Full opinion text
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. 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. Voir dire lasted for four days. 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 Hon- or. 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. 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 Bat-son, the rule in Batson is applicable to his case. 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. 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. 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 order, it denied Lark’s application for a remand. Commonwealth v. Lark, 698 A.2d at 52. On August 29, 1997, Lark filed a second PCRA petition in the Court of Common Pleas. In his second petition, Lark advanced several claims predicated on newly discovered facts, including a claim of discriminatory jury selection based on: (1) the McMahon tape; (2) the prosecutor’s allegedly discriminatory pattern of strikes; and (3) a report that Professors David Baldus and George Woodworth had authored on jury selection practices in Philadelphia capital cases from 1983-1993 (“the Baldus study”). Lark requested discovery and an evidentiary hearing to present evidence regarding the racial makeup of the jurors that Carpenter had struck and his motivation for striking the jurors. Lark also sought the hearing to present evidence regarding the jury selection policies of the Philadelphia District Attorney’s office. The PCRA court, without holding an evidentiary hearing, denied the petition as untimely because Lark filed the petition beyond the one-year statute of limitations applicable to PCRA petitions. See 42 Pa. Cons.Stat. Ann. § 9545(b) (West 1998). On appeal from the denial of post-conviction relief, the Pennsylvania Supreme Court held that Lark’s Batson claim was timely to the extent it was based on the McMahon tape because the facts underpinning that claim did not become available until the Philadelphia District Attorney’s Office released the tape in April 1997, and thus Lark’s Batson claim insofar as based on the McMahon tape came within the exception to the one-year deadline for filing PCRA petitions predicated on newly discovered facts. See id. at § 9545(b)(ii); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000). The court, however, affirmed the PCRA court’s denial on the merits as it concluded that the contents of the McMahon tape did not demonstrate that Lark had made a prima facie showing that there had been discrimination in the jury selection at his trial. Id. at 588-89. The court also held that the remaining bases for Lark’s Batson claims, namely the allegations arising from the race of each potential juror and the prosecutor’s “Oh. How awful” statement at trial, were present at the inception of his trial and thus did not fall into an exception from the one-year rule in section 9545(b). While his appeal was pending from the denial of his second PCRA petition in the Pennsylvania Supreme Court, Lark, in recognition of the possibility that if he did not act promptly the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations would preclude him from seeking federal relief, filed a habeas corpus petition in the District Court. Lark admitted that his federal petition contained unexhausted claims that had been included in his second PCRA petition. The District Court dismissed the petition without prejudice but ordered that the filing date that Lark filed another petition would relate back to the date of the filing of the dismissed habeas corpus petition. See Lark v. Beard, Civ. No. A. 01-1252, 2006 WL 1489977, at *3 (E.D.Pa. May 23, 2006) (“Lark I”). On March 16, 2001, after the Pennsylvania Supreme Court denied Lark’s appeal, he timely filed another habeas corpus petition in the District Court, this time raising 15 claims. Lark filed a motion for an evidentiary hearing on his habeas corpus petition but the Commonwealth objected to the granting of that hearing as it contended that he was not entitled to an evidentiary hearing on the Batson claim inasmuch as he failed to develop a factual record for that claim in the state court. The Commonwealth also objected to the Batson claim on the grounds that it was unexhausted and procedurally defaulted inasmuch as Lark failed to comply with the PCRA’s one-year statute of limitations. See 42 Pa. Cons.Stat. Ann. § 9545(b). In an order entered on May 23, 2006, the District Court held that Pennsylvania’s one-year statute of limitations for PCRA petitions was not in force at the time of Lark’s alleged default and, relying in part on our holding in Bronshtein v. Horn, 404 F.3d 700 (3d Cir.2005), held that the time bar was not an independent and adequate state law barrier to federal habeas corpus review of Lark’s claims. Lark I, 2006 WL 1489977, at *7. In a related holding, the Court determined that, inasmuch as the PCRA court and the Pennsylvania Supreme Court denied Lark’s request for an evidentiary hearing pursuant to the same one-year statute of limitations which it had found to be an inadequate state ground to bar habeas corpus relief, Lark had not failed to develop the factual basis of his Batson claim to the end that 28 U.S.C. § 2254(e)(2) prevented the Court from exercising its discretion to grant him an evidentiary hearing. The Court also found that Lark alleged facts, which if proven true, would establish a prima facie showing that Carpenter exercised peremptory challenges based on race. In particular, Lark alleged that Carpenter’s high strike rate of African-American jurors, the absence of any race-neutral reasons for the strikes in the transcripts, and the trial prosecutor’s remark of “Oh. How awful” in response to defense counsel’s comment that he was striking all the blacks from the jury, demonstrated a Fourteenth Amendment Equal Protection Clause violation. Finally, the Court exercised its discretion and granted Lark an evidentiary hearing on his claim of jury discrimination and ineffective assistance of counsel at the guilt and sentencing phases of his trial. At the evidentiary hearing on November 8, 2006, the