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Bey v. Superintendent Greene SCI

United States Court of Appeals, Third Circuit

May 10, 2017

SALEEM BEY, Appellant
v.
SUPERINTENDENT GREENE SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

          Argued November 8, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cv-05848) District Judge: Honorable Anita B. Brody.

          Michael Wiseman, Esq., Attorney for Appellant.

          John W. Goldsborough, Esq., Philadelphia County Office of District Attorney, Attorney for Appellees.

          Before: McKEE and RESTREPO, Circuit Judges; HORNAK, District Judge. [*]

          OPINION

          McKEE, CIRCUIT JUDGE.

         Saleem Bey appeals the order of the District Court dismissing the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. He contends that his trial counsel rendered ineffective assistance for failing to object to: (1) a faulty jury instruction on eyewitness testimony (Kloiber instruction); and (2) the prosecution's comments on his post-Miranda silence. Bey concedes that his claims are procedurally defaulted, but argues his default should be excused because his post-conviction review counsel's assistance was ineffective when he failed to raise the claims in collateral proceedings. For the following reasons, we conclude there is cause to excuse Bey's procedural default for his ineffective assistance of counsel claim pertaining to the Kloiber instruction. We will vacate the District Court's order and remand for issuance of a conditional writ based on that claim. Accordingly, we need not reach Bey's claim pertaining to the prosecution's comments on his post-Miranda silence.

         I

         Bey was charged with the nonfatal shooting of Kenneth Thompkins and the fatal shooting of Terry Swanson that took place on November 21, 2001 in a club parking lot in Philadelphia. Bey's first trial ended in a hung jury. On retrial, Bey was convicted of murder, attempted murder, and possessing an instrument of crime. He was sentenced to life in prison for murder, 7.5 to 40 years for attempted murder, and 9 to 18 months for the weapons offense.

         The prosecution's key witness at the retrial was Philadelphia Police Officer Daniel Taylor. Taylor testified that he saw Bey running from the direction of the first gunshots in the south end of the parking lot and that Bey shot Thompkins from behind with a silver handgun as he ran. Taylor said that he then saw Thompkins fall to the ground as Bey continued running north toward Taylor. According to Taylor, Bey tucked the handgun into his waistband as he ran. Taylor testified that when Bey was about fifteen feet away from him, Taylor shouted "police, drop the gun" and Bey looked up in response.[1] Taylor then made "eye-to-eye" contact with Bey as Bey "looked right at [Taylor's] face."[2]Taylor then gave chase with several other officers, and Bey was arrested moments later. No weapons were found on Bey, though a .380 silver gun-which matched the bullet casings at the scene-and a black and silver Derringer handgun were found elsewhere in the parking lot. Officer Ferrero testified that he saw Bey drop the Derringer as he ran from police.

         Taylor's identification of Bey as the shooter was certain and unequivocal. Taylor said he could see Bey clearly: There were no cars or people obstructing his view, and the area was "well lit."[3] Taylor's identification of Bey as the shooter was consistent in all of Taylor's interviews, preliminary hearings, at the initial trial, and at the retrial that occurred after the first jury was unable to reach a verdict. However, Taylor was the only eyewitness who identified Bey as the shooter. Other officers on the scene at the time of the shooting testified that they understood Bey to be the shooter because Taylor identified him as such. Kenneth Thompkins, the surviving victim, testified that he did not see his shooter. However, in statements to Bey's then-defense counsel, Thompkins had said that his shooter was not Bey, but a bald, dark-skinned, bearded man.

