2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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### PRECEDENTIAL

UNITED S TATES COUR T OF APPEALS FOR THE THIRD CIRCUIT

____________
No: 01-9006

___________
DONALD H ARDCASTLE

v.
MARTIN HORN, COMMISSI ONER, PENNS YLVANI A DEPART MENT OF

CORREC TIONS; GEORGE R. WHITE, SUPERINTENDENT OF THE STATE CORRECT IONAL INS TI TUTI ON AT PITTSBURG H; AND JOSEPH P. MAZURK IEWICZ, SUPERINTENDENT OF THE STATE CORRECT IONAL INS TI TUTI ON AT

ROC KVI EW,
Ap pellan ts

___________

_________________ Appeal from the United State s District Cou rt for the Easte rn D istrict of P enns ylvania (D.C. Civi l No. 98-cv- 03028) Dis tric t J udg e: Hono rabl e J ohn R.

Padova

Argued on May 20, 2003

Be for e: S CIR ICA , Chief Judge , NY GA AR D a nd R OT H, Circuit Judges

(Fil ed May 14, 2004) Thomas W. Dolgenos (Argued) Office of the Dis tri ct Attorney 1421 Arch Street Philadelphia, PA 19102

Atto rney for Ap pellan ts

Robert B. Dunham (Argued) De fend er A ssocia tion of Philad elphia Fed eral C apital H abea s Co rpus U nit The Cu rtis Center, Suite 545 West Independence Squ are West Philadelphia, PA 19106
Attorneyfor Appelle e

OPI NION



### ROTH, Circuit

Judge :

In 1982, Donald Hardca stl e was chargedby

the Philadelphia Di strict Attorney’ s Office with murder, arson, and bu rg la ry. He was tried before a jury in the Courtof Common Pleas, c onvicted on all

co u nts, and sentence d to death. In both his direct

app eal and state collate ral review proceedings , Hardcas tle as serted, inter alia , that theassistant dist

rict attorney

w h o conducted the jury selection at his trialexercised her

perem ptory strike s in a racially discri minat

ory manner , thus violating the constitu ti onal princip le recognizedby the Sup reme Court in

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Batson v. Kentu cky , 476 U.S. 79 (1986), andmade a

pplicable to Hardc astle ’s thenpending di rect

ap pe al by Griffith v. Kentuc ky , 479 U.S. 314 (1987). The Pennsylvania Suprem e C ourt twic e reje ct edHardcastle’s Batson claim and affirm ed his conviction.

Ha rdcas tle then f iled a p etiti on for

a writ of habe as corpu s wi th the U.S. Distri ct Cou rt. The D istrict Court concluded that the Pen nsylv ani a Su pr eme Cou rt’s ruli ng was both con trary to and an

unreas onab le applic ation of Bats on , grantedHardc astle’s petit ion, and ordered

a new trial. For the reasons set fo rt h be lo w, we hold that the Pen nsylvan ia Supreme Cou rt’s rejection of H ardcastle’s claim on the rec ord before i t was indeed an obje ct ively unreasonabl e appli cati on of Bat son

. Ho we ver, be caus e th e Co mm onw ealth of Pennsy l vania had request ed, and b een d enied , a cha nce to pre sentevide nce in supp ort of its peremp tory strikes of African- Americans from the veni re, i t is entit led to a h e aring to prese nt that e viden ce. W e w ill, theref ore, rem an d this matter to the Distri ct Court to hold su ch a hearing and to then ree xamine the applic ation of Batson to H ard cas tle’s c laim

. I. FactualBackground and Procedural

History

T h e fo ll owi ng m at er ia l f ac ts ar e d ra wn from the opini ons issuedin thi s case bythe Pen nsylvan ia Supreme Court an d the United States Distri ct Court f o rthe Eastern Dis tri ct of P enn sylvan ia. Se e Co mm onw ealth v. H ardca stle , 546 A.2 d 110 1 (Pa. 19 88) (di rect a ppea l p r oceedings) ( H a rdcas t l e I ) ; Co mm onw ealth v. Hardca stl e , 701 A.2d 541 (Pa. 1998) (appeal of post- conviction reli efpr oceeding s) ( Hardc astle II ) ; Ha rdcas tle v. Horn , No. 98-CV-3028, 2001 WL 722781 (E.D. Pa. June 27, 2001) (federalhabeas corpus proce ed ings) ( Hardc astle III ). Theyare not i n disput e.
O n May 23, 1982, the bodies o f Joseph Gregg and E rnestine Dennis w ere found in Greg g’s Ph ilade lph ia ho me

. Bo th had rec ei ved in exces s of thi rtystab wounds and Gregg’s home had been se t on fire. Several neighbo rs indicated that they had seen Hardcastle n ea r Gr egg ’s home around th e t ime of the murders. An arrest

w arrant wa s issued and H ardca stl e surrendere d to t he pol ic e o n May25. He

was subse que nt ly ch ar ge d w ith bu rg lar y, two cou nts o f ars on, a nd tw o counts of murde r.
Ha rdcas tle is an A fric an- American. During the c ourse of jury se lection at his t r ial, the prosecu tor used he r peremp tory strikes, of which she had a tot al of tw en ty, to remove twelve of the fourteen AfricanAmerican members of the veni re. The jury ultima tely empaneled to hear the case contai ned only one African-Ameri can. Hardc astle’s trial cou nsel d id no t objec t to the Comm onw e alth ’s pere mptor y cha llenge s du rin g t he fiv e- da y voir dire , and the trial cour t theref ore d id not require the prosec utor to st ate the bases for her strikes on the rec ord. However, fol lowing voir dire , Hard castl e ’s counselmoved for

a mi s tri al on the grounds that the prosecuto r’s use of t he p er emp t ory

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chall enges vi olate d both the s tate and fe d eral consti tuti ons. Apply ing the thengoverning standar d arti culat ed in Swain v. Alabama , 3 80 U.S. 202 (1965) , the tri al court den ied th is m otio n. The trial court similarly denie d the prosecutor’s request for pe r missi on to st ate her reasons f

or the chall enged strikes on t

he record. 1 After tri al , H ar dc as tl e wa s convict ed of two cou nts of firs t degree murde r, two counts of ar son, and one count of burg lary. Post-trialmotions w ere file d, arg uin g, inter alia , that t he prosecut or exerci s ed her pe remptory strikes in a dis criminatorymanner, thus violat ing Hard castle’s consti tuti onal rights

. A three- judge en banc pane l of the Cou rt of Comm on P le as wa s convened to hear the post

