Wilson v. Beard

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

10-13-2005

Wilson v. Beard
Precedential or Non-Precedential: Precedential

Docket No. 04-2461

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 PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 04-2461
________________

ZACHARY WILSON

v.

JEFFREY A. BEARD, Commissioner of the Pennsylvania
Department of Corrections; DONALD T. VAUGHN,
Superintendent of the State Correctional Institution at
Graterford,

Appellants

____________________________________

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 02-cv-0374)
District Judge: Honorable John R. Padova
_______________________________________

Argued April 11, 2005

Before: SCIRICA, Chief Judge, ROTH and BECKER, Circuit
Judges

(Filed: October 13, 2005)

LYNNE ABRAHAM
District Attorney
ARNOLD H. GORDON
First Assistant District Attorney
RONALD EISENBERG
Deputy District Attorney, Law Division
THOMAS W. DOLGENOS (ARGUED)
Chief, Federal Litigation
J. HUNTER BENNETT
Assistant District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582

Attorneys for Appellants

MICHAEL WISEMAN (ARGUED)
Capital Habeas Corpus Unit
Federal Court Division
Defender Association of Philadelphia
Suite 545 West
The Curtis Center
Philadelphia, PA 19106

CHRISTINA A. SWARNS (ARGUED)
NAACP Legal Defense & Education Fund, Inc.
99 Hudson Street
16th Floor
New York, NY 10013

Attorneys for Appellee
_______________________

OPINION
_______________________

BECKER, Circuit Judge.

Jeffrey A. Beard and Donald T. Vaughn, Pennsylvania
Corrections officials (hereinafter “the Commonwealth”), appeal
from an order of the District Court granting Zachary Wilson a
writ of habeas corpus and vacating his 1984 conviction for
murder. The District Court found that Wilson was entitled to
relief from his conviction under the Supreme Court’s decision in
Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the
exclusion of potential jurors on account of their race. In
reaching this conclusion, the District Court relied primarily on a

2
widely publicized videotape in which the prosecutor in Wilson’s
case, former Assistant District Attorney Jack McMahon,
discusses various techniques for jury selection. In the tape,
McMahon repeatedly advises his audience to use peremptory
strikes to keep certain categories of African-Americans from
serving on criminal juries, in apparent violation of Batson.
On appeal, the Commonwealth raises three issues. First,
it claims that Wilson’s habeas petition was untimely under 28
U.S.C. § 2244(d)(1), because Wilson failed to file his petition
within one year of the date on which the McMahon tape first
received coverage on the local news. This date, the
Commonwealth argues, was the date on which Wilson could
have discovered the tape’s existence “through the exercise of
due diligence.” Id. § 2244(d)(1)(D). Because we find that
Wilson, who denies timely knowledge of the reports, did not fail
to exercise reasonable diligence in not monitoring the local news
thirteen years after his conviction, we reject this argument. Also
on the timeliness issue, the Commonwealth argues that the
District Court erred in applying Rules 6(a) and 6(e) of the
Federal Rules of Civil Procedure to determine the limitations
period for Wilson’s habeas petition. We conclude that both rules
apply to habeas petitions and that the District Court’s application
of them was not error.
Second, the Commonwealth argues that 28 U.S.C.
§ 2254(e)(2) precluded the District Court from holding a hearing
on Wilson’s Batson claim, and that the District Court therefore
erred in granting Wilson such a hearing. Because we conclude
that Wilson satisfied the requirements of that statute, we will
reject this argument. Finally, the Commonwealth argues that the
District Court improperly applied the Batson framework in
concluding that Wilson was entitled to relief from his conviction.
We find that the District Court’s conclusion that McMahon
engaged in intentional discrimination in jury selection in
Wilson’s trial is amply supported by the record and that the
District Court did not err in its application of Batson. We will
therefore affirm the order of the District Court.

I. Facts and Procedural History

Wilson was charged with first-degree murder and

3
possessing an instrument of crime for the February 1, 1982,
shooting of David Smith following a dispute over a game of
craps. On May 16, 1984, a jury convicted Wilson on both
charges. He was subsequently sentenced to life in prison. The
Pennsylvania Superior Court affirmed the conviction, see
Commonwealth v. Wilson, 536 A.2d 830 (Pa. Super. 1987), and
Wilson did not seek review before the state Supreme Court. In
1988, he filed a pro se petition seeking collateral review of his
conviction pursuant to the Pennsylvania Post-Conviction Relief
Act (PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA Court denied
Wilson’s petition, and the Superior Court affirmed the denial.
The State Supreme Court denied allocatur. See Commonwealth
v. Wilson, 678 A.2d 365 (Pa. 1996).1
In 1997, Jack McMahon, the Assistant District Attorney
who prosecuted Wilson’s first case, won the Republican
nomination to challenge incumbent District Attorney Lynne
Abraham. On March 31, 1997, eleven days after the primary
election, Abraham released a videotape from the late 1980s
which showed McMahon giving a training session on jury
selection to other prosecutors in the District Attorney’s Office.
In the tape, McMahon makes a number of highly inflammatory
comments implying that he regularly seeks to keep qualified
African-Americans from serving on juries. Since these
comments are central to this appeal, we will quote from them at
length.
McMahon began his presentation by reviewing the
procedures followed by Pennsylvania courts in selecting juries.
He then proceeded to discuss his views of the goals a prosecutor
should have in mind in selecting a jury:

1
Following his conviction for this crime, Wilson was tried
for capital murder for the August 3, 1981, killing of Jamie Lamb.
See Commonwealth v. Wilson, 629 A.2d 435 (Pa. 1994). Wilson
was again convicted and, at the sentencing phase, the
Commonwealth presented the jury with evidence of his previous
conviction. The jury found two aggravating circumstances,
including that Wilson “had a significant history of felony
convictions involving the use or threat of violence,” and sentenced
him to death. Id. at 494 n.4.

