Brinson v. Vaughn

• Decision Date: 08 February 2005
• Docket Number: No. 02-4479.,No. 02-4466.,02-4466.,02-4479.
• Parties: Curtis BRINSON, Appellant v. Donald VAUGHN; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

398 F.3d 225

Curtis BRINSON, Appellant v. Donald VAUGHN; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania.

No. 02-4466.

No. 02-4479.

United States Court of Appeals, Third Circuit.

Argued September 14, 2004.

February 8, 2005.

Norris E. Gelman (Argued), Philadelphia, for Appellant.

Robert M. Falin (Argued), Assistant District Attorney, Philadelphia, for Appellees.

Before SCIRICA, Chief Judge, ALITO, and AMBRO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

This is an appeal from a District Court order denying Curtis Brinson's petition for a writ of habeas corpus. Brinson was convicted in state court in Pennsylvania on one count of murder in the first degree and a lesser offense and was sentenced to imprisonment for life. The District Court held — and we agree — that his federal habeas petition was timely because it was proper to apply the doctrine of equitable tolling to the period of time following the District Court's erroneous dismissal of Brinson's prior habeas petition. Contrary to the District Court, however, we hold that Brinson made out a prima facie case of a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and we therefore reverse the order of the District Court and remand for an evidentiary hearing.

I.

In April 1985, Arthur Johnson was shot and killed in the bathroom of a Philadelphia nightclub. Brinson, an African American, was arrested for the crime, and the selection of the jury for his trial began on April 28, 1986, two days before the Supreme Court of the United States announced its decision in Batson.

In Batson, the Supreme Court set out a three-step procedure for determining whether a prosecution violated the Equal Protection Clause by peremptorily striking potential jurors based on race.¹ First, the party asserting the claim must make out a prima facie case. See 476 U.S. at 96, 106 S.Ct. 1712. In order to do this, the party must point to facts that "raise an inference" that a challenged strike was based on an impermissible ground. Id. Second, if a prima facie case is established, the party who exercised the challenge must "come forward with a neutral explanation." Id. Third, if a neutral explanation is offered, the trial judge must make a finding as to whether the contested peremptory was based on an impermissible ground. Id. at 98, 106 S.Ct. 1712.

On May 2, 1986 — after Brinson's jury had been selected but before the trial began — his attorney objected that the prosecutor had violated Batson by striking prospective African American jurors based on race.² Brinson's attorney stated that the prosecutor, Jack McMahon, had "exercised fourteen peremptory challenges, thirteen for blacks." He also asserted that McMahon "seldom, if ever, questioned blacks prior to exercising his peremptory challenges." In response, McMahon did not deny using 13 peremptories against blacks, but he stated that he did not remember the race of each juror whom he had peremptorily challenged, that he recalled striking both African Americans and whites, that he had not used all of his allotted strikes, and that three African Americans had been selected for the jury. At this point, neither the trial judge nor the attorneys had actually read Batson, and the trial judge announced that he would not rule on the defense objection prior to trial but that the issue could be raised in a post-trial motion. The case was then tried, and Brinson was found guilty of murder in the first degree and possession of an instrument of crime. He was sentenced to life imprisonment.

Brinson again raised the Batson issue in a post-trial motion. At the hearing on the motion, Brinson's attorney repeated his previous assertions about McMahon's use of peremptory challenges, and McMahon again disclaimed any memory of how many strikes he had used against African Americans, stating that "[defense counsel] says I used thirteen strikes on Blacks and one on [a] White. I see nothing in the record to indicate that. I do not have any recollection of that whatsoever. I am sure the Court does." To this, the trial judge responded: "Yes, I do." McMahon then stated: "Be that as it may, I know I accepted the Black that the Defense struck."

The trial judge orally rejected Brinson's Batson argument on the ground that Batson had "not yet been accepted by this Commonwealth." The trial judge appears to have believed that he was still bound by pre-Batson Pennsylvania court decisions rejecting arguments similar to the one that the Supreme Court of the United States accepted in Batson.

