ORDER

JOEL H. SLOMSKY, J.

AND NOW, this 3rd day of December, 2019, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.$.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski, IT IS ORDERED that:

REPORT AND RECOMMENDATION

LYNNE A. SITARSKI, United States Magistrate Judge.

Before the Court is a counseled Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Knowledge Brown ("Petitioner"), an individual currently incarcerated at the State Correctional Institution —Huntingdon. This matter has been referred to me for a Report and Recommendation. For the following reasons, I respectfully recommend that the petition for habeas corpus be GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY1

On May 8, 2009, Petitioner was found guilty of first-degree murder, possession of an instrument of crime (PIC), and related firearm offenses. (Crim. Docket at 4-5). In its decision affirming Petitioner's judgment of sentence, the Pennsylvania Superior Court provided the following factual and procedural summary:

Commonwealth v. Brown, No. 2424 EDA 2009, SCR No. D22, slip op., at 1-4; see also (Resp., Ex. A, ECF No. 13-1).

On May 8, 2009, after the three-day jury trial, the jury convicted Petitioner of first-degree murder, PIC, and other firearm related offenses. (N.T., Trial, 5/8/09, at 6:21-7:21; Crim. Docket at 4-5). The trial court sentenced Petitioner to life imprisonment without the possibly of parole, with concurrent sentences for the firearm offenses. (N.T., Trial, 5/8/09, at 21:6-14). Petitioner filed post-sentence motions, which were denied on July 20, 2009. (Mot., SCR No. D6; Order, SCR No. D11; Crim. Docket at 10-11).

Petitioner timely appealed. (Notice of Appeal, SCR No. D12; Crim. Docket at 12). On August 9, 2010, Petitioner filed a Supplemental Concise Statement of Errors raising four claims2: (1) insufficient evidence to support the convictions; (2) trial court error for denying his motion to suppress; (3) trial court error for allowing the Commonwealth to cross-examine his mother about his conviction for disorderly conduct; and (4) trial court error for denying a jury instruction that the Commonwealth's witness Moore was on probation. (Suppl. Statement of Errors, SCR No. D19, ¶¶ 1-4; see also Brown, slip op. at 5 (quoting Appellant's Br.)). The Superior Court affirmed his judgment of sentence on July 8, 2011. Brown, SCR No. D22, slip op. at 14. He filed a Petition for Allowance of Appeal on July 28, 2011, which the Pennsylvania Supreme Court denied on January 4, 2012. (Order, SCR No. D23; Crim. Docket at 15).

On February 17, 2012, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. (PCRA Pet., SCR No. D23; Crim. Docket at 15). PCRA Counsel entered his appearance on September 17, 2014, and subsequently filed an Amended PCRA Petition and Supplemental Amended PCRA Petition. (Entry of Appearance, SCR No. D26; Am. PCRA Pet., SCR No. D27; Suppl. Am. PCRA Pet., SCR No. D29). The PCRA Court held a hearing on August 24, 2015. (N.T., PCRA Hr'g, 8/24/15; Crim. Docket at 17). On October 19, 2015, the PCRA Court denied the Petition. (PCRA Ct. Op., SCR No. D32).

Petitioner timely appealed. (Notice of Appeal, SCR No. D33). He raised two claims: (1) his trial counsel was ineffective for failing to impeach Commonwealth witness Moore and request a cautionary jury instruction; and (2) he was entitled to relief under a cumulative error standard. Commonwealth v. Brown, No. 3338 EDA 2015, 2016 WL 5420504, at *1 (Pa. Super. Ct. 2016) (quoting Appellant's Br.). The Superior Court affirmed the PCRA Court's denial on September 27, 2016. Id. at *2. Petitioner filed a Petition for Allowance of Appeal, which was denied on January 24, 2017. (Crim. Docket at 19).

