Lark v. Secretary Pennsylvania Department of Corrections

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 07-9004
______________

ROBERT LARK

v.

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

Appellants

*(Pursuant to Rule 43(c), Fed. R. App. P.)
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 01-01252)
Honorable John R. Padova, District Judge
______________

Argued February 2, 2011
 BEFORE: McKEE, Chief Judge, and SCIRICA and
GREENBERG, Circuit Judges

(Filed: June 16, 2011)
______________

Maureen Kearney Rowley
Chief Federal Defender
Stuart B. Lev (argued)
Michael Wiseman
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106-0000

Attorneys for Appellee

Thomas W. Dolgenos (argued)
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107

Attorneys for Appellants

2
 ______________

OPINION OF THE COURT
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on appeal from a
final order entered in the District Court on July 5, 2007,
conditionally granting Appellee Robert Lark a writ of habeas
corpus, vacating his Pennsylvania state court death sentence,
and ordering the Commonwealth of Pennsylvania to retry Lark
within 180 days or release him. 1 See Lark v. Beard, 495 F.
Supp. 2d 488 (E.D. Pa. 2007) (“Lark II”). The Court granted the
writ based on Lark’s claim that at his trial the Commonwealth
violated the Fourteenth Amendment’s Equal Protection Clause
that the Supreme Court applied in Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712 (1986), when the Supreme Court reviewed a
prosecutor’s exercise of peremptory challenges in jury selection.
Appellants, the Secretary of the Pennsylvania Department of
Corrections, the District Attorney of Philadelphia County, and
the Attorney General of the Commonwealth of Pennsylvania
(collectively “the Commonwealth”), filed a timely notice of

1
The District Court, at the unopposed request of the
Commonwealth, issued an order on July 17, 2007, staying its
conditional grant of habeas corpus relief pending the outcome of
this appeal.

3
appeal from the Court’s order. For the following reasons we
will vacate the Court’s July 5, 2007 order and remand the case
for further proceedings.

II. BACKGROUND & PROCEDURE

We take the following facts from the Pennsylvania
Supreme Court’s opinion affirming the denial of Lark’s first
petition for state post-conviction relief:

[I]n late 1978, Lark robbed Tae Bong Cho while
putting a gun to the head of the victim’s infant
child. He was apprehended shortly after the
robbery and was charged with the crime.
Approximately two months later, Lark murdered
Mr. Cho in order to prevent him from testifying
against Lark in the robbery trial. No witness was
able to identify the killer, because he wore a ski
mask. However, Lark bragged to a number of
acquaintances that he had killed ‘the Korean.’

Lark failed to appear for trial on the robbery
charge and he was convicted in absentia.
Thereafter, Lark repeatedly threatened the
prosecutor in the robbery case and detectives
investigating the Cho homicide. He was captured
on January 9, 1980 after he took a mother and her
two small children hostage. While he was
barricaded inside the hostage’s house, he told
police: ‘I’ll kill you all like that [expletive] . . . I’ll

4
 shoot you in the legs.’
Following capture, Lark was charged with
offenses related to the murder of Mr. Cho,
terroristic threats against the prosecutor in the
robbery case, and the kidnapping of the woman
and her two children. The first trial ended in
mistrial as the result of an inadvertent question
asked by the trial court . . . .

Commonwealth v. Lark, 698 A.2d 43, 46 (Pa. 1997).

At his second trial, in 1985, Peter Rogers represented
Lark, who is African-American, and assistant district attorney
John Carpenter represented the Commonwealth. 2 Voir dire
lasted for four days. 3 On June 7, 1985, the third day of voir
dire, after Carpenter exercised a peremptory challenge to strike a
female African-American juror, the following exchange
occurred:

Mr. Rogers: Your Honor, Before the other juror
comes in, can we . . . may the

2
Prior to his second trial, Lark moved to dismiss the charges
against him on double jeopardy grounds. The trial court denied
the motion and the Pennsylvania Superior Court, on
interlocutory appeal, affirmed. Commonwealth v. Lark, 479
A.2d 522 (Pa. Super. Ct. 1984).
3
Jury selection actually began on June 4, 1985, but inasmuch as
the Court did not make any selections on that day, we are
concerned only with June 5, 6, 7, and 10, 1985.

5
 records be preserved to indicate the
racial composition of the jurors
who are coming by so as to
preserve an opportunity for me to
make a challenge that the
Commonwealth may in fact be
excluding all blacks who come
before this panel? Only way I can
determine that is if I have the
records made available to me. Not
today, Your Honor, but I just ask –
The Court: What records are we talking about?
Mr. Rogers: The records which will – that
defense counsel doesn’t get a
chance to see and I guess the
Commonwealth doesn’t but I think
it should indicate addresses, phone
numbers, race, things like that,
Your Honor.
Mr. Carpenter:Judge–
The Court: I don’t know that there’s any
indication of race at all.
Mr. Carpenter:My recollection is that–
Mr. Rogers: As of this afternoon, Your Honor,
he is striking all blacks.
Mr. Carpenter:Oh. How awful.

App. at 611-12.

The discussion between Rogers and the trial court
continued with Rogers insisting that Carpenter was striking

6
blacks and asking the court to preserve a record of the race of
the jurors. The trial court responded by asserting that there was
“nothing on the record as to who was white and who was black,”
and that there was no way to determine the race of the jurors.
Id. at 613. Rogers stated that he wanted the records preserved
only from the last jury panel and he was not arguing that
Carpenter had exercised his peremptory challenges in a
discriminatory manner during the prior two days of jury
selection. Carpenter stated, however, that he had not
systematically excluded jurors, pointing out that there were three
jurors on the panel of the same race as Lark. The trial court,
applying the law as it stood at the time of the trial, indicated that
“neither one of [the attorneys] has to give any reason for
[exercising a peremptory challenge].” Id. at 614. Ultimately,
the trial court denied Rogers’ request, indicating that there was
no record of the race of the jurors. Rogers did not raise the
equal protection peremptory challenge issue again.

On June 28, 1985, the jury returned a verdict finding
Lark guilty of first-degree murder, possession of an instrument
of crime, terroristic threats, and two counts of kidnapping. In
the penalty phase of the trial which followed, the jury found that
there were no mitigating circumstances but that there was one
aggravating circumstance--the murder of a state’s witness--and
set the penalty at death. The trial court denied all post-trial
motions and imposed Lark’s death sentence on April 24, 1986.

On April 30, 1986, six days after the court sentenced
Lark, the United States Supreme Court issued its opinion in
Batson v. Kentucky which lessened the burden of proof that
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), had
required for a defendant to show that a prosecutor engaged in

7
discriminatory jury selection. One year later, that Court
determined that the rule in Batson would apply retroactively to
all cases pending on direct review at the time that it decided
Batson. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,
716 (1987).

Lark filed a direct appeal from his conviction and
sentence to the Pennsylvania Supreme Court. 4 On that appeal
Lark, still represented by Rogers, did not raise a Fourteenth
Amendment Equal Protection Clause claim based on
Carpenter’s use of peremptory strikes during voir dire. On May
20, 1988, the Pennsylvania Supreme Court affirmed Lark’s
convictions and sentence. Commonwealth v. Lark, 543 A.2d
491 (Pa. 1988). Lark did not file a petition for a writ of
certiorari to the United States Supreme Court and thus the direct
review of his conviction and sentence was completed on August
18, 1988, 90 days after the Pennsylvania Supreme Court
affirmed his conviction. See U.S. Sup. Ct. R. 13. Nevertheless,
inasmuch as Lark’s direct appeal was pending at the time that
the Supreme Court decided Batson, the rule in Batson is
applicable to his case. 5

After completion of Lark’s direct appeal the judicial
4
Under Pennsylvania law, all sentences of death are directly
appealable to the state Supreme Court. 42 Pa. Cons. Stat. Ann.
§ 9711(h)(1) (West 1998); 42 Pa. Cons. Stat. Ann. § 722 (West
2004).
5
Of course, the applicability of Batson is subject to the various
jurisdictional and procedural rules that we discuss below.

8
proceedings in his case lay dormant as he did not file any further
applications or motions until six years later when, in November
1994, after the Governor of Pennsylvania signed a warrant for
his execution, he sought a stay of execution in the Philadelphia
Court of Common Pleas. That court denied Lark’s request for a
stay on November 7, 1994, following which on November 8,
1994, Lark filed a pro se motion in the District Court seeking an
order staying his execution. The District Court granted the stay
to enable Lark to file a state post-conviction petition. 6

On November 4, 1994, Lark filed his first Post
Conviction Relief Act (PCRA), 42 Pa. Const. Stat. Ann. § 9541
et seq. (West 1989), petition in the Philadelphia Court of
Common Pleas. After appointment of counsel, Lark filed an
amended PCRA petition on February 8, 1995, raising 25 claims
of trial court error and ineffective assistance of counsel but the
claims did not include an assertion that there had been a Batson
violation. The Commonwealth moved to dismiss the petition,
and the PCRA court, without holding an evidentiary hearing,
granted that motion. Lark appealed from the dismissal to the
Pennsylvania Supreme Court.

In April 1997, while Lark’s appeal was pending in the
Pennsylvania Supreme Court, the Philadelphia District
Attorney’s Office released a video tape (the “McMahon tape”)
6
The Pennsylvania Supreme Court also issued a stay to permit
the filing of a state post-conviction petition. See
Commonwealth v. Lark, Capital Appeal No. 77 (Pa. Nov. 10,
1994) (unpublished order). See Lark v. Beard, Civ. No. A 01-
1252, 2006 WL 1489977, at *2 (E.D. Pa. May 23, 2006).

9
in which former assistant prosecutor Jack McMahon instructs
his prosecutorial colleagues to exclude potential jurors on the
basis of race, gender, occupation, and neighborhood. On the
tape that McMahon made after the Supreme Court’s decision in
Batson, he advised against striking all African-Americans and
stated that his ideal jury would be composed of eight whites and
four blacks. 7 On July 1, 1997, Lark applied to the Supreme
Court of Pennsylvania for a remand of his PCRA petition to
allow him to assert a claim based on the McMahon tape. On
July 23, 1997, the Pennsylvania Supreme Court affirmed the
denial of post-conviction relief and on July 30, 1997, in a
separate order, it denied Lark’s application for a remand.
Commonwealth v. Lark, 698 A.2d at 52.

On August 29, 1997, Lark filed a second PCRA petition
in the Court of Common Pleas. In his second petition, Lark
advanced several claims predicated on newly discovered facts,
including a claim of discriminatory jury selection based on: (1)
the McMahon tape; (2) the prosecutor’s allegedly discriminatory
pattern of strikes; and (3) a report that Professors David Baldus
and George Woodworth had authored on jury selection practices
in Philadelphia capital cases from 1983-1993 (“the Baldus
study”). Lark requested discovery and an evidentiary hearing to
present evidence regarding the racial makeup of the jurors that
Carpenter had struck and his motivation for striking the jurors.
Lark also sought the hearing to present evidence regarding the

7
For a more comprehensive discussion of the contents of the
McMahon tape, see Wilson v. Beard, 426 F.3d 653, 656-58 (3d
Cir. 2005).

10
jury selection policies of the Philadelphia District Attorney’s
office. The PCRA court, without holding an evidentiary
hearing, denied the petition as untimely because Lark filed the
petition beyond the one-year statute of limitations applicable to
PCRA petitions. See 42 Pa. Stat. Ann. § 9545(b) (West 1998).