- tri al moti ons. At this hearing, counsel for H ardcastle re peatedl y request ed an eviden tiary h earing on t he discrim inato ry strikes. I n reply , the Assist ant Distri ct Attorney s tate d tha t, in view of the fact that the tri al had occur red six mo nths e arlier, she could n ot offer

reasons for her s tri kes of blac k juror s and that it was no lo nger poss ible to reconst ructthe voir dire. An evidentiary hearing was not grant ed but the panel, by

a two to one vote, granted Hardc astl e a
new trial o n th e jur y selec tion issu e.
On appe al, the P enns ylvania Superior Court rever sed the gr ant of a new tri al and affirmed the convict io n, holdi ng that Hardcastl e fail ed to make the s howing required by the the n -governin g standard establ ished in Sw ain . The Pen nsy lvania Supreme Court ini tial ly granted a llocatur but then d ismisse d the appealas impro viden tly granted. O n remand, Ha rdcas tle was sentence d to death for the murders of Gregg a nd Denn is, to 2 1⁄2 to 5 years fo r arson, and to 2 1⁄2 to 5 y ears for bur glar y. 1 The follow ing ex chan ge oc curred in connecti on with the t

rialcourt’ s denialof Hardcastl e’s moti on for a mist rial following voir dire :

The Co urt:[Defense Co unse l], I’m no t going to argue the point. There’s no need to. I’m going t o deny your motion. Y our record is cor rect, and we now proceed. Is the re anyother motion?

[Prosecut or]: May I put somethin g on the rec ord with regard to thi s iss ue?

The Court:No.

[Pro secu tor]:N ot in defense.

The Court:No.

[P ro se cu to r]: O ka y.

The Court:Now that

gets rid of t he p ro bl em.

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Following sen tenc ing , H ardca stle ag a in appe aled to the P enns ylvania Sup reme Co urt. By the time h is case was heard by that court in November 1987, the United States S upre me C ourt had issued its decisio n in Bat son , the reby lesse ning the evidentiaryburden imposed on d efen dants in H ard cas tle’s p ositio n. A s noted by the Pen nsylvan ia Su prem e Co urt, this change in cont roll ing prece dent complicated its task:
The case before us p res ents

a dif ficult

problem for

re vi ew. Si nce th e Su pr eme Cou rt’s decisi on in Batson post-da tes a ppella nt’ s judgmentof sentenc e, the defense did notobjec t to the prosecuto r’s use o f peremp tory chall eng es at t he ti m e of voir di re, t he prosecution did notrebut t he objection, and the tri al court did not rul e on the i ssue. Defense counsel di d , how ever, preserve the i ssue by mak ing a mo tion for a mistrial, subsequent

to vo i r dire and prior t o tri al, based

o n the pros e c utor’ s impermissi b le use of the challenges. Because the issue was preserve d appell ant is entitl ed to the pro tect ions granted b y Batson

. Therefore, we mu st make a p o st hoc evaluation of the rec ord, exami ning each of th e Com mon wealth’s fourtee n peremp tory challe nges to determi ne whethe r appe ll ant has mad e out a prima facie

cas e of imp rop er u se.

Ha rdcas tle I , 546 A.2d at 1104 (cit ation and foo tno te om itted ).
How ever, rath er than reman ding th e
ca se to the tria l court f or an evide ntia r y h earing, th e Pe nns y lv ani a Su pr eme C o ur t combed through t

he record i tsel f in an effort t o d etermi ne whether ra ce-neutral bases ex iste d for the challenged stri kes. After conducti ng this ana lysis, itidenti fied the following a s potential ba ses for the dismis sal of Venirepers ons 1 through 10: 2

2 For ease of r eference, the fi rst ten African-Ameri cans struck from the venire (for w hom the P enns ylvania Sup reme Co urt pro ffere d relativ ely spec ific race -neu tral justifica tions) w ill be referred to throughout thi s Opinion as “Venirepersons 1 through 10.” The last two African-Ameri cans struck from the venire (for w hom the P enns ylvania Supreme Court proff

ered only general

race-ne utraljustific ations ) willbe referred to as “Veni repers ons 11 and 12.”

Additional ly , we note the discuss ion by the Dist

rict Court and the parti es regar ding the f

act that one of the firs t ten ve nireper sons dis cussed bythe Pennsyl vania Supreme Court may not have been an African-American, and the poss ibility that the P enns ylvania

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(1) the fi rst ha d a sister that had been raped severalyears before H ardcastle’s tri al; ( 2) t he second admitted duri ng voir dire that she had heard about

the case through med ia reports; (3) the third was questi oned in detai l by bo th si de s abo ut her w ork in caring for deli nquent chi ldren, her educati on, and her familyhist ory ; the court note d t hat thi s extens ive questioning “ga ve the C ommonw ealt h attorney ampl e opp ortun ity to observe res pon ses and demeanor”; ( 4) the fourt h had a sister and nephew who had been arrest ed fo r drugrelated crimes, as well as a father who had been a victim in a separate crime; (5) the fifth “init

iall y t esti fied that she would not follow the judge ’s ins tructions i f she fel t tha t something el se was bett er law,” b u t late r stated a fter fu rther q uestion in g that she wou ld follow th e judge’s instructi ons; (6) the sixth had a ttended he r brother’s trial, in which he was convi cted on robbery charges; (7) the seventh was a c ase-worker for the Commonwealth and had a brother who ha d been a victim of viol ent cri me; (8) the ei ghth was a regi ster ed nurse who had six chi ldren, one of whom , a son, had been convict ed of

rape; ( 9) the ninth was a twenty -y ea r -old unemploye d high school graduate ; an d ( 10 ) th e te nt h w as a th irtyfive-year- old singl e barte nder who initial l y indicated that he would do whatever he thoughtwa s right, b ut later sta ted tha t h e woul d follow the judge’s instructions. Hardcastl e I , 546 A.2d at 1104-05.

In turni ng next to Venirepers ons 11 and 12, the court conc luded the se strikes

were justifie d by more gene ra l “rac eneutra l” explanations, finding t hat “the Co mm onw ealth had the op portu nity to observe the w itnesse s and their resp onse to questi oning prior

to exerc isi ng t he peremp tory chall enge” and that “although the Co mm onw ealth had ample chall enges remaini ng, there w ere no chall en ges offered to tw o bla c k juror s, one of whom i ronica lly wa s cha llenge d by th e def end ant.” Id. at 1105. Base d on the foregoing, th e Pe nns y lv ani a Su pr eme Cou rt conc luded that H ardca stle failed to establisha prima facie case of i mproper
us e of peremptory chal lenges under Batson

. Id. The co urt similarl y reje cted the rema ining c laims ra ised b y Hard castle

on direct

appeal and affi rmed both his conviction and sentence.
When ag ain pres ented with the Batson clai m in co n sidering H ardcastle’s appeal of the denial of his Post Convicti on Relief Act (PC RA ) clai m, see 42 Pa. C. S. § 9541 et seq. , the Pen nsy lv ani a Su pr eme Cou rt refused t o exempt Hardcastle from t he requirement that

clai ms raise d i n PCRA p r oceedings must not have been prev iously litigated. The cou rt therefore Supreme Court may theref ore have offered explanations for only t he first nine Afric an-Americans s truck fr om the

ven ire. See Hardc astle III , 20 01 WL 722781 at *14-*15. We take no position with res pect t o this issue, as it in no way aff ects the o utco me of th is ap pea l. Ho we ver, fo r ease o f refe rence , we w ill

assume that all of the poten tial jurors identi fied and di scussed bythe Pennsyl vania Supreme Court were in fact Af rican -A me rican s.

