PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

               No. 16-1908
              _____________

           TONY L. BENNETT,
               Appellant

                     v.

 SUPERINTENDENT GRATERFORD SCI;
 ATTORNEY GENERAL PENNSYLVANIA
          ______________

 Appeal from the United States District Court
    for the Eastern District of Pennsylvania
           (D.C. No. 2-13-cv-01203)
District Judge: Honorable James Knoll Gardner
                _____________

            Argued: May 9, 2017
             ______________

Before: AMBRO, RESTREPO and NYGAARD,
             Circuit Judges.

           (Filed: March 26, 2018)
               ______________
Richard H. Frankel, Esq.
Ke Gang, Student Counsel [ARGUED]
Mischa Wheat, Student Counsel [ARGUED]
Appellate Litigation Clinic
Drexel University Kline School of Law
3320 Market Street
Philadelphia, PA 19104

      Counsel for Appellant

Christopher P. Lynett, Esq. [ARGUED]
Simran Dhillon, Esq.
Susan E. Affronti, Esq.
Philadelphia County Office of District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499

      Counsel for Appellees

                      ______________

                OPINION OF THE COURT
                    ______________

RESTREPO, Circuit Judge.

       In 1990, nineteen year old Tony Bennett was sitting in
the passenger seat of a getaway car when his conspirator
entered a jewelry store to commit a robbery, shooting the
clerk and killing her. Bennett was convicted of first degree
murder. After a capital sentencing hearing, the jury returned
a sentence of life imprisonment without the possibility of
parole. Two state courts later vacated Bennett’s first degree




                              2
murder conviction, finding that the trial court erroneously
instructed the jury that it could convict Bennett of first degree
murder based on the shooter’s intent to kill. Bennett never
got relief; instead, the Pennsylvania Supreme Court reversed.
Before us is Bennett’s habeas corpus petition, asserting that
the trial court’s erroneous jury instructions deprived him of
due process of law under the United States Constitution.
Applying de novo review, we agree and will grant the writ.

I.     Factual and Procedural Background

       A.     Trial and Sentencing

       The Pennsylvania Supreme Court summarized the
factual history of this case as follows:

              [Bennett] conspired with four
              individuals, Michael Mayo, Kecia
              Ray, Kevin Wyatt, and Paul
              Johnson, to rob a jewelry store in
              Philadelphia at gunpoint. The
              store was selected because a
              salesperson, Ms. Ju Yang Lee,
              had made what the conspirators
              believed to be an insultingly low
              offer for a gold chain that Mayo
              and Johnson earlier had sought to
              pawn. Appellee Bennett supplied
              the loaded gun, but did not enter
              the store, remaining in the
              getaway car with Wyatt. Mayo
              and Johnson were caught on
              videotape entering and robbing




                               3
              the store. During the robbery,
              Mayo shot Ms. Lee with
              [Bennett]’s gun, killing her.

Commonwealth v. Bennett (Bennett VI), 

, 1187
(Pa. 2012).

       Bennett proceeded to a jury trial on charges of murder,
criminal conspiracy, possession of an instrument of crime,
and robbery. The Commonwealth charged murder generally,
and the trial court instructed the jury on first, second, and
third degree murder, as well as voluntary manslaughter. The
Commonwealth also charged conspiracy generally. The trial
court instructed the jury that the objective of the conspiracy
was murder, robbery, possession of an instrument of crime,
and a firearms offense.

       Bennett was tried jointly with two other non-shooters,
Johnson and Wyatt. Johnson entered the jewelry store with
the shooter. Wyatt, like Bennett, remained in the getaway
car. 

non-shooter, Ray, testified for the
Commonwealth and later received a lenient sentence. 1 Mayo,
the shooter, was initially on trial with Johnson and Wyatt, but
during jury selection suffered “an acute psychotic episode”
requiring hospitalization. App. 284. Mayo was declared
incompetent after voir dire and his case severed.
       Bennett was charged capitally. 2 Under Pennsylvania
law, the Commonwealth could only obtain a death sentence if

      1
          Ray was sentenced to fourteen to twenty-eight
months’ incarceration and ten years’ probation.
      2
          So too were co-defendants Johnson and Wyatt.