4
 The case law says that the object of getting
a jury is to get—I wrote it down. I looked in the
cases. I had to look this up because I didn’t know
this was the purpose of a jury. “Voir dire is to get
a competent, fair, and impartial jury.” Well, that’s
ridiculous. You’re not trying to get that.
You’re—both sides are trying to get the jury most
likely to do whatever they want them to do.
And if you go in there and any one of you
think you’re going to be some noble civil
libertarian and try to get jurors, “Well, he says he
can be fair; I’ll go with him,” that’s ridiculous.
You’ll lose and you’ll be out of the office; you’ll
be doing corporate law.

McMahon went on to discuss certain categories of people
that he believed did not make good jurors. At various times in
the tape, he told the assembled prosecutors to avoid “smart
people,” law students and lawyers, social workers, “very esoteric
people,” teachers, and “intelligent doctors.” But the group he
discussed most was African-Americans:

And that is—and, let’s face it, again, there’s
the blacks from the low-income areas are less
likely to convict. It’s just—I understand it. It’s
understandable proposition. There is a resentment
for law enforcement, there’s a resentment for
authority, and, as a result, you don’t want those
people on your jury. And it may appear as if
you’re being racist or whatnot, but, again, you are
just being realistic. You’re just trying to win the
case.

McMahon told his audience that, while many types of
blacks were poor jurors, certain blacks could be prosecution-
friendly:
Another factor—I’ll tell you, if—you know,
in selecting blacks, again, you don’t want the real
educated ones, again. This goes across the board
of all races; you don’t want smart people. And,

5
 again, but if you’re sitting down and you’re going
to take blacks, you want older blacks. You want
older black men and women, particularly men.
Older black men are very good. Guys 70, 75 years
old are very good jurors, generally speaking. . . .
Older black women, on the other hand,
when you have like a black defendant who’s a
young boy and they can identify as his, you
know—motherly type thing, are a little bit more
different. . . .
The other thing is blacks from the South,
excellent. . . .

In particular, he advised his audience to avoid black
women:
Again, I think black men are—in my
experience, black women, young black women, are
very bad. There’s an antagonism. I guess maybe
because they’re downtrodden on two respects, they
got two minorities, they’re women and they’re and
blacks, so they’re downtrodden in two areas. . . .
And so younger black women are difficult, I’ve
found.

Despite his concerns regarding black jurors, McMahon
cautioned his audience against selecting all-white juries:

And, again, some people say, well the best
jury is an all white jury. I don’t buy that,
particularly with a black defendant, because you’re
going to have—you could have reverse reaction
there. I think that you need dynamics because you
don’t want anybody to go back in there—because a
lot of times your witnesses are going to be black;
most of the time. So you don’t want this all white
jury to go back there and say to themselves, “Aw,
who gives a shit?” You know what I mean? You
don’t want that attitude at all, and you may get that
kind of reverse racism in your case.
I’ve always felt that a jury of like eight

6
 whites and four blacks is a great jury, or nine and
three, because then you’re not going to get any of
that in there. You’re not going to get any of that
racist type of attitude because a white guy is not
going to sit in that jury and say, “Aw, them people
live like this and that” with other blacks sitting in
the room.

In order to maintain the proper racial composition,
McMahon advised his audience to record the race of potential
jurors:
Another thing to do . . . when a jury comes in the
room, . . . count them. Count the blacks and
whites. You want to know at every point in that
case where you are. . . . You don’t want to look
there or go, “Is there a black back there? Wait a
minute. Are you a black guy?”

McMahon then proceeded to end his presentation,
ironically, with a brief discussion of the Supreme Court’s
decision in Batson:

One other—now, I’m sure you’re all familiar, if
we talk about the case law—I generally don’t talk
much about case law, but the new case is Batson
versus Kentucky. I’m sure you’ve all become
aware of that case. . . .
But in the future we’re going to have to be
aware of this case, and the best way to avoid any
problems with it is to protect yourself. And my
advice would be in that situation is when you do
have a black jury, you question them at length.
And on this little sheet that you have, mark
something down that you can articulate later time
if something happens, because if they—because
the way the case is stated, that it’s only after a
prima facie showing that you’re doing this that it
becomes—that the trial judge can then order you to
then start showing why you’re striking them not on
racial basis.

7
 So if—let’s say you strike three blacks to
start with, the first three people. And then it’s like
the defense attorney makes an objection saying
that you’re striking blacks. Well, you’re not going
to be able to go back and say, oh—and make
something up about why you did it. Write it down
right then and there.
. . . So sometimes under that line you may
want to ask more questions of those people so it
gives you more ammunition to make an articulable
reason as to why you are striking them, not for
race. So that’s how to pick a jury.

Following the release of the tape, Wilson filed a second
PCRA petition alleging that McMahon had purposefully kept
blacks off of his jury, in violation of Batson and Swain v.
Alabama, 380 U.S. 202 (1965).2 He had not raised the issue in
either his direct appeal or his earlier PCRA filing. This second
petition was dismissed by the PCRA Court, which found that the
Batson claim had been waived pursuant to 42 Pa.C.S. § 9544(b).3
This decision was affirmed by the Superior Court, and the
Supreme Court denied allocatur.
Wilson then filed a petition for a writ of habeas corpus in
the United States District Court, again raising the Batson claim.
In response, the Commonwealth argued that the petition was
barred by the one-year statute of limitations applicable to such

2
The requirements of a valid Batson claim are set forth in
more detail below. In order to prevail under Swain, the defendant
must “show a pattern and practice of racial discrimination in jury
selection across multiple prosecutions.” Sistrunk v. Vaughn, 96
F.3d 666, 668 (3d Cir. 1996).

3
That section provides:

ISSUES WAIVED.—For purposes of this
subchapter, an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state
postconviction proceeding.

