claim has been procedurally defaulted and he no longer has any remedies available on either direct or collateral review in the state court system. Petitioner contends, however, that he should now be entitled to federal review of this claim because it was only through the very recent dissemination of the district attorneys' office's training videotape that he learned that a claim under Batson existed.
To parlay this contention into a ground for relief, however, petitioner must show that some external impediment prevented this claim from being constructed or raised at an earlier stage of the proceedings. See : Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2647-2648, 91 L. Ed. 2d 397 (1986). In addition, petitioner must also show not merely that the errors at trial created a possibility of prejudice but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. Id., 477 U.S. at 494, 106 S. Ct. at 2648. See Also : United States v. Frady, 456 U.S. 152, 169, 102 S. Ct. 1584, 1595, 71 L. Ed. 2d 816 (1982). Stated otherwise, while federal courts at all times retain the power to look beyond state procedural forfeitures, the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both "cause" for non-compliance with the state rule and "actual prejudice resulting from the alleged constitutional violation." Smith v. Murray, 477 U.S. 527, 533, 106 S. Ct. 2661, 2665-2666, 91 L. Ed. 2d 434 (1986) citing, Wainwright v. Sykes, 433 U.S. 72, 84, 97 S. Ct. 2497, 2505, 53 L. Ed. 2d 594 (1977).
It is true that one such objective, external factor which has been held sufficient to excuse procedural default is the novelty of a constitutional issue at the time of the state court proceeding. Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 2909, 82 L. Ed. 2d 1 (1984). The novelty of a claim will constitute cause sufficient (when joined with actual prejudice) to excuse procedural default if the legal basis for the claim was not reasonably available to counsel or if petitioner's counsel lacked the tools to construct the constitutional claim. Pitts v. Cook, supra, 923 F.2d at 1572.
In carefully scrutinizing Mr. Peterkin's motion to amend, although similar to a "novel claim" argument, he instead assigns as cause for his procedural default and the more than ten-year delay in challenging the prosecutor's use of peremptory challenges, the recently disclosed information about the training videotape made by former Assistant District Attorney Jack McMahon.
To reiterate, however, under Batson, petitioner must establish a prima facie case of purposeful discrimination in the exercise of peremptory challenges by showing that the prosecutor used peremptory challenges to remove from the venire a member or members of a particular racial group during the course of trial. Deputy v. Taylor, 19 F.3d 1485. 1492 (3rd Cir. 1994), cert. denied, 512 U.S. 1230, 114 S. Ct. 2730, 129 L. Ed. 2d 853 (1994). In determining whether a defendant has presented a prima facie Batson issue, the following five factors are properly examined: (1) the number of members of the cognizable racial group in the venire group from which the petit jury is chosen; (2) the nature of the crime; (3) the race of the defendant and the victim; (4) the pattern of strikes against racial group jurors in the particular venire; and (5) the prosecutor's statements and questions during selection. Id., citing Jones v. Ryan, 987 F.2d 960, 970 (3rd Cir.1993).
In reviewing Mr. Peterkin's motion to amend in accordance with the above-stated principles, we find that it neither alleges any facts which could support a finding that he could make out a prima facie case under Batson nor does it allege how this videotape caused petitioner to be prejudiced in his trial. With the exception of a quick reference to the nature of the crime and to petitioner's race, nothing at all is pled as to the first, fourth and fifth factors in the Jones /Deputy test.
Instead, petitioner asks this Court to assume prejudice from the mere existence of the videotape. Petitioner does not allege that the prosecutor in this case was trained through the use of the videotape and he does not aver that the videotape was even in existence at the time he was tried in 1981. Moreover, and even accepting petitioner's argument as true that the prosecutor in this case was so trained, that fact alone does not automatically translate to a finding that he adhered to that training in selecting the jury in this case. Indeed, the caselaw is replete with examples of instances in which law enforcement personnel have failed to adhere to their training. See, e.g. : City of Canton v. Harris,489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).
Simply stated, as there is nothing from which a causal nexus between the videotape and the selection of petitioner's jury in this case can be inferred, we cannot find that Mr. Peterkin has satisfied the "cause and prejudice" criteria for excusing procedural default or that a prima facie case of discrimination under Batson could be established. Granting petitioner leave to amend his petition for habeas corpus relief would therefore be futile under Fed.R.Civ.P 15 and, for this reason, his motion to do so shall be denied pursuant to the attached order.
AND NOW, this 16Th day of December, 1997, upon consideration of Petitioner's Motion to Amend his Petition for Habeas Corpus and Respondents' Answer thereto, it is hereby ORDERED that the Motion to Amend is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.