                              4
the jury convicted Bennett of first degree murder. See 18
Pa. Cons. Stat. § 1102(a)(1). Therefore, from the start of trial,
a central issue was whether Bennett was guilty of this offense.
See Bennett 

n.12. First degree murder in
Pennsylvania requires that each defendant have the specific
intent to kill. 18 Pa. Cons. Stat. § 2502(a). An accomplice or
conspirator cannot be convicted of first degree murder based
on the specific intent to kill of the principal.             See
Commonwealth v. Huffman, 

, 962 (Pa. 1994)
(citing Commonwealth v. Bachert, 

, 935 (Pa.
1982)).

       At Bennett’s trial, the Commonwealth never argued
that Bennett had the specific intent to kill. Rather, its theory
was that he was guilty of first degree murder solely because
he was an accomplice and conspirator of the shooter. In the
Commonwealth’s opening statement, the prosecutor told the
jury that “lest you think I am crazy for saying [Bennett,
Johnson and Wyatt] are guilty of first degree murder, when I
told you that Michael Mayo fired the fatal shots . . . I will
urge upon you that the law of conspiracy makes all of these
defendants first degree murderers.” App. 312-13. In closing,
the prosecutor argued that “accomplices are equally guilty
with the principal. First degree murder, intent to kill. There
is no doubt, there can be no doubt that [the shooter] Michael
Mayo intended to kill [the victim]. . . . Co-conspirators and
accomplices are equally guilty with the principal.” App. 591-
92.

       This argument—that an accomplice or conspirator is
“equally guilty” of first degree murder—was incorrect as a
matter of state law. Nevertheless, the trial court echoed it in




                               5
its jury instructions. Bennett’s petition turns on these jury
instructions, and so we describe them in detail.

       First, the trial court charged the jury on criminal
conspiracy, in relevant part, as follows:

             Where two or more join in the
             commission of an unjustified
             assault which results fatally, all
             are guilty regardless of which one
             inflicts the mortal wounds. When
             two or more combine to commit a
             felony or to make an assault, and
             in carrying out the common
             purpose another is killed, the one
             who enters into the combination
             but does not personally commit
             the wrongful act is equally
             responsible for the homicide as
             the one who directly causes it.

             ...

             Such responsibility . . . extend[s]
             even to a homicide which is the
             consequence of the natural and
             probable execution of the
             conspiracy even though such
             homicide is not specifically
             contemplated by the parties.

App. 602-03 (emphases added).




                             6
       In response to a jury question the trial court later
repeated this instruction.

        The trial court also instructed the jury on accomplice
liability, in relevant part, as follows: “[O]ne may be legally
accountable for conduct of another not only if he is a co-
conspirator, but also if he is an accomplice who aids and
abets the commission of a crime.” App. 603. “The degree of
concert or collusion between parties to an illegal transaction
means the act of one is the act of all.” App. 604 (emphasis
added).

      The trial court further instructed the jury on murder,
beginning with this introduction:

              Each defendant comes before you
              charged    with   murder    and
              voluntary manslaughter.

              Now on this bill, you may find
              each defendant guilty of murder
              in the first degree, guilty of
              murder in the second degree, or
              guilty of murder in the third
              degree, or guilty of voluntary
              manslaughter, or not guilty.

App. 605.

        Five paragraphs later, the trial court instructed the jury
on first degree murder, which it defined as follows:




                                7
A criminal homicide constitutes
murder of the first degree when it
is committed by an intentional
killing. As used in this statute,
intentional killing means among
other things a willful, deliberate
and premeditated killing.

A killing is willful and deliberate
if the defendant consciously
decided to kill the victim and it is
premeditated if the defendant
possessed a fully-formed intent to
kill at the time when he acted and
though there need not have been
any appreciable amount of time
between the time when the
defendant first conceived the idea
of killing and the time when he
acted.

The design to kill can be
formulated in a fraction of a
second.

In determining whether or not the
defendants committed said kind of
intentional killing required for
first degree murder, you should
consider the testimony of expert
witnesses, as well as all other
evidence which may shed light on
what was going on in the




                 8
              defendant’s mind at the time of
              the alleged killing.

