Coombs v. DiGuglielmo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
___________

No. 08-1945
___________

WAYNE COOMBS,
Appellant

v.

DAVID DIGUGLIELMO; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEYGENERAL
OF THE STATE OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-04-cv-01841)
District Judge: Honorable Cynthia M Rufe

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 2, 2009

Before: McKEE, Chief Judge, CHAGARES, and
NYGAARD, Circuit Judges

(Opinion filed: July 30, 2010)
Leon A. Williams, I, Esq.
1 st Floor
327 South 13 th Street
Philadelphia PA 19107

Counsel for Appellant

Thomas W. Delgenos, Esq
Molly S. Lorber, Esq.
Office of the District Attorney
Three South Penn Square
Philadelphia PA 19107

Counsel for Appellee

_________

OPINION
_________

McKEE, Chief Judge

Wayne Coombs appeals from the district court’s denial

of the habeas corpus petition he filed pursuant to 28 U.S.C. §§

2241(c)(3) and 2254. He argues that the prosecutor exercised

his peremptory challenges in violation of Batson v. Kentucky,

476 U.S. 79 (1986). For the reasons set forth below, we will

2
remand this matter to the district court for an evidentiary hearing

on Coombs’ Batson challenge.

I. Factual Background

On February 22, 2000, Coombs was arrested for a string

of robberies that took place in Philadelphia from the fall of 1999

into the winter of 2000. The charges stemming from those

robberies were consolidated for a trial which began in

September 2001. At that trial, the majority of the prosecution’s

evidence came from eyewitnesses who identified Coombs as the

armed robber. Coombs’ mother testified on his behalf. Both

Coombs and his mother are Black. Nearly all of the prosecution

witnesses, including the robbery victims and police officers, are

White. The trial ended in a hung jury.

Coombs was re-tried beginning in November 2001. On

the first day of voir dire, the prosecutor raised a “reverse

Batson” challenge because defense counsel struck three White

3
jurors. 1 The prosecutor told the court that, “[i]t happened the

last time, but I didn’t do anything about it. I’m doing something

about it this time.” App. at 106. Defense counsel provided the

following explanation for his peremptory strikes: (1) Juror No.

35 stated that she would be more likely to believe police officers

than another citizen and she had two friends that had been

abducted from the street; (2) Juror No. 8 had two brothers-in-

law who were retired police officers, a couple of her neighbors

were police officers, and she was married to a firefighter; and

(3) Juror No. 21 indicated that “she would have problems . . .

following instructions that the defendant doesn’t have to take

the stand or present evidence, and that it couldn’t be held against

him if he elects to remain silent,” her father-in-law was a retired

1
See Georgia v McCollum, 505 U.S. 42 (1992) (holding
that the Equal Protection Clause forbids a defendant from
exercising peremptory challenges to strike jurors based upon
their race).

4
police sergeant, she stated that she would be inclined to believe

the testimony of a police officer, and she worked at a bank that

had been robbed. App. at 106-09.

Defense counsel also raised a Batson challenge based on

the prosecutor’s use of two peremptory strikes against Black

females. Defense counsel told the court that “the last jury hung

because of a [B]lack female. Today we had two [B]lack females.

Both of them have been stricken for no good reasons.” App. at

110. The court then asked the prosecutor: “Why don’t you just

put your reasons on the record?” Id. The prosecutor initially

responded that defense counsel is “just retaliating for what I

did,” id., but then said that he struck Juror No. 19 because she

“was an eyewitness to a shooting, and her mother was robbed,

she said, a long time ago.” App. at 110-12. He stated that he

struck Juror No. 14 because his brother “was charged with

robbery over fifteen years ago.” Id.

5
 The court denied both motions, stating: “These are what

lawyers do with peremptory challenges. They’re not race-based.

. . . As long as we have peremptory challenges, lawyers are

going to make judgments maybe based on hunches, maybe based

on prior experiences, maybe based on feelings, but they’re not

based on race. Both of you are much too good lawyers to do

something like that.” App. at 112.

