The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
Petitioner Craig Saunders filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I must determine if Saunders is entitled to an evidentiary hearing to address his claim alleging the Commonwealth used its peremptory challenges to strike African-American women from the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Respondents filed a supplemental response to Saunders' petition for writ of habeas corpus, claiming an evidentiary hearing is impermissible.
For the following reasons, an evidentiary hearing is permissible and could allow Saunders to prove factual allegations that would entitle him to federal habeas relief.
On September 30, 2004, Saunders was sentenced to three-and-one-half-to-seven years imprisonment after a jury convicted him of conspiracy to commit escape of a prisoner. See Opinion at 5, Commonwealth v. Saunders, No. 2666 EDA 2006 (Pa. Super. Ct. Apr. 4, 2008) [hereinafter Super. Ct. Op.].*fn2
Following the selection of the jury, Saunders' counsel raised a Batson claim, alleging the prosecutor engaged in purposeful discrimination by using eight of nine peremptory strikes on African-American women. See Voir Dire Tr., vol. I, 165, Sept. 10, 2004 [hereinafter Voir Dire Tr.]. The trial court acknowledged there "appear[ed] to be patterns by both the Defense and the Commonwealth." Id. However, it summarily denied Saunders' Batson challenge, stating: you cannot make out a Batson[ claim] if there are four African American women on the panel [a]nd that is the dominant racial demographic on the panel. So you do appreciate that while the Commonwealth may have used its strike[s] in that fashion. Clearly, the Commonwealth has agreed to four African American females. So you understand that you[r] challenge is not addressable.... The Commonwealth is not required to respond. But your objection is noted for the record. And the statistics are preserved, in given that a Batson's challenge has been made. These sheets -- my sheets, which are controlling sheets will not be destroyed. They will in fact be an exhibit in the quarter sessions file and sealed.... [T]hey will be sealed for subsequent[i]al appellate review [sic] should that be necessary.... [T]his issue is preserved for the future.
Saunders filed an untimely post-sentence motion, which was denied, and an untimely notice of appeal, which was dismissed. See Super. Ct. Op. at 12-13. Saunders' direct appeal rights were reinstated nunc pro tunc after he filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Id.
Saunders filed a pro se appeal alleging: (1) the evidence was insufficient to sustain his conviction; (2) the Commonwealth used its challenges to strike African-American women from the jury in violation of Batson v. Kentucky; (3) the trial court denied Saunders his right to confrontation by improperly limiting his cross-examination of an expert witness; (4) Saunders had a constitutional right to be indicted by a grand jury; and (5) Saunders' sentence was in violation of Blakely v. Washington, 542 U.S. 296 (2004). Id. at 1; Brief on Behalf Appellant at 5, 8-26, Commonwealth v. Saunders, No. 2666 EDA 2006 (Pa. Super. Ct. Oct. 4, 2007).
The Superior Court affirmed on April 4, 2008. See Super. Ct. Op. at 1. The Superior Court's analysis of Saunders' Batson claim recited the trial court's Pa. R.A.P. 1925(a) opinion and found no abuse of discretion. See Super. Ct. Op. at 11-12 (quoting Opinion at 6, Commonwealth v. Saunders, 2666 EDA 2006 (Ct. Com. Pl. Phila. Sept. 19, 2007) [hereinafter 1925(a) Op.]). The trial court's Rule 1925(a) opinion stated that Saunders' Batson claim was denied at trial after a full review. See 1925(a) Op. at 6 (citing Voir Dire Tr. 165-66). It found the Commonwealth had provided a race-neutral basis for each strike, id. (citing Voir Dire Tr. 162-65); four of ten jurors chosen were African-American females; and the dominant race and gender of the voir dire panel were African-American females. Therefore, the court held, Saunders could not make a prima facie Batson case and had no viable claim of purposeful discrimination. Id.
Saunders filed a petition for allowance of appeal to the Pennsylvania Supreme Court raising two issues: his Batson claim and a Confrontation Clause claim. See Petition for Allowance of Appeal at 5-9, Commonwealth v. Saunders, 258 EAL 2008 (Pa. Apr. 30, 2008) [hereinafter Petition for Allowance of Appeal]. His allowance of appeal was denied on September 30, 2008. See Commonwealth v. Saunders, 958 A.2d 1047 (Pa. 2008) (table). Saunders did not file a petition for writ of certiorari with the United States Supreme Court. See State Docket at 32.*fn3
On May 4, 2009, Saunders filed a timely federal Petition for Writ of Habeas Corpus, alleging: (1) the Commonwealth struck African-American women from the jury in violation of Batson; (2) the trial court improperly denied his right to confrontation by limiting Saunders' cross-examination of an expert witness; (3) the evidence was insufficient to sustain his conviction; (4) Saunders had a constitutional right to be indicted by a grand jury; and (5) Saunders' sentence was in violation of his Sixth Amendment right to a trial by jury. See Petition at 9. Saunders also requested copies of transcripts of recorded conversations and Daniel Olson's reports and notes because they are relevant to his sufficiency of evidence claim. See Memorandum of Law at 2, Saunders v. Tennis, No 09-1916 (E.D. Pa. May 4, 2009).
Because Saunders' second PCRA petition is still pending, on June 19, 2009, I recommended Saunders' habeas corpus petition be dismissed without prejudice explaining any second or successive federal habeas petition will be dismissed unless Saunders satisfies the strict requirements of § 2244(b)(2). See Report and Recommendation at 1-6, Saunders v. Tennis, No. 09-1916 (E.D. Pa. June 19, 2009). However, Saunders affirmatively asked the Court to rule on his May 4, 2009 habeas petition. See Order, Saunders v. Tennis, No. 09-1916 (E.D. Pa. Sept. 3, 2009); Written Objections to the Report and Recommendation, Saunders v. Tennis, No. 09-1916 (E.D. Pa. June 29, 2009).
Upon review of Saunders' habeas petition and respondents' brief and attachments, I found an evidentiary hearing would potentially advance Saunders' Batson claim and appointed counsel, Peter D. Hardy. See Order, Saunders v. Tennis, No. 09-cv-1916 (E.D. Pa. Mar. 18, 2010); Order, Saunders v. Tennis, No. 09-cv-1916 (E.D. Pa. Mar. 3, 2010). On April 14, 2010, respondents filed a supplemental response, claiming an evidentiary hearing is impermissible because Saunders: (1) failed to develop the factual basis of his Batson claim in state court proceedings; and (2) cannot demonstrate he would be entitled to habeas relief even if his factual allegations are true. ...