### 6

rejecte d his c laim that intervening decisi ons of t

he Un ited S ta te s Su pr eme Cour t required it to reach a di fferent conclusi on on collateralreview tha n it had

o n direct

review: “ if fi nalit

y means anyt hing it must mean that our decisi on on the merits in this cas e, as to which certi orari was denied by the United States Supreme Co urt, can not be a ffected by decisi ons in other

cases deci ded three and four y ears l ater. ” Id.

Fo l lowing exha ustion of h is state remedies, Hardca s tle s ought a writ of habeas cor pus from the United State s Distri ct Cou rt for

the East ern District

of Pennsyl vania. Alt hough the petit ion rai sed unexhaustedclai ms, both s ides conce ded that pro cedu ral bars prev ented Ha rdcas tle from raising his un exha usted claim s in state cou rt. A cco rdingl y, the Dist rict Cou rt held that Hardcastle’s pe tit ion was not a mixed peti tion an d thus was not subject to d ism issal

. Hardc astle III , 2001 WL 722781 at *3. Fo llowing a t horough analysis of the m erits, the District Court f urther held th at the P enns ylv ania Suprem e Cou rt’s resolu ti on o f H ardca stle’s claim

was both contr ary to a nd an un reaso nable applic ation of Batson . It therefore granted the writ and, after

conc lu ding that

an evi dentiary hearing would not be helpful , ordered a ne w tr ial. Id. at * 19. T his app eal f ollo we d.

II. Juri sdicti on
The Distri ct Court e xercis ed juri sdiction over Ha rdcas tle’s petitio n f or
a writ of habe as corpus p ursuant to 28 U.S .C. §§ 2241 and 2254. We h ave juri sdiction to review th e District Cou rt’s fi nal order gr anting Hardc astl e’s petiti on pursuant to 28 U.S.C. §§ 1291 a nd 22 53. The Co mm onw ealth is n ot requ ired to obtain a certifica te of ap peala bility prior to seeking re view of a D istrict Court’s decisi on to gran t a petiti on for a writ of habeas c orp us. Cristin v. Bre nnan , 281 F.3d 404, 4 09 (3d Ci r. 2002) ( citing Fe d

. R. A pp. P . 22( b)(3 )).
III. Standard of Review
Becau se t he District Court “d[id] not hold an e videntiary hearing and engage in in dep endent fact -findi ng, but r ather limi t[ed] the ha beas evide nce to that found in the state cour t record ,” our re view of its fin al jud gm ent is plen ary. Scarbrough v. Johnson , 300 F.3d 302, 305 (3d Cir. 2002).
Hardc astle’s petit

ion for a wri t of habeas corpus was fi led afte r April 1996 and thus i s subjec t to t

he Antiterrori sm and E ffe ctive Death Penalty Act of 1996, 28 U.S .C. § 2241 et seq. (A ED PA ). Gattis v. Snyder , 278 F.3d 222, 228 ( 3d Cir. 2002). “Under AE DP A, w hen a fe deral court

re vi ews a state court’ s rul ing o n federal la w, orit s appl ic atio n of fe de ra l l aw t o a parti cular

set of f acts, the state court’s decisi on must st and unless it i s ‘co ntra ry to, or a n un reasonabl e appli cati on of, clearly establ ished Feder al la w, as det ermined by the Supreme Court of th e United States .’” Lam v. Kelch ner , 304 F.3d 256, 263 (3 d Cir. 2002) (quoti ng 28 U.S .C. § 2254(d)(1) ). “When a feder al court review s a state c ourt’s f indin gs o f fact, its decision must stand unl ess ‘i t was based on an unre ason able determi nationof

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the facts in li ght of the evidence pr esented in a State court pr oceeding. ’” Id. (quoti ng 28 U .S.C . § 22 54( d)(2 )).

It is by now well- settled that Batson cl ai ms consti tute mi xed questi ons of law and fact for pu rp os es of federa l habeas corpus re vi ew. Se e Rileyv. Tay lor , 277 F.3d 261, 277-78 (3d Cir. 2001) ( en banc ). The governing standar d for suc h determi nations is provi ded by th e Su pr eme Cou rt’s decisi on in Willi ams v. Tay lor , 529 U.S. 36 2 (2000 ). Under Wil li ams , “a state court dec isi on is ‘c ontrary to [the Suprem e Court’s] clearly establ ished precedent

if the st a te cou rt applie s a rule that contradi cts t

he governing l aw setforth in [the Court ’s] ca ses’ or ‘if t he state court conf ronts a set of fa c ts that are mate rially indisting uisha ble fro m a decisi on of [the Co urt] and n everth eless a rrives a t a resu lt differe nt from [its ] precede nt.’ ” Lockyer v. Andrade , — U.S . — , 123 S . Ct. 1 166, 1173 (2003) (quot

ing Wil li ams , 529 U. S. at 40 5-0 6).
State court determination s of mixed questi ons of law and fact c o nsti tute an “unr easo nable applic at io n” of clearly establ ished fede ral law wh en “‘th e state court identi fies t

he correc t governi ng legal princip le fr om [t

he S upr eme C o ur t’s] decis ion s but unreas onablyapplie s that pri nciple to the f

acts of t he pris oner ’ s case.’” Id. at 1174 (quoting Wil li ams , 529 U.S. at 413). U nder the “u nre aso nable applic ation” clause, “[t]he state co urt’s applic ation of cle arly established l aw mu st be objectivelyunreasonable”; a decisi o n that is merel y “i ncorrect

or err on eous ” is in suffici ent to ju stify re lief. Id. As the Sup re me Co urt rece ntl y cl arifi ed , “obje ctively unreasonabl e” is no t synonymou s w ith “c lear e rror, ” as “[t ]he gloss of clear

errorfail s to gi ve proper deference to s tate courts by confl ating

e rror (even clear e rror) w i t h unreasonabl eness. ” Id. at 1175. Thus, “[i] t is not en oug h that a federalhabe as co urt, in it s ‘inde pendent review of the legal questi on’ is l eft with a ‘firm conviction’ t

hat the state court was ‘erroneou s.’” Id. (citati on omitt ed)

. “Rather , that ap pli cation mu st b e objec tiv ely unreasonabl e.” Id. Stated a differe nt way, a “ ‘federalhabea s c ourt shou ld not grant

the petiti on unless t

he state court dec isi on, evalu ated o bjectiv ely and on th e me rits, result ed in an o ut come that cannot reasonably be justified under exist ing Supr eme Cour t prece dent. ’” We rt s
v. Vaughn , 228 F.3d 178, 197 (3d Cir

. 2000) (quoti ng Mateo , 171 F .3d at 89 0).

