The opinion of the court was delivered by: Baylson, J.
On May 4, 2009, Craig Saunders filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, naming as Respondent Franklin J. Tennis, Superintendent of Pennsylvania State Correctional Institution at Rockview, and raising five grounds for relief (ECF No. 1):
1. Violation of Batson v. Kentucky, 476 U.S. 79 (1986), regarding the Commonwealth's use of peremptory strikes;
2. Insufficiency of the evidence to sustain conviction;
3. Violation of Confrontation Clause by improperly limiting cross-examination of expert;
4. Violation of right to be indicted by grand jury; and
5. Sentencing violation, pursuant to Blakely v. Washington, 542 U.S. 296 (2004).*fn1
The petition was referred to Magistrate Judge Timothy R. Rice for a Report and Recommendation (R & R) on June 10, 2009 (ECF No. 3). Finding that state court proceedings under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541-9546, had not terminated, Magistrate Judge Rice issued an R & R recommending that the petition be dismissed without prejudice unless Saunders were to affirmatively seek judicial resolution of his current habeas petition (ECF No. 4). Saunders requested that he be allowed proceed on his exhausted claims (ECF No. 5), and this Court ordered the case remanded to Magistrate Judge Rice for that purpose (ECF No. 6). The Commonwealth filed a response to the petition on January 15, 2010 (ECF No. 16). On March 19, 2010, Magistrate Judge Rice granted Saunders's application to proceed in forma pauperis and appointed counsel (ECF No. 20).On September 30, 2010, following a September 8, 2010 evidentiary hearing on Saunders's Batson claim, Magistrate Judge Rice issued an R & R that this petition for writ of habeas corpus be denied and finding no probable cause for a certificate of appealability (ECF. No. 38).
Between September 7 and 30, 2004, the Honorable Renee Cardwell Hughes of the Philadelphia Court of Common Pleas presided over a jury trial that resulted in Saunders's conviction of one count of conspiracy to commit escape of a prisoner. Commonwealth v. Saunders, 2666 EDA 2006, at *1 (Pa. Ct. Comm. Pl. Sept. 13, 2007) (ECF No. 16-1). Saunders was tried along with co-defendants Kevin Holmes and Reginald Nesmith. Id. at *2.
The Pennsylvania Superior Court outlined the facts of the case in its opinion affirming Saunders's conviction on a nunc pro tunc appeal. Commonwealth v. Saunders, 946 A.2d 776, 779 (Pa. Super. 2008). The Superior Court opinion relied largely on the facts as described in the opinion by Judge Hughes denying Saunders's post-trial motions, which itself draws heavily from the trial transcripts. See Saunders, 2666 EDA 2006.
The evidence at trial, taken in the light most favorable to the prosecution, showed that Saunders had ongoing phone contact and visitations with a prisoner named Selwyn Brown, during which they used a code common to the "Five-Percent Nation"*fn2 to communicate and that Saunders and Brown used this code to develop a plan for Brown to escape from prison.
The trial evidence showed that on July 2, 2001, while Brown appeared in Philadelphia Family Court, at 1801 Vine Street, witnesses alerted police to the presence of men with guns walking down 18th Street. Id.; Sept. 14, 2004 Trial Transcript at 62-63, 82. When the police arrived, they found four men standing by a tan automobile at 18th and Wood Streets and a chase ensued. Id. at 779-80; Sept. 22, 2004 Tr. at 61-62. The automobile was left running at 18th and Carlton Streets and was later found to be registered to Brown. Id. at 780; Sept. 22, 2004 Tr. at 61-62, 126. At least one gun was retrieved at the scene. Id.; Sept. 20, 2004 Tr. at 55, 58; Sept. 22, 2004 Tr. at 20.
