                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2005

Brinson v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 02-4466




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                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                Nos. 02-4466 and 02-4479
                     ____________

                   CURTIS BRINSON,

                             Appellant

                            v.

DONALD VAUGHN; THE DISTRICT ATTORNEY OF THE
   COUNTY OF PHILADELPHIA; THE ATTORNEY
 GENERAL OF THE STATE OF PENNSYLVANIA

                 ____________________

  ON APPEAL FROM THE UNITED STATES DISTRICT
                   COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA

      District Court Judge: Honorable John P. Fullam
                  (D.C. No. 00-cv-6115)
                 ____________________

               Argued: September 14, 2004

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

             (Opinion Filed: February 8, 2005)

                        NORRIS E. GELMAN (Argued)
                        The Public Ledger Building
                        620 Chestnut Street, Suite 940
                        Philadelphia, PA 19106

                                 Counsel for Appellant
                            ROBERT M . FALIN (Argued)
                            Assistant District Attorney
                            1421 Arch Street
                            Philadelphia, PA 19102-1582

                                      Counsel for Appellees

                    ____________________

                   OPINION OF THE COURT
                    ____________________

ALITO, Circuit Judge:

        This is an appeal from a District Court order denying Curtis
Brinson’s petition for a writ of habeas corpus. Brinson was
convicted in state court in Pennsylvania on one count of murder in
the first degree and a lesser offense and was sentenced to
imprisonment for life. The District Court held – and we agree –
that his federal habeas petition was timely because it was proper to
apply the doctrine of equitable tolling to the period of time
following the District Court’s erroneous dismissal of Brinson’s
prior habeas petition. Contrary to the District Court, however, we
hold that Brinson made out a prima facie case of a violation of
Batson v. Kentucky, 476 U.S. 79 (1986), and we therefore reverse
the order of the District Court and remand for an evidentiary
hearing.

                                 I.

        In April 1985, Arthur Johnson was shot and killed in the
bathroom of a Philadelphia nightclub. Brinson, an African
American, was arrested for the crime, and the selection of the jury
for his trial began on April 28, 1986, two days before the Supreme
Court of the United States announced its decision in Batson.

       In Batson, the Supreme Court set out a three-step procedure
for determining whether a prosecution violated the Equal
Protection Clause by peremptorily striking potential jurors based on



                                 2
race.1 First, the party asserting the claim must make out a prima
facie case. See 476 U.S. at 96. In order to do this, the party must
point to facts that “raise an inference” that a challenged strike was
based on an impermissible ground. Id. Second, if a prima facie
case is established, the party who exercised the challenge must
“come forward with a neutral explanation.” Id. Third, if a neutral
explanation is offered, the trial judge must make a finding as to
whether the contested peremptory was based on an impermissible
ground. Id. at 98.

        On May 2, 1986 – after Brinson’s jury had been selected but
before the trial began – his attorney objected that the prosecutor
had violated Batson by striking prospective African American
jurors based on race.2 Brinson’s attorney stated that the prosecutor,
Jack McMahon, had “exercised fourteen peremptory challenges,
thirteen for blacks.” He also asserted that McMahon “seldom, if
ever, questioned blacks prior to exercising his peremptory
challenges.” In response, McMahon did not deny using 13
peremptories against blacks, but he stated that he did not remember
the race of each juror whom he had peremptorily challenged, that
he recalled striking both African Americans and whites, that he had
not used all of his allotted strikes, and that three African Americans
had been selected for the jury. At this point, neither the trial judge


       1
         Although Batson concerned prosecution strikes based on
race, the decision was later extended to strikes by criminal
defendants, Georgia v. McCollum, 505 U.S. 42 (1992), and parties
in civil cases, Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614 (1991), and to strikes based on clasifications other than race.
See, e.g., J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994)
(gender).
       2
        The voir dire took place before Batson was handed down,
and Brinson’s attorney did not object when the prosecutor made the
peremptory challenges. As a result, the transcript does not reveal
the race of the individuals whom the prosecution struck. The state
courts did not hold, and the Commonwealth does not contend in
this appeal, that Brinson procedurally defaulted his Batson claim
by failing to raise an objection at the time when the challenges
were exercised.