On May 15, 2017, Petitioner filed the instant Petition for Writ of Habeas Corpus. (Hab. Pet., ECF No. 1). The Honorable Joel H. Slomsky referred this matter to me for a Report and Recommendation. (Order, ECF No. 2). In his pro se Petition, he raised one ineffectiveness claim, that trial counsel "fail[ed] to challenge the eyewitness evidence" by impeaching the eyewitness with her prior statement to police. (Id. at ¶ 12). Petitioner also filed a pro se Memorandum of Law, asserting that his trial counsel was ineffective for failing to object to the trial court's reasonable doubt jury instruction. (Mem. Law, ECF No. 8, at ¶¶ 1-5). On February 16, 2018, counsel entered his appearance on Petitioner's behalf, and subsequently filed a Memorandum of Law in Support of the Petition. (Mem. Law Supp. Hab. Pet., ECF No. 20). Petitioner, through counsel, filed a Supplemental Memorandum of Law on August 1, 2018. (Suppl. Mem. Law, ECF No. 33). The Commonwealth filed its initial Response on November 30, 2017, and a Supplemental Response on August 20, 2018. (Resp., ECF No. 13; Suppl. Resp., ECF No. 34).

II. LEGAL STANDARDS

A. Exhaustion and Procedural Default

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C. § 2254. Pursuant to AEDPA:

28 U.S.C. § 2254(b)(1). The exhaustion requirement is rooted in considerations of comity, to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007); Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

Respect for the state court system requires that the habeas petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille, 489 U.S. at 351, 109 S.Ct. 1056. To "fairly present" a claim, a petition must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis to the state courts). A state prisoner exhausted state remedies by giving the "state courts one fully opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In Pennsylvania, one complete round includes presenting the federal claim through the Superior Court on direct or collateral review. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The habeas petition bears the burden of proving exhaustion of all state remedies. Boyd v. Waymart, 579 F.3d 330, 367 (2009).

If a habeas petition contains unexhausted claims, the federal district court must ordinarily dismiss the petition without prejudice so that the petitioner can return to state court to exhaust his remedies. Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). However, if state law would clearly foreclose review of the claims, the exhaustion requirement is technically satisfied because there is an absence of state corrective process. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). The failure to properly present claims to the state court generally results in a procedural default. Lines, 208 F.3d at 159-60. The doctrine of procedural default bars federal habeas relief when a state court relies upon, or would rely upon, "`a state law ground that is independent of the federal question and adequate to support the judgment'" to foreclose review of the federal claim. Nolan v. Wynder, 363 F. App'x 868, 871 (3d Cir. 2010) (not precedential) (quoting Beard v. Kindler, 558 U.S. 53, 53, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009)); see also Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

The requirements of "independence" and "adequacy" are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground is so "interwoven with federal law" that it cannot be said to be independent of the merits of a petitioner's federal claims. Coleman, 501 U.S. at 739-40, 111 S.Ct. 2546. A state rule is "adequate" for procedural default purposes if it is "firmly established and regularly followed." Johnson v. Lee, ___ U.S. ___, 136 S.Ct. 1802, 1804, 195 L.Ed.2d 92 (2016) (per curiam) (citation omitted). These requirements ensure that "federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule," Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005), and that "review is foreclosed by what may honestly be called `rules' ... of general applicability[,] rather than by whim or prejudice against a claim or claimant." Id. at 708.

Like the exhaustion requirement, the doctrine of procedural default is grounded in principles of comity and federalism. As the Supreme Court has explained:

Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

Federal habeas review is not available to a petitioner whose constitutional claims have not been addressed on the merits by the state courts due to procedural default, unless such petitioner can demonstrate: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 451, 120 S.Ct. 1587; Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To demonstrate cause and prejudice, the petitioner must show some objective factor external to the defense that impeded counsel's efforts to comply with some state procedural rule. Slutzker, 393 F.3d at 381 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To demonstrate a fundamental miscarriage of justice, a habeas petitioner must typically demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-26, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

B. Ineffective Assistance of Counsel

A claim for ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the United States Supreme Court established the following two-pronged test for ineffectiveness:

