Argued: December 6, 2016
Appeal from the United States District Court for the Eastern
District of Pennsylvania (District Court No. 2-13-cv-02002)
Honorable Harvey Bartle, III, U.S. District Judge
K. Pulzetti, Esq. [ARGUED] Federal Community Defender Office
for the Eastern District of Pennsylvania Counsel for
E. Affronti, Esq. Jennifer O. Andress, Esq. [ARGUED]
Philadelphia County Office of District Attorney Counsel for
Before: FISHER, [*] KRAUSE, and MELLOY, [**] Circuit
OPINION OF THE COURT
KRAUSE, CIRCUIT JUDGE.
federal habeas law is an extensive procedural framework that
limits when and how a petitioner may raise post-conviction
claims for relief and which claims are reviewable in federal
court. Concerns of federalism, comity, and finality shape
this complex framework and have required us to generate
specific rules for when a petitioner's claim may be
adjudicated on the merits. In this appeal brought by the
Commonwealth of Pennsylvania from the District Court's
grant of habeas relief on petitioner's first-degree
murder conviction, we must interpret and apply a number of
these rules to determine whether we have jurisdiction under
Federal Rule of Appellate Procedure 4(a)(3) over
petitioner's untimely cross-appeal from the District
Court's denial of habeas relief on his conspiracy
conviction; if so, whether Rule 4(a)(3)'s timeliness
requirement should be waived in the interests of justice; and
whether a certificate of appealability (COA) is required on
cross-appeal. In addition, on the Commonwealth's appeal,
we must consider whether the District Court was correct to
conclude that petitioner's due process claim and related
ineffective-assistance-of-counsel claim based on purportedly
unconstitutional jury instructions were properly exhausted in
state court, are meritorious, and withstand harmless error
review. For the reasons set forth below, we will dismiss
petitioner's cross-appeal and, on the Commonwealth's
appeal, we will reverse the District Court's grant of
Factual Background and Procedural History
David Mathias was charged with, inter alia,
first-degree murder and conspiracy to commit first-degree
murder based on a violent incident that left one person dead
and another severely injured, though capable of testifying at
Mathias's state court trial. As relevant to his defenses
and the issues he would later raise on appeal, the record
from that 2006 trial in the Philadelphia Court of Common
Pleas reflects that in the early hours of May 23, 2005,
Mathias and future co-defendant, Richard Jarmon, traveled to
a boarding house where an acquaintance named Eric
Richardson-later the victim-witness at Mathias's
trial-rented a small efficiency room.
to Richardson's trial testimony, Mathias knocked on
Richardson's door, while Jarmon entered an adjacent room
where a friend of Richardson's, Joseph Drew El, was lying
on his stomach on the floor watching television. Richardson
cautiously answered Mathias's knock, and Mathias asked if
he had change for a five-dollar bill. Although he felt
"disturbed" and thought this a peculiar request,
Richardson retreated back into his room, closing the door
behind him, and retrieved five singles. App. 304. Richardson
then exited the room, taking care again to shut the door, and
handed five one-dollar bills to Mathias, who was waiting
nearby with Jarmon and Drew El. Mathias's fictitious
mission accomplished, he asked Jarmon, "Are you
ready?" and Jarmon stood up as if to leave. App. 304.
Mathias drew a gun from his waistband and pointed it directly
at Richardson's stomach. Richardson reacted quickly by
grabbing Mathias's wrist, but Mathias began to shoot at
Richardson as the two struggled. At the same moment, Jarmon
drew a gun of his own and fired a fatal shot at Drew El, who
still lay in a helpless and vulnerable position on the floor.
Jarmon then turned his gun on Richardson- joining
Mathias's ongoing assault-while Richardson made a
desperate attempt to flee the building, bleeding profusely
from gunshot wounds in his legs as he narrowly escaped.
