2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-16-2011

Lark v. Secretary PA Dept Corr

Precedential or Non-Precedential: Precedential

Docket No. 07-9004

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 07-9004 

______________ 

ROBERT LARK 

v. 

*SECRETARY PENNSYLVANIA DEPARTMENT 

OF CORRECTIONS, ET AL; THE DISTRICT ATTORNEY 

OF PHILADELPHIA COUNTY; 

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA, 

 Appellants

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

______________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 01-01252) 

Honorable John R. Padova, District Judge 

______________ 

Argued February 2, 2011 
2 

BEFORE: McKEE, Chief Judge, and SCIRICA and 

GREENBERG, Circuit Judges

(Filed: June 16, 2011) 

______________ 

Maureen Kearney Rowley 

Chief Federal Defender 

Stuart B. Lev (argued) 

Michael Wiseman 

Defender Association of Philadelphia 

Federal Capital Habeas Corpus Unit 

The Curtis Center, Suite 545 West 

Independence Square West 

Philadelphia, PA 19106-0000 

 Attorneys for Appellee

Thomas W. Dolgenos (argued) 

Chief, Federal Litigation 

Ronald Eisenberg 

Deputy District Attorney 

Law Division 

Arnold H. Gordon 

First Assistant District Attorney 

Office of the District Attorney 

Three South Penn Square 

Philadelphia, PA 19107 

 Attorneys for Appellants
3 

______________ 

OPINION OF THE COURT 

______________ 

GREENBERG, Circuit Judge. 

I. INTRODUCTION

 This matter comes on before this Court on appeal from a 

final order entered in the District Court on July 5, 2007, 

conditionally granting Appellee Robert Lark a writ of habeas 

corpus, vacating his Pennsylvania state court death sentence, 

and ordering the Commonwealth of Pennsylvania to retry Lark 

within 180 days or release him.1

 See Lark v. Beard, 495 F. 

Supp. 2d 488 (E.D. Pa. 2007) (“Lark II”). The Court granted the 

writ based on Lark’s claim that at his trial the Commonwealth 

violated the Fourteenth Amendment’s Equal Protection Clause 

that the Supreme Court applied in Batson v. Kentucky, 476 U.S. 

79, 106 S.Ct. 1712 (1986), when the Supreme Court reviewed a 

prosecutor’s exercise of peremptory challenges in jury selection. 

 Appellants, the Secretary of the Pennsylvania Department of 

Corrections, the District Attorney of Philadelphia County, and 

the Attorney General of the Commonwealth of Pennsylvania 

(collectively “the Commonwealth”), filed a timely notice of 

 

1

 The District Court, at the unopposed request of the 

Commonwealth, issued an order on July 17, 2007, staying its 

conditional grant of habeas corpus relief pending the outcome of 

this appeal. 
4 

appeal from the Court’s order. For the following reasons we 

will vacate the Court’s July 5, 2007 order and remand the case 

for further proceedings. 

II. BACKGROUND & PROCEDURE 

 We take the following facts from the Pennsylvania 

Supreme Court’s opinion affirming the denial of Lark’s first 

petition for state post-conviction relief: 

[I]n late 1978, Lark robbed Tae Bong Cho while 

putting a gun to the head of the victim’s infant 

child. He was apprehended shortly after the 

robbery and was charged with the crime. 

Approximately two months later, Lark murdered 

Mr. Cho in order to prevent him from testifying 

against Lark in the robbery trial. No witness was 

able to identify the killer, because he wore a ski 

mask. However, Lark bragged to a number of 

acquaintances that he had killed ‘the Korean.’ 

Lark failed to appear for trial on the robbery 

charge and he was convicted in absentia. 

Thereafter, Lark repeatedly threatened the 

prosecutor in the robbery case and detectives 

investigating the Cho homicide. He was captured 

on January 9, 1980 after he took a mother and her 

two small children hostage. While he was 

barricaded inside the hostage’s house, he told 

police: ‘I’ll kill you all like that [expletive] . . . I’ll 
5 

shoot you in the legs.’ 

Following capture, Lark was charged with 

offenses related to the murder of Mr. Cho, 

terroristic threats against the prosecutor in the 

robbery case, and the kidnapping of the woman 

and her two children. The first trial ended in 

mistrial as the result of an inadvertent question 

asked by the trial court . . . . 

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

 At his second trial, in 1985, Peter Rogers represented 

Lark, who is African-American, and assistant district attorney 

John Carpenter represented the Commonwealth.2

 Voir dire 

lasted for four days.3

 On June 7, 1985, the third day of voir 

dire, after Carpenter exercised a peremptory challenge to strike a 

female African-American juror, the following exchange 

occurred: 

Mr. Rogers: Your Honor, Before the other juror 

comes in, can we . . . may the 

 

2

 Prior to his second trial, Lark moved to dismiss the charges 

against him on double jeopardy grounds. The trial court denied 

the motion and the Pennsylvania Superior Court, on 

interlocutory appeal, affirmed. Commonwealth v. Lark, 479 

A.2d 522 (Pa. Super. Ct. 1984). 

3

 Jury selection actually began on June 4, 1985, but inasmuch as 

the Court did not make any selections on that day, we are 

concerned only with June 5, 6, 7, and 10, 1985. 
6 

records be preserved to indicate the 

racial composition of the jurors 

who are coming by so as to 

preserve an opportunity for me to 

make a challenge that the 

Commonwealth may in fact be 

excluding all blacks who come 

before this panel? Only way I can 

determine that is if I have the 

records made available to me. Not 

today, Your Honor, but I just ask – 

The Court: What records are we talking about? 

Mr. Rogers: The records which will – that 

defense counsel doesn’t get a 

chance to see and I guess the 

Commonwealth doesn’t but I think 

it should indicate addresses, phone 

numbers, race, things like that, 

Your Honor. 

Mr. Carpenter:Judge– 

The Court: I don’t know that there’s any 

indication of race at all. 

Mr. Carpenter:My recollection is that– 

Mr. Rogers: As of this afternoon, Your Honor, 

he is striking all blacks. 

Mr. Carpenter:Oh. How awful. 

App. at 611-12. 

The discussion between Rogers and the trial court 

continued with Rogers insisting that Carpenter was striking 
7 

blacks and asking the court to preserve a record of the race of 

the jurors. The trial court responded by asserting that there was 

“nothing on the record as to who was white and who was black,” 

and that there was no way to determine the race of the jurors. 

Id. at 613. Rogers stated that he wanted the records preserved 

only from the last jury panel and he was not arguing that 

Carpenter had exercised his peremptory challenges in a 

discriminatory manner during the prior two days of jury 

selection. Carpenter stated, however, that he had not 

systematically excluded jurors, pointing out that there were three 

jurors on the panel of the same race as Lark. The trial court, 

applying the law as it stood at the time of the trial, indicated that 

“neither one of [the attorneys] has to give any reason for 

[exercising a peremptory challenge].” Id. at 614. Ultimately, 

the trial court denied Rogers’ request, indicating that there was 

no record of the race of the jurors. Rogers did not raise the 

equal protection peremptory challenge issue again. 

 On June 28, 1985, the jury returned a verdict finding 

Lark guilty of first-degree murder, possession of an instrument 

of crime, terroristic threats, and two counts of kidnapping. In 

the penalty phase of the trial which followed, the jury found that 

there were no mitigating circumstances but that there was one 

aggravating circumstance--the murder of a state’s witness--and 

set the penalty at death. The trial court denied all post-trial 

motions and imposed Lark’s death sentence on April 24, 1986. 

 On April 30, 1986, six days after the court sentenced 

Lark, the United States Supreme Court issued its opinion in 

Batson v. Kentucky which lessened the burden of proof that 

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), had 

required for a defendant to show that a prosecutor engaged in 
8 

discriminatory jury selection. One year later, that Court 

determined that the rule in Batson would apply retroactively to 

all cases pending on direct review at the time that it decided 

Batson. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 

716 (1987). 

Lark filed a direct appeal from his conviction and 

sentence to the Pennsylvania Supreme Court.4

 On that appeal 

Lark, still represented by Rogers, did not raise a Fourteenth 

Amendment Equal Protection Clause claim based on 

Carpenter’s use of peremptory strikes during voir dire. On May 

20, 1988, the Pennsylvania Supreme Court affirmed Lark’s 

convictions and sentence. Commonwealth v. Lark, 543 A.2d 

491 (Pa. 1988). Lark did not file a petition for a writ of 

certiorari to the United States Supreme Court and thus the direct 

review of his conviction and sentence was completed on August 

18, 1988, 90 days after the Pennsylvania Supreme Court 

affirmed his conviction. See U.S. Sup. Ct. R. 13. Nevertheless, 

inasmuch as Lark’s direct appeal was pending at the time that 

the Supreme Court decided Batson, the rule in Batson is 

applicable to his case.5

 

 After completion of Lark’s direct appeal the judicial 

 

4

 Under Pennsylvania law, all sentences of death are directly 

appealable to the state Supreme Court. 42 Pa. Cons. Stat. Ann. 

§ 9711(h)(1) (West 1998); 42 Pa. Cons. Stat. Ann. § 722 (West 

2004). 

5

 Of course, the applicability of Batson is subject to the various 

jurisdictional and procedural rules that we discuss below. 
9 

proceedings in his case lay dormant as he did not file any further 

applications or motions until six years later when, in November 

1994, after the Governor of Pennsylvania signed a warrant for 

his execution, he sought a stay of execution in the Philadelphia 

Court of Common Pleas. That court denied Lark’s request for a 

stay on November 7, 1994, following which on November 8, 

1994, Lark filed a pro se motion in the District Court seeking an 

order staying his execution. The District Court granted the stay 

to enable Lark to file a state post-conviction petition.6

 

 On November 4, 1994, Lark filed his first Post 

Conviction Relief Act (PCRA), 42 Pa. Const. Stat. Ann. § 9541 

et seq. (West 1989), petition in the Philadelphia Court of 

Common Pleas. After appointment of counsel, Lark filed an 

amended PCRA petition on February 8, 1995, raising 25 claims 

of trial court error and ineffective assistance of counsel but the 

claims did not include an assertion that there had been a Batson

violation. The Commonwealth moved to dismiss the petition, 

and the PCRA court, without holding an evidentiary hearing, 

granted that motion. Lark appealed from the dismissal to the 

Pennsylvania Supreme Court. 

 In April 1997, while Lark’s appeal was pending in the 

Pennsylvania Supreme Court, the Philadelphia District 

Attorney’s Office released a video tape (the “McMahon tape”) 

 

6

 The Pennsylvania Supreme Court also issued a stay to permit 

the filing of a state post-conviction petition. See

Commonwealth v. Lark, Capital Appeal No. 77 (Pa. Nov. 10, 

1994) (unpublished order). See Lark v. Beard, Civ. No. A 01-

1252, 2006 WL 1489977, at *2 (E.D. Pa. May 23, 2006). 
10 

in which former assistant prosecutor Jack McMahon instructs 

his prosecutorial colleagues to exclude potential jurors on the 

basis of race, gender, occupation, and neighborhood. On the 

tape that McMahon made after the Supreme Court’s decision in 

Batson, he advised against striking all African-Americans and 

stated that his ideal jury would be composed of eight whites and 

four blacks.7

 On July 1, 1997, Lark applied to the Supreme 

Court of Pennsylvania for a remand of his PCRA petition to 

allow him to assert a claim based on the McMahon tape. On 

July 23, 1997, the Pennsylvania Supreme Court affirmed the 

denial of post-conviction relief and on July 30, 1997, in a 

separate order, it denied Lark’s application for a remand. 

Commonwealth v. Lark, 698 A.2d at 52. 

 On August 29, 1997, Lark filed a second PCRA petition 

in the Court of Common Pleas. In his second petition, Lark 

advanced several claims predicated on newly discovered facts, 

including a claim of discriminatory jury selection based on: (1) 

the McMahon tape; (2) the prosecutor’s allegedly discriminatory 

pattern of strikes; and (3) a report that Professors David Baldus 

and George Woodworth had authored on jury selection practices 

in Philadelphia capital cases from 1983-1993 (“the Baldus 

study”). Lark requested discovery and an evidentiary hearing to 

present evidence regarding the racial makeup of the jurors that 

Carpenter had struck and his motivation for striking the jurors. 

Lark also sought the hearing to present evidence regarding the 

 

7

 For a more comprehensive discussion of the contents of the 

McMahon tape, see Wilson v. Beard, 426 F.3d 653, 656-58 (3d 

Cir. 2005). 
11 

jury selection policies of the Philadelphia District Attorney’s 

office. The PCRA court, without holding an evidentiary 

hearing, denied the petition as untimely because Lark filed the 

petition beyond the one-year statute of limitations applicable to 

PCRA petitions. See 42 Pa. Stat. Ann. § 9545(b) (West 1998). 

On appeal from the denial of post-conviction relief, the 

Pennsylvania Supreme Court held that Lark’s Batson claim was 

timely to the extent it was based on the McMahon tape because 

the facts underpinning that claim did not become available until 

the Philadelphia District Attorney’s Office released the tape in 

April 1997, and thus Lark’s Batson claim insofar as based on the 

McMahon tape came within the exception to the one-year 

deadline for filing PCRA petitions predicated on newly 

discovered facts. See id. at § 9545(b)(ii); Commonwealth v. 

