On Appeal From the United States District Court For the Eastern District of Pennsylvania
(D.C. Civil Action No. 90-cv-01415)
BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges
Filed September 19, 1996)
Respondent appeals from the grant of habeas corpus relief to Petitioner Edward Sistrunk, a state prisoner. Sistrunk's petition alleges three grounds for relief. First, he asserts that the prosecutor at his trial exercised peremptory challenges to exclude black venirepersons from the jury in violation of the Equal Protection Clause. Second, he contends that he was denied effective assistance of counsel in violation of the Sixth Amendment because his appellate counsel failed to press his Equal Protection claim on direct appeal. Finally, Sistrunk insists that other misconduct of the prosecutor at his trial deprived him of his liberty without due process of law. We will reverse the judgment granting relief.
In 1971, Sistrunk was convicted for participating in the robbery and arson of a furniture store, during which one employee was murdered and others assaulted. On state collateral review, he was awarded a new trial due to ineffective assistance of trial counsel. In 1981, he was tried again on the same charges. During jury selection, Sistrunk's new defense counsel objected to the prosecutor's use of peremptory challenges to remove black venirepersons. The court overruled the objections in accordance with the then-prevailing law of Swain v. Alabama, 380 U.S. 202 (1965). Under Swain, the defendant, in order to show a violation of the Equal Protection Clause, was required to show a pattern and practice of racial discrimination in jury selection across multiple prosecutions, evidence that was not tendered by Sistrunk during his second trial. As a result, petitioner, who is black, went to trial with an all-white jury. He was again convicted.
On direct appeal, the defendant's newly appointed appellate counsel did not pursue the jury selection, equal protection claim despite a request from petitioner that it be pursued. In April 1985, after the appellate brief had been filed but before oral argument, the United States Supreme Court granted certiorari in Batson v. Kentucky, 471 U.S. 1052 (1985). Petitioner's conviction was affirmed by the Pennsylvania Superior Court. He then sought discretionary review by the Pennsylvania Supreme Court. While his petition for review was pending, the U.S. Supreme Court decided Batson, holding that the Equal Protection Clause is violated whenever a state prosecutor exercises a peremptory challenge to exclude a venireperson from the jury because of his or her race. See 476 U.S. 79, 96-98 (1986). A year after deciding Batson, but before the Pennsylvania Supreme Court had ruled on petitioner's application for review, the United States Supreme Court decided Griffith v. Kentucky, 479 U.S. 314 (1987), which applied Batson retroactively to all cases pending on direct review at the time Batson was announced. Accordingly, if petitioner's jury selection claim had been pressed on direct appeal, and the state supreme court had granted review, Batson would have been governing precedent.
The Pennsylvania Supreme Court denied review, and Sistrunk filed a Pennsylvania Post-Conviction Relief Act (PCRA) petition raising two issues: whether he was entitled to direct relief under Batson, and whether he was denied effective assistance of appellate counsel when his court-appointed attorney failed to pursue the jury selection issue on direct appeal. The PCRA court held a hearing in 1992, during which both the petitioner and the prosecutor testified, but not the petitioner's appellate counsel. With respect to the first claim, the court held that petitioner was not entitled to relief under Batson because the issue had not been urged on appeal. The court nonetheless found that, even if Batson applied, the prosecutor had "presented credible and racially neutral reasons for each peremptory challenge she exercised," and that she "did not exercise peremptory challenges in a purposefully racially discriminatory manner." Commonwealth v. Sistrunk, Feb. Term, 1971, No. 0794-0820, slip op. at 9-10 (Pa. C.P. Sept. 13, 1993). With respect to the second issue, the court held that performance of Sistrunk's appellate counsel was not ineffective because she was not required to predict future developments in the law.
On appeal from the adverse judgment in the PCRA proceeding, the Superior Court held that because the adverse determination of the direct Batson claim by the trial court had not been appealed, that claim had been "previously litigated" within the meaning of the PCRA, and could not be a basis for relief in a PCRA proceeding. *fn1 See Commonwealth v. Sistrunk, 647 A.2d 267 (Pa. Super. 1994) (table). On the ineffective assistance claim, the court applied Pennsylvania's three-pronged ineffective assistance analysis. The first prong is a threshold test requiring the court to determine if the issue underlying the ineffective assistance claim has arguable merit. Only if the underlying claim has merit does a Pennsylvania court go on to assess whether counsel's performance was constitutionally ineffective and whether defendant was prejudiced thereby, as required by Strickland v. Washington, 466 U.S. 668, 687 (1984). See Commonwealth v. McNeil, 487 A.2d 802, 806 (Pa. 1985). The Superior Court held that the underlying Batson issue was meritless, and counsel's performance could not, therefore, be deemed ineffective. In reaching this conclusion, the Superior Court first found that Batson applied to petitioner's ineffective assistance claim, and that he had established a prima facie case under Batson. The court then deferred to the PCRA trial court's findings that the prosecutor had advanced credible and racially neutral reasons for exercising each of her peremptory challenges and that the prosecutor did not exercise her peremptories in a purposefully discriminatory manner. The Superior Court did not determine whether appellate counsel's conduct met professional standards of reasonableness. The state Supreme Court refused to grant review, see Commonwealth v. Sistrunk, 655 A.2d 987 (1995), thus exhausting Sistrunk's state remedies.
Sistrunk then pursued the present federal habeas corpus petition. Without holding a hearing, the magistrate judge issued a report and recommendation concluding that the prosecutor's use of peremptory challenges violated Batson and that Sistrunk's appellate counsel had rendered constitutionally ineffective assistance. The magistrate judge acknowledged that 28 U.S.C. Section(s) 2254 requires a federal habeas court to defer to state court findings of fact, but nonetheless held that a review of the record did not fairly support the state court's findings of fact regarding the motivation behind the state's peremptory challenges. Relying on 28 U.S.C. 2254(d)(8), the magistrate judge substituted its own fact-finding for that of the PCRA court. *fn2 The ...