Lark v. * Sec'y Pa. Dep't of Corr.

Decision Date16 June 2011
Docket NumberNo. 07–9004.,07–9004.
Citation645 F.3d 596
PartiesRobert LARKv.* SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al; The District Attorney of Philadelphia County; The Attorney General of the State of Pennsylvania, Appellants.* (Pursuant to Rule 43(c), Fed. R.App. P.).
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Maureen Kearney Rowley, Chief Federal Defender, Stuart B. Lev (argued), Michael Wiseman, Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Appellee.Thomas W. Dolgenos (argued), Chief, Federal Litigation, Ronald Eisenberg, Deputy District Attorney, Law Division, Arnold H. Gordon, First Assistant District Attorney, Office of the District Attorney, Philadelphia, PA, for Appellants.Before: McKEE, Chief Judge, and SCIRICA and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on appeal from a final order entered in the District Court on July 5, 2007, conditionally granting Appellee Robert Lark a writ of habeas corpus, vacating his Pennsylvania state court death sentence, and ordering the Commonwealth of Pennsylvania to retry Lark within 180 days or release him.1 See Lark v. Beard, 495 F.Supp.2d 488 (E.D.Pa.2007) (“ Lark II ”). The Court granted the writ based on Lark's claim that at his trial the Commonwealth violated the Fourteenth Amendment's Equal Protection Clause that the Supreme Court applied in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when the Supreme Court reviewed a prosecutor's exercise of peremptory challenges in jury selection. Appellants, the Secretary of the Pennsylvania Department of Corrections, the District Attorney of Philadelphia County, and the Attorney General of the Commonwealth of Pennsylvania (collectively the Commonwealth), filed a timely notice of appeal from the Court's order. For the following reasons we will vacate the Court's July 5, 2007 order and remand the case for further proceedings.

II. BACKGROUND & PROCEDURE

We take the following facts from the Pennsylvania Supreme Court's opinion affirming the denial of Lark's first petition for state post-conviction relief:

[I]n late 1978, Lark robbed Tae Bong Cho while putting a gun to the head of the victim's infant child. He was apprehended shortly after the robbery and was charged with the crime. Approximately two months later, Lark murdered Mr. Cho in order to prevent him from testifying against Lark in the robbery trial. No witness was able to identify the killer, because he wore a ski mask. However, Lark bragged to a number of acquaintances that he had killed ‘the Korean.’

Lark failed to appear for trial on the robbery charge and he was convicted in absentia. Thereafter, Lark repeatedly threatened the prosecutor in the robbery case and detectives investigating the Cho homicide. He was captured on January 9, 1980 after he took a mother and her two small children hostage. While he was barricaded inside the hostage's house, he told police: ‘I'll kill you all like that [ expletive ] ... I'll shoot you in the legs.’

Following capture, Lark was charged with offenses related to the murder of Mr. Cho, terroristic threats against the prosecutor in the robbery case, and the kidnapping of the woman and her two children. The first trial ended in mistrial as the result of an inadvertent question asked by the trial court....

Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 46 (1997).

At his second trial, in 1985, Peter Rogers represented Lark, who is African–American, and assistant district attorney John Carpenter represented the Commonwealth.2 Voir dire lasted for four days.3 On June 7, 1985, the third day of voir dire, after Carpenter exercised a peremptory challenge to strike a female African–American juror, the following exchange occurred:

Mr. Rogers: Your Honor, Before the other juror comes in, can we ... may the records be preserved to indicate the racial composition of the jurors who are coming by so as to preserve an opportunity for me to make a challenge that the Commonwealth may in fact be excluding all blacks who come before this panel? Only way I can determine that is if I have the records made available to me. Not today, Your Honor, but I just ask—

The Court: What records are we talking about?

Mr. Rogers: The records which will—that defense counsel doesn't get a chance to see and I guess the Commonwealth doesn't but I think it should indicate addresses, phone numbers, race, things like that, Your Honor.

Mr. Carpenter: Judge—

The Court: I don't know that there's any indication of race at all.

Mr. Carpenter: My recollection is that—

Mr. Rogers: As of this afternoon, Your Honor, he is striking all blacks.

Mr. Carpenter: Oh. How awful.

App. at 611–12.