At the conclusion of voir dire, defense counsel again

raised the Batson challenge. He noted that the prosecutor used

five of his six peremptory challenges to strike Black venire

persons, and more specifically, that the prosecutor had used four

peremptory strikes against Black females and one against a

Black male. App. at 138. Before the prosecutor could offer a

racially-neutral explanation, as required under Batson, the trial

court stated: “I’m not finding there’s another pattern.” Id. The

prosecutor nevertheless explained that Juror No. 22's cousin had

6
been a witness to a robbery and that Juror No. 4 had a nephew

who had recently been shot, another nephew in jail awaiting gun

charges, and a friend who was a defense attorney.

After the prosecutor concluded, defense counsel

questioned the prosecutor’s use of a peremptory strike to remove

Juror No. 1, a Black male. The prosecutor’s entire explanation

was as follows:

I just didn’t like him, your Honor. I don’t really
have a sound reason. . . . I don’t know, just the
way he was looking at me.
If that’s a reason, it’s justified, but your Honor
found there’s no pattern. I mean, I just didn’t like
him, and he didn’t check off many boxes, but I
went with my hunch. . . .

App. at 140.

The court’s only response was: “Let’s go. Are we ready

to? Do we have the bills?” Id. Defense counsel then inquired:

“Your Honor is going to accept the Commonwealth’s assertions

7
and deny my motion?” The court answered: “Yes.” Id.

The court did not further inquire into his explanation.

The final composition of the jury in Coombs’ second trial

consisted of one Black male, one Black female, and ten White

jurors. The jury convicted Coombs of nine counts of robbery

and two counts of possessing an instrument of crime in violation

of 18 P A. C ONS. S TAT. §§ 3701 and 907, respectively.

At Coombs’ sentencing, defense counsel again raised the

issue of the prosecutor’s peremptory challenges. Counsel first

tried to clarify the record with regard to two of the venire

persons who did not indicate their race on the juror

questionnaire. App. at 148. He asked that the record indicate

that Juror No. 14 was a Black female and that Juror No. 9, who

was chosen for the jury, was a White male. When the court

asked the prosecutor if he would stipulate to the race of the two

jurors, the prosecutor responded, “I don’t recall [Juror No. 14],

8
but I do recall the [Juror No. 9] as being a [W]hite male.” App.

at 149.

Defense counsel then tried to introduce evidence of a

conversation that he alleged had taken place between himself

and the prosecutor. He argued that it was relevant to the

prosecutor’s exercise of peremptory strikes. However, before he

could elaborate, the prosecutor interjected: “I object to this

because I don’t think this information should be before the

Court. It’s complete hearsay.” App. at 150. Defense counsel

argued that the conversation was relevant to establishing the

discriminatory motive behind the prosecutor’s peremptory

strikes. However, the court refused to allow defense counsel to

proceed because in its view, the conversation was “not relevant

to anything.” App. at 152. Defense counsel’s multiple attempts

to explain the conversation’s relevancy were cut off by the

court’s continued insistence that “[i]t’s irrelevant.” App. at 151-

9
52. The court did, however, tell defense counsel that he could

“submit an affidavit,” adding that it “[did not] want to get into

that.” Id.

Defense counsel later submitted an affidavit, which stated

that he had a conversation with the prosecutor after the first trial

but before the second trial. App. at 156-57. The prosecutor

purportedly said to him that a juror from the first trial had

advised him that there had been only one holdout juror, and that

this juror was a Black female. Defense counsel also explained

that he had an additional conversation with the prosecutor after

the second trial concluded but before sentencing. Defense

counsel stated that the prosecutor said to him that the Black

female juror from the first trial “had voted not guilty because the

defendant was [B]lack and she was [B]lack.” App. at 156.

Defense counsel believed that those statements were relevant to

determining if the prosecutor’s experience during the first trial

10
caused him to try to exclude Black jurors from the second jury.