8
claims under the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2241, et seq. The Commonwealth also
argued that the claim was procedurally defaulted.
The petition was referred to a Magistrate Judge, who
recommended that it be dismissed as untimely. The District
Court, after holding an evidentiary hearing to determine whether
the petition was time-barred, rejected the Magistrate Judge’s
recommendation and concluded that the petition was timely and
that the Batson claim was not procedurally defaulted. See
Wilson v. Beard, 2003 U.S. Dist. LEXIS 9737 (E.D. Pa. May 8,
2003). The District Court then held a second evidentiary
hearing, this time addressing the merits of Wilson’s Batson
claim. Following the hearing, the District Court issued an
opinion finding that McMahon had violated Batson in Wilson’s
trial. It therefore granted Wilson’s habeas petition and vacated
his conviction. See Wilson v. Beard, 314 F. Supp. 2d 434 (E.D.
Pa. 2004). The Commonwealth filed a timely appeal to this
Court.
The District Court properly exercised jurisdiction over
Wilson’s habeas petition pursuant to 28 U.S.C. § 2241(a) and
§ 2254(a), and we exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and § 2253(c)(1)(A). Because Wilson’s Batson claim
was never addressed in state court, the District Court exercised
plenary review. See 28 U.S.C. § 2254(d). We exercise plenary
review of a district court’s legal conclusions in a habeas
proceeding; however, any factual determinations made by the
District Court will be upheld unless found to be clearly
erroneous. See Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.
1992).
II.

A. The Timeliness of Wilson’s Habeas Petition

Under 28 U.S.C. § 2244(d)(1), habeas petitions filed by
state prisoners are subject to a one-year statute of limitations.
The limitations period begins to run on the latest of several
dates, including “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” Id. § 2244(d)(1)(D). Wilson
argues that the discovery of the McMahon videotape constitutes

9
the “factual predicate” for his habeas claim. He further argues
that he did not discover, and through the exercise of due
diligence could not have discovered, the existence of the tape
prior to April 6, 1997.
Wilson’s habeas petition was filed on January 23, 2002,
four years and 292 days after April 6, 1997. AEDPA provides
that the limitations period is tolled during the pendency of state
court postconviction proceedings. See id. § 2244(d)(2). Three
years and 293 days elapsed from the date on which Wilson’s
PCRA petition was filed (June 2, 1997) and the date on which
the Supreme Court denied allocatur (March 22, 2001), hence,
there is tolling for this period. Thus, if April 6, 1997, is used as
the start of the limitations period, Wilson’s petition was timely
by one day.4
We must therefore determine the precise date on which
Wilson, through the exercise of due diligence, could have
discovered the existence of the McMahon tape. In the District
Court, the Commonwealth argued that the tape did not constitute
the factual predicate for Wilson’s habeas petition, but it does not
press this issue on appeal. It does contend, however, that
McMahon could have discovered the existence of the videotape
as early as April 1, 1997, and that, if he could, Wilson’s petition
was filed four days too late.
Certain facts are not in dispute. During the relevant
period of time, Wilson was housed on death row in Graterford
Prison. He had cable television in his cell and could have
subscribed to local newspapers but apparently chose not to do so.
At his first evidentiary hearing, Wilson testified that prisoners on
death row are kept in individual cells but are permitted to
exercise in a cage with one other prisoner for one hour each day.
No incoming phone calls are permitted except for those from a
prisoner’s attorney; outgoing calls are limited to four per month
and must be scheduled one day in advance, while prison visits
are limited to one per week. 2003 U.S. Dist. LEXIS 9737 at *18
n.13.

4
These calculations assume that Fed. R. Civ. P. 6(a) is used
in calculating the limitations period. This issue is discussed further
below. See infra Part III.B.

10
 The District Court found, and Wilson does not dispute,
that the McMahon videotape received widespread attention on
local newscasts on April 1st, 2nd, and 3rd. Id. at *17.5 The
court found that each of the four major Philadelphia television
stations reported on the tape “at numerous times” during the
three-day period. Id. In addition, it is undisputed that, on April
3, 1997, the District Attorney’s Office mailed a letter to Billy
Nolas, Wilson’s counsel in his capital case at that time,
informing him of the existence of the McMahon tape. The date
the letter was received is unknown.
Wilson testified that he did not see any of the television
reports concerning the McMahon tape and did not learn of its
existence until he was contacted by another attorney on his case,
Christina Swarns. The District Court, which found this
testimony to be credible, noted that Swarns “was not involved
with [Wilson’s] case” during the period of April 1-5, 1997. It
therefore concluded that the phone call took place after April 5,
1997, and that Wilson did not have actual knowledge of the tape
on or before that date. Id. at *17 n.12, *19. In support of this
conclusion, the District Court further noted that Wilson testified
that he never discussed his case with other inmates, and it found
that he thus was unlikely to have learned about the tape from
others in the prison. The Court also observed that Wilson “was
not shy about asserting his rights,” id. at *19, and presumably
would have acted had he learned about the tape’s existence
during the period in question.
On appeal, the Commonwealth does not argue that
Wilson had actual knowledge of the tape’s existence prior to
April 6, 1997. It instead argues that, given the widespread
attention the tape received, Wilson could easily have discovered
its existence prior to April 6, 1997. The District Court rejected
this argument, finding that Wilson’s failure to discover the tape’s
existence during the period in question was not due to a lack of
diligence.
While it is certainly true that Wilson could have
discovered the tape’s existence fortuitously, AEDPA directs us

5
The first coverage of the tape was on the evening of March
31, 1997, the day Abraham released it.

11
to determine the “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D)
(emphasis added). Thus, it is not enough to suggest that Wilson
could have learned about the tape by happenstance; rather, it
must be shown that, had he exercised due diligence, Wilson
would have taken certain actions through which he would have
learned about the tape prior to April 6, 1997.
We have held that, to satisfy § 2244(d)(1)(D)’s “due
diligence” standard, a prisoner must exercise “reasonable
diligence in the circumstances.” See Schlueter v. Varner, 384
F.3d 69, 74 (3d Cir. 2004). The ultimate question whether a
petitioner exercised due diligence is one of fact which we will
set aside only if it is clearly erroneous; however, we can review
de novo the legal standard employed by the District Court in
assessing the petitioner’s conduct. See Hasbro Industries, Inc. v.
M§ “St. Constantine,” 705 F.2d 339, 341 (9th Cir. 1983). As
Schlueter makes clear, the question whether a habeas petitioner
has exercised due diligence is context-specific. The fact that we
require a petitioner in one situation to undertake certain actions
does not necessitate that we impose the same burden on all
petitioners.
The District Court determined that Wilson had not failed
to exercise due diligence during the period in question, finding
that “it would not be logical or fair to read the concept of due
diligence as imposing upon a criminal defendant the duty of
continuously monitoring the local news for a period of 12 or
more years in the hope of possibly learning facts which could be
helpful to his case.” 2003 U.S. Dist. LEXIS 9737 at *22. We
agree. No person in Wilson’s position would reasonably expect
that the local news would be a source of information relevant to
his case, given that his conviction had occurred thirteen years
ago and his final appeal had been rejected by the Supreme Court
the previous year.
In some cases, a defendant will have reason to believe
that the news will potentially be a source of information about
his case, and in these situations it might not be unreasonable to
expect the prisoner to monitor the news on a somewhat regular
basis. But absent some reasonable basis for concluding that the
local news is likely to be a source of information at the particular