Lark, 746 A.2d 585, 588 (Pa. 2000). The court, however, 

affirmed the PCRA court’s denial on the merits as it concluded 

that the contents of the McMahon tape did not demonstrate that 

Lark had made a prima facie showing that there had been 

discrimination in the jury selection at his trial. Id. at 588-89. 

The court also held that the remaining bases for Lark’s Batson

claims, namely the allegations arising from the race of each 

potential juror and the prosecutor’s “Oh. How awful” statement 

at trial, were present at the inception of his trial and thus did not 

fall into an exception from the one-year rule in section 9545(b).8

 

 

8

 In an alternative holding, the Supreme Court held that Lark 

waived these claims because he did not raise them on direct 

appeal or in his first PCRA petition. Inasmuch as the parties 

agreed in the District Court that the Supreme Court applied only 

the PCRA time bar and not the doctrine of waiver to deny 
12 

 While his appeal was pending from the denial of his 

second PCRA petition in the Pennsylvania Supreme Court, 

Lark, in recognition of the possibility that if he did not act 

promptly the Anti-Terrorism and Effective Death Penalty Act’s 

(AEDPA) one-year statute of limitations would preclude him 

from seeking federal relief, filed a habeas corpus petition in the 

District Court. Lark admitted that his federal petition contained 

unexhausted claims that had been included in his second PCRA 

petition. The District Court dismissed the petition without 

prejudice but ordered that the filing date that Lark filed another 

petition would relate back to the date of the filing of the 

dismissed habeas corpus petition. See Lark v. Beard, Civ. No. 

A. 01-1252, 2006 WL 1489977, at *3 (E.D. Pa. May 23, 2006) 

(“Lark I”). 

 On March 16, 2001, after the Pennsylvania Supreme 

Court denied Lark’s appeal, he timely filed another habeas 

corpus petition in the District Court, this time raising 15 claims.9

 

Lark’s Batson claims, we will not discuss the Supreme Court’s 

waiver holding as a basis for procedural default. Lark v. Beard, 

Civ. No. A 01-1252, 2006 WL 1489977, at *5 n.8 (E.D. Pa. 

May 23, 2006). 

 

9

 The claims were: (1) The prosecutor used his peremptory 

challenges in a racially discriminatory manner and as part of a 

discriminatory policy of the Philadelphia District Attorney’s 

Office, in violation of the Sixth, Eighth and Fourteenth 

Amendments; (2) Trial counsel was ineffective during the guilt 

phase of the trial by failing to object to, and opened the door for, 

the admission of highly prejudicial, inadmissible evidence; and 
13 

 

he failed to investigate and present relevant and exculpatory 

evidence; (3) Trial counsel was ineffective at sentencing for 

failing to investigate, develop, prepare, or present available, 

relevant and compelling mitigating evidence regarding Lark’s 

childhood abuse; deprivations and mental health impairments; 

and gave an ineffectual closing argument in which he failed to 

ask the jury to find mitigating evidence; (4) The trial court erred 

in answering the jury’s question regarding the “meaning” of the 

death penalty in Pennsylvania; (5) Lark was forced to stand trial 

a second time in violation of the Double Jeopardy clause of the 

Fifth Amendment, after the prosecutor intentionally goaded 

defense counsel into requesting a mistrial; (6) Lark is entitled to 

relief from his death sentence because the penalty phase jury 

instructions and verdict sheet indicated that the jury must find 

mitigating factors unanimously; (7) The trial court’s instructions 

on reasonable doubt at both phases of trial and on Lark’s burden 

of proof at the penalty phase were unconstitutionally erroneous; 

(8) Lark did not receive the meaningful “proportionality review” 

that 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (West 1998) and 

federal constitutional law mandated; (9) Lark’s death sentence 

was the product of improper racial discrimination in violation of 

the U.S. Constitution; (10) The Philadelphia District Attorney’s 

policy of providing lodging and cash payments to witnesses 

violates the U. S. Constitution; (11) Lark was denied his right to 

an impartial jury and a fair trial when some jury members saw 

him in handcuffs; (12) The trial court denied Lark a fair and 

impartial trial because the voir dire failed to ensure that the 

jurors selected would consider the possibility of a life sentence; 

(13) The trial court violated Lark’s constitutional rights by 

refusing to sever unrelated criminal charges from his capital 
14 

 Lark filed a motion for an evidentiary hearing on his habeas 

corpus petition but the Commonwealth objected to the granting 

of that hearing as it contended that he was not entitled to an 

evidentiary hearing on the Batson claim inasmuch as he failed to 

develop a factual record for that claim in the state court. The 

Commonwealth also objected to the Batson claim on the 

grounds that it was unexhausted and procedurally defaulted 

inasmuch as Lark failed to comply with the PCRA’s one-year 

statute of limitations. See 42 Pa. Stat. Ann. § 9545(b). 

In an order entered on May 23, 2006, the District Court 

held that Pennsylvania’s one-year statute of limitations for 

PCRA petitions was not in force at the time of Lark’s alleged 

default and, relying in part on our holding in Bronshtein v. 

Horn, 404 F.3d 700 (3d Cir. 2005), held that the time bar was 

not an independent and adequate state law barrier to federal 

habeas corpus review of Lark’s claims. Lark I, 2006 WL 

1489977, at *7. In a related holding, the Court determined that, 

inasmuch as the PCRA court and the Pennsylvania Supreme 

Court denied Lark’s request for an evidentiary hearing pursuant 

to the same one-year statute of limitations which it had found to 

be an inadequate state ground to bar habeas corpus relief, Lark 

had not failed to develop the factual basis of his Batson claim to 

the end that 28 U.S.C. § 2254(e)(2) prevented the Court from 

 

murder trial and when it allowed evidence of Lark’s prior 

criminal activity to be introduced; (14) State court counsel was 

ineffective to the extent he failed to raise the claims Lark now 

raises; (15) Lark is entitled to relief from his conviction and 

sentence because of the prejudicial effects of the cumulative 

errors in his case. 
15 

 

exercising its discretion to grant him an evidentiary hearing. 

The Court also found that Lark alleged facts, which if proven 

true, would establish a prima facie showing that Carpenter 

exercised peremptory challenges based on race. In particular, 

Lark alleged that Carpenter’s high strike rate of AfricanAmerican jurors, the absence of any race-neutral reasons for the 

strikes in the transcripts, and the trial prosecutor’s remark of 

“Oh. How awful” in response to defense counsel’s comment 

that he was striking all the blacks from the jury, demonstrated a 

Fourteenth Amendment Equal Protection Clause violation. 

Finally, the Court exercised its discretion and granted Lark an 

evidentiary hearing on his claim of jury discrimination and 

ineffective assistance of counsel at the guilt and sentencing 

phases of his trial.10 

At the evidentiary hearing on November 8, 2006, the 

Commonwealth presented Carpenter’s testimony to answer the 

allegations that he struck jurors based on their race. Carpenter 

testified that at the time of Lark’s trial he had been a prosecutor 

for ten years, and had not received formal training on jury 

selection practices, the Philadelphia District Attorney’s Office 

did not have formal rules about how to make peremptory strikes, 

and, although he knew Jack McMahon, that he did not take 

directions from him on how to pick a jury. Apparently referring 

10 The Commonwealth has conceded that Lark’s trial counsel 

was ineffective for failing to investigate and present mitigating 

evidence in the penalty phase of the trial. However, inasmuch 

as the Batson claim is the only issue before us on this appeal, we 

will not discuss the ineffective assistance of counsel claim any 

further. 
16 

to the time of the evidentiary hearing as McMahon did not make 

the tape until after Lark’s trial, he said that while he had heard 

of the McMahon tape he had never seen it and was not familiar 

with its contents. Carpenter also stated that while he was aware 

that systematic exclusion of jurors based on race “wasn’t right” 

under the law at the time of the trial, he was unsure, prior to 

Batson, whether the law permitted a prosecutor to strike 

individual jurors on the basis of their race. App. at 1021. 

Carpenter further testified that he remembered Lark’s 

trial because it was the only case in which he obtained a death 

sentence and because of his tense relationship with Rogers 

during the trial. In preparation for his testimony at the 

evidentiary hearing, Carpenter reviewed the transcript of the 

voir dire but he could not recall much of that process and could 

not recall specific jurors. Carpenter also reviewed the 

handwritten notes he took during jury selection, but they did not 

refresh his recollection of his reasons for his strikes of 

individual jurors and Carpenter testified that, while he used 

abbreviations and symbols, he was not systematic in his notetaking.11

 

11 The record contains only Carpenter’s notes from the last two 

days of jury selection. We note that even these records are 

incomplete as some jurors questioned in the transcript do not 

appear on Carpenter’s jury sheets. On the third day of the voir 

dire Carpenter wrote letter symbols such as “A,” “D,” “H,” and 

“J,” as well as word notations. On the fourth day, he used 

numbers corresponding to a key he placed at the bottom of the 

page. Carpenter identified the letter “D” as corresponding to a 

possible bias in favor of the defendant. He identified the symbol 
17 

The Commonwealth then questioned Carpenter about 

each of his individual peremptory strikes. Except as to one 

juror, Charles Rabb, Carpenter had no independent or refreshed 

recollection of reasons for any of the peremptory strikes he 

exercised during Lark’s trial. However, based on the 

circumstantial evidence that Carpenter provided, the District 

Court found that the Commonwealth had offered race-neutral 

reasons for every peremptory strike the Commonwealth 

questioned him about except for three jurors. Inasmuch as the 

District Court later based its grant of the conditional writ on 

Carpenter’s failure to provide a race-neutral explanation for 

these three jurors, we will focus on those jurors in this appeal. 

However, we think it is important to recognize that, despite our 

focus on these three jurors, on remand the District Court may 

conclude at the third step of the Batson process that any one of 

Carpenter’s 13 peremptory strikes against African-Americans 

amounted to purposeful discrimination. 

The first juror Carpenter could not recall striking and 

could not provide circumstantial evidence for removing was 

Shirley Sampson, an African-American female, who was the 

subject of his first peremptory challenge. Carpenter could not 

recall independently why he struck Sampson and when he read 

the transcript of her questioning his memory as to why he struck 

her was not refreshed. Carpenter, however, unequivocally 

denied that he struck her because she was African-American and 

 

“H” as indicating juror hardship. Although Carpenter could not 

recall what the letter “A” symbolized, he denied that he used 

that letter to denote a venireperson as an African-American. 
18 

averred that striking any juror because of his or her race was 

legally and morally abhorrent to him. 

Before proceeding to the next juror, the Commonwealth’s 

attorney asked Carpenter questions about his general jury 

selection practices. Carpenter stated that the neighborhood 

where a potential juror lived was important because he did not 

want jurors who lived near the defendant or the place where the 

incident involved in the trial had occurred. Though Carpenter 

indicated that he did not want a juror who lived too close to the 

defendant or who lived close to the crime scene, he did not state 

that he struck Sampson for either of these reasons. Later, 

Carpenter testified that he took into account a potential juror’s: 

(1) employment status and nature of employment, as having a 

job showed that person had roots in the community but that he 

nevertheless did not want teachers or social workers on the jury; 

(2) a juror’s age, as older jurors were wiser and more 

responsible; (3) children, as Carpenter did not want jurors who 

had children who were the same age as the defendant; (4) home 

ownership, as a homeowner had a stake in the community; (5) 

hardship; (6) prior jury experience; (7) history as a victim of 

crime or a witness or defendant in a criminal case; (8) 

relationship with police officers, as Carpenter viewed jurors 

positively if they had family members who were police officers; 

(9) acquaintance with any potential witnesses in the trial; and 

(10) feelings about the death penalty. 

The second venireperson for whom Carpenter could not 

give a specific reason, or a reason based on circumstantial 

evidence, for striking was Florence Williams, also an AfricanAmerican female. Carpenter could not find anything 

“particularly wrong” with Williams by looking at the trial 
19 

transcript. Id. at 1044. He, however, did state that there were 

other circumstances that might not appear in the transcript, 

“[f]or example, if I don’t like the juror, I think . . . it’s a good bet 

she doesn’t like me.” Id. at 1045. When the District Court stated 

that “there could have been body language there,” Carpenter 

responded by saying “exactly.” Id. 

As was the case with Williams, Carpenter could not 

recall a specific or circumstantial reason for striking the third 

juror, Edison Sisco,12 an African-American male. Carpenter, 

however, noted that neither he nor defense counsel asked Sisco 

many questions. When asked whether there was anything in the 

transcript which might indicate why he struck Sisco, Carpenter 

answered “No. Except one thing he said was, when he was 

asked when [sic] was the last school he attended, he said 

Dobbins and then he said ‘No, Overbrook.’ I don’t know it 

looks like he – I don’t know.” Id. at 1053. 

After the hearing, the parties filed two stipulations as to 

the race of potential jurors that Carpenter struck and seated on 

the jury. The stipulated list of 29 persons included the race and 

gender of the selected jurors, the selected alternates, and the 

prospective jurors that Carpenter excused with peremptory 

challenges. According to the stipulations, the jury in Lark’s 

case was composed of four African-Americans and eight 

Caucasians. Carpenter did not exercise all of the peremptory 

 

12 Although the District Court referred to this juror as “Edison 

Cisco,” the parties refer to him as “Edison Sisco,” and his name 

appears as Sisco on the juror sheets from the trial. 