The trial court denied Coombs’ post-trial motions and

sentenced him to 59-to-165 years in prison. Coombs appealed

to the Pennsylvania Superior Court alleging, inter alia, that the

prosecutor had discriminated against Black venire persons

during jury selection in violation of Batson. The Superior Court

rejected Coombs’ claims without reaching the merits of the

Batson claims. Commonwealth v. Coombs, 832 A.2d 534 (table)

(Pa. Super. Ct. 2003), No. 954 E.D. App. 2002, slip op. at 5 (Pa.

Super. Ct. July 21, 2003). The court ruled that those claims had

not been raised as required by Pennsylvania’s “Spence rule.” 2

2
The Spence rule requires an appellant raising a Batson
challenge “to make a record identifying the race of
venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but
stricken by the defense, and the racial composition of the final
jury selected.” Commonwealth v. Holloway, 739 A.2d 1039,
1045 (Pa. 1999) (internal quotations omitted).

11
It held that, “where an appellant fails to make a record for

review of a Batson challenge [as required by the Spence rule],

this Court is unable to consider a claim that the trial court failed

to find a prima facie case under Batson.” Id. (internal

quotations omitted). Thereafter, the Pennsylvania Supreme

Court denied discretionary review, Commonwealth v. Coombs,

841 A.2d 528 (Pa. 2003), and Coombs filed the habeas petition

that is now before us.

In his habeas petition, Coombs again alleges that the

prosecution discriminated against Black venire persons in

violation of Batson.3 The petition was referred to a Magistrate

3
After Coombs filed his habeas petition, the
Commonwealth filed an unopposed motion to stay the
proceedings pending the outcome of the petition for certiorari
that had been filed in Holloway v. Horn, 355 F.3d 707 (3d
Cir. 2004), as both parties believed that case could effect the
resolution of Coombs’ habeas petition. The Supreme Court
subsequently denied certiorari in that case. See Beard v.
Holloway, 543 U.S. 976 (2004).

12
Judge who issued a Report and Recommendation (“R&R”)

recommending that the petition be dismissed. The district court

adopted the R&R and denied Coombs’ habeas petition. The

district court ruled that Coombs’ Batson claim was subject to the

deferential standard of review set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), and that

Coombs had failed to demonstrate that the state courts’ decision

was contrary to, or involved an unreasonable application of,

Batson, as required for relief under AEDPA. This appeal

followed.

II. Jurisdiction and Standard of Review

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

1291 and 2253(a). Our review of the district court’s legal

conclusions is plenary. Holloway v. Horn, 355 F.3d 707, 713

(3d Cir. 2004). Where a district court “‘did not hold an

evidentiary hearing and engage in independent fact-finding, but

13
rather limited the habeas evidence to that found in the state court

record,’ our review of its final judgment is plenary.” Hardcastle

v. Horn, 368 F.3d 246, 254 (3d Cir. 2004) (quoting Scarbrough

v. Johnson, 300 F.3d 302, 305 (3d Cir. 2002)).

III. Discussion

A. Deference Under the AEDPA

Under the AEDPA, “a state prisoner’s habeas petition

must be denied as to any claim that was ‘adjudicated on the

merits in State court proceedings’ unless the adjudication was

‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States,’ or was ‘based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.’” Holloway, 355 F.3d at 718

(quoting 28 U.S.C. § 2254(d)(1) & (2)). “We have interpreted

§ 2254(d)’s ‘adjudication on the merits’ language to mean that

14
‘when, although properly preserved by the defendant, the state

court has not reached the merits of a claim thereafter presented

to a federal habeas court, the deferential standards provided by

AEDPA . . . do not apply.’” Id. (quoting Appel v. Horn, 250

F.3d 203, 210 (3d Cir. 2001) (additional citations omitted).

