PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                     No. 16-1209
                  ________________


                BERNARD LAMBERT,
                            Appellant

                            v.

                WARDEN GREENE SCI


                  ________________

      Appeal from the United States District Court
         for the Eastern District of Pennsylvania
         (D.C. Civil Action No. 2-10-cv-01339)
      District Judge: Honorable C. Darnell Jones, II
                   ________________

                Argued: January 18, 2017


Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

             (Opinion filed: June 28, 2017)
Cheryl J. Sturm  (ARGUED)
387 Ring Road
Chadds Ford, PA 19317

      Counsel for Appellant

Catherine B. Kiefer (ARGUED)
Assistant District Attorney
Susan E. Affronti
Chief, Federal Litigation Unit
Ronald Eisenberg
Deputy District Attorney, Law Division
George D. Mosee, Jr.
First Assistant District Attorney
R. Seth Williams
District Attorney
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

      Counsel for Appellee
                   ________________

                OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       The Commonwealth of Pennsylvania charged Bernard
Lambert as a co-conspirator with and accomplice to Aquil
Tillman’s acts of murder, aggravated assault, and burglary.
Their trial was joint. In preparation for trial, Tillman made
statements to a testifying expert that implicated Lambert in
Tillman’s criminal plan. Recognizing that Tillman (who did




                              2
not testify) would not be subject to cross-examination when
the expert recounted his statements, the trial judge required
counsel to redact facially incriminating references to Lambert
from that testimony. However, the expert testified about parts
of Tillman’s statements that may have become inferentially
incriminating in the context of trial.

       Lambert asserts that the prosecution used these
statements for an impermissible hearsay purpose in its case
against him. Our review of the record persuades us that there
is some merit to his argument that his Confrontation Clause
rights were violated. Because counsel may have been
ineffective for failing to cure this potential constitutional
violation, we vacate and remand for an evidentiary hearing to
determine whether the Commonwealth used Tillman’s
testimonial statements for their hearsay purpose and, if so,
whether trial counsel was ineffective in failing to request a
limiting jury instruction.

I. Background

   A. The trial
    In January of 1997 Tillman went to the house in
Philadelphia of his former girlfriend, Khadijah Freeman. He
entered without permission, broke the lock on her bedroom
door, and found her with another man, Shaheed Smith.
Tillman and Smith fought each other, and Tillman left.

       The next night, Tillman returned to Freeman’s house
and broke the front door to enter. Freeman’s mother, Ann
Marie Thomas, demanded that Tillman pay for the broken
door and took $300 from his pocket. Tillman and Smith
fought a second time, and Tillman left saying he would come
back for Smith. Lambert drove Tillman back to Freeman’s




                              3
house 15 minutes later.       Lambert waited outside when
Tillman reentered.

       Inside, Thomas denied having any money of
Tillman’s, and Tillman shot her in the head, killing her
instantly. Tillman then dragged Freeman out to the front
porch and shot her by the car, causing serious injuries.
Tillman then got in the car, and Lambert drove away from the
house.

    The Commonwealth prosecuted Lambert and Tillman in a
joint jury trial. Tillman was charged with first-degree murder,
aggravated assault, burglary, and criminal conspiracy. But for
the murder charge being second degree, the same offenses
applied to Lambert under the Commonwealth’s theory that he
was a co-conspirator and accomplice.

       The Commonwealth presented no direct evidence of
any criminal plan between Lambert and Tillman prior to
Tillman’s third return to the house. It relied only on their
prior friendship (Tillman was a PCP user with a history of
mental health problems, and Lambert would give Tillman
rides to pick up his psychiatric medications), Lambert’s
presence, and that Lambert drove Tillman away after
witnessing him shoot Freeman.

       At trial, Tillman admitted to the crimes, but argued
that he lacked specific intent because of his mental illness.
Tillman did not take the stand; instead, an expert psychiatrist,
Dr. Julie Kessel, testified about the statements Tillman made
to her describing what happened to him and how he
responded. While the court required the parties to redact a
portion of the statements in which Tillman asserted that
Lambert gave him a gun, it did not otherwise limit Dr.
Kessel’s testimony or provide instructions to the jury that the
statements could not be used against Lambert.