12
time, due diligence does not require a prisoner in Wilson’s
position to monitor the news on a regular basis on the unlikely
chance that he might learn something which would be useful to
his case. The Commonwealth has pointed to no evidence from
which we could conclude that Wilson had a reason to expect that
he would uncover any relevant information by monitoring the
news, and we see none. We therefore conclude that his failure to
learn about the tape was not a failure to exercise due diligence.
The Commonwealth nonetheless argues that our decision
in Schlueter requires that we reverse. Schlueter interpreted the
due diligence standard under 28 U.S.C. § 2244(d)(I)(D) in a case
in which a prisoner filed his petition several years after his
conviction became final. Schlueter alleged that he did not
discover, and could not have discovered through the exercise of
due diligence, the factual predicate of his claim, which was that
one of the part-time public defenders who represented him
during his plea negotiations was a law partner of the part-time
Assistant District Attorney in the case. We held that if the
petitioner had exercised due diligence, “he could have
discovered [the relationship between the two attorneys] long
before the AEDPA became effective” and therefore filed a
timely habeas petition. 384 F.3d at 74.
In reaching this conclusion, we concluded that it was
“inconceivable” that the two attorneys could have hidden their
relationship “from the relatively small legal community or the
public in Northampton County.” We further noted that Schlueter
could have learned about the relationship simply by interviewing
the other part-time public defender in the case. Id. Finally, we
acknowledged that the petitioner was incarcerated during the
relevant period and that “physical confinement can limit a
litigant’s ability to exercise due diligence,” but we noted that the
petitioner’s parents had been heavily involved in his case and
could have uncovered the relationship through their own
investigation. Id. at 75.
The Commonwealth argues that, because the relevant
information in Schlueter was known to a relatively small
community and the information in this case was widely
disseminated through the media, Wilson does not satisfy
Schlueter’s standard of due diligence. We disagree. The
essential question is not whether the relevant information was

13
known by a large number of people, but whether the petitioner
should be expected to take actions which would lead him to the
information. In Schlueter, we found that the petitioner could
have learned the relevant fact simply by interviewing his
surviving trial counsel during the time in which a reasonable
person in his position would be investigating opportunities for
postconviction relief. In contrast, Wilson had no expectation
that the news media would be a source of information about his
case nearly thirteen years after his conviction. Therefore, we
hold that he did not fail to exercise due diligence during the
period of April 1–April 5, 1997, and that the limitations period
did not begin to run before April 6, 1997.

B. Application of Rule 6(a)

The Commonwealth argues that the District Court erred
in relying on Rule 6(a) of the Federal Rules of Civil Procedure in
calculating the end of the limitations period. Rule 6(a) states:
“In computing any period of time prescribed or allowed by . . .
any applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not be
included.” Thus, the District Court, relying on this rule,
concluded that Wilson had 365 days from the day he had notice
of the McMahon tape to file his habeas petition. The
Commonwealth argues that the District Court should have
counted the day he received notice of the tape as day 1, thus
giving him 364 days in which to file his petition.
We disagree. First, the Federal Rules of Civil Procedure
apply, by their own terms, to habeas cases. Rule 81(a)(2) states:
“These rules are applicable to proceedings for . . . habeas corpus
. . .to the extent that the practice in such proceedings is not set
forth in statutes of the United States, the Rules Governing
Section 2254 cases . . . and has heretofore conformed to the
practice in civil actions.” The Commonwealth has pointed to no
statutory authority that would permit us to hold that Rule 6(a)
does not apply in this context, and we see none. Indeed, every
other regional Court of Appeals has either implicitly or explicitly

14
held that Rule 6(a) applies to the AEDPA limitations period.6
Moreover, common sense dictates that the date on which
the factual predicate occurs not count as part of the one-year
limitations period. If we measure from the precise moment the
petitioner receives notice of the factual predicate, then the one-
year period ends on the 365th day following such notice, not, as
the Commonwealth argues, on the 364th day. Thus, were we not
to apply Rule 6(a), we would essentially shorten the limitations
period to just under one year.
The Commonwealth does not directly address these
arguments, but relies on Burns v. Morton, 134 F.3d 109 (3d Cir.
1997), for the proposition that, in this Circuit, Rule 6(a) is not
applicable to the one-year habeas statute of limitations.
Burns addressed the question whether state prisoners whose
sentences became final before the passage of AEDPA on April
24, 1996 were entitled to one year following AEDPA’s passage
to file habeas petitions. We decided that they were, holding that
“petitions filed on or before April 23, 1997, may not be
dismissed for failure to comply with § 2244(d)(1)’s time limit.”
Id. at 111. The Commonwealth argues that, since AEDPA was
enacted on April 24, 1996, the Court’s reference to April 23,
1997 as the end of the one-year “grace period” should be read as
an implicit rejection of the application of Rule 6(a) to the habeas
statute of limitations.
We are not persuaded. As Wilson points out, the prisoner

6
See Rogers v. United States, 180 F3d 349, 355 n.13 (1st
Cir. 1999); Mickens v. United States, 148 F. 3d 145, 148 (2d Cir.
1998); Hernandez v. Caldwell, 225 F. 3d 435, 436 (4th Cir. 2000);
Flanagan v. Johnson, 154 F.3d 196, 200-01 (5th Cir. 1998);
Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000); Newell v.
Hanks, 283 F.3d 827, 833 (7th Cir. 2002); Moore v. United States,
173 F.3d 1131, 1135 (8th Cir. 1999); Patterson v. Stewart, 251
F.3d 1243, 1246 (9th Cir. 2001); United States v. Hurst, 322 F.3d
1256, 1260-61 (10th Cir. 2003); Moore v. Campbell, 344 F.3d
1313, 1319-20 (11th Cir. 2003); cf. United States v. Cicero, 214
F.3d 199, 202 (D.C. Cir. 2000) (holding that the “grace period”
under AEDPA lasted until April 24, 1997, thus implicitly applying
the principle underlying Rule 6(a)).

