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Roger Judge v. Jeffrey Beard

November 28, 2012


The opinion of the court was delivered by: Joyner, J.


Presently before the Court for decision is the Petition for Writ of Habeas Corpus first filed by the petitioner, Roger Judge, on August 16, 2002, and amended on April 16, 2004. Previously, on March 13, 2009, we granted Petitioner's Motion for Partial Summary Judgment on Claim V of the Petition seeking relief from the sentence of death on the basis of the Supreme Court's decision in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988).*fn1 For the reasons that follow, the remainder of the petition is now granted in part and denied in part.

Factual and Procedural Background

This case arose on the night of Friday, September 14, 1984, at approximately 11:49 p.m. when a group of teenagers consisting of Christopher Outterbridge, his sister Lisa, her friend Tanya Mitchell and Tanya's younger sister Tabatha, and two other friends, Cathy Green and Calvin Whitaker, were returning to the Outterbridge home at 1108 West Wyoming Avenue in Philadelphia from a nearby sandwich shop. The group had just reached the porch of the Outterbridge home where Christopher and Lisa's younger sister, Kia Outterbridge, was waiting, when Petitioner walked up and began firing a .32 caliber revolver at the porch. In the process, the revolver was emptied of all five of its shots and 18-year-old Christopher Outterbridge and 15-year-old Tabatha Mitchell were fatally wounded.

A nearby police patrol car responded almost immediately to the scene after the shooting, but the shooter had fled the scene. Unfortunately for Petitioner, all of the surviving teenagers recognized and identified him as a resident of the neighborhood with whom they were familiar, albeit by his street name, "Dobe."*fn2

While there were some minor discrepancies, all of the witnesses described "Dobe" as being short, between 5'2" and 5'6" tall, with a short, box haircut and wearing an orange- or red-colored hooded rain jacket at the time of the shooting. Several of the witnesses identified Petitioner as being "Dobe" from a photo lineup and a warrant was issued for his arrest in the early morning hours of September 15, 1984. After eluding the police for almost two weeks, Petitioner was eventually apprehended on October 2, 1984. He was subsequently tried and convicted of two counts of first degree murder and one count of possession of an instrument of crime following a week-long jury trial on April 15, 1987, and sentenced to death.

On June 12, 1987, following the summary denial of post-trial motions, Petitioner was formally sentenced by the trial judge, the Honorable Albert F. Sabo of the Philadelphia County Court of Common Pleas. Two days later, however, Petitioner escaped from the Holmesburg Prison in Philadelphia and fled to Vancouver, Canada where, on July 13, 1988, he was convicted of two robberies and sentenced to ten years' imprisonment. His Canadian convictions were upheld on appeal.*fn3

On August 11, 1987, while Petitioner was a fugitive, his convictions and death sentences were certified for automatic appeal to the Pennsylvania Supreme Court. Acting sua sponte on December 22, 1989, the Pennsylvania Supreme Court issued a per curiam order that limited its review to the sufficiency of the evidence and the propriety of the sentence "as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327, reh'g denied, 463 U.S. 1236, 104 S. Ct. 31, 77 L. Ed. 2d 1452." See, Commonwealth v. Judge, 530 Pa. 403, 405, 609 A. 2d 785, 786, n.4 (1992). In spite of this limitation, Petitioner's attorney raised several claims of trial error for review. While acknowledging that it had "the authority to correct errors at trial which the appellant raises," the Supreme Court noted that its "rules expressly provide for the quashing of an appeal when the appellant is a fugitive..., and it is within the discretion of this Court to take such action sua sponte ... Additionally, this Court has held that 'a defendant who elects to escape from custody forfeits his right to appellate review.'" Judge, 609 A.2d at 786, (citing Pa. R. A. P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984), and Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976)). The Court went on to review the case record and found that the evidence produced was sufficient beyond a reasonable doubt to support the first degree murder convictions and that the sentences of death imposed were neither excessive nor disproportionate to the penalty imposed in similar cases. It therefore affirmed the petitioner's convictions and death sentence. Judge, 609 A.2d at 790-91.

