Shawn Jacobs v. Superintendent Mahanoy SCI ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-3260
______________
SHAWN OMAR JACOBS,
Appellant
v.
SUPERINTENDENT MAHANOY SCI; THE DISTRICT ATTORNEY OF
MONTGOMERY COUNTY; THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-17-cv-00569)
U.S. District Judge: Honorable Edward G. Smith
______________
Argued March 6, 2023
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Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.
(Filed: March 15, 2023)
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OPINION
______________
Victor J. Abreu, Jr.
Samuel R. Welch [ARGUED]

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
Federal Community Defender Officer for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106
Counsel for Appellant Shawn Omar Jacobs
Robert M. Falin [ARGUED]
Adrienne D. Jappe
Montgomery County Office of District Attorney
P.O. Box 311
Norristown, PA 19404
Counsel for Appellees Superintendent Mahanoy SCI, District Attorney
Montgomery County and Attorney General Pennsylvania
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellee Attorney General Pennsylvania
SHWARTZ, Circuit Judge.
Shawn Jacobs appeals the order denying his habeas petition under 28 U.S.C.
§ 2254. For the reasons that follow, we will affirm the District Court’s order.
I
A
Jacobs and a codefendant, Stanley Howard, were convicted of killing Jamal Terry
in December 2008. The day Terry was murdered, Officer Brian Saxon of the Norristown,
Pennsylvania Police Department noticed a white Chevrolet Lumina parked illegally in
front of a store called the Golden Dragon. As Officer Saxon was placing tickets on the
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vehicle, a man—whom Officer Saxon later identified as Jacobs—approached him to
discuss the tickets.
Later that night, Terry and a friend, Andrew Willis, entered the Golden Dragon.
While inside, Willis observed two men standing by the door. Willis and Terry left and
were thereafter approached by the same two men. One of them was armed. The armed
assailant forced Willis to the ground, told him to empty his pockets, and struck him on
the head with the gun multiple times. His companion, meanwhile, robbed Terry.
According to Willis, at some point the armed assailant left Willis, handed his companion
the gun, and returned to Willis. Willis then heard a single gunshot and the two assailants
fled. Terry died shortly thereafter from a gunshot wound to the neck.
Three days after the shooting, Officer Saxon saw the same Lumina he had ticketed
parked on a Norristown street. As he and another officer approached the car, the person
in the passenger seat—later identified as Jacobs—fled. Howard, who was sitting in the
driver’s seat, was arrested. The officers recovered a handgun on the ground outside the
passenger door. A ballistics expert determined that the bullet that killed Terry was fired
from the gun and DNA from Jacobs, Howard, and others was present on the firearm.
Howard told the police that he committed the robbery with Jacobs, and that Jacobs
shot Terry. He also told the police that he paid to have two teardrops tattooed on his face
immediately after the murder, one of which was intended to commemorate the shooting.
After the shooting, Jacobs also got two teardrops tattooed on his face but he had them
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altered after Howard was arrested. Jacobs and Howard were charged with first degree
murder, and Jacobs turned himself in.
B
Jacobs and Howard were tried jointly, and Willis testified at their trial. On direct
examination, Willis explained that, after the police arrived at the scene of the crime, he
was “hysterical” but able to “pretty much tell [the police] what the guys looked like.”
App. 585-86. He testified that, a few days after Terry’s murder, he looked at two photo
arrays and identified Howard as the assailant who hit him in the head with the gun. He
also identified Jacobs as the shooter but had some “reservations” about the identification
because “[t]he lighting on the photo made . . . his skin tone [appear] a little off . . . .”
App. 591. Several months after the incident, Willis identified Jacobs as the shooter
during an in-person lineup. At trial, Willis testified that he was “[o]ne hundred percent
sure” that Jacobs and Howard were the assailants, App. 585, and that Jacobs was the
shooter.
On cross-examination, Willis testified that on the night of the incident he
described the shooter as (1) measuring between five-foot-eleven and six-foot-one in
height, (2) weighing between 150 and 160 pounds, (3) having a medium complexion with
a little beard, and (4) appearing to be eighteen to twenty-one years old. Willis explained,
however, that days after the incident, he contacted the police to explain that he might
have “confus[ed]” the assailants’ heights in his initial description and the shooter might
have been shorter than he initially described. App. 1064. Willis also testified on cross
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that he had seen Jacobs’ photo “[m]omentarily” on television before identifying him
during the in-person lineup. App. 619.