466 U.S. at 687, 104 S.Ct. 2052. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "Thus ... a defendant must overcome the `presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.''" Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

III. DISCUSSION

Petitioner raises two claims for relief. (Mem. Law. Supp. Hab. Pet., ECF No. 20; Suppl. Mem. Law., ECF No. 33). He contends trial counsel was ineffective for: (1) failing to object to the trial court's reasonable doubt jury instruction; and (2) failing to impeach the identification testimony of Commonwealth eyewitness Renea Moore. (Mem. Law., ECF No. 20, at 17-57). Because I find Petitioner is entitled to habeas relief based upon his first ineffectiveness claim, I decline to address Petitioner's ineffectiveness for failure to impeach claim.

In his first claim, Petitioner argues that his trial counsel was ineffective for failing to object to the trial court's reasonable doubt jury instruction. He contends the reasonable doubt instruction "unconstitutionally elevated the level of doubt required for acquittal in violation of the Due Process Clause of the Fourteenth Amendment, and trial counsel was ineffective for failing to object in violation of the Sixth Amendment." (Id. at 17). The trial judge's reasonable doubt jury instruction is as follows:

(N.T., Trial, 5/7/09, at 205:10-210:5 (emphasis added)).

Petitioner avers that the hypothetical surgery analogy used by the trial judge was defective because "[t]he court used a situation—a life-threatening illness of a child or other loved one for which only one good treatment existed—where of course any reasonable person would authorize moving forward and accept the risk.... By injecting this level of concern, urgency and graveness, the trial court's instruction raised the threshold for what constitutes reasonable doubt." (Mem. Law, ECF No. 20, at 20) (emphasis in original). Petitioner maintains that "[b]y requiring for acquittal a doubt so strong and substantial that it would prevent a mother authorizing a surgery to save her dying child's life, [the trial judge] relieved the Commonwealth of its high burden to prove guilt beyond a reasonable doubt in violation of clearly established federal law." (Id. at 20-21). He asserts trial counsel was ineffective for failing to object to this deficient reasonable doubt jury instruction. (Id. at 27-30).

The Commonwealth responds that Petitioner's claim is procedurally defaulted because he never presented this claim to the Pennsylvania Courts, and no exceptions apply to excuse the procedural default. (Resp., ECF No. 13, at 13-17; Suppl. Resp., ECF No. 34, at 2-4). The Commonwealth also contends that the claim is meritless and does not warrant relief. (Suppl. Resp., ECF No. 34, at 5-12). Petitioner concedes this claim was never presented to the Pennsylvania Courts, but argues that the failure to present the claim is excused due to PCRA Counsel's ineffectiveness under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). (Mem. Law, ECF No. 20, at 30-32).

I will first address whether the procedural default on Petitioner's claim is excused under Martinez, and I conclude Petitioner has satisfied the Martinez requirements. I will then discuss his underlying ineffectiveness claim related to the failure to object to the reasonable doubt jury instruction. I find that the jury instruction unconstitutionally distorted the reasonable doubt standard, and Petitioner's trial counsel was ineffective for failing to object. Accordingly, for the following reasons, I respectfully recommend the District Court grant the petition for a writ of habeas corpus.

A. The Procedural Default is Excused under Martinez

As noted above, a petitioner must exhaust his federal constitutional claims in state court before raising them in a federal habeas petition. 28 U.S.C. § 2254(b)(1); Castille, 489 U.S. at 349, 109 S.Ct. 1056; Rose, 455 U.S. at 518, 102 S.Ct. 1198. Petitioner recognizes his claim is procedurally defaulted because it was never presented to the state courts, and he would now be precluded by Pennsylvania's waiver rule, 42 Pa.C.S. § 9544(b), and the PCRA statute of limitations, 42 Pa.C.S. § 9545(b), from exhausting this claim in the Pennsylvania Courts. He asserts the procedural default on this claim is excused under Martinez because of PCRA Counsel's ineffectiveness.

