No: 01-9006 DONALD HARDCASTLE v. Martin Horn, Commissioner, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No: 01-9006
___________
DONALD HARDCASTLE
v.
MARTIN HORN, COMMISSIONER,
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS;
GEORGE R. WHITE,
SUPERINTENDENT OF THE STATE
CORRECTIONAL INSTITUTION
AT PITTSBURGH; AND JOSEPH P.
MAZURKIEWICZ,
SUPERINTENDENT OF THE STATE
CORRECTIONAL INSTITUTION AT
ROCKVIEW,
Appellants
___________
_________________
Appeal from the United States
District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-03028)
District Judge: Honorable John R.
Padova
Argued on May 20, 2003
Before: SCIRICA, Chief Judge,
NYGAARD and ROTH, Circuit Judges
(Filed May 14, 2004)
Thomas W. Dolgenos (Argued)
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellants
Robert B. Dunham (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Attorney for Appellee
OPINION
ROTH, Circuit Judge:
In 1982, Donald Hardcastle was
charged by the Philadelphia District
Attorney’s Office with murder, arson, and
burglary. He was tried before a jury in the
Court of Common Pleas, convicted on all
counts, and sentenced to death. In both
his direct appeal and state collateral
review proceedings, Hardcastle asserted,
inter alia, that the assistant district attorney
who conducted the jury selection at his
trial exercised her peremptory strikes in a
racially discriminatory manner, thus
violating the constitutional principle
recognized by the Supreme Court in

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Batson v. Kentucky, 476 U.S. 79 (1986),
and made applicable to Hardcastle’s then-
pending direct appeal by Griffith v.
Kentucky, 479 U.S. 314 (1987). The
Pennsylvania Supreme Court twice
rejected Hardcastle’s Batson claim and
affirmed his conviction.
Hardcastle then filed a petition for
a writ of habeas corpus with the U.S.
District Court. The District Court
concluded that the Pennsylvania Supreme
Court’s ruling was both contrary to and an
unreasonable application of Batson,
granted Hardcastle’s petition, and ordered
a new trial. For the reasons set forth
below, we hold that the Pennsylvania
Supreme Court’s rejection of Hardcastle’s
claim on the record before it was indeed an
objectively unreasonable application of
Batson. Ho we ver, be caus e the
Commonwealth of Pennsylvania had
requested, and been denied, a chance to
present evidence in support of its
peremptory strikes of African-Americans
from the venire, it is entitled to a hearing
to present that evidence. We will,
therefore, remand this matter to the
District Court to hold such a hearing and
to then reexamine the application of
Batson to Hardcastle’s claim.
I. Factual Background and Procedural
History
The following material facts are drawn
from the opinions issued in this case by the
Pennsylvania Supreme Court and the
United States District Court for the Eastern
Dis trict of P enn sylvan ia. S e e
Commonwealth v. Hardcastle, 546 A.2d
1101 (Pa. 1988) (direct appeal
p r o c e e d i n g s ) ( H a r d c a s t l e I ) ;
Commonwealth v. Hardcastle, 701 A.2d
541 (Pa. 1998) (appeal of post-conviction
relief proceedings) (Hardcastle II);
Hardcastle v. Horn, No. 98-CV-3028,
2001 WL 722781 (E.D. Pa. June 27, 2001)
(federal habeas corpus proceedings)
(Hardcastle III). They are not in dispute.
On May 23, 1982, the bodies of
Joseph Gregg and Ernestine Dennis were
found in Gregg’s Philadelphia home. Both
had received in excess of thirty stab
wounds and Gregg’s home had been set on
fire. Several neighbors indicated that they
had seen Hardcastle near Gregg’s home
around the time of the murders. An arrest
warrant was issued and Hardcastle
surrendered to the police on May 25. He
was subsequently charged with burglary,
two counts of arson, and two counts of
murder.
Hardcastle is an African-American.
During the course of jury selection at his
trial, the prosecutor used her peremptory
strikes, of which she had a total of twenty,
to remove twelve of the fourteen African-
American members of the venire. The jury
ultimately empaneled to hear the case
contained only one African-American.
Hardcastle’s trial counsel did not object to
t h e C o m mo n we alth ’ s p e r em p t o ry
challenges during the five-day voir dire,
and the trial court therefore did not require
the prosecutor to state the bases for her
strikes on the record. However, following
voir dire, Hardcastle’s counsel moved for
a mistrial on the grounds that the
prosecutor’s use of the peremptory