                               4
       When the prosecution cross-examined Dr. Kessel, she
provided the following testimony about how Tillman
explained the events that occurred between when he left the
house and when he returned with a gun (to repeat, a 15-
minute time-frame):

       Prosecutor: All right. And he [Tillman] used the word
       “angry.” Those other words that are in your notes,
       correct?
       Dr. Kessel: Yes, I believe so.
       Prosecutor: It says “very angry,” does it not?
       Dr. Kessel: I trust your reading of my record. . . .
       Prosecutor: All right. And he also indicated underneath
       that he said, damn, you let him beat you up, you got to
       get him back, you can’t let him do that, right?
       Dr. Kessel: I indicated that he is hearing that.
       Prosecutor: Okay. And that’s what he told you,
       correct?
       Dr. Kessel: Yes.
       Prosecutor: All right. And he went and he got a gun,
       right?
       Dr. Kessel: Yes.

J.A. at 617-18.

       On redirect, Tillman’s counsel asked a clarifying
question:

       Counsel: And she asked you whether Mr. Tillman told
       you that he had to get his money back and he said he
       had to get his money back and you made mention, I
       think, of some kind of reference to that’s what he was
       hearing, voices or something of that nature. Would
       you elaborate on that? Do you know what I’m talking
       about?




                              5
       Dr. Kessel: He was hearing that outside his head. That
       was not something he was hearing inside of his head
       from my recollection and the way I’ve recorded this.

      In her closing arguments, the prosecutor referenced Dr.
Kessel’s testimony as follows:

       And what Dr. O’Brien [an expert witness for the
       Commonwealth] says is, look, [Tillman] may have
       problems in his life but I can’t state that to a
       reasonable degree of medical certainty, and that’s
       where I disagreed with Dr. Kessel… [about] how can
       you have a specific motive to go back and get [your]
       money and not a specific intent?

      She went on to argue for an inference of a shared
criminal plan prior to Tillman’s third break-in:

       Ladies and gentlemen, look at [Tillman’s] actions and
       I’m telling you right now he could not have done them
       alone, he needed help, and that’s where [Lambert]
       comes in… We know there is a fifteen-minute window
       of opportunity from when [Tillman] leaves Freeman]’s
       house to when he enters [her] house, and that period of
       time he’s got to get the gun and he’s got to come back.
       Well, you know from the diagrams where [she] lives
       and where [he] lives, he couldn’t walk there in fifteen
       minutes… I submit to you what happened is [Lambert]
       was there the first time and that [Tillman] was able to
       use [him], drive away, and drive back because we
       know there is not enough time for [him] to make a
       phone call even. You only have fifteen minutes and




                              6
         that fifteen minute period he’s got to go, get the gun,
         and come back and, again, ladies and gentleman, the
         Judge told you, and you can use reasonable inferences.
         In other words, use your common sense. They are in
         the car together. You don’t think that they are talking
         about what just happened at all? It’s just quiet? It’s
         nothing?”

convicted Lambert of conspiracy, burglary, and
second-degree felony murder. His counsel filed a motion for
relief on the ground that evidence of Lambert’s presence at
the scene was insufficient to establish that he had the requisite
foreknowledge of Tillman’s criminal intent.

    The trial court denied the motion and sentenced Lambert
to life imprisonment. In upholding the jury’s verdict, the trial
court relied on the redacted portion of Tillman’s statements—
though, of course, it was not in evidence before the jury—in
which Tillman alleged that he went to Lambert’s home to get
a gun before Lambert drove him back to Freeman’s house.

      B. Direct Appeal
    On appeal, a panel of the Superior Court affirmed the trial
court’s opinion.1 The panel also cited to the portion of
Tillman’s statement not in evidence before the jury (alleging
Lambert helped Tillman get the gun) as a basis for affirming
the trial court.