On appeal from the denial of post-conviction relief, the
Pennsylvania Supreme Court held that Lark’s Batson claim was
timely to the extent it was based on the McMahon tape because
the facts underpinning that claim did not become available until
the Philadelphia District Attorney’s Office released the tape in
April 1997, and thus Lark’s Batson claim insofar as based on the
McMahon tape came within the exception to the one-year
deadline for filing PCRA petitions predicated on newly
discovered facts. See id. at § 9545(b)(ii); Commonwealth v.
Lark, 746 A.2d 585, 588 (Pa. 2000). The court, however,
affirmed the PCRA court’s denial on the merits as it concluded
that the contents of the McMahon tape did not demonstrate that
Lark had made a prima facie showing that there had been
discrimination in the jury selection at his trial. Id. at 588-89.
The court also held that the remaining bases for Lark’s Batson
claims, namely the allegations arising from the race of each
potential juror and the prosecutor’s “Oh. How awful” statement
at trial, were present at the inception of his trial and thus did not
fall into an exception from the one-year rule in section 9545(b).8

8
In an alternative holding, the Supreme Court held that Lark
waived these claims because he did not raise them on direct
appeal or in his first PCRA petition. Inasmuch as the parties
agreed in the District Court that the Supreme Court applied only
the PCRA time bar and not the doctrine of waiver to deny

11
 While his appeal was pending from the denial of his
second PCRA petition in the Pennsylvania Supreme Court,
Lark, in recognition of the possibility that if he did not act
promptly the Anti-Terrorism and Effective Death Penalty Act’s
(AEDPA) one-year statute of limitations would preclude him
from seeking federal relief, filed a habeas corpus petition in the
District Court. Lark admitted that his federal petition contained
unexhausted claims that had been included in his second PCRA
petition. The District Court dismissed the petition without
prejudice but ordered that the filing date that Lark filed another
petition would relate back to the date of the filing of the
dismissed habeas corpus petition. See Lark v. Beard, Civ. No.
A. 01-1252, 2006 WL 1489977, at *3 (E.D. Pa. May 23, 2006)
(“Lark I”).

On March 16, 2001, after the Pennsylvania Supreme
Court denied Lark’s appeal, he timely filed another habeas
corpus petition in the District Court, this time raising 15 claims.9

Lark’s Batson claims, we will not discuss the Supreme Court’s
waiver holding as a basis for procedural default. Lark v. Beard,
Civ. No. A 01-1252, 2006 WL 1489977, at *5 n.8 (E.D. Pa.
May 23, 2006).
9
The claims were: (1) The prosecutor used his peremptory
challenges in a racially discriminatory manner and as part of a
discriminatory policy of the Philadelphia District Attorney’s
Office, in violation of the Sixth, Eighth and Fourteenth
Amendments; (2) Trial counsel was ineffective during the guilt
phase of the trial by failing to object to, and opened the door for,
the admission of highly prejudicial, inadmissible evidence; and

12
he failed to investigate and present relevant and exculpatory
evidence; (3) Trial counsel was ineffective at sentencing for
failing to investigate, develop, prepare, or present available,
relevant and compelling mitigating evidence regarding Lark’s
childhood abuse; deprivations and mental health impairments;
and gave an ineffectual closing argument in which he failed to
ask the jury to find mitigating evidence; (4) The trial court erred
in answering the jury’s question regarding the “meaning” of the
death penalty in Pennsylvania; (5) Lark was forced to stand trial
a second time in violation of the Double Jeopardy clause of the
Fifth Amendment, after the prosecutor intentionally goaded
defense counsel into requesting a mistrial; (6) Lark is entitled to
relief from his death sentence because the penalty phase jury
instructions and verdict sheet indicated that the jury must find
mitigating factors unanimously; (7) The trial court’s instructions
on reasonable doubt at both phases of trial and on Lark’s burden
of proof at the penalty phase were unconstitutionally erroneous;
(8) Lark did not receive the meaningful “proportionality review”
that 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (West 1998) and
federal constitutional law mandated; (9) Lark’s death sentence
was the product of improper racial discrimination in violation of
the U.S. Constitution; (10) The Philadelphia District Attorney’s
policy of providing lodging and cash payments to witnesses
violates the U. S. Constitution; (11) Lark was denied his right to
an impartial jury and a fair trial when some jury members saw
him in handcuffs; (12) The trial court denied Lark a fair and
impartial trial because the voir dire failed to ensure that the
jurors selected would consider the possibility of a life sentence;
(13) The trial court violated Lark’s constitutional rights by
refusing to sever unrelated criminal charges from his capital

13
 Lark filed a motion for an evidentiary hearing on his habeas
corpus petition but the Commonwealth objected to the granting
of that hearing as it contended that he was not entitled to an
evidentiary hearing on the Batson claim inasmuch as he failed to
develop a factual record for that claim in the state court. The
Commonwealth also objected to the Batson claim on the
grounds that it was unexhausted and procedurally defaulted
inasmuch as Lark failed to comply with the PCRA’s one-year
statute of limitations. See 42 Pa. Stat. Ann. § 9545(b).

In an order entered on May 23, 2006, the District Court
held that Pennsylvania’s one-year statute of limitations for
PCRA petitions was not in force at the time of Lark’s alleged
default and, relying in part on our holding in Bronshtein v.
Horn, 404 F.3d 700 (3d Cir. 2005), held that the time bar was
not an independent and adequate state law barrier to federal
habeas corpus review of Lark’s claims. Lark I, 2006 WL
1489977, at *7. In a related holding, the Court determined that,
inasmuch as the PCRA court and the Pennsylvania Supreme
Court denied Lark’s request for an evidentiary hearing pursuant
to the same one-year statute of limitations which it had found to
be an inadequate state ground to bar habeas corpus relief, Lark
had not failed to develop the factual basis of his Batson claim to
the end that 28 U.S.C. § 2254(e)(2) prevented the Court from

murder trial and when it allowed evidence of Lark’s prior
criminal activity to be introduced; (14) State court counsel was
ineffective to the extent he failed to raise the claims Lark now
raises; (15) Lark is entitled to relief from his conviction and
sentence because of the prejudicial effects of the cumulative
errors in his case.

14
exercising its discretion to grant him an evidentiary hearing.
The Court also found that Lark alleged facts, which if proven
true, would establish a prima facie showing that Carpenter
exercised peremptory challenges based on race. In particular,
Lark alleged that Carpenter’s high strike rate of African-
American jurors, the absence of any race-neutral reasons for the
strikes in the transcripts, and the trial prosecutor’s remark of
“Oh. How awful” in response to defense counsel’s comment
that he was striking all the blacks from the jury, demonstrated a
Fourteenth Amendment Equal Protection Clause violation.
Finally, the Court exercised its discretion and granted Lark an
evidentiary hearing on his claim of jury discrimination and
ineffective assistance of counsel at the guilt and sentencing
phases of his trial. 10

At the evidentiary hearing on November 8, 2006, the
Commonwealth presented Carpenter’s testimony to answer the
allegations that he struck jurors based on their race. Carpenter
testified that at the time of Lark’s trial he had been a prosecutor
for ten years, and had not received formal training on jury
selection practices, the Philadelphia District Attorney’s Office
did not have formal rules about how to make peremptory strikes,
and, although he knew Jack McMahon, that he did not take
directions from him on how to pick a jury. Apparently referring

10
The Commonwealth has conceded that Lark’s trial counsel
was ineffective for failing to investigate and present mitigating
evidence in the penalty phase of the trial. However, inasmuch
as the Batson claim is the only issue before us on this appeal, we
will not discuss the ineffective assistance of counsel claim any
further.

15
to the time of the evidentiary hearing as McMahon did not make
the tape until after Lark’s trial, he said that while he had heard
of the McMahon tape he had never seen it and was not familiar
with its contents. Carpenter also stated that while he was aware
that systematic exclusion of jurors based on race “wasn’t right”
under the law at the time of the trial, he was unsure, prior to
Batson, whether the law permitted a prosecutor to strike
individual jurors on the basis of their race. App. at 1021.

Carpenter further testified that he remembered Lark’s
trial because it was the only case in which he obtained a death
sentence and because of his tense relationship with Rogers
during the trial. In preparation for his testimony at the
evidentiary hearing, Carpenter reviewed the transcript of the
voir dire but he could not recall much of that process and could
not recall specific jurors. Carpenter also reviewed the
handwritten notes he took during jury selection, but they did not
refresh his recollection of his reasons for his strikes of
individual jurors and Carpenter testified that, while he used
abbreviations and symbols, he was not systematic in his note-
taking. 11

11
The record contains only Carpenter’s notes from the last two
days of jury selection. We note that even these records are
incomplete as some jurors questioned in the transcript do not
appear on Carpenter’s jury sheets. On the third day of the voir
dire Carpenter wrote letter symbols such as “A,” “D,” “H,” and
“J,” as well as word notations. On the fourth day, he used
numbers corresponding to a key he placed at the bottom of the
page. Carpenter identified the letter “D” as corresponding to a
possible bias in favor of the defendant. He identified the symbol

16
 The Commonwealth then questioned Carpenter about
each of his individual peremptory strikes. Except as to one
juror, Charles Rabb, Carpenter had no independent or refreshed
recollection of reasons for any of the peremptory strikes he
exercised during Lark’s trial. However, based on the
circumstantial evidence that Carpenter provided, the District
Court found that the Commonwealth had offered race-neutral
reasons for every peremptory strike the Commonwealth
questioned him about except for three jurors. Inasmuch as the
District Court later based its grant of the conditional writ on
Carpenter’s failure to provide a race-neutral explanation for
these three jurors, we will focus on those jurors in this appeal.
However, we think it is important to recognize that, despite our
focus on these three jurors, on remand the District Court may
conclude at the third step of the Batson process that any one of
Carpenter’s 13 peremptory strikes against African-Americans
amounted to purposeful discrimination.

The first juror Carpenter could not recall striking and
could not provide circumstantial evidence for removing was
Shirley Sampson, an African-American female, who was the
subject of his first peremptory challenge. Carpenter could not
recall independently why he struck Sampson and when he read
the transcript of her questioning his memory as to why he struck
her was not refreshed. Carpenter, however, unequivocally
denied that he struck her because she was African-American and

“H” as indicating juror hardship. Although Carpenter could not
recall what the letter “A” symbolized, he denied that he used
that letter to denote a venireperson as an African-American.

17
averred that striking any juror because of his or her race was
legally and morally abhorrent to him.

Before proceeding to the next juror, the Commonwealth’s
attorney asked Carpenter questions about his general jury
selection practices. Carpenter stated that the neighborhood
where a potential juror lived was important because he did not
want jurors who lived near the defendant or the place where the
incident involved in the trial had occurred. Though Carpenter
indicated that he did not want a juror who lived too close to the
defendant or who lived close to the crime scene, he did not state
that he struck Sampson for either of these reasons. Later,
Carpenter testified that he took into account a potential juror’s:
(1) employment status and nature of employment, as having a
job showed that person had roots in the community but that he
nevertheless did not want teachers or social workers on the jury;
(2) a juror’s age, as older jurors were wiser and more
responsible; (3) children, as Carpenter did not want jurors who
had children who were the same age as the defendant; (4) home
ownership, as a homeowner had a stake in the community; (5)
hardship; (6) prior jury experience; (7) history as a victim of
crime or a witness or defendant in a criminal case; (8)
relationship with police officers, as Carpenter viewed jurors
positively if they had family members who were police officers;
(9) acquaintance with any potential witnesses in the trial; and
(10) feelings about the death penalty.

The second venireperson for whom Carpenter could not
give a specific reason, or a reason based on circumstantial
evidence, for striking was Florence Williams, also an African-
American female. Carpenter could not find anything
“particularly wrong” with Williams by looking at the trial

18
transcript. Id. at 1044. He, however, did state that there were
other circumstances that might not appear in the transcript,
“[f]or example, if I don’t like the juror, I think . . . it’s a good bet
she doesn’t like me.” Id. at 1045. When the District Court stated
that “there could have been body language there,” Carpenter
responded by saying “exactly.” Id.

As was the case with Williams, Carpenter could not
recall a specific or circumstantial reason for striking the third
juror, Edison Sisco, 12 an African-American male. Carpenter,
however, noted that neither he nor defense counsel asked Sisco
many questions. When asked whether there was anything in the
transcript which might indicate why he struck Sisco, Carpenter
answered “No. Except one thing he said was, when he was
asked when [sic] was the last school he attended, he said
Dobbins and then he said ‘No, Overbrook.’ I don’t know it
looks like he – I don’t know.” Id. at 1053.

After the hearing, the parties filed two stipulations as to
the race of potential jurors that Carpenter struck and seated on
the jury. The stipulated list of 29 persons included the race and
gender of the selected jurors, the selected alternates, and the
prospective jurors that Carpenter excused with peremptory
challenges. According to the stipulations, the jury in Lark’s
case was composed of four African-Americans and eight
Caucasians. Carpenter did not exercise all of the peremptory
12
Although the District Court referred to this juror as “Edison
Cisco,” the parties refer to him as “Edison Sisco,” and his name
appears as Sisco on the juror sheets from the trial.
We will adopt the parties’ spelling in this opinion.

19
strikes allotted to the prosecution and had five peremptory
strikes remaining at the end of voir dire; however, out of the 15
peremptory strikes Carpenter used, 13 were used to strike
African-Americans. Id. at 948-52.

