2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-2004

Hardcastle v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 01-9006

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Hardcastle v. Horn" (2004). 2004 Decisions. Paper 661.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/661
PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

____________

No: 01-9006

___________

DONALD HARDCASTLE

 v.

MARTIN HORN, COMMISSIONER,

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS;

GEORGE R. WHITE,

SUPERINTENDENT OF THE STATE

CORRECTIONAL INSTITUTION

AT PITTSBURGH; AND JOSEPH P.

MAZURKIEWICZ,

SUPERINTENDENT OF THE STATE

CORRECTIONAL INSTITUTION AT

ROCKVIEW,

 Appellants

___________

_________________

Appeal from the United States

 District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 98-cv-03028)

District Judge: Honorable John R.

Padova

 

Argued on May 20, 2003

Before: SCIRICA, Chief Judge,

NYGAARD and ROTH, Circuit Judges

(Filed May 14, 2004)

Thomas W. Dolgenos (Argued)

Office of the District Attorney

1421 Arch Street

Philadelphia, PA 19102

Attorney for Appellants

Robert B. Dunham (Argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106

Attorney for Appellee

 

OPINION

 

ROTH, Circuit Judge:

In 1982, Donald Hardcastle was

charged by the Philadelphia District

Attorney’s Office with murder, arson, and

burglary. He was tried before a jury in the

Court of Common Pleas, convicted on all

counts, and sentenced to death. In both

his direct appeal and state collateral

review proceedings, Hardcastle asserted,

inter alia, that the assistant district attorney

who conducted the jury selection at his

trial exercised her peremptory strikes in a

racially discriminatory manner, thus

violating the constitutional principle

recognized by the Supreme Court in
2

Batson v. Kentucky, 476 U.S. 79 (1986),

and made applicable to Hardcastle’s thenpending direct appeal by Griffith v.

Kentucky, 479 U.S. 314 (1987). The

Pennsylvania Supreme Court twice

rejected Hardcastle’s Batson claim and

affirmed his conviction.

Hardcastle then filed a petition for

a writ of habeas corpus with the U.S.

District Court. The District Court

concluded that the Pennsylvania Supreme

Court’s ruling was both contrary to and an

unreasonable application of Batson,

granted Hardcastle’s petition, and ordered

a new trial. For the reasons set forth

below, we hold that the Pennsylvania

Supreme Court’s rejection of Hardcastle’s

claim on the record before it was indeed an

objectively unreasonable application of

Batson. However, be caus e the

Commonwealth of Pennsylvania had

requested, and been denied, a chance to

present evidence in support of its

peremptory strikes of African-Americans

from the venire, it is entitled to a hearing

to present that evidence. We will,

therefore, remand this matter to the

District Court to hold such a hearing and

to then reexamine the application of

Batson to Hardcastle’s claim. 

I. Factual Background and Procedural

History

The following material facts are drawn

from the opinions issued in this case by the

Pennsylvania Supreme Court and the

United States District Court for the Eastern

District of P enn sylvan ia. See

Commonwealth v. Hardcastle, 546 A.2d

1101 (Pa. 1988) (direct appeal

p r oceedings) ( H a rdcas t l e I ) ;

Commonwealth v. Hardcastle, 701 A.2d

541 (Pa. 1998) (appeal of post-conviction

relief proceedings) (Hardcastle II);

Hardcastle v. Horn, No. 98-CV-3028,

2001 WL 722781 (E.D. Pa. June 27, 2001)

(federal habeas corpus proceedings)

(Hardcastle III). They are not in dispute.

On May 23, 1982, the bodies of

Joseph Gregg and Ernestine Dennis were

found in Gregg’s Philadelphia home. Both

had received in excess of thirty stab

wounds and Gregg’s home had been set on

fire. Several neighbors indicated that they

had seen Hardcastle near Gregg’s home

around the time of the murders. An arrest

warrant was issued and Hardcastle

surrendered to the police on May 25. He

was subsequently charged with burglary,

two counts of arson, and two counts of

murder.

Hardcastle is an African-American.

During the course of jury selection at his

trial, the prosecutor used her peremptory

strikes, of which she had a total of twenty,

to remove twelve of the fourteen AfricanAmerican members of the venire. The jury

ultimately empaneled to hear the case

contained only one African-American.

Hardcastle’s trial counsel did not object to

the Commonwealth’s peremptory

challenges during the five-day voir dire,

and the trial court therefore did not require

the prosecutor to state the bases for her

strikes on the record. However, following

voir dire, Hardcastle’s counsel moved for

a mistrial on the grounds that the

prosecutor’s use of the peremptory
3

challenges violated both the state and

federal constitutions. Applying the thengoverning standard articulated in Swain v.

Alabama, 380 U.S. 202 (1965), the trial

court denied this motion. The trial court

similarly denied the prosecutor’s request

for permission to state her reasons for the

challenged strikes on the record.1

After trial, Hardcastle was

convicted of two counts of first degree

murder, two counts of arson, and one

count of burglary. Post-trial motions were

filed, arguing, inter alia, that the

prosecutor exercised her peremptory

strikes in a discriminatory manner, thus

violating Hardcastle’s constitutional rights.

A three-judge en banc panel of the Court

of Common Pleas was convened to hear

the post-trial motions. At this hearing,

counsel for Hardcastle repeatedly

requested an evidentiary hearing on the

discriminatory strikes. In reply, the

Assistant District Attorney stated that, in

view of the fact that the trial had occurred

six months earlier, she could not offer

reasons for her strikes of black jurors and

that it was no longer possible to

reconstruct the voir dire. An evidentiary

hearing was not granted but the panel, by

a two to one vote, granted Hardcastle a

new trial on the jury selection issue. 