At trial, the prosecution called two experts. Daniel Olsen, supervising forensic examiner in the cryptanalysis and racketeering records unit for the Federal Bureau of Investigation, testified as an expert in code deconstruction. Id. at 779. George Corbiscello, Senior Investigator for the Monmouth County Sheriff's Office, testified as an expert on the Five-Percent Nation and its oral and written communications, including on a form of communication called the "Supreme Alphabet." Id.; Sept. 21, 2004 Tr. at 113-55. Both experts translated the conversations between Saunders and Brown. Id.; Sept. 20, 2004 Tr. at 244-65; Sept. 21, 2004 Tr. at 134-55. The conversations between Saunders and Brown, as interpreted by expert testimony, revealed that Saunders had spoken with Brown in person and on the telephone on multiple occasions and had promised Brown to assist in Brown's escape from Family Court. Id.; Sept. 15, 2004 Tr. at 31-32, 36, 51-52; Sept. 20, 2004 Tr. at 246-51; 268-727. The plan called for a car to be waiting on 18th Street for Brown to exit Family Court and for men with guns to confront the sheriffs, secure Brown, and escape in the waiting car. Id.; Sept. 14, 2004 Tr. at 196-97.
On September 30, 2004, following his conviction by the jury on the conspiracy charge, Saunders was sentenced to 3.5 to 7 years imprisonment.*fn3
Pursuant to the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), a federal court is precluded from granting habeas relief on any claim "adjudicated on the merits" unless the state court's adjudication (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States"; or "was based on an unreasonable determination of the facts in light of the evidence in the State court proceeding." 28 U.S.C. § 2254(d). A federal court exercising habeas review "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U.S. 362, 411 (2000). To grant the writ, the federal court must conclude that "the state court's application was unreasonable." Williams v. Beard, 637 F.3d 195, 204 (3d Cir. 2011) (citing Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)).
In ruling on objections to the R & R of a United States Magistrate Judge, this Court reviews de novo only those R & R findings to which a petitioner specifically objects. Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (citing United States v. Peretz, 501 U.S. 923 (1991)); 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72. The district court may accept, reject, or modify in whole or in part the Magistrate's findings. 28 U.S.C. § 636(b)(1). Reliance on the findings of the Magistrate is permitted to the extent the district court deems proper. United States v. Raddatz, 447 U.S. 667, 676 (1980).
Saunders, who is an African American male, argues that the Commonwealth violated his rights under the Fourteenth Amendment by exercising its peremptory challenges on the basis of race and/or gender in violation of Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court held that "deliberate or purposeful exclusion of African Americans from jury service violates the Equal Protection clause." Williams, 637 F.3d at 205 (citing Batson, 476 U.S. at 84).*fn4
Pursuant to Batson, the Court applies a three-step burden-shifting analysis to Saunders's claim. At step one, "a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race." Williams, 637 F.3d at 205 (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). If a defendant establishes a prima facie case, the burden shifts to the Commonwealth at step two to offer race- and/or gender-neutral bases for striking the juror in question. Id. Finally, "in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Id.
a. State Court Proceedings
The record reflects that the trial court conducted voir dire on September 9 and 10, 2004. The original venire consisted of 25 individuals, 13 of whom were African American women. At the end of the individual voir dire on September 10, 2004, Tr. at 162, the transcript states "(off the record)." Upon resuming on the record, Judge Hughes reviewed the race and gender of each stricken juror and of the ten jurors seated up to that point. At that time, the prosecutor, James Berardinelli, had used eight of his nine peremptory strikes to remove eight African American women from the panel. Id. Ten jurors had already been seated: four African American women, one white male, three white females, and two African American males. Id. at 164-65.
Defendants had, by that point, struck one white female, one African American female, and five white males. Sept. 8, 2010 Tr. at Ex. at R2.
Judge Hughes observed "what appeared to be patterns by both the defense and the Commonwealth" regarding racial composition of jurors struck up to that point. Judge Hughes then said "let me know how you wish to proceed." See R & R at 19; Sept. 9, 2004 Tr. at 165. Defense counsel then raised a formal Batson challenge, stating concerns that "[a]ll of the Commonwealth's strikes have been Black females." Id. The following exchange ensued between Judge Hughes and defense counsel:
Court: [Y]ou do understand that you cannot make out a Batson[ challenge] if there are four African American women on the panel. And that is the dominant racial demographic on the panel. . . .
Defense: We can't conclude by the utilization of all the strikes against Black females that the Commonwealth is engaging in neutral methodology.