On June 15, 1993, Petitioner was ordered deported from Canada but the deportation order was made conditional because Petitioner had announced his intention to claim refugee status. Thereafter, he withdrew this claim and the deportation order became effective on June 8, 1994. However, on January 26, 1995, on recommendation of the Correctional Services of Canada, Mr. Judge's case was reviewed by the National Parole Board, which ordered that he be detained in Canada to serve out the balance of his sentence or until August 8, 1998.

On November 10, 1997, Petitioner wrote to the Canadian Minister of Citizenship and Immigration requesting ministerial intervention to stay the deportation order against him until such time as the United States sought to extradite him. Apparently, Petitioner was aware that if the United States sought to extradite him, Canada could ask for assurances from the United States that he would not be executed.*fn4 Via letter dated February 18, 1998, however, the Canadian Minister refused this request. Petitioner then applied to the Federal Court of Canada for leave to commence an application for judicial review of the Minister's refusal and for a stay of the deportation order and a declaration that his detention in Canada and deportation to the United States violated his rights under the Canadian Charter. This application was summarily denied on June 23, 1998, and Mr. Judge then petitioned the Superior Court of Quebec, which had concurrent jurisdiction with the Canadian Federal Court, for identical relief. That Court, on August 6, 1998, declined to exercise jurisdiction because proceedings had already been undertaken in the Federal Court. The following day, Petitioner filed a complaint with the Human Rights Committee of the United Nations claiming that Canada violated Articles 6, 7, 10, and 14 of the International Covenant on Civil and Political Rights (ICCPR) by deporting him to face a sentence of death in Pennsylvania. On August 9, 1998, Canada deported Petitioner to New York, and Pennsylvania thereafter had him extradited back to the Commonwealth. Eventually, the United Nations' Human Relations Committee determined, via published decision dated August 13, 2003, that Canada had violated Articles 2 and 6 of the ICCPR by deporting the petitioner from Canada to the United States where he faced the death penalty without receipt of assurances from the United States that the death penalty would not be carried out and by failing to afford him the opportunity to appeal the deportation decision prior to his having been removed from Canada. Judge v. Canada, U.N. Human Rights Committee 78th session, ICCPR/C/78/D/829/1998 (Aug. 13, 2003).

While still confined in Canada, on January 14, 1997, Petitioner had also filed a pro se petition in the Philadelphia County Court of Common Pleas under Pennsylvania's Post Conviction Relief Act, 42 Pa. C. S. §9542, et. seq. The petition was subsequently amended on February 16, 1999, after counsel was appointed to represent him. The Court of Common Pleas dismissed the petition without a hearing on July 27, 1999, reasoning that Petitioner's fugitive status resulted in a forfeiture of his post-conviction rights. That decision was subsequently affirmed by the Pennsylvania Supreme Court on May 23, 2002. See, Commonwealth v. Judge, 568 Pa. 377, 797 A.2d 250 (2002).

On August 16, 2002, Petitioner filed a Petition for Writ of Habeas Corpus in this Court, along with a second petition under the PCRA seeking relief under the U.S. Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which held that the United States Constitution places significant restrictions on a state's power to execute a mentally retarded offender.*fn5 In addition, on October 10, 2003, he filed yet another petition in the state courts captioned: Petition for Statutory Habeas Corpus Relief and Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and/or for Statutory Post-Conviction Relief Under the Post Conviction Relief Act in reliance upon the findings of the U.N. Human Rights Committee that Canada had violated the ICCPR in deporting him to the United States. This Court then stayed the instant habeas proceedings to enable Petitioner the opportunity to exhaust these claims in the Pennsylvania courts. In an Opinion dated May 12, 2005, the Philadelphia County Court of Common Pleas determined that, because the identical claim had been raised in Petitioner's federal Habeas Corpus petition, it need not address the claim, and it therefore dismissed the PCRA application. Although it did consider the violation of international law argument, the Pennsylvania Supreme Court nevertheless affirmed the dismissal of Petitioner's third PCRA application on the ground that there was nothing in the ICCPR itself or in the decisions of the Human Rights Committee which compelled the Pennsylvania state courts to enforce the international treaties involved. Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511 (2007). On November 7, 2007, the United States Supreme Court denied Petitioner's application for writ of certiorari. Judge v. Pennsylvania, U.S. , 128 S. Ct. 533, 169 L. Ed. 2d 374 (2007).

