Pa. June 27, 2001)
                                                   (federal habeas corpus proceedings)
       Hardcastle then filed a petition for
                                                   (Hardcastle III). They are not in dispute.
a writ of habeas corpus with the U.S.
District Court.       The District Court                  On May 23, 1982, the bodies of
concluded that the Pennsylvania Supreme            Joseph Gregg and Ernestine Dennis were
Court’s ruling was both contrary to and an         found in Gregg’s Philadelphia home. Both
unreasonable application of Batson,                had received in excess of thirty stab
granted Hardcastle’s petition, and ordered         wounds and Gregg’s home had been set on
a new trial. For the reasons set forth             fire. Several neighbors indicated that they
below, we hold that the Pennsylvania               had seen Hardcastle near Gregg’s home
Supreme Court’s rejection of Hardcastle’s          around the time of the murders. An arrest
claim on the record before it was indeed an        warrant was issued and Hardcastle
objectively unreasonable application of            surrendered to the police on May 25. He
B a tson.     Ho we ver, be caus e the             was subsequently charged with burglary,
Commonwealth of Pennsylvania had                   two counts of arson, and two counts of
requested, and been denied, a chance to            murder.
present evidence in support of its
                                                            Hardcastle is an African-American.
peremptory strikes of African-Americans
                                                   During the course of jury selection at his
from the venire, it is entitled to a hearing
                                                   trial, the prosecutor used her peremptory
to present that evidence.         We will,
                                                   strikes, of which she had a total of twenty,
therefore, remand this matter to the
                                                   to remove twelve of the fourteen African-
District Court to hold such a hearing and
                                                   American members of the venire. The jury
to then reexamine the application of
                                                   ultimately empaneled to hear the case
Batson to Hardcastle’s claim.
                                                   contained only one African-American.
I. Factual Background and Procedural               Hardcastle’s trial counsel did not object to
               History                             t h e C o m mo n we alth ’ s p e r em p t o ry
                                                   challenges during the five-day voir dire,
The following material facts are drawn
                                                   and the trial court therefore did not require
from the opinions issued in this case by the
                                                   the prosecutor to state the bases for her
Pennsylvania Supreme Court and the
                                                   strikes on the record. However, following
United States District Court for the Eastern
                                                   voir dire, Hardcastle’s counsel moved for
Dis t r ic t of P enn sylvan ia.        See
                                                   a mistrial on the grounds that the
Commonwealth v. Hardcastle, 546 A.2d
                                                   prosecutor’s use of the peremptory

                                               2
challenges violated both the state and                    After trial, Hardcastle was
federal constitutions. Applying the then-         convicted of two counts of first degree
governing standard articulated in Swain v.        murder, two counts of arson, and one
Alabama, 380 U.S. 202 (1965), the trial           count of burglary. Post-trial motions were
court denied this motion. The trial court         filed, arguing, inter alia, that the
similarly denied the prosecutor’s request         prosecutor exercised her peremptory
for permission to state her reasons for the       strikes in a discriminatory manner, thus
challenged strikes on the record.1                violating Hardcastle’s constitutional rights.
                                                  A three-judge en banc panel of the Court
                                                  of Common Pleas was convened to hear
  1                                               the post-trial motions. At this hearing,
    The following exchange occurred in
                                                  counsel for H ardcastle repeatedly
connection with the trial court’s denial of
                                                  requested an evidentiary hearing on the
Hardcastle’s motion for a mistrial
                                                  discriminatory strikes.       In reply, the
following voir dire:
                                                  Assistant District Attorney stated that, in
                                                  view of the fact that the trial had occurred
       The Court:[Defense
                                                  six months earlier, she could not offer
       Counsel], I’m not going to
                                                  reasons for her strikes of black jurors and
       argue the point. There’s no
                                                  that it was no longer possible to
       need to. I’m going to deny
                                                  reconstruct the voir dire. An evidentiary
       your motion. Your record
                                                  hearing was not granted but the panel, by
       is correct, and we now
                                                  a two to one vote, granted Hardcastle a
       proceed. Is there any other
                                                  new trial on the jury selection issue.
       motion?
                                                          On appeal, the Pennsylvania
       [Prosecutor]:May I put                     Superior Court reversed the grant of a new
       something on the record                    trial and affirmed the conviction, holding
       with regard to this issue?                 that Hardcastle failed to make the showing
                                                  required by the then-governing standard
       The Court:No.                              established in Swain. The Pennsylvania
                                                  Supreme Court initially granted allocatur
       [Prosecutor]:Not in                        but then dismissed the appeal as
       defense.                                   improvidently granted.       On remand,
                                                  Hardcastle was sentenced to death for the
       The Court:No.                              murders of Gregg and Dennis, to 2 ½ to 5
                                                  years for arson, and to 2 ½ to 5 years for
       [Prosecutor]:Okay.                         burglary.

       The Court:Now that gets rid
       of the problem.