Richardson, "shot, scared, . . . frightened, [and] just
running for [his] life, " App. 307, was fortunate to
encounter police a few blocks away who rushed him to the
trauma unit of a nearby hospital. Back at the boarding house,
Drew El died from the gunshot wounds inflicted by Jarmon.
testimony at trial painted a different picture. He testified
that he and Jarmon traveled to Richardson's residence to
buy marijuana, where, once that transaction was complete,
Richardson and Jarmon exchanged heated words, drew their
guns, and began shooting at one another. Mathias portrayed
himself as an innocent bystander and claimed that he was
unaware Drew El was injured in the crossfire.
conclusion of the trial, the trial judge instructed the jury,
among other things, on the charges of first-degree murder and
conspiracy to commit first-degree murder and on accomplice
liability. In the course of these instructions, however, the
judge made inconsistent statements about the specific intent
requirement for accomplice liability, at some points properly
instructing the jurors they must find the accomplice himself
had the specific intent to kill, and at other points, over
defense counsel's objection and contrary to Pennsylvania
law, indicating that the jurors could convict an accomplice
based on the specific intent of the principal.
before giving the "formal charge, " the trial judge
offered "plain English" commentary intended to give
a "common sense view" of the relevant theories of
liability and the crimes charged. App. 610. During this
portion of the instructions, the judge spoke accurately and
at length about accomplice liability. For example, the judge
explained that "a defendant is an accomplice of another
for a particular crime if . . . [it is] proved beyond a
reasonable doubt . . . [t]hat the defendant had the intent of
promoting or facilitating the commission of that crime."
App. 611. Applying this rule to the instant case, the judge
further explained that the jury would have to "find
beyond a reasonable doubt that there ha[d] been proof beyond
a reasonable doubt that the defendant shared that specific
intent to kill Joseph Drew El." App. 614.
transitioning to the "formal instruction, " App.
621, the trial judge covered first-, second-, and
third-degree murder, conspiracy, aggravated assault, and
weapons violations. During this portion of the colloquy, the
judge erroneously indicated no less than six times that
Mathias could be convicted of first-degree murder through
accomplice liability if the jury found Jarmon possessed the
specific intent to kill Drew El. These instructions were
misleadingly stated in the disjunctive, with the judge
announcing the jury was required to find that either Mathias
"or his alleged accomplice, Richard Jarmon, had the
specific intent to kill . . . " App. 615.
addressing the charge of conspiracy to commit first-degree
murder, the trial judge declined to "repeat" the
definition of first-degree murder, noting that it was
"the exact same requirement" and that it comprised
the "same elements" that had been introduced
earlier in the colloquy, but explaining that first-degree
murder was the "object of the conspiracy." App.
628. From there, the judge correctly laid out the elements of
conspiracy, explaining that the alleged co-conspirators must
have "shared the intent to commit the crime of first
degree murder, " which "would include the defendant
having . . . shared the specific intent to kill." App.
these instructions, the jury deliberated for approximately
one day before returning a verdict of guilty on the charges
of first-degree murder, criminal conspiracy to commit
first-degree murder, aggravated assault, possession of an
instrument of crime, and carrying a firearm without a
license. Mathias was sentenced to a term of life on the
murder conviction and a consecutive term of
fifteen-and-a-half to thirty-one years on the conspiracy
conviction, to be served concurrent with lesser terms for the
appealed his convictions to the Superior Court. While
appellate counsel raised the claim that the jury instructions
on criminal conspiracy were erroneous and violated due
process because they "forced the jury to convict on
first degree murder if they believed that there was an overt
or implied agreement, " Supp. App. 2, he did not raise
any arguments regarding the first-degree murder instructions.
The Superior Court observed that appellate counsel had not
adequately briefed any of Mathias's claims and so deemed
them waived. Nonetheless, it opted to address the conspiracy
instruction claim on the merits, finding it "somewhat
difficult to follow" counsel's argument but
concluding that "the trial court clearly instructed the
jury that in order to convict Appellant of conspiracy to
commit first-degree murder, it must find that [he] had the
specific intent to kill." App. 678, 680-81.
on direct appeal, Mathias filed a pro se petition under
Pennsylvania's Post-Conviction Relief Act
("PCRA"). Supp. App. 45. In an untimely filing
attempting to amend his petition, Mathias raised a Sixth
Amendment claim for ineffective assistance of counsel on the
ground that appellate counsel failed to challenge the
constitutionality of the first-degree murder instruction.
Although the Court of Common Pleas dismissed Mathias's
late filing, the Superior Court rejected it on the merits,
applying Pennsylvania's formulation of the two-part
ineffective-assistance-of-counsel test laid out in
Strickland v. Washington, 466 U.S. 668 (1984).
Specifically, it held that counsel's performance was not
deficient because although "the specific intent
instructions and instruction on first degree murder . . .