On appeal, the Pennsylvania

Superior Court reversed the grant of a new

trial and affirmed the conviction, holding

that Hardcastle failed to make the showing

required by the then-governing standard

established in Swain. The Pennsylvania

Supreme Court initially granted allocatur

but then dismissed the appeal as

improvidently granted. On remand,

Hardcastle was sentenced to death for the

murders of Gregg and Dennis, to 2 1⁄2 to 5

years for arson, and to 2 1⁄2 to 5 years for

burglary. 

 

1The following exchange occurred in

connection with the trial court’s denial of

Hardcastle’s motion for a mistrial

following voir dire:

The Court:[Defense

Counsel], I’m not going to

argue the point. There’s no

need to. I’m going to deny

your motion. Your record

is correct, and we now

proceed. Is there any other

motion?

[Prosecutor]:May I put

something on the record

with regard to this issue?

The Court:No.

[Prosecutor]:Not in

defense.

The Court:No.

[Prosecutor]:Okay.

The Court:Now that gets rid

of the problem.
4

Following sentencing, Hardcastle

again appealed to the Pennsylvania

Supreme Court. By the time his case was

heard by that court in November 1987, the

United States Supreme Court had issued

its decision in Batson, thereby lessening

the evidentiary burden imposed on

defendants in Hardcastle’s position. As

noted by the Pennsylvania Supreme Court,

this change in controlling precedent

complicated its task:

The case before us presents

a difficult problem for

review. Since the Supreme

Court’s decision in Batson

post-dates a ppella nt’s

judgment of sentence, the

defense did not object to the

prosecuto r’s use o f

peremptory challenges at the

time of voir dire, the

prosecution did not rebut the

objection, and the trial court

did not rule on the issue.

Defense counsel did,

however, preserve the issue

by making a motion for a

mistrial, subsequent to voir

dire and prior to trial, based

o n the pros e c utor’s

impermissible use of the

challenges. Because the

issue was preserved

appellant is entitled to the

protections granted by

Batson. Therefore, we must

make a post hoc evaluation

of the record, examining

each of th e

Commonwealth’s fourteen

peremptory challenges to

determine whether appellant

has made out a prima facie

case of improper use. 

Hardcastle I, 546 A.2d at 1104 (citation

and footnote omitted). 

However, rather than remanding the

case to the trial court for an evidentiary

hearing, the Pennsylvania Supreme Court

combed through the record itself in an

effort to determine whether race-neutral

bases existed for the challenged strikes.

After conducting this analysis, it identified

the following as potential bases for the

dismissal of Venirepersons 1 through 10:2

 

2

For ease of reference, the first ten

African-Americans struck from the

venire (for whom the Pennsylvania

Supreme Court proffered relatively

specific race-neutral justifications) will

be referred to throughout this Opinion as

“Venirepersons 1 through 10.” The last

two African-Americans struck from the

venire (for whom the Pennsylvania

Supreme Court proffered only general

race-neutral justifications) will be

referred to as “Venirepersons 11 and 12.” 

Additionally, we note the

discussion by the District Court and the

parties regarding the fact that one of the

first ten venirepersons discussed by the

Pennsylvania Supreme Court may not

have been an African-American, and the

possibility that the Pennsylvania
5

(1) the first had a sister that had been raped

several years before Hardcastle’s trial; (2)

the second admitted during voir dire that

she had heard about the case through

media reports; (3) the third was questioned

in detail by both sides about her work in

caring for delinquent children, her

education, and her family history; the court

noted that this extensive questioning “gave

the Commonwealth attorney ample

opportunity to observe responses and

demeanor”; (4) the fourth had a sister and

nephew who had been arrested for drugrelated crimes, as well as a father who had

been a victim in a separate crime; (5) the

fifth “initially testified that she would not

follow the judge’s instructions if she felt

that something else was better law,” but

later stated after further questioning that

she would follow the judge’s instructions;

(6) the sixth had attended her brother’s

trial, in which he was convicted on robbery

charges; (7) the seventh was a case-worker

for the Commonwealth and had a brother

who had been a victim of violent crime;

(8) the eighth was a registered nurse who

had six children, one of whom , a son, had

been convicted of rape; (9) the ninth was a

twenty-year-old unemployed high school

graduate; and (10) the tenth was a thirtyfive-year-old single bartender who initially

indicated that he would do whatever he

thought was right, but later stated that he

would follow the judge’s instructions.

Hardcastle I, 546 A.2d at 1104-05.

In turning next to Venirepersons 11

and 12, the court concluded these strikes

were justified by more general “raceneutral” explanations, finding that “the

Commonwealth had the opportunity to

observe the witnesses and their response to

questioning prior to exercising the

peremptory challenge” and that “although

the Commonwealth had ample challenges

remaining, there were no challenges

offered to two black jurors, one of whom

ironically was challenged by the

defendant.” Id. at 1105. Based on the

foregoing, the Pennsylvania Supreme

Court concluded that Hardcastle failed to

establish a prima facie case of improper

use of peremptory challenges under

Batson. Id. The court similarly rejected

the remaining claims raised by Hardcastle

on direct appeal and affirmed both his

conviction and sentence.

