Lark v. Beard

• Decision Date: 03 July 2007
• Docket Number: Civil Action No. 01-1252.
• Citation: 495 F.Supp.2d 488
• Parties: Robert LARK, Petitioner, v. Jeffrey BEARD, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

495 F.Supp.2d 488

Robert LARK, Petitioner, v. Jeffrey BEARD, et al., Respondents.

Civil Action No. 01-1252.

United States District Court, E.D. Pennsylvania.

July 3, 2007.

COPYRIGHT MATERIAL OMITTED

Michael Wiseman, Federal Defenders, Stuart B. Lev, Defender Association of Philadelphia, Philadelphia, PA, for Petitioner.

Helen Kane, Thomas W. Dolgenos, District Atty's Office, Philadelphia, PA, for Respondents.

MEMORANDUM

PADOVA, District Judge.

I. INTRODUCTION

Robert Lark was convicted of first degree murder, possession of an instrument of crime, terroristic threats, and kidnaping in the Court of Common Pleas of Philadelphia County on June 28, 1985, and was subsequently sentenced to death. The convictions resulted from Lark's killing of Tae Bong Cho, and his kidnaping and restraint of Cho's two young children and their mother. He appealed, and the Supreme Court affirmed his convictions and sentences on May 20, 1988.¹ See Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988).² Following extensive state collateral proceedings detailed below, Lark filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2244, on March 16, 2001, alleging an Eighth Amendment ineffective assistance of counsel claim in connection with both the guilt and penalty phases of his trial, as well as a Fourteenth Amendment Equal Protection claim. For the following reasons, we find that the use of peremptory challenges by the prosecution violated Lark's constitutionally protected right to equal protection of the laws. Accordingly, we conditionally grant the writ.³

II. PROCEDURAL BACKGROUND

In November 1994, some six years after his direct appeals ended, Petitioner unsuccessfully sought a stay of execution from the Honorable John J. Poserina, Jr., of the Court of Common Pleas for Philadelphia County, see Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Nov. 7, 1994) (unpublished order denying stay of execution), whose decision he appealed to the Pennsylvania Supreme Court. Commonwealth v. Lark, Capital Appeal No. 77(Pa.). He then filed a pro se Motion for a Stay of Execution in the United States District Court for the Eastern District of Pennsylvania on or about November 8, 1994. Lark v. Lehman, No. Civ. A. 94-6762 (E.D.Pa.). On November 10, 1994, a stay of execution was issued to permit Lark to file a state post-conviction petition. The Pennsylvania Supreme Court also issued a stay to permit the filing of a state post-conviction petition. See Commonwealth v. Lark, Capital Appeal No. 77 (Pa. Nov. 10, 1994) (unpublished order).

Lark had filed a pro se petition in the Philadelphia Court of Common Pleas pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541 et seq., on November 4, 1994. Pro se Motion for Post-Conviction Collateral Relief, Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Nov. 4, 1994). On February 8, 1995, he filed an amended motion for post-conviction relief pursuant to the PCRA through pro bono counsel Thomas C. Zielinski ("First PCRA Petition"). Amended Motion for Post-Conviction Collateral Relief, Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Feb. 8, 1995). The First PCRA Petition raised twenty-five claims of trial court error and ineffective assistance of counsel. Id. Judge Poserina ordered that Lark produce affidavits of his proposed witnesses. (03/08/95 N.T. at 8-9.) The Commonwealth moved to dismiss the petition, and on August 2, 1995, after argument on the motion to dismiss, Judge Poserina dismissed the First PCRA Petition without an evidentiary hearing. Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Aug. 2, 1995) (unpublished order). On September 12, 1995, the dismissal order was amended by a written Order and Opinion denying post-conviction relief. Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022, slip op. (Ct.C.P.Phila.Sept. 12, 1995). Petitioner appealed to the Pennsylvania Supreme Court.

In early April 1997, while the appeal was pending, the Philadelphia County District Attorney's Office released a tape of former prosecutor Jack McMahon (the "McMahon Tape"), in which McMahon gave instructions to his prosecutorial colleagues on methods of jury selection. The instructions advocated the exclusion of veniremen on the basis of race and gender. On July 1, 1997, Lark applied to the Supreme Court for a remand of his First PCRA Petition to permit review of post-conviction relief claims arising out of the issues raised by the McMahon Tape. The Supreme Court affirmed the denial of postconviction relief on July 23, 1997, Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43 (1997), and denied Lark's application for remand on July 30, 1997, Commonwealth v. Lark, Capital Appeal No. 124 (Pa. July 30, 1997) (unpublished order).