IV. Discussi on
We begin by noting ouragreement with the Penn sylvania Suprem e Cou rt’s observation that

the ret roacti ve appli cati on of Batson cau se s unique e videntiary p ro bl ems for reviewing courts, as th e three- step Bat son in quirywit h wh ic h we

are all now fa mili ar did not occur duri ng voir dire in th ese cas es. T hus , we a re aware of the diffic ulties fa ced b y both the Pen nsylvan ia Supreme Court and t he Distri ct Co urt in rev iewin g the re cord in this c ase

. Nevertheless, we cannot conclude , even under the de ferential s tand ard of

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review c ontaine d in AEDPA , that the Pen nsylvan ia Suprem e Cou rt ’ s resol ution of Hardcas tle’ s clai m amounted to an objec tively reasonabl e applic ation of Batson

. S pe cifi call y, even accepting the Penn sy lvania Supreme Court’s proffered ju stifications for the c halle nged strikes at face value , the co urt still (1) fa iled to identi fy adequate bas es for the striking of Venirepers ons 11 and 12, and th us sh ould have termin ated its analy sis and f ound the exist ence of a Batson vi ol atio n a t s te p t wo of the inq uiry; and (2 ) failed to con duct a full and complete s tep three analysis w ith

r espectto the challenged strikes o f Venirepers ons 1-10.
How ever, exerci sing plenary revie w
over the fi nal judgment of the D istri ct Co urt, we simila r ly reject its dec ision to granthabeas corpu s r elie f on the basi s of the current

evidentiaryrecord. Inste ad, b ased on the fact s of thi s case, in wh ic h t he Commonw ealth offered t o state the bases for its strikes immediatelyfollowing voir dire and in which both sides have, at various time s, s ough t ahe ar in g, we conclude that the Distric t Cou rt erred in granti ng habeas corpus reli ef without first providi ng the Commonwealth with the opp ortun ity to pres ent evi dence in defense of the chal lenged per emptorystrikes. The Com mon wealth’s prior obse rvati ons of the di ffic ulti es it wil l have i n recal ling t he

reasons for it s p erem ptory strike s sho uld not now preclu de it fro m m akin g that effort when it has r eq ues ted th e opp ortun ity to do so. Rem and is therefo re appropri ate. A. Backgr ound
The Supreme Court’s deci s ion in Batson has been inter preted a s establis hing

a thr ee -ste p inquiry for determi ning the

cons titutionality of challeng ed perem ptory strikes. See Riley , 277 F.3d at 275. 3 First, “‘a de fen dant may establ ish a prima facie

c a se of p urpo sefu l discrim ination in selectio n of the petit j ury solel y on evidence concern ing the prose cutor’s exercise of peremptory chal lenges at the defend ant’s tri al. ” Id. (quo ti n g Batson , 47 6 U.S . at

96). “Once the defendant makes a prima facie showing of raci al discrimination (ste p one), t he prosecution must a rti culat e a race- neutralexplanation for its u se of perempt ory chall enges (step two). If it do es so, the trial court must determi ne whether the defen dant has

es tabli shed purposeful discrimination (step thre e).” Id. Thr oughout this process, “[t]he ulti mate burden of per s uasion regardi ng racia l motivation rest s with, and does not shi ft from, the defendant .” Id.

3 As a prelim inary ma tter, we note th at, although § 2254 pe rmits habeas corpus relief o nly in situatio ns in w hich a state court’ s decis ion “is contrary t o, or an
unre ason able a pplica tion of , clearly establ ished fede ral l aw, as dete rmined by the S upr em e C our t of th e U nited Sta tes,” our analy sis of Supreme Court precede nt may be ampli fied bydecisi ons of inferior federal courts evaluati ng reasonableness und er th at S upr em e C our t pre ced ent. See Matteo v . S upe ri nt end ent , S CI Albion , 171 F.3d 877, 890 (3d Cir. 1999) ( en banc ).

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Si gn ifi ca nt ly, “[d ]eferenc e in a Batson

case mu st be v iewe d in the conte xt o f the requir ement that the state cour ts enga ge in the th ree -ste p Batson inquiry” des cribed abo ve. Id. at 28 6.

In r eview ing this matte r, we b egin by not ing the inc omplete nat ure of the Pen nsylvan ia Suprem e Cou rt’s analy sis of Ha rdcas tle ’s Batson clai m on direct appe al. Simply stat ed, the court conf late d steps one and two of the Batson analysis in the sense that it

identi fied and the n analy zed potenti al jus tifi cati on s f or the chall enged strikes — so mething that

s hou ld not occur unt

il s tep two — in i t s step one a naly sis of w hethe r Ha rdcas tle had succ essfu lly establ ished a pr imafacie

case. The court then proceeded t o step three, only to concl ude that Hardcastl e had fail ed to est ablis h a prim a f acie case of disc rimination, thus in dicati ng th at, techn ically sp eak ing, i ts anal ysi s never pro cee ded beyo nd s tep o ne.
The Pen nsylv ani a Su pr eme Cou rt appa rently recognize d this error wh en, in it s subseq uent d ecision regard in g Har dcastle’s appeal of the PC RA court’s decision, it

acknowledged as follows:

N o twi thst anding th e language i n our opinion [on direct appeal] to the e ffect that [Hardca st le] had not made out a p rima f acie case, the extensi ve analy sis of t he

reco r d for race-ne utra l

reasons indicates t

hat our post hoc a nalysis actu ally presumed the e xist ence of a pr imafacie cas e, eval uated the evidence and a ll t he relevant circumst ances as the trial co urt woul d ordin arily do p ursua nt to Batson, and resol ved the ultima te issue by

decidi n g that the C om mo nw ealth had not used it s peremp tory cha lleng es im pro per ly.