When again presented with the

Batson claim in considering Hardcastle’s

appeal of the denial of his Post Conviction

Relief Act (PCRA) claim, see 42 Pa. C.S.

§ 9541 et seq., the Pennsylvania Supreme

Court refused to exempt Hardcastle from

the requirement that claims raised in

PCRA proceedings must not have been

previously litigated. The court therefore

Supreme Court may therefore have

offered explanations for only the first

nine African-Americans struck from the

venire. See Hardcastle III, 2001 WL

722781 at *14-*15. We take no position

with respect to this issue, as it in no way

affects the outcome of this appeal. 

However, for ease of reference, we will

assume that all of the potential jurors

identified and discussed by the

Pennsylvania Supreme Court were in fact

African-Americans. 
6

rejected his claim that intervening

decisions of the United States Supreme

Court required it to reach a different

conclusion on collateral review than it had

on direct review: “if finality means

anything it must mean that our decision on

the merits in this case, as to which

certiorari was denied by the United States

Supreme Court, cannot be affected by

decisions in other cases decided three and

four years later.” Id.

Following exhaustion of his state

remedies, Hardcastle sought a writ of

habeas corpus from the United States

District Court for the Eastern District of

Pennsylvania. Although the petition raised

unexhausted claims, both sides conceded

that procedural bars prevented Hardcastle

from raising his unexhausted claims in

state court. Accordingly, the District

Court held that Hardcastle’s petition was

not a mixed petition and thus was not

subject to dismissal. Hardcastle III, 2001

WL 722781 at *3. Following a thorough

analysis of the merits, the District Court

further held that the Pennsylvania Supreme

Court’s resolution of Hardcastle’s claim

was both contrary to and an unreasonable

application of Batson. It therefore granted

the writ and, after concluding that an

evidentiary hearing would not be helpful,

ordered a new trial. Id. at *19. This

appeal followed. 

II. Jurisdiction

The District Court exercised

jurisdiction over Hardcastle’s petition for

a writ of habeas corpus pursuant to 28

U.S.C. §§ 2241 and 2254. We have

jurisdiction to review the District Court’s

final order granting Hardcastle’s petition

pursuant to 28 U.S.C. §§ 1291 and 2253.

The Commonwealth is not required to

obtain a certificate of appealability prior to

seeking review of a District Court’s

decision to grant a petition for a writ of

habeas corpus. Cristin v. Brennan, 281

F.3d 404, 409 (3d Cir. 2002) (citing Fed.

R. App. P. 22(b)(3)). 

III. Standard of Review

 Because the District Court “d[id]

not hold an evidentiary hearing and engage

in independent fact-finding, but rather

limit[ed] the habeas evidence to that found

in the state court record,” our review of its

final judgment is plenary. Scarbrough v.

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

Hardcastle’s petition for a writ of

habeas corpus was filed after April 1996

and thus is subject to the Antiterrorism and

Effective Death Penalty Act of 1996, 28

U.S.C. § 2241 et seq. (AEDPA). Gattis v.

Snyder, 278 F.3d 222, 228 (3d Cir. 2002).

“Under AEDPA, when a federal court

reviews a state court’s ruling on federal

law, or its application of federal law to a

particular set of facts, the state court’s

decision must stand unless it is ‘contrary

to, or an unreasonable application of,

clearly established Federal law, as

determined by the Supreme Court of the

United States.’” Lam v. Kelchner, 304

F.3d 256, 263 (3d Cir. 2002) (quoting 28

U.S.C. § 2254(d)(1)). “When a federal

court reviews a state court’s findings of

fact, its decision must stand unless ‘it was

based on an unreasonable determination of
7

the facts in light of the evidence presented

in a State court proceeding.’” Id. (quoting

28 U.S.C. § 2254(d)(2)). 

It is by now well-settled that Batson

claims constitute mixed questions of law

and fact for purposes of federal habeas

corpus review. See Riley v. Taylor, 277

F.3d 261, 277-78 (3d Cir. 2001) (en banc).

The governing standard for such

determinations is provided by the Supreme

Court’s decision in Williams v. Taylor,

529 U.S. 362 (2000). Under Williams, “a

state court decision is ‘contrary to [the

Supreme Court’s] clearly established

precedent if the state court applies a rule

that contradicts the governing law set forth

in [the Court’s] cases’ or ‘if the state court

confronts a set of facts that are materially

indistinguishable from a decision of [the

Court] and nevertheless arrives at a result

different from [its] precedent.’” Lockyer v.

Andrade, — U.S. —, 123 S. Ct. 1166,

1173 (2003) (quoting Williams, 529 U.S.

at 405-06). 

State court determinations of mixed

questions of law and fact constitute an

“unreasonable application” of clearly

established federal law when “‘the state

court identifies the correct governing legal

principle from [the Supreme Court’s]

decisions but unreasonably applies that

principle to the facts of the prisoner’s

case.’” Id. at 1174 (quoting Williams, 529

U.S. at 413). Under the “unreasonable

application” clause, “[t]he state court’s

application of clearly established law must

be objectively unreasonable”; a decision

that is merely “incorrect or erroneous” is

insufficient to justify relief. Id. As the

Supreme Court recently clarified,

“obje ctively unreasonable” is not

synonymous with “clear error,” as “[t]he

gloss of clear error fails to give proper

deference to state courts by conflating

e rror (even clear e rror) w i th

unreasonableness.” Id. at 1175.