                                              3
       Following sentencing, Hardcastle                     Commonwealth’s fourteen
again appealed to the Pennsylvania                          peremptory challenges to
Supreme Court. By the time his case was                     determine whether appellant
heard by that court in November 1987, the                   has made out a prima facie
United States Supreme Court had issued                      case of improper use.
its decision in Batson, thereby lessening
the evidentiary burden imposed on
defendants in Hardcastle’s position. As              Hardcastle I, 546 A.2d at 1104 (citation
noted by the Pennsylvania Supreme Court,             and footnote omitted).
this change in controlling precedent
                                                            However, rather than remanding the
complicated its task:
                                                     case to the trial court for an evidentiary
      The case before us presents                    hearing, the Pennsylvania Supreme Court
      a difficult problem for                        combed through the record itself in an
      review. Since the Supreme                      effort to determine whether race-neutral
      Court’s decision in Batson                     bases existed for the challenged strikes.
      p o s t - d at e s a p p e l l a n t ’ s       After conducting this analysis, it identified
      judgment of sentence, the                      the following as potential bases for the
      defense did not object to the                  dismissal of Venirepersons 1 through 10:2
      prosecutor’s use of
      peremptory challenges at the
                                                       2
      time of voir dire, the                            For ease of reference, the first ten
      prosecution did not rebut the                  African-Americans struck from the
      objection, and the trial court                 venire (for whom the Pennsylvania
      did not rule on the issue.                     Supreme Court proffered relatively
      D e f e n s e c o u n s e l d id ,             specific race-neutral justifications) will
      however, preserve the issue                    be referred to throughout this Opinion as
      by making a motion for a                       “Venirepersons 1 through 10.” The last
      mistrial, subsequent to voir                   two African-Americans struck from the
      dire and prior to trial, based                 venire (for whom the Pennsylvania
      on t h e p r o se c utor’s                     Supreme Court proffered only general
      impermissible use of the                       race-neutral justifications) will be
      challenges.         Because the                referred to as “Venirepersons 11 and 12.”
      i s s u e w a s p r e s e r v ed
      appellant is entitled to the                           Additionally, we note the
      protections granted by                         discussion by the District Court and the
      Batson. Therefore, we must                     parties regarding the fact that one of the
      make a post hoc evaluation                     first ten venirepersons discussed by the
      of the record, examining                       Pennsylvania Supreme Court may not
      e a c h            o f         t h e           have been an African-American, and the
                                                     possibility that the Pennsylvania

                                                 4
(1) the first had a sister that had been raped       had six children, one of whom , a son, had
several years before Hardcastle’s trial; (2)         been convicted of rape; (9) the ninth was a
the second admitted during voir dire that            twenty-year-old unemployed high school
she had heard about the case through                 graduate; and (10) the tenth was a thirty-
media reports; (3) the third was questioned          five-year-old single bartender who initially
in detail by both sides about her work in            indicated that he would do whatever he
caring for delinquent children, her                  thought was right, but later stated that he
education, and her family history; the court         would follow the judge’s instructions.
noted that this extensive questioning “gave          Hardcastle I, 546 A.2d at 1104-05.
the Commonw ealth attorney ample
                                                            In turning next to Venirepersons 11
opportunity to observe responses and
                                                     and 12, the court concluded these strikes
demeanor”; (4) the fourth had a sister and
                                                     were justified by more general “race-
nephew who had been arrested for drug-
                                                     neutral” explanations, finding that “the
related crimes, as well as a father who had
                                                     Commonwealth had the opportunity to
been a victim in a separate crime; (5) the
                                                     observe the witnesses and their response to
fifth “initially testified that she would not
                                                     questioning prior to exercising the
follow the judge’s instructions if she felt
                                                     peremptory challenge” and that “although
that something else was better law,” but
                                                     the Commonwealth had ample challenges
later stated after further questioning that
                                                     remaining, there were no challenges
she would follow the judge’s instructions;
                                                     offered to two black jurors, one of whom
(6) the sixth had attended her brother’s
                                                     ironically was challenge d by the
trial, in which he was convicted on robbery
                                                     defendant.” Id. at 1105. Based on the
charges; (7) the seventh was a case-worker
                                                     foregoing, the Pennsylvania Supreme
for the Commonwealth and had a brother
                                                     Court concluded that Hardcastle failed to
who had been a victim of violent crime;
                                                     establish a prima facie case of improper
(8) the eighth was a registered nurse who
                                                     use of peremptory challenges under
                                                     Batson. Id. The court similarly rejected
                                                     the remaining claims raised by Hardcastle
Supreme Court may therefore have                     on direct appeal and affirmed both his
offered explanations for only the first              conviction and sentence.
nine African-Americans struck from the
                                                            When again presented with the
venire. See Hardcastle III, 2001 WL
                                                     Batson claim in considering Hardcastle’s
722781 at *14-*15. We take no position
                                                     appeal of the denial of his Post Conviction
with respect to this issue, as it in no way
                                                     Relief Act (PCRA) claim, see 42 Pa. C.S.
affects the outcome of this appeal.
                                                     § 9541 et seq., the Pennsylvania Supreme
However, for ease of reference, we will
                                                     Court refused to exempt Hardcastle from
assume that all of the potential jurors
                                                     the requirement that claims raised in
identified and discussed by the
                                                     PCRA proceedings must not have been
Pennsylvania Supreme Court were in fact
                                                     previously litigated. The court therefore
African-Americans.

