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Mathias v. Superintendent Frackville Sci

United States Court of Appeals, Third Circuit

August 28, 2017

DAVID MATHIAS, Appellant
v.
SUPERINTENDENT FRACKVILLE SCI; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Appellants

          Argued: December 6, 2016

         On 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

          Maria K. Pulzetti, Esq. [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellee/Cross-Appellant

          Susan E. Affronti, Esq. Jennifer O. Andress, Esq. [ARGUED] Philadelphia County Office of District Attorney Counsel for Appellant/Cross-Appellee

          Before: FISHER, [*] KRAUSE, and MELLOY, [**] Circuit Judges.

          OPINION OF THE COURT

          KRAUSE, CIRCUIT JUDGE.

         Undergirding 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 habeas relief.

         I. Factual Background and Procedural History

         Petitioner 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.

         According 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.

         Suddenly, 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.

         Mathias's 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.

         At the 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.

         Specifically, 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.

         Next, transitioning to the "formal instruction, " App. 621, the trial judge covered first-, second-, and third-degree murder, conspiracy, aggravated assault, and weapons violations.[1] 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.

         Finally, 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. 630.

         After 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 additional charges.

         Mathias 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.

         Unsuccessful 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.

         Turning 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 performance.

         The 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).

         As to 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.

         With 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.

         The 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.

          II. ...


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