Martinez recognized a "narrow exception" to the general rule that attorney errors in collateral proceedings do not establish cause to excuse a procedural default, holding, "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 566 U.S. at 9, 132 S.Ct. 1309. The Third Circuit has provided that "`[w]here state law requires a prisoner to raise claims of ineffective assistance of trial counsel in a collateral proceeding, rather than on direct review, a procedural default on those claims will not bar their review by a federal habeas court if three conditions are met: (a) the default was caused by ineffective assistance of post-conviction counsel or the absence of counsel (b) in the initial-review collateral proceeding (i.e., the first collateral proceeding in which the claim could be heard) and (c) the underlying claim of trial counsel ineffectiveness is `substantial.''" Preston v. Superintendent Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018) (quoting Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014) (quoting Martinez, 566 U.S. at 14, 132 S.Ct. 1309)). Petitioner has satisfied these requirements.

First, Petitioner has shown that PCRA Counsel's failure to identify and present this claim to the state court on collateral review "fell below an objective standard of reasonableness." Preston, 902 F.3d at 376 (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). A lawyer's performance falls below an objective standard of reasonableness when "there is simply no rational basis to believe that counsel's failure to argue the ... issue on appeal was a strategic choice." United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000); Bey v. Superintendent Greene SCI, 856 F.3d 230, 244 (3d Cir. 2017) (finding PCRA counsel ineffective where no obvious strategic basis for failing to assert trial counsel's ineffectiveness related to defective jury instruction). Here, in support of his argument, Petitioner submitted declarations of his attorneys on PCRA review. (App'x II, ECF No. 23, at A64-A65). Petitioner's PCRA attorneys represent that they now recognize "the strong merit" in Petitioner's ineffectiveness claim; and declare that they "had no strategic reason for not raising a claim that trial counsel was ineffective for failing to object to that part of the reasonable doubt jury instruction given by [the trial judge] in which she unconstitutionally elevated the level of doubt needed for acquittal." (Id.). The medical procedure analogy skewed the standard for reasonable doubt, and trial counsel did not object. Trial counsel's failure to object to the deficient reasonable doubt instruction—especially in a case with scant evidence—is a strong ineffectiveness claim. PCRA counsel unreasonably performed by overlooking this substantial claim of trial counsel ineffectiveness. Cf. Workman v. Superintendent Albion SCI, 915 F.3d 928, 942 (3d Cir. 2019) (finding procedural default excused where PCRA counsel unreasonably omitted "a significant and obvious issue"); Bey, 856 F.3d at 244 (concluding procedural default excused where PCRA counsel had no strategic reason for omitting trial counsel's failure to object to faulty jury instruction); Alvarado v. Wetzel, No. 16-3586, 2019 WL 3037148, at *9 (E.D. Pa. July 10, 2019) (finding procedural default excused where "PCRA counsel overlooked the `significant and obvious' due process implications of the written supplemental jury instruction and trial counsel's failure to object on that ground.").

The second prong is satisfied because PCRA counsel did not raise the ineffectiveness claim before the PCRA Court, which was the "first collateral proceeding in which the claim could be heard[.]" Cox, 757 F.3d at 119; see also Preston, 902 F.3d at 377 ("The second Cox requirement is also satisfied here, as PCRA counsel failed to raise the [] claim in the initial-review collateral proceedings before the Court of Common Pleas.").

Lastly, Petitioner has shown that his underlying, procedurally defaulted, claim of trial counsel's ineffectiveness is "substantial" and has "some merit." Martinez, 566 U.S. at 14, 132 S.Ct. 1309. Whether a claim is "substantial" under Martinez is "analogous to the substantiality requirement for a certificate of appealability." Cox, 757 F.3d at 119 (citing Martinez, 566 U.S. at 14, 132 S.Ct. 1309). "Thus, the question for Martinez purposes, is merely whether `reasonable jurists could debate' that [Petitioner's claim] has merit, or whether the claim is `adequate to deserve encouragement to proceed further.'" Preston, 902 F.3d at 377 (quoting Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))).