Commonwealth presented Carpenter’s testimony to answer the allegations that he struck jurors based on their race. Carpenter testified that at the time of Lark’s trial he had been a prosecutor for ten years, and had not received formal training on jury selection practices, the Philadelphia District Attorney’s Office did not have formal rules about how to make peremptory strikes, and, although he knew Jack McMahon, that he did not take directions from him on how to pick a jury. Apparently referring to the time of the evidentiary hearing as McMahon did not make the tape until after Lark’s trial, he said that while he had heard of the McMahon tape he had never seen it and was not familiar with its contents. Carpenter also stated that while he was aware that systematic exclusion of jurors based on race “wasn’t right” under the law at the time of the trial, he was unsure, prior to Batson, whether the law permitted a prosecutor to strike individual jurors on the basis of their race. App. at 1021. Carpenter further testified that he remembered Lark’s trial because it was the only case in which he obtained a death sentence and because of his tense relationship with Rogers during the trial. In preparation for his testimony at the evidentiary hearing, Carpenter reviewed the transcript of the voir dire but he could not recall much of that process and could not recall specific jurors. Carpenter also reviewed the handwritten notes he took during jury selection, but they did not refresh his recollection of his reasons for his strikes of individual jurors and Carpenter testified that, while he used abbreviations and symbols, he was not systematic in his note-taking. The Commonwealth then questioned Carpenter about each of his individual peremptory strikes. Except as to one juror, Charles Rabb, Carpenter had no independent or refreshed recollection of reasons for any of the peremptory strikes he exercised during Lark’s trial. However, based on the circumstantial evidence that Carpenter provided, the District Court found that the Commonwealth had offered race-neutral reasons for every peremptory strike the Commonwealth questioned him about except for three jurors. . Inasmuch as .the District Court later based its grant of the conditional writ on Carpenter’s failure to provide a race-neutral explanation for these three jurors, we will focus on those jurors in this appeal. However, we think it is important to recognize that, despite our focus on these three jurors, on remand the District Court may conclude at the third step of the Batson process that any one of Carpenter’s 13 peremptory strikes against African-Americans amounted to purposeful discrimination. The first juror Carpenter could not recall striking and could not provide circumstantial evidence for removing was Shirley Sampson, an African-American female, who was the subject of his first peremptory challenge. Carpenter could not recall independently why he struck Sampson and when he read the transcript of her questioning his memory as to why he struck her was not refreshed. Carpenter, however, unequivocally denied that he struck her because she was African-American and averred that striking any juror because of his or her race was legally and morally abhorrent to him. Before proceeding to the next juror, the Commonwealth’s attorney asked Carpenter questions about his general jury selection practices. Carpenter stated that the neighborhood where a potential juror lived was important because he did not want jurors who lived near the defendant or the place where the incident involved in the trial had occurred. Though Carpenter indicated that he did not want a juror who lived too close to the defendant or who lived close to the crime scene, he did not state that he struck Sampson for either of these reasons. Later, Carpenter testified that he took into account a potential juror’s: (1) employment status and nature of employment, as having a job showed that person had roots in the community but that he nevertheless did not want teachers or social workers on the jury; (2) a juror’s age, as older jurors were wiser and more responsible; (3) children, as Carpenter did not want jurors who had children who were the same age as the defendant; (4) home ownership, as a homeowner had a stake in the community; (5) hardship; (6) prior jury experience; (7) history as a victim of crime or a witness or defendant in a criminal case; (8) relationship with police officers, as Carpenter viewed jurors positively if they had family members who were police officers; (9) acquaintance with any potential witnesses in the trial; and (10) feelings about the death penalty. The second venireperson for whom Carpenter could not give a specific reason, or a reason based on circumstantial evidence, for striking was Florence Williams, also an African-American female. Carpenter could not find anything “particularly wrong” with Williams by looking at the trial transcript. Id. at 1044. He, however, did state that there were other circumstances that might not appear in the transcript, “[f]or example, if I don’t like the juror, I think ... it’s a good bet she doesn’t like me.” Id. at 1045. When the District Court stated that “there could have been body language there,” Carpenter responded by saying “exactly.” Id. As was the case with Williams, Carpenter could not recall a specific or circumstantial reason for striking the third juror, Edison Sisco, an African-American male. Carpenter, however, noted that neither he nor defense counsel asked Sisco many questions. When asked whether there was anything in the transcript which might indicate why he struck Sisco, Carpenter answered “No. Except one thing he said was, when he was asked when [sic] was the last school he attended, he said Dobbins and then he said ‘No, Overbrook.’ I don’t know it looks like he — I don’t know.” Id. at 1053. After the hearing, the parties filed two stipulations as to the race of potential jurors that Carpenter struck and seated on the jury. The stipulated list of 29 persons included the race and gender of the selected jurors, the selected alternates, and the prospective jurors that Carpenter excused with peremptory challenges. According to the stipulations, the jury in Lark’s case was composed of four African-Americans and eight Caucasians. Carpenter did not exercise all of the peremptory strikes allotted to the prosecution and had five peremptory strikes remaining at the end of voir dire; however, out of the 15 peremptory strikes Carpenter used, 13 were used to strike African-Americans. Id. at 948-52. On July 3, 2007, the District Court granted the writ on the strength of the Batson claim, ordering the Commonwealth to retry Lark within 180 days or release him. The Court examined Lark’s claim under the familiar three-step Batson analysis: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003) (hereinafter “Cockrell”) (citations omitted). As we indicated above, the District Court, in its May 23, 2006 order holding that the one-year PCRA time bar was not an independent and adequate ground to bar Lark’s petition in that Court, determined that Lark met the first step of the Batson inquiry. At the second step, the Court determined that because Carpenter could not articulate a race-neutral reason for his peremptory strikes of Sampson, Williams, and Sisco, the Commonwealth failed to meet its burden of production. The Court held that where the state fails to meet its Batson duty of production at step two, the analysis ends with a finding that there was a Batson violation. The Court did not reach the issue of whether Lark’s reliance on the Baldus study and the McMahon tape to prove discrimination at the third step supported his Batson claim. The Commonwealth filed a timely notice of appeal challenging the Court’s conditional grant of the writ. III. JURISDICTION AND STANDARDS OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254 and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The parties dispute the appropriate standard of review. They agree that we exercise plenary review over the Court’s conclusions of law and review its factual findings for clear error. See Holloway v. Horn, 355 F.3d 707, 713 (3d Cir.2004). But they differ with respect to the degree of deference that we must afford the Court’s finding of intentional discrimination in the jury selection process. Lark asserts that once a district court concludes that a petitioner has shown that there was intentional discrimination in the jury selection process, a court of appeals may not reject that determination unless the district court’s conclusion is shown to be clearly erroneous. Wilson v. Beard, 426 F.3d 653, 668-69 (3d Cir.2005). The Commonwealth characterizes this approach as too simple and incorrect for use in this case, as it argues that the District Court predicated its finding of intentional discrimination on a misapplication of Bat-son’s legal principles. Accordingly, the Commonwealth asserts that we exercise plenary review of the Court’s finding. Lark’s citation of Wilson for the standard of review is misleading. In Wilson, we upheld a district court’s factual finding of intentional discrimination at the third step of the Batson analysis. Id. at 670. But the district court based that finding on its credibility determination that the prosecutor acted with a discriminatory intent in exercising his peremptory strikes. Id. Here, the District Court did not base its decision on a credibility determination nor did it proceed to the third step of the Batson analysis. Rather, the Court ruled that the Commonwealth did not offer any explanation for making the three peremptory strikes and, therefore, as a matter of law, it failed to meet its burden at step two of the Batson analysis. But the Court’s approach here was problematic, for we have stated, “the Batson inquiry ends and the conviction must be vacated at the second stage of the analysis if the state’s explanation is such that, taken at face value, it either demonstrates an equal protection violation or would otherwise be inadequate as a matter of law to support the conviction.” Johnson v. Love, 40 F.3d 658, 668 (3d Cir.1994) (internal citation omitted). Therefore, because the District Court did not indicate that Carpenter’s explanations at step two demonstrated an equal protection violation, the Court necessarily determined that Carpenter’s explanations for using peremptory challenges to strike Sampson, Williams, and Sisco were inadequate as a matter of law. We will exercise plenary review over that legal conclusion. See Whitney v. Horn, 280 F.3d 240, 249 (3d Cir.2002). IV. DISCUSSION A. Timely Batson Objection First, the Commonwealth argues that Lark did not make an adequate “Bat-son-style objection at trial,” and therefore, under our precedent, he is not entitled to relief on the Batson claim. Appellant’s br. at 13. Lark counters by asserting that the Commonwealth impermissibly is raising this argument on appeal for the first time. In reply, the Commonwealth asserts that it raised the issue at several points in its original response to the petition. Further, the Commonwealth argues that, inasmuch as we have held that a timely objection at trial is required to preserve a Batson claim, Lark has the burden to prove that he raised a timely Batson objection at trial and thus the Commonwealth did not need to raise the issue as an affirmative defense. See Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir.2009). The Commonwealth argues that, in any event, in these habeas corpus proceedings it raised Lark’s failure to object by stating, in its response to Lark’s petition, that: (1) defense counsel “objected to, at most, four peremptory challenges which the prosecutor had made during the afternoon session of June 7, 1985”; (2) “trial counsel did not specify the exact strikes to which he was objecting”; (3) “as a result of [Lark’s] dereliction in pursuing the Batson claim in state court, the record was not preserved”; (4) “[T]he record reflects that defense counsel told the court he had what he needed to make a record, but he never raised the subject again.” Appellant’s reply br. at 5 (internal citations and quotation marks omitted). These statements, however, did not put the District Court on notice of the legal argument that the Commonwealth now wishes to raise: that Lark’s objection at trial was not sufficient and timely and Lark therefore has waived the Batson claim for the purposes of federal habeas corpus review. See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir.2005) (stating that the crucial question regarding waiver is whether the petitioner presented the argument with sufficient specificity to alert the district court). It is unsurprising, therefore, that the District Court did not address this argument either in its May 23, 2006 order granting an evidentiary hearing or in its July 3, 2007 order granting the conditional writ. The Court only held that “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.” 