              If a defendant intentionally uses a
              deadly weapon on a vital part of
              the body, you may infer from this
              that the killing was intentional.

              Specific intent as well as malice
              may be inferred from the use of a
              deadly weapon on a vital part of
              the body.

App. 606-07. 3

       The jury convicted Bennett of first degree murder and
related charges. 4   A penalty hearing followed.         The

       3
          The trial court also instructed the jury on second
degree murder, third degree murder and voluntary
manslaughter. In response to a jury question, the trial court
read back the first, second and third degree murder
instructions.
       4
         In addition to first degree murder, the jury convicted
Bennett of conspiracy, possession of an instrument of crime
and two counts of robbery. The trial court granted a
judgment of acquittal on a third robbery count. Only the first
degree murder conviction is at issue in Bennett’s habeas
corpus petition. See Laird v. Horn, 

, 430 (3d
Cir. 2005); Everett v. Beard, 

, 516 (3d Cir.
2002), abrogated on other grounds by Porter v. McCollum,

(2009).




                              9
Commonwealth sought the death penalty, despite stipulating
that Bennett was nineteen years old at the time of the crime
and had no significant criminal history. After additional
deliberation, the jury returned a sentence of life
imprisonment. On June 1, 1993, the trial court formally
sentenced Bennett to life imprisonment without the possibility
of parole. Bennett 

. 5


      B.     Post-Conviction Proceedings




      5
           The trial court imposed a life sentence for first
degree murder. It also sentenced Bennett to ten to twenty
years’ imprisonment on each of the robbery counts, and two
and half to five years’ imprisonment on possession of an
instrument of crime. It imposed a suspended sentence on
conspiracy. As to whether these sentences were to run
concurrently or consecutively, this Court lacks the written
sentencing order because the trial court did not provide the
state court record. According to the notes of testimony, the
trial court stated orally, “on Bill 22 of July Term, 1990,
charging you with first degree murder, I impose a sentence of
life imprisonment, and on Bill 24 of July Term, 1900, I
impose a sentence of 10 to 20 years to run concurrently. Bill
21 is the robbery bill of July Term, 1992. I will impose a
sentence of 10 to 20 years, to run consecutive to Bill 24 but
also concurrent with the life term and on possession of
instruments of crime, I will impose a two and a half to five
year sentence also to run concurrently.” App. Sentencing
Tr. 20, June 1, 1993.




                             10
        Bennett did not file a direct appeal. In 1995, he filed a
pro se petition under the Pennsylvania Post-Conviction Relief
Act (PCRA), in which he asserted, inter alia, two claims
relevant to this appeal. First, Bennett asserted that the trial
court violated his state and federal due process rights by
instructing the jury that he could be convicted of first degree
murder without the specific intent to kill. Second, Bennett
asserted that trial counsel was ineffective for failing to object
to the trial court’s erroneous jury instructions. 6

       In 1999, the trial court dismissed Bennett’s PCRA
petition. Bennett filed an appeal. In 2000, the Superior Court
dismissed the PCRA appeal because post-conviction counsel
failed to file a brief. Bennett subsequently filed a second
PCRA petition seeking to reinstate his right to appeal his first
PCRA petition.

        Meanwhile, as Bennett’s PCRA was winding through
the courts, his conspirator, Wyatt, reached the Superior Court
on post-conviction proceedings. Wyatt was the other man
sitting with Bennett in the getaway car during the botched
robbery. See Bennett 

. The two were
tried and convicted together. In 2001, the Superior Court
granted Wyatt’s PCRA petition and vacated his first degree
murder conviction. The court found that that trial court’s jury
instructions “improperly permitted the jury to find [Wyatt]
guilty of first degree murder without evidence to support that
finding,” and that counsel was ineffective for failing to object
to the flawed charge. Commonwealth v. Wyatt, No. 2050
EDA 1999, *15, 

(Pa. Super. Jul. 16, 2001)

       6
         Post-conviction counsel also filed an amended
PCRA petition.




                               11
(table) (App. 228). The Commonwealth sought allowance of
appeal, but the Pennsylvania Supreme Court denied the
petition. Commonwealth v. Wyatt, No. 521 EAL 2001, 

(Pa. Oct. 15, 2002) (table). Wyatt later pled guilty
to third degree murder, a lesser offense. See Commonwealth
v. Wyatt, 

, 878 (Pa. Super. 2015); see also
18 Pa. Cons. Stat. §§ 1102(d), 2502(c).

