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Bond v. Beard

August 20, 2008; as amended October 17, 2008

JESSE BOND APPELLANT (NO. 06-9002)
v.
JEFFREY BEARD; WILLIAM STICKMAN; JOSEPH MAZURKIEWICZ; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA APPELLANT (NO. 06-9003)



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 02-cv-08592) District Judge: Honorable John P. Fullam.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued April 8, 2008

Before: AMBRO, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

Table of Contents

I. Background and Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Jurisdiction and Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . 5

III. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Bond's Appeal of the Denial of his Petition to Vacate his Conviction. . . 6

1. BatsonClaim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

a. The Batson Standard. . . . . . . . . . . . . . . . . . . . . 7

b. Standard of Review for Habeas Petitions . . . . . . . . . . 8

(i) Relevant Background. . . . . . . . . . . . . . . . . 8

(ii) Whether State Courts Reached Third Step of BatsonAnalysis.. . . . . . . . . . . . . . . . . . 14

c. Analysis of Batson Claim.. . . . . . . . . . . . . . . . . . 15

(i) Evidence Presented to the State Courts. . . . . . . . 15

(A) Disproportionate Strikes. . . . . . . . . . . . 15

(B) Disparate Questioning. . . . . . . . . . . . . 16

(C) Pretextual Strikes.. . . . . . . . . . . . . . . 17

(ii) Evidence Presented to the District Court. . . . . . . 20

(A) Evidence Considered by the District Court.. . . . . . . . . . . . . . . . . 20

(B) Evidence Not Considered by the District Court.. . . . . . . . . . . . . . . . . 22

2. BrutonClaim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3. Jury-Instruction Claims. . . . . . . . . . . . . . . . . . . . . . . 26

a. Reasonable Doubt.. . . . . . . . . . . . . . . . . . . . . . 26

b. Accomplice Liability. . . . . . . . . . . . . . . . . . . . . 28

B. The Commonwealth's Appeal of the Vacation of Bond's Death Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1. Background of the Ineffective Assistance of Counsel Claim. . . . 29

a. The Penalty Phase Hearing. . . . . . . . . . . . . . . . . . 29

(i) Mitigation Testimony. . . . . . . . . . . . . . . . . 29

(ii) Penalty Phase Argument.. . . . . . . . . . . . . . . 30

b. The PCRA Hearing.. . . . . . . . . . . . . . . . . . . . . 31

c. The Pennsylvania Courts' Conclusion. . . . . . . . . . . . 37

d. Proceedings in the District Court.. . . . . . . . . . . . . . 37

2. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3. Analysis of Bond's Ineffective Assistance of Counsel Claim.. . . 41

a. Deficient Performance. . . . . . . . . . . . . . . . . . . . 41

b. Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . 43

IV. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Jai Ho Lee died in October 1991 after being shot during the robbery of the Stop and Go Deli in Philadelphia that he managed. A Philadelphia County jury convicted Jesse Bond of Lee's first-degree murder in February 1993. It returned a verdict of death and the court imposed that sentence.

Bond exhausted his state court remedies before filing a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court rejected Bond's challenges to his conviction. It granted the petition as to his death sentence, however, as it concluded that Bond had received ineffective assistance of counsel at the penalty hearing. Bond and the Commonwealth cross-appealed. We affirm the judgment of the District Court in all respects.

I. Background and Procedural History

The Commonwealth prosecuted Bond for shooting Lee when he refused to open the cash register. It prosecuted Aaron Wheeler at the same trial for serving as Bond's lookout.*fn1 The Commonwealth presented extensive evidence of Bond's guilt. Yang-Jin Kim, an employee at the Stop and Go Deli who witnessed the entire robbery and shooting from close range, identified Bond as the shooter. The prosecution presented confessions by both defendants that had been redacted to eliminate references to the other defendant by name (although Bond challenged his confession on the basis that it had been coerced and testified that he was not involved in the robbery). Beulah Sheppard also told police that she saw Bond shoot Lee, though she claimed at trial she had lied to the police.

The jury found Bond guilty of first-degree murder, robbery, criminal conspiracy, and possession of an instrument of crime. The penalty phase began the next day. The Commonwealth presented evidence in support of the aggravating circumstance that Bond murdered Lee while committing another felony. It also presented evidence of Bond's criminal history, and specifically his conviction for the robbery and murder of a restaurant owner ten days prior to the murder of Lee.*fn2 Bond attempted to establish mitigating factors by presenting evidence of his good character and his youth. The jury found three aggravating circumstances and no mitigating circumstances.*fn3 It returned a verdict of death.