In Holloway, we concluded that because the state court

found it “‘impossible to determine’ whether Holloway’s

underlying Batson claim ‘has arguable merit,’ it plainly did not

render an ‘adjudication on the merits’ of that claim for purposes

of applying the AEDPA standards.” Id. at 719 (applying the

pre-AEDPA standard where the Pennsylvania Supreme Court

dismissed a PCRA claim that alleged a Batson violation because

the claim did not meet Spence’s procedural requirements).4

4
In Holloway, we also concluded that even if we applied
the AEDPA deferential standard, applying the Spence rule to
bar a Batson violation was “‘contrary to’ and an
‘unreasonable application of’ the Batson standard.” 355 F.3d
at 729. See also Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir.

15
Coombs’ claim here was treated the same as Holloway’s was.

In both cases, the state appellate court refused to address the

merits of the Batson claim because the defendant had not

satisfied the requirements of Pennsylvania’s Spence rule.

Inasmuch as the state courts did not reach the merits of

Coombs’ Batson challenge, our review of that claim is not

subject to AEDPA’s deferential standard, and we therefore

afford de novo review. Nevertheless, we still presume that the

state courts’ conclusions of fact are correct unless, inter alia,

they are not “fairly supported by the record.” 28 U.S.C.

§2254(d)(8); Holloway, 355 F.3d at 719.

B. The Appropriate Batson Inquiry.

The Equal Protection Clause “prohibits a prosecutor from

using a peremptory challenge to strike a prospective juror solely

2008), vacated and remanded on other grounds by Beard v.
Abu-Jamal, 130 S. Ct. 1134 (2010).

16
on account of race.” Holloway, 355 F.3d at 719 (citing Batson,

476 U.S. at 88). “As in any equal protection case, the burden is

. . . on the defendant who alleges discriminatory selection of the

venire to prove the existence of purposeful discrimination.”

Batson, 476 U.S. at 93 (internal citations and quotations

omitted). However, a Batson challenge is not defeated merely

because the prosecutor purports to offer a race-neutral reason for

striking the juror. Rather, “the rule in Batson . . . requires the

judge to assess the plausibility of that reason in light of all

evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S.

231, 251-52 (2005) (emphasis added).

Thus, Batson, “establish[ed] a three-step inquiry for

determining the constitutionality of challenged peremptory

strikes.” Hardcastle, 368 F.3d at 255 (citing Riley v. Taylor,

277 F.3d 261, 275 (3d Cir. 2001)). When a Batson challenge is

raised, “[f]irst, the trial court must determine whether the

17
defendant has made a prima facie showing that the prosecutor

exercised a peremptory challenge on the basis of race.” Rice v.

Collins, 546 U.S. 333, 338 (2006). “Second, if the showing is

made, the burden shifts to the prosecutor to present a race-

neutral explanation for striking the juror in question.” Id. (citing

Batson, 476 U.S. at 97-98). “Third, the court must then

determine whether the defendant has carried his burden of

proving purposeful discrimination.” Id. (citing Batson, 476 U.S.

at 98).

Thus, “in considering a Batson objection . . . all of the

circumstances that bear upon the issue of racial animosity must

be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008).5

5
The state argues, and the district court agreed, that a
prosecutor need only express a race-neutral reason—even if is
“implausible”—for striking the juror to overcome a Batson
challenge. Coombs v. Diguglielmo, Civ. No. 04-1841, slip op.
at 9 (E.D. Pa. February 29, 2008). However, that is
misleading. The prosecutor need only state a race-neutral
reason to satisfy step two of the Batson analysis, but the trial