                                                 5
rejected his claim that intervening               jurisdiction to review the District Court’s
decisions of the United States Supreme            final order granting Hardcastle’s petition
Court required it to reach a different            pursuant to 28 U.S.C. §§ 1291 and 2253.
conclusion on collateral review than it had       The Commonwealth is not required to
on direct review: “if finality means              obtain a certificate of appealability prior to
anything it must mean that our decision on        seeking review of a District Court’s
the merits in this case, as to which              decision to grant a petition for a writ of
certiorari was denied by the United States        habeas corpus. Cristin v. Brennan, 281
Supreme Court, cannot be affected by              F.3d 404, 409 (3d Cir. 2002) (citing Fed.
decisions in other cases decided three and        R. App. P. 22(b)(3)).
four years later.” Id.
                                                           III. Standard of Review
       Following exhaustion of his state
                                                           Because the District Court “d[id]
remedies, Hardcastle sought a writ of
                                                  not hold an evidentiary hearing and engage
habeas corpus from the United States
                                                  in independent fact-finding, but rather
District Court for the Eastern District of
                                                  limit[ed] the habeas evidence to that found
Pennsylvania. Although the petition raised
                                                  in the state court record,” our review of its
unexhausted claims, both sides conceded
                                                  final judgment is plenary. Scarbrough v.
that procedural bars prevented Hardcastle
                                                  Johnson, 300 F.3d 302, 305 (3d Cir. 2002).
from raising his unexhausted claims in
state court. Accordingly, the District                     Hardcastle’s petition for a writ of
Court held that Hardcastle’s petition was         habeas corpus was filed after April 1996
not a mixed petition and thus was not             and thus is subject to the Antiterrorism and
subject to dismissal. Hardcastle III, 2001        Effective Death Penalty Act of 1996, 28
WL 722781 at *3. Following a thorough             U.S.C. § 2241 et seq. (AEDPA). Gattis v.
analysis of the merits, the District Court        Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
further held that the Pennsylvania Supreme        “Under AEDPA, when a federal court
Court’s resolution of Hardcastle’s claim          reviews a state court’s ruling on federal
was both contrary to and an unreasonable          law, or its application of federal law to a
application of Batson. It therefore granted       particular set of facts, the state court’s
the writ and, after concluding that an            decision must stand unless it is ‘contrary
evidentiary hearing would not be helpful,         to, or an unreasonable application of,
ordered a new trial. Id. at *19. This             clearly established Federal law, as
appeal followed.                                  determined by the Supreme Court of the
                                                  United States.’” Lam v. Kelchner, 304
            II. Jurisdiction
                                                  F.3d 256, 263 (3d Cir. 2002) (quoting 28
       The District Court exercised               U.S.C. § 2254(d)(1)). “When a federal
jurisdiction over Hardcastle’s petition for       court reviews a state court’s findings of
a writ of habeas corpus pursuant to 28            fact, its decision must stand unless ‘it was
U.S.C. §§ 2241 and 2254. We have                  based on an unreasonable determination of


                                              6
the facts in light of the evidence presented         Supreme Co urt rece ntly clarified,
in a State court proceeding.’” Id. (quoting          “obje ctively unreasonable” is not
28 U.S.C. § 2254(d)(2)).                             synonymous with “clear error,” as “[t]he
                                                     gloss of clear error fails to give proper
        It is by now well-settled that Batson
                                                     deference to state courts by conflating
claims constitute mixed questions of law
                                                     error (even clear e rror) w ith
and fact for purposes of federal habeas
                                                     unreasonableness.” Id. at 1175.
corpus review. See Riley v. Taylor, 277
F.3d 261, 277-78 (3d Cir. 2001) (en banc).                   Thus, “[i]t is not enough that a
The governing standard for such                      federal habeas court, in its ‘independent
determinations is provided by the Supreme            review of the legal question’ is left with a
Court’s decision in Williams v. Taylor,              ‘firm conviction’ that the state court was
529 U.S. 362 (2000). Under Williams, “a              ‘erroneous.’” Id. (citation omitted).
state court decision is ‘contrary to [the            “Rather, that application must be
Supreme Court’s] clearly established                 objectively unreasonable.” Id. Stated a
precedent if the state court applies a rule          different way, a “‘federal habeas court
that contradicts the governing law set forth         should not grant the petition unless the
in [the Court’s] cases’ or ‘if the state court       state court decision, evaluated objectively
confronts a set of facts that are materially         and on the merits, resulted in an outcome
indistinguishable from a decision of [the            that cannot reasonably be justified under
Court] and nevertheless arrives at a result          existing Supreme Court precedent.’” Werts
different from [its] precedent.’” Lockyer v.         v. Vaughn, 228 F.3d 178, 197 (3d Cir.
Andrade, — U.S. —, 123 S. Ct. 1166,                  2000) (quoting Mateo, 171 F.3d at 890).
1173 (2003) (quoting Williams, 529 U.S.
at 405-06).
                                                                  IV. Discussion
        State court determinations of mixed
                                                             We begin by noting our agreement
questions of law and fact constitute an
                                                     with the Pennsylvania Supreme Court’s
“unreasonable application” of clearly
                                                     observation that the retroactive application
established federal law when “‘the state
                                                     of Batson causes unique evidentiary
court identifies the correct governing legal
                                                     problems for reviewing courts, as the
principle from [the Supreme Court’s]
                                                     three-step Batson inquiry with which we
decisions but unreasonably applies that
                                                     are all now familiar did not occur during
principle to the facts of the prisoner’s
                                                     voir dire in these cases. Thus, we are
case.’” Id. at 1174 (quoting Williams, 529
                                                     aware of the difficulties faced by both the
U.S. at 413). Under the “unreasonable
                                                     Pennsylvania Supreme Court and the
application” clause, “[t]he state court’s
                                                     District Court in reviewing the record in
application of clearly established law must
                                                     this case.
be objectively unreasonable”; a decision
that is merely “incorrect or erroneous” is                 Nevertheless, we cannot conclude,
insufficient to justify relief. Id. As the           even under the deferential standard of