On July 3, 2007, the District Court granted the writ on the
strength of the Batson claim, ordering the Commonwealth to
retry Lark within 180 days or release him. The Court examined
Lark’s claim under the familiar three-step Batson analysis:

First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if that
showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question. Third, in light of the parties’
submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029,
1035 (2003) (hereinafter “Cockrell”) (citations omitted).

As we indicated above, the District Court, in its May 23,
2006 order holding that the one-year PCRA time bar was not an
independent and adequate ground to bar Lark’s petition in that
Court, determined that Lark met the first step of the Batson

20
inquiry.13 At the second step, the Court determined that because
Carpenter could not articulate a race-neutral reason for his
peremptory strikes of Sampson, Williams, and Sisco, the
Commonwealth failed to meet its burden of production. The
Court held that where the state fails to meet its Batson duty of
production at step two, the analysis ends with a finding that
there was a Batson violation. The Court did not reach the issue
of whether Lark’s reliance on the Baldus study and the
McMahon tape to prove discrimination at the third step
supported his Batson claim. 14 The Commonwealth filed a
timely notice of appeal challenging the Court’s conditional grant
of the writ. 15

III. JURISDICTION AND STANDARDS OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254 and we have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. The parties dispute the appropriate
standard of review. They agree that we exercise plenary review
over the Court’s conclusions of law and review its factual
13
Actually in its May 23, 2006 opinion and order the District
Court merely indicated that Lark made allegations satisfying the
first Batson step.
14
The District Court did not address any of Lark’s remaining
guilt phase claims.
15
The Commonwealth did not need a certificate of appealability
to appeal. See Hardcastle v. Horn, 368 F.3d 246, 253 (3d Cir.
2004).

21
findings for clear error. See Holloway v. Horn, 355 F.3d 707,
713 (3d Cir. 2004). But they differ with respect to the degree of
deference that we must afford the Court’s finding of intentional
discrimination in the jury selection process.

Lark asserts that once a district court concludes that a
petitioner has shown that there was intentional discrimination in
the jury selection process, a court of appeals may not reject that
determination unless the district court’s conclusion is shown to
be clearly erroneous. Wilson v. Beard, 426 F.3d 653, 668-69
(3d Cir. 2005). The Commonwealth characterizes this approach
as too simple and incorrect for use in this case, as it argues that
the District Court predicated its finding of intentional
discrimination on a misapplication of Batson’s legal principles.
Accordingly, the Commonwealth asserts that we exercise
plenary review of the Court’s finding.

Lark’s citation of Wilson for the standard of review is
misleading. In Wilson, we upheld a district court’s factual
finding of intentional discrimination at the third step of the
Batson analysis. Id. at 670. But the district court based that
finding on its credibility determination that the prosecutor acted
with a discriminatory intent in exercising his peremptory strikes.
Id. Here, the District Court did not base its decision on a
credibility determination nor did it proceed to the third step of
the Batson analysis. Rather, the Court ruled that the
Commonwealth did not offer any explanation for making the
three peremptory strikes and, therefore, as a matter of law, it
failed to meet its burden at step two of the Batson analysis. But
the Court’s approach here was problematic, for we have stated,
“the Batson inquiry ends and the conviction must be vacated at
the second stage of the analysis if the state’s explanation is such

22
that, taken at face value, it either demonstrates an equal
protection violation or would otherwise be inadequate as a
matter of law to support the conviction.” Johnson v. Love, 40
F.3d 658, 668 (3d Cir. 1994) (internal citation omitted).
Therefore, because the District Court did not indicate that
Carpenter’s explanations at step two demonstrated an equal
protection violation, the Court necessarily determined that
Carpenter’s explanations for using peremptory challenges to
strike Sampson, Williams, and Sisco were inadequate as a
matter of law. We will exercise plenary review over that legal
conclusion. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.
2002).

IV. DISCUSSION

A. Timely Batson Objection

First, the Commonwealth argues that Lark did not make
an adequate “Batson-style objection at trial,” and therefore,
under our precedent, he is not entitled to relief on the Batson
claim. Appellant’s br. at 13. Lark counters by asserting that the
Commonwealth impermissibly is raising this argument on
appeal for the first time. In reply, the Commonwealth asserts
that it raised the issue at several points in its original response to
the petition. Further, the Commonwealth argues that, inasmuch
as we have held that a timely objection at trial is required to
preserve a Batson claim, Lark has the burden to prove that he
raised a timely Batson objection at trial and thus the
Commonwealth did not need to raise the issue as an affirmative
defense. See Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir.
2009).

23
 The Commonwealth argues that, in any event, in these
habeas corpus proceedings it raised Lark’s failure to object by
stating, in its response to Lark’s petition, that: (1) defense
counsel “objected to, at most, four peremptory challenges which
the prosecutor had made during the afternoon session of June 7,
1985”; (2) “trial counsel did not specify the exact strikes to
which he was objecting”; (3) “as a result of [Lark’s] dereliction
in pursuing the Batson claim in state court, the record was not
preserved”; (4) “[T]he record reflects that defense counsel told
the court he had what he needed to make a record, but he never
raised the subject again.” Appellant’s reply br. at 5 (internal
citations and quotation marks omitted).

These statements, however, did not put the District Court
on notice of the legal argument that the Commonwealth now
wishes to raise: that Lark’s objection at trial was not sufficient
and timely and Lark therefore has waived the Batson claim for
the purposes of federal habeas corpus review. 16 See Bagot v.
Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (stating that the
crucial question regarding waiver is whether the petitioner
presented the argument with sufficient specificity to alert the
district court). It is unsurprising, therefore, that the District

16
In fact, as Lark points out, the Commonwealth consistently
accepted the adequacy of Rogers’ objection in several
documents submitted to the District Court. See, e.g.,
Commonwealth’s Memorandum of Law, Lark v. Beard, 01-cv-
1252, at 38 (“On June 7, 1985, petitioner objected to certain
peremptory strikes of the prosecutor.”).

24
Court did not address this argument either in its May 23, 2006
order granting an evidentiary hearing or in its July 3, 2007 order
granting the conditional writ. The Court only held that “Lark’s
trial counsel, Peter Rogers, raised the issue of the
Commonwealth’s improper peremptory strikes during the voir
dire and sought to preserve a record of the racial composition of
the jury.” 495 F. Supp. 2d at 492. “As a general rule, we
do not consider on appeal issues that were not raised before the
district court.” Appalachian States Low-Level Radioactive
Waste Comm’n v. Pena, 126 F.3d 193, 196 (3d Cir. 1997)
(internal quotation marks omitted). Nevertheless, in
Appalachian States we noted that the enforcement of a waiver
involves the exercise of discretion and thus the rule providing
for waiver may be relaxed “whenever the public interest or
justice so warrants.” Id. (citations and internal quotation marks
omitted). But even if we held that it was appropriate to relax the
ordinary appellate review rule in order to consider the issue that
the Commonwealth raises, i.e., that Lark did not make an
adequate Batson objection at his trial, and we agreed with the
Commonwealth that a defendant must make a timely Batson
objection at trial to preserve a Batson issue and that the
requirement that he do so cannot be waived, we would find that
Lark made a timely objection at trial so as to preserve the
Batson issue for later habeas corpus review.

We have held that, even in trials before the Supreme
Court’s decision in Batson, a timely objection to the
prosecutor’s exercise of peremptory strikes is a prerequisite to
raising a Batson claim on appeal. Lewis v. Horn, 581 F.3d at
102, citing Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir.
2008), vacated on other grounds sub nom., Beard v. Abu-Jamal,

25
130 S.Ct. 1134 (2010).17 We explained that, “a timely objection
of racial bias involving jury composition would have alerted the
judge to errors that might be corrected in the first instance and
given the judge the opportunity to develop a complete record of
the jury selection process for appellate review.” Abu-Jamal, 520
F.3d at 282. Thus, in Abu-Jamal the petitioner forfeited his
Batson claim because he “did not object to the prosecutor’s use
of peremptory challenges at any point during voir dire or at his
1982 trial.” Id. at 283-84. Likewise, in Lewis we held that the
petitioner’s statement of “So prejudiced. So prejudiced,” and “I
knew he would do that” after the prosecution’s use of
peremptory strikes was not sufficient to alert the trial judge to a
claim that the prosecution was striking venire members in a
racially discriminatory manner. Lewis, 581 F.3d at 102.

As was true for the petitioners in Lewis and Abu-Jamal,
Lark’s trial was prior to the Supreme Court’s decision in Batson
and thus was at a time that Swain v. Alabama, 380 U.S. 202, 85
S.Ct. 824, set forth the standard governing the review of the use
of peremptory challenges. In order to show a Fourteenth
Amendment Equal Protection Clause violation under Swain, the
defendant had “to show a pattern and practice of racial

17
On the remand from the Supreme Court we adhered to the
result we reached in our vacated opinion and affirmed the
district court’s order granting the petitioner habeas corpus relief
to the extent that he had been sentenced to death in the state
court. Abu-Jamal v. Sec’y Pa. Dep’t of Corr., No. 01-9014,
____ F.3d. ____, 2011 WL 1549231 (3d Cir. Apr. 26, 2011).
But our opinion on the remand does not affect the dispositions
for which we cite our earlier opinion in that case in this opinion.

26
discrimination in jury selection across multiple prosecutions,”
Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir. 1996), but the
prosecutor did not need to give reasons for the use of individual
peremptory challenges to avoid a finding that there had been an
equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct.
at 837. An equal protection objection under Swain, however,
“necessarily states an equal protection violation subject to proof
under the Batson standard . . . .” Ford v. Georgia, 498 U.S. 411,
420, 111 S.Ct. 850, 856 (1991).

Here it is clear that Rogers, Lark’s trial attorney, raised a
timely objection to what he perceived was the prosecutor’s
exercise of discriminatory peremptory challenges. At the trial
on June 7, 1985, Rogers asked that:

[T]he records be preserved to indicate the racial
composition of the jurors who are coming by so
as to preserve an opportunity for me to make a
challenge that the Commonwealth may in fact be
excluding all blacks who come before this panel?
Only way I can determine that is if I have the
records made available to me.

App. at 611-12.

Counsel later stated that “as of this afternoon, your honor,
he is striking all blacks.” Id. at 612. The trial court refused to
make a record as it stated that there was no way to determine a
person’s race or color and that neither attorney had to explain
his reasons for exercising peremptory challenges. Rogers’

27
statements that the prosecutor was striking all of the black jurors
put the trial court on notice of Lark’s claim and distinguishes his
case from Lewis and Abu-Jamal. Specifically, Rogers timely
pointed out what he perceived was the Commonwealth’s racially
motivated peremptory strikes and he thus invited the trial court
to develop a record on the issue for appellate review. This
notice was all that Abu-Jamal requires. See Williams v. Beard,
637 F.3d 195, 208 n.12 (3d Cir. 2011).

The Commonwealth’s contentions that Rogers only made
a “vague request for records,” did not ask the trial court to order
Carpenter to explain himself, and only questioned the challenge
of four jurors, do not demonstrate that Rogers did not make an
objection at trial to the allegedly race based peremptory
challenges. Appellant’s reply br. 8-10 (internal quotation marks
omitted). It would have been futile for Rogers to ask that
Carpenter be required to explain the reason for his individual
peremptory challenges or for Rogers to renew the objection
when each African-American juror was excused for under the
Supreme Court case law at the time of Lark’s trial, individual
challenges in one case could not be the basis for finding that
there had been an equal protection violation. 18 See Swain, 380

18
The Commonwealth cites Galarza v. Keane, 252 F.3d 630,
638 (2d Cir. 2001), for the proposition that a party must raise an
objection in a manner that would allow a trial court to remedy
the problem at trial. Galarza is inapposite because the trial in
that case occurred three years after the Supreme Court’s
decision in Batson. Id. at 633.

28
U.S. at 222, 85 S.Ct. at 837. Indeed, the trial court indicated as
much when it stated that neither Carpenter nor Rogers had to
explain the reasons behind individual peremptory strikes.