The prosecution also presented Howard’s post-arrest statements to the police.
Because Howard did not testify, and Jacobs therefore could not cross-examine him, the
references to Jacobs in Howard’s statements were replaced with the words “the person”
in an effort to comply with Bruton v. United States, 391 U.S. 123 (1968). Jacobs’
counsel did not object to the redactions nor did he object when the statements were
offered into evidence. The jury was instructed that it could not consider the statements as
evidence against Jacobs.
At closing, the prosecutor twice “broke” the redactions and referred to Jacobs’
name when discussing Howard’s statements. First, the prosecutor stated that Howard
“sa[id] he [was] in control of Mr. Willis [and] Defendant Jacobs ha[d] control of Mr.
Terry.” App. 845. Jacobs’ counsel did not object to this statement. Second, the
prosecutor stated “Mr. Howard said in his statement that Mr. Jacobs had handled th[e]
gun . . . .” App. 855. Jacobs’ counsel objected to this statement and the prosecutor
immediately corrected himself, stating “[p]ardon me[—t]hat the other person had handled
th[e] gun.” App. 855. The court did not rule on the objection.
In his closing argument, Jacobs’ counsel attacked the reliability of Willis’
identification. He argued that the description Willis provided immediately after the
shooting did not accurately describe Jacobs’ height, skin tone, or facial hair. He also
suggested that, on the day Terry was murdered, Officer Saxon encountered a different
man outside the Golden Dragon who looked similar to the person described as the
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shooter. Jacobs’ counsel did not seek, and the court did not give, an instruction under
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), which would have directed the jury
to receive Willis’ identification testimony with caution.
Jacobs was found guilty of first-degree murder, among other crimes, and was
sentenced to life imprisonment without parole.
C
Jacobs appealed to the Superior Court of Pennsylvania, which affirmed his
conviction, and both the Pennsylvania Supreme Court, Commonwealth v. Jacobs, 21
A.3d 1191 (Pa. 2011), and the United States Supreme Court, Jacobs v. Pennsylvania, 565
U.S. 1216 (2012), declined review. Jacobs then filed a petition under the Pennsylvania
Post-Conviction Relief Act (“PCRA”), App. 1016-52, which the PCRA Court denied,
and the Superior Court affirmed.
Jacobs next filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
which a Magistrate Judge recommended that the District Court deny. With one non-
dispositive exception, the District Court adopted the Magistrate Judge’s report and denied
Jacobs’ petition. See Jacobs v. DelBalso, No. 17-cv-00569, 2020 WL 5705689, at *15
(E.D. Pa. Sept. 24, 2020).
We granted a certificate of appealability as to Jacobs’ claims that (1) his trial
counsel was ineffective for failing to object to: (a) the admission of Howard’s redacted
statements, and (b) the first instance in which the prosecutor mentioned Jacobs’ name in
his closing statement; (2) his Confrontation Clause rights were violated the second time
the prosecutor mentioned Jacobs’ name in his closing statement; (3) his trial counsel was
6
ineffective for failing to request a Kloiber instruction; and (4) he suffered cumulative
prejudice from these errors.
II1
A
Even assuming that Jacobs’ counsel should have objected to the admission of
Howard’s redacted statements and the prosecutor’s first mention of Jacobs’ name during
his summation, and even assuming there was a Bruton error the second time the
prosecutor mentioned Jacobs’ name during his summation, these errors did not prejudice
Jacobs and hence were harmless.
Under the prejudice prong of Strickland v. Washington, a petitioner alleging
ineffective assistance must show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 466 U.S.
668, 694 (1984). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Id. at 695.
Similarly, a habeas petitioner asserting a Bruton violation is only entitled to relief
if the state court’s error was not harmless. Eley v. Erickson, 712 F.3d 837, 847 (3d Cir.
2013). An error is harmless unless it caused “actual prejudice,” or, in other words, it had
1
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review Jacobs’ claims under
the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254.
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a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (citation omitted). The harmless-error test is coextensive with Strickland’s
prejudice prong. See Preston v. Superintendent Graterford SCI, 902 F.3d 365, 382 (3d
Cir. 2018) (“The prejudice prong of the Strickland analysis is consistent with the general
‘harmless error’ standard applicable to all federal habeas petitioners alleging non-
structural errors.” (citation omitted)); Breakiron v. Horn, 642 F.3d 126, 147 n.18 (3d Cir.