Thus, “[i]t is not enough that a

federal habeas court, in its ‘independent

review of the legal question’ is left with a

‘firm conviction’ that the state court was

‘erroneous.’” Id. (citation omitted).

“Rather, that application must be

objectively unreasonable.” Id. Stated a

different way, a “‘federal habeas court

should not grant the petition unless the

state court decision, evaluated objectively

and on the merits, resulted in an outcome

that cannot reasonably be justified under

existing SupremeCourt precedent.’” Werts

v. Vaughn, 228 F.3d 178, 197 (3d Cir.

2000) (quoting Mateo, 171 F.3d at 890). 

IV. Discussion

We begin by noting our agreement

with the Pennsylvania Supreme Court’s

observation that the retroactive application

of Batson causes unique evidentiary

problems for reviewing courts, as the

three-step Batson inquiry with which we

are all now familiar did not occur during

voir dire in these cases. Thus, we are

aware of the difficulties faced by both the

Pennsylvania Supreme Court and the

District Court in reviewing the record in

this case. 

Nevertheless, we cannot conclude,

even under the deferential standard of
8

review contained in AEDPA, that the

Pennsylvania Supreme Court’s resolution

of Hardcastle’s claim amounted to an

objectively reasonable application of

Batson. Specifically, even accepting the

Pennsylvania Supreme Court’s proffered

justifications for the challenged strikes at

face value, the court still (1) failed to

identify adequate bases for the striking of

Venirepersons 11 and 12, and thus should

have terminated its analysis and found the

existence of a Batson violation at step two

of the inquiry; and (2) failed to conduct a

full and complete step three analysis with

respect to the challenged strikes of

Venirepersons 1-10.

However, exercising plenary review

over the final judgment of the District

Court, we similarly reject its decision to

grant habeas corpus relief on the basis of

the current evidentiary record. Instead,

based on the facts of this case, in which

the Commonwealth offered to state the

bases for its strikes immediately following

voir dire and in which both sides have, at

various times, sought a hearing, we

conclude that the District Court erred in

granting habeas corpus relief without first

providing the Commonwealth with the

opportunity to present evidence in defense

of the challenged peremptory strikes. The

Commonwealth’s prior observations of the

difficulties it will have in recalling the

reasons for its peremptory strikes should

not now preclude it from making that

effort when it has requested the

opportunity to do so. Remand is therefore

appropriate.

A. Background

The Supreme Court’s decision in

Batson has been interpreted as establishing

a three-step inquiry for determining the

constitutionality of challenged peremptory

strikes. See Riley, 277 F.3d at 275.3 First,

“‘a defendant may establish a prima facie

case of purposeful discrimination in

selection of the petit jury solely on

evidence concerning the prosecutor’s

exercise of peremptory challenges at the

defendant’s trial.” Id. (quoting Batson,

476 U.S. at 96). “Once the defendant

makes a prima facie showing of racial

discrimination (step one), the prosecution

must articulate a race-neutral explanation

for its use of peremptory challenges (step

two). If it does so, the trial court must

determine whether the defendant has

established purposeful discrimination (step

three).” Id. Throughout this process,

“[t]he ultimate burden of persuasion

regarding racial motivation rests with, and

does not shift from, the defendant.” Id.

 

3As a preliminary matter, we note that,

although § 2254 permits habeas corpus

relief only in situations in which a state

court’s decision “is contrary to, or an

unreasonable application of, clearly

established federal law, as determined by

the Supreme Court of the United States,”

our analysis of Supreme Court precedent

may be amplified by decisions of inferior

federal courts evaluating reasonableness

under that Supreme Court precedent. 

See Matteo v. Superintendent, SCI

Albion, 171 F.3d 877, 890 (3d Cir. 1999)

(en banc). 
9

Significantly, “[d]eference in a Batson

case must be viewed in the context of the

requirement that the state courts engage in

the three-step Batson inquiry” described

above. Id. at 286. 

In reviewing this matter, we begin

by noting the incomplete nature of the

Pennsylvania Supreme Court’s analysis of

Hardcastle’s Batson claim on direct

appeal. Simply stated, the court conflated

steps one and two of the Batson analysis in

the sense that it identified and then

analyzed potential justifications for the

challenged strikes — something that

should not occur until step two — in its

step one analysis of whether Hardcastle

had successfully established a prima facie

case. The court then proceeded to step

three, only to conclude that Hardcastle had

failed to establish a prima facie case of

discrimination, thus indicating that,

technically speaking, its analysis never

proceeded beyond step one. 

The Pennsylvania Supreme Court

apparently recognized this error when, in

its subsequent decision regarding

Hardcastle’s appeal of the PCRA court’s

decision, it acknowledged as follows:

N o twithst anding th e

language in our opinion [on

direct appeal] to the effect

that [Hardcastle] had not

made out a prima facie case,

the extensive analysis of the

record for race-neutral

reasons indicates that our

post hoc analysis actually

presumed the existence of a

prima facie case, evaluated

the evidence and all the

relevant circumstances as

the trial court would

ordinarily do pursuant to

Batson, and resolved the

ultimate issue by deciding

that the Commonwealth had

not used its peremptory

challenges improperly. 

Hardcastle II, 701 A.2d at 548. In view of

this ruling, we will follow the lead of the

District Court in examining the

Pennsylvania Supreme Court’s decision on

direct review, see Hardcastle I, as

modified by its opinion on collateral

review, see Hardcastle II. Stated

alternatively, we will treat Hardcastle I as

representing the Pennsylvania Supreme

Court’s full three-step analysis of

Hardcastle’s Batson claim. 

