David Mathias v. Superintendent Frackville SCI , 876 F.3d 462 ( 2017 )


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  •                                    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    Nos. 14-4694 & 15-2694
    _______________
    DAVID MATHIAS,
    Appellee/Cross-Appellant
    v.
    SUPERINTENDENT FRACKVILLE SCI;
    ATTORNEY GENERAL OF THE
    STATE OF PENNSYLVANIA,
    Appellants/Cross-Appellees
    _______________
    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
    _______________
    Argued: December 6, 2016
    Before: FISHER, ∗ KRAUSE, and MELLOY, ** Circuit
    Judges.
    (Opinion Filed: November 20, 2017)
    Maria K. Pulzetti, Esq. [ARGUED]
    Federal Community Defender Office for the Eastern District
    of Pennsylvania
    601 Walnut Street
    The Curtis Center, Suite 540 West
    Philadelphia, PA 19106
    Counsel for Appellee/Cross-Appellant
    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
    _______________
    OPINION OF THE COURT
    _______________
    ∗
    Honorable D. Michael Fisher, United States Circuit
    Judge for the Third Circuit, assumed senior status on February
    1, 2017.
    **
    Honorable Michael J. Melloy, Senior Circuit Judge,
    United States Court of Appeals for the Eighth Circuit, sitting
    by designation.
    2
    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
    3
    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
    4
    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
    5
    . . . [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
    1
    The jury instructions also covered robbery, for which
    Mathias was not charged. However, because the prosecution’s
    theory of the case was that Mathias and Jarmon intended to rob
    Richardson, the elements of robbery were relevant to the
    instruction on second-degree murder.
    6
    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
    7
    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
    8
    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
    9
    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.
    10
    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 Federal Rule of Appellate Procedure
    4(a)(3), Fed. R. App. P. 4(a)(3), we must determine if that rule
    is mandatory and binding on the court or permissive and
    excusable by the reviewing court. The second is the standard
    for excusing a default and our application of that standard to
    this case. And the third is whether the statutory COA
    requirement that applies to a petitioner’s appeal on a successive
    petition also extends to a petitioner’s cross-appeal, and if so,
    whether we should grant one in Mathias’s case. We conclude
    Mathias reaches but falters at this last threshold.
    A.   Jurisdiction Over Mathias’s Cross-Appeal
    Under Rule 4(a)(3)
    We first must determine if Federal Rule of Appellate
    Procedure 4(a)(3) is jurisdictional, a question that has divided
    the Courts of Appeals. 2 The crux of the issue is that, in contrast
    2
    Compare, e.g., Stephanie-Cardona LLC v. Smith’s Food
    & Drug Ctrs., Inc., 
    476 F.3d 701
    , 705 (9th Cir. 2007) (finding
    Rule 4(a)(3) nonjurisdictional ); Clubside, Inc. v. Valentin, 
    468 F.3d 144
    , 162 (2d Cir. 2006) (same); Spann v. Colonial Vill.,
    Inc., 
    899 F.2d 24
    , 33 (D.C. Cir. 1990) (same), with, e.g.,
    Jackson v. Humphrey, 
    776 F.3d 1232
    , 1239 n.6 (11th Cir.)
    (finding Rule 4(a)(3) jurisdictional), cert. denied, 
    136 S. Ct. 155
     (2015); Art Midwest Inc. v. Atl. Ltd. P’ship XII, 
    742 F.3d 11
    to the thirty-day time limit for filing an initial notice of appeal,
    which appears in 
    28 U.S.C. § 2107
     and has been recognized by
    the Supreme Court as a jurisdictional bar, Bowles v. Russell,
    
    551 U.S. 205
    , 214 (2007), Rule 4(a)(3) is not a creature of
    statute, but a court-promulgated rule. Today we join those
    Circuits that have found this distinction of jurisdictional
    significance. As explained below, we are guided to this
    outcome by our own precedent and by recent Supreme Court
    case law.
    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
     (1988), deemed
    jurisdictional Rule 3(c)’s requirement that a notice of cross-
    appeal name all parties, and that Torres made reference to the
    “jurisdictional requirements of Rules 3 and 4.” 
    Id. at 317
    . But
    because Torres offered no “definitive statement as to whether
    or not a cross-appeal is mandatory or jurisdictional,” Tabor,
    