                                  3
nor the attorneys had actually read Batson, and the trial judge
announced that he would not rule on the defense objection prior to
trial but that the issue could be raised in a post-trial motion. The
case was then tried, and Brinson was found guilty of murder in the
first degree and possession of an instrument of crime. He was
sentenced to life imprisonment.

       Brinson again raised the Batson issue in a post-trial motion.
At the hearing on the motion, Brinson’s attorney repeated his
previous assertions about McM ahon’s use of peremptory
challenges, and McMahon again disclaimed any memory of how
many strikes he had used against African Americans, stating that
“[defense counsel] says I used thirteen strikes on Blacks and one
on [a] White. I see nothing in the record to indicate that. I do not
have any recollection of that whatsoever. I am sure the Court
does.” To this, the trial judge responded: “Yes, I do.” McMahon
then stated: “Be that as it may, I know I accepted the Black that the
Defense struck.”

       The trial judge orally rejected Brinson’s Batson argument on
the ground that Batson had “not yet been accepted by this
Commonwealth.” The trial judge appears to have believed that he
was still bound by pre-Batson Pennsylvania court decisions
rejecting arguments similar to the one that the Supreme Court of
the United States accepted in Batson.

       The trial judge died before he could write an opinion
addressing Brinson’s post-trial motions, and the matter was
reassigned to another judge. In his opinion on these motions, the
new judge wrote the following with respect to Brinson’s Batson
argument:

       In the instant case the record indicates there were at
       least three black persons on the jury and the selection
       of the jury was completed with the prosecutor still
       having six [peremptory] strikes . . . . Thus, the
       record does not show any deliberate, purposeful
       exclusion of black persons from the jury in this case.
       Unfortunately, the trial judge died before writing his
       Opinion, and, therefore, we are without the benefit

                                 4
       of his personal observations as he conducted the voir
       dire. However, we have, as was stated [in Batson3 ],
       confidence, based upon the experience, character and
       reputation of [the trial judge], that he would not
       allow such a purposeful rejection of black persons
       solely by [peremptory] challenges as to deny this
       Defendant a fair jury trial.

       On direct appeal, Brinson again raised the Batson issue, but
the Superior Court affirmed Brinson’s conviction. Invoking
Commonwealth v. McKendrick, 514 A.2d 144 (1986), the Superior
Court rejected the Batson claim on the ground that “where the
victim, the perpetrator and witnesses are black, a prima facie case
of racial discrimination is not present under Batson . . . .” The
Superior Court continued:

       In addition, the record establishes that three of the
       jurors in this case were black, the defense struck
       blacks, and the Commonwealth had six peremptory
       challenges left following the close of jury selection
       . . . . Accordingly, appellant has failed to establish
       that the prosecutor exercised peremptory challenges
       to remove black venire members, as required by
       [Batson]. An evidentiary hearing on this issue is not
       required.

Brinson raised his Batson claim in a petition for allocatur to the
Pennsylvania Supreme Court, but the petition was denied.

        In September 1993, Brinson filed a petition in state court
under the Pennsylvania Post-Conviction Relief Act (PCRA). That
petition claimed that trial counsel had been ineffective because,
among other things, he had allegedly failed to object to the
prosecution’s systematic exclusion of African Americans from the
jury. 4 Brinson’s petition was denied without a hearing in January


       3
           See 476 U.S. at 97.
       4
        The ineffective assistance of counsel claim identified six
failures by defense counsel: (1) failing to object to the systematic

                                 5
1995. A timely appeal was taken, but the Superior Court affirmed
the dismissal for two reasons: first, that the Batson claim had been
litigated on direct appeal and therefore could not be raised under
the PCRA, see 42 Pa. Con. Stat. Ann. § 95544(a)(3), and, second,
that all of Brinson’s claims were waived because Brinson allegedly
failed to include a trial transcript as part of the official record. The
Pennsylvania Supreme Court again denied allocatur.