495 F.Supp.2d at 492. “As a general rule, we do not consider on appeal issues that were not raised before the district court.” Appalachian States Low-Level Radioactive Waste Comm’n v. Pena, 126 F.3d 193, 196 (3d Cir.1997) (internal quotation marks omitted). Nevertheless, in Appalachian States we noted that the enforcement of a waiver involves the exercise of discretion and thus the rule providing for waiver may be relaxed “whenever the public interest or justice so warrants.” Id. (citations and internal quotation marks omitted). But even if we held that it was appropriate to relax the ordinary appellate review rule in order to consider the issue that the Commonwealth raises, i.e., that Lark did not make an adequate Batson objection at his trial, and we agreed with the Commonwealth that a defendant must make a timely Batson objection at trial to preserve a Batson issue and that the requirement that he do so cannot be waived, we would find that Lark made a timely objection at trial so as to preserve the Batson issue for later habeas corpus review. We have held that, even in trials before the Supreme Court’s decision in Batson, a timely objection to the prosecutor’s exercise of peremptory strikes is a prerequisite to raising a Batson claim on appeal. Lewis v. Horn, 581 F.3d at 102, citing Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir.2008), vacated on other grounds sub nom., Beard v. Abu-Jamal, — U.S.-, 130 S.Ct. 1134, 175 L.Ed.2d 967 (2010). We explained that, “a timely objection of racial bias involving jury composition would have alerted the judge to errors that might be corrected in the first instance and given the judge the opportunity to develop a complete record of the jury selection process for appellate review.” Abu-Jamal, 520 F.3d at 282. Thus, in Abvr-Jamal the petitioner forfeited his Batson claim because he “did not object to the prosecutor’s use of peremptory challenges at any point during voir dire or at his 1982 trial.” Id. at 283-84. Likewise, in Lewis we held that the petitioner’s statement of “So prejudiced. So prejudiced,” and “I knew he would do that” after the prosecution’s use of peremptory strikes was not sufficient to alert the trial judge to a claim that the prosecution was striking venire members in a racially discriminatory manner. Lewis, 581 F.3d at 102. As was true for the petitioners in Lewis and Abur-Jamal, Lark’s trial was prior to the Supreme Court’s decision in Batson and thus was at a time that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, set forth the standard governing the review of the use of peremptory challenges. In order to show a Fourteenth Amendment Equal Protection Clause violation under Swain, the defendant had “to show a pattern and practice of racial discrimination in jury selection across multiple prosecutions,” Sistrunk v. Vaughn, 96 F.3d 666, 668 (3d Cir.1996), but the prosecutor did not need to give reasons for the use of individual peremptory challenges to avoid a finding that there had been an equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct. at 837. An equal protection objection under Swain, however, “necessarily states an equal protection violation subject to proof under the Batson standard .... ” Ford v. Georgia, 498 U.S. 411, 420, 111 S.Ct. 850, 856, 112 L.Ed.2d 935 (1991). Here it is clear that Rogers, Lark’s trial attorney, raised a timely objection to what he perceived was the prosecutor’s exercise of discriminatory peremptory challenges. At the trial on June 7, 1985, Rogers asked that: [T]he 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. App. at 611-12. Counsel later stated that “as of this afternoon, your honor, he is striking all blacks.” Id. at 612. The trial court refused to make a record as it stated that there was no way to determine a person’s race or color and that neither attorney had to explain his reasons for exercising peremptory challenges. Rogers’ statements that the prosecutor was striking all of the black jurors put the trial court on notice of Lark’s claim and distinguishes his case from Lewis and Abu-Jamal. Specifically, Rogers timely pointed out what he perceived was the Commonwealth’s racially motivated peremptory strikes and he thus invited the trial court to develop a record on the issue for appellate review. This notice was all that Abu-Jamal requires. See Williams v. Beard, 637 F.3d 195, 208 n. 12 (3d Cir.2011). The Commonwealth’s contentions that Rogers only made a “vague request for records,” did not ask the trial court to order Carpenter to explain himself, and only questioned the challenge of four jurors, do not demonstrate that Rogers did not make an objection at trial to the allegedly race based peremptory challenges. Appellant’s reply br. 8-10 (internal quotation marks omitted). It would have been futile for Rogers to ask that Carpenter be required to explain the reason for his individual peremptory challenges or for Rogers to renew the objection when each African-American juror was excused for under the Supreme Court case law at the time of Lark’s trial, individual challenges in one case could not be the basis for finding that there had been an equal protection violation. See Swain, 380 U.S. at 222, 85 S.Ct. at 837. Indeed, the trial court indicated as much