       Shortly after Wyatt won PCRA relief, the trial court
reinstated Bennett’s right to appeal the denial of his PCRA
petition. Bennett appealed to the same Superior Court that
had recently granted Wyatt’s petition. In 2004, however, the
en banc Superior Court denied relief on procedural grounds.
It found that Bennett’s PCRA petition, through which the trial
court had reinstated his appellate rights, was untimely.
Commonwealth v. Bennett (Bennett I), 

, 954 (Pa.
Super. 2004) (en banc), vacated by Commonwealth v. Bennett
(Bennett II), 

(Pa. 2007). In an opinion by
now-Pennsylvania Supreme Court Justice Todd, the en banc
Superior Court expressed its opinion of the merits in the
strongest possible language:

             There is no question that Tony
             Bennett was entitled to a new
             trial: the accomplice liability
             charge given at his murder trial
             was      erroneous,    and       his
             codefendant at trial was granted a
             new trial on that basis. . . . [N]o
             appellate court has yet addressed
             Bennett’s meritorious claim,
             apparently due to the serial
             ineffectiveness     of    counsel.




                             12
             Bennett thus stands convicted of
             first-degree     murder,     and
             sentenced to life imprisonment,
             based on an erroneous accomplice
             liability charge, for a killing
             which occurred when his co-
             conspirators robbed a jewelry
             store while he waited in the
             getaway car.

Bennett 

.

        The Superior Court further opined that “there is no
doubt that there is merit to this claim,” 

that
“Bennett has been denied appellate review of a clearly
meritorious issue,” 

and that “we are in the
unenviable position of denying relief where there is no doubt
that justice requires such relief,” 

       In 2007, the Pennsylvania Supreme Court reversed the
Superior Court’s ruling that Bennett’s PCRA petition was
time-barred. Bennett 

. The Court
characterized the decision as “significant” because the
Superior Court had granted Wyatt relief “due to the trial
court’s erroneous accomplice liability instruction.” 

n.3.

       On remand, the trial court again reinstated Bennett’s
right to appeal the denial of his PCRA petition. Bennett
appealed. The Superior Court issued a procedural ruling in
his favor. It vacated the dismissal of Bennett’s PCRA
petition and remanded for consideration of his ineffective
assistance of counsel claim. Commonwealth v. Bennett




                              13
(Bennett III), No. 343 EDA 2008, at *19, 

(Pa.
Super. Oct. 17, 2008) (table) (App. 164). The Superior Court
did not separately address Bennett’s due process claim.

        On remand, Bennett won PCRA relief. The trial court
vacated his conviction for first degree murder and ordered a
new trial on that charge. It found that the jury instructions
violated Bennett’s “state and federal constitutional rights to
Due Process,” and that Bennett’s trial counsel was ineffective
for failing to object to them. App. 176.

        Bennett again won PCRA relief on the
Commonwealth’s appeal. Commonwealth v. Bennett (Bennett
IV), 

, 542 (Pa. Super. 2011). The Superior Court
held that the jury instructions on conspiracy and accomplice
liability “did not tell the jurors that they needed to find
Bennett possessed the specific intent to kill before they could
convict him of first-degree murder.” 

Rather, “the
charge could likely have led jurors to conclude that Bennett,
by being an accomplice and/or a conspirator in the robbery,
was therefore equally responsible with the shooter for first-
degree murder, even without proof that Bennett himself had
the specific intent to kill.” 

was ineffective
for failing to object. 