        Following the dismissal of his first PCRA petition, Brinson
turned to the federal courts and filed a timely pro se petition for a
writ of habeas corpus in which he presented eight grounds for
relief, including his Batson claim.5 While this petition was
pending, a videotape entitled “Jury Selection with Jack McMahon”
was released to the public. This tape depicted a training session in
which McMahon advocated the use of peremptory challenges
against African Americans. After the tape was released, Brinson
filed a motion requesting that the District Court take judicial notice
of the new evidence.



exclusion of African-Americans from the jury; (2) failing to
preserve for appeal the denial of petitioner’s motion for severance;
(3) failing to challenge and preserve for appeal the issue of whether
the prosecutor violated the rules of discovery; (4) failing to
challenge and preserve for appeal the propriety of the prosecutor’s
questions regarding petitioner’s post-arrest silence; (5) failing to
challenge the admission of hearsay testimony; and (6) failing to
challenge the prosecutor’s reference to petitioner’s post-arrest
silence during summation.
       5
         The additional grounds for relief in this petition were: (1)
the state courts incorrectly concluded that some of his claims were
waived; (2) trial counsel was ineffective in failing to move for
severance of his trial from that of his co-defendant; (3) the
Commonwealth failed to provide complete discovery; (4) the
prosecutor violated due process by questioning him about post-
arrest silence; (5) trial counsel was ineffective in failing to object
to hearsay testimony; (6) co-defendant’s girlfriend was improperly
permitted to testify; and (7) the prosecutor made improper
statements during his closing arguments.

                                   6
        The Magistrate Judge to whom the federal habeas petition
was assigned for a report recommended that the petition be
dismissed without prejudice on the ground that the Batson claim,
as bolstered by the McMahon tape, was unexhausted and that the
petition therefore contained both exhausted and unexhausted
claims. The Magistrate Judge noted that the Batson issue had been
litigated in state court on direct appeal and that the PCRA generally
precludes re-litigation of claims, but the Magistrate Judge observed
that the PCRA’s one-year filing deadline contains an exception for
claims predicated on facts that were previously unknown to the
petitioner and that could not have been discovered through the
exercise of due diligence. See 42 Pa. Cons. Stat. Ann. §
9545(b)(1)(ii). The District Court adopted this recommendation
and dismissed the petition without prejudice on September 22,
1997.

        Unfortunately, the District Court did not note that, by the
time of its decision, the PCRA time limit for filing a claim based
on newly discovered evidence – 60 days from the discovery of the
evidence (see 42 Pa. Cons. Stat. Ann. § 9545(b)(2)) – had already
passed. Moreover, in order to proceed with a new PCRA petition
raising his Batson claim, Brinson felt that he was required to
comply with the so-called “Spence rule,” see Commonwealth v.
Spence, 627 A.2d 1176 (Pa. 1993), and thus to identify the race of
“the veniremen who had been removed by the prosecution, the race
of all the jurors who served, [and] the race of jurors acceptable to
the Commonwealth who had been stricken by the defense.” Id. at
1182-83.6 With the assistance of a law professor, Brinson spent 10
months attempting to compile these statistics. Brinson eventually
filed his second PCRA action on July 30, 1998, but the PCRA
court dismissed the petition as untimely, and the Superior Court
affirmed.

        On December 4, 2000, Brinson returned to federal court and
filed a second habeas petition in which he raised the same claims



       6
       We have held that the Spence rule is inconsistent with
Batson. See Holloway v. Horn, 355 F.3d 707, 728-29 (3d Cir.
2004).

                                 7
presented in his first petition. The Magistrate Judge recommended
that the petition be dismissed as untimely, but the District Court did
not adopt this recommendation, ruling that the running of the
statute of limitations should be equitably tolled for the time period
following the dismissal of the timely, first petition in September of
1997. The District Court reached this conclusion for two reasons.
First, the Court stated that it had erred in dismissing Brinson’s first,
timely petition. The Court explained:

       The Batson issue had actually been presented to the
       state courts on direct appeal and in the first PCRA
       application. My conclusion that considerations of
       comity would best be served by permitting the state
       courts an opportunity to reconsider the issue in light
       of the recent disclosure of the McMahon tapes
       turned out to be unduly generous to the
       Commonwealth; petitioner’s right to seek federal
       habeas relief should not be lost entirely, merely
       because of this Court’s excessive deference to the
       state tribunals.