The trial judge died before he could write an opinion addressing Brinson's post-trial motions, and the matter was reassigned to another judge. In his opinion on these motions, the new judge wrote the following with respect to Brinson's Batson argument:

In the instant case the record indicates there were at least three black persons on the jury and the selection of the jury was completed with the prosecutor still having six [peremptory] strikes.... Thus, the record does not show any deliberate, purposeful exclusion of black persons from the jury in this case. Unfortunately, the trial judge died before writing his Opinion, and, therefore, we are without the benefit of his personal observations as he conducted the voir dire. However, we have, as was stated [in Batson³], confidence, based upon the experience, character and reputation of [the trial judge], that he would not allow such a purposeful rejection of black persons solely by [peremptory] challenges as to deny this Defendant a fair jury trial.

On direct appeal, Brinson again raised the Batson issue, but the Superior Court affirmed Brinson's conviction. Invoking Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), the Superior Court rejected the Batson claim on the ground that "where the victim, the perpetrator and witnesses are black, a prima facie case of racial discrimination is not present under Batson...." The Superior Court continued:

In addition, the record establishes that three of the jurors in this case were black, the defense struck blacks, and the Commonwealth had six peremptory challenges left following the close of jury selection.... Accordingly, appellant has failed to establish that the prosecutor exercised peremptory challenges to remove black venire members, as required by [Batson]. An evidentiary hearing on this issue is not required.

Brinson raised his Batson claim in a petition for allocatur to the Pennsylvania Supreme Court, but the petition was denied.

In September 1993, Brinson filed a petition in state court under the Pennsylvania Post-Conviction Relief Act (PCRA). That petition claimed that trial counsel had been ineffective because, among other things, he had allegedly failed to object to the prosecution's systematic exclusion of African Americans from the jury.⁴ Brinson's petition was denied without a hearing in January 1995. A timely appeal was taken, but the Superior Court affirmed the dismissal for two reasons: first, that the Batson claim had been litigated on direct appeal and therefore could not be raised under the PCRA, see 42 Pa. Con. Stat. Ann. § 9544(a)(3), and, second, that all of Brinson's claims were waived because Brinson allegedly failed to include a trial transcript as part of the official record. The Pennsylvania Supreme Court again denied allocatur.

Following the dismissal of his first PCRA petition, Brinson turned to the federal courts and filed a timely pro se petition for a writ of habeas corpus in which he presented eight grounds for relief, including his Batson claim.⁵ While this petition was pending, a videotape entitled "Jury Selection with Jack McMahon" was released to the public. This tape depicted a training session in which McMahon advocated the use of peremptory challenges against African Americans. After the tape was released, Brinson filed a motion requesting that the District Court take judicial notice of the new evidence.

The Magistrate Judge to whom the federal habeas petition was assigned for a report recommended that the petition be dismissed without prejudice on the ground that the Batson claim, as bolstered by the McMahon tape, was unexhausted and that the petition therefore contained both exhausted and unexhausted claims. The Magistrate Judge noted that the Batson issue had been litigated in state court on direct appeal and that the PCRA generally precludes re-litigation of claims, but the Magistrate Judge observed that the PCRA's one-year filing deadline contains an exception for claims predicated on facts that were previously unknown to the petitioner and that could not have been discovered through the exercise of due diligence. See 42 Pa. Cons.Stat. Ann. § 9545(b)(1)(ii). The District Court adopted this recommendation and dismissed the petition without prejudice on September 22, 1997.

Unfortunately, the District Court did not note that, by the time of its decision, the PCRA time limit for filing a claim based on newly discovered evidence — 60 days from the discovery of the evidence (see 42 Pa. Cons.Stat. Ann. § 9545(b)(2)) — had already passed. Moreover, in order to proceed with a new PCRA petition raising his Batson claim, Brinson felt that he was required to comply with the so-called "Spence rule," see Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993), and thus to identify the race of "the veniremen who had been removed by the prosecution, the race of all the jurors who served, [and] the race of jurors acceptable to the Commonwealth who had been stricken by the defense." Id. at 1182-83.⁶ With the assistance of a law professor, Brinson spent 10 months attempting to compile these statistics. Brinson eventually filed his second PCRA action on July 30, 1998, but the PCRA court dismissed the petition as untimely, and the Superior Court affirmed.

On December 4, 2000, Brinson returned to federal court and filed a second habeas...