when it stated that neither Carpenter nor Rogers had to explain the reasons behind individual peremptory strikes. We think it is also significant that even Carpenter recognized that Rogers was attempting to raise a Fourteenth Amendment Equal Protection argument when Carpenter stated, referring to the Swain standard, that “there’s obviously not systematic exclusion when you’ve got 3 members out of 9 who are the same race as the defendant and his attorney.” App. at 616; see Swain, 380 U.S. at 227, 85 S.Ct. at 839. Further, Rogers’ request for a record of the race of the jurors that Carpenter struck sought the type of evidence that would support (or refute) an equal protection violation under Swain. See id. at 223, 85 S.Ct. at 837 (“[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.”). Therefore, even though Rogers’ statement that Carpenter was striking “all the blacks” from the jury and his request that the trial court make a record of the race of the jurors did not raise an objection with “the clarity that appropriate citations would have promoted,” his protest reasonably raised an equal protection claim under Swain. Ford, 498 U.S. at 418, 111 S.Ct. at 855. Thus, the objection was adequate to raise an equal protection claim under Batson. Id. at 420, 111 S.Ct. at 856. Finally, the Commonwealth argues that, even if Lark properly objected to Carpenter’s peremptory strikes so as to raise an equal protection claim, the trial court’s rejection of that objection is entitled to deference. It is true that in the habeas corpus context federal courts owe the same deference to implicit state court factual findings as they afford to explicit state court factual findings. See, e.g., La-Vallee v. Delle Rose, 410 U.S. 690, 692, 93 S.Ct. 1203, 1204, 35 L.Ed.2d 637 (1973) (per curiam); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.2000) (“[A]n implicit finding of fact is tantamount to an express one, such that deference is due to either determination.”). Here, however, the trial court’s response that it was impossible to determine the race of the jurors and that counsel did not have to give reasons for peremptory challenges, clearly was a refusal to engage in an equal protection analysis rather than an implicit finding of fact entitled to deference under 28 U.S.C. § 2254(e)(1). Cf. Campbell, 209 F.3d at 289-90 (holding that state court made implicit credibility finding entitled to deference where court repeatedly stated that petitioner’s ineffective assistance of counsel claim had no legal merit); see also Coombs v. Diguglielmo, 616 F.3d 255, 263 (3d Cir.2010) (citation omitted) (“Where the state court fails to undertake a full step-three analysis, as required by Batson, we will remand for the district court to engage in independent fact-finding.”). In sum, even though Lark did not present his equal protection claim with great clarity at the trial we will not reject his Batson claim on the basis that he failed to advance a timely Batson objection at trial. B. Procedural Default We next consider whether Lark procedurally defaulted his Batson claim by failing to advance it properly in the Pennsylvania courts. There has been a procedural default when “a state court declined to address a prisoner’s federal claims because the prisoner failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). As a matter of comity and federalism, a federal court may not conduct habeas corpus review of a claim which a petitioner has procedurally defaulted in state court. Federal review, however, is available if the procedural rule that the state court applied to bar a federal claim was not “independent” and “adequate.” See Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir.2007) (internal citations omitted). A state procedural rule is an inadequate ground to bar federal review if it was not firmly established and regularly followed by the state courts at the time it was applied. Bronshtein, 404 F.3d at 707. Whether a proce dural rule “was firmly established and regularly applied is determined as of the date the default occurred, and not as of the date the state court relied on it, because a petitioner is entitled to notice of how to present a claim in state court.” Albrecht, 485 F.3d at 115 (internal citations omitted). Lark first attempted to raise a specific claim under Batson when he unsuccessfully sought an order from the Pennsylvania Supreme Court remanding his PCRA petition to the PCRA court so that he could raise a Batson claim. Thereafter Lark filed a second PCRA petition in 1997 raising a Batson violation as a ground for relief and requesting that the court grant him an evidentiary hearing to present proof of the race of the venirepersons at his trial and to enable him to advance the McMahon tape in support of his claim. The PCRA court, without holding an evidentiary hearing, dismissed the petition as untimely under the PCRA deadline set forth in 42 Pa. Cons.Stat. Ann. § 9545(b). On appeal from the dismissal of the second PCRA petition, the Pennsylvania Supreme Court invoked section 9545(b)(l)(ii) to hold that the petition so far as it asserted a Batson claim was timely but only to the extent that Lark predicated the claim on the McMahon tape. 746 A.2d at 588. Thus, the court held that it could not review the Batson claim to the extent Lark predicated it on the Baldus study, the prosecutor’s “Oh. How awful,” statement, and the race of the potential jurors inasmuch as those aspects of the claim were ascertainable more than one year before Lark filed his second PCRA petition, and a Batson claim on any of these three bases did not fall within the exception set forth in section 9545(b)(l)(ii). Id. at 589. On the merits, the court held that the McMahon tape was not sufficient to establish a policy of discrimination by the prosecutors in the Philadelphia District Attorney’s Office. Id. (citing Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 443 n. 10 (1999)). As we recently discussed in Morris v. Beard, 633 F.3d 185 (3d Cir.2011), the PCRA one-year statute of limitations in 42 Pa. Cons.Stat. Ann. § 9545(b) was not firmly established and regularly followed prior to 1998: In Bronshtein, we explained that the PCRA’s one-year statute of limitations was not an adequate state bar to federal habeas review of claims defaulted prior to, at the very least, October 20, 1998. [Bronshtein, 404 F.3d] at 709. Before that date, Pennsylvania courts frequently applied a ‘relaxed waiver’ rule in capital cases. Id. In other words, courts refused to enforce procedural rules-such as the PCRA’s one-year statute of limitations — in capital cases because of the ‘overwhelming public interest in preventing unconstitutional executions.’ Id. at 708 (quoting Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 180-81 (Pa.1978)) (internal quotation marks omitted). Although a trio of Pennsylvania Supreme Court decisions in 1998 and 1999 interred the relaxed waiver doctrine, see, e.g., Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (Pa.1999), we observed in Bronshtein that it was not clear that the rule would be unavailable as of October 20, 1998— the date of Bronshtein’s default. See 404 F.3d at 709-10. Because the PCRA’s one-year statute of limitations ‘was not firmly established and regularly followed’ as of that date, we held it was an inadequate state bar to federal habeas review of Bronshtein’s claims. Id. Morris, 633 F.3d at 191. Here, the default in the timeliness of the filing of Lark’s second PCRA petition was on January 16, 1996, or the effective date of the PCRA time bar, at a time that the PCRA one-year time bar was not firmly established due to the Pennsylvania Supreme Court’s “relaxed waiver” rule. Bronshtein, 404 F.3d at 708 (citing Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978)). Therefore, as we held in Bronshtein and most recently re-affirmed in Morris in a similar situation, the one-year PCRA time bar cannot justify a federal court determination that Lark’s Bat-son claim has been proeedurally defaulted. The Commonwealth argues that the state time-bar rule was an adequate basis to find that Lark had proeedurally defaulted his Batson claim because he had notice of the time bar which the Pennsylvania General Assembly made explicitly applicable to capital cases and, further, that the Pennsylvania Supreme Court never applied the relaxed waiver rule to the time bar. But our reasoning in Bronshtein refutes these arguments and we have reaffirmed the Bronshtein reasoning in subsequent cases and, therefore, we need not address the Commonwealth’s arguments any further. See Morris, 633 F.3d at 195; Holland v. Horn, 519 F.3d 107, 115 (3d Cir.2008). In holding that the time bar was not an independent and adequate state ground for denying relief for purposes of a later procedural default analysis in a federal district court, we have considered the two most recent Supreme Court decisions addressing the adequate and independent state rule doctrine, Walker v. Martin, — U.S.-, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011), and Beard v. Kindler, — U.S. -, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). In Kindler, the Court considered a very narrow question not implicated here: whether a state procedural ground is automatically inadequate and unenforceable on federal habeas corpus review because the state procedural rule is discretionary rather than mandatory. Id. at 614-15. Similarly, in Walker the Court held that California’s judge-made rule that a state habeas corpus petition “should be filed as promptly as the circumstances allow ...” is an independent and adequate state rule for purposes of procedural default. Walker, 131 S.Ct. at 1125 (internal quotation marks and citation omitted). The Court held that the California rule, though discretionary, met the “firmly established” criterion because the California courts’ application of the rule in particular circumstances supplied the requisite clarity for habeas corpus petitioners. Id. at 1128. Further, the rule was “regularly followed” even though at times the California courts bypassed the rule and summarily dismissed petitions on the merits. Id. at 1129. The Supreme Court’s holdings in Walker and Kindler have not affected our holding in Bronshtein that prior to 1998 capital petitioners in Pennsylvania could rely on state courts to relax procedural rules, including the one-year PCRA time bar. Bronshtein, 404 F.3d at 709. Both Walker and Kindler concerned discretionary and independent state procedural rules which state courts consistently applied to bar federal claims. In contrast, Pennsylvania’s PCRA time bar is a facially mandatory state procedural rule which was not clearly followed in capital cases at the time of Lark’s state court default due to the Pennsylvania Supreme Court’s judicially created doctrine of “relaxed waiver.” See, e.g., Bostick v. Stevenson, 589 F.3d 160, 165 n. 6 (4th Cir.2009) (“We do not read Kindler to apply to facially mandatory rules that state courts nonetheless apply arbitrarily.”). Indeed, by the Pennsylvania Supreme Court’s own recognition, the “relaxed waiver” rule “virtually eliminated any semblance of finality in capital cases.... ” Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998). Thus, it cannot be argued plausibly that the PCRA time bar regularly was followed or firmly was established at the time of Lark’s procedural default in 1996. C. District Court Evidentiary Hearing The Commonwealth argues that, even assuming Lark’s Batson claim is not procedurally defaulted, the District Court should not have held an evidentiary hearing on the claim inasmuch as Lark was not sufficiently diligent in pursuing his Batson claim in state court as 28 U.S.C. § 2254 requires. Section 2254(e)(2) provides that, If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). The Supreme Court has held that a failure to develop the factual basis of a claim in the opening clause of section 2254(e)(2) “is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). The Court distinguished the diligence requirement of the opening clause of section 2254(e)(2) from the diligence requirement of section 2254(e)(2)(A)(ii) by explaining that the latter refers