    943 F.2d at 344
    , we reasoned that it did not disturb our
    treatment of Rule 4(a)(3) as permissive. Two years later,
    however, in EF Operating Corp. v. American Buildings, 993
    206, 213 (5th Cir. 2014) (same); Sullivan v. City of Augusta,
    
    511 F.3d 16
    , 33 n.7 (1st Cir. 2007) (same). See generally
    Mendocino Envtl. Ctr. v. Mendocino Cty., 
    192 F.3d 1283
    , 1298
    & nn. 27, 28 (9th Cir. 1999) (listing cases).
    
    12 F.2d 1046
     (1993), we changed course and, without citing to or
    distinguishing Tabor, held in view of Torres that Rules 3 and
    4 are in fact jurisdictional, 
    id.
     at 1049 n.1.
    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 (2011); see Gonzalez v.
    Thaler, 
    565 U.S. 134
    , 141-42 (2012); Bowles, 
    551 U.S. at
    214-
    15; Eberhart v. United States, 
    546 U.S. 12
    , 16 (2005); Kontrick
    v. Ryan, 
    540 U.S. 443
    , 453-54 (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,
    13
    
    546 U.S. at 15-16
    . By contrast, the Court has classified the
    thirty-day time period for filing a notice of appeal as
    jurisdictional, noting “the jurisdictional distinction between
    court-promulgated rules and limits enacted by Congress,”
    Bowles, 
    551 U.S. at 211-12
    , and explaining that “Rule 4 of the
    Federal Rules of Appellate Procedure carries § 2107 into
    practice,” Bowles, 
    551 U.S. at 208
    , in contrast to mere
    “procedural rules adopted by the [c]ourt for the orderly
    transaction of its business,” 
    id. at 211
     (quoting Kontrick, 
    540 U.S. at 454
    ).
    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
    , Rule 4(a)(3) is properly considered a
    nonjurisdictional “claim-processing rule”—promulgated to set
    filing deadlines for appellees considering whether to cross-
    appeal when a case is already brought within our jurisdiction,
    Henderson, 
    562 U.S. at 435
    . That is because, although Rule
    4(a)(3) provides for cross-appeals the analogue to Rule
    4(a)(1)’s time limit for initial appeals, it is not derived from
    any statutory analogue to 
    28 U.S.C. § 2107
    (a), but instead is
    simply a “procedural rule[] adopted by the [c]ourt for the
    orderly transaction of its business,” Bowles, 
    551 U.S. at 211
    (quoting Kontrick, 
    540 U.S. at 454
    ), like other
    nonjurisdictional, claim-processing rules “that seek to promote
    the orderly progress of litigation by requiring that the parties
    take certain procedural steps at certain specified times,”
    Henderson, 
    562 U.S. at 435
    . To designate that type of rule as
    jurisdictional would too “lightly attach . . . drastic
    consequences” to a procedural requirement never intended to
    “govern [our] . . . adjudicatory authority.” Gonzalez, 
    565 U.S. at 141
     (internal quotation marks omitted).
    14
    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 Rule
    4(a)(3) violation, we start with Tabor, where we stated that the
    requirement may be waived “in the interest of justice under
    appropriate circumstances,” Tabor, 
    943 F.2d at 343
    , but we did
    not elaborate on that standard. Because we must do so today,
    we will review our own case law, the standards articulated by
    other Courts of Appeals, and an analogous standard for the
    setting aside of default judgments and draw on their teachings
    before defining the standard for our Court.
    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
    .
    15
    Outside of our own jurisprudence, in S.M. v. J.K., 
    262 F.3d 914
     (9th Cir. 2001), the Ninth Circuit, declining to waive
    the timely filing requirement, considered whether the delay
    was understandable, the obviousness of the need to file a cross-
    appeal, and whether the matters were inextricably related, 
    id. at 923
    . That court determined there was “no reason to allow”
    the delayed cross-appeal where the putative claims were
    “essentially unrelated to the issues” on appeal, and the appellee
    “knew within the time period for filing her notice . . . that she
    intended to appeal the court’s punitive damages ruling.” 
    Id.
    And in Hysell v. Iowa Public Service Company, 
    559 F.2d 468
    (8th Cir. 1977), the Eighth Circuit vacated a judgment entered
    against a party not actually before it, notwithstanding that the
    deadline for filing a notice of cross-appeal had already passed,
    explaining, “To allow the judgment against the City to stand
    would be to risk assessing varying liabilities against two parties
    to the same wrong.” 
    Id. at 476-77
    .
    We also find instructive the standard for setting aside a
    default judgment. Federal Rule of Civil Procedure 60(b)
    provides for relief from the entry of a final judgment, order, or