       Still, Bennett did not get relief. In 2011, the
Pennsylvania Supreme Court granted the Commonwealth’s
petition for allowance of appeal, despite having denied the
same request in Wyatt’s case nine years earlier. Compare
Commonwealth v. Bennett (Bennett V), 

(Pa.
2011) (per curiam), with Commonwealth v. Wyatt, No. 521
EAL 2001, 

(Pa. Oct. 15, 2002) (table). It
agreed to consider the question posed by the Commonwealth:




                              14
whether “overturning [Bennett’s] first-degree murder
conviction on the basis of a supposedly defective accomplice
liability instruction overlook[s] and contradict[s] th[e
Pennsylvania Supreme] Court’s precedent.” Bennett 

.

       In 2012, the Pennsylvania Supreme Court reversed the
Superior Court’s grant of relief. Bennett 

.
Then-Chief Justice Castille wrote an opinion for a three-
Justice majority. 7 The Pennsylvania Supreme Court found
that the only issue before it was the ineffective assistance of
counsel claim. See 

n.1, 1195. As to Bennett’s
“underlying” due process challenge to the jury instructions,
the Court stated in passing that the issue was “defaulted,” 

or “waived,” 

but did not explain why this
was so. The Pennsylvania Supreme Court addressed the jury
instructions within its analysis of the ineffective assistance of
counsel claim. It concluded that “in light of both the charge
when read as a whole and the factual circumstances of this
case,” the jury instructions did not violate state precedent. 

1990, when this crime was committed and
Bennett charged, Chief Justice Castille was the elected
District Attorney of Philadelphia, where the crime took place.
Chief Justice Castille left his position as District Attorney in
1991. Bennett’s capital jury trial took place in 1992. Cf.
Williams v. Pennsylvania, 

, 1905 (2016)
(holding that Chief Justice Castille was obligated to recuse
himself where he had “significant, personal involvement as a
prosecutor in a critical decision regarding the defendant’s
case”). It is not known how significant was his involvement
when he was the District Attorney.




                               15
at 1196. It followed that counsel was not deficient in failing
to object. See 

8

       The Pennsylvania Supreme Court did not address
Bennett’s federal due process challenge to the jury
instructions. Although Bennett cited several decisions of our
Court, the Pennsylvania Supreme Court found that they were
irrelevant to the state law question it was deciding. 

(“[W]e are not bound by the decisional law of the lower




      8
             When reviewing the charge as whole, the
Pennsylvania Supreme Court emphasized the murder
instruction. See Bennett 

. This portion of
its opinion inaccurately quoted the record. Specifically, the
state court spliced together two disparate portions of the
murder charge. First, in the introduction, the trial court
instructed the jury that “[e]ach defendant comes before you
charged with murder and voluntary manslaughter.” App. 605.
Second, five paragraphs later, the trial court instructed the
jury on first degree murder, directing it to determine whether
“the defendant possessed a fully-formed intent to kill at the
time when he acted . . . .” App. 606. The Pennsylvania
Supreme Court combined these quotes in one sentence. It
stated that the trial court “informed the jury that ‘each’
defendant could be found guilty of first-degree murder only if
‘the defendant possessed a fully-formed intent to kill at the
time when he acted.’” Bennett 

. This
misstatement of the record was a clear error; the jury never
heard that “each” defendant must have the specific intent to
kill.




                             16
federal courts, construing Pennsylvania law.”). 9 Rather, the
Pennsylvania Supreme Court relied on state precedent to
overturn the grant of PCRA relief. 

(citing
Commonwealth v. Thompson, 

, 223 (Pa. 1996)
and Commonwealth v. Simpson, 

, 1275-76 (Pa.
2000)). The Pennsylvania Supreme Court held that the
Superior Court erred by relying on another state decision,

, which the Pennsylvania Supreme
Court distinguished. Bennett 

; see also 

(“As we have made clear, the instant case is simply
not controlled by Huffman . . . .”).

       Justice Saylor, now Chief Justice of the Pennsylvania
Supreme Court, and Justice McCaffrey concurred. 

(Saylor, C.J., concurring). They opined that the trial
court’s jury instructions “could be taken as overriding the
specific-intent requirement for first-degree murder.” 

