PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           _______________

           Nos. 14-4694 & 15-2694
             _______________

              DAVID MATHIAS,
                     Appellant (15-2694)

                       v.

  SUPERINTENDENT FRACKVILLE SCI;
     ATTORNEY GENERAL OF THE
      STATE OF PENNSYLVANIA,
               Appellants (14-4694)
          _______________

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: August 28, 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, 

(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, 

(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, 

,
100 (2011) (citing 28 U.S.C. § 2254(d)); Panetti v.
Quarterman, 

, 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, 

, at *8 (E.D. Pa. Nov. 5, 2014)
(citing 

; In re Winship, 

,
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., 

, 705 (9th Cir. 2007) (finding
Rule 4(a)(3) nonjurisdictional ); Clubside, Inc. v. Valentin, 

, 162 (2d Cir. 2006) (same); Spann v. Colonial Vill.,
Inc., 

, 33 (D.C. Cir. 1990) (same), with, e.g.,
Jackson v. Humphrey, 

, 1239 n.6 (11th Cir.)
(finding Rule 4(a)(3) jurisdictional), cert. denied, 

(2015); Art Midwest Inc. v. Atl. Ltd. P’ship XII, 

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,

, 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., 

(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,” 

           We
acknowledged in Tabor that the Supreme Court, in Torres v.
Oakland Scavenger Co., 

(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.” 

But
because Torres offered no “definitive statement as to whether
or not a cross-appeal is mandatory or jurisdictional,” 

, 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,

, 33 n.7 (1st Cir. 2007) (same). See generally
Mendocino Envtl. Ctr. v. Mendocino Cty., 

, 1298
& nn. 27, 28 (9th Cir. 1999) (listing cases).




                                

(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, 

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,

, 411-12 (3d Cir. 2003); United States v. Erwin,

, 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, 

, 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, 

, 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, 

, 435-36 (2011); see Gonzalez v.
Thaler, 

, 141-42 (2012); 

-
15; Eberhart v. United States, 

, 16 (2005); Kontrick
v. Ryan, 

, 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, 

, and the time period in
criminal prosecutions for filing post-trial motions, Eberhart,




                                

. 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,”

, and explaining that “Rule 4 of the
Federal Rules of Appellate Procedure carries § 2107 into
practice,” 

, in contrast to mere
“procedural rules adopted by the [c]ourt for the orderly
transaction of its business,” 

(quoting 

).

        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, 

, 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,

. 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,” 

(quoting 

), 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,”

. 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.” 

(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,” 

, 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.,

(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,” 

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.” 

. Finally, in Repola
v. Morbark Industries, Inc., 

(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, 

                               15
        Outside of our own jurisprudence, in S.M. v. J.K., 

(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, 

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.” 

Hysell v. Iowa Public Service Company, 

(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.” 

       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, 

, 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, 

, 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,” 

, 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 

. Finally, while proceeding
pro se, Mathias may well have believed he could not raise




                               17
additional claims through a cross-appeal mechanism, see

, 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, 

, 802
(2015). The Court expressly declined to decide whether
§ 2253(c) “embraces a cross-appeal,” 

Circuit has
similarly left the matter for another day, see Mickens-Thomas
v. Vaughn, 

, 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, 

, 484 (2000) (quoting Barefoot v.




                               18
Estelle, 

, 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 

.

        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

. 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, 

,
398 (7th Cir. 2002), we do not interpret § 2253(c)’s
“gatekeeping function” so narrowly, 

.




                               19
would find it debatable whether the district court was correct
in its procedural ruling.” 

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, 

, 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., 

,
607-08 (3d Cir. 2011) (citing Bagot v. Ashcroft, 

,
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 

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, 

. 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, 

(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, 

, 114 (3d Cir.
2007); Hakeem v. Beyer, 

, 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.” 

(2011) (quoting 28 U.S.C. § 2254(d)(1)); see
Cullen v. Pinholster, 

, 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,

, 846 (3d Cir. 2013) (quoting Williams v. Taylor,

, 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.” 

. As the Supreme Court has cautioned, an
“unreasonable application of federal law is different from an
incorrect application of federal law,” 

(quoting 

), 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. 

.

       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, 

, at *8; see 

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.”

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, 

,
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, 

, 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, 

, 121-23 (2009); Collins
v. Sec’y of Pa. Dep’t of Corr., 

, 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. 