18
A trial court should look to all of the evidence and surrounding

circumstances, including the context in which strikes were

exercised, to determine whether the prosecutor’s proffered

reasons for striking a juror are pretextual and whether the

defendant has shown that the prosecutor had a discriminatory

intent. See Riley, 277 F.3d at 283 (stating that evidence

pertaining to a Batson challenge “should not be reviewed in

isolation”). As the Court explained in Snyder, “all of the

circumstances that bear upon the issue of racial animosity must

be consulted.” 552 U.S. at 478 (citing Miller-El, 545 U.S. at

239) (finding a Batson challenge had merit where the “trial

court must conduct an analysis of the proffered reason for the
strike under step three to determine if the reason the
prosecutor offers is merely a pretext designed to mask the
improper consideration of race to exclude jurors. Johnson v.
California, 545 U.S. 162, 171 (2005) (citing Purkett v. Elem,
514 U.S. 765, 768 (1995)). Indeed, merely accepting any
purportedly race-neutral reason that a skilled attorney can
conjure up in response to a Batson challenge would reduce the
process of resolving Batson challenges to a farcical ritual.

19
judge simply allowed the challenge without explanation”).

Thus, “the prosecutor’s questions and statements . . .

may support or refute an inference of discriminatory purpose,”

Holloway, 355 F.3d at 727 (citing Batson, 476 U.S. at 96-97),

and the three-step inquiry for resolving Batson claims allows the

trial court to respond to a Batson challenge in a meaningful,

rather than a pro forma, manner. Trial courts fail to engage in

the required analysis when they “fail[] to examine all of the

evidence to determine whether the State’s proffered race-neutral

explanations [a]re pretextual.” Riley, 277 F.3d at 286.

The prosecutor’s “strike rate” when compared to the final

composition of the jury is particularly relevant. Miller-El, 545

U.S. at 241. “More powerful . . . are side-by-side comparisons

of some [B]lack venire panelists who were struck and [W]hite

panelists allowed to serve. If a prosecutor’s proffered reason for

striking a [B]lack panelist applies just as well to an otherwise-

20
similar non[B]lack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at

Batson’s third step.” Id. (emphasis added). See also Riley, 277

F.3d at 282 (finding that this comparison “is relevant to

determining whether the prosecution’s asserted justification for

striking the black juror is pretextual”).

“[T]he requirement that the state courts faced with a

Batson challenge engage in the critical step three analysis is not

a product of our own creativity but an accepted element of a

habeas court’s obligation to examine whether a defendant’s

constitutional right to a race-neutral jury has been infringed.”

Riley, 377 F.3d at 290 (internal citations omitted). “Although a

judge considering a Batson challenge is not required to comment

explicitly on every piece of evidence in the record, some

engagement with the evidence considered is necessary as part of

step three of the Batson inquiry.” Id. at 289. See also

21
Holloway, 355 F.3d at 712 (remanding where “the trial court

rendered no express or otherwise articulated ruling on [the

defendant’s] objections; instead, it implicitly rejected the Batson

challenge by letting the matter proceed to trial”).6

In Hardcastle, after examining the record, we stated that

“we cannot conclude . . . that the [state courts’] resolution of

[the defendant’s] claim amounted to an objectively reasonable

application of Batson . . . [because the state court] failed to

conduct a full and complete step three analysis.” 368 F.3d at

6
Indeed, even if we were to apply the deferential AEDPA
standard, a state court’s “[f]ailure to make a step-three finding
. . . would render the state court’s decision either ‘contrary to’
or an ‘unreasonable application’ of Batson.” Bond v. Beard,
539 F.3d 256, 264 (3d Cir. 2008) (citing Hardcastle, 368 F.3d
at 259).

22
255.7 Where the state court fails to undertake a full step three

analysis, as required by Batson, we will remand for the district

court to engage in independent fact-finding. Id.

Here, as in Hardcastle, the trial court failed to conduct a

full and complete Batson step three analysis. In Hardcastle, the

prosecutor wanted to provide the trial court with relevant

information regarding her reasons for exercising twelve

peremptory strikes against Black venire persons but the trial

court refused to hear the evidence. Id. at 251. Hardcastle’s

counsel moved for a mistrial and the following exchange

occurred:

The Court: I’m not going to argue the point. There’s no need
to. I’m going to deny your motion. Your record is correct, and

7
In Hardcastle, we were applying the deferential AEDPA
standard and yet, we still remanded the case for an evidentiary
hearing after finding that the state court’s application of
Batson was unreasonable under clearly established federal
law.