                                                 7
review contained in AEDPA, that the                A. Background
Pennsylvania Supreme Court’s resolution
                                                           The Supreme Court’s decision in
of Hardcastle’s claim amounted to an
                                                   Batson has been interpreted as establishing
objectively reasonable application of
                                                   a three-step inquiry for determining the
Batson. Specifically, even accepting the
                                                   constitutionality of challenged peremptory
Pennsylvania Supreme Court’s proffered
                                                   strikes. See Riley, 277 F.3d at 275.3 First,
justifications for the challenged strikes at
                                                   “‘a defendant may establish a prima facie
face value, the court still (1) failed to
                                                   case of purposeful discrimination in
identify adequate bases for the striking of
                                                   selection of the petit jury solely on
Venirepersons 11 and 12, and thus should
                                                   evidence concerning the prosecutor’s
have terminated its analysis and found the
                                                   exercise of peremptory challenges at the
existence of a Batson violation at step two
                                                   defendant’s trial.” Id. (quoting Batson,
of the inquiry; and (2) failed to conduct a
                                                   476 U.S. at 96). “Once the defendant
full and complete step three analysis with
                                                   makes a prima facie showing of racial
respect to the challenged strikes of
                                                   discrimination (step one), the prosecution
Venirepersons 1-10.
                                                   must articulate a race-neutral explanation
        However, exercising plenary review         for its use of peremptory challenges (step
over the final judgment of the District            two). If it does so, the trial court must
Court, we similarly reject its decision to         determine whether the defendant has
grant habeas corpus relief on the basis of         established purposeful discrimination (step
the current evidentiary record. Instead,           three).” Id. Throughout this process,
based on the facts of this case, in which          “[t]he ultimate burden of persuasion
the Commonwealth offered to state the              regarding racial motivation rests with, and
bases for its strikes immediately following        does not shift from, the defendant.” Id.
voir dire and in which both sides have, at
various times, sought a hearing, we
                                                     3
conclude that the District Court erred in              As a preliminary matter, we note that,
granting habeas corpus relief without first        although § 2254 permits habeas corpus
providing the Commonwealth with the                relief only in situations in which a state
opportunity to present evidence in defense         court’s decision “is contrary to, or an
of the challenged peremptory strikes. The          unreasonable application of, clearly
Commonwealth’s prior observations of the           established federal law, as determined by
difficulties it will have in recalling the         the Supreme Court of the United States,”
reasons for its peremptory strikes should          our analysis of Supreme Court precedent
not now preclude it from making that               may be amplified by decisions of inferior
effort when it has requested the                   federal courts evaluating reasonableness
opportunity to do so. Remand is therefore          under that Supreme Court precedent.
appropriate.                                       See Matteo v. Superintendent, SCI
                                                   Albion, 171 F.3d 877, 890 (3d Cir. 1999)
                                                   (en banc).

                                               8
Significantly, “[d]eference in a Batson                  prima facie case, evaluated
case must be viewed in the context of the                the evidence and all the
requirement that the state courts engage in              relevant circumstances as
the three-step Batson inquiry” described                 the trial court would
above. Id. at 286.                                       ordinarily do pursuant to
                                                         Batson, and resolved the
        In reviewing this matter, we begin
                                                         ultimate issue by deciding
by noting the incomplete nature of the
                                                         that the Commonwealth had
Pennsylvania Supreme Court’s analysis of
                                                         not used its peremptory
Hardcastle’s Batson claim on direct
                                                         challenges improperly.
appeal. Simply stated, the court conflated
steps one and two of the Batson analysis in
the sense that it identified and then
                                                  Hardcastle II, 701 A.2d at 548. In view of
analyzed potential justifications for the
                                                  this ruling, we will follow the lead of the
challenged strikes — something that
                                                  District Co urt in exam ining th e
should not occur until step two — in its
                                                  Pennsylvania Supreme Court’s decision on
step one analysis of whether Hardcastle
                                                  direct review, see Hardcastle I, as
had successfully established a prima facie
                                                  modified by its opinion on collateral
case. The court then proceeded to step
                                                  review, see Hardcastle II.           Stated
three, only to conclude that Hardcastle had
                                                  alternatively, we will treat Hardcastle I as
failed to establish a prima facie case of
                                                  representing the Pennsylvania Supreme
discrimination, thus indicating that,
                                                  Court’s full three-step analysis of
technically speaking, its analysis never
                                                  Hardcastle’s Batson claim.
proceeded beyond step one.
                                                          We further note that we will read
       The Pennsylvania Supreme Court
                                                  the Pennsylvania Supreme C ourt’s
apparently recognized this error when, in
                                                  acknowledgment in Hardcastle II of the
its subsequent d ecision regard ing
                                                  existence of a prima facie case in
Hardcastle’s appeal of the PCRA court’s
                                                  Hardcastle I as a concession that
decision, it acknowledged as follows:
                                                  Hardcastle had satisfied his burden at step
       N o t w it h s t a n d i n g the           one. In view of the fact that twelve of the
       language in our opinion [on                prosecutor’s peremptory strikes were
       direct appeal] to the effect               exercised against African-American
       that [Hardcastle] had not                  members of the venire, we have no doubt
       made out a prima facie case,               that this concession was appropriate. See
       the extensive analysis of the              Rico v. Leftridge-Byrd, 340 F.3d 178, 185
       record for race-ne utral                   (3d Cir. 2003) (noting that “[o]ne way to
       reasons indicates that our                 establish a prima facie case at step one is
       post hoc analysis actually                 to show a pattern of peremptory challenges
       presumed the existence of a                of jurors of a particular race”) (citing