15
in Burns filed his petition on April 22, 1997, so the application
of Rule 6(a) had no impact on his case. In addition, nowhere in
Burns does the Court mention Rule 6(a) or even mention that an
issue exists regarding the precise end of the one-year period.
More importantly, Burns does not state that petitions filed on or
after April 24, 1997 by prisoners whose convictions became
timely before the passage of AEDPA should be considered
untimely; rather, it simply states that petitions filed on or before
April 23, 1997 “may not be dismissed” as time-barred. Thus, the
case does not explicitly hold that the grace period ended on April
23, 1997; it simply holds that it did not end before April 23,
1997. For this reason, and given the clear weight of authority
and common sense, we hold that Rule 6(a) applies to the
AEDPA statute of limitations, and any suggestion to the contrary
in Burns is incorrect.7

C. Application of Rule 6(e)

The Commonwealth also argues that it was error for the
District Court to apply Rule 6(e) to Wilson’s case. Rule 6(e)
provides:

Additional Time After Service Under Rule
5(b)(2)(B), (C), or (D). Whenever a party has the
right or is required to do some act or take some
proceedings within a prescribed period after the
service of a notice or other paper upon the party
and the notice or paper is served upon the party
under Rule 5(b)(2)(B), (C), or (D), 3 days shall be
added to the prescribed period.

The District Attorney’s Office wrote to Wilson’s counsel
informing him of the existence of the McMahon tape on April 3,
1997. The District Court concluded that Rule 6(e) required
adding three additional days to determine the date on which the

7
The Court of Appeals for the Tenth Circuit, when
presented with precisely the same question, reached the result we
do today. See Hurst, 322 F.3d at 1261 n.4.

16
letter was received. Thus, it considered the letter as having been
received on April 6, 1997, and concluded that this was the date
on which Wilson had notice of the existence of the McMahon
videotape. The District Court found that Wilson’s petition was
filed 364 days later (allowing for tolling), and thus was not time-
barred.
The Commonwealth argues that Rule 6(e) is a rule of
service that applies only to parties in a lawsuit. Since no habeas
petitioner is a party to his suit before it is filed, according to the
Commonwealth, Rule 6(e) has no application. In response,
Wilson correctly notes that we have applied Rule 6(e) to
determine when the limitations period begins for a Title VII
plaintiff who receives a “right-to-sue” letter from the EEOC,
even though a plaintiff receiving such a letter is not currently a
party to a suit. See Seitzinger v. Reading Hosp. & Med. Ctr., 165
F.3d 236 (3d Cir. 1999). The Commonwealth attempts to
distinguish Seitzinger on the ground that the 90-day period in
Title VII cases is considerably shorter than the one-year period
under AEDPA, and that in this case there was widespread
publicity concerning the McMahon tape in addition to the letter
to Wilson’s counsel.
We think that the logic of Seitzinger is equally applicable
to the habeas context. AEDPA states that the limitations period
begins to run on the date that the factual predicate “could have
been discovered through the exercise of due diligence.” To
argue, as the Commonwealth does, that no additional time
should be added from the date a letter is sent is to maintain that,
through the exercise of due diligence, a habeas petitioner should
be able to learn the contents of a letter the day it is mailed. Due
diligence does not require such psychic powers. Particularly
given that the statute of limitations is an affirmative defense, see
Long v. Wilson, 393 F.3d 390, 397 (3d Cir. 2004), we are not
willing to impose upon habeas petitioners this burden.
Thus, given that federal courts must add some additional
period of days to the limitations period to account for the time it
takes for a letter to be received, we think it eminently sensible to
apply Rule 6(e). Cf. Seitzinger, 165 F.3d at 239. We therefore
conclude that, in the absence of proof of the actual date of
receipt, three days should be added to the habeas limitations
period for Wilson’s petition. Since the Commonwealth

17
concedes that “it could not be said with absolute certainty when
Mr. Wilson received the Commonwealth’s April 3, 1997 letter,”
it was not error for the District Court to apply Rule 6(e).

D. Wilson’s Entitlement to an Evidentiary Hearing

The Commonwealth contends that it was error for the
District Court to hold a factual hearing to allow Wilson to
develop the record regarding his Batson claim. Under 28 U.S.C.
§ 2254(e)(2), a habeas petitioner is not permitted a factual
hearing in the District Court if he has “failed to develop the
factual basis of a claim in State court proceedings,” unless he
satisfies one of two exceptions, neither of which is relevant here.
The District Court concluded that Wilson had not “failed to
develop the factual basis of [his] claim in State court
proceedings” and therefore was not barred from receiving a
hearing under § 2254(e)(2). The Commonwealth disputes this
conclusion.
In his second PCRA petition, Wilson requested an
evidentiary hearing to develop the factual record on his claim.
The Court of Common Pleas denied Wilson’s petition on several
grounds, and the Superior Court affirmed, finding that Wilson’s
Batson claim had been waived.8 The Commonwealth argued in
the District Court that, because the PCRA courts had found
Wilson’s Batson claim to be waived, he had procedurally
defaulted that claim for purposes of habeas review. It is well
settled that, under normal circumstances, a District Court cannot
grant habeas relief on a claim that is procedurally defaulted. See
Harris v. Reed, 489 U.S. 255, 262 (1989). Yet a claim is not
procedurally defaulted merely because a state court concluded
that it was waived under a state procedural rule; rather, it must
also be shown that the state rule constitutes an “adequate” and
“independent” ground barring review.
In concluding that Wilson’s Batson claim was not
procedurally defaulted, the District Court found that the rule the

8
The Court of Common Pleas also concluded that Wilson
was not entitled to relief on the merits. The Superior Court did not
address that ground.

