Saleem Bey v. Superintendent Greene SCI
2017 U.S. App. LEXIS 8280
| 3rd Cir. | 2017Background
- Bey was retried for a 2001 shooting; first trial ended in a hung jury; retrial produced convictions for murder, attempted murder, and weapons offenses and a life sentence.
- The Commonwealth’s key evidence was Officer Daniel Taylor’s eyewitness identification of Bey as the shooter; Taylor testified to a clear, confident view from about 15 feet and never wavered in identification; no other eyewitness directly identified Bey.
- Defense requested a Kloiber eyewitness instruction; the trial court gave a malformed version stating that positive, unqualified identification “may not be received with caution,” which the panel concluded effectively compelled jurors to accept such ID.
- Trial counsel did not object to the misstated instruction. PCRA counsel raised other Kloiber-related objections but failed to challenge the “may not be received with caution” language. State courts declined relief on the issues actually presented.
- Bey filed a federal habeas petition; the district court denied relief. The Third Circuit reviewed whether (1) the ineffective-assistance claim based on failure to object to the Kloiber instruction is procedurally defaulted/excusably defaulted under Martinez and (2) whether trial counsel’s failure was constitutionally deficient and prejudicial.
- The Third Circuit held the Kloiber-based ineffective-assistance claim was procedurally defaulted but excused under Martinez because (a) the underlying Strickland claim is substantial and (b) PCRA counsel was ineffective for failing to raise the specific Kloiber language; the Court vacated and remanded with instructions to grant a conditional writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to object to a Kloiber jury instruction that said positive ID “may not be received with caution” | Bey: instruction misstated Kloiber, effectively compelled jurors to accept positive ID, so counsel’s failure to object was deficient and prejudicial under Strickland | Commonwealth: Kloiber instruction was given generally; other portions of charge cured any error; evidence was overwhelming so no prejudice | Held: Counsel’s performance was deficient and prejudicial; the misstated instruction could be read as a mandatory presumption that relieved the prosecution of its burden, so the Strickland claim is substantial and meritorious |
| Whether procedural default should be excused because PCRA counsel failed to raise the specific Kloiber argument | Bey: under Martinez, collateral counsel’s failure to raise an ineffective-assistance claim can constitute cause if (1) PCRA counsel was ineffective under Strickland and (2) the underlying trial-ineffectiveness claim is substantial | Commonwealth: PCRA petition raised Kloiber issues generally; state courts reviewed and rejected Kloiber claims; AEDPA deference applies | Held: Martinez applies; PCRA counsel’s omission was ineffective under Strickland and the underlying claim is substantial, so procedural default is excused for the Kloiber claim |
| Whether habeas relief should be denied because error was harmless given other evidence (e.g., ballistics, confident ID, prior hung jury not dispositive) | Bey: prior hung jury, jury questions about Taylor’s testimony, and the centrality of Taylor’s ID show prejudice; the erroneous instruction undermined reasonable doubt | Commonwealth: eyewitness confidence and ballistic evidence made case overwhelming; other jury instructions cured any error | Held: Error not harmless—the prior hung jury, jury questions, and centrality of Taylor’s ID support that the defective instruction undermined confidence in the verdict |
| Whether court should reach Bey’s separate claim about prosecutorial comments on post-Miranda silence | Bey: trial counsel failed to object to prosecutor’s comments; claim is procedurally defaulted but could be excused | Commonwealth: procedural default and lack of prejudice | Held: Court did not reach this claim because relief granted on Kloiber-related ineffective assistance claim |
Key Cases Cited
- Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (announcing cautionary instruction framework for eyewitness ID)
- Martinez v. Ryan, 566 U.S. 1 (2012) (collateral counsel’s failure to raise trial-ineffectiveness claims can excuse procedural default if Strickland standards met)
- Strickland v. Washington, 466 U.S. 668 (1984) (performance and prejudice tests for ineffective assistance of counsel)
- Sandstrom v. Montana, 442 U.S. 510 (1979) (jury instruction that creates a mandatory presumption shifting burden violates due process)
- Francis v. Franklin, 471 U.S. 307 (1985) (an erroneous instruction must be viewed in context of the entire charge to determine constitutional error)