It appearing to this Court that Petitioner had then exhausted his available state remedies, we lifted the stay of proceedings in this matter on December 12, 2007. On July 29, 2008, Petitioner filed his motion for partial summary judgment, which we granted in our Memorandum and Order of March 13, 2009.


As previously noted in our Memorandum Opinion of March 13, 2009, the Commonwealth asserts that this Court is foreclosed from considering any of Petitioner's habeas claims as a consequence of his having escaped from custody and by operation of the bar imposed by Pennsylvania's fugitive forfeiture rule. Because we determined in that Opinion that the fugitive forfeiture rule is an inadequate bar, we are compelled to now evaluate the merits of Petitioner's remaining claims.*fn6

A. Standards Governing Habeas Petitions Under §2254

It is axiomatic that "[t]he writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law." Harrington v. Richter, U.S. , 131 S. Ct. 770, 780, 178 L. Ed. 2d 624, 634 (2011). Petitions for issuance of a Writ of Habeas Corpus filed by prisoners in custody as the result of a judgment of a state court are generally governed by 28 U.S.C. §2254. Specifically, that statute states, in relevant part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. . . . .

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that -

(A) the claim relies on -(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Thus, under AEDPA (the Anti-terrorism and Effective Death Penalty Act),*fn7 "federal courts are to review a state court's determinations on the merits only to ascertain whether the state court reached a decision that was 'contrary to' or involved an 'unreasonable application' of clearly established Supreme Court law, or if a decision was based on an 'unreasonable determination' of the facts in light of the evidence presented." Thomas v. Horn, Nos. 05-9006 and 05-9008, 2009 U.S. App. LEXIS 14285 at *8 (July 1, 2009) (citing Fahy v. Horn, 516 F.3d 169, 189 (3d Cir. 2008)).

"This is a 'difficult to meet,' and 'highly deferential standard for evaluating state-court rulings, which demands that state court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, U.S. , 131 S. Ct. 1388, 1398, 179 L. Ed.2d 557, 569 (2011). A legal principle is "clearly established" within the meaning of § 2254(d)(1) only when it is embodied in a holding of the Supreme Court. Thaler v. Haynes, U.S. , 130 S. Ct. 1171, 1173, 175 L. Ed. 2d 1003, 1007 (2010).*fn8 A state court decision fails the 'contrary to' prong of AEDPA if the state court reaches a conclusion opposite to the Supreme Court's own conclusion on a question of law or decides the case differently where the Supreme Court was confronted by a set of materially indistinguishable facts." Harris v. Ricci, 607 F.3d 92, 96 (3d Cir. 2010) (quoting McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009)). A state court decision is an "unreasonable application" of established federal law "if the state court Williams v. Taylor, 529 U.S. 362, 390, 403-12, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). This confusion was finally eliminated last year in a case originating in the Third Circuit, Greene v. Fisher, No. 10-637, 2011 U.S. LEXIS 8077, 181 L. Ed. 2d 336 (Nov. 8, 2011). Specifically, in Greene, the Third Circuit rejected Justice Stevens's view that the applicable date for determining whether "Federal law" is "established" is the date the "state court conviction becomes final." Greene v. Palkovich, 606 F.3d 85 (3d Cir. 2010). The Third Circuit adopted the view of Justice O'Connor that the applicable date is "the time of the relevant state-court decision." See also, Smith v. Spisak, 558 U.S. 139, 130 S. Ct. 676, 681, 175 L. Ed. 2d 595, 600 (2010). Specifically, the Third Circuit stated,

After surveying the questions that arise from the Supreme Court's Williams decision and considering the statutory text and post-Williams Supreme Court precedent, our view is that using the date of the relevant state-court decision to determine "clearly established Federal law" is the most logical approach to applying §2254(d)(1).

Greene, 606 F.3d at 95. In affirming, the Supreme Court noted that "the purpose of AEDPA is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions in the state criminal justice systems,' and not as a means of error correction." Looking to its very recent holding in Cullen unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply." Breakiron v. Horn, 642 F.3d 126, 131 (3d Cir. 2011)(quoting McMullen, supra.) This test "is an objective one - a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly;" instead, "a state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id,(quoting Harrington v. Richter, U.S. , 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011), Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004) and McMullen, supra.)