18
Superior Court relied on in refusing to consider the claim was
not “adequate.” According to the Supreme Court, a state rule is
not adequate unless it is “‘strictly or regularly followed,”
Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting
Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)). The Superior
Court held that the Batson claim was waived based on the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Lark, 746 A.2d 585 (Pa. 2000). The District Court found that, in
relying on Lark, the Superior Court ignored a more relevant
decision, Commonwealth v. Basemore, 560 Pa. 258 (Pa. 2000),
and in so doing “failed to apply State Supreme Court precedent
which was directly on point.” 2003 U.S. Dist. LEXIS 9737 at
*43.
We agree with the District Court that the grounds relied
on by the Superior Court were not adequate. In particular, we
think that the Superior Court’s reliance on Lark was incorrect.
In Lark, a case in which the defendant was prosecuted by
another Assistant District Attorney in McMahon’s office, the
Supreme Court held that a Batson claim based on the McMahon
tape was not untimely due to the petitioner’s failure to raise it
before knowing of the tape’s existence. 746 A.2d at 588. It
went on to hold, however, that the McMahon tape did not entitle
the petitioner in that case to relief, because he was tried by
another prosecutor before the tape was made. Id. at 589.
In contrast, in Basemore, a case involving a defendant
who was prosecuted by McMahon himself, the Pennsylvania
Supreme Court held that the “practices described in the
transcript [of the McMahon tape] support an inference of
invidious discrimination.” See 744 A.2d at 731–32. In that case,
the Supreme Court held that the defendant was entitled to “the
opportunity to develop a record concerning the alleged violation,
Mr. McMahon’s conduct and its implications with respect to his
trial” such that he could prove his eligibility for relief. Id. at
733.9

9
The Commonwealth argues that Basemore is
distinguishable from this case because the petitioner in Basemore
kept a better record of what happened during voir dire than did
Wilson. While Basemore alleged in his brief that McMahon had

19
 On appeal, the Commonwealth does not directly
challenge the District Court’s determination that Wilson’s claim
was not procedurally defaulted. However, the question whether
a claim is procedurally defaulted and whether § 2254(e)(2) bars
an evidentiary hearing related to that claim are analytically
linked. See Williams v. Taylor, 529 U.S. 420, 432 (2000);
Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8 (1992). If a petitioner
requests a hearing to develop the record on a claim in state court,
and if the state courts (as they did here) 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 purposes of § 2254(e)(2).10 For this reason, we
conclude that § 2254(e)(2) did not preclude the District Court
from holding a hearing on Wilson’s Batson claim. 11

exercised nineteen peremptory challenges against African-
Americans, the Supreme Court noted that “the allegation was not
included in Basemore’s supplemental post-conviction petition, nor
was any witness identified or documentary proof attached.” See
744 A.2d at 729. The Commonwealth also notes that the Basemore
Court did not specifically find that the claim was not waived. On
remand, however, the PCRA Court found that the claim was not
waived and granted Basemore a new trial. In addition, the
Supreme Court clearly held that the petitioner in Basemore was
entitled to a hearing to develop the record on his claim.

10
The analogy between § 2254(e)(2) and procedural default
is imperfect. Section 2254(e)(2) creates a higher bar for petitioners
who fail to exercise due diligence than does the “cause and
prejudice” standard of the procedural default context. In addition,
the doctrine of procedural default is not directly relevant to those
situations in which a petitioner is given a hearing on a claim in
state court but nonetheless fails to fully develop the record on the
claim.

11
The Commonwealth argues that, because Wilson’s habeas
petition suggests that he would have a valid Batson claim
independent of the McMahon tape, Wilson failed to exercise due
diligence by not developing the record on that claim in state court
before the tape became public. (In making this argument, the

20
 IV. Wilson’s Batson Claim

As the Supreme Court has held, “Discrimination on the
basis of race, odious in all aspects, is especially pernicious in the
administration of justice.” Rose v. Mitchell, 443 U.S. 545, 555
(1979). Thus, for well over a century, the Court has recognized
the bedrock principle that “the State denies a black defendant
equal protection of the laws when it puts him on trial before a
jury from which members of his race have been purposefully
excluded.” Batson v. Kentucky, 476 U.S. 79, 85 (1986) (citing
Strauder v. West Virginia, 100 U.S. 303 (1880)). Such
discrimination “not only violates our Constitution and the laws
enacted under it but is at war with our basic concepts of a
democratic society and a representative government.” Smith v.
Texas, 311 U.S. 128, 130 (1940).
In Batson v. Kentucky, the Court reaffirmed and
strengthened this fundamental principle.12 Batson explicitly held
that the prohibition on racial discrimination in jury selection

Commonwealth relies on language in Wilson’s petition claiming
that the tape, McMahon’s lifetime strike rate, and “what is known
about Petitioner’s actual voir dire,” each “singularly or in
combination, raise at least an inference of discrimination.”
We decline to accept this argument. The tape is the
centerpiece of Wilson’s Batson claim, and so his failure to develop
the record on that claim before he knew of the tape’s existence
should not bar him from a hearing now. Notwithstanding the
assertions in Wilson’s habeas petition, we think it unlikely that he
would prevail on a Batson claim without the tape as evidence, and
we are unwilling to find that § 2254(e)(2) requires a defendant to
pursue claims that are likely to be fruitless. Our conclusion is
further buttressed by the “inherently covert nature of conduct
constituting the underlying violation” and the fact that the tape’s
existence was concealed from Wilson for nearly a decade. See
Basemore, 744 A.2d at 733.

12
Batson was decided two years after Wilson’s trial;
however his case was still on direct appeal when the decision came
down. Therefore, he is entitled to the benefit of that decision. See
Hamling v. United States, 418 U.S. 87, 102 (1974).