Court: I think that you cannot conclude that, counsel. If there was no African American females seated on this panel, you can rightfully say the Commonwealth has stricken a particular class. But given that there have been four African American females that the Commonwealth has agreed to place on the panel, and at least one other African American female the Commonwealth desires who was stricken by the Defense.
Accordingly, this panel is sufficient only as it relates to the Caucasian males, and no strikes have been exercised by the defense. So at this point, I cannot deem that you have made out a Batson claim. The Commonwealth is not required to respond, But your objection is noted for the record. And the statistics are preserved, . . . given that a Batson challenge has been made. These sheets -- my sheets, which are the controlling sheets, will not be destroyed. They will in fact be an exhibit in the quarter sessions file and sealed. There is no reason for them to be open to the public. But they will be sealed for subsequent appellate review, should that be necessary. We're all clear gentlemen?
Court: Anybody else need me to say anything to preserve the record? Mr. Server: We all join.
Court: I but this issue is preserved for the future. [sic]
(A short recess was taken at this time.)
Sept. 10, 2004 Tr. at 166-68. The prosecutor did not state on the record, at that time, the basis for any of his strikes, nor did Judge Hughes or defense counsel request that he do so. Defense counsel did not argue for any further rulings on the Batson issue. Although not reflected in the record, selection of the jury was then completed and the trial proceeded.
According to the trial record, as reconstructed by Magistrate Judge Rice in the September 8, 2010 evidentiary hearing, and as discussed in detail below, an initial discussion on the Batson challenge took place at the time the record states "off the record," in the judge's robing room, immediately after completion of the voir dire of individual venire persons. Sept. 8, 2010 Tr. at 22; Sept. 9, 2004 Tr. at 162.
Saunders raised the Batson issue again on direct appeal. Judge Hughes issued an opinion, pursuant to Pa. R. A. P. 1925(a), rejecting the post-trial motions filed by Saunders. Saunders, 2666 EDA 2006, at *6. Rejecting the Batson claim a second time, Judge Hughes stated that
The Commonwealth did strike eight (8) African American females during the voir dire process and provided a race neutral basis for each strike. The Commonwealth's position was further supported by the fact that of the ten jurors chosen, four (4) were African American females. These four were the dominant race and gender of the panel. Given that African American females comprised the majority group on the panel and each strike exercised by the Commonwealth was race neutral, the appellant has no viable claim of purposeful discrimination. Appellant's Batson challenge fails as he cannot make out a prima facie case showing that the circumstances created an inference that the prosecutor struck one or more prospective jurors on the basis of race.
Saunders filed an untimely notice of appeal, which was dismissed. Saunders, 946 A.2d at 780. Saunders's subsequent and timely PCRA petition resulted in the reinstatement of his direct appeal rights, nunc pro tunc, and following a hearing held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (1998), Saunders received permission to proceed pro se. Id.
The Superior Court affirmed the conviction. The Superior Court dealt at length with the Batson claim. Initially, in footnote 8, the Superior Court reviewed the nature of the Batson objection made by defense counsel at trial, and also summarized its understanding of the establishment of a prima facie case for improper use of peremptory challenges. 946 A.2d at 782, citing and relying on a Pennsylvania Supreme Court decision, Commonwealth v. Washington, 927 A.2d 586, 609-610 (2007), and Johnson v. California, 545 U.S. 162 (2005). The Superior Court then cited from Judge Hughes's §1925 opinion, and observed in footnote 10, that a portion of the discussion concerning Batson occurred off the record. The Superior Court concluded that it did not find any abuse of discretion in the manner in which Judge Hughes had handled the Batson issue.*fn5
Saunders filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on September 30, 2008. Commonwealth v. Saunders, 958 A.2d 1047 (Pa. 2008).*fn6
On June 11, 2010, Magistrate Judge Rice issued an opinion finding Saunders entitled to an evidentiary hearing to address his claim that the Commonwealth used its peremptory challenges to strike African-American women from the jury, brought pursuant to Batson (ECF No. 25).*fn7 At the evidentiary hearing, held on September 8, 2010 (ECF Nos. 35, 36), Magistrate Judge Rice heard testimony by the ...