The trial judge denied post-verdict motions and Bond appealed to the Pennsylvania Supreme Court, which affirmed. See Commonwealth v. Bond, 652 A.2d 308 (Pa. 1995). Bond filed a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541 et seq.*fn4 The trial judge (now sitting as the PCRA court) held a seven-day hearing on Bond's PCRA claims before denying them all. The Pennsylvania Supreme Court affirmed. See Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002).

Bond subsequently filed a petition for habeas corpus in the District Court. The Court held an evidentiary hearing regarding Bond's claims, including those of jury discrimination and ineffective assistance of counsel at the penalty phase. It denied each of Bond's guilt-phase claims but vacated the death sentence after granting Bond's petition as to the penalty phase ineffective assistance of counsel claim.

The Commonwealth appeals the grant of penalty phase habeas relief. Bond appeals the District Court's denial of his guilt-phase claims.*fn5

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 2241, 2254. We have jurisdiction over this appeal under 28 U.S.C. §§ 1291, 2253.

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits habeas relief on issues that state courts have decided on the merits. AEDPA bars habeas relief unless the state court decision is contrary to or an unreasonable application of clearly established Supreme Court law, or the state court decision involves an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1)--(2); Williams v. Taylor, 529 U.S. 362, 412--13 (2000). We may not "grant habeas corpus relief simply because we disagree with the state court's decision or because we would have reached a different result if left to our own devices." Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). The state court's application of Supreme Court precedent must have been objectively unreasonable; "[t]he 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." Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004) (internal quotation marks omitted).*fn6 A state court's factual findings are "presumed to be correct," and the habeas petitioner carries the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also Chadwick v. Janecka, 312 F.3d 597, 607 (3d Cir. 2002). We review de novo issues that the state court did not decide on the merits. Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002).

III. Discussion

A. Bond's Appeal of the Denial of his Petition to Vacate his Conviction

Bond argues that the District Court erred in denying three of his guilt-phase claims. We conclude that each argument fails.

1. Batson Claim

Bond, who is black, contends that the prosecutor used peremptory strikes in a racially discriminatory manner during jury selection. He argues that this violates the Equal Protection Clause as interpreted in Batson v. Kentucky, 476 U.S. 79 (1986). The trial court rejected each of the three Batson challenges made by defense counsel, resulting in the seating of a jury consisting of eight white and four black members.*fn7 The state courts rejected Bond's Batson claim on direct appeal and in post-conviction proceedings. The District Court deferred to the state courts under the AEDPA standard. We affirm.

a. The Batson Standard

Batson requires a three-step analysis, which the Supreme Court has articulated as follows:

First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, "[t]he second step of this process does not demand an explanation that is persuasive or even plausible"; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor, but "the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike."

Rice v. Collins, 546 U.S. 333, 338 (2006) (citations omitted).

The parties do not dispute that Bond made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race or that the prosecutor gave a race-neutral explanation for the challenge. The dispute thus turns on whether Bond carries his burden of proving purposeful discrimination. The burden at this step three is to show that it is more likely than not that the prosecutor struck at least one juror because of race. See Wilson v. Beard, 426 F.3d 653, 670 (3d Cir. 2005). At step three, "the trial judge must make a finding regarding the [prosecutor's] motivation." Bronshtein v. Horn, 404 F.3d 700, 723 (3d Cir. 2005).

b. Standard of Review for Habeas Petitions

We first address the threshold question of whether to apply the deferential AEDPA standard of review. The Commonwealth would have us answer that question "yes." Bond disagrees and asks us to apply a de novo standard of review. Their dispute centers on whether the state courts reached the third part of the Batson analysis and resolved it on the merits. If the state courts performed a step-three analysis and made a finding about the prosecutor's intent, that finding is presumed correct, see 28 U.S.C. § 2254(e)(1), and Bond is entitled to relief only if (1) the state court decision was "contrary to," or involved an "unreasonable application" of, Supreme Court precedent, id. § 2254(d)(1); or (2) the finding was unreasonable in light of the record before the state court, id. § 2254(d)(2); or (3) Bond rebutted that finding with clear and convincing evidence in the District Court, id. § 2254(e)(1). Failure to make a step-three finding, on the other hand, would render the state court's decision either "contrary to" or an "unreasonable application" of Batson, see, e.g., Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004), and we would not apply AEDPA deference. We would review the issue de novo with the exception that we would review relevant factual findings made by the District Court for clear error. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir. 2002).

(i) Relevant Background

The issue of race first arose at voir dire when the prosecutor complained about defense counsel's strikes of white venirepersons. The trial court rejected the prosecutor's complaint, noting instead that it was concerned about his (the prosecutor's) actions because he had stricken four of the five black venirepersons he had an opportunity to accept.