We will adopt the parties’ spelling in this opinion. 
20 

strikes allotted to the prosecution and had five peremptory 

strikes remaining at the end of voir dire; however, out of the 15 

peremptory strikes Carpenter used, 13 were used to strike 

African-Americans. Id. at 948-52. 

On July 3, 2007, the District Court granted the writ on the 

strength of the Batson claim, ordering the Commonwealth to 

retry Lark within 180 days or release him. The Court examined 

Lark’s claim under the familiar three-step Batson analysis: 

First, a defendant must make a prima facie 

showing that a peremptory challenge has been 

exercised on the basis of race. Second, if that 

showing has been made, the prosecution must 

offer a race-neutral basis for striking the juror in 

question. Third, in light of the parties’ 

submissions, the trial court must determine 

whether the defendant has shown purposeful 

discrimination. 

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 

1035 (2003) (hereinafter “Cockrell”) (citations omitted). 

 As we indicated above, the District Court, in its May 23, 

2006 order holding that the one-year PCRA time bar was not an 

independent and adequate ground to bar Lark’s petition in that 

Court, determined that Lark met the first step of the Batson
21 

inquiry.13 At the second step, the Court determined that because 

Carpenter could not articulate a race-neutral reason for his 

peremptory strikes of Sampson, Williams, and Sisco, the 

Commonwealth failed to meet its burden of production. The 

Court held that where the state fails to meet its Batson duty of 

production at step two, the analysis ends with a finding that 

there was a Batson violation. The Court did not reach the issue 

of whether Lark’s reliance on the Baldus study and the 

McMahon tape to prove discrimination at the third step 

supported his Batson claim.14 The Commonwealth filed a 

timely notice of appeal challenging the Court’s conditional grant 

of the writ. 15 

III. JURISDICTION AND STANDARDS OF REVIEW

 The District Court had jurisdiction pursuant to 28 U.S.C. 

§§ 2241 and 2254 and we have jurisdiction pursuant to 28 

U.S.C. §§ 1291 and 2253. The parties dispute the appropriate 

standard of review. They agree that we exercise plenary review 

over the Court’s conclusions of law and review its factual 

 

13 Actually in its May 23, 2006 opinion and order the District 

Court merely indicated that Lark made allegations satisfying the 

first Batson step. 

14 The District Court did not address any of Lark’s remaining 

guilt phase claims. 

15 The Commonwealth did not need a certificate of appealability 

to appeal. See Hardcastle v. Horn, 368 F.3d 246, 253 (3d Cir. 

2004). 
22 

findings for clear error. See Holloway v. Horn, 355 F.3d 707, 

713 (3d Cir. 2004). But they differ with respect to the degree of 

deference that we must afford the Court’s finding of intentional 

discrimination in the jury selection process. 

Lark asserts that once a district court concludes that a 

petitioner has shown that there was intentional discrimination in 

the jury selection process, a court of appeals may not reject that 

determination unless the district court’s conclusion is shown to 

be clearly erroneous. Wilson v. Beard, 426 F.3d 653, 668-69 

(3d Cir. 2005). The Commonwealth characterizes this approach 

as too simple and incorrect for use in this case, as it argues that 

the District Court predicated its finding of intentional 

discrimination on a misapplication of Batson’s legal principles. 

Accordingly, the Commonwealth asserts that we exercise 

plenary review of the Court’s finding. 

 Lark’s citation of Wilson for the standard of review is 

misleading. In Wilson, we upheld a district court’s factual 

finding of intentional discrimination at the third step of the 

Batson analysis. Id. at 670. But the district court based that 

finding on its credibility determination that the prosecutor acted 

with a discriminatory intent in exercising his peremptory strikes. 

 Id. Here, the District Court did not base its decision on a 

credibility determination nor did it proceed to the third step of 

the Batson analysis. Rather, the Court ruled that the 

Commonwealth did not offer any explanation for making the 

three peremptory strikes and, therefore, as a matter of law, it 

failed to meet its burden at step two of the Batson analysis. But 

the Court’s approach here was problematic, for we have stated, 

“the Batson inquiry ends and the conviction must be vacated at 

the second stage of the analysis if the state’s explanation is such 
23 

that, taken at face value, it either demonstrates an equal 

protection violation or would otherwise be inadequate as a 

matter of law to support the conviction.” Johnson v. Love, 40 

F.3d 658, 668 (3d Cir. 1994) (internal citation omitted). 

Therefore, because the District Court did not indicate that 

Carpenter’s explanations at step two demonstrated an equal 

protection violation, the Court necessarily determined that 

Carpenter’s explanations for using peremptory challenges to 

strike Sampson, Williams, and Sisco were inadequate as a 

matter of law. We will exercise plenary review over that legal 

conclusion. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir. 

2002). 

IV. DISCUSSION

A. Timely Batson Objection 

 First, the Commonwealth argues that Lark did not make 

an adequate “Batson-style objection at trial,” and therefore, 

under our precedent, he is not entitled to relief on the Batson

claim. Appellant’s br. at 13. Lark counters by asserting that the 

Commonwealth impermissibly is raising this argument on 

appeal for the first time. In reply, the Commonwealth asserts 

that it raised the issue at several points in its original response to 

the petition. Further, the Commonwealth argues that, inasmuch 

as we have held that a timely objection at trial is required to 

preserve a Batson claim, Lark has the burden to prove that he 

raised a timely Batson objection at trial and thus the 

Commonwealth did not need to raise the issue as an affirmative 

defense. See Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir. 

2009). 
24 

 The Commonwealth argues that, in any event, in these 

habeas corpus proceedings it raised Lark’s failure to object by 

stating, in its response to Lark’s petition, that: (1) defense 

counsel “objected to, at most, four peremptory challenges which 

the prosecutor had made during the afternoon session of June 7, 

1985”; (2) “trial counsel did not specify the exact strikes to 

which he was objecting”; (3) “as a result of [Lark’s] dereliction 

in pursuing the Batson claim in state court, the record was not 

preserved”; (4) “[T]he record reflects that defense counsel told 

the court he had what he needed to make a record, but he never 

raised the subject again.” Appellant’s reply br. at 5 (internal 

citations and quotation marks omitted). 

 These statements, however, did not put the District Court 

on notice of the legal argument that the Commonwealth now 

wishes to raise: that Lark’s objection at trial was not sufficient 

and timely and Lark therefore has waived the Batson claim for 

the purposes of federal habeas corpus review.16 See Bagot v. 

Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (stating that the 

crucial question regarding waiver is whether the petitioner 

presented the argument with sufficient specificity to alert the 

district court). It is unsurprising, therefore, that the District 

 

16 In fact, as Lark points out, the Commonwealth consistently 

accepted the adequacy of Rogers’ objection in several 

documents submitted to the District Court. See, e.g., 

Commonwealth’s Memorandum of Law, Lark v. Beard, 01-cv1252, at 38 (“On June 7, 1985, petitioner objected to certain 

peremptory strikes of the prosecutor.”). 
25 

Court did not address this argument either in its May 23, 2006 

order granting an evidentiary hearing or in its July 3, 2007 order 

granting the conditional writ. The Court only held that “Lark’s 

trial counsel, Peter Rogers, raised the issue of the 

Commonwealth’s improper peremptory strikes during the voir 

dire and sought to preserve a record of the racial composition of 

the jury.” 495 F. Supp. 2d at 492. “As a general rule, we 

do not consider on appeal issues that were not raised before the 

district court.” Appalachian States Low-Level Radioactive 

Waste Comm’n v. Pena, 126 F.3d 193, 196 (3d Cir. 1997) 

(internal quotation marks omitted). Nevertheless, in 

Appalachian States we noted that the enforcement of a waiver 

involves the exercise of discretion and thus the rule providing 

for waiver may be relaxed “whenever the public interest or 

justice so warrants.” Id. (citations and internal quotation marks 

omitted). But even if we held that it was appropriate to relax the 

ordinary appellate review rule in order to consider the issue that 

the Commonwealth raises, i.e., that Lark did not make an 

adequate Batson objection at his trial, and we agreed with the 

Commonwealth that a defendant must make a timely Batson

objection at trial to preserve a Batson issue and that the 

requirement that he do so cannot be waived, we would find that 

Lark made a timely objection at trial so as to preserve the 

Batson issue for later habeas corpus review. 

We have held that, even in trials before the Supreme 

Court’s decision in Batson, a timely objection to the 

prosecutor’s exercise of peremptory strikes is a prerequisite to 

raising a Batson claim on appeal. Lewis v. Horn, 581 F.3d at 

102, citing Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir. 

2008), vacated on other grounds sub nom., Beard v. Abu-Jamal, 
26 

130 S.Ct. 1134 (2010).17 We explained that, “a timely objection 

of racial bias involving jury composition would have alerted the 

judge to errors that might be corrected in the first instance and 

given the judge the opportunity to develop a complete record of 

the jury selection process for appellate review.” Abu-Jamal, 520 

F.3d at 282. Thus, in Abu-Jamal the petitioner forfeited his 

Batson claim because he “did not object to the prosecutor’s use 

of peremptory challenges at any point during voir dire or at his 

1982 trial.” Id. at 283-84. Likewise, in Lewis we held that the 

petitioner’s statement of “So prejudiced. So prejudiced,” and “I 

knew he would do that” after the prosecution’s use of 

peremptory strikes was not sufficient to alert the trial judge to a 

claim that the prosecution was striking venire members in a 

racially discriminatory manner. Lewis, 581 F.3d at 102. 

 As was true for the petitioners in Lewis and Abu-Jamal, 

Lark’s trial was prior to the Supreme Court’s decision in Batson

and thus was at a time that Swain v. Alabama, 380 U.S. 202, 85 

S.Ct. 824, set forth the standard governing the review of the use 

of peremptory challenges. In order to show a Fourteenth 

Amendment Equal Protection Clause violation under Swain, the 

defendant had “to show a pattern and practice of racial 

 

17 On the remand from the Supreme Court we adhered to the 

result we reached in our vacated opinion and affirmed the 

district court’s order granting the petitioner habeas corpus relief 

to the extent that he had been sentenced to death in the state 

court. Abu-Jamal v. Sec’y Pa. Dep’t of Corr., No. 01-9014, 

____ F.3d. ____, 2011 WL 1549231 (3d Cir. Apr. 26, 2011). 

But our opinion on the remand does not affect the dispositions 

for which we cite our earlier opinion in that case in this opinion. 
27 

discrimination in jury selection across multiple prosecutions,” 

Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir. 1996), but the 

prosecutor did not need to give reasons for the use of individual 

peremptory challenges to avoid a finding that there had been an 

equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct. 

at 837. An equal protection objection under Swain, however, 

“necessarily states an equal protection violation subject to proof 

under the Batson standard . . . .” Ford v. Georgia, 498 U.S. 411, 

420, 111 S.Ct. 850, 856 (1991). 

Here it is clear that Rogers, Lark’s trial attorney, raised a 

timely objection to what he perceived was the prosecutor’s 

exercise of discriminatory peremptory challenges. At the trial 

on June 7, 1985, Rogers asked that: 

[T]he records be preserved to indicate the racial 

composition of the jurors who are coming by so 

as to preserve an opportunity for me to make a 

challenge that the Commonwealth may in fact be 

excluding all blacks who come before this panel? 

Only way I can determine that is if I have the 

records made available to me. 

 

App. at 611-12. 

Counsel later stated that “as of this afternoon, your honor, 

he is striking all blacks.” Id. at 612. The trial court refused to 

make a record as it stated that there was no way to determine a 

person’s race or color and that neither attorney had to explain 

his reasons for exercising peremptory challenges. Rogers’ 
28 

statements that the prosecutor was striking all of the black jurors 

put the trial court on notice of Lark’s claim and distinguishes his 

case from Lewis and Abu-Jamal. Specifically, Rogers timely 

pointed out what he perceived was the Commonwealth’s racially 

motivated peremptory strikes and he thus invited the trial court 

to develop a record on the issue for appellate review. This 

notice was all that Abu-Jamal requires. See Williams v. Beard, 

637 F.3d 195, 208 n.12 (3d Cir. 2011). 

The Commonwealth’s contentions that Rogers only made 

a “vague request for records,” did not ask the trial court to order 

Carpenter to explain himself, and only questioned the challenge 

of four jurors, do not demonstrate that Rogers did not make an 

objection at trial to the allegedly race based peremptory 

challenges. Appellant’s reply br. 8-10 (internal quotation marks 

omitted). It would have been futile for Rogers to ask that 

Carpenter be required to explain the reason for his individual 

peremptory challenges or for Rogers to renew the objection 

when each African-American juror was excused for under the 

Supreme Court case law at the time of Lark’s trial, individual 

challenges in one case could not be the basis for finding that 

there had been an equal protection violation.18 See Swain, 380 

 

18 The Commonwealth cites Galarza v. Keane, 252 F.3d 630, 

638 (2d Cir. 2001), for the proposition that a party must raise an 

objection in a manner that would allow a trial court to remedy 

the problem at trial. Galarza is inapposite because the trial in 

that case occurred three years after the Supreme Court’s 

decision in Batson. Id. at 633. 
29 

U.S. at 222, 85 S.Ct. at 837. Indeed, the trial court indicated as 

much when it stated that neither Carpenter nor Rogers had to 

explain the reasons behind individual peremptory strikes. 

