David MATHIAS, Appellant (15-2694) v. Superintendent FRACKVILLE SCI; Attorney General of the State of Pennsylvania, Appellants (14-4694)
Nos. 14-4694 & 15-2694
United States Court of Appeals, Third Circuit
Argued: December 6, 2016 (Opinion Filed: August 28, 2017)
867 F.3d 175
Susan E. Affronti, Esq., Jennifer O. Andress, Esq. [ARGUED], Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, 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
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
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
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
Turning next to the federal courts, Mathias filed a pro se habeas petition, pursuant to
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, 105 S.Ct. 1965, 85 L.Ed.2d 344 (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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citing
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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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.
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. Mathias‘s Cross-Appeal
The claims Mathias seeks to raise on cross-appeal—regarding the constitutionality of the trial court‘s conspiracy instructions and appellate counsel‘s failure to effectively brief this issue—are only eligible for review on the merits if they can clear three procedural hurdles. The first is jurisdictional: As Mathias concedes that his notice of cross-appeal was untimely filed under
A. Jurisdiction Over Mathias‘s Cross-Appeal Under Rule 4(a)(3)
We first must determine if
We begin with our case law, which paves the way for our holding today though not by the straightest of routes. Our starting point is United States v. Tabor Court Realty Corp., 943 F.2d 335 (3d Cir. 1991), where we observed that “[a]lthough a timely, initial notice of appeal is mandatory and jurisdictional, it has been the rule of this Circuit that Rule 4(a)(3), which provides ... time for filing cross or other separate appeals, is not a jurisdictional prerequisite,” id. at 342–43. We acknowledged in Tabor that the Supreme Court, in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), deemed jurisdictional
While we have recognized the tension between Tabor and EF Operating since that time, we have not had occasion to resolve it. See, e.g., Bowers v. Nat‘l Collegiate Athletic Ass‘n, 346 F.3d 402, 411–12 (3d Cir. 2003); United States v. Erwin, 765 F.3d 219, 232 n.9 (3d Cir. 2014). We reach that crossroad today, and, as our case law teaches that where two precedential opinions are in “unavoidable conflict,” the earlier opinion controls, Kossler v. Crisanti, 564 F.3d 181, 194 n.8 (3d Cir. 2009), we deem Tabor, which treated Rule 4(a)(3) as nonjurisdictional, to be the law of our Circuit, see Reilly v. City of Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017) (explaining that “en banc consideration is required” in order to overrule the holding of a prior precedential opinion).
The rule of Tabor also accords with recent Supreme Court cases that distinguish “claim-processing rules“—that is, “rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times,” such as “[f]iling deadlines“—as nonjurisdictional unless Congress has made them jurisdictional through clear and unequivocal statutory language. Henderson v. Shinseki, 562 U.S. 428, 435–36, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see Gonzalez v. Thaler, 565 U.S. 134, 141–42, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012); Bowles, 551 U.S. at 214–15; Eberhart v. United States, 546 U.S. 12, 16, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 453–54, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Examples of claim-processing rules that the Court has specified are nonjurisdictional include time limits in bankruptcy proceedings for a creditor to file objections to a debtor‘s discharge, Kontrick, 540 U.S. at 453–54, and the time period in criminal prosecutions for filing post-trial motions, Eberhart, 546 U.S. at 15–16. By contrast, the Court has classified the thirty-day time period for filing
These cases indicate that, in contrast to Rule 4(a)(1), which requires appellants to take the “mandatory and jurisdictional” step of initiating a timely appeal, Bowles, 551 U.S. at 209,
In sum, we conclude Rule 4(a)(3) is not jurisdictional so that a party‘s failure to comply with it may be excused by the reviewing court. We turn next to the standard for granting that relief and whether that standard has been met in this case.
B. Waiver of Timeliness Requirement
In expounding on the standard for excusing a
As far as our case law, in Rhoads v. Ford Motor Co., 514 F.2d 931 (3d Cir. 1975), we waived the deadline for a third-party defendant on the ground that he “might well have believed that he could not appeal the final judgment,” id. at 934. Next, in Tabor itself, we excused a party‘s untimely motion of cross-appeal, observing that, under the facts of that case, “the disposition as to one party [was] inextricably intertwined with the interests of a non-appealing party so as to make it impossible to grant relief to one party without granting relief to the other.” Tabor, 943 F.2d at 344. Finally, in Repola v. Morbark Industries, Inc., 980 F.2d 938 (3d Cir. 1992), we declined to waive the strictures of Rule 4(a)(3), observing that the claims excluded as a result of our decision were not “inextricably intertwined” with the claims before us and “relief could [still] be fairly granted” in the case, id. at 942.