to cases in which the facts underlying a claim could not have been discovered through due diligence while the former asks only whether “the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court....” Id. at 435, 120 S.Ct. at 1490. Thus, there is a separate fault requirement in the opening clause of section 2254(e)(2) which asks whether the petitioner adequately and diligently pursued the factual basis of his claim in state court. If the petitioner fails in this regard and is therefore “at fault,” the bar to relief in section (e)(2) is raised. Otherwise, if the petitioner is not “at fault,” the court may exercise its discretion to grant an evidentiary hearing. See Campbell, 209 F.3d at 287 (stating that if section 2254(e)(2) does not bar an evidentiary hearing, federal courts have discretion to grant a hearing with the potential to advance the petitioner’s claim). Here, the District Court held that because the state court denied Lark’s request for an evidentiary hearing based on an inadequate procedural rule, Lark did not fail to develop the Batson claim and section 2254(e)(2) did not bar a hearing in that Court. See Morris, 633 F.3d at 194-95 (citing Wilson, 426 F.3d at 665). The Court, after finding section 2254(e)(2) inap plicable, exercised its discretion to grant Lark an evidentiary hearing. The Commonwealth contends that the District Court improperly conflated diligence and procedural default. In Wilson we stated that the procedural default doctrine and section 2254(e)(2)’s diligence requirement analytically were linked: “If a petitioner requests a hearing to develop the record on a claim in state court, and if the state courts ... deny that request on the basis of an inadequate state ground, the petitioner has not ‘failed to develop the factual basis of [the] claim in State court proceedings’ for the purposes of § 2254(e)(2).” Wilson, 426 F.3d at 665. Nevertheless, the Commonwealth argues that the diligence standard sets a different and higher bar than the procedural default doctrine and dismissal on the basis of an inadequate procedural rule does not excuse years of dilatoriness in state court. The Commonwealth also argues that Wilson is distinguishable because McMahon himself prosecuted the petitioner in that case and the petitioner could not have brought the claim earlier because the tape was the “centerpiece” of his Batson claim. Id. at 666 n. 11. As the Commonwealth is quick to point out, Lark was aware of the factual predicates of his Batson claim — the pattern of the prosecution’s strikes, the race of the jurors, and the prosecutor’s statement — as early as his trial counsel’s objection during the jury selection process of his case. The Commonwealth makes a strong argument, particularly inasmuch as the years of delay between the District Court evidentiary hearing and the trial greatly prejudiced its ability to respond to the Batson claim. As the Supreme Court has noted, the principles of comity and federalism underlie the diligence requirement: Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. Williams, 529 U.S. at 437, 120 S.Ct. at 1490-91 (internal citation and quotation marks omitted). It is undoubtedly reasonable to argue that Lark’s failure to raise the Batson claim on direct appeal followed by his inaction for six years before filing a post-conviction petition, which even then did not raise a Batson claim, demonstrated that he did not make a “diligent search for evidence.” Id. at 435, 120 S.Ct. at 1490. Moreover, Rogers, who was Lark’s counsel on his direct appeal as well as at trial, was clearly aware of a potential discriminatory jury selection claim for, as we have discussed, he raised an objection to the prosecution’s strikes during voir dire. Thus, though the McMahon tape and the Baldus study may not have alerted Lark to a possibility of there having been a “culture of discrimination” in the Philadelphia District Attorney’s Office until after his trial and direct appeal in this case, see Cockrell, 537 U.S. at 347, 123 S.Ct. at 1045, we reject Lark’s argument that he could not have been aware of his Batson claim given the information available at the time of his direct appeal and we also reject his argument that he could not have discovered the claim through the exercise of a reasonable investigation. Cf. Williams, 529 U.S. at 439-40, 120 S.Ct. at 1492 (holding that petitioner failed to develop facts of Brady claim where counsel was a aware of psychiatric report but failed to investigate in anything but a “cursory manner”). After all, the jury selection process took place in front of him. Moreover, inasmuch as a Batson claim, unlike a Swain claim, can be proven by the facts in a single case relating to jury selection, Lark did not need “culture of discrimination” materials to establish his claim. We nevertheless reject the Commonwealth’s arguments regarding the delay in this case because, after the Commonwealth submitted its brief on this appeal but before the oral argument, we rejected an almost identical argument in Morris. In that case, the petitioner, Kelvin Morris, was convicted of first-degree murder and sentenced to death in Pennsylvania state court. After he filed an unsuccessful direct appeal and an unsuccessful PCRA petition, Morris filed a second PCRA petition in which he raised, for the first time, a claim that his trial attorney’s representation of his brother, Artie Morris, in a civil suit created a conflict of interest that deprived Morris of effective assistance of counsel in his criminal trial. Morris, 633 F.3d at 190. The PCRA court dismissed the second petition without holding an evidentiary hearing for the sole reason that Morris filed the petition beyond the PCRA’s one-year statute of limitations. Id. Morris then filed a federal habeas corpus petition raising the same claim and requesting an evidentiary hearing. The Commonwealth, as it does in this case, argued that, because of the lengthy delay and the timing of Morris’ claim, section 2254(e)(2) barred the district court from holding an evidentiary hearing. Inasmuch as the petitioner in Morris and Lark are in almost identical procedural postures, we will quote from our opinion in Morris at length: One might argue that [Morris’] failure to comply with the PCRA’s one-year statute of limitations means that he did not seek a hearing ‘in the manner prescribed by state law.’ Williams, 529 U.S. at 427, 120 S.Ct. at 1485-86. But such an argument runs headlong into our holding in Bronshtein, where we observed that the PCRA’s time bar was neither ‘firmly established’ nor ‘regularly followed’ at the time [Morris] filed his second PCRA petition. 404 F.3d at 709-10. Because of the uncertainty surrounding Pennsylvania’s use of the ‘relaxed-waiver rule’ at that time, it was effectively impossible for [Morris] to fail to comply with Pennsylvania law on statute of limitations grounds when filing his second PCRA petition. In Williams, the Supreme Court explained that a finding of diligence would turn on whether a petitioner ‘made a reasonable attempt’ to pursue his claim ‘in light of the information available at the time.’ 529 U.S. at 435, 120 S.Ct. at 1490. With no ‘firmly established and regularly applied rule’ clearly barring [Morris’] lengthy delay, Bronshtein, 404 F.3d at 708, his belated hearing request was an acceptable attempt to pursue his claim in light of the information available to him at the time of filing. Because the Pennsylvania state courts failed to hold a hearing and rule on [Morris’] conflict-of-interest claim ‘for some reason unrelated to [his] diligence, § 2254(e)(2) [does] not apply and a new evidentiary permitted.’ Taylor v. Horn, 504 F.3d 416, 436 (3d Cir.2007). As the Commonwealth correctly argues, merely because a petitioner has complied with state law when seeking an evidentiary hearing does not mean that he has been diligent for purposes of § 2254(e)(2). The jurisdictional standard for procedural default of § 2254(a) and the evidentiary hearing standard of § 2254(e)(2) are distinct provisions that will frequently require separate analyses. But where, as here, a state court gives no reason for denying a petitioner’s hearing request other than his fail ure to comply with a subsequently invalidated state statute of limitations, we cannot say that the petitioner was not diligent for purposes of § 2254(e)(2). Accordingly, we hold that § 2254(e)(2) did not prohibit the District Court from conducting an evidentiary hearing on [Morris’] conflict-of-interest claim. Morris, 633 F.3d at 195-96 (emphasis added). In a letter filed pursuant to Fed. R.App. P. 28(j), the Commonwealth attempts to distinguish Morris by arguing that the rule we established in that case was the following: “where a petitioner had the opportunity and forum to litigate the merits of the claim in state court, but failed to do so, he is not diligent under [section] 2254(e)(2) even though his later attempt to raise the again [sic] is barred by an inadequate rule.” Appellant’s 28(j) letter dated January 31, 2011, at 1-2. But as the excerpted portion above demonstrates, this is a misstatement of Morris’ holding. Rather, the holding in Morris was that section 2254(e)(2) does not bar an evidentiary hearing for lack of diligence where the only reason a state court gives for denying an evidentiary hearing is a subsequently invalidated state procedural rule. This is exactly what happened in Lark’s case. Furthermore, the Commonwealth’s reliance on our opinion in Taylor v. Horn, 504 F.3d 416 (3d Cir.2007), is unconvincing. In Taylor, the petitioner obtained an evidentiary hearing during his first PCRA hearing and, after the PCRA court denied the claim, unsuccessfully sought to present new expert witnesses testimony in a second PCRA petition raising the same claim. We affirmed the district court’s denial of the request for an evidentiary hearing under section 2254(e)(2) despite the Pennsylvania Supreme Court’s dismissal of Taylor’s second PCRA petition pursuant to an inadequate state procedural ground: “Unlike the petitioner in Wilson, Taylor’s competency claim was raised in his first PCRA petition and addressed on the merits. His resurrection of the claim in his second PCRA petition does not put it under Wilson’s rule.” Id. at 436-37. The procedural posture of Lark’s case differs from that of the petitioner in Taylor inasmuch as Lark is not attempting to get two bites at the apple by requesting a district court hearing to present new evidence which was available at the time of his state court evidentiary hearing. Id. at 437 (“The only thing that prevented Taylor from presenting his new evidence of incompetency before the first PCRA court was a lack of diligence.”). Rather, Lark is requesting a hearing because the state court prevented him from presenting his evidence in the first instance by the application of an inadequate procedural rule. In that respect, Lark’s request, to the extent that his Bat-son claim is based on the Commonwealth’s pattern of discriminatory strikes, falls squarely within Morris’ holding and, therefore, we find that section 2254(e)(2) did not prevent the District Court from granting him an evidentiary hearing on his Batson claim. D. Merits of Lark’s Batson Claim 1. TheAEDPA We can understand why by this time a reader of this opinion would wonder whether we ever would reach the substantive issue on this appeal, i.e., did the District Court correctly grant Lark habeas corpus relief leading to his release or a new trial? But our long discussion of the procedural and jurisdictional issues was necessitated by the remarkable complexity of the law governing habeas corpus petitions which to a large extent is the result of the interaction of state and federal law inherent in our dual sovereignty system. In fact, solving the procedural and jurisdictional issues before we could reach the substantive issues on this appeal was a process much like solving Rubik’s cube. But we now reach the merits issue on this appeal. Pursuant to the AEDPA, where a state court adjudicates the merits of a petitioner’s claim, federal courts review the claim under a highly deferential standard. See 28 U.S.C. § 2254(d)(1) & (2); Cullen