   The Superior Court reheard the case en banc. It
recognized the evidentiary error in a footnote, but nonetheless

         1
         The Superior Courts function as the initial courts of
appeal in Pennsylvania.




                                7
found there was sufficient evidence on the record before the
jury to support Lambert’s convictions. The Pennsylvania
Supreme Court denied allowance of appeal.

   C. Post-Conviction Relief- Commonwealth Courts

   Lambert, acting pro se, sought relief under Pennsylvania’s
Post Conviction Relief Act. 42 Pa. Const. Stat. §§ 4541 et
seq. Appointed counsel filed a no-merit letter, and the PCRA
court granted counsel’s request to withdraw and dismissed
Lambert’s petition. Lambert appealed pro se to the Superior
Court. It concluded that appointed counsel’s no-merit letter
was defective and remanded with an order that the PCRA
court appoint new counsel.

    On remand, new counsel also filed a no-merit letter. The
PCRA court granted this second attorney’s request to
withdraw and issued notice of its intent to dismiss Lambert’s
petition without a hearing. Lambert filed an amended pro se
petition alleging that new PCRA counsel was ineffective and
asserting why the court should grant him relief. The PCRA
court denied Lambert’s petition, and the Superior Court
affirmed. The Pennsylvania Supreme Court again denied
allowance of appeal.

   D. Post-Conviction Relief- Federal Court

    Lambert then filed a pro se federal habeas petition in the
District Court. He raised fourteen grounds for relief,
including that (1) the trial court violated his Confrontation
Clause rights in failing to instruct the jury not to consider
statements of his co-defendant related by Dr. Kessel as
evidence against him, (2) trial counsel was ineffective for
failing to object to the alleged Confrontation Clause error,
and (3) there was insufficient evidence to sustain the
convictions.




                              8
    The Magistrate Judge concluded that the trial court
violated Lambert’s Confrontation Clause rights; she found
that Tillman’s statements to his psychiatrist about the voices
outside his head were incriminating on their face because it
would have been immediately apparent to the jury that
Lambert was the person in the car who, after learning of
Tillman’s altercation with Smith, encouraged him to seek
revenge.2 Though the Magistrate Judge also recommended
denying relief on the sufficiency-of-the-evidence claim, she
recognized that “at some point, weakly supported convictions,
which require barely tenable inferences for their affirmance,
must be reversed… [, and t]his might very well be such a
case.”). J.A. 23. The Judge therefore recommended granting
a certificate of appealability on this claim. The District Court
adopted the Report and Recommendation and ordered the
Commonwealth to retry or release Lambert.

    The Commonwealth moved for reconsideration, and this
time the District Court vacated its order and referred the case
back to the Magistrate Judge to determine (1) whether
Lambert’s Confrontation Clause claim and his ineffective
assistance claim based on that violation were procedurally
defaulted, and (2) whether the default was excused.

   In her second Report and Recommendation, the
Magistrate Judge concluded that Lambert had procedurally
defaulted both claims and that there was no cause to excuse
default. She also rejected the Confrontation Clause claim on

       2
         Because Lambert challenges more than one portion
of the interview between Tillman and the examining
psychiatrist, we refer to the testimony as “statements.” We
note, however, that the Magistrate Judge referred to them
collectively as a single statement.




                               9
the merits, reasoning that Tillman’s statements were neither
testimonial nor hearsay, and that any incriminating elements
would not have been readily apparent when the statements
were made.

    The District Court denied relief, but granted a certificate
of appealability as to the sufficiency-of-the-evidence claim.
We expanded the certificate of appealability to cover whether
Lambert is procedurally barred from pursuing his ineffective-
assistance claim based on an alleged Confrontation Clause
violation.

    We agree with the District Court’s conclusion that, while
a close case, the Superior Court did not unreasonably apply
federal law in finding the evidence was sufficient to support a
conviction. We therefore deny relief on that claim. However,
we conclude that PCRA counsel provided ineffective
assistance in failing to raise Lambert’s ineffective-assistance-
of-trial-counsel claim based on the alleged Confrontation
Clause violation. We further conclude that this claim has
some merit. Therefore, Lambert has shown cause to excuse
his default. We remand to the District Court for an
evidentiary hearing to develop the record and to determine the
merits of the ineffectiveness claim against trial counsel.

