                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            ______________

                                  No. 12-9003
                                ______________

                                ROBERT LARK

                                        v.

      SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
          THE DISTRICT ATTORNEY PHILADELPHIA COUNTY;
      THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,

                                                          Appellants
                               _______________

                   Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                               (No. 2-01-cv-01252)
                    District Judge: Honorable John R. Padova
                                 ______________

                            Argued: April 17, 2014
     Before: McKEE, Chief Judge, SCIRICA and GREENBERG, Circuit Judges

                              (Filed: May 6, 2014)


Thomas W. Dolgenos, Esq. (ARGUED)
Ronald Eisenberg, Esq.
Edward F. McCann, Jr., Esq.
R. Seth Williams, Esq.
Three South Penn Square
Philadelphia, PA 19107-3499

           Counsel for Appellants

Leigh M. Skipper, Esq.
Stuart Lev, Esq. (ARGUED)
Federal Community Defender Office
Eastern District of Pennsylvania
Suite 545 West – The Curtis Center
Philadelphia, PA 19106

              Counsel for Appellee

                                     ______________

                                        OPINION
                                     ______________

MCKEE, Chief Judge

       The Commonwealth of Pennsylvania appeals the order of the District Court

granting Robert Lark’s Petition for a writ of habeas corpus. This is the second time this

case has come before us. We previously held that the District Court had not proceeded to

the third step of the inquiry required under Batson v. Kentucky, 476 U.S. 79 (1986), and

remanded for the court to conduct that analysis. See Lark v. Sec’y Pa. Dep’t of Corr., 645

F.3d 596, 628 (3d Cir. 2011) (“Lark I”). On remand, the District Court concluded that

Lark had established by a preponderance of the evidence that the Commonwealth had

struck five Black potential jurors because of their race. We must now determine if the

District Court’s findings were clearly erroneous. Holloway v. Horn, 355 F.3d 707, 713

(3d Cir. 2004); Lark I, 645 F.3d at 606.

       We have explained that, “relief must be granted under Batson when even one

black person is excluded [from the jury] for racially motivated reasons.” Holloway, 355

F.3d at 720 (internal quotation marks omitted). We have carefully considered the

findings the District Court made on remand pursuant to its Third Step Batson analysis.

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We cannot conclude that the court’s conclusion that at least one of the Commonwealth’s

peremptory strikes was racially motivated is clearly erroneous.

      Accordingly, we will affirm the conditional grant of Lark’s Petition for a writ of

habeas corpus.




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