         During the retrial, defense counsel requested a special jury instruction on eyewitness testimony, pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Kloiber.[4] In Kloiber, the Pennsylvania Supreme Court recognized the need for a cautionary instruction in certain eyewitness cases.[5] The trial judge here did attempt a Kloiber charge. However, rather than giving the charge outlined in Kloiber, the court instructed the jury as follows:

Where a witness is positive of his identification, such as where the opportunity for positive identification is good and the witness is positive in his identification and the identification has not been weakened by any prior failure to identify but remains even after cross-examination positive and unqualified, the testimony as to the identification may not be received with caution. Indeed, positive testimony as to identity may be treated as a statement of fact.
On the other hand, if you believe that a witness is not in a position to clearly observe and was not in a position because of lighting and/or conditions, then you may use that as a factor in determining whether or not that the person actually had the opportunity to observe that which he testified to and a positive identification of a defendant by one witness is sufficient for a conviction.[6]

Although the bold text in the quoted instruction is critically inconsistent with Kloiber, defense counsel did not object. In Kloiber, the Pennsylvania Supreme Court had actually stated the following:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution-indeed the cases say that "his [positive] testimony as to identity may be treated as the statement of a fact." For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.
On the other hand, 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 defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.[7]

         The difference between telling jurors that they "may not" receive an identification with caution and instructing them that they "need not" receive the identification with caution is the difference between telling jurors that they must accept an identification and telling them that they may accept the testimony without reservation, but they need not do so.

         The confusion sewn by this instruction was soon evident. During deliberations, the jury asked the court to clarify aspects of Officer Taylor's testimony. The jury asked the court: "[M]ay we have or hear the transcript of Officer Taylor's testimony describing from the time the officer heard the first shot to when the defendant ran west towards the wall?" and "May we also have [the] statement where Officer Taylor says he saw the defendant shoot Swanson?"[8] Both questions went unanswered.

         The jury ultimately convicted Bey of the murder of Terry Swanson, attempted murder of Kenneth Thompkins, and possessing an instrument of crime. Thereafter, Bey filed a petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA").[9] His appointed PCRA counsel raised an ineffective assistance of counsel claim based on the Kloiber instruction, but failed to highlight the "may not be received with caution" language. Instead, Bey's PCRA counsel challenged three other aspects of the instruction. Counsel argued the instruction: (1) failed to inform jurors that if they found circumstances casting doubt on the identification's accuracy, the testimony "must be received with caution, " thereby omitting language from Kloiber; [10] (2) impermissibly placed a burden on the defense to prove circumstances casting doubt on the accuracy of the identification; and (3) improperly instructed jurors that "positive testimony as to identity may be treated as a statement of fact."[11]

         The PCRA Court considered only the third of the Kloiber issues raised in the petition, holding that the "statement of fact" language was permissible under state law and as a result, trial counsel's assistance was not ineffective for failing to object to the instruction.[12] The Court thus denied the PCRA petition, and the Pennsylvania Superior Court thereafter affirmed the PCRA court's conclusions.[13] Bey sought leave to appeal to the Pennsylvania Supreme Court but that request was declined.[14]

         Bey then filed this petition for habeas corpus relief, alleging, among other things, that his Sixth Amendment right to counsel was violated by his trial counsel's failure to object to the "may not be received with caution" language of the Kloiber instruction. Bey also argues that his PCRA counsel's failure to raise his ineffective assistance of trial counsel claim on collateral review amounted to a Sixth Amendment violation that excuses any procedural default at the PCRA appeal level.

         The District Court adopted the Magistrate Judge's recommendation that Bey's claims be rejected.[15] The District Court held generally that to the extent that Bey's ineffective assistance claims were not procedurally defaulted, Bey could not show prejudice because "there was overwhelming evidence of guilt."[16] We thereafter certified the following two issues for appeal: (1) Whether Bey's trial attorney's assistance was ineffective for failing to object to a faulty Kloiber instruction and whether any procedural default of this issue should be excused; (2) Whether Bey's trial attorney rendered ineffective assistance in failing to object on proper grounds to the prosecutor's comments on Bey's post-arrest, post-Miranda silence and whether the procedural default of that issue should be excused. As we noted at the outset, since we are granting relief on the Kloiber ineffectiveness claim, we do not reach Bey's claim based on the prosecution's closing argument.[17]