We think it is also significant that even Carpenter 

recognized that Rogers was attempting to raise a Fourteenth 

Amendment Equal Protection argument when Carpenter stated, 

referring to the Swain standard, that “there’s obviously not 

systematic exclusion when you’ve got 3 members out of 9 who 

are the same race as the defendant and his attorney.” App. at 

616; see Swain, 380 U.S. at 227, 85 S.Ct. at 839. Further, 

Rogers’ request for a record of the race of the jurors that 

Carpenter struck sought the type of evidence that would support 

(or refute) an equal protection violation under Swain. See id. at 

223, 85 S.Ct. at 837 (“[W]hen the prosecutor in a county, in case 

after case, whatever the circumstances, whatever the crime and 

whoever the defendant or the victim may be, is responsible for 

the removal of Negroes who have been selected as qualified 

jurors by the jury commissioners and who have survived 

challenges for cause, with the result that no Negroes ever serve 

on petit juries, the Fourteenth Amendment claim takes on added 

significance.”). 

Therefore, even though Rogers’ statement that Carpenter 

was striking “all the blacks” from the jury and his request that 

the trial court make a record of the race of the jurors did not 

raise an objection with “the clarity that appropriate citations 

would have promoted,” his protest reasonably raised an equal 

protection claim under Swain. Ford, 498 U.S. at 418, 111 S.Ct. 

at 855. Thus, the objection was adequate to raise an equal 

protection claim under Batson. Id. at 420, 111 S.Ct. at 856. 
30 

 Finally, the Commonwealth argues that, even if Lark 

properly objected to Carpenter’s peremptory strikes so as to 

raise an equal protection claim, the trial court’s rejection of that 

objection is entitled to deference. It is true that in the habeas 

corpus context federal courts owe the same deference to implicit 

state court factual findings as they afford to explicit state court 

factual findings. See, e.g., LaVallee v. Delle Rose, 410 U.S. 

690, 692, 93 S.Ct. 1203, 1204 (1973) (per curiam); Campbell v. 

Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (“[A]n implicit 

finding of fact is tantamount to an express one, such that 

deference is due to either determination.”). Here, however, the 

trial court’s response that it was impossible to determine the 

race of the jurors and that counsel did not have to give reasons 

for peremptory challenges, clearly was a refusal to engage in an 

equal protection analysis rather than an implicit finding of fact 

entitled to deference under 28 U.S.C. § 2254(e)(1). Cf.

Campbell, 209 F.3d at 289-90 (holding that state court made 

implicit credibility finding entitled to deference where court 

repeatedly stated that petitioner’s ineffective assistance of 

counsel claim had no legal merit); see also Coombs v. 

Diguglielmo, 616 F.3d 255, 263 (3d Cir. 2010) (citation 

omitted) (“Where the state court fails to undertake a full stepthree analysis, as required by Batson, we will remand for the 

district court to engage in independent fact-finding.”).19 

 

19 Of course, we do not fault the trial court for failing to engage 

in the three-step analysis at a time that the Supreme Court had 

not announced that a court should engage in that analysis. 

However, the trial court, by refusing to make a record of the 

race of the struck jurors, failed even to undertake or at least 
31 

In sum, even though Lark did not present his equal 

protection claim with great clarity at the trial we will not reject 

his Batson claim on the basis that he failed to advance a timely 

Batson objection at trial. 

B. Procedural Default 

 We next consider whether Lark procedurally defaulted 

his Batson claim by failing to advance it properly in the 

Pennsylvania courts. There has been a procedural default when 

“a state court declined to address a prisoner’s federal claims 

because the prisoner failed to meet a state procedural 

requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111 

S.Ct. 2546, 2554 (1991). As a matter of comity and federalism, 

a federal court may not conduct habeas corpus review of a claim 

which a petitioner has procedurally defaulted in state court. 

Federal review, however, is available if the procedural rule that 

the state court applied to bar a federal claim was not 

“independent” and “adequate.” See Albrecht v. Horn, 485 F.3d 

103, 115 (3d Cir. 2007) (internal citations omitted). A state 

procedural rule is an inadequate ground to bar federal review if 

it was not firmly established and regularly followed by the state 

courts at the time it was applied. Bronshtein, 404 F.3d at 707. 

Whether a procedural rule “was firmly established and regularly 

applied is determined as of the date the default occurred, and not 

as of the date the state court relied on it, because a petitioner is 

entitled to notice of how to present a claim in state court.” 

Albrecht, 485 F.3d at 115 (internal citations omitted). 

 

initiate an analysis under the standard then in effect under 

Swain. 
32 

Lark first attempted to raise a specific claim under Batson

when he unsuccessfully sought an order from the Pennsylvania 

Supreme Court remanding his PCRA petition to the PCRA court 

so that he could raise a Batson claim. Thereafter Lark filed a 

second PCRA petition in 1997 raising a Batson violation as a 

ground for relief and requesting that the court grant him an 

evidentiary hearing to present proof of the race of the 

venirepersons at his trial and to enable him to advance the 

McMahon tape in support of his claim. The PCRA court, 

without holding an evidentiary hearing, dismissed the petition as 

untimely under the PCRA deadline set forth in 42 Pa. Cons. 

Stat. Ann. § 9545(b). 

 On appeal from the dismissal of the second PCRA 

petition, the Pennsylvania Supreme Court invoked section 

9545(b)(1)(ii)20 to hold that the petition so far as it asserted a 

Batson claim was timely but only to the extent that Lark 

predicated the claim on the McMahon tape. 746 A.2d at 588. 

Thus, the court held that it could not review the Batson claim to 

the extent Lark predicated it on the Baldus study, the 

prosecutor’s “Oh. How awful,” statement, and the race of the 

potential jurors inasmuch as those aspects of the claim were 

ascertainable more than one year before Lark filed his second 

PCRA petition, and a Batson claim on any of these three bases 

did not fall within the exception set forth in section 

 

20 Section 9545(b)(1)(ii) provides that a claim is not untimely if 

“the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the 

exercise of due diligence.” 

 
33 

9545(b)(1)(ii). Id. at 589. On the merits, the court held that the 

McMahon tape was not sufficient to establish a policy of 

discrimination by the prosecutors in the Philadelphia District 

Attorney’s Office. Id. (citing Commonwealth v. Rollins, 738 

A.2d 435, 443 n.10 (Pa. 1999)).

 As we recently discussed in Morris v. Beard, 633 F.3d 

185 (3d Cir. 2011), the PCRA one-year statute of limitations in 

42 Pa. Cons. Stat. Ann. § 9545(b) was not firmly established and 

regularly followed prior to 1998: 

In Bronshtein, we explained that the PCRA’s oneyear statute of limitations was not an adequate 

state bar to federal habeas review of claims 

defaulted prior to, at the very least, October 20, 

1998. [Bronshtein, 404 F.3d] at 709. Before that 

date, Pennsylvania courts frequently applied a 

‘relaxed waiver’ rule in capital cases. Id. In other 

words, courts refused to enforce procedural rules-

-such as the PCRA’s one-year statute of 

limitations--in capital cases because of the 

‘overwhelming public interest in preventing 

unconstitutional executions.’ Id. at 708 (quoting 

Commonwealth v. McKenna, 476 Pa. 428, 383 

A.2d 174, 180-81 (Pa. 1978)) (internal quotation 

marks omitted). Although a trio of Pennsylvania 

Supreme Court decisions in 1998 and 1999 

interred the relaxed waiver doctrine, see, e.g, 

Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 

374 (Pa. 1999), we observed in Bronshtein that it 

was not clear that the rule would be unavailable as 

of October 20, 1998--the date of Bronshtein’s 
34 

default. See 404 F.3d at 709-10. Because the 

PCRA’s one-year statute of limitations ‘was not 

firmly established and regularly followed’ as of 

that date, we held it was an inadequate state bar to 

federal habeas review of Bronshtein’s claims. Id.

Morris, 633 F.3d at 191. 

 Here, the default in the timeliness of the filing of Lark’s 

second PCRA petition was on January 16, 1996,21 or the 

effective date of the PCRA time bar, at a time that the PCRA 

one-year time bar was not firmly established due to the 

 

21 The District Court set the default date as August 18, 1989, or 

one year after completion of the direct appeal in Lark’s case, but 

that date fails to account for the statutorily created one-year 

grace period for filing PCRA petitions where, as here, the 

judgment of sentence became final before the effective date of 

the time bar, or January 16, 1996. See Commonwealth v. 

Peterkin, 722 A.2d 638, 641 (Pa. 1998). Lark’s first PCRA 

petition, filed in 1994 and thus before the one-year deadline, 

was not subject to the one-year deadline. Inasmuch as the grace 

period does not apply to second or subsequent petitions, the date 

of default for the second petition is the effective date of the time 

bar or January 16, 1996. See Commonwealth v. Crawley, 739 

A.2d 108, 109 (Pa. 1999). As a matter of law, however, the 

error has no consequence on this appeal because the relaxed 

waiver rule was followed in Pennsylvania until after the default 

here. 
35 

Pennsylvania Supreme Court’s “relaxed waiver” rule. 22 

Bronshtein, 404 F.3d at 708 (citing Commonwealth v. 

McKenna, 383 A.2d 174 (Pa. 1978)). Therefore, as we held in 

Bronshtein and most recently re-affirmed in Morris in a similar 

situation, the one-year PCRA time bar cannot justify a federal 

court determination that Lark’s Batson claim has been 

procedurally defaulted. 

 The Commonwealth argues that the state time-bar rule 

was an adequate basis to find that Lark had procedurally 

defaulted his Batson claim because he had notice of the time bar 

which the Pennsylvania General Assembly made explicitly 

applicable to capital cases and, further, that the Pennsylvania 

Supreme Court never applied the relaxed waiver rule to the time 

bar. But our reasoning in Bronshtein refutes these arguments 

and we have reaffirmed the Bronshtein reasoning in subsequent 

cases and, therefore, we need not address the Commonwealth’s 

arguments any further.23 See Morris, 633 F.3d at 195; Holland 

v. Horn, 519 F.3d 107, 115 (3d Cir. 2008). 

In holding that the time bar was not an independent and 

 

22 The Pennsylvania Supreme Court since has made it clear that 

it no longer would relax procedural requirements in capital 

cases. See Whitney v. Horn, 280 F.3d 240, 251 n.12 

(3d Cir. 2002). 

23 The Commonwealth seems to acknowledge this point, stating 

that it was including the procedural default argument in order to 

preserve the issue for “possible en banc or 

Supreme Court review.” Appellant’s br. at 34. 
36 

adequate state ground for denying relief for purposes of a later 

procedural default analysis in a federal district court, we have 

considered the two most recent Supreme Court decisions 

addressing the adequate and independent state rule doctrine, 

Walker v. Martin, 131 S.Ct. 1120 (2011), and Beard v. Kindler, 

130 S.Ct. 612 (2009). In Kindler, the Court considered a very 

narrow question not implicated here: whether a state procedural 

ground is automatically inadequate and unenforceable on federal 

habeas corpus review because the state procedural rule is 

discretionary rather than mandatory. Id. at 614-15.24 Similarly, 

in Walker the Court held that California’s judge-made rule that a 

state habeas corpus petition “should be filed as promptly as the 

circumstances allow . . .” is an independent and adequate state 

rule for purposes of procedural default. Walker, 131 S.Ct. at 

1125 (internal quotation marks and citation omitted). The Court 

held that the California rule, though discretionary, met the 

“firmly established” criterion because the California courts’ 

application of the rule in particular circumstances supplied the 

requisite clarity for habeas corpus petitioners. Id. at 1128. 

 

24 Kindler vacated our decision in Kindler v. Horn, 542 F.3d 70 

(3d Cir. 2008), in which we held that the Pennsylvania fugitive 

forfeiture doctrine pursuant to which the petitioner’s conviction 

was affirmed did not provide an adequate basis to bar federal 

habeas corpus review. On the remand from the Supreme Court 

we adhered to our prior result on the ground that the 

Pennsylvania courts rather than applying a discretionary rule 

“applied a mandatory rule that represented a break from past 

decisions.” Kindler v. Horn, No. 03-9010,____ F.3d ____, 

____, 2011 WL 1602083, at *1 (3d Cir. Apr. 29, 2011). 
37 

Further, the rule was “regularly followed” even though at times 

the California courts bypassed the rule and summarily dismissed 

petitions on the merits. Id. at 1129. 

 The Supreme Court’s holdings in Walker and Kindler

have not affected our holding in Bronshtein that prior to 1998 

capital petitioners in Pennsylvania could rely on state courts to 

relax procedural rules, including the one-year PCRA time bar. 

Bronshtein, 404 F.3d at 709.25 Both Walker and Kindler

concerned discretionary and independent state procedural rules 

which state courts consistently applied to bar federal claims. In 

contrast, Pennsylvania’s PCRA time bar is a facially mandatory 

state procedural rule which was not clearly followed in capital 

cases at the time of Lark’s state court default due to the 

Pennsylvania Supreme Court’s judicially created doctrine of 

“relaxed waiver.” See, e.g., Bostick v. Stevenson, 589 F.3d 

160, 165 n.6 (4th Cir. 2009) (“We do not read Kindler to apply 

to facially mandatory rules that state courts nonetheless apply 

arbitrarily.”). Indeed, by the Pennsylvania Supreme Court’s 

own recognition, the “relaxed waiver” rule “virtually eliminated 

any semblance of finality in capital cases . . . .” Commonwealth 

v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). Thus, it cannot be 

argued plausibly that the PCRA time bar regularly was followed 

or firmly was established at the time of Lark’s procedural 

default in 1996. 