                                              9
Batson, 476 U.S. at 96-97). Even in the              defendant.”   Hardcastle I, 546 A.2d at
absence of such a concession, however,               1105.4
the Pennsylvania S upreme Court’s
decision to proceed to steps two and three
moots the issue of whether Hardcastle                  4
                                                         We note the existence of some
made a sufficient showing at step one. See
                                                     uncertainty in the case law with respect
Hernandez v. New York, 500 U.S. 352,
                                                     to who may properly articulate the
359 (1991) (holding that “[o]nce a
                                                     Commonwealth’s justifications at this
prosecutor has offered a race-neutral
                                                     stage of the analysis. Here, this
explanation for the peremptory challenges
                                                     uncertainty raises the question whether,
and the trial court has ruled on the ultimate
                                                     and to what extent, we may consider the
question of intentional discrimination, the
                                                     race-neutral explanations offered by the
preliminary issue of whether the defendant
                                                     Pennsylvania Supreme Court on behalf
had made a prima facie showing becomes
                                                     of the prosecutor. Some cases may be
moot.”).      Thus, we will focus our
                                                     read to imply that, because the
discussion on steps two and three.
                                                     prosecutor’s subjective intent is the
B. Step Two                                          principal focus of a Batson challenge, he
                                                     or she must personally articulate the
        As detailed in the District Court’s
                                                     race-neutral basis required at step two.
opinion and summarized above, the
                                                     See, e.g., Riley, 277 F.3d at 282 (holding
Pennsylvania Suprem e C our t, in
                                                     that “[t]he inquiry required by Batson
considering Hardcastle’s direct appeal,
                                                     must be focused on the distinctions
examined the record in an effort to identify
                                                     actually offered by the State in the state
race-neutral bases for the tw elve
                                                     court, not on all possible distinctions we
challenged strikes. It articulated what it
                                                     can hypothesize. Apparent or potential
considered to be specific and facially
                                                     reasons do not shed any light on the
credible bases for the striking of
                                                     prosecutor’s intent or state of mind when
Venirepersons 1 through 10. However, it
                                                     making the peremptory challenge”)
was unable to do so with respect to
                                                     (citations omitted). We have previously
Venirepersons 11 and 12 and therefore
                                                     determined, however, that “[w]e are
offered only the following general
                                                     unprepared to hold . . . that the state’s
justifications for these strikes: (1) “the
                                                     burden can never be carried without
Commonwealth had the opportunity to
                                                     direct evidence from the decisionmaking
observe the witnesses and their response to
                                                     prosecutor regarding his or her state of
questioning prior to exercising the
                                                     mind.” See Johnson v. Love, 40 F.3d
peremptory challenge”; and (2) “although
                                                     658, 667 (3d Cir. 1994); Pemberthy v.
the Commonwealth had ample challenges
                                                     Beyer, 19 F.3d 857, 864-65 (3d Cir.
remaining, there were no challenges
                                                     1994) (concluding that state appellate
offered to two black jurors, one of whom
                                                     court properly made factual findings
ironically was challeng ed by the
                                                     regarding Batson inquiry despite the fact

                                                10
       In addressing the question whether             relatively low bar at step two. It therefore
the justifications identified by the                  is rare for a case to be decided at this stage
Pennsylvania Supreme Court for the                    of the analysis. Indeed, “[t]he second step
striking of Venirepersons 11 and 12 are               of [the Batson analysis] does not demand
sufficient to satisfy the Commonwealth’s              an explanation that is persuasive, or even
burden of production, we note that the                plausible.” Purkett v. Elem, 514 U.S. 765,
Supreme Court has purposely set a                     767-68 (1995) (per curiam). Rather, the
                                                      sole issue at step two “is the facial validity
                                                      of the prosecutor’s explanation. Unless a
                                                      discriminatory intent is inherent in the
that there was no state court hearing, and
                                                      prosecutor’s explanation, the reason
that the prosecutor, at that time, had not
                                                      offered will be deemed race neutral.” Id.
advanced anything more than a general
                                                      at 768.
explanation for the challenged strikes);
Jones v. Ryan, 987 F.2d 960, 965-66 &                           Further, the Supreme Court has
n.2 (3d Cir. 1993) (suggesting that state             emphasized the necessity of maintaining
appellate courts may make factual                     the analytical distinction between steps
findings in their review of Batson                    two and three, as step two merely places
claims); Esquivel v. McCotter, 791 F.2d               upon the prosecutor the burden of
350, 351 (5th Cir. 1986) (affirming state             producing an explanation; “[i]t is not until
appellate court’s factual determination               the third step that the persuasiveness of the
regarding Batson claim raised for first               justification becomes relevant – the step in
time on appeal).                                      which the trial court determines whether
                                                      the opponent of the strike has carried his
         However, even assuming                       b u r d e n o f p r o v ing purposefu l
arguendo that it was appropriate in this              discrimination.” Id. At step three,
case for the Pennsylvania Supreme Court
                                                             implausible or fantastic
to sift through the trial record in an effort
                                                             justifications may (and
to identify unstated race-neutral bases for
                                                             probably will) be found to
challenged peremptory strikes, the court
                                                             be pretexts for purposeful
failed to either (1) identify a satisfactory
                                                             discrimination. But to say
step two explanation for the striking of
                                                             that a trial judge may choose
Venirepersons 11 and 12, or (2) conduct
                                                             to disbelieve a silly or
an adequate step three analysis as to any
                                                             superstitious reason at step
of the African-Americans struck from the
                                                             three is quite different from
venire. Thus, even accepting the
                                                             saying that a trial judge
Pennsylvania Supreme Court’s proffered
                                                             must terminate the inquiry at
justifications as facially valid, we are still
                                                             step two when the race-
unable to conclude that its resolution of
                                                             neutral reason is silly or
the matter is an objectively reasonable
                                                             superstitious.     The latter
application of Batson.