II. Standard of Review

       We have appellate jurisdiction under 28 U.S.C.
§§ 1291 and 2253 and conduct a fresh review of the District
Court's legal conclusions. Werts v. Vaughn, 

,
191 (3d Cir. 2000).

       We review a state court decision under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Under AEDPA’s deferential standard of review, if
a claim is “adjudicated on the merits in State court




                              10
proceedings,” we can grant relief only if the state court
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or “was based on
an unreasonable determination of the facts in light of the
evidence presented” in state court. 28 U.S.C. § 2254(d).

        We can grant relief under the “contrary to” standard
only if “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 

, 413 (2000). A decision
from a state court “is an unreasonable application of [the
Supreme Court's] clearly established precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case.”
White v. Woodall, 

, 1706 (2014). (Nothing is
before us claiming an unreasonable determination of facts.)

III. Analysis
       A. Sufficiency-of-the-Evidence Claim

    Lambert first argues that the Commonwealth had
insufficient evidence to sustain his convictions. For such a
claim, we ask if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 

, 319
(1979) (emphasis in text).

   Jackson claims face a high bar in federal habeas
proceedings because they are subject to two layers of
deference. “First, on direct appeal. . . [a] reviewing court
may set aside the jury’s verdict on the ground of insufficient




                               11
evidence only if no rational trier of fact could have agreed
with the jury.” Second, “on habeas review, a federal court
may not overturn a state court decision rejecting a sufficiency
of the evidence challenge . . . [unless] the state court
decision was objectively unreasonable.”           Coleman v.
Johnson, 

, 2062 (2012) (quotations omitted)
(citations omitted).

          1. Elements of conspiracy under state law

        A conviction for criminal conspiracy requires the trier
of fact to find: “(1) the defendant intended to commit or aid in
the commission of the criminal act; (2) the defendant entered
into an agreement with another to engage in the crime; and
(3) the defendant or one or more of the other co-conspirators
committed an overt act in furtherance of the agreed upon
crime.” Commonwealth v. Johnson, 

, 920 (Pa.
2009) (quotation omitted). The unlawful agreement “may be
established inferentially by circumstantial evidence, i.e.[,] the
relations, conduct or circumstances of the parties or overt acts
on the part of co-conspirators.” Commonwealth v. Spotz, 

, 592 (Pa. 1998) (citation omitted).
          2. The Superior Court’s decision

       The Superior Court looked to whether circumstantial
evidence of association, presence, knowledge, and
participation could “furnish a web of evidence linking
[Lambert] to the alleged conspiracy beyond a reasonable
doubt when viewed in conjunction with each other and in the
context in which they occurred.” 

(quotations and citations omitted). The Court found Tillman
and Lambert were associates based on evidence of their
friendship. 

Witness testimony identified
Lambert as present at the curbside when Tillman left the
house where Thomas and Freeman lived. 

                               12
knowledge and participation, the Court relied on the
following facts: Lambert drove Tillman to the house,
remained double-parked in the car after Tillman got out on
the passenger’s side (leaving the car door open), and was
close enough to see the damage to the front door of the house
as Tillman “forced his way into the home and [] fired a gun.”

also alleged that Lambert drove
Tillman from the crime scene.

    Because we must defer to a jury’s findings and to a state
court’s conclusions when circumstantial evidence, viewed in
the light most favorable to the prosecution, provides some
reasonable basis for jurors to infer required intent, Coleman,
132 S. Ct at 2064, we conclude that the Superior Court’s
finding was not unreasonable. A rational juror could have
inferred, based on the testimony from lay and expert
witnesses, that Lambert knew Tillman intended to get his
money back and drove him to the scene of the crime with the
intent to help him do so. A juror could have further inferred
that, by waiting double-parked with the door open, Lambert
intended to facilitate burglary by providing a getaway car.
This web of inferences would be sufficient for a juror to find
Lambert and Tillman had a “shared criminal plan.”3 Thus we
cannot say that no rational trier of fact could have agreed with
the verdict. We therefore cannot conclude that it was
objectively unreasonable for the Superior Court to decide that
Lambert was guilty of the crimes convicted.


