Hardcastle v. Horn

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

5-14-2004

Hardcastle v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9006

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

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

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

The Court:Now that gets rid
of the problem.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18