21
extends to the prosecutor’s use of peremptory challenges. See
Batson, 476 U.S. at 89 (“[T]he Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely on account of
their race.”). The decision recognized the difficulty defendants
will often have in showing intentional discrimination, so it
created a three-step framework for judges to employ in
determining whether a prosecutor has violated the Equal
Protection Clause:

First, the defendant must make out a prima facie
case “by showing that the totality of the relevant
facts gives rise to an inference of discriminatory
purpose.” Second, once the defendant has made
out a prima facie case, the “burden shifts to the
State to explain adequately the racial exclusion” by
offering permissible race-neutral justifications for
the strikes. Third, “if a race-neutral explanation is
tendered, the trial court must then decide . . .
whether the opponent of the strike has proved
purposeful racial discrimination.”

Johnson v. California, 125 S. Ct. 2410, 2416 (2005) (footnotes
and citations omitted) (alteration in original). The District Court
applied this framework and concluded that Wilson had shown
that McMahon engaged in purposeful discrimination. On
appeal, the Commonwealth disputes several aspects of the
District Court’s analysis.

A. Facts Underlying Wilson’s Claim

The parties have stipulated that Wilson’s jury consisted of
nine whites, two blacks, and one juror of unknown race.13 They
also stipulated that McMahon used at least eight of his sixteen
peremptory challenges against blacks. The District Court found
that a ninth potential juror challenged by McMahon was black,
although the Commonwealth challenges this conclusion on

13
Most of the transcript of Wilson’s voir dire has been lost,
hence the factual record is incomplete.

22
appeal. Wilson submitted voter registration records for three
more individuals he alleged were also struck by McMahon. The
District Court, noting that the names were very common, refused
to find that the three additional individuals struck by McMahon
were those identified by Wilson.
Thus, the District Court concluded that, of the sixteen
people struck by McMahon, nine were black. The
Commonwealth argues that the remaining individuals struck by
McMahon were “non-African-American.” Wilson disputes this
claim, arguing instead that they were all of unknown race. We
see nothing in the record or in the District Court’s opinion
supporting the Commonwealth’s claim, so we agree with Wilson
that the race of the seven remaining individuals is unknown.
Finally, the District Court found that McMahon noted the
race and gender of eleven of the twelve jurors in Wilson’s panel.
314 F. Supp. 2d at 448. It concluded that the Commonwealth
“offered no . . . legitimate rationale for Mr. McMahon's decision
to make such notations,” given that Wilson’s trial predated
Batson. Id. at 448.14

B. Batson Step One

A defendant satisfies the first step of the Batson analysis
“by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.” Johnson,
125 S. Ct. at 2417. Batson itself stressed the open-ended nature
of the step one inquiry:
In deciding whether the defendant has made the
requisite showing, the trial court should consider
all relevant circumstances. For example, a
“pattern” of strikes against black jurors included in
the particular venire might give rise to an inference
of discrimination. Similarly, the prosecutor's
questions and statements during voir dire

14
The District Court noted that Batson gives prosecutors an
incentive to record the race of potential as well as actual jurors, as
such information may “assist them in meeting their burden at Step
Two.” Id. at 448 n.15.

23
 examination and in exercising his challenges may
support or refute an inference of discriminatory
purpose. These examples are merely illustrative.
We have confidence that trial judges, experienced
in supervising voir dire, will be able to decide if
the circumstances concerning the prosecutor's use
of peremptory challenges creates a prima facie
case of discrimination against black jurors.

Batson, 476 U.S. at 96-97.
The District Court found that Wilson had established a
prima facie Batson violation, relying primarily on McMahon’s
statements in the videotape as well as what was known about
McMahon’s conduct at Wilson’s jury selection. We agree. The
evidence in the McMahon tape, coupled with the fact that every
juror challenged peremptorily by McMahon whose race was
determined by the District Court was black, provides extremely
strong support for the conclusion that McMahon engaged in
purposeful discrimination. There is no doubt that a judge,
relying on this evidence, could easily “draw an inference that
discrimination has occurred.”
We recently noted that, “in some circumstances,
suspicious questioning, coupled with strikes that seem to
implement the thrust of the questioning, may be enough” to
satisfy step one. See Bronshtein v. Horn, 404 F.3d 700, 723 (3d
Cir. 2005). Certainly, then, an admission by the prosecutor that
he uses peremptory strikes to keep certain categories of African-
Americans from serving, coupled with a limited record showing
that he used many of his strikes on African-Americans in the
case at issue, is sufficient. We therefore conclude that Wilson
carried his burden under step one of Batson.15

15
McMahon’s own testimony at the evidentiary hearing
further supports this conclusion. As the District Court found,
McMahon was equivocal as to whether race was ever a factor in his
decision-making:

The Court: Did race ever play a factor in your
determining who to challenge and who not to

24
 C. Batson Step Two

Once the defendant has satisfied step one, “the ‘burden
shifts to the State to explain adequately the racial exclusion’ by
offering permissible race-neutral justifications for the strikes.”
Johnson, 125 S. Ct. at 2416 (citation omitted). The District
Court decided that, given that twenty years had elapsed since
Wilson’s trial, it would be unreasonable to expect McMahon to
remember why he struck certain individuals.16 Instead, it
concluded that the various race-neutral reasons McMahon offers
in the videotape for striking jurors—such as his recommendation
that prosecutors strike lawyers and law students—were sufficient
to carry the Commonwealth’s burden at step two.
As Wilson notes, McMahon failed to offer a race-neutral
explanation for all but one of the African-Americans he struck at
trial. Still, in 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. At all events, because we conclude
that the District Court’s determination that Wilson showed

challenge peremptorily?

Mr. McMahon: I understand. Do you—that’s a
tough question, Your Honor. I can’t say that
it—because sometimes they’re intertwined. I would
say that—was it ever a factor? In some ways, I
guess, yes. In some ways I would think—in certain
situations, maybe, but only because of its correlation
to another factor, not because of the color of their
skin. It was really other things and its because of
other issues that would be the reason for a
peremptory strike. I don't see race as being the
reason.

314 F. Supp. 2d at 442.

16
McMahon testified that he struck one of the jurors, Darrell
Lampkin, because his brother was in prison at the time of the trial.
The District Court found that this explanation was not pretextual.
See 314 F. Supp. 2d at 443.