Ha rdcas tle II , 701 A.2 d at 5 48. In view of this ruli ng, we will follow the lea d of th e Distri ct Co urt in exam in ing th e Pe nnsylva nia Su preme Court’s decisi on on direct rev iew , see Hardcastl e I , as modified by i ts opi nion on c oll atera l

re vi ew, see Hardc astle II . Stated alterna tively, we w ill treat Hardcastl e I as repre s enting th e Pe nns y lv ani a Su pr eme Cou rt’s full three-s tep analys i s of Hardcastle’s Batson claim

. We further

note that we will read the Pennsy lv ania S upre me C ourt’ s acknowledgment i n Hardc astle II of the existence of a prima facie c ase i n Ha rdcas tle I as a concess ion that Ha rdcas tle had sati sfied hi s burden at step

one. In view of the fact that twel ve of the prosecuto r’s pe re mpt ory st ri ke s we r e
e xercis ed against A fri can-America n
mem bers of the veni re, we have no d oub t that this concessi on was appropri ate. See Rico v. Leftridge-B yrd , 340 F.3d178, 185 (3d Cir. 2003 ) (noting that “[o]n e w ay to establisha prima facie case a t s tep on e is to show a pattern of peremptory chal lenges of jurors of a parti cular r ace”) ( citi ng

### 10

Batson , 476 U.S. at 96- 97). Even i n the absence of such a conces s ion, how ever, the Pennsylvania S upre me Co urt’ s decisi on to proceed t o steps two and three

m oot s the issu e of w hethe r Ha rdcas tle made a su ffic ient s how ing at ste p on e. See Hernandez v. New Y ork , 500 U.S. 352, 359 (199 1) (ho lding th at “ [o]nce a prosecut or has offered a race-ne ut ral explanation for the peremp tory chall enges and the tri al court

has rul ed on the ultim ate questi on of inte ntionaldiscrimination, the preliminary issue of

whether the defendant had made a prima faci e showing becomes

moo t.”). Thu s, we will f ocu s our discuss ion on st eps two and three.
B. S te p Two
A s detai led in t

he District Cou rt’ s opi nion and summarized above, the Pennsy lvania Supr em e C our t, i n considering Ha rdcas tle’s direc t appe al, examined the rec ord in an effort to identi fy

race-ne utral base s for t he tw elv e chall enged strikes. I t ar tic ulated wh at it consider ed to be sp ecific a nd f acially

c red ible bases for

the st

riki ng of Venirepers ons 1 thro ugh 10. H ow ever, it

was unable t o do so w ith resp ect to Venirepers ons 11 and 12 and theref ore offer ed only the fol lowing genera l justific ations for thes e strikes: (1) “the Com mon we alth had th e opp ortun ity to observe the w itnesse s and their resp onse to questi oning pr io r to exercisi ng the peremptory

chall enge”; and (2) “although the C om mo nw ealth had ample chal lenges remaini ng, th er e were no chall enges
o f fered to two blac k juror s, one of whom ironi cal ly was ch alleng ed by th e def end ant.” Hardcas tl e I , 546 A.2d at 1105. 4

4 We note the e xi st enc e of som e uncertainty

in the c ase law with respect to who may properly arti culat e the Co mm onw ealth’s ju stification s at this stage o f the a nalysis. H ere, this uncertainty raises the question whe ther, and to what ext ent, we may conside r the

race-ne utralexplanations offered by t he Pen nsylvan ia Su prem e Co urt on beha lf of the pros ecutor. Some cases may be read to i mply t

hat, because the prosecut or’s s ubjective intent is the princi pal focus of a Batson chall enge, he or she must pe rsonal ly arti culat e the

race -ne utra l bas is req uire d at s tep tw o. See, e. g. , Riley , 277 F.3d at 282 (holdi ng th at “ [t] he in qu iry r eq ui re d b y Batson must be focused on t

he distincti ons actua lly offere d by the S tate in the state

co ur t, not

on a llpos si bl e d is ti nc ti ons we can hypot

hesize. Apparent or potentia l reasons do not

shed any light

on the prosecut or’s i ntent or

state of mind when making the peremptorychall enge”) (citation s om itted). W e hav e prev iously determined , howe ver, that “[w ]e are unprep ared to hold . . . that the state’s burden can never

be carri ed without direct evidence fr om the decis ionmaking prosecut or regar ding his or her st ate of mind.” See Johnson v. Love , 40 F.3d 658 , 667 ( 3d C ir. 1994 ); Pemberthyv. Beyer , 19 F.3d 8 57, 864-6 5 (3d C ir. 199 4) (co nclud ing tha t state ap pellate court pr operlymade factualfindings regardi ng Batson inquiry des pite t he fact

### 11

In addressi ng the questi on whether the justifica tio ns ide ntified by th e Pen nsylvan ia Sup reme Co urt f or the striking of

Ve nirepersons 1 1 and 1 2 are suffici ent to satisfy the Com mon wealth’s burd en of producti on, we note that the Supreme Court has pur pos e ly set a relatively low bar at step two. It therefore

is rare fo r a case to be d ecide d at this stage of the analy sis. Indeed, “[t]he second st ep of [the Batson analysis] d oe s not demand

an expla nat ion that

is per suasive , or even plau sible .” Purkett

v. Elem , 514 U.S. 765, 767-68 (19 9 5) ( per curi am ). Rather, t he sole issue a t step tw o “is the facia l validity of the pro secu to r’ s explanation. Unless a discriminatory intent is in heren t i n the prosecuto r’s explanation, t he reason offered will be de emed race neutral .” Id. at 76 8.

Fu rther, the Supreme Court has emphasized the neces sity of mai ntaini ng the analy tica l dis tinct

ion be tween steps two an d t hr ee , as ste p t w o m er ely pl aces up on the pros ecutor t he burden o f producing an ex plana tion; “[ i]t is not until the third step t

hat the persuasi veness of the justific ation beco mes releva nt – the step in which the trialcourt determines w he ther the oppon ent of the stri ke has c arried h is burden of provi ng purposef u l discrimination.” Id. At s tep th ree, impla usible or fan tastic justi ficatio ns may (an d prob ably will) be fou nd to be p r etext s for purpos eful discrim in a tion. But to say that a tri al judge may choose to disbel ieve a s illy o r superstiti ous reason at

step three is qui te dif

ferent from say ing t hat a trialjudge must termin ate the inquiry at step two w hen the ra ce

neutralreas o n is si lly or superstitious. The latter that t here was no st ate court heari ng, and that t he prosecut or, at

that t ime, had not advanced any thing more t han a general explanation for the cha llenged strikes); Jones v. Ryan , 987 F.2d 960, 965-66 & n.2 (3 d C ir. 1993 ) (sugg esting th at state appell ate courts may make factual findings in their revi ew of Batson claim s); Esquivel v. McCotter , 791 F.2d 350 , 351 ( 5th C ir. 1986 ) (affirm ing state appell ate court’s f

actualdetermi nation regardi ng Batson claim raised for fir st time on a ppe al).
However, even assuming arguendo that it w as ap prop riate in th is case for the P ennsylvania Su preme C ourt to sift through the trial record in an effo rt to ident ifyunstat ed race- neutralbases for challenged peremp tory strikes, the court failed to either (1) identify a satisfactory step two explanati on for the s tri king of Venirepers ons 11 and 12, or (2) conduct an adequate s tep three analy sis as to any of the Afric an-Americans s truck fr om the venire. Thus, even accepti ng the Pennsyl vania Supreme Court ’s proffe red justifica tions as facia lly valid, w e are still unable t o conclude that it s resol ution of the m atter is an objec tively reaso nable applic ation of Batson

.