Petitioner's underlying ineffectiveness claim for trial counsel's failure to object to the reasonable doubt jury instruction is "substantial" within the meaning of Martinez. His claim has more than "some merit." The medical procedure analogy warped the burden of proof, counsel did not object; and, in a case with slim evidence, reasonable jurists could certainly debate the merits of his claim. See, e.g., Brooks v. Gilmore, No. 15-5659, 2017 WL 3475475, at *8-10 (E.D. Pa. Aug. 11, 2017) (granting writ on ineffectiveness claim for failing to object to almost identical reasonable doubt instruction because, inter alia, it was "not a case where there was overwhelming evidence of guilt.... In simple terms, it is the type of case where reasonable doubt plays a fundamental role."); McDowell v. Delbalso, No. 18-1466, ECF No. 13, R&R at 5-9 (E.D. Pa. Jan. 23, 2019) (finding procedural default excused under Martinez and recommending habeas relief be granted for counsel's failure to object to the same reasonable doubt jury instruction); Jackson v. Capozza, No. 17-5126, ECF No. 19, R&R at 12-20 (E.D. Pa. Feb. 27, 2019) (same).

Accordingly, because Petitioner has demonstrated the procedural default on his ineffectiveness claim is excused under Martinez, I address the merits of his argument.

B. Trial Counsel's Ineffectiveness for Failing to Object to the Reasonable Doubt Jury Instruction

Petitioner's claim involves a two-part analysis. He contends: (1) the trial judge's reasonable doubt jury instruction was constitutionally defective; and (2) his counsel was ineffective for failing to object to the instruction. (Mem. Law, ECF No. 20, at 17-30). Petitioner substantially relies upon the decision in Brooks v. Gilmore, No. 15-5659, 2017 WL 3475475 (E.D. Pa. Aug. 11, 2017), where the court concluded that the trial court's usage of a near-identical medical procedure analogy unconstitutionally elevated the reasonable doubt standard, and trial counsel was ineffective for failing to object. Id. at *3-10.

For the following reasons, I respectfully recommend habeas relief be granted on his ineffectiveness claim. I find his argument persuasive: the medical analogy skewed the reasonable doubt standard, and counsel deficiently performed under Strickland by failing to object. I agree with the well-reasoned opinion in Brooks, as well as the analysis in McDowell, No. 18-1466, ECF No. 13, R&R, at 7-9 (E.D. Pa. Jan. 23, 2019) (recommending habeas relief be granted because "trial counsel was ineffective for failing to object to the reasonable doubt jury instruction"); and Jackson, No. 17-5126, ECF No. 19, R&R at 15-20 (E.D. Pa. Feb. 27, 2019) (recommending habeas relief be granted on counsel's ineffectiveness for not objecting to substantially identical reasonable doubt instruction).

1. The Reasonable Doubt Instruction Violated Due Process

The Due Process Clause of the Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). "Due process is violated when a jury instruction relieves the government of its burden of proving every element beyond a reasonable doubt." Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 285 (3d Cir. 2018) (citing Waddington v. Sarausad, 555 U.S. 179, 190-91, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009)). To determine whether the jury instruction violated the Due Process Clause, "we ask whether there is `some "ambiguity, inconsistency, or deficiency," in the instruction, such ... that there is a "reasonable likelihood" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.'" Bennett, 886 F.3d at 285 (quoting Sarausad, 555 U.S. at 190-91, 129 S.Ct. 823 (internal citation omitted)).

