NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-3311 ___________

STEVEN HUTCHINSON,

Appellant

v.

SUPERINTENDENT GREENE SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA

________________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:13-cv-03931) District Judge: Honorable John R. Padova ________________

Submitted Under Third Circuit L.A.R. 34.1(a) June 3, 2021

Before: AMBRO, HARDIMAN, and PHIPPS, Circuit Judges

(Opinion filed: June 23, 2021)

OPINION*

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

Steven Hutchinson appeals from the District Court’s denial of his petition for writ

of habeas corpus under

. We granted a certificate of appealability as to

one of his ineffective-assistance-of-counsel claims—based on his trial and appellate

counsel’s failure to challenge the prosecution’s use of peremptory strikes in a racially

discriminatory manner. Because Hutchinson failed to show he suffered any prejudice

from the alleged error, we affirm the District Court’s decision.

I.

In 1999, a Pennsylvania jury found Hutchinson guilty of first-degree murder and

other offenses in connection with the death of his girlfriend, Stephanie Epps. See

Commonwealth v. Hutchinson,

(Pa. 2002) (“Hutchinson I”). Epps’

two young children identified Hutchinson as the person who shot and killed their mother

in the lobby of her apartment.

A neighbor corroborated the children’s testimony and

saw Hutchinson’s car leaving the crime scene.

. The prosecution presented

additional circumstantial evidence, including that Hutchinson was physically abusive to

Epps, she sought a protective order against him, and he fled the area before his arrest in

Las Vegas, Nevada.

at 558–59. The jury sentenced Hutchinson to death, and on

direct appeal the Pennsylvania Supreme Court affirmed his conviction and sentence.

.

Hutchinson then filed a petition under Pennsylvania’s Post Conviction Relief Act

(“PCRA”) asserting several claims, including ineffective assistance of his trial and direct

appeal counsel. See Commonwealth v. Hutchinson,

(Pa. 2011) (“Hutchinson

2 II”). The PCRA Court denied Hutchinson’s guilt phase claims but set aside his death

sentence.

. The Pennsylvania Supreme Court affirmed the PCRA Court’s

decision.

. In 2013, Hutchinson was resentenced to life imprisonment without

the possibility of parole.

At the end of the line in the state court proceedings, Hutchinson filed a petition for

a writ of habeas corpus under

in the federal District Court, once again

raising a host of claims. In a thorough 113-page report and recommendation, Magistrate

Judge Richard A. Lloret recommended that the District Court deny all of Hutchinson’s

claims. It adopted the report and recommendation in its entirety.

We granted Hutchinson’s request for a certificate of appealability on a single

issue—“whether the District Court erred in denying [his] claim that his trial and appellate

counsel were ineffective for failing to assert a claim that the prosecution had used

peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky,

(1986).” JA 147.

II.

The Supreme Court held in Batson that “[p]urposeful racial discrimination in

selection of the venire violates a defendant’s right to equal protection.”

.

A trial court must engage in a three-step process to determine if there was a Batson

violation. See United States v. Savage,

, 266 (3d Cir. 2020) (citation

omitted). At step one, the defendant must make a prima facie showing that the

prosecution exercised a peremptory challenge on the basis of race.

If the showing has

been made, the prosecution must offer a race-neutral basis for the strike.

Finally at

3 step three, the trial court must consider the parties’ submissions and determine whether

the defendant proved purposeful discrimination.

Here, Hutchinson did not raise a Batson objection at trial or on direct appeal.

Instead, he argued in the PCRA proceeding that his trial and direct appeal counsel were

ineffective for failing to challenge the prosecution’s peremptory strikes based on Batson.

Hutchinson II,

. As support, he points out that the prosecutor struck black

members of the venire at approximately twice the rate of non-black members.

at 286–

87.1 Further, he alleged a policy of racial discrimination within the Philadelphia District

Attorney’s Office based on two training lectures.

.

The Pennsylvania Supreme Court rejected Hutchinson’s argument. As the lack of

a contemporaneous objection during voir dire makes it difficult to apply the Batson three-

step framework on post-conviction review, the Pennsylvania Supreme Court applied its

approach in Commonwealth v. Uderra,

(2004), which essentially

dispenses with Batson’s first two steps and requires Hutchinson to “bear[] the burden in

the first instance and throughout of establishing actual, purposeful discrimination by a

preponderance of the evidence.” Hutchinson II,

(internal citation

1 According to Hutchinson, the prosecutor struck 10 of 16 black members of the venire it had the opportunity to strike (62.5%) and only struck 8 of 27 white members it had the opportunity to strike (29.6%). Hutchinson’s Br. at 19. Hutchinson thus believes the prosecutor used 10 of 18 total peremptory challenges against black members of the venire (55.6%) and the resulting jury had 1 black person, 10 white persons, and 1 person of unknown race.

at 6–7. As the District Court explained, it deferred to the Pennsylvania Supreme Court and the PCRA Court, which disagreed with several of Hutchinson’s calculations. See Hutchinson II, 25 A.3d at 287–88; Dist. Ct. Op. at 12. We do not need to resolve this factual dispute, as we reject Hutchinson’s argument even if his calculations were correct. 4 omitted). It then concluded that Hutchinson’s “proffered evidence does not establish

actual, purposeful discrimination in jury selection.”

.

In his federal habeas petition, Hutchinson continues to press the same argument.

However, the District Court took a different approach to reject his request for relief.

First, it accepted the Magistrate Judge’s recommendation that the Pennsylvania Supreme

Court’s reliance on Uderra was unreasonable, and then proceeded to review the

ineffective assistance claim de novo. Based on its fresh review of the parties’ arguments

and evidence, it concluded that “Hutchinson has failed to establish a prima facie case of

discriminatory jury selection in violation of Batson.” Dist. Ct. Op. at 16.