Petitioner thereafter filed a second motion for post-conviction relief with the Court of Common Pleas ("Second PCRA Petition"). In this pleading, Lark set forth several claims based upon newly discovered factual predicates, including a claim of discriminatory jury selection based in part on the McMahon Tape. Motion for Post-Conviction Collateral Relief, Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Aug. 29, 1997). Lark amended his Second PCRA Petition on January 9, 1998, providing additional detail and argument in support of his claim of discriminatory jury selection. Amended Motion for Post-Conviction Collateral Relief, Commonwealth v. Lark, Jan. Term 1980, Nos.2012-2022 (Ct.C.P.Phila.Jan. 9, 1998). On June 9, 1998, Judge Poserina denied the Petition without an evidentiary hearing. (N.T. 06/09/98, 13.) Petitioner appealed to the Pennsylvania Supreme Court, which affirmed the denial of post-conviction relief on different grounds on February 23, 2000. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000).

During the pendency of the appeal of the denial of his Second PCRA Petition, Lark filed another habeas petition in this court. Lark v. Horn, No. Civ. A. 98-3708 (E.D.Pa.). Lark admitted that his petition contained some unexhausted claims — those claims that were the subject of his Second PCRA Petition. Lark was concerned that the statute of limitations established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2241(d), would run on his exhausted claims before he had exhausted his state post-conviction remedies with respect to his remaining claims. The court dismissed the Petition without prejudice, ordering that any re-filed petition would relate back to the date of the initial filing. Lark v. Horn, No. Civ. A. 98-3708 (E.D.Pa. Oct. 15, 1998) (unpublished order). After the Pennsylvania Supreme Court denied Lark's appeal from the denial of his Second PCRA Petition, Lark timely filed the instant Petition in this Court, in which he raises fifteen claims for relief from his state convictions and sentences.

III. THE COURT'S MAY 23, 2006 ORDER

By order of May 23, 2006, we granted in part and denied in part Lark's request for an evidentiary hearing. Claim I of Lark's Petition alleges that the trial prosecutor committed a violation of the Equal Protection Clause when he used peremptory strikes on African American veniremen in Lark's trial, and that the Philadelphia District Attorney's Office engaged in a policy of discriminatory jury selection. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Lark's trial counsel, Peter Rogers, raised the issue of the Commonwealth's improper peremptory strikes during the voir dire and sought to preserve a record of the racial composition of the jury.⁴ The issue was not raised on direct appeal, but was raised while the denial of Lark's first PCRA petition was on appeal. It was at that point in time that the existence of the McMahon Tape became public. Lark never received an evidentiary hearing on this claim in state court. In the Order of May 23, 2006, we determined that the claim was not procedurally defaulted because the state relied on an inadequate state procedural ground for its decision to deny review.⁵ We also noted that the McMahon Tape, as well as a statistical study attempting to correlate the McMahon Tape's jury selection techniques with the actual results obtained in Philadelphia County criminal jury selection proceedings, were not available when Lark filed his first PCRA.

We ordered an evidentiary hearing, finding that Lark had pled a prima facie case of discrimination. See Batson, 476 U.S. at 96, 106 S.Ct. 1712 (setting out a three-step process for establishing an Equal Protection violation injury selection, the first step of which is the determination of a prima facie case of purposeful discrimination based solely upon the prosecution's use of peremptory strikes to remove minority members of the jury venire). Lark is African-American. He alleged that at least ten and perhaps as many as twelve of the fifteen veniremen peremptorily struck by the Commonwealth were African-American, that their answers to voir dire questions did not reveal any race-neutral reason for the strikes, and that Mr. Carpenter, the trial prosecutor, tacitly admitted that he was excluding African Americans from the jury when he responded to Attorney Rogers' objection by stating "how awful." See Holloway v. Horn, 355 F.3d 707, 722 (3d Cir.2004) (identifying a pattern of strikes against racial group members and questions and statements during the voir dire as relevant factors in determining whether a prima facie showing of discrimination has been made). Based on the evidentiary hearing conducted November 8 and 9, 2006, we make the following findings of fact with regard to step two of the Batson inquiry.

IV. FINDINGS OF FACT

1. Lark was represented at trial by Peter Rogers, now a Judge of the Philadelphia Court of Common Pleas.

2. The Commonwealth was represented by former Philadelphia Assistant District...