We further note that we will read

the Pennsylvania Supreme Court’s

acknowledgment in Hardcastle II of the

existence of a prima facie case in

Hardcastle I as a concession that

Hardcastle had satisfied his burden at step

one. In view of the fact that twelve of the

prosecutor’s peremptory strikes were

exercised against African-American

members of the venire, we have no doubt

that this concession was appropriate. See

Rico v. Leftridge-Byrd, 340 F.3d 178, 185

(3d Cir. 2003) (noting that “[o]ne way to

establish a prima facie case at step one is

to show a pattern of peremptory challenges

of jurors of a particular race”) (citing
10

Batson, 476 U.S. at 96-97). Even in the

absence of such a concession, however,

the Pennsylvania Supreme Court’s

decision to proceed to steps two and three

moots the issue of whether Hardcastle

made a sufficient showing at step one. See

Hernandez v. New York, 500 U.S. 352,

359 (1991) (holding that “[o]nce a

prosecutor has offered a race-neutral

explanation for the peremptory challenges

and the trial court has ruled on the ultimate

question of intentional discrimination, the

preliminary issue of whether the defendant

had made a prima facie showing becomes

moot.”). Thus, we will focus our

discussion on steps two and three.

B. Step Two

As detailed in the District Court’s

opinion and summarized above, the

Pennsylvania Supreme Court, in

considering Hardcastle’s direct appeal,

examined the record in an effort to identify

race-neutral bases for the twelve

challenged strikes. It articulated what it

considered to be specific and facially

credible bases for the striking of

Venirepersons 1 through 10. However, it

was unable to do so with respect to

Venirepersons 11 and 12 and therefore

offered only the following general

justifications for these strikes: (1) “the

Commonwealth had the opportunity to

observe the witnesses and their response to

questioning prior to exercising the

peremptory challenge”; and (2) “although

the Commonwealth had ample challenges

remaining, there were no challenges

offered to two black jurors, one of whom

ironically was challenged by the

defendant.” Hardcastle I, 546 A.2d at

1105.4 

 

4We note the existence of some

uncertainty in the case law with respect

to who may properly articulate the

Commonwealth’s justifications at this

stage of the analysis. Here, this

uncertainty raises the question whether,

and to what extent, we may consider the

race-neutral explanations offered by the

Pennsylvania Supreme Court on behalf

of the prosecutor. Some cases may be

read to imply that, because the

prosecutor’s subjective intent is the

principal focus of a Batson challenge, he

or she must personally articulate the

race-neutral basis required at step two. 

See, e.g., Riley, 277 F.3d at 282 (holding

that “[t]he inquiry required by Batson

must be focused on the distinctions

actually offered by the State in the state

court, not on all possible distinctions we

can hypothesize. Apparent or potential

reasons do not shed any light on the

prosecutor’s intent or state of mind when

making the peremptory challenge”)

(citations omitted). We have previously

determined, however, that “[w]e are

unprepared to hold . . . that the state’s

burden can never be carried without

direct evidence from the decisionmaking

prosecutor regarding his or her state of

mind.” See Johnson v. Love, 40 F.3d

658, 667 (3d Cir. 1994); Pemberthy v.

Beyer, 19 F.3d 857, 864-65 (3d Cir.

1994) (concluding that state appellate

court properly made factual findings

regarding Batson inquiry despite the fact
11

In addressing the question whether

the justifications identified by the

Pennsylvania Supreme Court for the

striking of Venirepersons 11 and 12 are

sufficient to satisfy the Commonwealth’s

burden of production, we note that the

Supreme Court has purposely set a

relatively low bar at step two. It therefore

is rare for a case to be decided at this stage

of the analysis. Indeed, “[t]he second step

of [the Batson analysis] does not demand

an explanation that is persuasive, or even

plausible.” Purkett v. Elem, 514 U.S. 765,

767-68 (1995) (per curiam). Rather, the

sole issue at step two “is the facial validity

of the prosecutor’s explanation. Unless a

discriminatory intent is inherent in the

prosecutor’s explanation, the reason

offered will be deemed race neutral.” Id.

at 768. 

Further, the Supreme Court has

emphasized the necessity of maintaining

the analytical distinction between steps

two and three, as step two merely places

upon the prosecutor the burden of

producing an explanation; “[i]t is not until

the third step that the persuasiveness of the

justification becomes relevant – the step in

which the trial court determines whether

the opponent of the strike has carried his

burden of proving purposefu l

discrimination.” Id. At step three, 

implausible or fantastic

justifications may (and

probably will) be found to

be pretexts for purposeful

discrimination. But to say

that a trial judge may choose

to disbelieve a silly or

superstitious reason at step

three is quite different from

saying that a trial judge

must terminate the inquiry at

step two when the raceneutral reason is silly or

superstitious. The latter

that there was no state court hearing, and

that the prosecutor, at that time, had not

advanced anything more than a general

explanation for the challenged strikes);

Jones v. Ryan, 987 F.2d 960, 965-66 &

n.2 (3d Cir. 1993) (suggesting that state

appellate courts may make factual

findings in their review of Batson

claims); Esquivel v. McCotter, 791 F.2d

350, 351 (5th Cir. 1986) (affirming state

appellate court’s factual determination

regarding Batson claim raised for first

time on appeal). 