         II

         "The doctrine of procedural default prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment."[18] Bey concedes that both of his ineffective assistance of counsel claims are procedurally defaulted. However, a habeas petitioner's procedural default may be excused if the petitioner can show cause for the default and prejudice arising from failure to consider the claim.[19] If cause and prejudice are shown and the default excused, our review of a petitioner's claim is de novo because the state court did not consider the claim on the merits.[20] On the other hand, if a constitutional claim is properly raised in state court-and therefore, not procedurally defaulted-the state court's determination is afforded substantial deference under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").[21]

         A

         We must first determine if Bey's claim is procedurally defaulted. Procedural default occurs when "the prisoner ha[s] failed to meet a state law procedural requirement."[22]Pennsylvania's procedural rules state that a defendant waives an ineffective assistance of counsel claim unless he or she raises it during the first state collateral review proceeding.[23]

         Bey concedes that his PCRA counsel failed to argue that his trial counsel's assistance was ineffective in failing to object to the Kloiber instruction that the jury "may not . . . receive[] with caution" positive eyewitness testimony. Bey therefore acknowledges that his claim is procedurally defaulted. Nevertheless, he argues that the default should be excused. In rejecting that position, the District Court reasoned that because the PCRA petition generally raised ineffectiveness claims based on issues with the Kloiber charge, Bey's counsel did raise this claim to state courts.[24]Accordingly, the Court applied deferential AEDPA review and held that the state courts reasonably rejected the Kloiber ineffectiveness claim and Bey was therefore not entitled to habeas relief.[25]

         Bey's PCRA petition did claim ineffective assistance of counsel based on a faulty Kloiber instruction, and argued that as a basis for the objection under the state and federal constitutions. But none of the three Kloiber issues raised in the petition pertain to the claim Bey is raising here or the language it is based on. As noted above, the current objection challenges the trial court's instruction that positive and unqualified eyewitness testimony "may not be received with caution."[26] Though Bey's petition and the PCRA Court's opinion reprint the problematic phrase, Bey's counsel made no argument about it, and the court did not consider that language in adjudicating Bey's PCRA claim.[27] Accordingly, we conclude that the specific ineffective assistance claim addressing the trial court's instruction that the jury "may not . . . receive[]" positive identification testimony with caution was not raised in state court and was therefore waived under state law. Consequently, Bey's claim is procedurally defaulted and we may only review it if the default can be excused. [28]

         B

         Pursuant to the Supreme Court's decision in Martinez v. Ryan, [29] counsel's failure to raise an ineffective assistance claim on collateral review may excuse a procedural default if: "(1) collateral attack counsel's failure itself constituted ineffective assistance of counsel under Strickland, and (2) the underlying ineffective assistance claim is 'a substantial one.'"[30] Because Bey's claim that his PCRA counsel's assistance was ineffective stems from the strength of his underlying ineffective assistance of trial counsel claim, we consider the second Martinez requirement first.

         To satisfy the second Martinez requirement, the petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one."[31] In other words, "the [petitioner] must demonstrate that the claim has some merit."[32] In Martinez, the Court relied upon Miller- El v. Cockerell, [33] suggesting that we apply the standard for issuing certificates of appealabililty in resolving the inquiry into what constitutes a "substantial" claim.[34] Thus, whether a claim is "substantial" is a "threshold inquiry" that "does not require full consideration of the factual or legal bases adduced in support of the claims."[35] With this framework as our guide, we can now turn to an analysis of Bey's ineffective assistance of counsel claim.