       3
         Lambert argues that the record cannot establish his
foreknowledge of the burglary under the standard in
Rosemond v. United States, 134 S. Ct 1240 (2014), but that
decision post-dates the Superior Court’s decision and
therefore does not qualify as clearly established Supreme
Court precedent at the time of the Superior Court’s ruling.




                              13
       B. Ineffective Assistance and the Confrontation
          Clause.

        Lambert argues that the psychiatrist’s testimony
relating Tillman’s statements about voices he was hearing
from “outside his head” implicated Lambert’s Sixth
Amendment right to confront the person who actually mate
those statements (Tillman).         Based on this alleged
Confrontation Clause violation, he contends trial counsel was
ineffective in failing to request a limiting jury instruction.
Lambert concedes that he has procedurally defaulted this
claim. He can overcome the default if he can show that
“some objective factor external to the defense impeded [his]
efforts to comply with the state’s procedural rule.” 

.

        Lambert argues that ineffective assistance of PCRA
counsel was the external factor that precluded him from
raising the limiting-instruction claim in the first instance in
his PCRA petition. Where (as here) state law requires a
petitioner to wait until the first collateral proceeding to raise
trial counsel ineffectiveness, PCRA counsel’s ineffectiveness
may provide cause to excuse the defaulted ineffective-
assistance-of-trial-counsel claim. See Martinez v. Ryan, 

, 1318 (2012); see also Buck v. Davis, 

, 779-80 (2017).

       For PCRA counsel’s performance to qualify as
constitutionally deficient, it must fall “below an objective
standard of reasonableness,” and Lambert must be prejudiced
thereby. Strickland v. Washington, 

, 688 (1984).
Even if he can meet this standard, he must also “demonstrate
that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has ‘some merit’.” 

(citation omitted).




                               14
        Because the merit of Lambert’s ineffective-assistance-
of-trial-counsel claim informs our consideration of whether
PCRA counsel was ineffective and whether Lambert was
prejudiced by PCRA counsel’s conduct, we address his
ineffective-assistance-of-trial-counsel claim first.       As a
threshold matter, Lambert must show that Tillman’s
statements related by Dr. Kessel were testimony used for a
hearsay purpose against him. If Tillman’s statements qualify
as testimonial hearsay, they are subject to the Confrontation
Clause, which requires the court to instruct the jury that it
cannot rely on these statements to support inferences of
Lambert’s guilt (because Tillman was not subject to cross-
examination). See Richardson v. Marsh, 

, 207
(1987). Next, Lambert must demonstrate that he presents a
substantial claim that trial counsel’s failure to request such a
limiting instruction was objectively unreasonable and
prejudiced him.

          1. Right to Confrontation

        The Sixth Amendment guarantees a criminal defendant
the right “to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This right applies only to testimonial
statements offered for their truth. Crawford v. Washington,

, 50-51; 59-60 n.9 (2004) (citing Tennessee v.
Street, 

, 414 (1985)). If a witness is unavailable
(and Tillman was so because he opted not to testify), hearsay
testimony of that person is not admissible unless the
defendant had a prior opportunity for cross-examination. 

However, the Confrontation Clause does not apply to
non-testimonial statements or testimony that is not used for a
hearsay purpose. Davis v. Washington, 

, 823-24
(2006).




                              15
       We address first the meaning of “testimonial.” Ex
parte examinations and interrogations used as a functional
equivalent for in-court testimony are the “core class of
‘testimonial’ statements” that directly implicate the right of
confrontation. Crawford, 

at 68. When a
statement does not fall within this “core class,” it is still
testimonial if it was taken with the primary purpose of
creating an out-of-court substitute for trial testimony.
Michigan v. Bryant, 

, 358 (2011). We analyze
the circumstances in which the statement was taken to assess
what reasonable participants would perceive the primary
purpose to be. Ohio v. Clark, 

, 2183 (2016).
As Tillman did not make his statements during an ex parte
investigation or custodial interrogation, we apply the primary
purpose test.