                                                 11
              violates the principle               intuition and with the absence of
              that the ultimate                    discriminatory intent. We have repeatedly
              burden of persuasion                 rejected such vague and general claims in
              r e g a r d i n g r a c ia l         the past. See United States v. Casper, 956
              m o t i v a t i o n r e st s         F.2d 416, 418 (3d Cir. 1992) (holding that,
              with, and never shifts               because “[t]he Batson Court stated that
              from, the opponent                   explanations must be ‘clear and reasonably
              of the strike.                       specific,’” “[e]xplanations based on a
                                                   prosecutor’s mere ‘good faith’ or
                                                   ‘intuition’ do not suffice.”) (citations
        The reasons presented at step two,         omitted); United States v. Clemons, 843
however, must be “reasons,” not merely a           F.2d 741, 745 (3d Cir. 1988) (noting that,
denial of discriminatory motive or an              “[a]lthough the reason need not approach
affirmation of good faith. See Id. at 768-         the level justifying a challenge for cause,
69.     “What [Batson] means by a                  the [Batson] Court emphasized that the
‘legitimate reason’ is not a reason that           prosecutor must assert a clear, specific
makes sense, but a reason that does not            reason beyond ‘his intuitive judgment’ or
deny equal protection.” Id.                        ‘his good faith.’”) (quoting Batson, 476
                                                   U.S. at 98 & n.20).
        Under this standard, we need not
conduct at step two an analysis of the                     We reject them again here. Indeed,
purportedly race-neutral explanations              to say, as the Pennsylvania Supreme Court
proffered by the Pennsylvania Supreme              did, that a prosecutor’s step two burden
Court with respect to Venirepersons 1              may be satisfied based solely upon her
through 10. However, the justifications            opportunity to observe the jurors during
for the striking of Venirepersons 11 and 12        voir dire creates an exception which
fail to satisfy even the minimal burden of         threatens to swallow the rule.         As
production required at step two. The               Hardcastle correctly argues, the same
Pennsylvania Supreme Court’s assertion             could be said regarding almost any
that the striking of Venirepersons 11 and          peremptory strike, and the acceptance of
12 was race-neutral simply because the             the explanation p roffe red by the
prosecutor had an opportunity to observe           Pennsylvania Supreme Court for the
them during voir dire is inadequate on its         striking of Venirepersons 11 and 12 would
face. Indeed, “[t]he record contains no            render step two meaningless, as any
evidence whatsoever about any juror’s              prosecutor could bypass it by briefly
demeanor or the prosecutor’s observations          questioning and observing the prospective
or impressions thereof.” Hardcastle III,           juror prior to exercising the strike.
2001 WL 722781 at *13. Thus, this
                                                          Second, the fact that the prosecutor
explanation amounts to nothing more than
                                                   had enough peremptory strikes to remove
a statement that the prosecutor acted on
                                                   the two remaining African-American

                                              12
venirepersons, but chose not to do so,               was not the real reason and determine[]
cannot demonstrate the absence of                    whether the defendant has met his burden
discriminatory intent in the striking of the         of persuasion.” Riley, 277 F.3d at 286
other twelve African-Americans from the              (citation and internal quotations omitted).
venire. See Jones v. Ryan, 987 F.2d 960,             In Riley, we placed particular emphasis on
972-73 (3d Cir. 1993) (rejecting a similar           the state courts’ failure to consider all of
argument and noting that “[w]e doubt the             the evidence before them in determining
significance of including a single black on          whether the justifications offered by the
the panel if, at the same time, the                  prosecutor were pretextual:
government used most of its peremptory
challenges to strike blacks w ith
                                                            The state courts in this case
backgrounds similar to the white jurors
                                                            rejected Riley’s Batson
ultimately selected.”) (quoting Clemons,
                                                            claim without discussing
843 F.2d at 747); see also Clemons, 843
                                                            any of the ample evidence
F.2d at 747 (holding that the striking of “a
                                                            that throws into question the
single black juror could constitute a prima
                                                            explanations offered by the
facie case even when blacks ultimately sit
                                                            prosecutor for striking two
on the panel and even when valid reasons
                                                            of the black jurors and there
exist for striking other blacks.”). Thus,
                                                            is nothing relevant in the
absent further justification for the striking
                                                            record that might otherwise
of Venirepersons 11 and 12, we cannot
                                                            support the state courts’
conclude that the Pennsylvania Supreme
                                                            decisions. Thus, we do not
Court’s decision to proceed to step three in
                                                            know why the state courts
justifying the strikes of Venirepersons 11
                                                            found the           S ta t e ’s
and 12 was an objectively reasonable
                                                            explanation was plausible
application of Batson.
                                                            and credible in light of the
C. Step Three                                               other evidence.         It is
                                                            because of the state courts’
        We further hold that the failure of
                                                            omission of a requirement
the Pennsylvania Supreme Court to
                                                            under the third step of the
conduct an adequate analysis at step three
                                                            Batson inquiry – of an
with respect to the challenged strikes of
                                                            ultimate determination on
Venirepersons 1-10 also precludes a
                                                            the issue of discriminatory
finding that its application of Batson was
                                                            intent based on all the facts
objectively reasonable. Step three requires
                                                            and circumstances – that the
a court conducting a Batson inquiry to
                                                            State’s argument founders.
“address[] and evaluate[] all evidence
introduced by each side (including all               Id. at 287 (italicized emphasis added).
evidence introduced in the first and second
                                                            After close analysis of the record,
steps) that tends to show that race was or