2011).2 Therefore, if Jacobs cannot show prejudice under Strickland on his two
ineffective-assistance claims, he also cannot show that he was “actually prejudiced” by
the Bruton violation in the prosecutor’s closing statement.
Jacobs cannot make the required showing under Strickland or Brecht. The
testimony established that (1) he was at the scene of the crime hours before Terry was
murdered, (2) Jacobs fled from the police when they approached him and Howard days
after the murder, (3) the police found the murder weapon on the ground outside the
passenger side of the car from which Jacobs fled, (4) his DNA was on the murder
weapon, (5) he and Howard got two teardrop tattoos hours after the murder, and
(6) Jacobs got the tattoos altered after Howard was arrested. In addition, Willis, an
eyewitness to the murder, testified he was “[o]ne hundred percent” certain that Jacobs
was the shooter. App. 585, 592; See Bond v. Beard, 539 F.3d 256, 275-76 (3d Cir. 2008)
(concluding that a Bruton error did not prejudice the defendant where, among other
evidence, an eyewitness testified that they were “absolutely certain” the defendant was
2
See also Byrd v. Workman, 645 F.3d 1159, 1167 n.9 (10th Cir. 2011); Smith v.
Dixon, 14 F.3d 956, 974, 976 (4th Cir. 1994) (en banc).
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the shooter). This evidence places Jacobs at the scene, indicates he handled the murder
weapon, identifies him as the shooter, and shows consciousness of guilt. Thus, Howard’s
statement about Jacobs was largely cumulative of the other evidence and its admission
did not prejudice Jacobs.
Jacobs argues Howard’s statements were prejudicial because they “bolstered and
reinforced the testimony of the Commonwealth’s only other eyewitness, Willis, whose
account was highly unreliable on its own.” Petitioner’s Br. at 35. Jacobs is incorrect that
Willis’ testimony was highly unreliable. While Willis expressed reservation when he
initially identified Jacobs in the photo array only because of the tone of the photo, he
specifically stated that the photo of Jacobs depicted the facial features of the shooter.
Moreover, Willis sought to clear up any discrepancies in his statement to the police
regarding the assailants’ heights and offered a reasonable explanation for any confusion
on this point—that, as a relatively tall man, Willis has a hard time describing the heights
of people who are shorter than him, and he was on the ground during most of the
interaction. Finally, at trial, Willis did not equivocate in his identification of Jacobs as
the shooter.
Furthermore, Willis’ testimony was corroborated by evidence other than Howard’s
statements. Willis testified that Jacobs was in the Golden Dragon prior to the attack and
Officer Saxon’s testimony placed Jacobs in the vicinity of the Golden Dragon hours
before the incident. Willis testified that Howard handed the gun to Jacobs and both
actors’ DNA was on the firearm. Willis testified Terry was killed by a gunshot and
forensic and ballistic evidence established that Terry was killed by a bullet fired from the
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gun that was found near the side of the car from which Jacobs fled. Thus, Willis’
testimony is reliable on its own and is consistent with the other evidence.3
For these reasons, Jacobs’ ineffective assistance of counsel and Bruton claims fail.
B
We next evaluate Jacobs’ claim that his counsel was ineffective for failing to
request a Kloiber instruction directing the jury to receive Willis’ identification testimony
with caution.4 The state courts did not adjudicate this claim, so our review is plenary.
3
This case is not like the ones in which we have previously found Bruton
violations prejudicial. See, e.g., Johnson v. Superintendent Fayette SCI, 949 F.3d 791,
802-03 (3d Cir. 2020) (concluding prejudice existed because eyewitness testimony was
generally inconsistent with the other witnesses, and “[t]he prosecution presented no
physical evidence that directly implicated [the defendant] in the shooting”); Washington
v. Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 162 (3d Cir. 2015) (determining prejudice
existed where the eyewitness, who was a participant in the crime, had “significant
inconsistencies” including the eyewitness’s “history of substance abuse and admitted
heavy impairment from drugs at the time of the incident in question”); Eley, 712 F.3d at
861 (holding a Bruton error prejudicial where “the [Commonwealth] ma[de] no argument
to the contrary” and the codefendant’s confession “added substantial, perhaps even
critical, weight to the Commonwealth’s case” (quotations omitted)); Vazquez v. Wilson,
550 F.3d 270, 283 (3d Cir. 2008) (concluding the Bruton errors were prejudicial because
the only direct evidence implicating the defendant as the shooter was the improperly
admitted codefendant’s statement and “no witness at the trial [testified seeing the
defendant] fire a weapon”).