       The Commonwealth argues that Tillman’s statements
cannot be testimonial because they were not made with the
primary purpose of creating evidence for the prosecution.
However, the text of the Confrontation Clause does not
constrain the time at which one becomes a “‘witnes[s].’
Indeed, . . . a declarant may become a ‘witnes[s]’ before the
accused’s prosecution.” Williams v. Illinois, 132. S. Ct. 2221,
2262 (2012) (Thomas, J. concurring) (alteration in original).

        We also cannot accept the Commonwealth’s position
that the Confrontation Clause applies only to statements made
with the intent to accuse. “A statement that is not facially
inculpatory may turn out to be highly probative of a
defendant’s guilt when considered with other evidence.” 

individual making the statement may do so without
the intent to accuse the defendant, she may become a witness
against the accused in the context of trial. See Melendez-Diaz
v. Massachusetts, 

, 314 (2009) (emphasizing that
Confrontation Clause jurisprudence recognizes the right to
confront a witness even where the “adverse witness’s




                              16
testimony, taken alone, will not suffice to convict.”). Thus
Lambert need not prove that the primary purpose of recording
Tillman’s statements was to accuse him or Tillman of the
alleged criminal acts. Instead, in the context of the joint trial,
Lambert needs only to show that Tillman’s statements to Dr.
Kessel were made with the primary purpose of substituting
for his in-court testimony about the crime. We believe that
occurred here; hence Tillman’s statements are testimonial.

                    a.       Hearsay analysis

       Because these statements were testimonial, we next
determine if the prosecution used them for the truth asserted
therein to establish the elements required to convict. In
making this determination, we are not to accept the
prosecution’s “not-for-truth” rationale at face value, but
instead must determine if there is a “‘legitimate, non hearsay
purpose,’” 

(Thomas, J.,
concurring) (citing 

) (emphasis in text),
by “thoroughly examin[ing] the use of the out-of-court
[statements] and the efficacy of a limiting instruction,” 

expert used Tillman’s statements to form an
opinion about Tillman’s intent to commit a crime (known to
lawyers and judges by the Latin term “mens rea”), the
prosecutor may have relied on it to establish Lambert’s guilt.
In closing, the prosecutor urged the jury to draw the inference
that Lambert and Tillman plotted together in the car (to
support the conclusion that Lambert had foreknowledge of
Tillman’s criminal plan and intended to aid in its completion).
If the jury believed Tillman’s statements to Dr. Kessel—
asserting that Tillman responded to a voice (coming from
outside his head) and encouraging him to “get back” at Smith
and Thomas, it could infer from this belief that Lambert—the
only other person in the car to supply the voice—intended to
aid Tillman in carrying out the crime. If the prosecution




                               17
relied on Tillman’s statements to support this inference, they
would qualify as hearsay.

        That Lambert was tried before a jury instead of at a
bench trial makes us particularly concerned that the
statements were used for a hearsay purpose. When an expert
testifies before a jury, federal law generally prohibits her
from disclosing facts about which she lacks personal
knowledge.       While a trial judge “presum[ably] will
understand the limited reason for the disclosure of the
underlying inadmissible information and will not rely on that
information for any improper purpose,” 

, this presumption does not apply to a jury. Indeed,
the Supreme Court has suggested that even “non-hearsay”
testimonial evidence poses a danger of confusing the jury and
requires limiting instructions. 

(“The dissent's
argument would have force if petitioner had elected to have a
jury trial. In that event, there would have been a danger of
the jury's taking [the expert’s] testimony as proof [of the
matter asserted in the statement on which she relied in
forming her opinion]. Absent an evaluation of the risk of
juror confusion and careful jury instructions, the testimony
could not have gone to the jury.”).