    proceeding pursuant to enumerated circumstances which
    include, under Rule 60(b)(1), “mistake, inadvertence, surprise,
    or excusable neglect” and, under Rule 60(b)(6), “any other
    reason that justifies relief.” Fed. R. Civ. P. 60(b). We have
    held that the relevant factors to be considered on a Rule
    60(b)(1) motion include prejudice, meritorious defense,
    culpability, and “the effectiveness of alternative sanctions,”
    Emcasco Ins. Co. v. Sambrick, 
    834 F.2d 71
    , 73 (3d Cir. 1987),
    and that a party seeking relief under Rule 60(b)(6) must show
    “exceptional circumstances,” to wit: that “absent such relief an
    extreme and unexpected hardship will result,” Mayberry v.
    16
    Maroney, 
    558 F.2d 1159
    , 1163 (3d Cir. 1977) (internal
    quotation marks omitted).
    What we distill from these sources is that the factors
    informing when waiver of Rule 4(a)(3) is appropriate “in the
    interest of justice,” Tabor, 
    943 F.2d at 343
    , include: prejudice,
    merits, willfulness, and extraordinary circumstance. That is,
    we ask whether any party will be adversely and unfairly
    affected if the cross-appeal is not allowed; whether the issues
    substantially overlap such that severance may be inefficient or
    create an absurd result; whether good reason exists for the
    delay in filing; and whether there are extenuating
    circumstances present in the case that otherwise warrant relief.
    These considerations, taken as a group, encapsulate the issues
    courts find most significant when deciding whether to waive
    Rule 4(a)(3), and, applied with diligence, will maintain a high
    standard that safeguards the orderly and efficient
    administration of justice while keeping a level focus on
    fairness.
    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 
    28 U.S.C. § 2244
    (b)(2), and there is no reason to believe
    the Government would suffer any prejudice by opposing his
    claims while litigating its own appeal. Further, although
    Mathias’s putative cross-claims pertain to the trial court’s
    conspiracy instructions rather than its first-degree murder
    instructions, they are substantively related to the claims already
    before us and would require similar legal analyses on the
    merits. See Repola, 
    980 F.2d at 941
    . Finally, while proceeding
    pro se, Mathias may well have believed he could not raise
    17
    additional claims through a cross-appeal mechanism, see
    Rhoads, 
    514 F.2d at 934
    , and, demonstrating diligence on
    Mathias’s behalf, his newly appointed counsel filed the notice
    of cross-appeal promptly after entering an appearance in the
    case. Considering these factors (and without need to consider
    extraordinary circumstances), the interests of justice are served
    by the efficiency and fairness in allowing Mathias’s cross-
    appeal to proceed. Accordingly, we will excuse his untimely
    cross-appeal and consider the next threshold he must cross: the
    COA requirement.
    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 
    28 U.S.C. § 2253
    (c),
    which establishes the COA requirement on appeal, “performs
    an important gate-keeping function” that no longer exists once
    an appeal is noticed. Jennings v. Stephens, 
    135 S. Ct. 793
    , 802
    (2015). The Court expressly declined to decide whether
    § 2253(c) “embraces a cross-appeal,” id., and our Circuit has
    similarly left the matter for another day, see Mickens-Thomas
    v. Vaughn, 
    321 F.3d 374
    , 376 n.2 (3d Cir. 2003). That day has
    arrived, and we hold that a COA is mandatory for a petitioner
    seeking to take a cross-appeal.
    When initiating an appeal, a petitioner is obligated to
    obtain a COA by making “a substantial showing of the denial
    of a constitutional right,” 
    28 U.S.C. § 2253
    (c)(2)—which
    includes a “showing that reasonable jurists could debate
    whether . . . the petition should have been resolved in a
    different manner or that the issues presented were ‘adequate to
    deserve encouragement to proceed further.”’           Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000) (quoting Barefoot v.
    18
    Estelle, 
    463 U.S. 880
    , 893 n.4 (1983)). We perceive no reason
    to set aside this obligation merely because the petitioner’s
    claims happen to arrive by way of cross-appeal. To the
    contrary, in this context too it can serve its intended purpose of
    “screen[ing] out issues unworthy of judicial time and attention
    and ensur[ing] that frivolous claims are not assigned to merits
    panels,” a “gatekeeping function” that is satisfied “[o]nce a
    judge has made the determination that a COA is warranted and
    resources are deployed in briefing and argument.” 3 Gonzalez,
    