Unlike all of these cases, here, even without Howard’s statement, there is both
reliable eyewitness and forensic evidence implicating Jacobs as the shooter. Thus, the
case is more like Bond in which an eyewitness testified at trial that he was absolutely
certain the defendant was the perpetrator and, based on this testimony among other
evidence, we concluded that the Bruton error was harmless. 539 F.3d at 276.
4
Because Jacobs failed to raise this issue on PCRA review, it is procedurally
defaulted. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236-37 (3d Cir. 2017). We
need not, however, determine whether Jacobs showed cause and prejudice to excuse the
default because we conclude his ineffectiveness claim lacks sufficient merit. See Roman
v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (“Because we will deny Roman’s
claims on the merits, we need not address the issue of exhaustion in this case.”).
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Baxter v. Superintendent Coal Twp. SCI, 998 F.3d 542, 546 (3d Cir. 2021). Because an
instruction was unwarranted, counsel was not ineffective for failing to request it.
In Kloiber, the Pennsylvania Supreme Court held that “where the witness is not in
a position to clearly observe the assailant, or he is not positive as to identity, or his
positive statements as to identity are weakened by qualification or by failure to identify
[the] defendant on one or more prior occasions,” the trial court “should warn the jury that
the testimony as to identity must be received with caution.” 106 A.2d at 826-27.
Jacobs has not shown a Kloiber instruction was necessary here. The trial
testimony established that Willis had the opportunity to observe his assailants while in
the Golden Dragon when they approached him and Terry on the street and during the
robbery. See Commonwealth v. Reid, 99 A.3d 470, 488-89 (Pa. 2014) (holding a Kloiber
charge was unnecessary partly because the defendant did not demonstrate that the
identification witnesses “did not have an opportunity to clearly view [him]” at the time of
the murder). Willis also provided a description of the attackers after the incident,
positively identified both Jacobs and Howard before and at trial, and, even after cross-
examination, stated that he was “[o]ne hundred percent” certain that Jacobs was the
shooter, App. 585, 592. Thus, the evidence shows that Willis was able to identify the
attackers. Reid, 99 A.3d at 490-91 (“Our case law makes clear that the need for a Kloiber
instruction focuses on the ability of a witness to identify the defendant.”).
Furthermore, contrary to Jacobs’ argument, Willis’ failure to identify Jacobs in a
photo array days after the incident without reservation does not indicate that a Kloiber
instruction was warranted. Willis, in fact, did pick Jacobs out of the photo array but
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expressed reservation only because “[t]he lighting on the photo [the police showed him]
made . . . his skin tone [appear] a little off . . . .” App. 591. The Pennsylvania Supreme
Court has held that the witness’s failure to unequivocally identify the defendant prior to
trial does not warrant a Kloiber instruction where the witness later positively identifies
the defendant without equivocation. See, e.g., Commonwealth v. Gibson, 688 A.2d
1152, 1163 (Pa. 1997) (holding a Kloiber instruction was unnecessary where the witness
testified one of the photographs in a photographic array was “familiar” but chose to wait
to make an in-person identification and immediately made a positive identification of the
defendant at trial). Given Willis’ positive identification of Jacobs both before and at trial,
a Kloiber instruction was unnecessary.
Because counsel cannot be ineffective for failing to raise an unpersuasive
argument, United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999), Jacobs’ Kloiber
claim fails.
III
For the foregoing reasons, we will affirm.5
5
Even assuming that competent counsel would have objected to the admission of
Howard’s redacted statements and the prosecutor’s first mention of Jacobs’ name during
his summation, and even assuming there was a Bruton error the second time the
prosecutor mentioned Jacobs’ name during his summation, these errors all had the same
effect: they revealed that Howard identified Jacobs as the shooter. Given the single
effect, and in light of the other evidence establishing Jacobs’ guilt, Jacobs cannot
demonstrate the alleged errors had a “substantial and injurious” effect on the jury.
Brecht, 507 U.S. at 637.
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