Defense counsel raised their first Batson challenge after the prosecutor struck the next black member of the jury pool. The court noted that the prosecutor had stricken five of six black venirepersons, but only three of their 15 white counterparts, and that "there's clearly a propensity on the Commonwealth to strike black jurors." At defense counsel's urging, the court asked the prosecutor to state his reasons for striking two of the black venirepersons (Kim Clark and Geraldine McLendon).

When the prosecutor asked if the court was ordering him to do so and finding a prima facie case, the court said, "I'm not sure what I'm going to do at this point. . . . I don't start out discussing anybody's motives, but I think it's a reasonable request. Maybe you ought to tell me that, and we'll take it from there." The prosecutor stated, with respect to Clark, that she "did not want to be here. . . . She did not seem very enthusiastic about the proceedings and merely did not want to be here. I did not like the way she related to me. Two of the white jurors I struck had the same problem. . . . I did not like the way that they came off to me. That was the reason I struck her." Turning to McLendon, the prosecutor claimed she "equivocated as far as the death penalty was concerned. I was not completely confident with her answer. She said, [']if necessary.[']" Defense counsel then asked the court to seat McLendon, arguing that she was "a lot more solid a citizen than the lady that we seated a month and a half ago [during Bond's first trial]. . . . It just would seem to be no neutral reason for striking Miss McLendon." The prosecutor argued that McLendon was similar to a white venire-person he had stricken. The court said:

I understand that. Except you've struck five out of six blacks when you've had the opportunity to, and you have struck -- you only preempted three out of 15 whites. I'm not at this point going to find that [the prosecutor] is using his peremptory challenges to exclude black jurors, and I am not going to find at this time that it is racially motivated. However, . . . I'm highly conscious of my responsibility in that regard, and that's all it is. I do want to follow the appellate court cases. . . . And right now, with all respect to you, [the prosecutor], I think if we're close in any area, it's in the circumstances of the Commonwealth's exercise. I'm not finding at this point any prima facie case. So, we'll proceed.

The next day, after the prosecutor struck five more black venirepersons, defense counsel raised their second Batson challenge. It pertained to three members of the venire (Brian Reed, William Williams and Nicole Gilyard). The court noted that the prosecutor had accepted two black venirepersons, who were selected, and a third, who was stricken by the defense, but had stricken nine of the 13 black venirepersons whom he had an opportunity to accept. Defense counsel contended that a pattern had been established, prompting the court to want to hear from the prosecutor.

The prosecutor called the choice to strike Reed "obvious" in light of Reed's apparent concerns about imposing the death penalty. The court agreed, saying "I think that's clear." The prosecutor stated that he had stricken Williams because, although otherwise "ideal," he "gave me shock" when he "equivocated" about the death penalty. Finally, with respect to Gilyard, the prosecutor noted that he was "very concerned with the nature of the close relationship she had with the person accused of a robbery. . . . The fact that she seemed to have a close relationship, saw a person every day who committed a robbery, that really turned me off and that's why I didn't want her." The prosecutor then volunteered that he thought Gilyard different from a white juror he accepted who had testified as a character witness on behalf of a co-worker accused of manslaughter. He said: "I just thought that he was a co-worker and did not have the close relationship with this individual had with the person who was accused of robbery." The trial court said "I presume you're saying . . . that their race played no part in your --," to which the prosecutor responded "[n]one whatsoever."

Bond's counsel rejoined that the aforementioned white juror also "was questionable" about whether he could impose the death penalty, and thus "the same reasons the Commonwealth is using to strike people he seems to avoid when it's a white potential juror." The court then said: "I'm not going to try and get into [the prosecutor's] mind, and I don't think it's appropriate really for you to. What I need from him is some objective statement that's racially neutral. . . . I'm satisfied that he has given it at this juncture."

The court then heard from counsel for Bond's co-defendant, who joined in Bond's counsel's argument and added that "assuming we get to the establishment of a pattern, one of the three criteria the Commonwealth must meet to overcome that presumed or assumed pattern is that the reason they give is racially neutral and that there is a basis for them and they are not just made up out of whole cloth. . . ." Co-defendant's counsel also argued that it was inconsistent for the prosecutor to strike a black venireperson because she knew an accused robber but accept a white venireperson who testified on behalf of a co-worker accused of manslaughter: "[T]hat flies in the very face of the reasons given. . . . And I think there you have a fabricated reason by the Commonwealth. There they have failed to give a racially neutral reason, and in so failing, I would say that the redress . . . is to seat that juror."

The prosecutor replied by reiterating his argument that the white venireperson's relationship with a criminal defendant did not seem to him as close as the black venireperson's comparable relationship, and also that the white juror had not ...


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