Robert Lark v. Secretary Pennsylvania Departm, et al

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, Chief Judge, SCIRICA and GREENBERG, Circuit Judges. Total Pages: 3. Judge: MCKEE Authoring.

Case: 12-9003

Document: 003111608633

Page: 1

Date Filed: 05/06/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 12-9003
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ROBERT LARK
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
THE DISTRICT ATTORNEY PHILADELPHIA COUNTY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
Appellants
_______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-01-cv-01252)
District Judge: Honorable John R. Padova
______________
Argued: April 17, 2014
Before: McKEE, Chief Judge, SCIRICA and GREENBERG, Circuit Judges
(Filed: May 6, 2014)

Thomas W. Dolgenos, Esq. (ARGUED)
Ronald Eisenberg, Esq.
Edward F. McCann, Jr., Esq.
R. Seth Williams, Esq.
Three South Penn Square
Philadelphia, PA 19107-3499
Counsel for Appellants
Leigh M. Skipper, Esq.
Stuart Lev, Esq. (ARGUED)

Case: 12-9003

Document: 003111608633

Page: 2

Date Filed: 05/06/2014

Federal Community Defender Office
Eastern District of Pennsylvania
Suite 545 West – The Curtis Center
Philadelphia, PA 19106
Counsel for Appellee
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OPINION
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MCKEE, Chief Judge
The Commonwealth of Pennsylvania appeals the order of the District Court
granting Robert Lark’s Petition for a writ of habeas corpus. This is the second time this
case has come before us. We previously held that the District Court had not proceeded to
the third step of the inquiry required under Batson v. Kentucky, 476 U.S. 79 (1986), and
remanded for the court to conduct that analysis. See Lark v. Sec’y Pa. Dep’t of Corr., 645
F.3d 596, 628 (3d Cir. 2011) (“Lark I”). On remand, the District Court concluded that
Lark had established by a preponderance of the evidence that the Commonwealth had
struck five Black potential jurors because of their race. We must now determine if the
District Court’s findings were clearly erroneous. Holloway v. Horn, 355 F.3d 707, 713
(3d Cir. 2004); Lark I, 645 F.3d at 606.
We have explained that, “relief must be granted under Batson when even one
black person is excluded [from the jury] for racially motivated reasons.” Holloway, 355
F.3d at 720 (internal quotation marks omitted). We have carefully considered the
findings the District Court made on remand pursuant to its Third Step Batson analysis.
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Case: 12-9003

Document: 003111608633

Page: 3

Date Filed: 05/06/2014

We cannot conclude that the court’s conclusion that at least one of the Commonwealth’s
peremptory strikes was racially motivated is clearly erroneous.
Accordingly, we will affirm the conditional grant of Lark’s Petition for a writ of
habeas corpus.

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