However, even assuming

arguendo that it was appropriate in this

case for the Pennsylvania Supreme Court

to sift through the trial record in an effort

to identify unstated race-neutral bases for

challenged peremptory strikes, the court

failed to either (1) identify a satisfactory

step two explanation for the striking of

Venirepersons 11 and 12, or (2) conduct

an adequate step three analysis as to any

of the African-Americans struck from the

venire. Thus, even accepting the

Pennsylvania Supreme Court’s proffered

justifications as facially valid, we are still

unable to conclude that its resolution of

the matter is an objectively reasonable

application of Batson. 
12

violates the principle

that the ultimate

burden of persuasion

r e garding racia l

motivation rests

with, and never shifts

from, the opponent

of the strike.

The reasons presented at step two,

however, must be “reasons,” not merely a

denial of discriminatory motive or an

affirmation of good faith. See Id. at 768-

69. “What [Batson] means by a

‘legitimate reason’ is not a reason that

makes sense, but a reason that does not

deny equal protection.” Id.

Under this standard, we need not

conduct at step two an analysis of the

purportedly race-neutral explanations

proffered by the Pennsylvania Supreme

Court with respect to Venirepersons 1

through 10. However, the justifications

for the striking of Venirepersons 11 and 12

fail to satisfy even the minimal burden of

production required at step two. The

Pennsylvania Supreme Court’s assertion

that the striking of Venirepersons 11 and

12 was race-neutral simply because the

prosecutor had an opportunity to observe

them during voir dire is inadequate on its

face. Indeed, “[t]he record contains no

evidence whatsoever about any juror’s

demeanor or the prosecutor’s observations

or impressions thereof.” Hardcastle III,

2001 WL 722781 at *13. Thus, this

explanation amounts to nothing more than

a statement that the prosecutor acted on

intuition and with the absence of

discriminatory intent. We have repeatedly

rejected such vague and general claims in

the past. See United States v. Casper, 956

F.2d 416, 418 (3d Cir. 1992) (holding that,

because “[t]he Batson Court stated that

explanations must be ‘clear and reasonably

specific,’” “[e]xplanations based on a

prosecutor’s mere ‘good faith’ or

‘intuition’ do not suffice.”) (citations

omitted); United States v. Clemons, 843

F.2d 741, 745 (3d Cir. 1988) (noting that,

“[a]lthough the reason need not approach

the level justifying a challenge for cause,

the [Batson] Court emphasized that the

prosecutor must assert a clear, specific

reason beyond ‘his intuitive judgment’ or

‘his good faith.’”) (quoting Batson, 476

U.S. at 98 & n.20). 

We reject them again here. Indeed,

to say, as the Pennsylvania Supreme Court

did, that a prosecutor’s step two burden

may be satisfied based solely upon her

opportunity to observe the jurors during

voir dire creates an exception which

threatens to swallow the rule. As

Hardcastle correctly argues, the same

could be said regarding almost any

peremptory strike, and the acceptance of

the explanation proffered by the

Pennsylvania Supreme Court for the

striking of Venirepersons 11 and 12 would

render step two meaningless, as any

prosecutor could bypass it by briefly

questioning and observing the prospective

juror prior to exercising the strike. 

 Second, the fact that the prosecutor

had enough peremptory strikes to remove

the two remaining African-American
13

venirepersons, but chose not to do so,

cannot demonstrate the absence of

discriminatory intent in the striking of the

other twelve African-Americans from the

venire. See Jones v. Ryan, 987 F.2d 960,

972-73 (3d Cir. 1993) (rejecting a similar

argument and noting that “[w]e doubt the

significance of including a single black on

the panel if, at the same time, the

government used most of its peremptory

challenges to strike blacks with

backgrounds similar to the white jurors

ultimately selected.”) (quoting Clemons,

843 F.2d at 747); see also Clemons, 843

F.2d at 747 (holding that the striking of “a

single black juror could constitute a prima

facie case even when blacks ultimately sit

on the panel and even when valid reasons

exist for striking other blacks.”). Thus,

absent further justification for the striking

of Venirepersons 11 and 12, we cannot

conclude that the Pennsylvania Supreme

Court’s decision to proceed to step three in

justifying the strikes of Venirepersons 11

and 12 was an objectively reasonable

application of Batson.

C. Step Three

We further hold that the failure of

the Pennsylvania Supreme Court to

conduct an adequate analysis at step three

with respect to the challenged strikes of

Venirepersons 1-10 also precludes a

finding that its application of Batson was

objectively reasonable. Step three requires

a court conducting a Batson inquiry to

“address[] and evaluate[] all evidence

introduced by each side (including all

evidence introduced in the first and second

steps) that tends to show that race was or

was not the real reason and determine[]

whether the defendant has met his burden

of persuasion.” Riley, 277 F.3d at 286

(citation and internal quotations omitted).

In Riley, we placed particular emphasis on

the state courts’ failure to consider all of

the evidence before them in determining

whether the justifications offered by the

prosecutor were pretextual:

The state courts in this case

rejected Riley’s Batson

claim without discussing

any of the ample evidence

that throws into question the

explanations offered by the

prosecutor for striking two

of the black jurors and there

is nothing relevant in the

record that might otherwise

support the state courts’

decisions. Thus, we do not

know why the state courts

found the St a te’ s

explanation was plausible

and credible in light of the

other evidence. It is

because of the state courts’

omission of a requirement

under the third step of the

Batson inquiry – of an

ultimate determination on

the issue of discriminatory

intent based on all the facts

and circumstances – that the

State’s argument founders.

