616 F.3d 255 (3rd Cir. 2010), 08-1945, Coombs v. Diguglielmo

Docket Nº:08-1945.
Citation:616 F.3d 255
Opinion Judge:McKEE, Chief Judge.
Party Name:Wayne COOMBS, Appellant v. David DIGUGLIELMO; The District Attorney of The County of Philadelphia; The Attorney General of the State of Pennsylvania.
Attorney:Leon A. Williams, I, Esq., Philadelphia PA, for Appellant. Thomas W. Delgenos, Esq., Molly S. Lorber, Esq., Office of the District Attorney, Philadelphia PA, for Appellee.
Judge Panel:Before: McKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges.
Case Date:July 30, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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616 F.3d 255 (3rd Cir. 2010)

Wayne COOMBS, Appellant


David DIGUGLIELMO; The District Attorney of The County of Philadelphia; The Attorney General of the State of Pennsylvania.

No. 08-1945.

United States Court of Appeals, Third Circuit.

July 30, 2010

Submitted Pursuant to Third Circuit LAR 34.1(a) Oct. 2, 2009.

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[Copyrighted Material Omitted]

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Leon A. Williams, I, Esq., Philadelphia PA, for Appellant.

Thomas W. Delgenos, Esq., Molly S. Lorber, Esq., Office of the District Attorney, Philadelphia PA, for Appellee.

Before: McKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges.


McKEE, Chief Judge.

Wayne Coombs appeals from the district court's denial of the habeas corpus petition he filed pursuant to 28 U.S.C. §§ 2241(c)(3) and 2254. He argues that the prosecutor exercised his peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set forth below, we will remand this matter to the district court for an evidentiary hearing on Coombs' Batson challenge.

I. Factual Background

On February 22, 2000, Coombs was arrested for a string of robberies that took place in Philadelphia from the fall of 1999 into the winter of 2000. The charges stemming from those robberies were consolidated for a trial which began in September 2001. At that trial, the majority of the prosecution's evidence came from eyewitnesses who identified Coombs as the armed robber. Coombs' mother testified on his behalf. Both Coombs and his mother are Black. Nearly all of the prosecution witnesses, including the robbery victims and police officers, are White. The trial ended in a hung jury.

Coombs was re-tried beginning in November 2001. On the first day of voir dire, the prosecutor raised a " reverse Batson " challenge because defense counsel struck three White jurors.1 The prosecutor told the court that, " [i]t happened the last time, but I didn't do anything about it. I'm doing something about it this time." App. at 106. Defense counsel provided the following explanation for his peremptory strikes: (1) Juror No. 35 stated that she would be more likely to believe police officers than another citizen and she had two friends that had been abducted from the street; (2) Juror No. 8 had two brothers-in-law who were retired police officers, a

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couple of her neighbors were police officers, and she was married to a firefighter; and (3) Juror No. 21 indicated that " she would have problems ... following instructions that the defendant doesn't have to take the stand or present evidence, and that it couldn't be held against him if he elects to remain silent," her father-in-law was a retired police sergeant, she stated that she would be inclined to believe the testimony of a police officer, and she worked at a bank that had been robbed. App. at 106-09.

Defense counsel also raised a Batson challenge based on the prosecutor's use of two peremptory strikes against Black females. Defense counsel told the court that " the last jury hung because of a [B]lack female. Today we had two [B]lack females. Both of them have been stricken for no good reasons." App. at 110. The court then asked the prosecutor: " Why don't you just put your reasons on the record?" Id. The prosecutor initially responded that defense counsel is " just retaliating for what I did," id., but then said that he struck Juror No. 19 because she " was an eyewitness to a shooting, and her mother was robbed, she said, a long time ago." App. at 110-12. He stated that he struck Juror No. 14 because his brother " was charged with robbery over fifteen years ago." Id.

The court denied both motions, stating: " These are what lawyers do with peremptory challenges. They're not race-based. ... As long as we have peremptory challenges, lawyers are going to make judgments maybe based on hunches, maybe based on prior experiences, maybe based on feelings, but they're not based on race. Both of you are much too good lawyers to do something like that." App. at 112.

At the conclusion of voir dire, defense counsel again raised the Batson challenge. He noted that the prosecutor used five of his six peremptory challenges to strike Black venire persons, and more specifically, that the prosecutor had used four peremptory strikes against Black females and one against a Black male. App. at 138. Before the prosecutor could offer a racially-neutral explanation, as required under Batson, the trial court stated: " I'm not finding there's another pattern." Id. The prosecutor nevertheless explained that Juror No. 22's cousin had been a witness to a robbery and that Juror No. 4 had a nephew who had recently been shot, another nephew in jail awaiting gun charges, and a friend who was a defense attorney.