C. District Court Evidentiary Hearing 

 

25 In any event, as we noted above, we applied Bronshtein’s rule 

after the Supreme Court decided Kindler. See Morris, 633 F.3d 

at 195. 
38 

 The Commonwealth argues that, even assuming Lark’s 

Batson claim is not procedurally defaulted, the District Court 

should not have held an evidentiary hearing on the claim 

inasmuch as Lark was not sufficiently diligent in pursuing his 

Batson claim in state court as 28 U.S.C. § 2254 requires. 

Section 2254(e)(2) provides that, 

If the applicant has failed to develop the factual 

basis of a claim in State court proceedings, the 

court shall not hold an evidentiary hearing on the 

claim unless the applicant shows that – 

(A) the claim relies on— 

(i) a new rule of constitutional law, made 

retroactive to cases on collateral review by 

the Supreme Court, that was previously 

unavailable; or 

(ii) a factual predicate that could not have 

been previously discovered through the 

exercise of due diligence; and 

(B) the facts underlying the claim would be 

sufficient to establish by clear and 

convincing evidence that but for 

constitutional error, no reasonable 

factfinder would have found the applicant 

guilty of the underlying offense. 
39 

28 U.S.C. § 2254(e)(2). 

 The Supreme Court has held that a failure to develop the 

factual basis of a claim in the opening clause of section 

2254(e)(2) “is not established unless there is lack of diligence, 

or some greater fault, attributable to the prisoner or the 

prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 

S.Ct. 1479, 1488 (2000). The Court distinguished the diligence 

requirement of the opening clause of section 2254(e)(2) from the 

diligence requirement of section 2254(e)(2)(A)(ii) by explaining 

that the latter refers to cases in which the facts underlying a 

claim could not have been discovered through due diligence 

while the former asks only whether “the prisoner made a 

reasonable attempt, in light of the information available at the 

time, to investigate and pursue claims in state court . . . .” Id. at 

435, 120 S.Ct. at 1490. 

 Thus, there is a separate fault requirement in the opening 

clause of section 2254(e)(2) which asks whether the petitioner 

adequately and diligently pursued the factual basis of his claim 

in state court. If the petitioner fails in this regard and is 

therefore “at fault,” the bar to relief in section (e)(2) is raised. 

Otherwise, if the petitioner is not “at fault,” the court may 

exercise its discretion to grant an evidentiary hearing. See

Campbell, 209 F.3d at 287 (stating that if section 2254(e)(2) 

does not bar an evidentiary hearing, federal courts have 

discretion to grant a hearing with the potential to advance the 

petitioner’s claim). Here, the District Court held that because 

the state court denied Lark’s request for an evidentiary hearing 

based on an inadequate procedural rule, Lark did not fail to 

develop the Batson claim and section 2254(e)(2) did not bar a 

hearing in that Court. See Morris, 633 F.3d at 194-95 (citing 
40 

Wilson, 426 F.3d at 665). The Court, after finding section 

2254(e)(2) inapplicable, exercised its discretion to grant Lark an 

evidentiary hearing. 

 The Commonwealth contends that the District Court 

improperly conflated diligence and procedural default. In 

Wilson we stated that the procedural default doctrine and section 

2254(e)(2)’s diligence requirement analytically were linked: “If 

a petitioner requests a hearing to develop the record on a claim 

in state court, and if the state courts . . . deny that request on the 

basis of an inadequate state ground, the petitioner has not ‘failed 

to develop the factual basis of [the] claim in State court 

proceedings’ for the purposes of § 2254(e)(2).” Wilson, 426 

F.3d at 665. Nevertheless, the Commonwealth argues that the 

diligence standard sets a different and higher bar than the 

procedural default doctrine and dismissal on the basis of an 

inadequate procedural rule does not excuse years of dilatoriness 

in state court. The Commonwealth also argues that Wilson is 

distinguishable because McMahon himself prosecuted the 

petitioner in that case and the petitioner could not have brought 

the claim earlier because the tape was the “centerpiece” of his 

Batson claim. Id. at 666 n.11. As the Commonwealth is quick 

to point out, Lark was aware of the factual predicates of his 

Batson claim – the pattern of the prosecution’s strikes, the race 

of the jurors, and the prosecutor’s statement – as early as his 

trial counsel’s objection during the jury selection process of his 

case. 

 The Commonwealth makes a strong argument, 

particularly inasmuch as the years of delay between the District 

Court evidentiary hearing and the trial greatly prejudiced its 

ability to respond to the Batson claim. As the Supreme Court 
41 

has noted, the principles of comity and federalism underlie the 

diligence requirement: 

Comity . . . dictates that when a prisoner alleges 

that his continued confinement for a state court 

conviction violates federal law, the state courts 

should have the first opportunity to review this 

claim and provide any necessary relief. For state 

courts to have their rightful opportunity to 

adjudicate federal rights, the prisoner must be 

diligent in developing the record and presenting, 

if possible, all claims of constitutional error. 

Williams, 529 U.S. at 437, 120 S.Ct. at 1490-91 (internal 

citation and quotation marks omitted). 

It is undoubtedly reasonable to argue that Lark’s failure 

to raise the Batson claim on direct appeal followed by his 

inaction for six years before filing a post-conviction petition, 

which even then did not raise a Batson claim, demonstrated that 

he did not make a “diligent search for evidence.” Id. at 435, 120 

S.Ct. at 1490. Moreover, Rogers, who was Lark’s counsel on 

his direct appeal as well as at trial, was clearly aware of a 

potential discriminatory jury selection claim for, as we have 

discussed, he raised an objection to the prosecution’s strikes 

during voir dire. Thus, though the McMahon tape and the 

Baldus study may not have alerted Lark to a possibility of there 

having been a “culture of discrimination” 26 in the Philadelphia 

 

26 The District Court noted that the McMahon tape “could 

conceivably reflect a culture of discrimination that is relevant to 

. . . Lark’s Batson/Swain claim.” Lark I, 2006 WL 1489977, at 
42 

District Attorney’s Office until after his trial and direct appeal in 

this case, see Cockrell, 537 U.S. at 347, 123 S.Ct. at 1045, we 

reject Lark’s argument that he could not have been aware of his 

Batson claim given the information available at the time of his 

direct appeal and we also reject his argument that he could not 

have discovered the claim through the exercise of a reasonable 

investigation. Cf. Williams, 529 U.S. at 439-40, 120 S.Ct. at 

1492 (holding that petitioner failed to develop facts of Brady

claim where counsel was a aware of psychiatric report but failed 

to investigate in anything but a “cursory manner”). After all, the 

jury selection process took place in front of him. Moreover, 

inasmuch as a Batson claim, unlike a Swain claim, can be 

proven by the facts in a single case relating to jury selection, 

Lark did not need “culture of discrimination” materials to 

establish his claim. 

 We nevertheless reject the Commonwealth’s arguments 

regarding the delay in this case because, after the 

Commonwealth submitted its brief on this appeal but before the 

oral argument, we rejected an almost identical argument in 

Morris. In that case, the petitioner, Kelvin Morris, was 

convicted of first-degree murder and sentenced to death in 

Pennsylvania state court. After he filed an unsuccessful direct 

appeal and an unsuccessful PCRA petition, Morris filed a 

second PCRA petition in which he raised, for the first time, a 

claim that his trial attorney’s representation of his brother, Artie 

 

*8 n.15. We, however, since have held that a district court did 

not clearly err in finding that the McMahon tape did not create a 

culture of discrimination in the Philadelphia District Attorney’s 

Office. Bond v. Beard, 539 F.3d 256, 273 (3d Cir. 2008). 
43 

Morris, in a civil suit created a conflict of interest that deprived 

Morris of effective assistance of counsel in his criminal trial. 

Morris, 633 F.3d at 190. The PCRA court dismissed the second 

petition without holding an evidentiary hearing for the sole 

reason that Morris filed the petition beyond the PCRA’s oneyear statute of limitations. Id. Morris then filed a federal 

habeas corpus petition raising the same claim and requesting an 

evidentiary hearing. The Commonwealth, as it does in this case, 

argued that, because of the lengthy delay and the timing of 

Morris’ claim,27 section 2254(e)(2) barred the district court from 

holding an evidentiary hearing. 

 Inasmuch as the petitioner in Morris and Lark are in 

almost identical procedural postures, we will quote from our 

opinion in Morris at length: 

One might argue that [Morris’] failure to comply 

with the PCRA’s one-year statute of limitations 

means that he did not seek a hearing ‘in the 

manner prescribed by state law.’ Williams, 529 

U.S. at 427, 129 S.Ct. at 1485-86. But such an 

argument runs headlong into our holding in 

Bronshtein, where we observed that the PCRA’s 

time bar was neither ‘firmly established’ nor 

‘regularly followed’ at the time [Morris] filed his 

second PCRA petition. 404 F.3d at 709-10. 

Because of the uncertainty surrounding 

Pennsylvania’s use of the ‘relaxed-waiver rule’ at 

that time, it was effectively impossible for 

 

27 Morris filed the claim 13 years after the trial and one month 

after his brother died. 
44 

[Morris] to fail to comply with Pennsylvania law 

on statute of limitations grounds when filing his 

second PCRA petition. In Williams, the Supreme 

Court explained that a finding of diligence would 

turn on whether a petitioner ‘made a reasonable 

attempt’ to pursue his claim ‘in light of the 

information available at the time.’ 529 U.S. at 

435, 129 S.Ct. at 1490. With no ‘firmly 

established and regularly applied rule’ clearly 

barring [Morris’] lengthy delay, Bronshtein, 404 

F.3d at 708, his belated hearing request was an 

acceptable attempt to pursue his claim in light of 

the information available to him at the time of 

filing. Because the Pennsylvania state courts 

failed to hold a hearing and rule on [Morris’] 

conflict-of-interest claim ‘for some reason 

unrelated to [his] diligence, § 2254(e)(2) [does] 

not apply and a new evidentiary hearing [is] 

permitted.’ Taylor v. Horn, 504 F.3d 416, 436 (3d 

Cir. 2007). 

As the Commonwealth correctly argues, 

merely because a petitioner has complied with 

state law when seeking an evidentiary hearing 

does not mean that he has been diligent for 

purposes of § 2254(e)(2). The jurisdictional 

standard for procedural default of § 2254(a) and 

the evidentiary hearing standard of § 2254(e)(2) 

are distinct provisions that will frequently require 

separate analyses. But where, as here, a state court 

gives no reason for denying a petitioner’s hearing 
45 

request other than his failure to comply with a 

subsequently invalidated state statute of 

limitations, we cannot say that the petitioner was 

not diligent for purposes of § 2254(e)(2). 

Accordingly, we hold that § 2254(e)(2) did not 

prohibit the District Court from conducting an 

evidentiary hearing on [Morris’] conflict-ofinterest claim. 

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

 In a letter filed pursuant to Fed. R. App. P. 28(j), the 

Commonwealth attempts to distinguish Morris by arguing that 

the rule we established in that case was the following: “where a 

petitioner had the opportunity and forum to litigate the merits of 

the claim in state court, but failed to do so, he is not diligent 

under [section] 2254(e)(2) even though his later attempt to raise 

the again [sic] is barred by an inadequate rule.” Appellant’s 

28(j) letter dated January 31, 2011, at 1-2. But as the excerpted 

portion above demonstrates, this is a misstatement of Morris’ 

holding. Rather, the holding in Morris was that section 

2254(e)(2) does not bar an evidentiary hearing for lack of 

diligence where the only reason a state court gives for denying 

an evidentiary hearing is a subsequently invalidated state 

procedural rule. This is exactly what happened in Lark’s case. 28

 

28 We are also unconvinced by the Commonwealth’s attempt to 

distinguish Morris on the ground that the conflict of interest 

claim in that case, unlike Lark’s Batson claim, occurred outside 

the courtroom and thus the inadequate state procedural rule 
46 

 

 Furthermore, the Commonwealth’s reliance on our 

opinion in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), is 

unconvincing. In Taylor, the petitioner obtained an evidentiary 

hearing during his first PCRA hearing and, after the PCRA court 

denied the claim, unsuccessfully sought to present new expert 

witnesses testimony in a second PCRA petition raising the same 

claim. We affirmed the district court’s denial of the request for 

an evidentiary hearing under section 2254(e)(2) despite the 

Pennsylvania Supreme Court’s dismissal of Taylor’s second 

PCRA petition pursuant to an inadequate state procedural 

ground: “Unlike the petitioner in Wilson, Taylor’s competency 

claim was raised in his first PCRA petition and addressed on the 

merits. His resurrection of the claim in his second PCRA 

petition does not put it under Wilson’s rule.” Id. at 436-37. The 

procedural posture of Lark’s case differs from that of the 

petitioner in Taylor inasmuch as Lark is not attempting to get 

two bites at the apple by requesting a district court hearing to 

present new evidence which was available at the time of his 

state court evidentiary hearing. Id. at 437 (“The only thing that 

prevented Taylor from presenting his new evidence of 

incompetency before the first PCRA court was a lack of 

diligence.”). Rather, Lark is requesting a hearing because the 

state court prevented him from presenting his evidence in the 

first instance by the application of an inadequate procedural 

rule. In that respect, Lark’s request, to the extent that his Batson

 

prevented Morris from presenting evidence in the only forum 

available to him. This rationale clearly was not the basis for our 

holding in Morris. 
47 

claim is based on the Commonwealth’s pattern of discriminatory 

strikes, falls squarely within Morris’ holding and, therefore, we 

find that section 2254(e)(2) did not prevent the District Court 

from granting him an evidentiary hearing on his Batson claim. 