                                                13
we reach the same conclusion here. In so            Although we agree with the District
doing, we note that “a judge considering a          Court’s statement that it will be difficult at
Batson challenge is not required to                 this late date to reconstruct the bases for
comment explicitly on every piece of                the challenged strikes, we cannot agree
evidence in the record.” Id. at 290.                with its conclusion that, under the facts of
However, “some engagement with the                  this case, the Commonwealth is not
evidence considered is necessary as part of         entitled to attempt to do so or that the state
step three of the Batson inquiry,” and this         of the evidentiary record will not be
requires “something more than a terse,              improved as a result thereof. In so
abrupt comment that the prosecutor has              holding, we are persuaded by the fact that,
satisfied Batson.” Id. at 290-91 (citations         despite the prosecutor’s offer to state the
and internal quotations omitted).                   bases for her peremptory strikes on the
                                                    record immediately following voir dire and
        Here, “[t]he Pennsylvania Supreme
                                                    her subsequent request for some form of
Court’s decision does not indicate that the
                                                    hearing, the Commonwealth has never
court engaged in any analysis or
                                                    been provided with either a state or federal
consideration of the credibility of the
                                                    forum in which to present evidence in
potential justifications that it had
                                                    defense of its actions in this case.
proffered. Rather, the court’s decision
reads as if the court accepted the
justifications at face value.” Hardcastle                 We further note that neither the
III, 2001 WL 722781 at *12. Accordingly,            prosecutor’s concession during oral
as in both Jones and Riley, we lack an
adequate step three analysis to which we
may defer. The Commonwealth should be               new trial was cited with approval by this
given the opportunity it requests to                Court in Riley, 277 F.3d at 294 & n.14
demonstrate that its exercise of peremptory         (citing Hardcastle III, 2001 WL 722781
strikes was justified under the Batson third        at *19). Indeed, at oral argument before
step. In addition, Hardcastle should be             us, counsel for Hardcastle cited the Riley
afforded the opportunity to show any                Court’s approving reference to the
weaknesses he may find with the                     granting of a new trial in Hardcastle III
justifications for the strikes.                     as reason to affirm the grant of his writ
                                                    rather than to remand for a Batson
D. Remedy
                                                    hearing. However, it goes without
       Thus, in view of the state of the            saying that the merits of this case were
evidentiary record, we reject Hardcastle’s          not before us in Riley. Having now had
argument in favor of affirmance.5                   the benefit of the parties’ arguments with
                                                    respect to this issue, we conclude that the
                                                    District Court should not have granted
  5
   We note that the District Court’s                relief without first holding an evidentiary
conclusion that Hardcastle is entitled to a         hearing.

                                               14
argument before the en banc Court of                          offered no explanation for
Common Pleas that she could not recall                        excluding one of the six
the precise bases for the challenged strikes                  black venirepersons he had
nor the passage of time mandates a                            struck from the jury, but
contrary result. As we have previously                        simply asserted at a hearing
held:                                                         before a federal magistrate
                                                              that he could not recall his
       [t]here will undoubtedly be
                                                              reasons. It was based on the
       p o s t - co n v i c t i o n r e l i e f
                                                              prosecutor’s assertion that
       proceedings in which the
                                                              he did not know the reason
       state, by reason of death,
                                                              h e s tr u c k a b l ack
       absence, or faded memory,
                                                              venireperson, coupled with
       will be unable to produce a
                                                              the absence of any other
       prosecutor with a specific
                                                              explanation, that this court
       recollection of the reason
                                                              affirmed the order for a new
       for a challenge alleged to
                                                              trial.      We do not read
       violate Batson.              Courts
                                                              Harrison to suggest that a
       frequently are required to
                                                              state cannot be permitted to
       d ra w inferences f rom
                                                              reconstruct the prosecutor’s
       circumstantial evidence
                                                              rationale for excluding a
       r e ga r d i n g a decision-
                                                              juror during a later Batson
       maker’s state of mind,
                                                              hearing when the prosecutor
       however, and we are
                                                              adm its to having no
       unwilling to rule out the
                                                              r e co l l e ct i o n o f h is
       possibility that the state may
                                                              motivations at the time.
       be able to satisfy its step two
       Batson burden by tendering
       circumstantial evidence.
                                                       Johnson, 40 F.3d at 667 n.4 (emphasis
                                                       added).      Our conclusion that such
                                                       difficulties in reconstructing voir dire do
Johnson, 40 F.3d at 667. Indeed, we have
                                                       not foreclose an evidentiary hearing is
expressly rejected the notion that our prior
                                                       further supported by the Supreme Court’s
precedent mandates relief in situations in
                                                       resolution of similar situations.       See
which the prosecutor concedes that he or
                                                       Miller-El v. Cockrell, — U.S. —, 123 S.
she cannot remember the bases for a
                                                       Ct. 1029, 1042-43 (2003) (noting that
challenged strike:
                                                       evidence presented at a Batson hearing
       [Harrison v. Ryan, 909 F.2d                     two years after voir dire “was subject to
       84 (3d Cir. 1990),] is                          the usual risks of imprecision and
       distinguishable . . . because                   distortion from the passage of time,” but
       the prosecutor in that case                     nevertheless concluding that the Court of