Second, the District Court stated that, even if Brinson had not
exhausted his Batson claim on direct appeal, “it would have been
preferable to stay, rather than dismiss, the first federal petition.”

       The District Court returned the case to the Magistrate Judge
for a recommendation on the merits of the Batson claim, and the
Magistrate Judge concluded, in an opinion adopted by the District
Court, that Brinson had failed to establish a prima facie case under
Batson. The Magistrate Judge opined that the record did not
support a finding that McMahon had in fact used 13 of his 14
peremptory strikes against African Americans and that the
McMahon tape, though “troubling,” did not establish that
McMahon had used impermissible tactics during Brinson’s trial.

       Brinson then took this appeal, claiming that the District
Court erred in denying his Batson claim and in dismissing his
additional claims sub silentio. The respondents (hereinafter “the
Commonwealth”) counter that the District Court should not have
equitably tolled the statute of limitations but that, in any event,

                                   8
Brinson’s Batson claim was properly rejected on the merits.

                                 II.

        We first consider the question whether, as the District Court
held, it was proper to toll the statute of limitations for the period
from the dismissal of Brinson’s first federal habeas petition until
the filing of his current petition. It is settled that the one-year
statute of limitations for filing a federal habeas claim under 28
U.S.C. § 2254 is subject to equitable tolling, see Miller v. New
Jersey State Dept. Of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998),
but that the doctrine should be invoked “sparingly.” Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 95 (1990). We have said that
equitable tolling is proper when the party in question “has in some
extraordinary way been prevented from asserting his or her rights.”
Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003). One such
potentially extraordinary situation is where a court has misled a
party regarding the steps that the party needs to take to preserve a
claim. See, e.g., Baldwin County Welcome Center v. Brown, 466
U.S. 147, 151 (1984) (referring to situation in which “the court has
led the plaintiff to believe that she has done everything required of
her”); Hallgren v. U.S. Dept. of Energy, 331 F.3d 588, 590 (8th
Cir. 2003); Lambert v. United States, 44 F.3d 296, 299 (10th Cir.
1995); Rys v. U.S. Postal Serv., 886 F.2d 443, 447 (1st Cir. 1989).
In this case, the District Court held that equitable tolling was
justified on this ground.

        We have never decided what standard of appellate review
should govern when a District Court applies the doctrine of
equitable tolling in a habeas case, and the circuits are divided on
the issue, with some applying de novo review, some using an
abuse-of-discretion standard, and some employing different
standards in different circumstances. See Neverson v. Farquarson,
366 F.3d 32, 42 n.11 (1st Cir. 2004); Rouse v. Lee, 339 F.3d 238,
248 n.7 (4th Cir. 2003) (collecting cases). On balance, we are
inclined to believe that where, as here, the relevant facts are not
disputed, a District Court’s decision on the question whether a case
is sufficiently “extraordinary” to justify equitable tolling should be
reviewed de novo.



                                  9
        Three factors point in this direction. First, a District Court
does not have any comparative advantage in deciding whether
particular circumstances are extraordinary enough to warrant the
application of the doctrine. Second, reversal of a District Court’s
ruling on this issue will not lead to a retrial or any other
comparably burdensome proceedings. Third, de novo review leads
to greater uniformity in the application of the doctrine and better
serves the goal of ensuring that the doctrine is indeed used
“sparingly” and is not employed to upset the strong concern for
finality embodied in 28 U.S.C. § 2254.

       In the present case, however, it is not necessary for us to
resolve this question, because we would sustain the District Court’s
decision on the issue of equitable tolling under any of the standards
used by other courts of appeals. We conclude that the District
Court’s mistaken dismissal of Brinson’s first petition prevented
Brinson in a sufficiently extraordinary way from asserting his
rights under the federal habeas statute. As the District Court
ultimately recognized, Brinson had fully exhausted his Batson
claim on direct appeal. It was therefore error for the District Court
to dismiss his first federal habeas petition on the ground that this
claim was not exhausted. In dismissing that petition, the District
Court reasoned that Brinson’s request for judicial notice of the
McMahon tape transformed his Batson claim into one that differed
from the claim raised on direct appeal, but this reasoning was
flawed.