We think it is also significant that even Carpenter
recognized that Rogers was attempting to raise a Fourteenth
Amendment Equal Protection argument when Carpenter stated,
referring to the Swain standard, that “there’s obviously not
systematic exclusion when you’ve got 3 members out of 9 who
are the same race as the defendant and his attorney.” App. at
616; see Swain, 380 U.S. at 227, 85 S.Ct. at 839. Further,
Rogers’ request for a record of the race of the jurors that
Carpenter struck sought the type of evidence that would support
(or refute) an equal protection violation under Swain. See id. at
223, 85 S.Ct. at 837 (“[W]hen the prosecutor in a county, in case
after case, whatever the circumstances, whatever the crime and
whoever the defendant or the victim may be, is responsible for
the removal of Negroes who have been selected as qualified
jurors by the jury commissioners and who have survived
challenges for cause, with the result that no Negroes ever serve
on petit juries, the Fourteenth Amendment claim takes on added
significance.”).

Therefore, even though Rogers’ statement that Carpenter
was striking “all the blacks” from the jury and his request that
the trial court make a record of the race of the jurors did not
raise an objection with “the clarity that appropriate citations
would have promoted,” his protest reasonably raised an equal
protection claim under Swain. Ford, 498 U.S. at 418, 111 S.Ct.
at 855. Thus, the objection was adequate to raise an equal
protection claim under Batson. Id. at 420, 111 S.Ct. at 856.

29
 Finally, the Commonwealth argues that, even if Lark
properly objected to Carpenter’s peremptory strikes so as to
raise an equal protection claim, the trial court’s rejection of that
objection is entitled to deference. It is true that in the habeas
corpus context federal courts owe the same deference to implicit
state court factual findings as they afford to explicit state court
factual findings. See, e.g., LaVallee v. Delle Rose, 410 U.S.
690, 692, 93 S.Ct. 1203, 1204 (1973) (per curiam); Campbell v.
Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (“[A]n implicit
finding of fact is tantamount to an express one, such that
deference is due to either determination.”). Here, however, the
trial court’s response that it was impossible to determine the
race of the jurors and that counsel did not have to give reasons
for peremptory challenges, clearly was a refusal to engage in an
equal protection analysis rather than an implicit finding of fact
entitled to deference under 28 U.S.C. § 2254(e)(1). Cf.
Campbell, 209 F.3d at 289-90 (holding that state court made
implicit credibility finding entitled to deference where court
repeatedly stated that petitioner’s ineffective assistance of
counsel claim had no legal merit); see also Coombs v.
Diguglielmo, 616 F.3d 255, 263 (3d Cir. 2010) (citation
omitted) (“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.”). 19

19
Of course, we do not fault the trial court for failing to engage
in the three-step analysis at a time that the Supreme Court had
not announced that a court should engage in that analysis.
However, the trial court, by refusing to make a record of the
race of the struck jurors, failed even to undertake or at least

30
 In sum, even though Lark did not present his equal
protection claim with great clarity at the trial we will not reject
his Batson claim on the basis that he failed to advance a timely
Batson objection at trial.

B. Procedural Default

We next consider whether Lark procedurally defaulted
his Batson claim by failing to advance it properly in the
Pennsylvania courts. There has been a procedural default when
“a state court declined to address a prisoner’s federal claims
because the prisoner failed to meet a state procedural
requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111
S.Ct. 2546, 2554 (1991). As a matter of comity and federalism,
a federal court may not conduct habeas corpus review of a claim
which a petitioner has procedurally defaulted in state court.
Federal review, however, is available if the procedural rule that
the state court applied to bar a federal claim was not
“independent” and “adequate.” See Albrecht v. Horn, 485 F.3d
103, 115 (3d Cir. 2007) (internal citations omitted). A state
procedural rule is an inadequate ground to bar federal review if
it was not firmly established and regularly followed by the state
courts at the time it was applied. Bronshtein, 404 F.3d at 707.
Whether a procedural rule “was firmly established and regularly
applied is determined as of the date the default occurred, and not
as of the date the state court relied on it, because a petitioner is
entitled to notice of how to present a claim in state court.”
Albrecht, 485 F.3d at 115 (internal citations omitted).

initiate an analysis under the standard then in effect under
Swain.

31
 Lark first attempted to raise a specific claim under Batson
when he unsuccessfully sought an order from the Pennsylvania
Supreme Court remanding his PCRA petition to the PCRA court
so that he could raise a Batson claim. Thereafter Lark filed a
second PCRA petition in 1997 raising a Batson violation as a
ground for relief and requesting that the court grant him an
evidentiary hearing to present proof of the race of the
venirepersons at his trial and to enable him to advance the
McMahon tape in support of his claim. The PCRA court,
without holding an evidentiary hearing, dismissed the petition as
untimely under the PCRA deadline set forth in 42 Pa. Cons.
Stat. Ann. § 9545(b).

On appeal from the dismissal of the second PCRA
petition, the Pennsylvania Supreme Court invoked section
9545(b)(1)(ii) 20 to hold that the petition so far as it asserted a
Batson claim was timely but only to the extent that Lark
predicated the claim on the McMahon tape. 746 A.2d at 588.
Thus, the court held that it could not review the Batson claim to
the extent Lark predicated it on the Baldus study, the
prosecutor’s “Oh. How awful,” statement, and the race of the
potential jurors inasmuch as those aspects of the claim were
ascertainable more than one year before Lark filed his second
PCRA petition, and a Batson claim on any of these three bases
did not fall within the exception set forth in section

20
Section 9545(b)(1)(ii) provides that a claim is not untimely if
“the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the
exercise of due diligence.”

32
9545(b)(1)(ii). Id. at 589. On the merits, the court held that the
McMahon tape was not sufficient to establish a policy of
discrimination by the prosecutors in the Philadelphia District
Attorney’s Office. Id. (citing Commonwealth v. Rollins, 738
A.2d 435, 443 n.10 (Pa. 1999)).

As we recently discussed in Morris v. Beard, 633 F.3d
185 (3d Cir. 2011), the PCRA one-year statute of limitations in
42 Pa. Cons. Stat. Ann. § 9545(b) was not firmly established and
regularly followed prior to 1998:

In Bronshtein, we explained that the PCRA’s one-
year statute of limitations was not an adequate
state bar to federal habeas review of claims
defaulted prior to, at the very least, October 20,
1998. [Bronshtein, 404 F.3d] at 709. Before that
date, Pennsylvania courts frequently applied a
‘relaxed waiver’ rule in capital cases. Id. In other
words, courts refused to enforce procedural rules-
-such as the PCRA’s one-year statute of
limitations--in capital cases because of the
‘overwhelming public interest in preventing
unconstitutional executions.’ Id. at 708 (quoting
Commonwealth v. McKenna, 476 Pa. 428, 383
A.2d 174, 180-81 (Pa. 1978)) (internal quotation
marks omitted). Although a trio of Pennsylvania
Supreme Court decisions in 1998 and 1999
interred the relaxed waiver doctrine, see, e.g,
Commonwealth v. Banks, 556 Pa. 1, 726 A.2d
374 (Pa. 1999), we observed in Bronshtein that it
was not clear that the rule would be unavailable as
of October 20, 1998--the date of Bronshtein’s

33
 default. See 404 F.3d at 709-10. Because the
PCRA’s one-year statute of limitations ‘was not
firmly established and regularly followed’ as of
that date, we held it was an inadequate state bar to
federal habeas review of Bronshtein’s claims. Id.

Morris, 633 F.3d at 191.

Here, the default in the timeliness of the filing of Lark’s
second PCRA petition was on January 16, 1996, 21 or the
effective date of the PCRA time bar, at a time that the PCRA
one-year time bar was not firmly established due to the

21
The District Court set the default date as August 18, 1989, or
one year after completion of the direct appeal in Lark’s case, but
that date fails to account for the statutorily created one-year
grace period for filing PCRA petitions where, as here, the
judgment of sentence became final before the effective date of
the time bar, or January 16, 1996. See Commonwealth v.
Peterkin, 722 A.2d 638, 641 (Pa. 1998). Lark’s first PCRA
petition, filed in 1994 and thus before the one-year deadline,
was not subject to the one-year deadline. Inasmuch as the grace
period does not apply to second or subsequent petitions, the date
of default for the second petition is the effective date of the time
bar or January 16, 1996. See Commonwealth v. Crawley, 739
A.2d 108, 109 (Pa. 1999). As a matter of law, however, the
error has no consequence on this appeal because the relaxed
waiver rule was followed in Pennsylvania until after the default
here.

34
Pennsylvania Supreme Court’s “relaxed waiver” rule. 22
Bronshtein, 404 F.3d at 708 (citing Commonwealth v.
McKenna, 383 A.2d 174 (Pa. 1978)). Therefore, as we held in
Bronshtein and most recently re-affirmed in Morris in a similar
situation, the one-year PCRA time bar cannot justify a federal
court determination that Lark’s Batson claim has been
procedurally defaulted.

The Commonwealth argues that the state time-bar rule
was an adequate basis to find that Lark had procedurally
defaulted his Batson claim because he had notice of the time bar
which the Pennsylvania General Assembly made explicitly
applicable to capital cases and, further, that the Pennsylvania
Supreme Court never applied the relaxed waiver rule to the time
bar. But our reasoning in Bronshtein refutes these arguments
and we have reaffirmed the Bronshtein reasoning in subsequent
cases and, therefore, we need not address the Commonwealth’s
arguments any further. 23 See Morris, 633 F.3d at 195; Holland
v. Horn, 519 F.3d 107, 115 (3d Cir. 2008).

In holding that the time bar was not an independent and
22
The Pennsylvania Supreme Court since has made it clear that
it no longer would relax procedural requirements in capital
cases. See Whitney v. Horn, 280 F.3d 240, 251 n.12
(3d Cir. 2002).
23
The Commonwealth seems to acknowledge this point, stating
that it was including the procedural default argument in order to
preserve the issue for “possible en banc or
Supreme Court review.” Appellant’s br. at 34.

35
adequate state ground for denying relief for purposes of a later
procedural default analysis in a federal district court, we have
considered the two most recent Supreme Court decisions
addressing the adequate and independent state rule doctrine,
Walker v. Martin, 131 S.Ct. 1120 (2011), and Beard v. Kindler,
130 S.Ct. 612 (2009). In Kindler, the Court considered a very
narrow question not implicated here: whether a state procedural
ground is automatically inadequate and unenforceable on federal
habeas corpus review because the state procedural rule is
discretionary rather than mandatory. Id. at 614-15.24 Similarly,
in Walker the Court held that California’s judge-made rule that a
state habeas corpus petition “should be filed as promptly as the
circumstances allow . . .” is an independent and adequate state
rule for purposes of procedural default. Walker, 131 S.Ct. at
1125 (internal quotation marks and citation omitted). The Court
held that the California rule, though discretionary, met the
“firmly established” criterion because the California courts’
application of the rule in particular circumstances supplied the
requisite clarity for habeas corpus petitioners. Id. at 1128.

24
Kindler vacated our decision in Kindler v. Horn, 542 F.3d 70
(3d Cir. 2008), in which we held that the Pennsylvania fugitive
forfeiture doctrine pursuant to which the petitioner’s conviction
was affirmed did not provide an adequate basis to bar federal
habeas corpus review. On the remand from the Supreme Court
we adhered to our prior result on the ground that the
Pennsylvania courts rather than applying a discretionary rule
“applied a mandatory rule that represented a break from past
decisions.” Kindler v. Horn, No. 03-9010,____ F.3d ____,
____, 2011 WL 1602083, at *1 (3d Cir. Apr. 29, 2011).

36
Further, the rule was “regularly followed” even though at times
the California courts bypassed the rule and summarily dismissed
petitions on the merits. Id. at 1129.

The Supreme Court’s holdings in Walker and Kindler
have not affected our holding in Bronshtein that prior to 1998
capital petitioners in Pennsylvania could rely on state courts to
relax procedural rules, including the one-year PCRA time bar.
Bronshtein, 404 F.3d at 709. 25 Both Walker and Kindler
concerned discretionary and independent state procedural rules
which state courts consistently applied to bar federal claims. In
contrast, Pennsylvania’s PCRA time bar is a facially mandatory
state procedural rule which was not clearly followed in capital
cases at the time of Lark’s state court default due to the
Pennsylvania Supreme Court’s judicially created doctrine of
“relaxed waiver.” See, e.g., Bostick v. Stevenson, 589 F.3d
160, 165 n.6 (4th Cir. 2009) (“We do not read Kindler to apply
to facially mandatory rules that state courts nonetheless apply
arbitrarily.”). Indeed, by the Pennsylvania Supreme Court’s
own recognition, the “relaxed waiver” rule “virtually eliminated
any semblance of finality in capital cases . . . .” Commonwealth
v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). Thus, it cannot be
argued plausibly that the PCRA time bar regularly was followed
or firmly was established at the time of Lark’s procedural
default in 1996.