         To prove ineffective assistance of counsel under Strickland v. Washington, [36] a petitioner must prove "(1) that his counsel's performance was deficient, that is, it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his client, "[37] i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[38] We have previously referred to these as the "performance" and "prejudice" prongs of the Strickland test.[39]

         Generally, trial counsel's stewardship is constitutionally deficient if he or she "neglect[s] to suggest instructions that represent the law that would be favorable to his or her client supported by reasonably persuasive authority" unless the failure is a strategic choice.[40] As noted above, Bey's trial counsel failed to object to a Kloiber charge that blatantly misstated the wording in Kloiber itself. A proper charge under Kloiber informs the jury that it has the ultimate discretion of deciding whether to credit positive eyewitness testimony.[41] Instead, the trial court's instruction essentially required the jury to accept positive eyewitness testimony as true by directing that "testimony as to the identification may not be received with caution."[42] The fact that the jurors were told that they only had to accept the identification if it was made under favorable circumstances and was not equivocal does not negate the fact that the jury did not know that it was free to reject Officer Taylor's identification even if Taylor was positive as to his identification. The instruction is likewise contrary to Pennsylvania's Suggested Jury Instruction that was based on Kloiber. The edition of the suggested instruction available at the time of Bey's trial directs the jury to weigh positive eyewitness testimony as follows: "you need not receive the testimony with caution; you may treat it like ordinary testimony."[43]

         Although Kloiber and its progeny did not specifically prohibit the instruction given here at the time of Bey's retrial, [44] the trial court's deviation from the language in Kloiber was so problematic that any alert defense counsel should have immediately known that it raised serious constitutional issues. Jurors were basically told that they had to accept the only eyewitness identification of the defendant as fact; they were not free to question it if they found Officer Taylor had a good opportunity to observe and was certain of his identification. Those are clearly relevant factors in evaluating the identification, but they were certainly no guarantee as to the accuracy of Taylor's identification of Bey.[45] The charge removed the discretion that the jury could otherwise have exercised that may have raised a reasonable doubt in the mind of one or more jurors about the identity of the shooter. Moreover, as we explain below, the instruction's deviation from Kloiber reaches constitutional dimensions.

         A jury instruction deprives a defendant of his or her Fourteenth Amendment due process rights when it suggests a conclusive presumption that removes the prosecution's burden of proving an element of an offense beyond a reasonable doubt.[46] If a "reasonable juror could have understood the [instruction] as a mandatory presumption that shifted to the defendant the burden of persuasion on [an] element" of the offense, the instruction is constitutionally defective.[47] However, a single jury instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge."[48]

         Here, the prosecution was obviously required to establish that Bey-and no one else-fatally shot Swanson and wounded Thompkins. Officer Taylor's testimony that he saw Bey running from the direction of the Swanson shooting and that he saw him shoot Thompkins, if accepted, established Bey's guilt. The trial court then told the jury that positive eyewitness testimony "may not be received with caution" when "the opportunity for positive identification is good" and "the identification has not been weakened by any prior failure to identify but remains even after cross-examination positive and unqualified."[49] Based on this instruction, a reasonable juror could only have concluded that he or she was required to accept Officer Taylor's testimony as true as long as Taylor's identification was positive and consistent. Thus, as long as Officer Taylor's testimony was consistent and he testified he was certain Bey was the shooter, a guilty verdict would necessarily result-regardless of whether the testimony was accurate. The scientific community has understood for decades that eyewitness identifications that are certain and confident are not necessarily accurate.[50] Rather, a witness may honestly hold beliefs about what he or she saw that are distorted, inaccurate, or even completely wrong.[51] Accordingly, under established Supreme Court precedent, Bey has a substantial claim that the faulty Kloiber instruction deprived him of his due process right to have the prosecution prove every element beyond a reasonable doubt.

         Appellees argue that there is no due process problem here because in the context of the instructions as a whole, the jury could not have reasonably believed that it was required to accept Officer Taylor's testimony as true.[52] We realize, of course, that the jury charge included general instructions on evaluating the credibility of witnesses. For example, the jurors were told that they "must consider and weigh the testimony of each witness and give it the weight that you think in your own ...


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