They were particularly concerned that the jury could
have convicted Bennett of first degree murder because he was
“an accomplice or conspirator in some other crime.” 

original). Specifically, the concurring Justices
emphasized that the jury instructions stated that: (1) “[w]hen
two or more join in the commission of an unjustified assault
which results fatally, all are guilty”; (2) a co-conspirator is
“equally responsible for the homicide” as the principal; and
(3) “[s]uch responsibility . . . extend[s] even to a homicide
which is the consequence of the natural and probable
execution of the conspiracy even though such homicide is not

       9
          While the state court referred to our decision in
Everett in a footnote, it merely held that the case was
factually distinguishable. Bennett 

n.10
(citing 

).




                              17
specifically contemplated by the parties.” 

-07
(emphases, ellipses and second brackets in original) (quoting
Bennett 

).

        However, the concurring Justices found that they were
“bound” by Pennsylvania law. Bennett 

(Saylor, C.J., concurring). Prior state court decisions, they
explained, had established “that a trial court’s reference to
‘the defendant’ in a jury charge delineating the requirement of
specific intent to kill to support a first-degree-murder
conviction ameliorates potential ambiguities which might
otherwise arise out of accomplice or coconspirator liability
instructions.” 

that, under state law,
Bennett’s claim lacked merit, but there remained a claim “to
be litigated in the federal courts under due process theory.”

n.3 (internal quotation marks omitted).

      C.     Habeas Corpus Proceedings in the District
             Court

        After his PCRA relief was reversed, Bennett filed a
timely pro se petition for a writ of habeas corpus. He raised
two claims in the District Court: (1) that he was deprived of
due process under the United States Constitution because the
trial court’s jury instructions erroneously relieved the
Commonwealth of its burden to prove the specific intent to
kill, and (2) that trial counsel was ineffective for failing to
object to the flawed jury instructions. Bennett asserted that
he was entitled to de novo review because the state court did
not adjudicate his federal due process claim on the merits. In
response, the Commonwealth argued that Bennett’s claims
had been decided on the merits, and that he could not
overcome the standard of review of the Antiterrorism and




                              18
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d)(1).

        The District Court referred the matter to a Magistrate
Judge who issued a report and recommendation. As to
Bennett’s underlying due process claim, the Magistrate Judge
agreed with Bennett that the conspiracy and accomplice
liability jury instructions “do seemingly relieve the
Commonwealth of the burden of proving that Bennett had the
specific intent to kill, rather than the intent to rob the store.”
App. 21. However, she recommended denying relief under
28 U.S.C. § 2254(d)(1). The Magistrate Judge nevertheless
observed that numerous state judges had questioned “the
propriety of the charge given in this case in well-reasoned
decisions,” and so recommended granting a certificate of
appealability “on Bennett’s due process claim.” App. 30.
The Magistrate Judge recommended denying Bennett’s
ineffective assistance of counsel claim without a certificate of
appealability. The District Court adopted the Report and
Recommendation and granted the certificate of appealability
in part and denied it in part.

       D.     Bennett’s Habeas Corpus Appeal to this
              Court

        Bennett filed this timely appeal. Consistent with the
certificate of appealability, Bennett seeks our review of one
claim—his federal due process challenge to the trial court’s
jury instructions. He does not appeal the denial of his
ineffective assistance of counsel claim.

      The Commonwealth’s response is surprisingly
incongruous. It has chosen not to respond to Bennett’s due




                               19
process claim—the only claim raised on appeal. Instead, it
takes the unusual position that Bennett must be raising an
ineffective assistance of counsel claim. The Commonwealth
asserts as much repeatedly in its brief. For example, it
contends that “Bennett spends 40 pages arguing about the
quality of the jury instructions []presumably to make a point
that trial counsel’s decision not to object was a failure of
performance.” Br. for Appellees at 54. This is incorrect.
Bennett addresses the quality of the jury instructions because
the claim certified on appeal is a due process challenge to
those instructions.

       The Commonwealth offers an equally unusual
explanation for its approach. It asserts that Bennett’s claim
must be “a Strickland-ineffectiveness claim [because] [t]he
Pennsylvania Supreme Court identified it as such in the first
page of its opinion.” 