### 12 violates the prin ciple that th e ult imat e burden of

persuasi on
r e garding raci a l motiva tion res t s with, and never shifts fr om, t he opponent of the st rike.

Th e reaso ns pre sented at step tw o , however, must be “reasons ,” not mere ly a denial of di sc rim in ato ry m oti ve or an affirm ation of g ood faith

. See Id. at 768

- 69. “W hat [ Batson ] m ea ns by a ‘legitim ate reaso n’ is not a rea son that

m akes sense, but a rea son that does no t deny equa l prot ecti on.” Id.
Under this s tand ard , w e n eed not

co nduct at st ep two an analy sis of t h e purp ortedly race-n eutral explanations profferedby the Penn syl van iaSupreme C ourt with respect to Venirepersons 1 through 10. However, the justific ations for the st riki ng of Venirepers ons 11 and 12 fail to satisfy ev en the minim al burden of producti on re quire d a t s te p t wo

. T he Pen nsylvan ia Supreme Court’s assert ion that the st riki ng of Venireper sons 11 and 12 was r ace -n eut

ra l s imp ly b ecause the prosecut or had an opportuni ty to observe t hem during voir dire is inade quate on its face. Indeed, “ [t]he reco rd contai ns no evi den ce wha tsoever abo ut any juror’s demeanor or the prosecut or’s obs ervati ons
or imp ress ion s the reo f.” Hardc astle III , 2001 WL 722 781 at *13 . Thu s, this explanation amounts to not hing more than
a statem ent tha t the pro secu to r acted on intu iti on and with the absence of discriminatory intent . We have repea tedly rejec ted such vague and generalcl ai ms in the pas t. See United States v. Casper , 956 F.2d 416, 418 (3d Cir. 19 92) (h olding that, because “[t]he Batson Court st ated that explanations must be ‘cle ar and reaso nably spec ifi c,’” “[e]xpl anati ons based on a pros ecutor’s m ere ‘good faith’ o r ‘int uiti on’ do n ot suf fice.”) (c it ati ons omitted); United States v. Cle mons , 843 F.2d 741, 745 (3d Cir. 198 8) (no ting tha t, “[a]l though the re ason need not appr oach the level justify ing a chal lenge fo r ca use, the [ Batson ] Court emphasi z ed that the pr os ecutor

mu st assert a clear, sp ecific

r eason beyond ‘his intu itive jud gm ent’ o r ‘his good f aith.’” ) (quoti ng Batson , 476 U.S . at 98 & n.20 ).

We rejec t them agai n here. Indeed, to say , as the P enns ylvania Suprem e Cou rt did, that a

prosecut or’s s tep two bur den may be sati sfied bas ed solel y upon her opp ortun it y t o observe the juror s during voir dire creat es an e xc eption whic h th rea tens to sw allow the rule . A s Ha rdcas tle correctly ar gue s, th e s ame could be said regarding a lmost any peremp tory strike, and the accepta nce of the expl an ation p roffe red b y th e Pen nsylvan ia Supreme Court for th e striking of

Ve nirepe rsons 11 an d 12 wo uld renderstep two meaningless, as any prosecut or co ul d b ypa ss it b y b ri efly questi oning and observi ng the pros pecti ve juro r prio r to e xer cisin g th e strik e. Second, the fact that the prosecut or ha d eno ugh per emptor y stri kes to re mo v e the two remaini ng African-Amer i can

### 13

venirepersons, but chose not to do so, cannotdemonstrate the abse nce of discriminatory intent

in the s tri king of the othertwe lv e African-Ameri cans from the venire. S ee J ones v. Ry an , 987 F.2d 960, 972-73 (3d Cir . 1993) ( rejec ting a s imil ar argumentand noting t

hat “[w]e doubt

the signi ficance of incl uding a sing le black on the panel i f, at

the s ame time, the governmentused mo st o f its peremptory chall enges to stri ke b lacks w it h backgrounds simil ar to the wh ite jurors

u ltimately selected.”) ( quoting Clemon s , 84 3 F.2d at 747 ); see also Clemons , 843 F.2d at 747 (holdi ng that t he striking of “a single black j uror coul d consti tute a pr ima facie case even wh en bla cks u ltimately sit

on the paneland e ven w hen v alid reasons existfor strik ing oth er b lack s.”). T hus, absentfurther

justific ation f

or the striking of Venireperso ns 11 and 12, we cannot conclude th atth e Pe nns y lv ani a Su pr eme Cou rt’s decisio n to proceed to step th ree in just i fyi ng the st

rikes of Venirepers ons 11 and 12 w as an obje ct ively reaso nable applic ation of Batson

. C. Step Three
We further

hold thatthe fai lure of the Pennsyl vania Supreme C ou rt to conduct an adequate ana ly sis at step t hree with respect

to the ch alle nged strikes of Ven ir epersons 1-10 also precludes a finding that i ts ap plic ation of Batson was objec tively reaso na ble . Step t hree requires
a co urt conduct

ing a Batson inqu iry to “address [] and ev aluat e[] al l evide nce intr oduced by eac h side ( incl udin g all evidence intr oduced in the firs t and second steps) that ten ds to sh ow that race w as or was not the real re ason and dete rmine[] whether the defendant has met his burden of persuasi on.” Riley , 277 F.3 d at 286 (cit ation and internal qu otations om itted). In Riley , we placed particul ar emphasis on the state courts ’ failure to cons ider al l of the evide nce b efore them in dete rmin in g whether the jus tifi cati ons offered by the prose cutor w ere pre textua l:

The state co urts in thi s case rejec ted R iley ’s Batson claim without discussi n g any o f the ample evi dence that throw s into questi on the explanations offe red by the prose cuto r fo r s trikin g t wo of the bla ck jurors and there is nothing rel evant i n the record that m ig h t otherwise support the state court s’ d e cisions. Thus, we do not know wh y t he state cour ts found the St a te’ s explanation wa s plau sible and credib le in ligh t o f the otherevid e nce