. 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,

, 18 n.3 (2013); 

, 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




                               

, 196 (3d Cir. 2008) (alteration omitted) (citation
omitted), and makes it “easier to dispose of [the]
ineffectiveness claim,” 

; Vickers v.
Superintendent Graterford SCI, 

, 850 n.10 (3d
Cir. 2017). Applying “the doubly deferential judicial review
that applies to a Strickland claim evaluated under [AEDPA],”

, we must assess whether, even
assuming counsel’s performance was deficient, Mathias
suffered prejudice, see 

, 693-94—
an assessment that requires us to ask whether the petitioner has
shown “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” with “a reasonable probability”
meaning “a probability sufficient to undermine confidence in
the outcome,” 

Because the Strickland standard is
an especially “general” one, “a state court has even more
latitude to reasonably determine” whether a petitioner has
satisfied it. 

(“The more general the
rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.”) (quoting Yarborough v.
Alvarado, 

, 664 (2004)).

        Here, Mathias argues he was prejudiced by appellate
counsel’s deficient performance because, had counsel argued
that the inconsistent jury charge allowed him to be convicted
of first-degree murder without a finding of specific intent, he
would have received a new trial. Mathias bases this argument
on Francis v. Franklin, 

(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




                              25
language sufficiently to eliminate this possibility,” 

n.8. The Superior Court’s failure to heed that admonition,
according to Mathias (and the District Court), 4 was an
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, 

(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. 

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


     4
          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,
had the specific intent to kill Joseph Drew El. App. 615-16,
622-23.




                               26
Constitution,” 

(citing Estelle v. Mcguire, 

, 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,” 

-38. The Court expressly characterized the
instructions as “ambiguous because they were internally
inconsistent,” 

a descriptor that could easily apply to
both Francis and the instant case.

        Middleton’s divergence from Francis is striking and,
here, outcome determinative because it renders the relevant
Supreme Court precedent on ambiguous jury instructions less
than “clearly established.” Middleton and Francis are both
cited and applied as good law for the propositions we discuss
today, and it appears no court has had occasion to resolve the
tension between them. See, e.g., Waddington v. Sarausad, 

, 191-92, (2009) (citing Middleton); Bey v.
Superintendent Greene SCI, 

, 240 n.47 (3d Cir.
2017) (citing Francis); Wade v. Timmerman-Cooper, 

, 1078 (6th Cir. 2015) (citing Middleton); Johnson v.
McKune, 

, 1194 (10th Cir. 2002) (discussing
Francis); United States v. Hernandez, 

, 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. 

.

       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-




                               27
degree murder instruction—where it properly articulated the
specific intent requirement—as well as the conspiracy
instruction, which was consistently correct and served as the
basis for the jury’s conviction on that charge. Although the
Superior Court acknowledged trial counsel’s multiple
objections to the first-degree murder instructions, and that the
instructions were “less than precise,” App. 664, it concluded
Mathias could not establish prejudice because the due process
claim appellate counsel might have raised was unlikely to
succeed given the Superior Court’s assessment of the jury
instructions in their entirety.

       Applying “the doubly deferential judicial review that
applies to a Strickland claim evaluated under [AEDPA],” we
conclude the Superior Court’s application of Strickland was
not an unreasonable one. 

. By
reviewing the jury charge as a whole and accounting for the
unique facts of Mathias’s case, the Superior Court, as a
threshold matter, properly applied the Supreme Court’s
“reasonable likelihood” test for determining an incorrect
instruction’s constitutional effect, see 

,
and, in light of the tension between Francis and Middleton and
the implications of that tension for the jury instructions in
Mathias’s case, 5 we cannot say the Superior Court


     5
       Although the Superior Court did not discuss Francis or
Middleton, we consider, in reviewing its reasoned opinion, the
arguments that supported or “could have supported,” 

, the Superior Court’s evaluation of whether
there was a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different,” 

; see 

(applying Richter).




                               28
unreasonably applied the prejudice prong of Strickland, see

; 

.

        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
on notice that a federal claim is being asserted.” Robinson v.
Beard, 

, 328 (3d Cir. 2014); see Baldwin v. Reese,

, 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




                               29
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, 

, 198 (3d
Cir. 2010); Commonwealth v. Eller, 

, 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, 

,
355 (5th Cir. 2004); Sandgathe v. Maass, 

, 376-
77 (9th Cir. 2002); Walton v. Caspari, 

, 1356
(8th Cir. 1990); Sandstrom v. Butterworth, 

,
1206 (11th Cir. 1984). We have not adopted that rule to date,
see Sharrieff v. Cathel, 

, 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, 

, 351 (1989))), and we do not have




                              30
v. Connor, 

, 277-78 (1971); McCandless v.
Vaughn, 

, 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.     

.
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
determining the jury’s verdict.” Brecht v. Abrahamson, 

, 623 (1993). Just as we held in Bronshtein v. Horn,

(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, 

so too here the error was harmless because the jury was

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
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, 

, 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