        First, it is questionable whether Brinson’s reliance on the
McMahon tape fundamentally altered the previously exhausted
claim because the tape merely confirmed the factual predicate of
Brinson’s Batson claim without changing its legal basis. See
Vasquez v. Hillery, 474 U.S. 254, 258 (1986); Stevens v. Del. Corr.
Ctr., 295 F.3d 361, 369 (3d Cir. 2002); Landano v. Rafferty, 897
F.2d 661, 673 (3d Cir. 1990). Second, as we explain in part III of
this opinion, without the tape, Brinson had a meritorious claim that
his trial attorney established a prima facie case under Batson and
that the state courts violated Batson by failing to move on to the
second and third steps of the Batson inquiry. Under these
circumstances, the District Court, at a minimum, should have given
Brinson the option of going forward with the precise claim that was

                                 10
advanced on direct appeal. 7 See Rose v. Lundy, 455 U.S. 509, 510
(1982) (when petition is “mixed,” petitioner must be given “choice
of returning to state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted claims
to the district court”). Instead, the District Court relegated Brinson
to another round of state court litigation that was bound to fail
because the 60-day period for raising a claim founded on newly
discovered evidence had already passed.

        The Commonwealth contends that Brinson did not act with
the requisite “reasonable diligence” because he was allegedly
dilatory in filing his second PCRA petition. The Commonwealth
first faults Brinson because, when the McMahon tape was released,
he did not file his second PCRA petition within 60 days thereafter
but instead elected to proceed with his first federal habeas petition.
The Commonwealth also argues that Brinson did not exhibit
“reasonable diligence” because he did not file his second PCRA
petition within 30 or 60 days after the District Court’s dismissal of
the first federal petition. The Commonwealth takes the figure of
30 days from our decision in Crews v. Horn, 360 F.3d 146 (3d Cir.
2004), in which we held that, where a District Court stays a mixed
petition so that the petitioner can exhaust unexhausted claims, the
petitioner must file in the state court within 30 days after the entry
of the stay. The Commonwealth takes the figure of 60 days from
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), in which the
Pennsylvania Supreme Court held that, when a ground for filing a
second PCRA petition (such as the discovery of new evidence)
arises while a previous PCRA action is still pending, the second
petition is timely if it is filed within 60 days after the final
resolution of the previous PCRA action.

       Whatever other flaws these arguments may have, they all
fail for the simple reason that Brinson, having already fully
exhausted his Batson claim, had no obligation to file in state court



       7
         It is unresolved whether additional claims presented in the
first petition were unexhausted, but if they were, Brinson should
have been given the choice of proceeding with the exhausted
Batson claim and any other exhausted claims.

                                 11
at all. Consequently, he cannot be faulted for failing to file such
a petition within any of the time periods suggested by the
Commonwealth. We thus hold that the District Court did not err in
equitably tolling the statute of limitations.

                                 III.

                                  A.

         We now consider the merits of Brinson’s Batson claim.
Because this claim was “adjudicated on the merits” in state court,
the standards of review set out in 28 U.S.C. § 2254(d) apply. We
must thus decide whether the state courts’ “adjudication of the
claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).

        A state court adjudication is “contrary to” Supreme Court
precedent if it results from the application of “a rule that
contradicts the governing law set forth” by the Supreme Court or
is inconsistent with a Supreme Court decision in a case involving
“materially indistinguishable” facts. Williams v. Taylor, 529 U.S.
362, 405-06 (2000). “A state court decision fails the ‘unreasonable
application’ prong . . . ‘if the court identifies the correct governing
rule from the Supreme Court's cases but unreasonably applies it to
the facts of the particular case or if the state court either
unreasonably extends a legal principle from the Supreme Court's
precedent to a new context where it should not apply or
unreasonably refuses to extend the principle to a new context
where it should apply.’” Rico v. Leftridge-Byrd, 340 F.3d 178, 181
(3d Cir. 2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d
Cir. 2002)).