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

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

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

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

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

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

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

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

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

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

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13
venirepersons, but chose not to do so,
cannot demonstrate the absence of
discriminatory intent in the striking of the
other twelve African-Americans from the
venire. See Jones v. Ryan, 987 F.2d 960,
972-73 (3d Cir. 1993) (rejecting a similar
argument and noting that “[w]e doubt the
significance of including a single black on
the panel if, at the same time, the
government used most of its peremptory
challenges to strike blacks w ith
backgrounds similar to the white jurors
ultimately selected.”) (quoting Clemons,
843 F.2d at 747); see also Clemons, 843
F.2d at 747 (holding that the striking of “a
single black juror could constitute a prima
facie case even when blacks ultimately sit
on the panel and even when valid reasons
exist for striking other blacks.”). Thus,
absent further justification for the striking
of Venirepersons 11 and 12, we cannot
conclude that the Pennsylvania Supreme
Court’s decision to proceed to step three in
justifying the strikes of Venirepersons 11
and 12 was an objectively reasonable
application of Batson.
C. Step Three
We further hold that the failure of
the Pennsylvania Supreme Court to
conduct an adequate analysis at step three
with respect to the challenged strikes of
Venirepersons 1-10 also precludes a
finding that its application of Batson was
objectively reasonable. Step three requires
a court conducting a Batson inquiry to
“address[] and evaluate[] all evidence
introduced by each side (including all
evidence introduced in the first and second
steps) that tends to show that race was or
was not the real reason and determine[]
whether the defendant has met his burden
of persuasion.” Riley, 277 F.3d at 286
(citation and internal quotations omitted).
In Riley, we placed particular emphasis on
the state courts’ failure to consider all of
the evidence before them in determining
whether the justifications offered by the
prosecutor were pretextual:
The state courts in this case
rejected Riley’s Batson
claim without discussing
any of the ample evidence
that throws into question the
explanations offered by the
prosecutor for striking two
of the black jurors and there
is nothing relevant in the
record that might otherwise
support the state courts’
decisions. Thus, we do not
know why the state courts
f o u n d t h e S t a t e ’ s
explanation was plausible
and credible in light of the
other evidence. It is
because of the state courts’
omission of a requirement
under the third step of the
Batson inquiry – of an
ultimate determination on
the issue of discriminatory
intent based on all the facts
and circumstances – that the
State’s argument founders.
Id. at 287 (italicized emphasis added).
After close analysis of the record,

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

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15
argument before the en banc Court of
Common Pleas that she could not recall
the precise bases for the challenged strikes
nor the passage of time mandates a
contrary result. As we have previously
held:
[t]here will undoubtedly be
p o s t - co n v i c t i o n r e l i e f
proceedings in which the
state, by reason of death,
absence, or faded memory,
will be unable to produce a
prosecutor with a specific
recollection of the reason
for a challenge alleged to
violate Batson. Courts
frequently are required to
draw inferences f rom
circumstantial evidence
rega r d i n g 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.
Johnson, 40 F.3d at 667. Indeed, we have
expressly rejected the notion that our prior
precedent mandates relief in situations in
which the prosecutor concedes that he or
she cannot remember the bases for a
challenged strike:
[Harrison v. Ryan, 909 F.2d
84 (3d Cir. 1990),] is
distinguishable . . . because
the prosecutor in that case
offered no explanation for
excluding one of the six
black venirepersons he had
struck from the jury, but
simply asserted at a hearing
before a federal magistrate
that he could not recall his
reasons. It was based on the
prosecutor’s assertion that
he did not know the reason
h e s t r u c k a b l a c k
venireperson, coupled with
the absence of any other
explanation, that this court
affirmed the order for a new
trial. We do not read
Harrison to suggest that a
state cannot be permitted to
reconstruct the prosecutor’s
rationale for excluding a
juror during a later Batson
hearing when the prosecutor
adm its to having no
r e c o l l e c t i o n o f h i s
motivations at the time.
Johnson, 40 F.3d at 667 n.4 (emphasis
added). Our conclusion that such
difficulties in reconstructing voir dire do
not foreclose an evidentiary hearing is
further supported by the Supreme Court’s
resolution of similar situations. See
Miller-El v. Cockrell, — U.S. —, 123 S.
Ct. 1029, 1042-43 (2003) (noting that
evidence presented at a Batson hearing
two years after voir dire “was subject to
the usual risks of imprecision and
distortion from the passage of time,” but
nevertheless concluding that the Court of