We also find instructive the standard for setting aside a default judgment.
What we distill from these sources is that the factors informing when waiver of
Applying these factors, we conclude without difficulty that waiver is appropriate here. The two new claims Mathias seeks to raise on cross-appeal would not likely support a second or successive habeas petition, which, if attempted, would have to overcome the onerous successive-petition bar, see
C. Certificate of Appealability
The Supreme Court stated as recently as 2015 that whether a petitioner is required to obtain a COA when taking a cross-appeal is “unclear,” observing that
When initiating an appeal, a petitioner is obligated to obtain a COA by making “a substantial showing of the denial of a constitutional right,”
This is a case in point, where two putative cross-claims, albeit accompanied by novel questions of procedural viability, have added significantly to the parties’ briefing and preparation for argument, affecting our Court in equal measure. In short, Mathias must obtain a COA before his cross-claims can be addressed on the merits, and we now take up his application.
To merit a COA, Mathias must meet the “substantial showing” requirement under
As Mathias puts it, he “seeks to cross-appeal the district court‘s denial of relief” on his claims that the conspiracy instruction violated his due process rights and that appellate counsel was ineffective for failing to challenge that instruction. App. 58. The District Court, however, made clear that Mathias “waived any challenge to the conspiracy conviction and instructions,” Mathias, 2014 WL 5780834, at *9 n.5, and that conclusion is supported by the record, which nowhere reflects that Mathias raised these claims in his § 2254 petition.
Mathias, while conceding he did not articulate the claims in explicit terms, nonetheless contends they were implicit in the claims he did raise, suggesting the District Court should have recognized them from offhand references to the conspiracy instruction made in the parties’ briefing, the fact of that instruction‘s incorporation of the first-degree murder instruction, and the argument raised by counsel on direct appeal that the conspiracy instruction was unconstitutional. We reject the notion that the mere recitation of facts or procedural history or some combination of hints and innuendo suffice to fairly raise a claim. Rather, “the crucial question regarding waiver is whether the petitioner presented the argument with sufficient specificity to alert the district court,” that is, whether the district court was put on “notice of the legal argument.” Lark v. Sec‘y Pa. Dep‘t of Corr., 645 F.3d 596, 607–08 (3d Cir. 2011) (citing Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005)). And that standard is not met merely because the facts underlying a potential legal argument were available in the record. Mathias failed to alert the District Court to the legal claims themselves, see id., so that we cannot say “jurists of reason would find it debatable whether the District Court was correct in its procedural ruling” that those claims were waived, Slack, 529 U.S. at 484. For that reason, we will deny Mathias‘s application for a COA and dismiss his cross-appeal.
III. Commonwealth‘s Appeal
The Commonwealth appeals the District Court‘s grant of the Great Writ on Mathias‘s conviction for first-degree murder based on his ineffective-assistance-of-counsel and due process claims arising from the first-degree murder instruction. For the reasons set forth below, we agree with the Commonwealth that the District Court incorrectly applied a de novo standard of review in considering the ineffective assistance claim and that, when reviewed with proper deference, the Superior Court‘s decision was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We also reach this conclusion as to the due process claim, applying appropriate deference and holding that that claim was exhausted and the Superior Court had the opportunity to, and in fact did, address the merits, rendering a decision that was not contrary to or an unreasonable application of federal law governing internally inconsistent jury instructions, and nonetheless any error arising from the instructions would have been harmless.