23
we now proceed. Is there any other motion?
Prosecutor: May I put something on the record with regard to
the issue?
The Court: No.
Prosecutor: Not in defense.
The Court: No.
Prosecutor: Okay.
The Court: Now that gets rid of the problem.

Id. at n.1.

Here, as in Hardcastle, it is clear from the record that the

court effectively omitted the third step of the Batson inquiry by

unreasonably limiting the defendant’s opportunity to prove that

the prosecutor’s proffered reasons for striking Black jurors were

pretextual, thereby improperly restricting the defendant’s ability

to prove discriminatory intent.

Moreover, the court did not make the findings required

under Batson. Rather, it appears to have dismissed Coombs’

Batson claim because it believed the defense attorney and the

prosecutor were “much too good lawyers to do something like

24
that.” Relying upon its view of counsel’s competence and/or

professionalism, the court failed to inquire into whether the

prosecutor’s purported reasons for striking the jurors were

pretextual, a crucial part of the third step of Batson.8

Even more troubling is the fact that the court did not

examine the prosecutor’s statements that he struck Juror No. 1

because he “just didn’t like” the juror and because the juror was

giving him “bad looks.” Although the prosecutor did explain

that the juror “didn’t check off many boxes [on the jury

questionnaire],” the court’s insistence that the trial proceed

(“let’s go”) foreclosed any inquiry into whether the prosecutor

accepted White jurors who checked off a similar number of

8
The trial court did this analysis only after the fact, in a
memorandum opinion prepared for the state appeal. This
analysis was not considered by the state appellate court
because the state appellate court did not reach the merits of
this issue.

25
boxes. That would have been an essential part of any

meaningful inquiry into the prosecutor’s explanation. As we

have just noted, “side-by-side comparisons” of Black jurors who

were struck and White jurors who were allowed to serve can

often be particularly “powerful” in a Batson inquiry. Miller-El,

545 U.S. at 241.

As also noted earlier, the prosecutor’s response to

defense counsel’s challenge to the dismissal of Juror No. 1 also

included the concession that: “I don’t really have a sound

reason.” On this record, there is no way of knowing if the

prosecutor’s action was motivated by a genuine concern for

Juror No. 1's impartiality, or whether the prosecutor’s

misgivings arose from the fact that the juror was Black. We do

not intend to suggest an answer to that question. We do,

however, require that an appropriate inquiry be undertaken by

the court in response to a Batson challenge; particularly given

26
the prosecutor’s vague and elusive explanation and the apparent

concession that he was not sure why he stuck Juror No. 1.

Like anyone else, trial attorneys possess those human

frailties that make each of us far too susceptible to social

conditioning and the subliminal bias that may result. Thus,

although we do not suggest this happened here, we are reminded

of Justice Marshall’s observation in Batson that “[an attorney’s]

own conscious or unconscious racism may lead him easily to the

conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’

a characterization that would not have come to his mind if a

white juror had acted identically.” 476 U.S. at 106 (Marshall, J.

concurring). Accordingly, “outright prevarication by [attorneys

is not] the only danger . . . It is even possible that an attorney

may lie to himself in an effort to convince himself that his

motives are legal.” Id. (internal citation and quotations

omitted). Although we again stress that we are not suggesting

27
what this prosecutor’s motivation was, trial court’s must be

particularly vigilant when Black jurors are struck because an

attorney is acting on a “hunch.”