The discussion between Rogers and the trial court continued with Rogers insisting that Carpenter was striking blacks and asking the court to preserve a record of the race of the jurors. The trial court responded by asserting that there was “nothing on the record as to who was white and who was black,” and that there was no way to determine the race of the jurors. Id. at 613. Rogers stated that he wanted the records preserved only from the last jury panel and he was not arguing that Carpenter had exercised his peremptory challenges in a discriminatory manner during the prior two days of jury selection. Carpenter stated, however, that he had not systematically excluded jurors, pointing out that there were three jurors on the panel of the same race as Lark. The trial court, applying the law as it stood at the time of the trial, indicated that “neither one of [the attorneys] has to give any reason for [exercising a peremptory challenge].” Id. at 614. Ultimately, the trial court denied Rogers' request, indicating that there was no record of the race of the jurors. Rogers did not raise the equal protection peremptory challenge issue again.

On June 28, 1985, the jury returned a verdict finding Lark guilty of first-degree murder, possession of an instrument of crime, terroristic threats, and two counts of kidnapping. In the penalty phase of the trial which followed, the jury found that there were no mitigating circumstances but that there was one aggravating circumstance—the murder of a state's witness—and set the penalty at death. The trial court denied all post-trial motions and imposed Lark's death sentence on April 24, 1986.

On April 30, 1986, six days after the court sentenced Lark, the United States Supreme Court issued its opinion in Batson v. Kentucky which lessened the burden of proof that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), had required for a defendant to show that a prosecutor engaged in discriminatory jury selection. One year later, that Court determined that the rule in Batson would apply retroactively to all cases pending on direct review at the time that it decided Batson. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).

Lark filed a direct appeal from his conviction and sentence to the Pennsylvania Supreme Court.4 On that appeal Lark, still represented by Rogers, did not raise a Fourteenth Amendment Equal Protection Clause claim based on Carpenter's use of peremptory strikes during voir dire. On May 20, 1988, the Pennsylvania Supreme Court affirmed Lark's convictions and sentence. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Lark did not file a petition for a writ of certiorari to the United States Supreme Court and thus the direct review of his conviction and sentence was completed on August 18, 1988, 90 days after the Pennsylvania Supreme Court affirmed his conviction. See U.S. Sup.Ct. R. 13. Nevertheless, inasmuch as Lark's direct appeal was pending at the time that the Supreme Court decided Batson, the rule in Batson is applicable to his case.5

After completion of Lark's direct appeal the judicial proceedings in his case lay dormant as he did not file any further applications or motions until six years later when, in November 1994, after the Governor of Pennsylvania signed a warrant for his execution, he sought a stay of execution in the Philadelphia Court of Common Pleas. That court denied Lark's request for a stay on November 7, 1994, following which on November 8, 1994, Lark filed a pro se motion in the District Court seeking an order staying his execution. The District Court granted the stay to enable Lark to file a state post-conviction petition. 6

On November 4, 1994, Lark filed his first Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. Ann. § 9541 et seq. (West 1989), petition in the Philadelphia Court of Common Pleas. After appointment of counsel, Lark filed an amended PCRA petition on February 8, 1995, raising 25 claims of trial court error and ineffective assistance of counsel but the claims did not include an assertion that there had been a Batson violation. The Commonwealth moved to dismiss the petition, and the PCRA court, without holding an evidentiary hearing, granted that motion. Lark appealed from the dismissal to the Pennsylvania Supreme Court.

In April 1997, while Lark's appeal was pending in the Pennsylvania Supreme Court, the Philadelphia District Attorney's Office released a video tape (the “McMahon tape”) in which former assistant prosecutor Jack McMahon instructs his prosecutorial colleagues to exclude potential jurors on the basis of race, gender, occupation, and neighborhood. On the tape that McMahon made after the Supreme Court's decision in Batson, he advised against striking all African–Americans and stated that his ideal jury would be composed of eight whites and four blacks.7 On July 1, 1997, Lark applied to the Supreme Court of Pennsylvania for a remand of his PCRA petition to allow him to assert a claim based on the McMahon tape. On July 23, 1997, the Pennsylvania Supreme Court affirmed the denial of post-conviction relief and on July 30, 1997, in a separate...

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