III.

We agree with the District Court that Hutchinson’s ineffective-assistance-of-

counsel claim cannot prevail.2 Assuming without deciding that the Pennsylvania

Supreme Court’s reliance on the Uderra rule was an unreasonable application of Batson,

Hutchinson’s claim still does not pass muster under de novo review. See Panetti v.

Quarterman,

(2007) (explaining that if a state court’s adjudication of a

habeas claim is an unreasonable application of federal law, then a federal court “must

then resolve the claim without the deference AEDPA [

(d)] otherwise

requires”). To succeed on an ineffective-assistance-of-counsel claim under the Supreme

Court’s landmark decision in Strickland v. Washington,

(1984), Hutchinson

2 The District Court had jurisdiction under

and 2254. We issued a certificate of appealability and have appellate jurisdiction under

and 2253. 5 “had to show both that his counsel provided deficient assistance and that there was

prejudice as a result.” Harrington v. Richter,

(2011).

We first conclude that Hutchinson failed to demonstrate prejudice as a result of his

counsel’s alleged deficient performance. To establish prejudice, “a challenger must

demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’”

(quoting Strickland,

). While Hutchinson does not dispute that he must demonstrate prejudice to prevail

on his claim, he argues that because a successful Batson challenge means the jury

composition is unconstitutional, “prejudice necessarily attaches to his ineffectiveness

claim.” Hutchinson’s Br. at 38.

Hutchinson’s position does not accurately describe the current state of the law. It

is true that the Supreme Court has acknowledged that a claim of race discrimination in

jury selection is a structural error, meaning an error that “affect[s] the framework within

which the trial proceeds, rather than being simply an error in the trial process itself.”

Weaver v. Massachusetts,

, 1907–08 (2017) (internal quotation

marks and citation omitted). But Hutchinson is not raising a Batson claim, he is raising

an ineffective-assistance claim based on his counsel’s failure to raise a Batson claim.

While a successful Batson challenge preserved and then raised on direct appeal

“necessitate[s] automatic reversal,” the Supreme Court has not taken a position on

whether the “result should be any different if the error[] [was] raised instead in an

ineffective-assistance claim on collateral review.”

at 1911–12; see also Baxter v.

Superintendent Coal Twp. SCI, --- F.3d ----,

, at *4 (3d Cir. Apr. 8,

6 2021) (“A showing of structural error, however, does not always trigger a presumption of

prejudice.”). Further, the Supreme Court has not identified the failure to raise a Batson

objection as one of the limited circumstances where prejudice may be presumed. See

Weaver,

(Alito, J., concurring in judgment) (“The Court has relieved

defendants of the obligation to make this affirmative showing [of prejudice under

Strickland] in only a very narrow set of cases in which the accused has effectively been

denied counsel altogether.”).

In this context, we see no reason to relieve Hutchinson of the obligation to

demonstrate prejudice. And given the overwhelming evidence against him, we do not

believe the alleged deficient performance of his counsel had a reasonable probability of

affecting the outcome. See Buehl v. Vaughn,

(3d Cir. 1999) (“It is

firmly established that a court must consider the strength of the evidence in deciding

whether the Strickland prejudice prong has been satisfied.”). As noted above, ample

eyewitness testimony, from the victim’s two children and a neighbor, supported

Hutchinson’s conviction. Hutchinson I, 811 A.2d at 558–59. The prosecution also

presented substantial evidence that Hutchinson had a history of being physically abusive

and his victim feared for her life. Id. at 559. “In light of this evidence, [Hutchinson]

cannot show he was prejudiced” by his counsel’s alleged deficient performance. See

Baxter, --- F.3d at ----,

, at *5.

Because we conclude Hutchinson’s ineffectiveness claim fails on the prejudice

prong of Strickland, we do not need to reach whether his counsel’s performance was

indeed deficient—that is, whether counsel should have raised a valid Batson claim but

7 failed to do so. For completeness, we note that even if the statistics presented by

Hutchinson were enough to establish a prima facie Batson claim, they are often

insufficient to carry the day. See Riley v. Taylor,

(3d Cir. 2001)

(“[T]he statistical evidence . . . is relevant but not dispositive.”); cf. Miller-El v. Dretke,

(2005) (“More powerful than these bare statistics, however, are side-

by-side comparisons of some black venire panelists who were struck and white panelists

allowed to serve.”). However, Hutchinson “cited no occurrence at trial, no words of the

prosecutor or defense counsel or trial judge, and no action by the court that could lead to

an inference of racial discrimination in jury selection.” Hutchinson II,

.

Instead, he relies only on bare statistics and two lectures delivered twelve and nine years

before his trial. Id.; see Williams v. Beard,

, 219 n.19 (3d Cir. 2011)

(explaining that the “infamous Jack McMahon training videotape” referenced by

Hutchinson is “of little significance where the petitioner was unable to show that the

district attorney responsible for his prosecution had seen the tape or followed its

recommendations”) (internal citation omitted). And the fact Hutchinson’s own trial

counsel struck eight black members of the venire could further undercut any claim of

racially discriminatory behavior by the prosecution. Hutchinson II,

.

Without more evidence, a Batson challenge likely would not have been successful if

raised.

8 * * * * *

For the reasons explained above, we disagree with Hutchinson’s argument that his

trial and appellate counsel rendered ineffective assistance by failing to raise a Batson

objection. We thus affirm the District Court’s denial of his federal habeas petition.

9