. It is b ecause of the state court s ’ omission of a requi rement underthe third step o

f th e Batson inquir

y – o f an ultima te determinat ion on the issue of discriminatory intent based on all the fac ts andcircumstances – that t he State’s argument founders.
Id. at 28 7 (ita licize d em pha sis ad ded ).
Aft er close ana ly sis of t he record,

### 14

we reach the same co nclusion he re

. In so doing, we note that “ a judge considering a Batson chall enge i s not req uired to comment explic itl y on every pi e ce of

e vid ence in the record.” Id. at 290. Howe v er, “some engagement with the evidence consider ed is nece ssaryas part of step three of

the Batson inqu iry,” and th is requir es “so mething more t han a ter se, abruptcomment that

the pros ecutor ha s sati sfied Batson .” Id. at 290-91 ( citations and internal qu otations om itted).
Here, “[t ]h e Pe nns y lv ani a Su pr eme Cou rt’s decisi on does not i ndicat e that the court en ga ge d i n a ny a nalysi s or consider at i on of the cr edibil ity of the potenti al jus tification s that it ha d proffered. Rath er, th e court’ s decis ion read s as if t

he court a ccepted t h e justific ations at f ace value. ” Ha rdcas tle III , 2001 WL 722781 at *12. A cc or di ng ly,

as in both Jones and Riley , w e lack an adeq uate step t

hree an aly si s t o wh ic h we may def er. The Comm onwealth shoul d be given the oppo rtunity it requ ests to dem onstr ate that its exercise of p erempto ry strikes was justi fied under the Batson third step. In addition, Hardca stl e should be afforded the oppor tuni ty to show any weaknesses he mayfi nd w i th the justifi cations for the st

rikes.
D. Rem edy Thus, in vie w of the state of the evidentiary record, w e reject Hard castle’s argument in fav or of a ffi rma nce. 5 Althoug h we agree with the Dist rict Cou rt’s statement that

it will be diffic ult at thi s late date t o reconst ruct t he bases for the ch alle nged strikes, we cannot agree with its conclusi on that, under the f acts of this case, th e Co mm onw ealth is not entitled to attempt to do so or that th e state of the e videnti ary record wil l not be impro ved as a res ult t hereof. In s o holding, we are persuaded by the fa ct that, desp ite the pros ecutor’ s offer t o stat e th e bases for herpe remptory strikes on the record imm ediate ly follo wing voir di re and he r subsequent

request for some for m o f hearing, the C o mmonw ealth has never been prov ided w ith either a state or federal forum in w hich to prese nt evid ence in defense of its ac tions in th is cas e.

We further note that neit her the prosec utor’s concessi on during or al

5 We note that the D istrict Court’s conclusi on that Hardc astl e is entitl ed to a new trial wa s cited w ith app rova l by this Court in Riley , 277 F.3d at 294 & n.14 (citing Hardc astle III , 2001 WL 722781 at *19). Indee d, at oral argum ent before
us, couns el for Hardca stl e cit ed the Riley Court’s approving r eference to the granti ng of a new tri al in Hardc astle III

as reas on to affirm the gra nt of h is writ rather than to remand for a Batson hearing. However, it goe s without saying that the merits of this cas e were not before us in Riley . Having now had the be nefit o f the p arties’ arg um ents w ith respect to thi s iss ue, we conclude t hat the Distri ct Court s hould not have granted relief withou t first holding an ev identiary hearing.

### 15

ar gume nt be fore the en banc Court of Common Pleas t

hat she co ul d no t recall the precis e bases for

the chall enged strikes

nor the pass age of t i me mand ates a contrary re su lt . A s we have prev iously held : [ t] here will undoubtedlybe post-c onvi c t ion relie f proceedi ngs in which the stat e, by r eason of death, absence, or faded mem o ry, will be unable t o produ ce a pros ec utorwith a spe cific

re co llec tion of the re ason for a cha llenge allege d to violate Batson . Cou rts frequ ently are require d to d r aw inferences f ro m
c ircumst antia l evidenc e reg arding a decisi on

ma k er’s stat e of mind, how ever, and we ar e unwilli ng to rul e out the poss ibility that t

he state may be able to satisfy its st ep two Batson burden by tenderi ng circumst antia l evide nce.

Johnson , 40 F.3d at 667. Indeed, we have expr essly rejec ted the noti on that our pri or pr ecedentman dates r elief in s ituation s in which the pros ecutor c oncedes that he or she cannot re member the b a ses for a chall enged strike: [ Harrison v. Ryan , 909 F.2d 84 (3d C ir. 1990 ),] is di stingu ishab le

. . . becaus e the prosecutor in that case offered no explanation for excludi ng one o f the six blackvenirepe rsons he had struc k from t he jury , but simp ly asserted at a hearing before a fed eral m agis tr ate that he co uld n ot re call his

reasons. It was based on the prosecuto r’s assert

ion that he did n ot kn ow th e r eason h e st ruck a bla c k venirepe rson, c oup led w ith the absence of anyother explanation, that this court affirmed the order

for a new trial. We d o n ot read Harr is on to sug gest tha t a state cannot be perm itted to
reconst ruct

th e p rosecutor’s ration ale for excl uding a juror during a later Batson hear ing when the p rosec uto r
a dm its to hav ing n o
rec ollec tion of hi s motivati ons at t

he time.

Johnson , 40 F .3d at 667 n.4 (em phas is added ). Our conclusi on th at such diffi culti es in rec ons tructing voir dire do not forecl ose an evide ntiar y he aring is further supp orted by the Sup reme C ourt’s resol ution o f

simil ar si tuati ons

. See Mill er- El v. Co ckrell , — U.S. —, 123 S. Ct. 1029, 1042-43 ( 20 0 3) (noti ng that evidence present ed at a Batson hearing two years after voir dire “w as sub ject to the usual risks of i mprecisi on and dist orti on from the passa ge of time, ” but nevertheless concludi ng that t he Court of