                                  B.

        In the present case, the explanations given by the state trial
and appellate courts were all “contrary to” Batson, or at least
represented unreasonable application of that precedent. First, the
trial judge’s statement that Batson had “not yet been accepted by

                                  12
[the] Commonwealth” requires no comment.

        Second, contrary to the post-trial opinion and the opinion of
the Superior Court, a prosecutor may violate Batson even if the
prosecutor passes up the opportunity to strike some African
American jurors.8 Batson was “designed to ensure that a State does
not use peremptory challenges to remove any black juror because
of his race.” 476 U.S. at 99 n.22 (emphasis added). Thus, a
prosecutor’s decision to refrain from discriminating against some
African American jurors does not cure discrimination against
others.

        Third, the opinion on the post-trial motion was plainly
incorrect in suggesting that the trial judge must have found that the
prosecutor had not discriminated in the use of peremptories and in
deferring to that supposed finding. The trial judge never made any
findings about the prosecutor’s reasons for his strikes, and the trial
judge did not follow the three-step process outlined in Batson. The
trial judge did not decide whether Brinson’s attorney had pointed
to facts that established a prima facie case; the trial judge did not
call upon the prosecutor to state his reasons for the contested
strikes; and, as noted, the trial judge made no findings as to
whether the prosecutor had followed a strategy of discrimination.

       Fourth, the Superior Court was clearly wrong in holding that
“where the victim, the perpetrator and witnesses are black, a prima
facie case of racial discrimination is not present under Batson.”
Batson held that a prima facie case is established when “all
relevant circumstances” give rise to “the necessary inference of
purposeful discrimination.” 476 U.S. at 96. Batson is very clear



       8
        As noted, the post-trial opinion rejected Brinson’s Batson
claim because, among other things, “there were three black persons
on the jury and the selection of the jury was completed with the
prosecutor still having six [peremptory] strikes.” Similarly, the
Superior Court rejected the Batson claim in part because “there
were at least three black persons on the jury and the selection of the
jury was completed with the prosecutor still having six
[peremptory] strikes.”

                                 13
that such an inference may be created by a variety of different
circumstances. See id. at 96-97. The Court wrote:

       For example, a “pattern” of strikes against black
       jurors included in the particular venire might give
       rise to an inference of discrimination. Similarly, the
       prosecutor’s questions and statements during voir
       dire examination and in exercising his challenges
       may support or refute an inference of discriminatory
       purpose. These examples are merely illustrative.

Id. at 97 (emphasis added). To be sure, the race of a victim, the
witnesses, and the defendant may be relevant because these facts
may have a bearing on a prosecutor’s motivation to use racially
based strikes in a particular case, see United States v. Clemons, 843
F.2d 741, 747 (3d Cir.), cert. denied, 488 U.S. 835 (1988), but the
rigid formula invoked by the Superior Court cannot be reconciled
with Batson.

        Finally, the Superior Court’s reliance on the fact the “the
defense struck blacks” was misplaced. Suppose that the defense
dismisses a particular African American juror for a permissible
non-racial ground and that the prosecution then strikes other
African American jurors based on their race. The legitimate
defense strike would not open the door for illegitimate prosecution
strikes. Indeed, even if the defense itself violated equal protection
by striking a potential juror based on race, this would not justify
further constitutional violations by the prosecution. On the
contrary, both the defense and prosecution strikes would be
illegitimate. In sum, the various reasons given by the state courts
for rejecting Brinson’s Batson claim will not bear analysis.

                                C.

       The District Court, as noted, held that Brinson’s attorney did
not point to facts that made out a prima facie case. We must
disagree. We hold that any decision to this effect by the state
courts would represent an unreasonable application of Batson.

       1. The District Court concluded that the state court record

                                 14
does not support Brinson’s allegation that the prosecutor used 13
of his 14 peremptories against African Americans. In our view,
however, the state court record compels such a finding.

