ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Court Judge: Honorable John P. Fullam (D.C. No. 00-cv-6115) (D.C. No. 01-cv-3915)
The opinion of the court was delivered by: Alito, Circuit Judge
Argued: September 14, 2004
Before: SCIRICA, Chief Judge, ALITO, and AMBRO, Circuit Judges
This is an appeal from a District Court order denying Curtis Brinson's petition for a writ of habeas corpus. Brinson was convicted in state court in Pennsylvania on one count of murder in the first degree and a lesser offense and was sentenced to imprisonment for life. The District Court held – and we agree – that his federal habeas petition was timely because it was proper to apply the doctrine of equitable tolling to the period of time following the District Court's erroneous dismissal of Brinson's prior habeas petition. Contrary to the District Court, however, we hold that Brinson made out a prima facie case of a violation of Batson v. Kentucky, 476 U.S. 79 (1986), and we therefore reverse the order of the District Court and remand for an evidentiary hearing.
In April 1985, Arthur Johnson was shot and killed in the bathroom of a Philadelphia nightclub. Brinson, an African American, was arrested for the crime, and the selection of the jury for his trial began on April 28, 1986, two days before the Supreme Court of the United States announced its decision in Batson.
In Batson, the Supreme Court set out a three-step procedure for determining whether a prosecution violated the Equal Protection Clause by peremptorily striking potential jurors based on race.*fn1 First, the party asserting the claim must make out a prima facie case. See 476 U.S. at 96. In order to do this, the party must point to facts that "raise an inference" that a challenged strike was based on an impermissible ground. Id. Second, if a prima facie case is established, the party who exercised the challenge must "come forward with a neutral explanation." Id. Third, if a neutral explanation is offered, the trial judge must make a finding as to whether the contested peremptory was based on an impermissible ground. Id. at 98.
On May 2, 1986 – after Brinson's jury had been selected but before the trial began – his attorney objected that the prosecutor had violated Batson by striking prospective African American jurors based on race.*fn2 Brinson's attorney stated that the prosecutor, Jack McMahon, had "exercised fourteen peremptory challenges, thirteen for blacks." He also asserted that McMahon "seldom, if ever, questioned blacks prior to exercising his peremptory challenges." In response, McMahon did not deny using 13 peremptories against blacks, but he stated that he did not remember the race of each juror whom he had peremptorily challenged, that he recalled striking both African Americans and whites, that he had not used all of his allotted strikes, and that three African Americans had been selected for the jury. At this point, neither the trial judge nor the attorneys had actually read Batson, and the trial judge announced that he would not rule on the defense objection prior to trial but that the issue could be raised in a post-trial motion. The case was then tried, and Brinson was found guilty of murder in the first degree and possession of an instrument of crime. He was sentenced to life imprisonment.
Brinson again raised the Batson issue in a post-trial motion. At the hearing on the motion, Brinson's attorney repeated his previous assertions about McMahon's use of peremptory challenges, and McMahon again disclaimed any memory of how many strikes he had used against African Americans, stating that "[defense counsel] says I used thirteen strikes on Blacks and one on [a] White. I see nothing in the record to indicate that. I do not have any recollection of that whatsoever. I am sure the Court does." To this, the trial judge responded: "Yes, I do." McMahon then stated: "Be that as it may, I know I accepted the Black that the Defense struck."
The trial judge orally rejected Brinson's Batson argument on the ground that Batson had "not yet been accepted by this Commonwealth." The trial judge appears to have believed that he was still bound by pre-Batson Pennsylvania court decisions rejecting arguments similar to the one that the Supreme Court of the United States accepted in Batson.
The trial judge died before he could write an opinion addressing Brinson's post-trial motions, and the matter was reassigned to another judge. In his opinion on these motions, the new judge wrote the following with respect to Brinson's Batson argument:
In the instant case the record indicates there were at least three black persons on the jury and the selection of the jury was completed with the prosecutor still having six [peremptory] strikes.... Thus, the record does not show any deliberate, purposeful exclusion of black persons from the jury in this case. Unfortunately, the trial judge died before writing his Opinion, and, therefore, we are without the benefit of his personal observations as he conducted the voir dire. However, we have, as was stated [in Batson*fn3 ], confidence, based upon the experience, character and reputation of [the trial judge], that he would not allow such a purposeful rejection of black persons solely by [peremptory] challenges as to deny this Defendant a fair jury trial.
On direct appeal, Brinson again raised the Batson issue, but the Superior Court affirmed Brinson's conviction. Invoking Commonwealth v. McKendrick, 514 A.2d 144 (1986), the Superior Court rejected the Batson claim on the ground that "where the victim, the perpetrator and witnesses are black, a prima facie case of racial discrimination is not present under Batson...." The Superior Court continued:
In addition, the record establishes that three of the jurors in this case were black, the defense struck blacks, and the Commonwealth had six peremptory challenges left following the close of jury selection.... Accordingly, appellant has failed to establish that the prosecutor exercised peremptory challenges to remove black venire ...