After the prosecutor concluded, defense counsel questioned the prosecutor's use of a peremptory strike to remove Juror No. 1, a Black male. The prosecutor's entire explanation was as follows:

I just didn't like him, your Honor. I don't really have a sound reason.... I don't know, just the way he was looking at me.

If that's a reason, it's justified, but your Honor found there's no pattern. I mean, I just didn't like him, and he didn't check off many boxes, but I went with my hunch....

App. at 140.

The court's only response was: " Let's go. Are we ready to? Do we have the bills?" Id. Defense counsel then inquired: " Your Honor is going to accept the Commonwealth's assertions and deny my motion?" The court answered: " Yes." Id.

The court did not further inquire into his explanation. The final composition of the jury in Coombs' second trial consisted of one Black male, one Black female, and ten White jurors. The jury convicted Coombs of nine counts of robbery and two counts of possessing an instrument of crime in violation of 18 PA. CONS.STAT. §§ 3701 and 907, respectively.

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At Coombs' sentencing, defense counsel again raised the issue of the prosecutor's peremptory challenges. Counsel first tried to clarify the record with regard to two of the venire persons who did not indicate their race on the juror questionnaire. App. at 148. He asked that the record indicate that Juror No. 14 was a Black female and that Juror No. 9, who was chosen for the jury, was a White male. When the court asked the prosecutor if he would stipulate to the race of the two jurors, the prosecutor responded, " I don't recall [Juror No. 14], but I do recall the [Juror No. 9] as being a [W]hite male." App. at 149.

Defense counsel then tried to introduce evidence of a conversation that he alleged had taken place between himself and the prosecutor. He argued that it was relevant to the prosecutor's exercise of peremptory strikes. However, before he could elaborate, the prosecutor interjected: " I object to this because I don't think this information should be before the Court. It's complete hearsay." App. at 150. Defense counsel argued that the conversation was relevant to establishing the discriminatory motive behind the prosecutor's peremptory strikes. However, the court refused to allow defense counsel to proceed because in its view, the conversation was " not relevant to anything." App. at 152. Defense counsel's multiple attempts to explain the conversation's relevancy were cut off by the court's continued insistence that " [i]t's irrelevant." App. at 151-52. The court did, however, tell defense counsel that he could " submit an affidavit," adding that it " [did not] want to get into that." Id.

Defense counsel later submitted an affidavit, which stated that he had a conversation with the prosecutor after the first trial but before the second trial. App. at 156-57. The prosecutor purportedly said to him that a juror from the first trial had advised him that there had been only one holdout juror, and that this juror was a Black female. Defense counsel also explained that he had an additional conversation with the prosecutor after the second trial concluded but before sentencing. Defense counsel stated that the prosecutor said to him that the Black female juror from the first trial " had voted not guilty because the defendant was [B]lack and she was [B]lack." App. at 156. Defense counsel believed that those statements were relevant to determining if the prosecutor's experience during the first trial caused him to try to exclude Black jurors from the second jury.

The trial court denied Coombs' post-trial motions and sentenced him to 59-to-165 years in prison. Coombs appealed to the Pennsylvania Superior Court alleging, inter alia, that the prosecutor had discriminated against Black venire persons during jury selection in violation of Batson. The Superior Court rejected Coombs' claims without reaching the merits of the Batson claims. Commonwealth v. Coombs, 832 A.2d 534 (table) (Pa.Super.Ct.2003), No. 954 E.D. App.2002, slip op. at 5 (Pa.Super.Ct. July 21, 2003). The court ruled that those claims had not been raised as required by Pennsylvania's " [ Commonwealth v. ] Spence [534 Pa. 233, 627 A.2d 1176 (1993) ] rule." 2 It held that, " where an appellant fails to make a record for review of a Batson challenge [as required by the Spence rule], this Court is unable to

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consider a claim that the trial court failed to find a prima facie case under Batson. " Id. (internal quotations omitted). Thereafter, the Pennsylvania Supreme Court denied discretionary review, Commonwealth v. Coombs, 576 Pa. 719, 841 A.2d 528 (2003), and Coombs filed the habeas petition that is now before us.

In his habeas petition, Coombs again alleges that the prosecution discriminated against Black venire persons in violation of Batson. 3 The petition was referred to a Magistrate Judge who issued a Report and Recommendation (" R& R" ) recommending that the petition be dismissed. The district court adopted the R& R and denied Coombs' habeas petition. The district court ruled that Coombs' Batson...

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