    565 U.S. at 145
    .
    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 
    28 U.S.C. § 2253
    (c)(2). See
    Slack, 
    529 U.S. at 483
    . In addition, where a district court has
    denied a petition on procedural grounds “a COA should issue
    when the [petitioner] shows, at least, that jurists of reason
    would find it debatable whether the petition states a valid claim
    of the denial of a constitutional right and that jurists of reason
    3
    Although the Seventh Circuit has suggested that once a
    state has elected to appeal the grant of habeas relief, “there are
    no remaining gates to be guarded,” and thus, it is futile to
    require a COA on cross-appeal, Szabo v. Walls, 
    313 F.3d 392
    ,
    398 (7th Cir. 2002), we do not interpret § 2253(c)’s
    “gatekeeping function” so narrowly, Gonzalez, 
    565 U.S. at 145
    .
    19
    would find it debatable whether the district court was correct
    in its procedural ruling.” Id. at 484. Quite simply, Mathias
    cannot overcome this procedural hurdle.
    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
    20
    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
     (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 
    28 U.S.C. § 2254
    , and we have jurisdiction under 
    28 U.S.C. § 2253
    .
    Because the District Court did not conduct an evidentiary
    hearing and engaged in no independent fact finding, we apply
    de novo review to its factual inferences drawn from the state
    21
    court record and its legal conclusions, including the grant of
    habeas relief. Albrecht v. Horn, 
    485 F.3d 103
    , 114 (3d Cir.
    2007); Hakeem v. Beyer, 
    990 F.2d 750
    , 758 (3d Cir. 1993).
    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 
    28 U.S.C. § 2254
    (d)(1)); see Cullen
    v. Pinholster, 
    563 U.S. 170
    , 181 (2011). “A state court
    decision is ‘contrary to’ clearly established federal law if it
    ‘applies a rule that contradicts the governing law set forth’ in
    Supreme Court precedent, or if it ‘confronts a set of facts that
    are materially indistinguishable from a decision of [the
    Supreme] Court and nevertheless arrives at a result different
    from that reached by the Supreme Court.’” Eley v. Erickson,
    
    712 F.3d 837
    , 846 (3d Cir. 2013) (quoting Williams v. Taylor,
    
    529 U.S. 362
    , 405, 406 (2000)) (alteration in original).
    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
    22
    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-assistance-of-counsel
    claim, it determined the Superior Court, by relying on the
    23
    Pennsylvania formulation of Strickland, “did not delve into
    the[] questions” of deficient performance and prejudice that
    Strickland requires and therefore was “contrary to Strickland.”
    