        To the extent the prosecution relied on Tillman’s
statements to Dr. Kessel for their truth, a limiting instruction
to the jury was needed. Because the Confrontation Clause
prohibits the Commonwealth from using testimonial
statements by non-testifying witnesses to establish a
defendant’s guilt, it may not use redacted testimony from a
non-testifying co-defendant to support inferences against the
defendant in their joint trial. See 

; Bruton v. U.S., 391 123, 137 (1968). Even when a non-
testifying witness’s statement is redacted so that it is no
longer facially incriminating, a court presiding over such a
joint trial must nonetheless instruct the jury that it may not




                              18
consider this evidence in determining whether the state met
its burden of proving the defendant’s guilt. Gray v.
Maryland, 

, 189 (1998); 

. Without such a limiting instruction, inferentially
incriminating statements make the non-testifying co-
defendant a witness against the accused in violation of the
Confrontation Clause. Cf. 

n.4 (“The very premise of [Gray] was that, without the
limiting instruction[,] even admission of a redacted
confession containing evidence [that only supports
incriminating inferences in the context of later evidence
introduced at trial] would have violated the defendant's Sixth
Amendment rights.”).

      We conclude that reasonable jurists could find that the
prosecutor’s closing argument relied on the truth of Tillman’s
statements to Dr. Kessel to draw inferences of Lambert’s
foreknowledge and intent to aid in Tillman’s criminal plan.
Our remand includes the request that the District Court
consider this issue.

          2. Ineffective Assistance of Trial Counsel

       Lambert next alleges that counsel was ineffective in
failing to request jury instructions that would protect his
Confrontation Clause rights. We recognize that the “right of
confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this
country's constitutional goal.” Pointer v. Texas, 

, 405 (1965). Thus a good argument exists that Lambert
presents a substantial claim that it would be objectively
unreasonable for trial counsel to allow the Commonwealth to
violate this right by failing to request a limiting instruction.

      As for the prejudice prong of Strickland, without Dr.
Kessel’s testimony about Tillman’s statements to her, there




                              19
would be no direct evidence to establish more than Lambert’s
mere presence at, and failure to leave, the scene of the crime:
there was no direct evidence indicating any agreement
between Tillman and Lambert.             The prosecutor likely
recognized this gap, and thus inferred in her closing argument
that Lambert encouraged Tillman to seek vengeance against
the residents of the Thomas-Freeman household when the two
were in the car together. Lambert therefore has presented a
substantial claim that a jury instruction was required here.

          3. Necessity of an evidentiary hearing

    Determining whether trial counsel was ineffective often
requires a court to develop evidence beyond the trial record.

. Because the Pennsylvania
Superior Court determined Lambert’s claim of ineffective
assistance was procedurally defaulted, it never conducted an
evidentiary hearing to develop this claim. Without such a
hearing, Lambert had no meaningful opportunity to challenge
Strickland’s presumption that trial counsel acted reasonably.

    And it wasn’t that Lambert didn’t request a hearing. His
“Response to Notice of Intention to Dismiss/Request For
Evidentiary Hearing and Appointment of New Counsel,”
clarifying his “Second Supplemental Amended PCRA
Petition,” demonstrates sufficient efforts to develop the
factual basis for his ineffective-assistance claim to survive
2254(e)(2)’s jurisdictional bar. Thomas v. Horn, 

, 125-26 (3d Cir. 2009). Yet the Superior Court
determined the claim was defaulted under an independent
state procedural law.4


   4
     While the Magistrate Judge concluded that the Superior
Court’s disposition of Lambert’s Confrontation Clause claim
qualified as a decision on the merits under 28 U.S.C.




                              20
    In this context, we may direct the District Court to
conduct that hearing. 

; Marshall v.
Hendricks, 

, 106, 117 (3d. Cir. 2002). Whether
we do so depends on whether Lambert has shown PCRA
counsel’s ineffective assistance caused procedural default of
his ineffective-assistance-of-trial-counsel claim, and prejudice
resulted.