Id. at 287 (italicized emphasis added). 

After close analysis of the record,
14

we reach the same conclusion here. In so

doing, we note that “a judge considering a

Batson challenge is not required to

comment explicitly on every piece of

evidence in the record.” Id. at 290.

However, “some engagement with the

evidence considered is necessary as part of

step three of the Batson inquiry,” and this

requires “something more than a terse,

abrupt comment that the prosecutor has

satisfied Batson.” Id. at 290-91 (citations

and internal quotations omitted).

Here, “[t]he Pennsylvania Supreme

Court’s decision does not indicate that the

court engaged in any analysis or

consideration of the credibility of the

potential justifications that it had

proffered. Rather, the court’s decision

reads as if the court accepted the

justifications at face value.” Hardcastle

III, 2001 WL 722781 at *12. Accordingly,

as in both Jones and Riley, we lack an

adequate step three analysis to which we

may defer. The Commonwealth should be

given the opportunity it requests to

demonstrate that its exercise of peremptory

strikes was justified under the Batson third

step. In addition, Hardcastle should be

afforded the opportunity to show any

weaknesses he may find with the

justifications for the strikes.

D. Remedy

Thus, in view of the state of the

evidentiary record, we reject Hardcastle’s

argument in favor of affirmance.5

Although we agree with the District

Court’s statement that it will be difficult at

this late date to reconstruct the bases for

the challenged strikes, we cannot agree

with its conclusion that, under the facts of

this case, the Commonwealth is not

entitled to attempt to do so or that the state

of the evidentiary record will not be

improved as a result thereof. In so

holding, we are persuaded by the fact that,

despite the prosecutor’s offer to state the

bases for her peremptory strikes on the

record immediately following voir dire and

her subsequent request for some form of

hearing, the Commonwealth has never

been provided with either a state or federal

forum in which to present evidence in

defense of its actions in this case. 

We further note that neither the

prosecutor’s concession during oral

 

5We note that the District Court’s

conclusion that Hardcastle is entitled to a

new trial was cited with approval by this

Court in Riley, 277 F.3d at 294 & n.14

(citing Hardcastle III, 2001 WL 722781

at *19). Indeed, at oral argument before

us, counsel for Hardcastle cited the Riley

Court’s approving reference to the

granting of a new trial in Hardcastle III

as reason to affirm the grant of his writ

rather than to remand for a Batson

hearing. However, it goes without

saying that the merits of this case were

not before us in Riley. Having now had

the benefit of the parties’ arguments with

respect to this issue, we conclude that the

District Court should not have granted

relief without first holding an evidentiary

hearing.
15

argument before the en banc Court of

Common Pleas that she could not recall

the precise bases for the challenged strikes

nor the passage of time mandates a

contrary result. As we have previously

held:

[t]here will undoubtedly be

post-convi c tion relie f

proceedings in which the

state, by reason of death,

absence, or faded memory,

will be unable to produce a

prosecutor with a specific

recollection of the reason

for a challenge alleged to

violate Batson. Courts

frequently are required to

draw inferences from

circumstantial evidence

regarding a decisionmaker’s state of mind,

however, and we are

unwilling to rule out the

possibility that the state may

be able to satisfy its step two

Batson burden by tendering

circumstantial evidence.

Johnson, 40 F.3d at 667. Indeed, we have

expressly rejected the notion that our prior

precedent mandates relief in situations in

which the prosecutor concedes that he or

she cannot remember the bases for a

challenged strike:

[Harrison v. Ryan, 909 F.2d

84 (3d Cir. 1990),] is

distinguishable . . . because

the prosecutor in that case

offered no explanation for

excluding one of the six

black venirepersons he had

struck from the jury, but

simply asserted at a hearing

before a federal magistrate

that he could not recall his

reasons. It was based on the

prosecutor’s assertion that

he did not know the reason

h e st ruck a bla c k

venireperson, coupled with

the absence of any other

explanation, that this court

affirmed the order for a new

trial. We do not read

Harrison to suggest that a

state cannot be permitted to

reconstruct the prosecutor’s

rationale for excluding a

juror during a later Batson

hearing when the prosecutor

admits to having no

rec ollec tion of his

motivations at the time.

Johnson, 40 F.3d at 667 n.4 (emphasis

added). Our conclusion that such

difficulties in reconstructing voir dire do

not foreclose an evidentiary hearing is

further supported by the Supreme Court’s

resolution of similar situations. See

Miller-El v. Cockrell, — U.S. —, 123 S.

Ct. 1029, 1042-43 (2003) (noting that

evidence presented at a Batson hearing

two years after voir dire “was subject to

the usual risks of imprecision and

distortion from the passage of time,” but

nevertheless concluding that the Court of
16

Appeals erred in refusing to grant a

certificate of appealability); Batson, 476

U.S. at 133 n.12 (remanding for a hearing

despite the petitioner’s concession that it

would be all but impossible to reconstruct

the prosecutor’s rationale for the

challenged strikes) (Burger, C.J.,

dissenting). 

Thus, while the retroactive

application of the Supreme Court’s ruling

in Batson undeniably causes many

problems, we do not believe the weight of

this burden should be borne solely by the

Commonwealth. It is difficult in the

context of a pre-Batson trial to fault

Hardcastle’s counsel for failing to request

an evidentiary hearing following voir dire.