A. Jurisdiction and Standard of Review
The District Court had jurisdiction under
B. First-Degree Murder Instruction Claims
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Mathias, to prevail on his habeas petition, carried the burden of demonstrating that the Superior Court decision was “‘contrary to’ federal law then clearly established in the holdings of [the Supreme] Court” or “involved an unreasonable application of such law.” Richter, 562 U.S. at 100 (quoting
In contrast, a state court decision reflects an “unreasonable application of such law” only “where there is no possibility fairminded jurists could disagree that the state court‘s decision conflicts with [the Supreme] Court‘s precedents,” a standard the Supreme Court has advised is “difficult to meet” because it was “meant to be.” Richter, 562 U.S. at 102. As the Supreme Court has cautioned, an “unreasonable application of federal law is different from an incorrect application of federal law,” Richter, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410), and whether we “conclude[] in [our] independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly” is irrelevant, as AEDPA sets a higher bar. Williams, 529 U.S. at 411.
Here, as to both Mathias‘s ineffective-assistance-of-counsel and due process claims based on the first-degree murder instruction, the District Court held the Superior Court‘s decision was “contrary to” clearly established Supreme Court precedent and thus applied de novo review instead of AEDPA deference, concluding the claims were meritorious. These rulings were in error. As we explain below, (1) the Superior Court‘s decision was not contrary to Strickland so that the District Court should have applied AEDPA deference, determining whether the Superior Court‘s application of Strickland was an unreasonable application of clearly established Supreme Court precedent; (2) the Superior Court‘s decision was not an unreasonable application of Strickland because, regardless of whether counsel‘s performance was deficient, the Superior Court did not clearly err in determining there was no prejudice; and (3) the Superior Court‘s decision was not an unreasonable application of Supreme Court precedent on internally inconsistent jury instructions, and regardless any error was harmless. We address these issues in turn.
1. AEDPA Deference
The District Court here declined to apply AEDPA deference in reviewing the Superior Court‘s ineffective assistance and due process analysis, holding both were “contrary to clearly established Supreme Court precedent.” Mathias, 2014 WL 5780834, at *8; see id. at *5. It did so in error because, as for the ineffective-assis-
2. Ineffective Assistance Claim
On habeas review, we may begin and, when dispositive, end with either of Strickland‘s two prongs, see Burt v. Titlow, 134 S.Ct. 10, 18 n.3, 187 L.Ed.2d 348 (2013); Collins, 742 F.3d at 547, and here we follow “the practical suggestion in Strickland that we ... consider the prejudice prong before examining the performance of counsel prong” because that approach is “less burdensome to defense counsel,” United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (alteration omitted) (citation omitted), and makes it “easier to dispose of [the] ineffectiveness claim,” Strickland, 466 U.S. at 697; Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 850 n.10 (3d Cir. 2017). Applying “the doubly deferential judicial review that applies to a Strickland claim evaluated under [AEDPA],” Knowles, 556 U.S. at 123, we must assess whether, even assuming counsel‘s performance was deficient, Mathias suffered prejudice, see Strickland, 466 U.S. at 687, 693–94—an assessment that requires us to ask whether the petitioner has shown “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” with “a reasonable probability” meaning “a probability sufficient to undermine confidence in the outcome,” id. at 694. Because the Strickland standard is an especially “general” one, “a state court has even more latitude to reasonably determine” whether a petitioner has satisfied it. Knowles, 556 U.S. at 123 (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.“) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
Here, Mathias argues he was prejudiced by appellate counsel‘s deficient performance because, had counsel argued that the inconsistent jury charge allowed him to be convicted of first-degree murder without a finding of specific intent, he would have received a new trial. Mathias bases this argument on Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85
That is not so, for neither Mathias nor the District Court considered the Supreme Court‘s subsequent decision in Middleton v. McNeil, 541 U.S. 433, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam), which calls the holding of Francis into question and, at a minimum, demonstrates that it was not then “clearly established.” In Middleton, the Court reversed the Ninth Circuit‘s grant of habeas relief where the trial court had given “three correct instructions and one contrary one” regarding imperfect self-defense without providing any correction or explanation for the discrepancy. Id. at 438. Relying on the familiar test that asks whether there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution,” id. at 437 (citing Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)), but omitting any citation or reference to Francis, the Court explained that the Ninth Circuit “failed to give appropriate deference to the state court‘s decision” where the state court applied the proper test and merely reached a different conclusion regarding the “likelihood the jury was misled,” id. at 437–38. The Court expressly characterized the instructions as “ambiguous because they were internally inconsistent,” id. at 438, a descriptor that could easily apply to both Francis and the instant case.