However, the §2254(d) standard is only applicable to "claims already adjudicated on the merits in State court proceedings." Arman v. McKean, 549 F.3d at 288 (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)(quoting §2254(d))).*fn9 And, review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 131 S. Ct. at 1398, 179 L. Ed.2d at 570. If the state court 'did not decide the merits of a claim being presented in an applicant's federal habeas petition, the §2254(d) standard does not apply and a federal court must apply the pre-AEDPA standard and review pure legal issues and mixed questions of law and fact de novo. Id.; Nicoloudakis v. Abraham, 296 Fed. Appx. 280, 284 (3d Cir. 2008). See also, Lark v. Pennsylvania Department of Corrections, 645 F.3d 596, 618 (3d Cir. 2011)("When, as here, the state courts do not adjudicate a claim on the merits, and that claim is presented properly to a federal court in a petition for a writ of habeas corpus, the deferential standards of the AEDPA do not apply.") However, in these instances, "the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence." Appel, 250 F.3d at 210; Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003). See also, Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010)(same).

Distilled to its essence and "[c]onsistent with Supreme Court precedent, the Third Circuit has read §2254(d) as requiring three distinct legal inquiries." Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011)(citing Harrington v. Richter, U.S. , 131 S. Ct. 770, 785, 178 L. Ed.2d 624 (2011)). "The first, is whether the state court decision was 'contrary to clearly established Federal law, as determined by the Supreme Court of the United States.'" Id. "The second is whether the state court decision 'involved an unreasonable application of' such law; ...

[a]nd the third is whether the state court decision 'was based on an unreasonable determination of the facts in light of the evidence presented' to the state court." Id,(citing §§2254(d)(1) and (2)). In accord, Coombs v. Diguglielmo, 616 F.3d 255, 260 (3d Cir. 2010) (quoting Holloway v. Horn, 355 F. 3d 707, 718 (3d Cir. 2004) and 28 U.S.C. §2254(d)(1) & (2)).*fn10

B. Petitioner's Claims

1. Violation of Constitutional Rights During Jury Selection.

Petitioner asserts that he is entitled to relief from his conviction because his constitutional rights were violated during the jury selection process. In this regard, Petitioner invokes the rule of law first enunciated by the U.S. Supreme Court in Strauder v. West Virginia, 10 Otto 303, 100 S. Ct. 303, 25 L. Ed. 664 (1880) and subsequently refined by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) and its progeny, that a defendant is denied equal protection of the laws when he is put on trial before a jury from which members of his race, ethnicity, or sex have been purposefully excluded and that the use of peremptory challenges to accomplish this discriminatory objective is unconstitutional. See also, Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 1451, 173 L. Ed. 2d 320 (2009)("Under Batson v. Kentucky, [full citation omitted] and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity or sex."); J.E.B. v. Alabama, 511 U.S. 127, 140, 114 S. Ct. 1419, 1427, 128 L. Ed. 2d 89 (1994) ("Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process.")

Among the changes that Batson wrought to then-existing law was a change to the burden of proof previously required of a complaining defendant. In Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), the Supreme Court had recognized the unlawfulness of a prosecutor using his peremptory challenges "to exclude blacks from the jury 'for reasons wholly unrelated to the outcome of the particular case on trial' or to deny blacks 'the same right or opportunity to participate in the administration of justice enjoyed by the white population.'" Nevertheless, the Supreme Court opined that to succeed in establishing a prima facie case of purposeful discrimination, a black defendant had to prove that the peremptory challenge system was thereby "being perverted." See Batson, 476 U.S. at 91, 106 S. Ct. at 1720 (quoting Swain, 380 U.S. at 224, 85 S. Ct. at 838). According to Swain, "an inference of purposeful discrimination would be raised on evidence that a prosecutor, 'in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Swain, 380 U.S. at 224. This pronouncement in Swain became interpreted as a requirement that "proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause," thereby placing on defendants "a crippling burden of proof" and rendering "prosecutors' peremptory challenges ... largely immune from constitutional scrutiny." Batson, 476 U.S. at 92-93, 106 S. Ct. 1720-1721.