    Id. at *5
    . The state law formulation on which the Superior
    Court relied, however, is one we already have expressly held
    is “not contrary to Strickland,” Jacobs v. Horn, 
    395 F.3d 92
    ,
    106 n.9 (3d Cir. 2005), and the Superior Court not only invoked
    that permissible test, but proceeded to apply it, making findings
    as to both deficient performance and actual prejudice. Hence,
    as even Mathias concedes on appeal, the District Court simply
    erred in viewing the Superior Court’s decision as “contrary to”
    clearly established federal law, Richter, 562 U.S. at 100, and
    the proper inquiry is whether the Superior Court’s rejection of
    Mathias’s ineffective-assistance-of-counsel claim was an
    unreasonable application of clearly established federal law,
    Knowles v. Mirzayance, 
    556 U.S. 111
    , 121-23 (2009); Collins
    v. Sec’y of Pa. Dep’t of Corr., 
    742 F.3d 528
    , 546-50 (3d Cir.
    2014). The District Court misapplied plenary review to
    Mathias’s due process claim as well, failing to cite or consider
    in its analysis a key Supreme Court case under which the
    Superior Court’s decision is not “contrary to” clearly
    established federal law. Richter, 
    562 U.S. at 100
    . Applying
    the appropriate deferential standard of review, we turn first to
    the ineffective-assistance-of-counsel claim.
    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 (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
    
    24 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 appropriate AEDPA deference, 4 we must
    assess whether, even assuming counsel’s performance was
    deficient, the Superior Court’s decision that Mathias did not
    suffer prejudice 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 
    28 U.S.C. § 2254
    (d)(1))—an
    assessment that requires us to examine 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,” Strickland, 
    466 U.S. at 694
    . Because the
    Strickland standard is an especially “general” one, “a state
    court has even more latitude to reasonably determine” whether
    4
    While the Supreme Court has stated that “doubly
    deferential judicial review . . . applies to a Strickland claim
    evaluated under [AEDPA],” Knowles, 
    556 U.S. at 123
    , and at
    least suggested in dictum that such deference applies to
    Strickland’s prejudice prong, see Cullen, 
    563 U.S. at 202
    , the
    Courts of Appeals have taken different approaches to this
    issue, see Waiters v. Lee, 
    857 F.3d 466
    , 477 n.20 (2d Cir. 2017)
    (collecting cases), petition for cert. filed (Aug. 18, 2017) (No.
    17-5662). As it was not specifically briefed by the parties in
    this case, and reversal here is warranted under traditional
    AEDPA deference in any event, we will leave for another day
    whether “double deference” applies to both of Strickland’s
    prongs.
    25
    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 (2004))); see id. at
    122.
    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
     (1985), where the
    Supreme Court observed that if two discrete jury instructions
    regarding a requisite element are presented in contradictory
    terms, there exists “a reasonable likelihood that a juror
    understood the instructions in an unconstitutional manner,
    unless other language in the charge explains the infirm
    language sufficiently to eliminate this possibility,” 
    id.
     at 322
    n.8. The Superior Court’s failure to heed that admonition,
    according to Mathias (and the District Court), 5 was an
    5
    Based on Francis, the District Court granted habeas
    relief to Mathias because the trial court gave contradictory
    instructions—directing on the one hand, 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
    th[e] specific intent to kill Joseph Drew El,” App. 614, and 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, and stating on the other,
    on at least six occasions that the jury was required to find that
    either Mathias “or” his alleged accomplice, Richard Jarmon,
    26
    unreasonable application of clearly established Supreme Court
    case law.
    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
     (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 (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
    had the specific intent to kill Joseph Drew El. App. 615-16,
    622-23.
    27
    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, (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 these two cases. 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 AEDPA’s deferential standard of review, 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
    28
    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, we cannot say the Superior Court’s prejudice
    analysis reflected an unreasonable application of “clearly
    established” federal law, see Richter, 
    562 U.S. at 101
    ; 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. 
    28 U.S.C. § 2254
    (b)(1)(A). To satisfy this requirement, a
    petitioner must “fairly present” his federal claim’s “factual and
    legal substance to the state courts in a manner that puts them
    29
    on notice that a federal claim is being asserted.” Robinson v.
    Beard, 
    762 F.3d 316
    , 328 (3d Cir. 2014); see Baldwin v. Reese,
    