### 16

Appeal s err ed in re fusin g to g rant a

ce rt ificate of ap peala bility); Batson , 476 U.S. at 133 n. 12 (remanding for a heari ng desp ite t he p etitioner ’s con cessio n that it

wo uld be all but imposs ible to reconst ruct the prose cutor’ s ration ale fo r th e chall enged strikes) (Burger, C.J. , diss entin g). Thus, wh ile th e retroa ctiv e applic ation of

th e Su pr eme Court’s r

uling in Batson un de ni ab ly c a uses many problems, we do not beli eve the weight of this burd en sh ould be bo rne so le ly b y the Commonw ealth. It is diffic ult in th e cont ext of a pre- Batson trial to fau lt Hardc astle’s counsel for failing to r equest

an evidentiaryhearing f ollowing voir dire

. It is e qu ally

unfair to requir e the C om mo nw ealth to re try Ha rdcas tl e withoutfirs t being prov id ed with the opport un ity to defend i ts conduct in the prior tri al. Given the Ba tso n Cou rt ’s emp hasis on the subj ecti ve inte nt of the prosecut or , we find it

diffi cult to imagine

a situation i n which it would be appr opriate to take the extrao rdin ary step of granti ng ha bea s corpus relie f without first pr oviding t

he state with a hearing at which it could offer

evidence i n support of the chall enged strikes i f, as in this case, it desir es to do so.
Fi na lly, having concl uded that further proceedi ngs are required, we must address the pa r ties ’ arguments as to t he appropri at e forum. Although both si des request a heari ng as an alternati ve re m ed y, Ha rdcas tle seeks t o ha ve the matter hand led by the District Court while the Commonw ealth assert s that the st ate court s mu st be g iven th e first op portu nity to rule

on t he n ew evid enc e su bm itted

. As we have previous ly held, “[w]e do not have authority under th e federal habeas st atut es , 2 8 U. S. C. § 224 1 or § 2254, to remand a habeas c orpu s peti tion to a state court for an evidentiary hea ring .” Keller v. Pets ock , 853 F.2d 1122, 1129 (3d Cir. 1988). Feder al dis tri ct court s, by contrast, mayconduct such hearings. See id. 6 Moreover, even i f we were able to remand directly to the s tate court, neithe r this Court north e Su pr eme Co urt has held “that the sta te courts should, after having foregone the opportuni ty to hold an evidentiary hearing and resol ve the i ssue, be given another

opportuni ty to do so. ” Id. Therefore, to the e xtent th at th e Co mm onw ealth asserts i n its po stargumentsubmissi on that we shoul d grant the writ co ndition ed up on a h earing in state cour t, we reject this argument for the

sa me reasons we de cline d to do so in Ke lle r : “ Su ch a rem edy w oul d . . .

6 We note that AEDPA “amended the fede ral hab eas sta tute in su ch a w ay as to limit the availability of new ev identiary hearings on habeas revi ew.” Campbell v. Vaughn , 209 F.3d 280, 286 (3d Cir. 200 0) (c iting 28 U .S.C . § 22 54( e)(2 )). How ever, even p ost-AE DP A, evide ntiary hearings are permi tted where , as here, the “state courts fail [] to r esolve t he factual issue on whic h [the petiti oner’s] habeas petit ion res ts. ” Id. In such cas es “the failure to deve lop the factua l record would not be [the peti tioner ’s] fault. ” Id. at 28 6-8 7.

### 17

contra ve ne the poli cy underly ing the exhausti on requireme nt. State court s are certain ly e ntitl ed to have the first oppo rtunity to revie w fed era l consti tuti on al chall enges to s tat e convictions. The re is no requ ireme nt, how ever, that

they be given m ore than one opp ortun ity to adj udi cate thes e cl ai ms

. ” Id. at 1130 (ci tati on omitt ed). Here, a s in Ke ller , Hardcastle “has given the st at e courts their

first opp ortun ity, and they did not seize it. Therefore t he federaldist

rict court mu st beco me th e tr ier of fact. ” Id. (foo tnote omitted). Thus, we will remand this matter

to the Dis tri ct Court f

or further de velopmentof th e e vi de nt iar y record wit h respect to Hardcastle’s Batson cl ai m, and, if this claim ulti matelyfail s, fo r consider ationof the re maining i ssues present ed in his habeas petiti on.

V. Conclusion

For the fore go ing rea sons , we w ill

v acate the fin al judg men t of the Dis tric t Cou rt and remand the matter for further proceedi ngs consis tent wit h this opinion. Nygaard, J., dissent ing.

I agree with mo st of th e ana ly si s and conclusi ons reached by the m ajority in its well-cr afted and t

horough opini on

. I disagr ee, how ever, with the remedy. The Co mmonw ealth (App ellant) argued b efore

us that “th e P ennsy lvania court s hould be allowed to con duct a Batson hearing if a ny is deemed necessary .” (emp hasis added ). I conclude that a heari n g is no t only

unn ece ssar y, but is unw arra nted

. In its opini on, the District Cou rt

conc luded that:
The proper relief i n this case is a n ew tr ial wit

h the opp ortun ity to ret

ry the petit ionerb efore a pro perly selected jury. A n ew trial is

e s pecia lly appr opria t e where, as he re , the passage of time makes a n e w evidentiary hearing on t he petit ion imp oss ible. N early twen ty year s have passe d since Petiti oner’s t

rial , such

a le ngth of ti me that even Respon dent s [th e Common wealth] admit[s] that an evidentiaryhearing

on Petitioner’s Batson claim is unlik ely to be h elpfu l. 7

7 Also shortly after

the trial and conviction, a nd on appeal t o the threejudge Common Pleas panel , the prose cutor e xplain ed tha t she w as un able to reca ll why she str

uck the Afri canAm erican juror:

### 18

I find that t

he District Court ’s rea sons and

r easoning are com pelling and su pport ed b y the reco rd. Hence, and essentiall y for the

reasons giv en b y the D istrict Co urt, I respe ctfully disse nt.

The App el la ntar gue s tha t we shou ld r emand for a Batson hea ring . I belie ve, how ever, th at the A ppella nt is judici al l y estop ped f rom prese nting its “actualre aso ns,” gi ven the di stri ct attorney’s adm ission d urin g the direct ap pe al that s he could not remember her
reasons, nor cou ld s he reconst ruct t he record. Our opinion i n Joh nson v. Love , 40 F.3d 658 (3d Cir . 1994), rais es an interesti ng option for re man d in ce rtain

cases for a hearing, all owing the st at e to atte mpt to meet i ts burde n t h rough circum sta ntialevidence of t he pros ecutor’ s intent. I do not t

hink that works well her e. We have the e ntire record bef ore us, and it i s clear that t he prosecut or disc riminated by striking Africa n-Americans. The record is devoid of her intent. M oreover, althoughthe Appell ant provi des many

reasons why any parti cular j uror might have been struc k , it

has not pr offered any evidence of why theywere or anyt hing that

wo uld indica te a heari ng on circumst antia l evidence of actualreasons or intent wo uld be producti ve.
I wou ldaf

fi rm t he Di str ict Court’s decisi on to is sue the wri t and grant Petition er H ardca stle a ne w trial.

How can I possibly

now tellyou why I chall enged anybody ? I don’t t

hink that now, some six months af ter , I c an tel l yo u w hy I cha lleng ed s om ebo dy the n. I don’t know how w e can possibl y have ahearing a s to why I chall enged a parti cular j uror si x months later.

Sim ilarly, the pros ecuto r argu ed tha t it was impossibl e for her to reconst ruct t he record at that s tage.