          4. PCRA counsel’s conduct excuses default of
              Lambert’s ineffective-assistance claim

       If Lambert can establish that PCRA counsel was
ineffective in failing to raise the former’s ineffective-
assistance-of-trial-counsel claim based on the Confrontation
Clause violation, the District Court may consider the merits


§ 2254(d), we disagree. The Superior Court first determined
that Lambert waived this claim by failing to raise it
previously and then added: “To the extent that Lambert did
raise these claims before the PCRA court, we would conclude
that they each lack merit.” J.A. at 418 (emphasis added).
While “it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary,” Harrington v.
Richter, 

, 99 (2011), “[t]he presumption may be
overcome when there is reason to think some other
explanation for the state court’s decision is more likely, 

Here the Superior Court provided that reason,
asserting that Lambert’s claim was waived on a state
procedural ground. J.A. at 418. This reason is clear on the
face of the opinion without recourse to the record before the
state courts. Moreover, the full text of the opinion suggests
the statement about the merits of the claim is a dictum, not a
holding in the alternative. 

                               21
of this otherwise-defaulted claim. 

. In his appellate brief to the Superior Court, Lambert
argued: “The factual record is devoid of any recitation by the
trial court on the requisite instructions to the jury ‘not to
consider the redacted confession of Mr. Tillman as evidence
against [Lambert,]” and the prosecutor “both explicitly and
impliedly used Mr. Tillman’s confession to argue . . . that
[Lambert] was guilty of conspiring to burglarize and murder
Ann Marie Thomas.” State Habeas App’x, Ex. L, 71. PCRA
counsel recast this claim as a challenge to admission of
“several hearsay statements made by the co-defendant,” and
characterized it as meritless because “the co-defendant
[Tillman] was tried with the Petitioner [Lambert] at the same
trial[,] so the statements are not hearsay but a direct party
admission.” J.A. at 390. This justification misstates the law.

       “An attorney's ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v.
Alabama, 134 S. Ct 1081, 1088–89 (2014). It is well
established that the jury cannot consider statements offered
for the truth of the matter asserted by a non-testifying co-
defendant as evidence against the defendant. Gray, 

. Moreover, where the evidence is admitted at trial, the
jury must be instructed that it may only consider the evidence
in the case against the co-defendant. 

n.4. By characterizing the statements as party
admissions, PCRA counsel accepted that the Commonwealth
sought to use them for the truth of the matter asserted. Such
hearsay statements of a non-testifying co-defendant are not
admissible as “direct admissions” when they are used by the
prosecution as evidence against the defendant.             The
conclusion: even a cursory investigation into Sixth
Amendment jurisprudence would lead counsel to identify the
potential Confrontation Clause violation.




                             22
       Per our discussion in the preceding sections, admission
of these inferentially incriminating statements without a
limiting instruction was fundamental to Lambert’s case.
Moreover, at the post-conviction stage we cannot discern any
objectively reasonable strategy for PCRA counsel to reject
this potentially meritorious claim.

        As for prejudice, Lambert has demonstrated “a
reasonable probability that, but for counsel's unprofessional
error[], the result of the proceeding would have been
different.” 

. As noted, the only
direct link in the chain of inferences for the conspiracy
conviction was Dr. Kessel’s testimony relaying Tillman’s
statements, which PCRA counsel represented in his no-merit
letter as direct-party admissions. In response to that no-merit
letter, the PCRA court denied Lambert’s request for an
evidentiary hearing and dismissed his appeal. The Superior
Court affirmed the PCRA court’s decision. Neither court
reached the merits of the underlying ineffectiveness claim
against trial counsel. Had PCRA counsel investigated and
presented the claim that trial counsel was ineffective in failing
to request a limiting instruction, the PCRA court would have
considered it and the Superior Court would have reviewed
this determination in depth. Because the claim no doubt has
some (and arguably more than some) merit, we conclude that
PCRA counsel’s ineffective assistance excuses Lambert’s
procedural default.

                 *      *      *       *      *

       We vacate and remand to the District Court with
instructions to conduct an evidentiary hearing to consider the
ineffective assistance of Lambert’s trial counsel.




                               23