[were] less than precise, " App. 664, and "lacked
clarity, " App. 665, "the [trial] court did
instruct the jury . . . that it was required to find that
Appellant had specific intent to kill, " App. 665, and
that Mathias was not prejudiced because "the jury did
find that Appellant had a specific intent to kill Mr. El
since it found him guilty of conspiracy to commit first
degree murder, which requires a finding of specific intent to
kill." App. 666.
next to the federal courts, Mathias filed a pro se habeas
petition, pursuant to 28 U.S.C. § 2254, in which he
claimed (1) the first-degree murder instruction violated his
due process rights, and (2) appellate counsel rendered
ineffective assistance by failing generally to file an
adequate brief and thereby waiving whatever claims he might
have raised on appeal. The Magistrate Judge recommended
denying the first claim either on the ground that it was
unexhausted and procedurally defaulted or, alternatively,
that the alleged constitutional error in the first-degree
murder instruction was harmless in light of the specific
intent finding the jury must have made in convicting Mathias
for conspiracy to commit first-degree murder, and rejecting
the second claim because Mathias was unable to show how he
was prejudiced by appellate counsel's deficient
District Court, however, rejected the Magistrate Judge's
recommendation and concluded that Mathias did not fail to
exhaust the first-degree murder instruction claim because,
although he did not label it as a separate claim in his PCRA
petition, the Superior Court, in adjudicating the
ineffective-assistance-of-counsel claim that he did expressly
raise, also considered the constitutionality of the
instruction itself in evaluating deficient performance and
prejudice. In another threshold decision, the District Court
found the Superior Court's application of federal law on
internally inconsistent jury instructions was contrary to
that prescribed by the Supreme Court in Francis v.
Franklin, 471 U.S. 307 (1985), and therefore proceeded
to review this claim de novo instead of using the highly
deferential standard of review typically required when
federal courts review state court decisions on habeas.
See Harrington v. Richter, 562 U.S. 86, 100 (2011)
(citing 28 U.S.C. § 2254(d)); Panetti v.
Quarterman, 551 U.S. 930, 953-54 (2007).
the merits of the jury instruction claim, the District Court,
relying largely on Francis, held that, read as a
whole, the instructions relieved "the Commonwealth of
its burden of proving beyond a reasonable doubt the key
element that Mathias had a specific intent to kill, "
Mathias v. Collins, No. 13-2002, 2014 WL 5780834, at
*8 (E.D. Pa. Nov. 5, 2014) (citing Francis, 471 U.S.
at 322; In re Winship, 397 U.S. 358, 364 (1970)),
and thus that the Superior Court's contrary decision was
unconstitutional and warranted habeas relief. The District
Court also rejected the Magistrate Judge's harmless error
determination, reasoning instead that the conspiracy charge,
by virtue of incorporating the first-degree murder charge,
made it impossible to infer a jury finding of specific intent
and that the jury instruction regarding the jury's manner
of deliberating had the same effect.
respect to Mathias's second claim-based on appellate
counsel's generally inadequate briefing-the District
Court construed it liberally as a claim that counsel was
ineffective specifically for failing to raise these concerns
with the first-degree murder instruction, a claim which
Mathias had expressly raised and exhausted on PCRA review.
The District Court again applied plenary review, assuming the
Superior Court's application of Pennsylvania law was
contrary to that prescribed by the Supreme Court in
Strickland, which Mathias now concedes was error.
And, having determined that the due process claim related to
the first-degree murder instruction itself had merit, the
District Court concluded that appellate counsel necessarily
was deficient for failing to raise that claim and that
Mathias was prejudiced by that deficient performance.
Accordingly, the District Court granted Mathias habeas relief
on the basis of his ineffective assistance claim, as well as
his due process claim.
Commonwealth now appeals those rulings, and Mathias, in an
untimely filing over which our jurisdiction is uncertain,
cross-appeals, seeking a grant of habeas relief on his
conviction for criminal conspiracy to commit first-degree
murder and requesting a COA to assert both Sixth Amendment
and due process claims based on the jury charge underlying
that conviction. For the reasons that follow, we will
exercise jurisdiction over Mathias's untimely
cross-appeal, waiving the Rule 4(a)(3) timeliness requirement
but denying Mathias's application for a COA, and we will
reverse the District Court's grant of habeas relief on
Mathias's murder conviction.