C. District Court Evidentiary Hearing

25
In any event, as we noted above, we applied Bronshtein’s rule
after the Supreme Court decided Kindler. See Morris, 633 F.3d
at 195.

37
 The Commonwealth argues that, even assuming Lark’s
Batson claim is not procedurally defaulted, the District Court
should not have held an evidentiary hearing on the claim
inasmuch as Lark was not sufficiently diligent in pursuing his
Batson claim in state court as 28 U.S.C. § 2254 requires.
Section 2254(e)(2) provides that,

If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –

(A) the claim relies on—

(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or

(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and

(B) the facts underlying the claim would be
sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.

38
28 U.S.C. § 2254(e)(2).

The Supreme Court has held that a failure to develop the
factual basis of a claim in the opening clause of section
2254(e)(2) “is not established unless there is lack of diligence,
or some greater fault, attributable to the prisoner or the
prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120
S.Ct. 1479, 1488 (2000). The Court distinguished the diligence
requirement of the opening clause of section 2254(e)(2) from the
diligence requirement of section 2254(e)(2)(A)(ii) by explaining
that the latter refers to cases in which the facts underlying a
claim could not have been discovered through due diligence
while the former asks only whether “the prisoner made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court . . . .” Id. at
435, 120 S.Ct. at 1490.

Thus, there is a separate fault requirement in the opening
clause of section 2254(e)(2) which asks whether the petitioner
adequately and diligently pursued the factual basis of his claim
in state court. If the petitioner fails in this regard and is
therefore “at fault,” the bar to relief in section (e)(2) is raised.
Otherwise, if the petitioner is not “at fault,” the court may
exercise its discretion to grant an evidentiary hearing. See
Campbell, 209 F.3d at 287 (stating that if section 2254(e)(2)
does not bar an evidentiary hearing, federal courts have
discretion to grant a hearing with the potential to advance the
petitioner’s claim). Here, the District Court held that because
the state court denied Lark’s request for an evidentiary hearing
based on an inadequate procedural rule, Lark did not fail to
develop the Batson claim and section 2254(e)(2) did not bar a
hearing in that Court. See Morris, 633 F.3d at 194-95 (citing

39
Wilson, 426 F.3d at 665). The Court, after finding section
2254(e)(2) inapplicable, exercised its discretion to grant Lark an
evidentiary hearing.

The Commonwealth contends that the District Court
improperly conflated diligence and procedural default. In
Wilson we stated that the procedural default doctrine and section
2254(e)(2)’s diligence requirement analytically were linked: “If
a petitioner requests a hearing to develop the record on a claim
in state court, and if the state courts . . . deny that request on the
basis of an inadequate state ground, the petitioner has not ‘failed
to develop the factual basis of [the] claim in State court
proceedings’ for the purposes of § 2254(e)(2).” Wilson, 426
F.3d at 665. Nevertheless, the Commonwealth argues that the
diligence standard sets a different and higher bar than the
procedural default doctrine and dismissal on the basis of an
inadequate procedural rule does not excuse years of dilatoriness
in state court. The Commonwealth also argues that Wilson is
distinguishable because McMahon himself prosecuted the
petitioner in that case and the petitioner could not have brought
the claim earlier because the tape was the “centerpiece” of his
Batson claim. Id. at 666 n.11. As the Commonwealth is quick
to point out, Lark was aware of the factual predicates of his
Batson claim – the pattern of the prosecution’s strikes, the race
of the jurors, and the prosecutor’s statement – as early as his
trial counsel’s objection during the jury selection process of his
case.

The Commonwealth makes a strong argument,
particularly inasmuch as the years of delay between the District
Court evidentiary hearing and the trial greatly prejudiced its
ability to respond to the Batson claim. As the Supreme Court

40
has noted, the principles of comity and federalism underlie the
diligence requirement:

Comity . . . dictates that when a prisoner alleges
that his continued confinement for a state court
conviction violates federal law, the state courts
should have the first opportunity to review this
claim and provide any necessary relief. For state
courts to have their rightful opportunity to
adjudicate federal rights, the prisoner must be
diligent in developing the record and presenting,
if possible, all claims of constitutional error.

Williams, 529 U.S. at 437, 120 S.Ct. at 1490-91 (internal
citation and quotation marks omitted).

It is undoubtedly reasonable to argue that Lark’s failure
to raise the Batson claim on direct appeal followed by his
inaction for six years before filing a post-conviction petition,
which even then did not raise a Batson claim, demonstrated that
he did not make a “diligent search for evidence.” Id. at 435, 120
S.Ct. at 1490. Moreover, Rogers, who was Lark’s counsel on
his direct appeal as well as at trial, was clearly aware of a
potential discriminatory jury selection claim for, as we have
discussed, he raised an objection to the prosecution’s strikes
during voir dire. Thus, though the McMahon tape and the
Baldus study may not have alerted Lark to a possibility of there
having been a “culture of discrimination” 26 in the Philadelphia

26
The District Court noted that the McMahon tape “could
conceivably reflect a culture of discrimination that is relevant to
. . . Lark’s Batson/Swain claim.” Lark I, 2006 WL 1489977, at

41
District Attorney’s Office until after his trial and direct appeal in
this case, see Cockrell, 537 U.S. at 347, 123 S.Ct. at 1045, we
reject Lark’s argument that he could not have been aware of his
Batson claim given the information available at the time of his
direct appeal and we also reject his argument that he could not
have discovered the claim through the exercise of a reasonable
investigation. Cf. Williams, 529 U.S. at 439-40, 120 S.Ct. at
1492 (holding that petitioner failed to develop facts of Brady
claim where counsel was a aware of psychiatric report but failed
to investigate in anything but a “cursory manner”). After all, the
jury selection process took place in front of him. Moreover,
inasmuch as a Batson claim, unlike a Swain claim, can be
proven by the facts in a single case relating to jury selection,
Lark did not need “culture of discrimination” materials to
establish his claim.

We nevertheless reject the Commonwealth’s arguments
regarding the delay in this case because, after the
Commonwealth submitted its brief on this appeal but before the
oral argument, we rejected an almost identical argument in
Morris. In that case, the petitioner, Kelvin Morris, was
convicted of first-degree murder and sentenced to death in
Pennsylvania state court. After he filed an unsuccessful direct
appeal and an unsuccessful PCRA petition, Morris filed a
second PCRA petition in which he raised, for the first time, a
claim that his trial attorney’s representation of his brother, Artie

*8 n.15. We, however, since have held that a district court did
not clearly err in finding that the McMahon tape did not create a
culture of discrimination in the Philadelphia District Attorney’s
Office. Bond v. Beard, 539 F.3d 256, 273 (3d Cir. 2008).

42
Morris, in a civil suit created a conflict of interest that deprived
Morris of effective assistance of counsel in his criminal trial.
Morris, 633 F.3d at 190. The PCRA court dismissed the second
petition without holding an evidentiary hearing for the sole
reason that Morris filed the petition beyond the PCRA’s one-
year statute of limitations. Id. Morris then filed a federal
habeas corpus petition raising the same claim and requesting an
evidentiary hearing. The Commonwealth, as it does in this case,
argued that, because of the lengthy delay and the timing of
Morris’ claim,27 section 2254(e)(2) barred the district court from
holding an evidentiary hearing.

Inasmuch as the petitioner in Morris and Lark are in
almost identical procedural postures, we will quote from our
opinion in Morris at length:

One might argue that [Morris’] failure to comply
with the PCRA’s one-year statute of limitations
means that he did not seek a hearing ‘in the
manner prescribed by state law.’ Williams, 529
U.S. at 427, 129 S.Ct. at 1485-86. But such an
argument runs headlong into our holding in
Bronshtein, where we observed that the PCRA’s
time bar was neither ‘firmly established’ nor
‘regularly followed’ at the time [Morris] filed his
second PCRA petition. 404 F.3d at 709-10.
Because of the uncertainty surrounding
Pennsylvania’s use of the ‘relaxed-waiver rule’ at
that time, it was effectively impossible for
27
Morris filed the claim 13 years after the trial and one month
after his brother died.

43
[Morris] to fail to comply with Pennsylvania law
on statute of limitations grounds when filing his
second PCRA petition. In Williams, the Supreme
Court explained that a finding of diligence would
turn on whether a petitioner ‘made a reasonable
attempt’ to pursue his claim ‘in light of the
information available at the time.’ 529 U.S. at
435, 129 S.Ct. at 1490. With no ‘firmly
established and regularly applied rule’ clearly
barring [Morris’] lengthy delay, Bronshtein, 404
F.3d at 708, his belated hearing request was an
acceptable attempt to pursue his claim in light of
the information available to him at the time of
filing. Because the Pennsylvania state courts
failed to hold a hearing and rule on [Morris’]
conflict-of-interest claim ‘for some reason
unrelated to [his] diligence, § 2254(e)(2) [does]
not apply and a new evidentiary hearing [is]
permitted.’ Taylor v. Horn, 504 F.3d 416, 436 (3d
Cir. 2007).

As the Commonwealth correctly argues,
merely because a petitioner has complied with
state law when seeking an evidentiary hearing
does not mean that he has been diligent for
purposes of § 2254(e)(2). The jurisdictional
standard for procedural default of § 2254(a) and
the evidentiary hearing standard of § 2254(e)(2)
are distinct provisions that will frequently require
separate analyses. But where, as here, a state court
gives no reason for denying a petitioner’s hearing

44
 request other than his failure to comply with a
subsequently invalidated state statute of
limitations, we cannot say that the petitioner was
not diligent for purposes of § 2254(e)(2).
Accordingly, we hold that § 2254(e)(2) did not
prohibit the District Court from conducting an
evidentiary hearing on [Morris’] conflict-of-
interest claim.

Morris, 633 F.3d at 195-96 (emphasis added).

In a letter filed pursuant to Fed. R. App. P. 28(j), the
Commonwealth attempts to distinguish Morris by arguing that
the rule we established in that case was the following: “where a
petitioner had the opportunity and forum to litigate the merits of
the claim in state court, but failed to do so, he is not diligent
under [section] 2254(e)(2) even though his later attempt to raise
the again [sic] is barred by an inadequate rule.” Appellant’s
28(j) letter dated January 31, 2011, at 1-2. But as the excerpted
portion above demonstrates, this is a misstatement of Morris’
holding. Rather, the holding in Morris was that section
2254(e)(2) does not bar an evidentiary hearing for lack of
diligence where the only reason a state court gives for denying
an evidentiary hearing is a subsequently invalidated state
procedural rule. This is exactly what happened in Lark’s case. 28

28
We are also unconvinced by the Commonwealth’s attempt to
distinguish Morris on the ground that the conflict of interest
claim in that case, unlike Lark’s Batson claim, occurred outside
the courtroom and thus the inadequate state procedural rule

45
 Furthermore, the Commonwealth’s reliance on our
opinion in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), is
unconvincing. In Taylor, the petitioner obtained an evidentiary
hearing during his first PCRA hearing and, after the PCRA court
denied the claim, unsuccessfully sought to present new expert
witnesses testimony in a second PCRA petition raising the same
claim. We affirmed the district court’s denial of the request for
an evidentiary hearing under section 2254(e)(2) despite the
Pennsylvania Supreme Court’s dismissal of Taylor’s second
PCRA petition pursuant to an inadequate state procedural
ground: “Unlike the petitioner in Wilson, Taylor’s competency
claim was raised in his first PCRA petition and addressed on the
merits. His resurrection of the claim in his second PCRA
petition does not put it under Wilson’s rule.” Id. at 436-37. The
procedural posture of Lark’s case differs from that of the
petitioner in Taylor inasmuch as Lark is not attempting to get
two bites at the apple by requesting a district court hearing to
present new evidence which was available at the time of his
state court evidentiary hearing. Id. at 437 (“The only thing that
prevented Taylor from presenting his new evidence of
incompetency before the first PCRA court was a lack of
diligence.”). Rather, Lark is requesting a hearing because the
state court prevented him from presenting his evidence in the
first instance by the application of an inadequate procedural
rule. In that respect, Lark’s request, to the extent that his Batson

prevented Morris from presenting evidence in the only forum
available to him. This rationale clearly was not the basis for our
holding in Morris.

46
claim is based on the Commonwealth’s pattern of discriminatory
strikes, falls squarely within Morris’ holding and, therefore, we
find that section 2254(e)(2) did not prevent the District Court
from granting him an evidentiary hearing on his Batson claim.