It is equally unfair to require the

Commonwealth to retry Hardcastle

without first being provided with the

opportunity to defend its conduct in the

prior trial. Given the Batson Court’s

emphasis on the subjective intent of the

prosecutor, we find it difficult to imagine

a situation in which it would be

appropriate to take the extraordinary step

of granting habeas corpus relief without

first providing the state with a hearing at

which it could offer evidence in support of

the challenged strikes if, as in this case, it

desires to do so.

Finally, having concluded that

further proceedings are required, we must

address the parties’ arguments as to the

appropriate forum. Although both sides

request a hearing as an alternative remedy,

Hardcastle seeks to have the matter

handled by the District Court while the

Commonwealth asserts that the state courts

must be given the first opportunity to rule

on the new evidence submitted. 

As we have previously held, “[w]e

do not have authority under the federal

habeas statutes, 28 U.S.C. § 2241 or §

2254, to remand a habeas corpus petition

to a state court for an evidentiary hearing.”

Keller v. Petsock, 853 F.2d 1122, 1129 (3d

Cir. 1988). Federal district courts, by

contrast, may conduct such hearings. See

id.6 Moreover, even if we were able to

remand directly to the state court, neither

this Court nor the Supreme Court has held

“that the state courts should, after having

foregone the opportunity to hold an

evidentiary hearing and resolve the issue,

be given another opportunity to do so.” Id.

Therefore, to the extent that the

Commonwealth asserts in its postargument submission that we should grant

the writ conditioned upon a hearing in

state court, we reject this argument for the

same reasons we declined to do so in

Keller: “Such a remedy would . . .

 

6We note that AEDPA “amended the

federal habeas statute in such a way as to

limit the availability of new evidentiary

hearings on habeas review.” Campbell v.

Vaughn, 209 F.3d 280, 286 (3d Cir.

2000) (citing 28 U.S.C. § 2254(e)(2)). 

However, even post-AEDPA, evidentiary

hearings are permitted where, as here, the

“state courts fail[] to resolve the factual

issue on which [the petitioner’s] habeas

petition rests.” Id. In such cases “the

failure to develop the factual record

would not be [the petitioner’s] fault.” Id.

at 286-87. 
17

contravene the policy underlying the

exhaustion requirement. State courts are

certainly entitled to have the first

oppo rtunity to revie w fed era l

constitutional challenges to state

convictions. There is no requirement,

however, that they be given more than one

opportunity to adjudicate these claims.”

Id. at 1130 (citation omitted). Here, as in

Keller, Hardcastle “has given the state

courts their first opportunity, and they did

not seize it. Therefore the federal district

court must become the trier of fact.” Id.

(footnote omitted). Thus, we will remand

this matter to the District Court for further

development of the evidentiary record with

respect to Hardcastle’s Batson claim, and,

if this claim ultimately fails, for

consideration of the remaining issues

presented in his habeas petition.

V. Conclusion

For the foregoing reasons, we will

vacate the final judgment of the District

Court and remand the matter for further

proceedings consistent with this opinion.

Nygaard, J., dissenting.

I agree with most of the analysis

and conclusions reached by the majority in

its well-crafted and thorough opinion. I

disagree, however, with the remedy. The

Commonwealth (Appellant) argued before

us that “the Pennsylvania court should be

allowed to conduct a Batson hearing if any

is deemed necessary.” (emphasis added).

 I conclude that a hearing is not only

unnecessary, but is unwarranted. 

In its opinion, the District Court

concluded that:

The proper relief in this case

is a new trial with the

opportunity to retry the

petitioner before a properly

selected jury. A new trial is

e specia lly appr opria t e

where, as here, the passage

of time makes a new

evidentiary hearing on the

petition impossible. Nearly

twenty years have passed

since Petitioner’s trial, such

a length of time that even

Respon dent s [th e

Commonwealth] admit[s]

that an evidentiary hearing

on Petitioner’s Batson claim

is unlikely to be helpful.7

 

7Also shortly after the trial and

conviction, and on appeal to the threejudge Common Pleas panel, the

prosecutor explained that she was unable

to recall why she struck the AfricanAmerican juror:
18

I find that the District Court’s reasons and

reasoning are compelling and supported by

the record. Hence, and essentially for the

reasons given by the District Court, I

respectfully dissent.

The Appellant argues that we

should remand for a Batson hearing. I

believe, however, that the Appellant is

judicially estopped from presenting its

“actual reasons,” given the district

attorney’s admission during the direct

appeal that she could not remember her

reasons, nor could she reconstruct the

record. Our opinion in Johnson v. Love,

40 F.3d 658 (3d Cir. 1994), raises an

interesting option for remand in certain

cases for a hearing, allowing the state to

attempt to meet its burden through

circumstantial evidence of the prosecutor’s

intent. I do not think that works well here.

We have the entire record before us, and it

is clear that the prosecutor discriminated

by striking African-Americans. The

record is devoid of her intent. Moreover,

although the Appellant provides many

reasons why any particular juror might

have been struck, it has not proffered any

evidence of why they were or anything that

would indicate a hearing on circumstantial

evidence of actual reasons or intent would

be productive.

I would affirm the District Court’s

decision to issue the writ and grant

Petitioner Hardcastle a new trial.

How can I possibly now

tell you why I challenged

anybody? I don’t think that

now, some six months

after, I can tell you why I

challenged somebody then. 

I don’t know how we can

possibly have a hearing as

to why I challenged a

particular juror six months

later.

Similarly, the prosecutor argued that it

was impossible for her to reconstruct the

record at that stage.