25
intentional discrimination was amply supported by the evidence,
we need not determine whether its finding at step two was
correct. Even if the District Court erred in giving the
Commonwealth the benefit of the doubt at step two, it
nonetheless reached the correct result at step three, so any such
error had no impact on its ultimate determination that Wilson
was entitled to habeas relief.

D. Batson Step Three

At step three, the court must determine “whether the
opponent of the strike has proved purposeful racial
discrimination.” Johnson, 125 S. Ct. at 2416. A determination
that a petitioner has shown intentional discrimination is a factual
finding that we may not upset unless it is shown to be clearly
erroneous. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The District Court concluded that Wilson had shown purposeful
discrimination with respect to “at least one of the peremptory
strikes exercised against African-American jurors.” 314 F.
Supp. 2d at 449.
In reaching this conclusion, the Court found that, given
the breadth of the categories of black jurors whom McMahon
recommends striking in the videotape, it would be difficult to
accept that all of the black jurors struck by McMahon were
struck for reasons that were race-neutral. In particular, the
District Court noted that McMahon struck at least six black
women, consistent with statements he made in the tape that
“young” and “older” black women did not make prosecution-
friendly jurors. In addition, the Court noted that McMahon had
recorded the races of the members of the jury.
In challenging the District Court’s conclusion, the
Commonwealth makes several arguments. First, it argues that
the techniques McMahon discusses in the tape could have been
developed after Wilson’s trial. Next, it argues that the record
shows that McMahon used his strikes evenly against African-
Americans and others, and that he therefore did not engage in
intentional discrimination. Finally, it argues that the District
Court did not identify any individual juror who was struck
because of his or her race, and that the court therefore erred in
granting relief.

26
 We see no merit to the Commonwealth’s suggestion that
McMahon developed the techniques in the tape in the years after
Wilsons’s trial. While the tape was made about two years after
Wilson was convicted, McMahon leaves no doubt that he had
developed the techniques he advocates over the course of his
career:
Now, I’m going to tell you things that I think over
the years that have come to me of doing this . . .
I’ve had fairly good success with these rules and I
think if you stay to them, you’ll have fairly good
success, too.
McMahon had worked in the District Attorney’s office for six
years prior to Wilson’s trial. It simply defies logic to suggest
that all of the techniques which he so forcefully advocates in the
tape suddenly came to him during the two years between
Wilson’s trial and the training session at which the tape was
made.
Indeed, McMahon advises his audience to follow the
same techniques in each trial, going so far as to compare picking
a jury to following proper strategy in blackjack:
But the key is, just as in playing blackjack, is to
stay by the rules . . . And that’s all I can tell you
when you talk to you [sic] about this, is to play by
certain rules and don’t bend them and don’t change
them.

In light of these statements, we conclude that the District Court
was justified in concluding that McMahon almost certainly
followed the techniques he advocates in the tape during Wilson’s
trial. Indeed, given that McMahon used at least nine of his
peremptory strikes on African-Americans, we think it abundantly
clear that McMahon made full use of the techniques he discusses
in the tape in Wilson’s trial.
The Commonwealth next contends that because
McMahon used “an equal—or nearly equal—number of
peremptory challenges on non-African-American jurors,” he
used his peremptory challenges “in an evenhanded manner.”
This argument is premised on the Commonwealth’s erroneous
assertion that the seven individuals struck by McMahon whose
race is not known were “non-African-American.” Again, we see

27
no evidence to support this conclusion. In fact, it appears that
every juror challenged by McMahon whose race was determined
by the District Court was black. Certainly this record cannot be
called “evenhanded.”
Finally, the Commonwealth argues that the District Court
“cannot point to any particular juror who was struck because of
his or her race.” Rather, the Commonwealth suggests that all of
the black jurors in question could have been struck for any of the
race-neutral explanations offered by McMahon in the videotape.
It is certainly possible that one or more of the black jurors in
question was struck for reasons having nothing to do with race.
But the burden is not on Wilson to prove with certainty that
McMahon engaged in intentional discrimination with respect to
each juror in question. Rather, his burden is to show that it is
more likely than not that McMahon did so with respect to at least
one of the jurors he struck. See Johnson, 125 S. Ct. at 2417. We
agree with the District Court that Wilson has carried this burden.
Indeed, we think the evidence would support the conclusion that
McMahon acted with the requisite discriminatory intent toward
any one of the eight jurors in question.
At all events, when we consider all of the relevant
evidence, it is virtually impossible to conclude that McMahon
did not strike at least one of the jurors for an impermissible
reason. In light of the policy expressed in the tape, the fact that
McMahon challenged a significant number of African-American
members of the venire, and his equivocal statements to the
District Court, we agree with the District Court’s ultimate
conclusion that McMahon acted with the requisite discriminatory
purpose.17 There can be no doubt that if McMahon practiced in
Wilson’s trial what he preached in the tape, he violated Batson.
Since what is known about Wilson’s voir dire suggests that he
did, we have no hesitation in affirming the District Court on this

17
For this reason, we also reject the Commonwealth’s
assertion that the District Court erred in its “mixed-motive”
analysis. The evidence supports the conclusion that McMahon
struck at least one potential juror because of his or her race, which
is all the petitioner must show under Batson.

28
point.18

V. Conclusion

In sum, we hold that the District Court did not err in its
application of the Batson framework.19 Wilson has submitted
compelling evidence showing that the prosecutor in his case
regularly acted with discriminatory animus toward African-
American jurors. This evidence, coupled with the fact that
numerous African-Americans were stricken from his jury, gives
rise to an almost unavoidable inference that the prosecutor
engaged in prohibited discrimination in this case. For the above
reasons, the District Court did not err in its grant of the writ,
hence we will affirm its order.

18
It is also important to remember that a primary justification
for the Batson burden-shifting framework is the recognition that
direct evidence of the prosecutor’s discriminatory intent will often
be hard to produce. See Basemore, 560 Pa. at 284. This case is the
rare instance in which such direct evidence is available.

19
Because we conclude that Wilson is entitled to relief under
Batson, we need not address his argument that he is also entitled to
relief under Swain.

29