D. Merits of Lark’s Batson Claim

1. The AEDPA

We can understand why by this time a reader of this
opinion would wonder whether we ever would reach the
substantive issue on this appeal, i.e., did the District Court
correctly grant Lark habeas corpus relief leading to his release
or a new trial? But our long discussion of the procedural and
jurisdictional issues was necessitated by the remarkable
complexity of the law governing habeas corpus petitions which
to a large extent is the result of the interaction of state and
federal law inherent in our dual sovereignty system. In fact,
solving the procedural and jurisdictional issues before we could
reach the substantive issues on this appeal was a process much
like solving Rubik’s cube. But we now reach the merits issue on
this appeal.

Pursuant to the AEDPA, where a state court adjudicates
the merits of a petitioner’s claim, federal courts review the claim
under a highly deferential standard. See 28 U.S.C. § 2254(d)(1)
& (2); Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). As we
have indicated, Lark properly presented the Batson claim based
on the Commonwealth’s pattern of jury strikes to the state courts
in his second PCRA petition, but the state courts rejected that
claim largely pursuant to what clearly was a state procedural
rule inadequate to bar federal habeas corpus review. When, as

47
here, the state courts do not adjudicate a claim on the merits, and
that claim is presented properly to a federal court in a petition
for a writ of habeas corpus, the deferential standards of the
AEDPA do not apply. See Coombs, 616 F.3d at 260 (citing
Holloway, 355 F.3d at 718). Therefore, for the most part a
federal habeas corpus court considering Lark’s Batson claim
based on the Commonwealth’s pattern of jury strikes should
exercise de novo review. Coombs, 616 F.3d at 261. On the
other hand, to the extent that the Supreme Court of Pennsylvania
rejected Lark’s Batson claim that he predicated on the
McMahon tape on the merits we will assume that its decision is
entitled to deferential review. But that possibility is of no
consequence on this appeal as the District Court did not rely on
the McMahon tape to reach its conclusion and we are
predicating our result on our determination that as a matter of
federal law the District Court misapplied Batson. Accordingly,
our review is entirely de novo.

2. Batson Three-Step Analysis.

The Equal Protection Clause of the Fourteenth
Amendment “prohibits a prosecutor from using a peremptory
challenge to strike a prospective juror solely on account of
race.” Holloway, 355 F.3d at 719 (citing Batson, 476 U.S. at 88,
106 S.Ct. 1712). But “[a]s 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.” Coombs, 616 F.3d at 261 (quoting Batson, 476
U.S. at 93, 106 S.Ct. 1712) (internal quotation marks omitted).
We have held that the exclusion of even one vernireperson from
the jury based on race requires that, under Batson, there be a
new trial. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990).

48
 As we stated earlier, typically the adjudication of a
Batson violation proceeds in three steps: (1) the defendant must
make a prima facie showing that the prosecution has exercised a
peremptory challenge in a discriminatory manner; (2) once the
defendant makes that prima facie showing, the prosecutor must
offer a race-neutral reason for having exercised the challenge;
(3) the trial court, weighing the parties’ submissions, determines
whether the prosecution’s strike amounted to purposeful
discrimination violating the Equal Protection Clause of the
Fourteenth Amendment. Cockrell, 537 U.S. at 328-29, 123
S.Ct. at 1035. In this three-step process the prosecution has the
burden of production of the race-neutral reason for the strike at
the second step, but the burden of persuasion never shifts from
the opponent of the peremptory strike. See Purkett v. Elem, 514
U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995) (per curiam).

The Commonwealth argues that we should not use the
Batson three-step burden shifting procedure when making an
analysis many years after the trial because the use of the
procedure at that time is unfairly advantageous to the petitioner
and greatly prejudicial to the Commonwealth. But our
precedent clearly requires that we reject that argument. See,
e.g., Hardcastle v. Horn, 368 F.3d 246, 255-56 (3d Cir. 2004)
(applying three-step test in pre-Batson case where defense
attorney did not object until after voir dire was completed);
Love, 40 F.3d at 667 (applying three-step Batson analysis in a
post-trial context).

Certainly, when the Supreme Court developed Batson’s
burden-shifting framework, it envisioned that, inasmuch as a
timely objection would permit a prosecutor to explain use of the

49
challenges, a defendant would make an objection at trial to what
he regarded was the prosecutor’s racially based use of
peremptory challenges. After all, as the Commonwealth argues,
applying the burden shifting method several years after the trial
makes it more difficult for the prosecution to provide a race-
neutral explanation for peremptory strikes. Appellant’s br. at
37-38 citing Carter v. Hopkins, 151 F.3d 872, 875-86 (8th Cir.
1998) (holding that it is inappropriate to apply Batson’s burden
shifting where there has been a long delay between jury
selection and the filing of the claim, a voir dire record is not
available, and the petitioner did not raise a timely objection);
McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir. 1996)
(stating in dicta that where a Batson objection was raised over
three months after trial, petitioner was not entitled to benefit of
burden shifting rule). 29 Indeed, one reason that the Supreme

29
Of course we recognize that in both McCrory and Henderson,
unlike in this case, the defendants did not raise objections to the
prosecutor’s discriminatory exercise of peremptory challenges at
their respective trials and, further, the voir dire was not recorded
in either case. Carter, 151 F.3d at 873; McCrory, 82 F.3d at
1245. However, like the defendants in those cases, Lark did not
raise a Batson claim until after the trial, and thus, in light of the
passage of time between the voir dire and the time when a court
first adjudicated the merits of the Batson claim, the prosecutor’s
faded memory rendered the three-step process analysis much
more difficult for both Lark and the Commonwealth. See
Holloway, 355 F.3d at 726 (explaining that a 17-year delay
between trial and appellate review of a Batson claim “is
certainly regrettable both for the Commonwealth and for
Holloway . . . .”).

50
Court applied Batson retroactively only in cases pending on
direct review at the time that it decided Batson was the difficulty
in applying Batson long after the trial. See Allen v. Hardy, 478
U.S. 255, 260-61, 106 S.Ct. 2878, 2881 (1986) (per curiam)
(declining to hold Batson applicable to cases pending on
collateral review when the Court decided Batson).

In recognition of the delay problem, we realize that it is
one thing to apply Batson in the adjudication of a direct appeal
that was pending when the Supreme Court decided that case but
quite a different matter to apply it in a collateral proceeding
many years later merely because a direct appeal had been
pending in the case under review when the Supreme Court
decided Batson. Thus, it is not surprising that we have a line of
cases, discussed more extensively below, which provide
guidance on how to approach a prosecutor’s faded memory in
the adjudication of Batson claims brought years after trial. But
even in cases of delay in the assertion of a Batson claim, we
never have adopted the Court of Appeals for the Eighth Circuit’s
reasoning that, in order to obtain Batson relief, a petitioner has
to show “purposeful discrimination” outside of an ordinary
burden shifting analysis. Carter, 151 F.3d at 875-76. We
decline to do so now and therefore will analyze the merits of
Lark’s claim under the usual three-step burden shifting
procedure.

3. Step 1: The Prima Facie Case

The Supreme Court has indicated that in a determination
of whether a petitioner has established a prima facie case under
Batson, the prosecutor’s pattern of peremptory strikes is
significant as are the “prosecutor’s questions and statements

51
during voir dire examination and in exercising his challenges . . .
.” Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Further, in
making Batson determinations “we have identified several
additional factors, including how many members of the
cognizable racial group are in the venire panel; the nature of the
crime; and the race of the defendant and the victim.” Lewis, 581
F.3d at 103 (citations and internal quotation marks omitted).

Here, though the District Court indicated in its July 3,
2007 opinion and order that Lark established a prima facie
Batson violation, it is unclear when, if ever, the Court actually
made that finding. In its May 23, 2006 opinion, though the
Court stated that Lark alleged facts which, if proven true, would
establish a prima facie case under Batson, it noted that the
Commonwealth disputed those facts and, indeed, it granted an
evidentiary hearing, in part, to resolve that dispute. Lark I, 2006
WL 1489977, at *9; App. at 42. Those alleged facts supporting
the prima facie case included the prosecution’s high strike rate
of African-American jurors, the absence of any obvious non-
racial basis for the strikes in the voir dire transcripts, and the
trial prosecutor’s remark (“Oh. How awful”) in response to
defense counsel’s objection to his pattern of discriminatory
strikes. Id. at *8; App. at 41.

In its second opinion and order on July 3, 2007, the order
from which the Commonwealth has appealed, the District Court,
in a footnote, stated that it previously had found that Lark
established a prima facie case and cited to its May 23 opinion in
which it set forth the disputed facts. Lark II, 495 F. Supp. 2d at
501 n.10. But the problem with the Court’s reference is that
allegations are not findings. The Court then stated that Lark met
his step-one burden based on the composition of the venire and

52
the pattern of strikes exercised by the Commonwealth. Id.

The Commonwealth, however, does not challenge that
Lark has established a prima facie Batson violation. 30 We will
assume that the District Court correctly concluded that Lark met
his step-one burden based on the composition of the venire and
the pattern of strikes Carpenter exercised. Consequently, we
find it necessary to consider the prosecutor’s step-two
explanation for the strikes.

4. Step 2: A Race-Neutral Explanation

The Commonwealth argues that Carpenter’s inability to
explain the reasons for his use of three peremptory challenges at
30
The Commonwealth does argue that Carpenter’s pattern of
strikes of African-American jurors is not sufficient to prove that
any single strike was motivated by race. Appellant’s br. at 50-
51. Inasmuch as the District Court, at the third step, has a duty
to determine whether Lark has established that Carpenter
purposefully discriminated in the exercise of any of his
peremptory challenges, we will not address the
Commonwealth’s argument on this appeal. After all, it is at the
third step that the District Court must weigh all the facts and
circumstances relating to Carpenter’s intent, including the
pattern of peremptory strikes Carpenter used against African-
American jurors. See Jordan v. Lefevre, 206 F.3d 196, 200 (2d
Cir. 2000) (“[T]he third step of the Batson inquiry requires a
trial judge to make ‘an ultimate determination on the issue of
discriminatory intent based on all the facts and
circumstances.’”).

53
the second step of the Batson analysis was not a sufficient
ground to grant the conditional writ of habeas corpus because
that inability along with the other information available to the
District Court did not enable Lark to satisfy his ultimate burden
of proving intentional discrimination. We agree with the
Commonwealth’s contention.

At step two, the Commonwealth has the burden to
produce a race-neutral explanation but nevertheless the
opponent of the peremptory strike retains the ultimate burden of
proof on the Batson issue. See Purkett, 514 U.S. at 768, 115
S.Ct. at 1171 (“[T]he ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the opponent
of the strike.”). The prosecutor’s burden at step two is not high
as the explanation does not have to be persuasive, or even
plausible. Id. at 767-68, 115 S.Ct. at 1171. Consequently,
inasmuch as the Supreme Court “purposely set a relatively low
bar at step two,” we have held that it would be rare, but not
entirely inappropriate, for a court to grant relief at that step.
Hardcastle, 368 F.3d at 257; see also Harrison, 909 F.2d at 88
(holding that prosecution’s failure to rebut petitioner’s prima
facie showing of racial discrimination as to one juror dictates the
grant of a new trial). But see Yee v. Duncan, 463 F.3d 893, 899
(9th Cir. 2006) (holding that defendant bears the ultimate burden
of proof and therefore step two never can be definitive because
defendant only has raised an inference of discrimination).

Here the District Court found that Carpenter’s failure to
articulate any race-neutral justification for the strikes of three
jurors mandated that it grant Lark habeas corpus relief. The first
juror that Carpenter challenged that we consider is Shirley
Sampson, an African-American female. Carpenter could not

54
recall why he struck Sampson and reading the transcript did not
refresh his memory. Carpenter, however, unequivocally denied
that he did so because she was African-American. Before
proceeding to the next juror, the Commonwealth’s attorney
asked Carpenter whether where the juror lived could be a
significant factor in exercising a peremptory strike. Carpenter
answered that he did not want a juror who lived too close to the
defendant or who lived close to the crime scene; however, he
did not state that he struck Sampson for either of these reasons.