Middleton‘s divergence from Francis is striking and, here, outcome determinative because it renders the relevant Supreme Court precedent on ambiguous jury instructions less than “clearly established.” Middleton and Francis are both cited and applied as good law for the propositions we discuss today, and it appears no court has had occasion to resolve the tension between them. See, e.g., Waddington v. Sarausad, 555 U.S. 179, 191–92, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (citing Middleton); Bey v. Superintendent Greene SCI, 856 F.3d 230, 240 n.47 (3d Cir. 2017) (citing Francis); Wade v. Timmerman-Cooper, 785 F.3d 1059, 1078 (6th Cir. 2015) (citing Middleton); Johnson v. McKune, 288 F.3d 1187, 1194 (10th Cir. 2002) (discussing Francis); United States v. Hernandez, 176 F.3d 719, 733–35 (3d Cir. 1999) (same). Nor need we today, because the significance of Middleton to our decision is that it calls into question when and under what circumstances the curative jury instruction mandated by Francis is required and “fairminded jurists could disagree” and reasonably reach different results under particular circumstances. Richter, 562 U.S. at 102,
Here, in conducting its analysis of Mathias‘s ineffective-assistance-of-counsel claim, the Superior Court found conclusive the accurate portions of the trial court‘s first-degree murder instruction—where it properly articulated the specific intent requirement—as well as the conspiracy instruction, which was consistently correct and served as the basis for the jury‘s conviction on that charge. Although the Superior Court acknowledged trial counsel‘s multiple objections to the first-degree murder instructions, and that the instructions were “less than precise,” App. 664, it concluded Mathias could not establish prejudice because the due process claim appellate counsel might have raised was unlikely to succeed given the Superior Court‘s assessment of the jury instructions in their entirety.
Applying “the doubly deferential judicial review that applies to a Strickland claim evaluated under [AEDPA],” we conclude the Superior Court‘s application of Strickland was not an unreasonable one. Knowles, 556 U.S. at 123. By reviewing the jury charge as a whole and accounting for the unique facts of Mathias‘s case, the Superior Court, as a threshold matter, properly applied the Supreme Court‘s “reasonable likelihood” test for determining an incorrect instruction‘s constitutional effect, see Estelle, 502 U.S. at 72, and, in light of the tension between Francis and Middleton and the implications of that tension for the jury instructions in Mathias‘s case,5 we cannot say the Superior Court unreasonably applied the prejudice prong of Strickland, see Richter, 562 U.S. at 101, 131 S.Ct. 770; Jacobs, 395 F.3d at 106.
In sum, because the Superior Court‘s decision passes muster when reviewed with proper deference under AEDPA, the District Court erred in granting Mathias habeas relief on this claim.
3. Due Process Claim
With respect to Mathias‘s due process claim based on the first-degree murder instruction, as a threshold matter, the Commonwealth challenges the District Court‘s conclusions that it was exhausted, had merit, and was not harmless. As explained below, we agree with the District Court only as to exhaustion because we conclude the Superior Court‘s rejection of the due process claim was not contrary to or an unreasonable application of clearly established federal law, and that any error was harmless, in any event. We will reverse the District Court‘s grant of habeas on this claim.
Federal courts may not grant relief unless a petitioner has “exhausted the remedies available” in the state courts.
Because the due process claim was properly exhausted, we move on to review the merits of the Superior Court‘s decision. Here, again, the tension between Francis and Middleton is dispositive, because, as we discussed in connection with Mathias‘s ineffective assistance claim, the relevant Supreme Court case law on ambiguous jury instructions—specifically, whether a curative instruction is required when inconsistent instructions are given—was not then-clearly established. Richter, 562 U.S. at 101, 131 S.Ct. 770. Accordingly, the Superior Court‘s rejection of Mathias‘s due process claim was neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law.”
Moreover, any error would be harmless because there was no “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Just as we held in Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005), that the error was harmless where the first-degree murder instruction likewise erroneously omitted specific intent but the trial court‘s instructions regarding conspiracy and the jury‘s guilty verdict on that charge evinced a finding of specific intent to kill, id. at 711–15, so too here the error was harmless because the jury was instructed that the alleged co-conspirators must have “shared the intent to commit
IV. Conclusion
For the foregoing reasons, we will reverse the District Court‘s order granting Mathias a writ of habeas corpus and deny Mathias‘s application for a certificate of appealability.