As noted above, Petitioner primarily relies on the decision in Brooks v. Gilmore, No. 15-5659, 2017 WL 3475475 (E.D. Pa. Aug. 11, 2017). In Brooks, the court found the near-identical medical procedure analogy violated the Due Process Clause. Id. at *4-5. The Brooks court first explained that "[a]n instruction violates due process where jurors could interpret it to allow conviction based on any `degree of proof below' the reasonable doubt standard." Id. at *3 (quoting Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)). In Cage, the Supreme Court analyzed how reasonable jurors would construe a jury charge that "equated a reasonable doubt with a `grave uncertainty' and an `actual substantial doubt[.]'" 498 U.S. at 41, 111 S.Ct. 328. The Supreme Court ordered a new trial, finding a due process violation because "the words `substantial' and `grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard." Id.

Relying on Cage, the court in Brooks concluded that the emotionally charged surgical metaphor violated the Due Process Clause because the hypothetical elevated the level of doubt required for an acquittal. Brooks, 2017 WL 3475475, at *4. Considering how a reasonable juror would analyze the medical hypothetical, the court reasoned that in a case involving a "`life threatening condition' affecting someone `absolutely precious' to a juror, where there is only one `known protocol' or `best protocol'.... [n]ecessarily, one would need profound, if not overwhelming, doubt to deny a loved one their only or best opportunity for cure." Id. Because, "[o]bjectively speaking, any person of decency and morals would strive to put aside doubt when faced with a single life-saving option for a loved one" the court found the hypothetical procedure unconstitutionally increased the level of doubt for an acquittal. Id. at *4.

The Brooks court also relied on the Supreme Court's reasoning in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 S.Ct. 150 (1954). Id. at *4-5. In Holland, the Supreme Court stated that reasonable doubt should be expressed "in terms of the kind of doubt that would make a person hesitate to act rather than the kind on which he would be willing to act." 348 U.S. at 140, 75 S.Ct. 127 (internal citation omitted). The Brooks court, relying on Holland, explained that "[t]he problem is compounded by the fact that the trial judge structured the hypothetical in terms of the jury proceeding to take action on behalf of their family member, twice using the phrase `if you go forward....'" Brooks, 2017 WL 3475475, at *4. The court reasoned "[w]hereas the concept of reasonable doubt is grounded in a hesitation to act, here the court's example posited a situation creating strong motivation to act." Id. Accordingly, the Brooks court found it was reasonably likely the jury applied a standard lower than reasonable doubt because the jury charge "define[d] this fundamental principle by means of an emotionally charged exampled weighted in favor of resolving doubt for the purpose of providing live-saving care to a loved one[.]" Id. at *5 (citing Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).

I agree with the Brooks court's well-reasoned analysis on this issue. As in Brooks, I am persuaded that the trial court's usage of a surgical procedure analogy to illustrate the concept of reasonable doubt violated the Due Process Clause. (N.T., Trial, 5/7/09, at 208:2-209:12). Equating reasonable doubt with whether to undertake a medical procedure for a loved one created "`a reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Bennett, 886 F.3d at 285 (quoting Sarausad, 555 U.S. at 190-91, 129 S.Ct. 823). Couching reasonable doubt in terms of "go[ing] forward with the surgery for your loved ones" to treat a "life-threatening medical condition", (N.T., Trial, 5/7/09, at 208:14, 209:7), runs afoul of the Supreme Court's guidance in Cage, 498 U.S. at 41, 111 S.Ct. 328, and Holland, 348 U.S. at 140, 75 S.Ct. 127. The instruction could cause a reasonable juror to misconstrue the actual standard of proof "in a way that would encourage the jury to resolve any doubt." Brooks, 2017 WL 3475475, at *4. By explaining reasonable doubt in such fashion, a reasonable juror could misapply the standard and resolve inferences in favor of the Commonwealth because, "[o]bjectively speaking, any person of decency and morals would strive to put aside doubt when faced with a single life-saving option for a loved one." Id.