Similarly, Carpenter could not recall a specific reason for
striking Florence Williams, an African-American female.
Carpenter could not find anything “particularly wrong” with
Williams by looking at the trial transcript (App. at 1044); he did,
however, state that there were other circumstances that might
not appear in the transcript, “[f]or example, if I don’t like the
juror, I think . . . it’s a good bet she doesn’t like me.” Id. at
1045. When the District Court stated that “there could have
been body language there,” Carpenter responded by saying
“exactly.” Id. The situation was slightly different with respect
to the third juror, Edison Sisco, an African-American male, even
though Carpenter could not recall a specific reason for striking
him. Carpenter did note that neither he nor defense counsel
asked Sisco many questions and that Sisco was confused about
the last school he attended. Ultimately, however, Carpenter
stated that he could not recall a reason for exercising a strike to
remove Sisco.

Carpenter’s reasons for striking Sampson, Williams, and
Sisco were inadequate to meet the Commonwealth’s burden of
production as explained in Hardcastle. Carpenter’s statement
that he might have struck Williams for reasons that did not

55
appear in the transcript is the type of vague explanation we have
rejected as inadequate to meet the prosecutor’s burden at the
second Batson step. Hardcastle, 368 F.3d at 258. Further,
Carpenter’s unequivocal denial that he struck Sampson because
of her race standing alone would not be an adequate explanation.
See Purkett, 514 U.S. at 769, 115 S.Ct. at 1771 (stating that a
prosecutor cannot satisfy burden of production by denying that
he had discriminatory motive or by merely affirming his good
faith). Finally, Carpenter did not have an independent
recollection for striking Sisco.

As we indicated above, inasmuch as the Supreme Court’s
opinion in Batson was to a degree retroactive and applies to
some trials held before Batson, as is the situation here, we have
considered habeas corpus petitions that have led to proceedings
at which a prosecutor sought to provide explanations for
peremptory challenges years after the trial. In Harrison, the first
such case we encountered, the prosecutor used six of his eight
peremptory challenges to strike all of the African-American
venirepersons and could not recall his reasons for exercising a
peremptory strike on one of the six African-American jurors he
excluded during voir dire: “[j]ust looking at these notes, I don’t
know. I don’t have her age down here. The fact that her son is
a retired police officer, I assume she is an older woman. That
could have been a factor; I don’t know.” 909 F.2d at 87. In
Harrison we balanced the burden to the state of explaining
strikes years made earlier against the interests of justice that
Batson was designed to protect:

Certain other factors, however, most notably the
interests of justice, require retroactive application

56
 of Batson for cases on direct review even where a
long period of time occurs in the state court
appellate process. This is especially true here
where defense counsel timely objected to the use
of peremptory challenges, the number of
peremptory challenges exercised against Blacks
was so great, the race neutral reasons given for
striking other black jury venirepersons were so
weak, and the prosecutor was unable to articulate
a race neutral reason for striking one of the black
venirepersons.

Id. at 87-88. Ultimately, we held that the prosecution’s failure
to rebut Harrison’s prima facie showing of racial discrimination
at the second step mandated the grant of a new trial. Id. at 88.

In Johnson v. Love we held that “the Batson inquiry ends
and the conviction must be vacated at the second stage of the
analysis if the state’s explanation is such that, taken at face
value, it either demonstrates an equal protection violation or
would otherwise be inadequate as a matter of law to support the
conviction.” Love, 40 F.3d at 668 (citations omitted). In Love,
the prosecutor’s explanation for striking a young black juror was
that she would not be sympathetic to the victim of petitioner’s
crime because the victim solicited sexual favors from young
black boys prior to his death. We held that this was not a race-
neutral explanation because the assumption underlying the
prosecution’s answer was “based on a stereotypical view or
intuition that black people, because of their race, will relate to
other black persons in a way that may preclude them from
basing a verdict solely on the relevant evidence.” Id.

57
 In Love we also addressed a situation in which a
prosecutor’s faded memory affects his ability to recall reasons
for a particular peremptory challenge:

There will undoubtedly be post-conviction relief
proceedings in which the state, by reason of
death, absence, or faded memory, will be unable
to produce a prosecutor with a specific
recollection of the reason for a challenge alleged
to violate Batson. Courts frequently are required
to draw inferences from circumstantial evidence
regarding a decision-maker’s state of mind,
however, and we are unwilling to rule out the
possibility that the state may be able to satisfy its
step two Batson burden by tendering
circumstantial evidence. In some post-conviction
relief proceedings, it may well be possible to
reach a reliable conclusion regarding the true
reasons for the challenge based upon the nature of
the case, the transcript of the voir dire of the
challenged juror and other prospective jurors,
contemporaneous notes of the attorneys involved,
and any other available evidence.

Id. at 667 (emphasis added). In a footnote, we
distinguished Harrison by stating that the absence of any
explanation mandated relief in that case but that Harrison
does not suggest that a state should not be permitted to
reconstruct a prosecutor’s rationale for excluding a juror
when the prosecutor cannot explain his motivation for a
strike due to his faded memory. Id. at 667 n.4.

58
 Ten years later, in Hardcastle v. Horn we held that the
Pennsylvania Supreme Court unreasonably applied Batson when
it proceeded to the third step of the analysis without finding that
the Commonwealth at the second step gave an adequate
justification for the use of peremptory challenges. 368 F.3d at
259. In Hardcastle, a case tried before Batson where Batson
became retroactively applicable on direct appellate review, the
petitioner’s trial counsel did not raise an objection during voir
dire but did file a post-voir dire motion under Swain arguing that
the prosecutor’s use of peremptory strikes violated the federal
and state constitutions. The trial court denied the motion and
also denied the prosecutor’s request to state her reasons for
exercising the peremptory strikes. But an en banc panel of the
Court of Common Pleas voted to grant a new trial based on the
jury selection issue. On the initial appeal, the Pennsylvania
Superior Court reversed the grant of a new trial, finding that
Hardcastle failed to make the required showing under Swain.
Id. at 251.

On further appeal, the Pennsylvania Supreme Court,
which heard Hardcastle after the Supreme Court decided Batson,
conducted its own review of the record and held that the
prosecutor’s opportunity to observe the jurors during voir dire
and her decision not to remove two African-American
venirepersons constituted race-neutral reasons for two
peremptory strikes. Thus it determined that Hardcastle failed to
make a prima facie showing that the prosecutor’s strikes
violated the equal protection clause. Id. at 253. The district
court granted Hardcastle a writ of habeas corpus, and, on the
Commonwealth’s appeal, we affirmed, as we found that the
reasons the Pennsylvania Supreme Court accepted for the

59
striking of the two African-American jurors did not satisfy the
Commonwealth’s minimal burden of production at the second
step inasmuch as the record did not contain any evidence of the
two jurors’ demeanor or the prosecutor’s observation or
impressions. Thus, we found that the Supreme Court’s
explanation amounted “to nothing more than a statement that the
prosecutor acted on intuition and with the absence of
discriminatory intent.” Id. at 258.

In 2005, in Wilson v. Beard there was a Batson challenge
in a case in which Jack McMahon had been the prosecutor. The
district court in the habeas corpus proceedings, in light of the
fact that 20 years had elapsed between the time of the trial and
the hearing at which McMahon explained his reasons for
striking jurors at the trial, concluded that it would have been
unreasonable to expect McMahon to remember reasons for his
individual strikes. 426 F.3d at 668. Rather, the district court
held that the race-neutral reasons McMahon offered in the
McMahon tape were sufficient to carry the Commonwealth’s
burden at the second step. Inasmuch as we upheld the district
court’s conclusion that Wilson proved intentional
discrimination, we did not need to decide whether the district
court’s ruling with respect to the second step was correct.
However, we did note that, in light of the passage of time
between the trial and when McMahon offered his explanation
for striking jurors, the district court appropriately lessened the
Commonwealth’s burden of production at the second step. Id.

Though, so far as we can ascertain, the United States
Supreme Court never has addressed whether it is appropriate for
a district court to grant a writ of habeas corpus at the second step
because a prosecutor could not recall the reason for a

60
peremptory challenge many years after the trial, recent
precedent suggests that courts should be reluctant to do so for
they should act with caution before granting relief at that step of
the Batson process and our own consideration of the issue leads
us to reach the same conclusion. For example, in Purkett v.
Elem the Court of Appeals for the Eighth Circuit, in a step-two
analysis, concluded that the prosecutor’s explanation that he
used a peremptory challenge to strike a juror because the juror
had long unkempt hair and suspicious facial hair was pretextual
and was not a legitimate race-neutral reason for striking the
juror. 514 U.S. at 766-67, 115 S.Ct. at 1770. But on further
appeal the Supreme Court, reiterating that the burden never
shifts from the defendant in a Batson dispute, held that the court
of appeals improperly conflated the second and third Batson
steps:

[i]t is not until the third step that the
persuasiveness of the justification becomes
relevant-the step in which the trial court
determines whether the opponent of the strike has
carried his burden of proving purposeful
discrimination. At that stage, implausible or
fantastic justifications may (and probably will) be
found to be pretexts for purposeful discrimination.
But to say that a trial judge may choose to
disbelieve a silly or superstitious reason at step
three is quite different from saying that a trial
judge must terminate the inquiry at step two when
the race-neutral reason is silly or superstitious.
The latter violates the principle that the ultimate
burden of persuasion regarding racial motivation

61
 rests with, and never shifts from, the opponent of
the strike.

Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (internal citations
omitted). The Supreme Court also stated that the requirement in
Batson that a prosecutor “must give a ‘clear and reasonably
specific’ explanation of his ‘legitimate reasons’ for exercising
the challenges” only “was meant to refute the notion that a
prosecutor could satisfy his burden of production by merely
denying that he had a discriminatory motive or by merely
affirming his good faith. . . . [A] ‘legitimate reason’ is not a
reason that makes sense, but a reason that does not deny equal
protection.” Id., 115 S.Ct. at 1771 (quoting Batson, 476 U.S. at
98, n.20, 106 S.Ct. at 1724 n.20.).

More recently, the Supreme Court discussed a second-
step issue in Johnson v. California, 545 U.S. 162, 125 S.Ct.
2410 (2005). California law required an objector, in order to
establish a prima facie Batson case, to show that it was more
likely than not that the other party’s peremptory challenges, if
unexplained, were based on impermissible bias. Id. at 168, 125
S.Ct. at 2416. The respondents, defending the California law,
contended that a Batson claimant must prove discrimination by a
preponderance of the evidence at the first step or else “a
prosecutor’s failure to respond to a prima facie case would
inexplicably entitle a defendant to judgment as a matter of law
on the basis of nothing more than an inference that
discrimination may have occurred.” Id. at 170, 125 S.Ct. at
2417. The Court held that this standard was too onerous and not
a proper application of Batson because the first two steps in the
Batson process govern only the production of evidence and the
defendant ultimately retains the burden to prove the existence of

62
purposeful discrimination. The Court also reiterated Purkett’s
holding that even if the state produces “frivolous or utterly
nonsensical justifications for its strike,” the analysis moves to
step three. Id. at 171, 125 S.Ct. at 2417. Then, in a footnote, the
Court added:

In the unlikely hypothetical in which the
prosecutor declines to respond to a trial judge’s
inquiry regarding his justification for making a
strike, the evidence before the judge would
consist not only of the original facts from which
the prima facie case was established, but also the
prosecutor’s refusal to justify his strike in light of
the court’s request. Such a refusal would provide
additional support for the inference of
discrimination raised by a defendant’s prima facie
case. Cf. United States ex rel. Vajtauer v.
Comm’r of Immigration, 273 U.S. 103, 111, 47 S.
Ct. 302, 71 L. Ed. 560 (1927).

Johnson, 545 U.S. at 171 n.6, 125 S.Ct. at 2417 n.6.

While obviously intended to apply to an objection made
during voir dire, the Johnson footnote indicates that the
prosecutor’s lack of response is evidence to be taken into
account only at step three and is not, by itself, of such
dispositive force that it establishes that there was a Batson
violation. Following that line of reasoning this case presents a
more compelling argument for proceeding to the third step of the
inquiry. The District Court’s holding that the Batson inquiry
ends if the state fails to meet its duty of production is accurate

63
only if the prosecution, at step two, demonstrates that it based its
challenge on a reason that was an equal protection violation.
Purkett, 514 U.S. at 769, 115 S.Ct. at 1771; see also Hernandez
v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866 (1991)
(plurality opinion) (“Unless a discriminatory intent is inherent in
the prosecutor’s explanation, the reason offered will be deemed
race neutral.”).