         As noted, Brinson’s attorney first made this allegation
shortly after jury selection was completed, and McMahon’s
response was telling. McMahon did not deny that he had used 13
of 14 strikes against African Americans. Nor did he deny that he
had used all but one of his strikes against African Americans. Nor
did he deny that he had used most of his strikes against African
Americans. Nor did he say that, while unable to recall the exact
figures, he remembered that his pattern of strikes was not anything
like that alleged by the defense. Instead, he merely stated: “I don’t
know how many blacks or whites I struck. I know I struck both,
that is a fact.” This was a statement that McMahon could truthfully
make so long as he did not recall the precise statistics – 13 of 14
strikes used against African Americans – that the defense alleged.
If McMahon thought that the pattern might have been slightly
different – say, 14 of 15 or 12 of 14 – M cMahon could assert
without fear of sanction from the trial judge that he did not know
“how many blacks or whites [he] struck.”

        McMahon’s comments – and those of the trial judge – at the
post-trial proceeding were also revealing. When the trial judge
announced that he was not going to rule on the Batson objection
before trial but would return to the issue, if necessary, after the
trial, McMahon was put on notice regarding the significance of the
defense allegation. By the time of the post-trial hearing, McMahon
had had time to digest Batson and to attempt to reconstruct the jury
selection process, but McMahon again declined to contest the
defense allegation. At the post-trial hearing, defense counsel
repeated his charge that McMahon had used 13 of 14 strikes
against African Americans and added: “I know Your Honor has
notes with respect to this.” McMahon then stated: “I do not have
any recollection of that whatsoever. I am sure the Court does.”
The trial judge responded: “Yes, I do.” McMahon then stated: “Be
that as it may . . . .”

      In context, McMahon’s responses were tantamount to an
admission that his pattern of strikes was at least similar to that

                                 15
alleged by the defense. There is simply no other plausible
explanation for his vague responses on two separate occasions.
The trial judge’s comments are also suggestive. If the judge’s
notes or recollection differed markedly from the facts claimed by
the defense, it seems most unlikely that he would have failed to
note that point on the record. For all these reasons, we conclude
that the state court record compels the conclusion that the
prosecution’s peremptory challenges were exercised in accordance
with the pattern alleged by the defense or a very similar pattern.

       2. The pattern of strikes alleged by the defense is alone
sufficient to establish a prima facie case under the circumstances
present here. In Batson, as noted, the Supreme Court stated that “a
‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.” 476 U.S
at 97. The stark pattern here qualifies. Such a pattern, of course,
does not necessarily establish racial discrimination, but particularly
in the absence of any circumstance (such as a venire composed
almost entirely of African Americans) that might provide an
innocent explanation, such a pattern is more than sufficient to
require a trial court to proceed to step two of the Batson procedure.
See Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004) (finding
prima facie case established when prosecutor used 11 of 12 strikes
against African Americans).

       This conclusion is not undermined by the fact that other
factors suggestive of possible racial discrimination on the part of
the prosecution are not present in the record of this case. In
Clemons, 843 F.2d at 748, we noted that, in addition to a
suspicious pattern of strikes, other factors that may be important in
determining whether a prima facie case has been made out include
an attorney’s questions and statements during the selection process,
the nature of the crime, and the race of the defendant and the
victim. Here, we are not aware of any suspicious questions or
statements made by the prosecution during the jury selection
process, and it does not appear that the crime was racially charged.
But the question whether a prima facie case has been established
must be judged based on all relevant circumstances; no rigid test
need be satisfied; and in some cases, a prima facie case may be
made out based on a single factor. This is such a case.

                                 16
                                 IV.

       We hold that the state courts’ rejection of Brinson’s Batson
claim without proceeding to the second step of the Batson analysis
cannot be sustained under 28 U.S.C. § 2254(d)(1). We therefore
reverse the order of the District Court and remand. On remand, the
Commonwealth should be given the opportunity to provide
legitimate reasons for any strikes against African Americans. If it
is unable to provide such explanations, Brinson will be entitled to
habeas relief.     If the Commonwealth is able to provide
nondiscriminatory reasons for the strikes, then the District Court
will be required to make findings as to whether the strikes were
based on race.9




       9
         Unless the District Court determines that Brinson is entitled
to relief on his Batson claim, the District Court on remand must
also address the other claims set out in Brinson’s habeas petition.


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