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16
Appeals erred in refusing to grant a
certificate of appealability); Batson, 476
U.S. at 133 n.12 (remanding for a hearing
despite the petitioner’s concession that it
would be all but impossible to reconstruct
the prosecutor’s rationale for the
challenged strikes) (Burger, C.J.,
dissenting).
Thus, while the retroactive
application of the Supreme Court’s ruling
in Batson undeniably causes many
problems, we do not believe the weight of
this burden should be borne solely by the
Commonwealth. It is difficult in the
context of a pre-Batson trial to fault
Hardcastle’s counsel for failing to request
an evidentiary hearing following voir dire.
It is equally unfair to require the
Commonwealth to retry Hardcastle
without first being provided with the
opportunity to defend its conduct in the
prior trial. Given the Batson Court’s
emphasis on the subjective intent of the
prosecutor, we find it difficult to imagine
a situation in which it would be
appropriate to take the extraordinary step
of granting habeas corpus relief without
first providing the state with a hearing at
which it could offer evidence in support of
the challenged strikes if, as in this case, it
desires to do so.
Finally, having concluded that
further proceedings are required, we must
address the parties’ arguments as to the
appropriate forum. Although both sides
request a hearing as an alternative remedy,
Hardcastle seeks to have the matter
handled by the District Court while the
Commonwealth asserts that the state courts
must be given the first opportunity to rule
on the new evidence submitted.
As we have previously held, “[w]e
do not have authority under the federal
habeas statutes, 28 U.S.C. § 2241 or §
2254, to remand a habeas corpus petition
to a state court for an evidentiary hearing.”
Keller v. Petsock, 853 F.2d 1122, 1129 (3d
Cir. 1988). Federal district courts, by
contrast, may conduct such hearings. See
id.6 Moreover, even if we were able to
remand directly to the state court, neither
this Court nor the Supreme Court has held
“that the state courts should, after having
foregone the opportunity to hold an
evidentiary hearing and resolve the issue,
be given another opportunity to do so.” Id.
Therefore, to the extent that the
Commonwealth asserts in its post-
argument submission that we should grant
the writ conditioned upon a hearing in
state court, we reject this argument for the
same reasons we declined to do so in
Keller: “Such a remedy would . . .
6We note that AEDPA “amended the
federal habeas statute in such a way as to
limit the availability of new evidentiary
hearings on habeas review.” Campbell v.
Vaughn, 209 F.3d 280, 286 (3d Cir.
2000) (citing 28 U.S.C. § 2254(e)(2)).
However, even post-AEDPA, evidentiary
hearings are permitted where, as here, the
“state courts fail[] to resolve the factual
issue on which [the petitioner’s] habeas
petition rests.” Id. In such cases “the
failure to develop the factual record
would not be [the petitioner’s] fault.” Id.
at 286-87.

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17
contravene the policy underlying the
exhaustion requirement. State courts are
certainly entitled to have the first
o p p o r t u n i t y t o r e v i e w f e d e r a l
constitutional challenges to state
convictions. There is no requirement,
however, that they be given more than one
opportunity to adjudicate these claims.”
Id. at 1130 (citation omitted). Here, as in
Keller, Hardcastle “has given the state
courts their first opportunity, and they did
not seize it. Therefore the federal district
court must become the trier of fact.” Id.
(footnote omitted). Thus, we will remand
this matter to the District Court for further
development of the evidentiary record with
respect to Hardcastle’s Batson claim, and,
if this claim ultimately fails, for
consideration of the remaining issues
presented in his habeas petition.
V. Conclusion
For the foregoing reasons, we will
vacate the final judgment of the District
Court and remand the matter for further
proceedings consistent with this opinion.
Nygaard, J., dissenting.
I agree with most of the analysis
and conclusions reached by the majority in
its well-crafted and thorough opinion. I
disagree, however, with the remedy. The
Commonwealth (Appellant) argued before
us that “the Pennsylvania court should be
allowed to conduct a Batson hearing if any
is deemed necessary.” (emphasis added).
I conclude that a hearing is not only
unnecessary, but is unwarranted.
In its opinion, the District Court
concluded that:
The proper relief in this case
is a new trial with the
opportunity to retry the
petitioner before a properly
selected jury. A new trial is
e s p e c i a l l y a p p r o p r i a t e
where, as here, the passage
of time makes a new
evidentiary hearing on the
petition impossible. Nearly
twenty years have passed
since Petitioner’s trial, such
a length of time that even
R e s p o n d e n t s [ t h e
Commonwealth] admit[s]
that an evidentiary hearing
on Petitioner’s Batson claim
is unlikely to be helpful.7
7Also shortly after the trial and
conviction, and on appeal to the three-
judge Common Pleas panel, the
prosecutor explained that she was unable
to recall why she struck the African-
American juror:

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18
I find that the District Court’s reasons and
reasoning are compelling and supported by
the record. Hence, and essentially for the
reasons given by the District Court, I
respectfully dissent.
The Appellant argues that we
should remand for a Batson hearing. I
believe, however, that the Appellant is
judicially estopped from presenting its
“actual reasons,” given the district
attorney’s admission during the direct
appeal that she could not remember her
reasons, nor could she reconstruct the
record. Our opinion in Johnson v. Love,
40 F.3d 658 (3d Cir. 1994), raises an
interesting option for remand in certain
cases for a hearing, allowing the state to
attempt to meet its burden through
circumstantial evidence of the prosecutor’s
intent. I do not think that works well here.
We have the entire record before us, and it
is clear that the prosecutor discriminated
by striking African-Americans. The
record is devoid of her intent. Moreover,
although the Appellant provides many
reasons why any particular juror might
have been struck, it has not proffered any
evidence of why they were or anything that
would indicate a hearing on circumstantial
evidence of actual reasons or intent would
be productive.
I would affirm the District Court’s
decision to issue the writ and grant
Petitioner Hardcastle a new trial.
How can I possibly now
tell you why I challenged
anybody? I don’t think that
now, some six months
after, I can tell you why I
challenged somebody then.
I don’t know how we can
possibly have a hearing as
to why I challenged a
particular juror six months
later.
Similarly, the prosecutor argued that it
was impossible for her to reconstruct the
record at that stage.

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