                                                  15
Appeals erred in refusing to grant a                  must be given the first opportunity to rule
certificate of appealability); Batson, 476            on the new evidence submitted.
U.S. at 133 n.12 (remanding for a hearing
                                                              As we have previously held, “[w]e
despite the petitioner’s concession that it
                                                      do not have authority under the federal
would be all but impossible to reconstruct
                                                      habeas statutes, 28 U.S.C. § 2241 or §
the prosecutor’s rationale for the
                                                      2254, to remand a habeas corpus petition
challenged strikes) (Burger, C.J.,
                                                      to a state court for an evidentiary hearing.”
dissenting).
                                                      Keller v. Petsock, 853 F.2d 1122, 1129 (3d
        Thus, while the retroactive                   Cir. 1988). Federal district courts, by
application of the Supreme Court’s ruling             contrast, may conduct such hearings. See
in Batson undeniably causes many                      id.6 Moreover, even if we were able to
problems, we do not believe the weight of             remand directly to the state court, neither
this burden should be borne solely by the             this Court nor the Supreme Court has held
Commonwealth. It is difficult in the                  “that the state courts should, after having
context of a pre-Batson trial to fault                foregone the opportunity to hold an
Hardcastle’s counsel for failing to request           evidentiary hearing and resolve the issue,
an evidentiary hearing following voir dire.           be given another opportunity to do so.” Id.
It is equally unfair to require the                   Therefore, to the extent that the
Commonwealth to retry Hardcastle                      Commonwealth asserts in its post-
without first being provided with the                 argument submission that we should grant
opportunity to defend its conduct in the              the writ conditioned upon a hearing in
prior trial. Given the Batson Court’s                 state court, we reject this argument for the
emphasis on the subjective intent of the              same reasons we declined to do so in
prosecutor, we find it difficult to imagine           Keller: “Such a remedy would . . .
a situation in which it would be
appropriate to take the extraordinary step
                                                        6
of granting habeas corpus relief without                  We note that AEDPA “amended the
first providing the state with a hearing at           federal habeas statute in such a way as to
which it could offer evidence in support of           limit the availability of new evidentiary
the challenged strikes if, as in this case, it        hearings on habeas review.” Campbell v.
desires to do so.                                     Vaughn, 209 F.3d 280, 286 (3d Cir.
                                                      2000) (citing 28 U.S.C. § 2254(e)(2)).
       Finally, having concluded that
                                                      However, even post-AEDPA, evidentiary
further proceedings are required, we must
                                                      hearings are permitted where, as here, the
address the parties’ arguments as to the
                                                      “state courts fail[] to resolve the factual
appropriate forum. Although both sides
                                                      issue on which [the petitioner’s] habeas
request a hearing as an alternative remedy,
                                                      petition rests.” Id. In such cases “the
Hardcastle seeks to have the matter
                                                      failure to develop the factual record
handled by the District Court while the
                                                      would not be [the petitioner’s] fault.” Id.
Commonwealth asserts that the state courts
                                                      at 286-87.

                                                 16
contravene the policy underlying the                 Nygaard, J., dissenting.
exhaustion requirement. State courts are
                                                             I agree with most of the analysis
certainly entitled to have the first
                                                     and conclusions reached by the majority in
opportunity to revie w fed eral
                                                     its well-crafted and thorough opinion. I
constitutional challenges to state
                                                     disagree, however, with the remedy. The
convictions. There is no requirement,
                                                     Commonwealth (Appellant) argued before
however, that they be given more than one
                                                     us that “the Pennsylvania court should be
opportunity to adjudicate these claims.”
                                                     allowed to conduct a Batson hearing if any
Id. at 1130 (citation omitted). Here, as in
                                                     is deemed necessary.” (emphasis added).
Keller, Hardcastle “has given the state
                                                       I conclude that a hearing is not only
courts their first opportunity, and they did
                                                     unnecessary, but is unwarranted.
not seize it. Therefore the federal district
court must become the trier of fact.” Id.                  In its opinion, the District Court
(footnote omitted). Thus, we will remand             concluded that:
this matter to the District Court for further
                                                            The proper relief in this case
development of the evidentiary record with
                                                            is a new trial with the
respect to Hardcastle’s Batson claim, and,
                                                            opportunity to retry the
if this claim ultimately fails, for
                                                            petitioner before a properly
consideration of the remaining issues
                                                            selected jury. A new trial is
presented in his habeas petition.
                                                            especia lly appr opria te
                                                            where, as here, the passage
                                                            of time makes a new
              V. Conclusion
                                                            evidentiary hearing on the
                                                            petition impossible. Nearly
                                                            twenty years have passed
       For the foregoing reasons, we will
                                                            since Petitioner’s trial, such
vacate the final judgment of the District
                                                            a length of time that even
Court and remand the matter for further
                                                            Respondents             [the
proceedings consistent with this opinion.
                                                            Commonwealth] admit[s]
                                                            that an evidentiary hearing
                                                            on Petitioner’s Batson claim
                                                            is unlikely to be helpful.7


                                                       7
                                                         Also shortly after the trial and
                                                     conviction, and on appeal to the three-
                                                     judge Common Pleas panel, the
                                                     prosecutor explained that she was unable
                                                     to recall why she struck the African-
                                                     American juror:

                                                17
I find that the District Court’s reasons and        is clear that the prosecutor discriminated
reasoning are compelling and supported by           by striking African-Americans.        The
the record. Hence, and essentially for the          record is devoid of her intent. Moreover,
reasons given by the District Court, I              although the Appellant provides many
respectfully dissent.                               reasons why any particular juror might
                                                    have been struck, it has not proffered any
                                                    evidence of why they were or anything that
        The Appellant argues that we                would indicate a hearing on circumstantial
should remand for a Batson hearing. I               evidence of actual reasons or intent would
believe, however, that the Appellant is             be productive.
judicially estopped from presenting its
                                                           I would affirm the District Court’s
“actual reasons,” given the district
                                                    decision to issue the writ and grant
attorney’s admission during the direct
                                                    Petitioner Hardcastle a new trial.
appeal that she could not remember her
reasons, nor could she reconstruct the
record. Our opinion in Johnson v. Love,
40 F.3d 658 (3d Cir. 1994), raises an
interesting option for remand in certain
cases for a hearing, allowing the state to
attempt to meet its burden through
circumstantial evidence of the prosecutor’s
intent. I do not think that works well here.
We have the entire record before us, and it



       How can I possibly now
       tell you why I challenged
       anybody? I don’t think that
       now, some six months
       after, I can tell you why I
       challenged somebody then.
       I don’t know how we can
       possibly have a hearing as
       to why I challenged a
       particular juror six months
       later.

Similarly, the prosecutor argued that it
was impossible for her to reconstruct the
record at that stage.

                                               18