The Commonwealth contends that Petitioner is not entitled to relief because the jury instruction, taken as a whole, accurately conveys the reasonable doubt standard. (Resp., ECF No. 13, at 14-16); see also Bennett, 886 F.3d at 285 ("[T]he jury instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record[.]" (quoting Sarausad, 555 U.S. at 190, 129 S.Ct. 823)). I disagree. "`[W]hile a single defect does not necessarily make an instruction erroneous,... other language in the instruction does not always serve to cure the error. This is so even when other language correctly explains the law.'" Bey, 856 F.3d at 241 (quoting Whitney v. Horn, 280 F.3d 240, 256 (3d Cir. 2002)). Here, the jury instructions, considered as a whole, did not cure the distortion created by the medical procedure analogy. The judge instructed the jury "I find it helpful to think about reasonable doubt in this way" before providing the illustration of saving a loved one suffering from a life-threatening condition. (N.T., Trial, 5/7/09, at 208:2-3). The analogy served as the main example of reasonable doubt for the jury, and created an opportunity for the jury to resolve all doubts in favor of the Commonwealth. By instructing the jury to equate reasonable doubt to the considerations of saving a loved one, the trial court created a "`reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Bennett, 886 F.3d at 285 (quoting Sarausad, 555 U.S. at 190, 129 S.Ct. 823).

2. Trial Counsel was Ineffective for Failing to Object

Petitioner maintains that his trial counsel was ineffective for failing to object to the unconstitutional jury instruction. (Mem. Law, ECF No. 20, at 27-30). Ineffective assistance of counsel claims are governed by Strickland, 466 U.S. 668, 104 S.Ct. 2052 (1984). To show ineffectiveness under Strickland, 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,' i.e., that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Bey, 856 F.3d at 238 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007)). The Brooks decision again provides a persuasive guiding framework.

First, trial counsel's failure performance fell below an objective standard of reasonableness. "[A] court deciding any ineffectiveness claim must `determine whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.'" Jacobs v. Horn, 395 F.3d 92, 106 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). "Courts have routinely declared assistance ineffective when `the record reveals that counsel failed to make a crucial objection or to present a strong defense solely because counsel was unfamiliar with clearly settled legal principles.'" Thomas v. Varner, 428 F.3d 491, 501 (3d Cir. 2005) (internal citation omitted); see also Everett v. Beard, 290 F.3d 500, 514-15 (3d Cir. 2002) (collecting cases and noting "[s]everal other of our sister circuits have granted habeas petitions on the grounds that counsel was ineffective for failing to object to or to propose jury instructions.").

Here, counsel's failure to make a "crucial objection" to the unconstitutional reasonable doubt instruction fell outside the range of professionally competent assistance, and there is no reasonable explanation for failing to object to such a constitutionally infirm charge. Cf. Whitney, 280 F.3d at 258 ("Given our discussion of the nature of the defect in this [jury] charge, and the problems that arise from it, it follows a fortiori that unless counsel had a strategic reason for not objecting, [petitioner] will satisfy the first prong of Strickland."); Bey, 856 F.3d at 238-39 (finding counsel's performance deficient where counsel "failed to object to a [jury] charge that blatantly misstated the [law]" as the deviation was "so problematic that any alert defense counsel should have immediately known that it raised serious constitutional issues."). The jury instruction could lead a reasonable juror to resolve doubts in favor of the Commonwealth, and counsel's failure to object to such a deficient charge constituted unreasonable performance under Strickland. See, e.g., Brooks, 2017 WL 3475475, at *6-7 (finding counsel rendered deficient performance for failing to object to "the court's hypothetical [that] was so instinctively problematic"); McDowell, No. 18-1466, ECF No. 13, R&R at 7-9 (E.D. Pa. Jan. 23, 2019) (recommending habeas relief be granted on ineffectiveness claim for failing to object to near-identical reasonable doubt instruction); Jackson, No. 17-5126, ECF No. 19, R&R at 12-20 (E.D. Pa. Feb. 27, 2019) (concluding "counsel's failure to make the objection constitutes deficient performance" and recommending habeas relief be granted).