This means that a trial court must be exceedingly careful

about rejecting a Batson challenge merely because the

prosecutor explains that s/he did not like the way a juror looked

at her/him. Although counsel’s discomfort with real or

perceived “looks” from a prospective juror may arise from

factors that would readily survive a Batson challenge after an

appropriate inquiry, Justice Marshall’s admonition in Batson

cautions that such discomfort may not similarly arise if a White

juror looks at counsel the same way. Therefore, courts should

not allow nebulous expressions of discomfort to justify striking

a juror. Batson requires an appropriately tailored inquiry, an

opportunity for opposing counsel to argue that the proffered

reasons are pretextual, and a finding by the trial court. If it

28
were otherwise—and an unexamined explanation were allowed

to survive a Batson challenge, Batson inquires would quickly be

reduced to a meaningless procedural ritual.

We realize that it may be uncomfortable and unpleasant

for a trial judge to undertake such a difficult and subtle inquiry

with the precision and persistence that may be required to

determine counsel’s true reasons for striking a juror. No judge

wants to be in the position of suggesting that a fellow

professional - whom the judge may have known for years - is

exercising peremptory challenges based on forbidden racial

considerations. However, we also realize that if Batson is to be

given its full effect, trial courts must make precise and difficult

inquiries to determine if the proffered reasons for a peremptory

strike are the race-neutral reasons they purport to be, or if they

are merely a pretext for that which Batson forbids.

Nor is it relevant that the prosecutor appears to have

29
offered race-neutral explanations for all but one peremptory

challenge. “[A] prosecutor’s purposeful discrimination in

excluding even a single juror on account of race cannot be

tolerated as consistent with the guarantee of equal protection

under the law.” Holloway, 355 F.3d at 720 (citing Harrison v.

Ryan, 909 F.2d 84, 88 (3d Cir. 1990)). Although we are not

suggesting that the district court should only consider the

prosecutor’s strike of Juror No. 1 on remand, we do note that if

Juror No. 1, and only Juror No.1, was struck because of his race,

then the Batson challenge should have been sustained.

The error here is compounded by the court’s refusal to

allow evidence of the alleged conversations between the

prosecutor and defense counsel that could have supported the

defense counsel’s claim of bias. That evidence, if accepted,

could have established that the prosecutor believed that he failed

to get a conviction in Coombs’ first trial only because of a

30
sympathetic Black juror. Such evidence, viewed against the

prosecutor’s explanation that he “just didn’t like” one of the

prospective jurors (who he conceded he had no good reason to

strike) may well have caused an objective fact finder to

conclude that Coombs’ Batson challenge should have been

sustained.

We realize, of course, that defense counsel was able to

put the alleged out of court statement of the prosecutor before

the court in an affidavit. However, that is a woefully inadequate

substitute for a hearing under these circumstances. Moreover,

it is obvious that the court had already determined that the

Batson challenge was more irritating than meritorious. It had

already explained that the proffered evidence was “not relevant

to anything” even though it went directly to the prosecutor’s

frame of mind in exercising peremptory challenges during the

selection of the second jury. Thus, we cannot say that merely

31
allowing defense counsel a pro forma opportunity to submit an

affidavit is consistent with the kind of serious inquiry required

under Batson’s third step.9

IV. Conclusion

Accordingly, we will remand the case to the district

court to hold an evidentiary hearing consistent

9
The state argues that this evidence should be excluded as
hearsay evidence, a determination not made by the state trial
court. However, the evidence was clearly offered to establish
the prosecutor’s state of mind. It was not offered to establish
that a Black juror actually refused to convict Coombs during
the first trial. Therefore, it is not hearsay. Fed. R. Evid.
801(c) (defining hearsay as statements “offered in evidence to
prove the truth of the matter asserted”).

We assume that, on remand, the district court will give
the evidence whatever weight it deserves notwithstanding the
court’s initial inclination to ignore it as “not relevant to
anything.”

32
 with this opinion.10

10
“We do not have authority under the federal habeas
statutes, 28 U.S.C. § 2241 or § 2254, to remand a habeas
corpus petition to a state court for an evidentiary hearing.”
Keller v. Petsock, 853 F.2d 1122, 1129 (3d Cir. 1988).
33