    541 U.S. 27
    , 29 (2004). Here, although his pro se brief
    mentioned only a claim of ineffective assistance in the headers
    to this argument, Mathias expressly argued in the text of his
    brief before the Superior Court that the first-degree murder
    instruction itself violated the Due Process Clause and cited to
    the Fourteenth Amendment of the United States Constitution
    and to relevant United States Supreme Court cases, including
    Francis, to support that argument. Under these circumstances,
    and recognizing, as we must, that pro se petitions are to be
    construed liberally, Rainey v. Varner, 
    603 F.3d 189
    , 198 (3d
    Cir. 2010); Commonwealth v. Eller, 
    807 A.2d 838
    , 845 (Pa.
    2002), we are satisfied that Mathias did fairly present his due
    process claim to the Superior Court and that the Superior Court
    rejected that claim on the merits—albeit within its discussion
    of the ineffective-assistance-of-counsel claim and based on
    state cases that incorporated the federal standard, 6 See Picard
    6
    To be clear, we do not hold today that, simply because
    a petitioner brings a claim of ineffective assistance of counsel
    or a state court adjudicates that claim, every claim counsel is
    allegedly deficient for failing to raise necessarily has been
    fairly presented to the state court as a federal claim. Indeed,
    that would effect a novel, gaping, and unwarranted expansion
    of federal habeas review, particularly as petitioners may
    discuss and state courts may analyze the alleged deficiency
    exclusively in terms of state law. Even those Courts of Appeals
    that have deemed exhausted claims that were raised sua sponte
    by the state court have done so only where the state court
    explicitly identified the claim as a federal claim and analyzed
    it under federal law. See, e.g., Jones v. Dretke, 
    375 F.3d 352
    ,
    355 (5th Cir. 2004); Sandgathe v. Maass, 
    314 F.3d 371
    , 376-
    30
    v. Connor, 
    404 U.S. 270
    , 277-78 (1971); McCandless v.
    Vaughn, 
    172 F.3d 255
    , 261 (3d Cir. 1999).
    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.
    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.”
    28 U.S.C. 2254(d)(1).
    Moreover, any error would be harmless because there
    was no “substantial and injurious effect or influence in
    77 (9th Cir. 2002); Walton v. Caspari, 
    916 F.2d 1352
    , 1356
    (8th Cir. 1990); Sandstrom v. Butterworth, 
    738 F.2d 1200
    ,
    1206 (11th Cir. 1984). We have not adopted that rule to date,
    see Sharrieff v. Cathel, 
    574 F.3d 225
    , 228 n.4 (3d Cir. 2009)
    (noting in dictum that the Supreme Court has “recognized
    exceptions” to the fair presentation requirement “where the
    State has actually passed upon the claim” (quoting Castille v.
    Peoples, 
    489 U.S. 346
    , 351 (1989))), and we do not have
    occasion to consider it further today because here, Mathias
    himself fairly presented the federal claim. We hold only that
    where, as here, a pro se petitioner has expressly identified the
    claim that counsel allegedly failed to raise as a federal
    constitutional claim and has briefed the merits of that claim by
    citing to federal cases, the claim has been properly exhausted.
    31
    determining the jury’s verdict.” Brecht v. Abrahamson, 
    507 U.S. 619
    , 623 (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 the crime of first degree murder,” which
    “would include the defendant having . . . shared the specific
    intent to kill,” App. 630, and the jury proceeded to return a
    guilty verdict on that charge. Nor is our conclusion altered by
    the fact that the trial court gave a progression charge or that the
    conspiracy charge also referred back to the first-degree murder
    instruction because the jury received its instructions in toto
    before beginning deliberations, and we presume the jury
    followed those instructions, including as to the specific intent
    it was required to find to convict Mathias as a co-conspirator.
    See Weeks v. Angelone, 
    528 U.S. 225
    , 234 (2000).
    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.
    32
    

Document Info

Docket Number: 14-4694

Citation Numbers: 876 F.3d 462

Filed Date: 11/20/2017

Precedential Status: Precedential

Modified Date: 1/12/2023

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