D. Merits of Lark’s Batson Claim 

1. The AEDPA 

 We can understand why by this time a reader of this 

opinion would wonder whether we ever would reach the 

substantive issue on this appeal, i.e., did the District Court 

correctly grant Lark habeas corpus relief leading to his release 

or a new trial? But our long discussion of the procedural and 

jurisdictional issues was necessitated by the remarkable 

complexity of the law governing habeas corpus petitions which 

to a large extent is the result of the interaction of state and 

federal law inherent in our dual sovereignty system. In fact, 

solving the procedural and jurisdictional issues before we could 

reach the substantive issues on this appeal was a process much 

like solving Rubik’s cube. But we now reach the merits issue on 

this appeal. 

 Pursuant to the AEDPA, where a state court adjudicates 

the merits of a petitioner’s claim, federal courts review the claim 

under a highly deferential standard. See 28 U.S.C. § 2254(d)(1) 

& (2); Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). As we 

have indicated, Lark properly presented the Batson claim based 

on the Commonwealth’s pattern of jury strikes to the state courts 

in his second PCRA petition, but the state courts rejected that 

claim largely pursuant to what clearly was a state procedural 

rule inadequate to bar federal habeas corpus review. When, as 
48 

here, the state courts do not adjudicate a claim on the merits, and 

that claim is presented properly to a federal court in a petition 

for a writ of habeas corpus, the deferential standards of the 

AEDPA do not apply. See Coombs, 616 F.3d at 260 (citing 

Holloway, 355 F.3d at 718). Therefore, for the most part a 

federal habeas corpus court considering Lark’s Batson claim 

based on the Commonwealth’s pattern of jury strikes should 

exercise de novo review. Coombs, 616 F.3d at 261. On the 

other hand, to the extent that the Supreme Court of Pennsylvania 

rejected Lark’s Batson claim that he predicated on the 

McMahon tape on the merits we will assume that its decision is 

entitled to deferential review. But that possibility is of no 

consequence on this appeal as the District Court did not rely on 

the McMahon tape to reach its conclusion and we are 

predicating our result on our determination that as a matter of 

federal law the District Court misapplied Batson. Accordingly, 

our review is entirely de novo. 

2. Batson Three-Step Analysis. 

 The Equal Protection Clause of the Fourteenth 

Amendment “prohibits a prosecutor from using a peremptory 

challenge to strike a prospective juror solely on account of 

race.” Holloway, 355 F.3d at 719 (citing Batson, 476 U.S. at 88, 

106 S.Ct. 1712). But “[a]s in any equal protection case, the 

burden is . . . on the defendant who alleges discriminatory 

selection of the venire to prove the existence of purposeful 

discrimination.” Coombs, 616 F.3d at 261 (quoting Batson, 476 

U.S. at 93, 106 S.Ct. 1712) (internal quotation marks omitted). 

We have held that the exclusion of even one vernireperson from 

the jury based on race requires that, under Batson, there be a 

new trial. See Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir. 1990). 
49 

 

 As we stated earlier, typically the adjudication of a 

Batson violation proceeds in three steps: (1) the defendant must 

make a prima facie showing that the prosecution has exercised a 

peremptory challenge in a discriminatory manner; (2) once the 

defendant makes that prima facie showing, the prosecutor must 

offer a race-neutral reason for having exercised the challenge; 

(3) the trial court, weighing the parties’ submissions, determines 

whether the prosecution’s strike amounted to purposeful 

discrimination violating the Equal Protection Clause of the 

Fourteenth Amendment. Cockrell, 537 U.S. at 328-29, 123 

S.Ct. at 1035. In this three-step process the prosecution has the 

burden of production of the race-neutral reason for the strike at 

the second step, but the burden of persuasion never shifts from 

the opponent of the peremptory strike. See Purkett v. Elem, 514 

U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995) (per curiam). 

 The Commonwealth argues that we should not use the 

Batson three-step burden shifting procedure when making an 

analysis many years after the trial because the use of the 

procedure at that time is unfairly advantageous to the petitioner 

and greatly prejudicial to the Commonwealth. But our 

precedent clearly requires that we reject that argument. See, 

e.g., Hardcastle v. Horn, 368 F.3d 246, 255-56 (3d Cir. 2004) 

(applying three-step test in pre-Batson case where defense 

attorney did not object until after voir dire was completed); 

Love, 40 F.3d at 667 (applying three-step Batson analysis in a 

post-trial context). 

 Certainly, when the Supreme Court developed Batson’s 

burden-shifting framework, it envisioned that, inasmuch as a 

timely objection would permit a prosecutor to explain use of the 
50 

challenges, a defendant would make an objection at trial to what 

he regarded was the prosecutor’s racially based use of 

peremptory challenges. After all, as the Commonwealth argues, 

applying the burden shifting method several years after the trial 

makes it more difficult for the prosecution to provide a raceneutral explanation for peremptory strikes. Appellant’s br. at 

37-38 citing Carter v. Hopkins, 151 F.3d 872, 875-86 (8th Cir. 

1998) (holding that it is inappropriate to apply Batson’s burden 

shifting where there has been a long delay between jury 

selection and the filing of the claim, a voir dire record is not 

available, and the petitioner did not raise a timely objection); 

McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir. 1996) 

(stating in dicta that where a Batson objection was raised over 

three months after trial, petitioner was not entitled to benefit of 

burden shifting rule).29 Indeed, one reason that the Supreme 

 

29 Of course we recognize that in both McCrory and Henderson, 

unlike in this case, the defendants did not raise objections to the 

prosecutor’s discriminatory exercise of peremptory challenges at 

their respective trials and, further, the voir dire was not recorded 

in either case. Carter, 151 F.3d at 873; McCrory, 82 F.3d at 

1245. However, like the defendants in those cases, Lark did not 

raise a Batson claim until after the trial, and thus, in light of the 

passage of time between the voir dire and the time when a court 

first adjudicated the merits of the Batson claim, the prosecutor’s 

faded memory rendered the three-step process analysis much 

more difficult for both Lark and the Commonwealth. See

Holloway, 355 F.3d at 726 (explaining that a 17-year delay 

between trial and appellate review of a Batson claim “is 

certainly regrettable both for the Commonwealth and for 

Holloway . . . .”). 
51 

Court applied Batson retroactively only in cases pending on 

direct review at the time that it decided Batson was the difficulty 

in applying Batson long after the trial. See Allen v. Hardy, 478 

U.S. 255, 260-61, 106 S.Ct. 2878, 2881 (1986) (per curiam) 

(declining to hold Batson applicable to cases pending on 

collateral review when the Court decided Batson). 

 In recognition of the delay problem, we realize that it is 

one thing to apply Batson in the adjudication of a direct appeal 

that was pending when the Supreme Court decided that case but 

quite a different matter to apply it in a collateral proceeding 

many years later merely because a direct appeal had been 

pending in the case under review when the Supreme Court 

decided Batson. Thus, it is not surprising that we have a line of 

cases, discussed more extensively below, which provide 

guidance on how to approach a prosecutor’s faded memory in 

the adjudication of Batson claims brought years after trial. But 

even in cases of delay in the assertion of a Batson claim, we 

never have adopted the Court of Appeals for the Eighth Circuit’s 

reasoning that, in order to obtain Batson relief, a petitioner has 

to show “purposeful discrimination” outside of an ordinary 

burden shifting analysis. Carter, 151 F.3d at 875-76. We 

decline to do so now and therefore will analyze the merits of 

Lark’s claim under the usual three-step burden shifting 

procedure. 

3. Step 1: The Prima Facie Case 

 The Supreme Court has indicated that in a determination 

of whether a petitioner has established a prima facie case under 

Batson, the prosecutor’s pattern of peremptory strikes is 

significant as are the “prosecutor’s questions and statements 
52 

during voir dire examination and in exercising his challenges . . . 

.” Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Further, in 

making Batson determinations “we have identified several 

additional factors, including how many members of the 

cognizable racial group are in the venire panel; the nature of the 

crime; and the race of the defendant and the victim.” Lewis, 581 

F.3d at 103 (citations and internal quotation marks omitted). 

 Here, though the District Court indicated in its July 3, 

2007 opinion and order that Lark established a prima facie 

Batson violation, it is unclear when, if ever, the Court actually 

made that finding. In its May 23, 2006 opinion, though the 

Court stated that Lark alleged facts which, if proven true, would 

establish a prima facie case under Batson, it noted that the 

Commonwealth disputed those facts and, indeed, it granted an 

evidentiary hearing, in part, to resolve that dispute. Lark I, 2006 

WL 1489977, at *9; App. at 42. Those alleged facts supporting 

the prima facie case included the prosecution’s high strike rate 

of African-American jurors, the absence of any obvious nonracial basis for the strikes in the voir dire transcripts, and the 

trial prosecutor’s remark (“Oh. How awful”) in response to 

defense counsel’s objection to his pattern of discriminatory 

strikes. Id. at *8; App. at 41. 

 In its second opinion and order on July 3, 2007, the order 

from which the Commonwealth has appealed, the District Court, 

in a footnote, stated that it previously had found that Lark 

established a prima facie case and cited to its May 23 opinion in 

which it set forth the disputed facts. Lark II, 495 F. Supp. 2d at 

501 n.10. But the problem with the Court’s reference is that 

allegations are not findings. The Court then stated that Lark met 

his step-one burden based on the composition of the venire and 
53 

the pattern of strikes exercised by the Commonwealth. Id. 

 The Commonwealth, however, does not challenge that 

Lark has established a prima facie Batson violation.30 We will 

assume that the District Court correctly concluded that Lark met 

his step-one burden based on the composition of the venire and 

the pattern of strikes Carpenter exercised. Consequently, we 

find it necessary to consider the prosecutor’s step-two 

explanation for the strikes. 

4. Step 2: A Race-Neutral Explanation 

The Commonwealth argues that Carpenter’s inability to 

explain the reasons for his use of three peremptory challenges at 

 

30 The Commonwealth does argue that Carpenter’s pattern of 

strikes of African-American jurors is not sufficient to prove that 

any single strike was motivated by race. Appellant’s br. at 50-

51. Inasmuch as the District Court, at the third step, has a duty 

to determine whether Lark has established that Carpenter 

purposefully discriminated in the exercise of any of his 

peremptory challenges, we will not address the 

Commonwealth’s argument on this appeal. After all, it is at the 

third step that the District Court must weigh all the facts and 

circumstances relating to Carpenter’s intent, including the 

pattern of peremptory strikes Carpenter used against AfricanAmerican jurors. See Jordan v. Lefevre, 206 F.3d 196, 200 (2d 

Cir. 2000) (“[T]he third step of the Batson inquiry requires a 

trial judge to make ‘an ultimate determination on the issue of 

discriminatory intent based on all the facts and 

circumstances.’”). 
54 

the second step of the Batson analysis was not a sufficient 

ground to grant the conditional writ of habeas corpus because 

that inability along with the other information available to the 

District Court did not enable Lark to satisfy his ultimate burden 

of proving intentional discrimination. We agree with the 

Commonwealth’s contention. 

 At step two, the Commonwealth has the burden to 

produce a race-neutral explanation but nevertheless the 

opponent of the peremptory strike retains the ultimate burden of 

proof on the Batson issue. See Purkett, 514 U.S. at 768, 115 

S.Ct. at 1171 (“[T]he ultimate burden of persuasion regarding 

racial motivation rests with, and never shifts from, the opponent 

of the strike.”). The prosecutor’s burden at step two is not high 

as the explanation does not have to be persuasive, or even 

plausible. Id. at 767-68, 115 S.Ct. at 1171. Consequently, 

inasmuch as the Supreme Court “purposely set a relatively low 

bar at step two,” we have held that it would be rare, but not 

entirely inappropriate, for a court to grant relief at that step. 

Hardcastle, 368 F.3d at 257; see also Harrison, 909 F.2d at 88 

(holding that prosecution’s failure to rebut petitioner’s prima 

facie showing of racial discrimination as to one juror dictates the 

grant of a new trial). But see Yee v. Duncan, 463 F.3d 893, 899 

(9th Cir. 2006) (holding that defendant bears the ultimate burden 

of proof and therefore step two never can be definitive because 

defendant only has raised an inference of discrimination). 

Here the District Court found that Carpenter’s failure to 

articulate any race-neutral justification for the strikes of three 

jurors mandated that it grant Lark habeas corpus relief. The first 

juror that Carpenter challenged that we consider is Shirley 

Sampson, an African-American female. Carpenter could not 
55 

recall why he struck Sampson and reading the transcript did not 

refresh his memory. Carpenter, however, unequivocally denied 

that he did so because she was African-American. Before 

proceeding to the next juror, the Commonwealth’s attorney 

asked Carpenter whether where the juror lived could be a 

significant factor in exercising a peremptory strike. Carpenter 

answered that he did not want a juror who lived too close to the 

defendant or who lived close to the crime scene; however, he 

did not state that he struck Sampson for either of these reasons. 