Batson altered this evidentiary burden. Post Batson, a defendant may make out a prima facie case of purposeful discrimination in selection of the petit jury solely with evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial alone - it is no longer necessary to show a prior pattern of discrimination. Batson, 476 U.S. at 96, 106 S. Ct. at 1723; Abu-Jamal v. Horn, 520 F.3d 272, 279 (3d Cir. 2008), vacated and remanded on other grounds, 130 S. Ct. 1134, 175 L. Ed. 2d 967 (2010); Hardcastle v. Horn, 368 F.3d 246, 255 (3d Cir. 2004). To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Batson, 476 U.S. at 96. "Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Id. (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S. Ct. 891, 892, 97 L. Ed. 1244 (1953)). "Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id.

Batson has thus been described as having "established a three-step inquiry for determining the constitutionality of challenged peremptory strikes." Coombs, 616 F.3d at 261 (quoting Hardcastle, 368 F.3d at 255 and Riley v. Taylor, 277 F.3d 261, 275 (3d Cir. 2001)). When a Batson challenge is raised, the trial court first must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Id. Once the defendant makes a prima facie showing of racial discrimination, the prosecution must then articulate a race-neutral explanation for its use of peremptory challenges. Hardcastle, supra; Riley, 277 F.3d at 275. If the prosecution does so, it is then incumbent upon the trial court to determine whether the defendant has established purposeful discrimination by considering all of the circumstances that bear upon the issue of racial animosity. Coombs, supra. (citing Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)). Among the "relevant circumstances" courts may consider in deciding whether a defendant has established a prima facie case of racial discrimination are: (1) a pattern of strikes against particular jurors included in the venire; (2) the prosecutor's questions and statements during voir dire examination and in exercising his challenges; (3) how many members of the cognizable racial group are in the venire panel;

(4) the nature of the crime; and (5) the race of the defendant and the victim. Lewis v. Horn, 581 F.3d 92, 102-103 (3d Cir. 2009); Abu-Jamal, 520 F.3d at 288; Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir. 1995); United States v. Clemons, 843 F.2d 741, 748 (3d Cir. 1988).

Finally, as the burden of persuasion rests at all times with, and never shifts from, the opponent of the strike (i.e., the defendant), the inquiry does not end even if the State produces a frivolous or utterly nonsensical justification for its strike; it merely proceeds to step three. Johnson v. California, 545 U.S. 162, 171, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129 (2005) (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); Riley, 277 F.3d at 275). Hence, it is not until this third step (in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination) that the persuasiveness of the justification becomes relevant, assuming that the trial judge has the benefit of all relevant circumstances, including the prosecutor's explanation. Johnson, 545 U.S. at 169, 171, 125 S. Ct. at 2417.

In examining the transcripts from the voir dire in Petitioner's case, we first note that Petitioner's counsel never objected to the prosecutor's use of any of his peremptory strikes over the four-day period that it took to empanel the jury.*fn11

Because Batson relies on trial judges "to decide if the circumstances concerning the prosecutor's use of peremptory challenges create a prima facie case of discrimination," a timely objection is a pre-requisite to raising and preserving a Batson claim for appeal and failing to do so will result in forfeiture of the claim. Lewis, 581 F.3d at 102 (quoting Batson, 476 U.S. at 97, 106 S. Ct. 1712). The Commonwealth, of course, makes this very argument to which the petitioner rejoins that his trial counsel rendered ineffective assistance of counsel by failing to object and that there is therefore no procedural bar to this court addressing the Batson claim.*fn12

The test for ineffective assistance of counsel is a well-settled and firmly established one containing two components. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

Id. To establish deficient performance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Lewis v. Horn, 581 F.3d at 106 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. 2052).

In analyzing this first prong of the Strickland test, there is a strong presumption that counsel performed reasonably. Id. (citing Strickland, 466 U.S. at 689). To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 694). A reasonable probability is a probability sufficient to undermine confidence in the outcome." Lewis, at 106-107. It is generally advisable to consider the prejudice prong before examining the performance of counsel prong because this course of action is less burdensome to defense counsel. United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 132, n.6 (3d Cir. 2005); Jones v. United States, 2010 U.S. Dist. LEXIS 106189, at *8 (W.D. Pa. Oct. 5, 2010).

In application of the foregoing, we first state the obvious: as an African-American, Petitioner is clearly a member of a cognizable racial group, and the nature of the crimes with which he was charged and stands convicted were the first degree murders of two African-American teenagers. Accordingly, any prejudice that was likely to inure against Mr. Judge for the ...

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