Petitioner was also prejudiced by counsel's deficient performance. As explained by the Brooks court, Supreme Court case law suggests that prejudice is presumed where there is an erroneous reasonable doubt instruction. 2017 WL 3475475, at *7 (citing Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Weaver v. Massachusetts, ___ U.S. ___, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017)). The Sullivan Court held a defective reasonable doubt instruction is a "structural error" because "a misdescription of the burden of proof ... vitiates all the jury's findings" and has "consequences that are necessarily unquantifiable and indeterminate." Sullivan, 508 U.S. at 281-82, 113 S.Ct. 2078. In Weaver, the Supreme Court explained "an error has been deemed structural if the error always results in fundamental unfairness. For example, ... if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one." Weaver, 137 S.Ct. at 1908. Because the misdescription of reasonable doubt is a structural error, resulting in fundamental unfairness, I agree with Brooks that prejudice is presumed.

However, even if prejudice may not be presumed, Petitioner nevertheless satisfies the inquiry. Prejudice is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "A `reasonable probability' is one `sufficient to undermine confidence in the outcome.'" Bey, 856 F.3d at 242 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); see also Buck v. Davis, ___ U.S. ___, 137 S.Ct. 759, 776, 197 L.Ed.2d 1 (2017) (stating the petitioner must demonstrate "a reasonable probability that, ... at least one juror would have harbored a reasonable doubt"). The prejudice standard "`is not a stringent one' and is `less demanding than the preponderance standard.'" Bey, 856 F.3d at 242 (quoting Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001)).

I am convinced trial counsel's failure to secure a proper statement of reasonable doubt prejudiced Petitioner. Significantly, and similar to Brooks and Jackson, the evidence of guilt is not strong,3 rendering this "the type of case where reasonable doubt plays a fundamental role." Brooks, 2017 WL 3475475, at *8; Jackson, No. 17-5126, at 20. No physical evidence tied Petitioner to the crime. The Commonwealth's evidence consisted of the police statement of Aquil Raheem and the trial testimony of Renea Moore. Importantly, the Raheem statement and the Moore trial testimony were infirmed. Other than the police statement, Raheem never identified Petitioner as the perpetrator. (Trial Ex. C45). At both the preliminary hearing and trial, he testified consistently that he was in the back of the store and the shooting occurred in the front, and he never saw the shooter at all. (N.T., Trial, 5/5/09, at 166:14-16, 170:12-16; Prelim. Hr'g, 3/18/08, Ex. C47, at 47:24-48:2, 54:8, 62:4-11). Moore's identification also suffers under scrutiny.4 An accurate jury instruction on reasonable doubt is critical in every case, and even more so when a conviction is dependent on eyewitness testimony that may not withstand scrutiny. Cf. Brooks, 2017 WL 3475475, at *8. The trial court's instruction here distorted the reasonable doubt standard such that a reasonable juror could erroneously resolve doubts in favor of the Commonwealth. I thus find a "reasonable probability" the outcome would have been different had counsel objected and requested a proper jury instruction. See, e.g. id. at *8-9; Jackson, No. 17-5126, ECF No. 19, R&R at 20.

Accordingly, I conclude Petitioner's counsel was ineffective for failing to object to the trial court's reasonable doubt jury instruction.

IV. CONCLUSION

For the foregoing reasons, I respectfully recommend the District Court grant the request for a writ of habeas corpus on Petitioner's first ineffectiveness claim. I find the procedural default is excused under Martinez. I further conclude the trial court's reasonable doubt jury instruction created a reasonable likelihood that the jury could misapply the burden of proof, and that his trial counsel was ineffective for failing to object to the instruction. Petitioner has demonstrated habeas relief is warranted.

Therefore, I make the following:

RECOMMENDATION

AND NOW this 23RD day of September, 2019, I respectfully RECOMMEND that the petition for writ of habeas corpus be GRANTED with respect to Petitioner's claim that trial counsel was ineffective for failing to object to the reasonable doubt jury instruction provided at his trial.

Within one-hundred and eighty (180) days of the District Judge's Order approving and adopting this Report and Recommendation, the Commonwealth shall give Petitioner a new trial, or release him from custody.