Similarly, Carpenter could not recall a specific reason for 

striking Florence Williams, an African-American female. 

Carpenter could not find anything “particularly wrong” with 

Williams by looking at the trial transcript (App. at 1044); he did, 

however, state that there were other circumstances that might 

not appear in the transcript, “[f]or example, if I don’t like the 

juror, I think . . . it’s a good bet she doesn’t like me.” Id. at 

1045. When the District Court stated that “there could have 

been body language there,” Carpenter responded by saying 

“exactly.” Id. The situation was slightly different with respect 

to the third juror, Edison Sisco, an African-American male, even 

though Carpenter could not recall a specific reason for striking 

him. Carpenter did note that neither he nor defense counsel 

asked Sisco many questions and that Sisco was confused about 

the last school he attended. Ultimately, however, Carpenter 

stated that he could not recall a reason for exercising a strike to 

remove Sisco. 

 Carpenter’s reasons for striking Sampson, Williams, and 

Sisco were inadequate to meet the Commonwealth’s burden of 

production as explained in Hardcastle. Carpenter’s statement 

that he might have struck Williams for reasons that did not 
56 

appear in the transcript is the type of vague explanation we have 

rejected as inadequate to meet the prosecutor’s burden at the 

second Batson step. Hardcastle, 368 F.3d at 258. Further, 

Carpenter’s unequivocal denial that he struck Sampson because 

of her race standing alone would not be an adequate explanation. 

 See Purkett, 514 U.S. at 769, 115 S.Ct. at 1771 (stating that a 

prosecutor cannot satisfy burden of production by denying that 

he had discriminatory motive or by merely affirming his good 

faith). Finally, Carpenter did not have an independent 

recollection for striking Sisco. 

 As we indicated above, inasmuch as the Supreme Court’s 

opinion in Batson was to a degree retroactive and applies to 

some trials held before Batson, as is the situation here, we have 

considered habeas corpus petitions that have led to proceedings 

at which a prosecutor sought to provide explanations for 

peremptory challenges years after the trial. In Harrison, the first 

such case we encountered, the prosecutor used six of his eight 

peremptory challenges to strike all of the African-American 

venirepersons and could not recall his reasons for exercising a 

peremptory strike on one of the six African-American jurors he 

excluded during voir dire: “[j]ust looking at these notes, I don’t 

know. I don’t have her age down here. The fact that her son is 

a retired police officer, I assume she is an older woman. That 

could have been a factor; I don’t know.” 909 F.2d at 87. In 

Harrison we balanced the burden to the state of explaining 

strikes years made earlier against the interests of justice that 

Batson was designed to protect: 

Certain other factors, however, most notably the 

interests of justice, require retroactive application 
57 

of Batson for cases on direct review even where a 

long period of time occurs in the state court 

appellate process. This is especially true here 

where defense counsel timely objected to the use 

of peremptory challenges, the number of 

peremptory challenges exercised against Blacks 

was so great, the race neutral reasons given for 

striking other black jury venirepersons were so 

weak, and the prosecutor was unable to articulate 

a race neutral reason for striking one of the black 

venirepersons. 

Id. at 87-88. Ultimately, we held that the prosecution’s failure 

to rebut Harrison’s prima facie showing of racial discrimination 

at the second step mandated the grant of a new trial. Id. at 88. 

 In Johnson v. Love we held that “the Batson inquiry ends 

and the conviction must be vacated at the second stage of the 

analysis if the state’s explanation is such that, taken at face 

value, it either demonstrates an equal protection violation or 

would otherwise be inadequate as a matter of law to support the 

conviction.” Love, 40 F.3d at 668 (citations omitted). In Love, 

the prosecutor’s explanation for striking a young black juror was 

that she would not be sympathetic to the victim of petitioner’s 

crime because the victim solicited sexual favors from young 

black boys prior to his death. We held that this was not a raceneutral explanation because the assumption underlying the 

prosecution’s answer was “based on a stereotypical view or 

intuition that black people, because of their race, will relate to 

other black persons in a way that may preclude them from 

basing a verdict solely on the relevant evidence.” Id. 
58 

 In Love we also addressed a situation in which a 

prosecutor’s faded memory affects his ability to recall reasons 

for a particular peremptory challenge: 

There will undoubtedly be post-conviction relief 

proceedings in which the state, by reason of 

death, absence, or faded memory, will be unable 

to produce a prosecutor with a specific 

recollection of the reason for a challenge alleged 

to violate Batson. Courts frequently are required 

to draw inferences from circumstantial evidence 

regarding a decision-maker’s state of mind, 

however, and we are unwilling to rule out the 

possibility that the state may be able to satisfy its 

step two Batson burden by tendering 

circumstantial evidence. In some post-conviction 

relief proceedings, it may well be possible to 

reach a reliable conclusion regarding the true 

reasons for the challenge based upon the nature of 

the case, the transcript of the voir dire of the 

challenged juror and other prospective jurors, 

contemporaneous notes of the attorneys involved, 

and any other available evidence.

Id. at 667 (emphasis added). In a footnote, we 

distinguished Harrison by stating that the absence of any 

explanation mandated relief in that case but that Harrison

does not suggest that a state should not be permitted to 

reconstruct a prosecutor’s rationale for excluding a juror 

when the prosecutor cannot explain his motivation for a 

strike due to his faded memory. Id. at 667 n.4. 
59 

 Ten years later, in Hardcastle v. Horn we held that the 

Pennsylvania Supreme Court unreasonably applied Batson when 

it proceeded to the third step of the analysis without finding that 

the Commonwealth at the second step gave an adequate 

justification for the use of peremptory challenges. 368 F.3d at 

259. In Hardcastle, a case tried before Batson where Batson

became retroactively applicable on direct appellate review, the 

petitioner’s trial counsel did not raise an objection during voir 

dire but did file a post-voir dire motion under Swain arguing that 

the prosecutor’s use of peremptory strikes violated the federal 

and state constitutions. The trial court denied the motion and 

also denied the prosecutor’s request to state her reasons for 

exercising the peremptory strikes. But an en banc panel of the 

Court of Common Pleas voted to grant a new trial based on the 

jury selection issue. On the initial appeal, the Pennsylvania 

Superior Court reversed the grant of a new trial, finding that 

Hardcastle failed to make the required showing under Swain. 

Id. at 251. 

 On further appeal, the Pennsylvania Supreme Court, 

which heard Hardcastle after the Supreme Court decided Batson, 

conducted its own review of the record and held that the 

prosecutor’s opportunity to observe the jurors during voir dire 

and her decision not to remove two African-American 

venirepersons constituted race-neutral reasons for two 

peremptory strikes. Thus it determined that Hardcastle failed to 

make a prima facie showing that the prosecutor’s strikes 

violated the equal protection clause. Id. at 253. The district 

court granted Hardcastle a writ of habeas corpus, and, on the 

Commonwealth’s appeal, we affirmed, as we found that the 

reasons the Pennsylvania Supreme Court accepted for the 
60 

striking of the two African-American jurors did not satisfy the 

Commonwealth’s minimal burden of production at the second 

step inasmuch as the record did not contain any evidence of the 

two jurors’ demeanor or the prosecutor’s observation or 

impressions. Thus, we found that the Supreme Court’s 

explanation amounted “to nothing more than a statement that the 

prosecutor acted on intuition and with the absence of 

discriminatory intent.” Id. at 258. 

 In 2005, in Wilson v. Beard there was a Batson challenge 

in a case in which Jack McMahon had been the prosecutor. The 

district court in the habeas corpus proceedings, in light of the 

fact that 20 years had elapsed between the time of the trial and 

the hearing at which McMahon explained his reasons for 

striking jurors at the trial, concluded that it would have been 

unreasonable to expect McMahon to remember reasons for his 

individual strikes. 426 F.3d at 668. Rather, the district court 

held that the race-neutral reasons McMahon offered in the 

McMahon tape were sufficient to carry the Commonwealth’s 

burden at the second step. Inasmuch as we upheld the district 

court’s conclusion that Wilson proved intentional 

discrimination, we did not need to decide whether the district 

court’s ruling with respect to the second step was correct. 

However, we did note that, in light of the passage of time 

between the trial and when McMahon offered his explanation 

for striking jurors, the district court appropriately lessened the 

Commonwealth’s burden of production at the second step. Id. 

 Though, so far as we can ascertain, the United States 

Supreme Court never has addressed whether it is appropriate for 

a district court to grant a writ of habeas corpus at the second step 

because a prosecutor could not recall the reason for a 
61 

peremptory challenge many years after the trial, recent 

precedent suggests that courts should be reluctant to do so for 

they should act with caution before granting relief at that step of 

the Batson process and our own consideration of the issue leads 

us to reach the same conclusion. For example, in Purkett v. 

Elem the Court of Appeals for the Eighth Circuit, in a step-two 

analysis, concluded that the prosecutor’s explanation that he 

used a peremptory challenge to strike a juror because the juror 

had long unkempt hair and suspicious facial hair was pretextual 

and was not a legitimate race-neutral reason for striking the 

juror. 514 U.S. at 766-67, 115 S.Ct. at 1770. But on further 

appeal the Supreme Court, reiterating that the burden never 

shifts from the defendant in a Batson dispute, held that the court 

of appeals improperly conflated the second and third Batson

steps: 

[i]t is not until the third step that the 

persuasiveness of the justification becomes 

relevant-the step in which the trial court 

determines whether the opponent of the strike has 

carried his burden of proving purposeful 

discrimination. At that stage, implausible or 

fantastic justifications may (and probably will) be 

found to be pretexts for purposeful discrimination. 

 But to say that a trial judge may choose to 

disbelieve a silly or superstitious reason at step 

three is quite different from saying that a trial 

judge must terminate the inquiry at step two when 

the race-neutral reason is silly or superstitious. 

The latter violates the principle that the ultimate 

burden of persuasion regarding racial motivation 
62 

rests with, and never shifts from, the opponent of 

the strike. 

Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (internal citations 

omitted). The Supreme Court also stated that the requirement in 

Batson that a prosecutor “must give a ‘clear and reasonably 

specific’ explanation of his ‘legitimate reasons’ for exercising 

the challenges” only “was meant to refute the notion that a 

prosecutor could satisfy his burden of production by merely 

denying that he had a discriminatory motive or by merely 

affirming his good faith. . . . [A] ‘legitimate reason’ is not a 

reason that makes sense, but a reason that does not deny equal 

protection.” Id., 115 S.Ct. at 1771 (quoting Batson, 476 U.S. at 

98, n.20, 106 S.Ct. at 1724 n.20.). 

 More recently, the Supreme Court discussed a secondstep issue in Johnson v. California, 545 U.S. 162, 125 S.Ct. 

2410 (2005). California law required an objector, in order to 

establish a prima facie Batson case, to show that it was more 

likely than not that the other party’s peremptory challenges, if 

unexplained, were based on impermissible bias. Id. at 168, 125 

S.Ct. at 2416. The respondents, defending the California law, 

contended that a Batson claimant must prove discrimination by a 

preponderance of the evidence at the first step or else “a 

prosecutor’s failure to respond to a prima facie case would 

inexplicably entitle a defendant to judgment as a matter of law 

on the basis of nothing more than an inference that 

discrimination may have occurred.” Id. at 170, 125 S.Ct. at 

2417. The Court held that this standard was too onerous and not 

a proper application of Batson because the first two steps in the 

Batson process govern only the production of evidence and the 

defendant ultimately retains the burden to prove the existence of 
63 

purposeful discrimination. The Court also reiterated Purkett’s 

holding that even if the state produces “frivolous or utterly 

nonsensical justifications for its strike,” the analysis moves to 

step three. Id. at 171, 125 S.Ct. at 2417. Then, in a footnote, the 

Court added: 

In the unlikely hypothetical in which the 

prosecutor declines to respond to a trial judge’s 

inquiry regarding his justification for making a 

strike, the evidence before the judge would 

consist not only of the original facts from which 

the prima facie case was established, but also the 

prosecutor’s refusal to justify his strike in light of 

the court’s request. Such a refusal would provide 

additional support for the inference of 

discrimination raised by a defendant’s prima facie 

case. Cf. United States ex rel. Vajtauer v. 

Comm’r of Immigration, 273 U.S. 103, 111, 47 S. 

Ct. 302, 71 L. Ed. 560 (1927). 

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

 While obviously intended to apply to an objection made 

during voir dire, the Johnson footnote indicates that the 

prosecutor’s lack of response is evidence to be taken into 

account only at step three and is not, by itself, of such 

dispositive force that it establishes that there was a Batson

violation. Following that line of reasoning this case presents a 

more compelling argument for proceeding to the third step of the 

inquiry. The District Court’s holding that the Batson inquiry 

ends if the state fails to meet its duty of production is accurate 
64 

only if the prosecution, at step two, demonstrates that it based its 

challenge on a reason that was an equal protection violation. 

Purkett, 514 U.S. at 769, 115 S.Ct. at 1771; see also Hernandez 

v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866 (1991) 

(plurality opinion) (“Unless a discriminatory intent is inherent in 

the prosecutor’s explanation, the reason offered will be deemed 

race neutral.”). 