Unlike the Supreme Court’s hypothetical prosecutor in
Johnson, Carpenter’s “silence” was a product of his failure to
recall specific reasons for his three peremptory strikes.
Carpenter’s inability to recall his reasons for exercising
peremptory strikes 21 years after the trial surely is far less
suggestive that at the trial there had been purposeful
discrimination than a prosecutor’s outright refusal to answer the
trial court’s inquiry at voir dire directly after the prosecutor
exercised the peremptory challenge. After all, when at a trial the
prosecutor is asked to explain the reasons for his challenge they
should be fresh in his mind. Further, it would be anomalous to
hold that “an utterly nonsensical” reason would have satisfied
the Commonwealth’s burden of production at step two of the
Batson process, as it could have done, but that Carpenter’s
failure to recall race-neutral reasons, or any reasons for strikes,
21 years after the trial automatically should result in a finding
that his strikes were the product of discriminatory intent.
Johnson, 545 U.S. at 171, 125 S.Ct. at 2417.

More importantly, the Supreme Court in Johnson rejected
the argument that a prosecutor’s failure to respond to a prima
facie case “would inexplicably entitle a defendant to judgment
as a matter of law on the basis of nothing more than an inference
that discrimination may have occurred.” Id. at 170, 125 S.Ct. at

64
2417. Instead, the Supreme Court strongly suggested that
Batson’s burden-shifting framework is simply a means of
presenting evidence. The Court compared the Batson
framework to the burden-shifting found in Title VII employment
discrimination cases. 31 Id. at 171 n.7, 125 S.Ct. at 2418 n.7
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-510 &
n.3, 113 S.Ct. 2742, 2748 & n.3 (1993) (holding that
determinations at steps one and two of the McDonnell Douglas
framework “can involve no credibility assessment” because “the
burden-of-production determination necessarily precedes the
credibility-assessment stage,” and that the burden-shifting
framework triggered by a plaintiff’s prima facie case is
essentially just “a means of ‘arranging the presentation of
evidence’”)). In a Title VII case, even if the defendant fails to
introduce evidence of a nondiscriminatory reason for an adverse
employment action, it still can avoid liability if the plaintiff’s
prima facie case “is held to be inadequate in law or fails to
convince the factfinder.” St. Mary’s Honor Ctr., 509 U.S. at 510
n.3, 113 S.Ct. at 2748 n.3.

31
The Supreme Court established the three-step employment
discrimination framework in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that burden-
shifting framework, the plaintiff first has to make out a prima
facie case of discrimination at which point the burden shifts to
the employer to present a nondiscriminatory reason for the
adverse employment action and, finally, the employee has to
demonstrate that the reason the employer gives is pretextual.
Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d
Cir. 2009).

65
 Here, the District Court clearly erred when it ended the
Batson analysis at the second step of the three-step analysis even
though, as we have indicated, Carpenter’s reasons for striking
Sampson, Williams, and Sisco were inadequate to meet the
Commonwealth’s burden of production as we explained the
burden in Hardcastle. First, though Carpenter failed to recall the
reasons for exercising three peremptory strikes to remove
African-American jurors, Lark’s prima facie case was not as
strong as the petitioner’s prima facie case was in Harrison. In
contrast to the prosecutor in Harrison who struck all the African-
Americans from the jury, Carpenter did not strike four African-
Americans and had five peremptory strikes remaining at the end
of voir dire. See United States v. DeJesus, 347 F.3d 500, 509
(3d Cir. 2003) (“Another factor that makes the government’s
race-neutral explanation more believable is that one Hispanic
and three African Americans were seated in the final jury, and
the government had three peremptory strikes remaining.”). 32
Nor was this a case, as was Hardcastle, where a state court
attempted to fashion race-neutral explanations without holding
an evidentiary hearing to give the prosecutor a chance to explain
the reasons behind the peremptory strikes. 368 F.3d at 252.
Rather, Carpenter’s memory loss, understandable considering

32
Of course, it has not escaped our attention that the
composition of Lark’s jury--four African-Americans and eight
Caucasians--is described on the McMahon tape as the ideal jury.
We also note, however, that the District Court made a factual
finding after the evidentiary hearing that, although Carpenter
knew McMahon, McMahon never was his senior or supervisor
in the District Attorney’s Office and never instructed Carpenter
on how to select a jury. Lark II, 495 F. Supp. 2d at 494.

66
the 21-year gap between the challenges and the evidentiary
hearing, prevented him from offering direct reasons behind the
exercise of his peremptory challenges.

In addition, the District Court found that Carpenter was
not systematic in his note taking and that the only notes he took
were symbols and notations he made by each juror’s name on
the jury list. 495 F. Supp. 2d at 495. The notes were incomplete
inasmuch as two of the jurors whom Carpenter could not recall
striking do not appear on the juror sheets on which Carpenter
took his notes. The other contemporaneous evidence of
Carpenter’s state of mind is his response of “Oh. How awful” to
Rogers’ complaint that he was striking all African-Americans
from the panel. Carpenter explained that he was being sarcastic
because he recognized that Rogers was attempting to raise race
as an issue. Carpenter further testified that he used sarcasm at
other points in the trial when he became frustrated with Rogers’
tactics. It is not clear whether the Court believed that
Carpenter’s explanation of his comment was credible.

There were, moreover, compelling reasons for the Court
to advance to the third step of the Batson analysis. To start with,
the Supreme Court has suggested that Batson’s burden shifting
framework is a means to present evidence and thus the
prosecution’s presentation of only thin evidence at the second
step, though perhaps damaging to its case, is not dispositive on
the question of discriminatory intent. Johnson, 545 U.S. at 170-
71, 125 S.Ct. at 2417-18. Proceeding to the third step would
have allowed the District Court to judge whether Carpenter’s
strikes violated the Equal Protection Clause through juror
comparisons, thus fulfilling the principal goal of Batson: “to
produce actual answers to suspicions and inferences that

67
discrimination may have infected the jury selection process.”
Id. at 172, 125 S.Ct. at 2418.

The District Court’s acceptance of Lark’s prima facie
case as dispositive proof of Carpenter’s intent substituted
inferences for an actual answer to the question of whether
Carpenter discriminated in the selection of jurors. We hold that
the District Court, by moving to the third step, could have
weighed all of the evidence against Lark’s prima facie case.
Instead, the District Court’s approach validated the fears of the
respondents in Johnson: the prosecutor did not come forward
with evidence at the second step and Lark received “judgment as
a matter of law on the basis of nothing more than an inference
that discrimination may have occurred.” Id. at 170, 125 S.Ct. at
2417.

Moreover, this case presents an unusual situation in
which neither party may be held culpable for the delay in the
adjudication of the Batson claim. Nevertheless, we see some
merit to the Commonwealth’s contention that Lark should have
been more diligent in pursuing the claim even though, as our
discussion of procedural default demonstrates, Pennsylvania’s
“relaxed waiver” policy created a post-conviction climate in
which the state courts would waive procedural rules in capital
cases. After all, following the Supreme Court of Pennsylvania’s
affirmance of his conviction and sentence on direct appeal, Lark
did not file any further proceedings for six years in state or
federal court seeking relief even though his life literally was at
stake. Furthermore, we do not fault the Commonwealth courts
for enforcing their procedural rules to deny Lark an evidentiary
hearing. As we noted in Hardcastle, “while the retroactive
application of the Supreme Court’s ruling in Batson undeniably

68
causes many problems, we do not believe the weight of this
burden should be borne solely by the Commonwealth.” 368
F.3d at 261. By terminating its Batson analysis at the second
step, the District Court shifted the entire consequences of
Carpenter’s memory loss to the Commonwealth, and thus
allowed Lark to obtain a writ of habeas corpus by showing only
a prima facie case of discrimination.

Finally, we have indicated that it is appropriate to lessen
the state’s burden at the second step where the passage of time
diminishes the prosecutor’s recollection of voir dire. Wilson,
426 F.3d at 668. Indeed, the Supreme Court’s limitation of the
retroactive application of Batson to cases on direct appeal when
it decided that case and not applying its holding to cases on
collateral review at the time of that decision, indicates that the
Court envisioned problems such as those present here in
applying Batson years after the trial. We think that proceeding
to the third step of the Batson analysis is preferable to the
alternative: overturning a 25-year-old jury verdict which the
Pennsylvania Supreme Court has upheld against numerous
challenges and which seems to have been predicated on
substantial evidence merely because it would be possible to
draw an inference of discrimination in jury selection.

We hold that given the recent Supreme Court case law
and the particular circumstances of this case, the District Court
should have proceeded to the third step of the Batson analysis.

V. CONCLUSION

Inasmuch as we have determined that the District Court

69
improperly applied Batson, we will vacate its order, remand the
case to the District Court, and direct that the Court perform the
third step of the Batson analysis.33 Both parties make arguments
regarding the McMahon tape’s relevance and the Baldus study’s
reliability. However, inasmuch as the District Court explicitly
declined to consider these issues, see Lark II, 495 F. Supp. 2d at
503 n.12, we do not address them on this appeal, though they
may become significant on the remand.

The District Court based its decision on the pattern of the
prosecutor’s strikes and Carpenter’s inability to articulate a
justification for three of those strikes. Any other evidence or
arguments which relate to intentional discrimination, such as
juror comparisons, properly are made at the third Batson step
and we will not consider them at this time. Miller-El, 545 U.S.
at 241, 125 S.Ct. at 2325 (“If a prosecutor’s proffered reason for
striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered at
Batson’s third step.”). Ultimately, it is at the third step that the
District Court must make a finding regarding the prosecutor’s
motivation in exercising the challenged strikes. See Bond v.
Beard, 539 F.3d 256, 264 (3d Cir. 2008).

For the foregoing reasons we will vacate the District
Court’s order entered on July 5, 2007, granting Lark a
33
Of course, if on the remand the District Court rejects Lark’s
Batson contention, it should consider the other contentions that
he advanced but that the Court had no need to address. Some of
these contentions likely will involve complex jurisdictional,
procedural, and substantive questions.

70
conditional writ of habeas corpus, and remand the case for the
further proceedings that we have indicated in this opinion are
required. No costs shall be allowed on this appeal.

71
Lark v. Beard, 07-9004
McKee, Chief Circuit Judge, concurring

I join the majority opinion in its entirety, and fully
agree with the remand to the District Court to complete the
third step of the Batson analysis. However, I write separately
to emphasize that although my colleagues note that “we have
indicated that it is appropriate to lessen the state’s burden at
the second step where the passage of time diminishes the
prosecutor’s recollection of voir dire,” Maj. Op. 58 (citing
Wilson, 426 F.3d at 668), we have not done so here. The
majority properly concludes that the Commonwealth failed to
meet its burden at step two of the Batson analysis because the
prosecutor failed to offer race-neutral reasons for striking
three jurors. Thus, in this case, the majority’s discussion of
the appropriateness of lessening the state’s burden of
production when the prosecutor has a faded memory at step
two of the Batson analysis is purely dicta, and rightfully so.
In Wilson, we stated: “[I]n light of the passage of time,
we agree with the District Court that it was appropriate to
lessen the burden of the Commonwealth at step two.” 426
F.3d at 668. However, in Wilson, unlike here, it does not
appear that a timely objection was made at trial to the
prosecutor’s discriminatory exercise of peremptory strikes.
See Abu-Jamal, 520 F.3d at 280 n.3. As the majority quite
correctly notes, Lark’s attorney raised what was to become a
Batson claim during voir dire. Accordingly, the prosecutor
was immediately put on notice that he may later have to
explain his motivations in peremptorily striking Black jurors.
The majority suggests that the prosecutor’s burden
must necessarily be reduced at step two when the prosecutor’s
faded memory results from a long passage of time between
voir dire and a Batson hearing. However, that principle
should not apply when, as here, a timely objection is made to
the prosecutor’s use of peremptory strikes. Under such
circumstances, the fact finder may conclude that the claim of
faded memory and failure to memorialize the reasons for
certain strikes is less credible than might otherwise be the
case. I do not suggest that this necessarily undermines a
1
subsequent claim of failed memory. However, I also do not
think it appropriate to suggest that the claim of failed memory
must receive the same credibility and consideration afforded
the prosecutor in Wilson. Rather, the District Court must be
free to assess the credibility of the claim of failed memory
during its step three Batson analysis on remand.
On remand, the District Court will have to decide
whether, and to what extent, the prosecutor’s subsequent
claim of failed memory should be credited given the very
unique circumstances here and the fact that he was
immediately informed that his motivations may be examined
at a later date.

2