 Unlike the Supreme Court’s hypothetical prosecutor in 

Johnson, Carpenter’s “silence” was a product of his failure to 

recall specific reasons for his three peremptory strikes. 

Carpenter’s inability to recall his reasons for exercising 

peremptory strikes 21 years after the trial surely is far less 

suggestive that at the trial there had been purposeful 

discrimination than a prosecutor’s outright refusal to answer the 

trial court’s inquiry at voir dire directly after the prosecutor 

exercised the peremptory challenge. After all, when at a trial the 

prosecutor is asked to explain the reasons for his challenge they 

should be fresh in his mind. Further, it would be anomalous to 

hold that “an utterly nonsensical” reason would have satisfied 

the Commonwealth’s burden of production at step two of the 

Batson process, as it could have done, but that Carpenter’s 

failure to recall race-neutral reasons, or any reasons for strikes, 

21 years after the trial automatically should result in a finding 

that his strikes were the product of discriminatory intent. 

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

 More importantly, the Supreme Court in Johnson rejected 

the argument that a prosecutor’s failure to respond to a prima 

facie case “would inexplicably entitle a defendant to judgment 

as a matter of law on the basis of nothing more than an inference 

that discrimination may have occurred.” Id. at 170, 125 S.Ct. at 
65 

2417. Instead, the Supreme Court strongly suggested that 

Batson’s burden-shifting framework is simply a means of 

presenting evidence. The Court compared the Batson

framework to the burden-shifting found in Title VII employment 

discrimination cases.31 Id. at 171 n.7, 125 S.Ct. at 2418 n.7 

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-510 & 

n.3, 113 S.Ct. 2742, 2748 & n.3 (1993) (holding that 

determinations at steps one and two of the McDonnell Douglas

framework “can involve no credibility assessment” because “the 

burden-of-production determination necessarily precedes the 

credibility-assessment stage,” and that the burden-shifting 

framework triggered by a plaintiff’s prima facie case is 

essentially just “a means of ‘arranging the presentation of 

evidence’”)). In a Title VII case, even if the defendant fails to 

introduce evidence of a nondiscriminatory reason for an adverse 

employment action, it still can avoid liability if the plaintiff’s 

prima facie case “is held to be inadequate in law or fails to 

convince the factfinder.” St. Mary’s Honor Ctr., 509 U.S. at 510 

n.3, 113 S.Ct. at 2748 n.3. 

 

31 The Supreme Court established the three-step employment 

discrimination framework in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Under that burdenshifting framework, the plaintiff first has to make out a prima 

facie case of discrimination at which point the burden shifts to 

the employer to present a nondiscriminatory reason for the 

adverse employment action and, finally, the employee has to 

demonstrate that the reason the employer gives is pretextual. 

Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d 

Cir. 2009). 
66 

Here, the District Court clearly erred when it ended the 

Batson analysis at the second step of the three-step analysis even 

though, as we have indicated, Carpenter’s reasons for striking 

Sampson, Williams, and Sisco were inadequate to meet the 

Commonwealth’s burden of production as we explained the 

burden in Hardcastle. First, though Carpenter failed to recall the 

reasons for exercising three peremptory strikes to remove 

African-American jurors, Lark’s prima facie case was not as 

strong as the petitioner’s prima facie case was in Harrison. In 

contrast to the prosecutor in Harrison who struck all the AfricanAmericans from the jury, Carpenter did not strike four AfricanAmericans and had five peremptory strikes remaining at the end 

of voir dire. See United States v. DeJesus, 347 F.3d 500, 509 

(3d Cir. 2003) (“Another factor that makes the government’s 

race-neutral explanation more believable is that one Hispanic 

and three African Americans were seated in the final jury, and 

the government had three peremptory strikes remaining.”). 32 

Nor was this a case, as was Hardcastle, where a state court 

attempted to fashion race-neutral explanations without holding 

an evidentiary hearing to give the prosecutor a chance to explain 

the reasons behind the peremptory strikes. 368 F.3d at 252. 

Rather, Carpenter’s memory loss, understandable considering 

 

32 Of course, it has not escaped our attention that the 

composition of Lark’s jury--four African-Americans and eight 

Caucasians--is described on the McMahon tape as the ideal jury. 

 We also note, however, that the District Court made a factual 

finding after the evidentiary hearing that, although Carpenter 

knew McMahon, McMahon never was his senior or supervisor 

in the District Attorney’s Office and never instructed Carpenter 

on how to select a jury. Lark II, 495 F. Supp. 2d at 494. 
67 

the 21-year gap between the challenges and the evidentiary 

hearing, prevented him from offering direct reasons behind the 

exercise of his peremptory challenges. 

 In addition, the District Court found that Carpenter was 

not systematic in his note taking and that the only notes he took 

were symbols and notations he made by each juror’s name on 

the jury list. 495 F. Supp. 2d at 495. The notes were incomplete 

inasmuch as two of the jurors whom Carpenter could not recall 

striking do not appear on the juror sheets on which Carpenter 

took his notes. The other contemporaneous evidence of 

Carpenter’s state of mind is his response of “Oh. How awful” to 

Rogers’ complaint that he was striking all African-Americans 

from the panel. Carpenter explained that he was being sarcastic 

because he recognized that Rogers was attempting to raise race 

as an issue. Carpenter further testified that he used sarcasm at 

other points in the trial when he became frustrated with Rogers’ 

tactics. It is not clear whether the Court believed that 

Carpenter’s explanation of his comment was credible. 

 There were, moreover, compelling reasons for the Court 

to advance to the third step of the Batson analysis. To start with, 

the Supreme Court has suggested that Batson’s burden shifting 

framework is a means to present evidence and thus the 

prosecution’s presentation of only thin evidence at the second 

step, though perhaps damaging to its case, is not dispositive on 

the question of discriminatory intent. Johnson, 545 U.S. at 170-

71, 125 S.Ct. at 2417-18. Proceeding to the third step would 

have allowed the District Court to judge whether Carpenter’s 

strikes violated the Equal Protection Clause through juror 

comparisons, thus fulfilling the principal goal of Batson: “to 

produce actual answers to suspicions and inferences that 
68 

discrimination may have infected the jury selection process.” 

Id. at 172, 125 S.Ct. at 2418. 

 The District Court’s acceptance of Lark’s prima facie 

case as dispositive proof of Carpenter’s intent substituted 

inferences for an actual answer to the question of whether 

Carpenter discriminated in the selection of jurors. We hold that 

the District Court, by moving to the third step, could have 

weighed all of the evidence against Lark’s prima facie case. 

Instead, the District Court’s approach validated the fears of the 

respondents in Johnson: the prosecutor did not come forward 

with evidence at the second step and Lark received “judgment as 

a matter of law on the basis of nothing more than an inference 

that discrimination may have occurred.” Id. at 170, 125 S.Ct. at 

2417. 

Moreover, this case presents an unusual situation in 

which neither party may be held culpable for the delay in the 

adjudication of the Batson claim. Nevertheless, we see some 

merit to the Commonwealth’s contention that Lark should have 

been more diligent in pursuing the claim even though, as our 

discussion of procedural default demonstrates, Pennsylvania’s 

“relaxed waiver” policy created a post-conviction climate in 

which the state courts would waive procedural rules in capital 

cases. After all, following the Supreme Court of Pennsylvania’s 

affirmance of his conviction and sentence on direct appeal, Lark 

did not file any further proceedings for six years in state or 

federal court seeking relief even though his life literally was at 

stake. Furthermore, we do not fault the Commonwealth courts 

for enforcing their procedural rules to deny Lark an evidentiary 

hearing. As we noted in Hardcastle, “while the retroactive 

application of the Supreme Court’s ruling in Batson undeniably 
69 

causes many problems, we do not believe the weight of this 

burden should be borne solely by the Commonwealth.” 368 

F.3d at 261. By terminating its Batson analysis at the second 

step, the District Court shifted the entire consequences of 

Carpenter’s memory loss to the Commonwealth, and thus 

allowed Lark to obtain a writ of habeas corpus by showing only 

a prima facie case of discrimination. 

Finally, we have indicated that it is appropriate to lessen 

the state’s burden at the second step where the passage of time 

diminishes the prosecutor’s recollection of voir dire. Wilson, 

426 F.3d at 668. Indeed, the Supreme Court’s limitation of the 

retroactive application of Batson to cases on direct appeal when 

it decided that case and not applying its holding to cases on 

collateral review at the time of that decision, indicates that the 

Court envisioned problems such as those present here in 

applying Batson years after the trial. We think that proceeding 

to the third step of the Batson analysis is preferable to the 

alternative: overturning a 25-year-old jury verdict which the 

Pennsylvania Supreme Court has upheld against numerous 

challenges and which seems to have been predicated on 

substantial evidence merely because it would be possible to 

draw an inference of discrimination in jury selection. 

We hold that given the recent Supreme Court case law 

and the particular circumstances of this case, the District Court 

should have proceeded to the third step of the Batson analysis. 

 

V. CONCLUSION 

Inasmuch as we have determined that the District Court 
70 

improperly applied Batson, we will vacate its order, remand the 

case to the District Court, and direct that the Court perform the 

third step of the Batson analysis.33 Both parties make arguments 

regarding the McMahon tape’s relevance and the Baldus study’s 

reliability. However, inasmuch as the District Court explicitly 

declined to consider these issues, see Lark II, 495 F. Supp. 2d at 

503 n.12, we do not address them on this appeal, though they 

may become significant on the remand. 

 The District Court based its decision on the pattern of the 

prosecutor’s strikes and Carpenter’s inability to articulate a 

justification for three of those strikes. Any other evidence or 

arguments which relate to intentional discrimination, such as 

juror comparisons, properly are made at the third Batson step 

and we will not consider them at this time. Miller-El, 545 U.S. 

at 241, 125 S.Ct. at 2325 (“If a prosecutor’s proffered reason for 

striking a black panelist applies just as well to an otherwisesimilar nonblack who is permitted to serve, that is evidence 

tending to prove purposeful discrimination to be considered at 

Batson’s third step.”). Ultimately, it is at the third step that the 

District Court must make a finding regarding the prosecutor’s 

motivation in exercising the challenged strikes. See Bond v. 

Beard, 539 F.3d 256, 264 (3d Cir. 2008). 

For the foregoing reasons we will vacate the District 

Court’s order entered on July 5, 2007, granting Lark a 

 

33 Of course, if on the remand the District Court rejects Lark’s 

Batson contention, it should consider the other contentions that 

he advanced but that the Court had no need to address. Some of 

these contentions likely will involve complex jurisdictional, 

procedural, and substantive questions. 
71 

conditional writ of habeas corpus, and remand the case for the 

further proceedings that we have indicated in this opinion are 

required. No costs shall be allowed on this appeal. 
Lark v. Beard, 07-9004

McKee, Chief Circuit Judge, concurring 

 I join the majority opinion in its entirety, and fully 

agree with the remand to the District Court to complete the 

third step of the Batson analysis. However, I write separately 

to emphasize that although my colleagues note that “we have 

indicated that it is appropriate to lessen the state’s burden at 

the second step where the passage of time diminishes the 

prosecutor’s recollection of voir dire,” Maj. Op. 58 (citing 

Wilson, 426 F.3d at 668), we have not done so here. The 

majority properly concludes that the Commonwealth failed to 

meet its burden at step two of the Batson analysis because the 

prosecutor failed to offer race-neutral reasons for striking 

three jurors. Thus, in this case, the majority’s discussion of 

the appropriateness of lessening the state’s burden of 

production when the prosecutor has a faded memory at step 

two of the Batson analysis is purely dicta, and rightfully so. 

In Wilson, we stated: “[I]n light of the passage of time, 

we agree with the District Court that it was appropriate to 

lessen the burden of the Commonwealth at step two.” 426 

F.3d at 668. However, in Wilson, unlike here, it does not 

appear that a timely objection was made at trial to the 

prosecutor’s discriminatory exercise of peremptory strikes. 

See Abu-Jamal, 520 F.3d at 280 n.3. As the majority quite 

correctly notes, Lark’s attorney raised what was to become a 

Batson claim during voir dire. Accordingly, the prosecutor 

was immediately put on notice that he may later have to 

explain his motivations in peremptorily striking Black jurors. 

The majority suggests that the prosecutor’s burden 

must necessarily be reduced at step two when the prosecutor’s 

faded memory results from a long passage of time between 

voir dire and a Batson hearing. However, that principle 

should not apply when, as here, a timely objection is made to 

the prosecutor’s use of peremptory strikes. Under such 

circumstances, the fact finder may conclude that the claim of 

faded memory and failure to memorialize the reasons for 

certain strikes is less credible than might otherwise be the 

case. I do not suggest that this necessarily undermines a 

1 
2 

subsequent claim of failed memory. However, I also do not 

think it appropriate to suggest that the claim of failed memory 

must receive the same credibility and consideration afforded 

the prosecutor in Wilson. Rather, the District Court must be 

free to assess the credibility of the claim of failed memory 

during its step three Batson analysis on remand. 

On remand, the District Court will have to decide 

whether, and to what extent, the prosecutor’s subsequent 

claim of failed memory should be credited given the very 

unique circumstances here and the fact that he was 

immediately informed that his motivations may be examined 

at a later date.