Again, this is incorrect. The
issue on appeal is the claim authorized by the certificate of
appealability—a due process challenge to the trial court’s jury
instructions. See 28 U.S.C. § 2253(c)(3); see also Fed. R.
App. P. 22(b); Local App. R. 22.2. Therefore, this is the
claim we will address. 10

II.   Exhaustion

      Under AEDPA, a habeas petitioner must “exhaust[]
the remedies available” in state court.    28 U.S.C.

      10
          The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. We exercise plenary review of the District
Court’s decision. Showers v. Beard, 

, 628 (3d
Cir. 2011).




                              20
§ 2254(b)(1)(A). To do so, the petitioner must “‘fairly
present’ . . . a 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.” McCandless v. Vaughn, 

, 261 (3d Cir. 1999). In Pennsylvania, a defendant
“exhausts his state remedies for a federal claim either by
raising the claim on direct appeal or in a petition for collateral
relief under the PCRA.” Wilkerson v. Superintendent, 

, 228-29 (3d Cir. 2017); see also Mathias v.
Superintendent, 

, 479-80 (3d Cir. 2017) (holding
that the petitioner exhausted his federal due process claim on
PCRA review).

        As to Bennett, the Commonwealth did not raise
exhaustion before the District Court or in its opening brief to
this Court. Although it did purport to raise exhaustion in two
letters styled under Federal Rule of Appellate Procedure
28(j), the argument falls outside the bounds of that rule. See
United States v. Hoffecker, 

, 163 (3d Cir. 2008)
(holding that a party cannot use a Rule 28(j) letter to raise
additional arguments omitted from an opening brief); United
States v. Khorozian, 

, 506 n.7 (3d Cir. 2003)
(declining to consider new arguments outside the scope of
Rule 28(j)).

        We need not determine whether the Commonwealth
expressly waived the exhaustion requirement because we hold
that Bennett did exhaust his federal due process claim. See
28 U.S.C. § 2254(b)(3); see also Sharrieff v. Cathel, 

, 230 (3d Cir. 2009) (“Section 2254(b)(3) requires that a
state’s waiver of exhaustion be express, but it does not
demand the invocation of any ‘magic words.’”). Bennett
fairly presented his federal claim on PCRA review by citing




                               21
the relevant provision of the United States Constitution and
federal cases supporting his argument. See 

(citing 

). 11

       11
            We are mindful that Bennett’s counsel did not
object to the challenged jury instructions and did not file a
direct appeal. Perhaps for these reasons the Pennsylvania
Supreme Court stated without explanation that the underlying
due process challenge to the jury instructions was “defaulted”
or “waived.” Bennett 

, 1204. The
Commonwealth, however, has failed to raise and therefore
waived any potential defense of procedural default.
       “The doctrine of procedural default prohibits federal
courts from reviewing a state court decision involving a
federal question if the state court decision is based on a rule
of state law that is independent of the federal question and
adequate to support the judgment.” Bey v. Superintendent,

, 236 (3d Cir. 2017) (quoting Fahy v. Horn, 

, 187 (3d Cir. 2008)); see also Cone v. Bell, 

, 465 (2009). “[P]rocedural default is normally a defense
that the State is obligated to raise and preserve if it is not to
lose the right to assert the defense thereafter.” Trest v. Cain,

, 89 (1997) (internal quotation marks, alteration
and citation omitted); see also Lee v. Kemna, 

,
376 n.8 (2002) (stating that state waived procedural default
by failing to raise the argument in the appellate court or in
opposition to certiorari); Showers v. Beard, 

, 629
(3d Cir. 2011) (procedural default waived); Smith v. Horn,

, 408-09 (3d Cir. 1997) (same). Unlike
exhaustion, waiver of procedural default need not be express.
Cf. 28 U.S.C. § 2254(b)(3).
       In Bennett’s case, the Commonwealth did not preserve
the defense of procedural default before either the District




                               22
III.   Standard of Review

       AEDPA’s Section 2254(d) limits the ability of a
federal court to grant habeas corpus relief to a petitioner
based upon a federal constitutional claim that was
“adjudicated on the merits” in state court. 28 U.S.C.
§ 2254(d). If Section 2254(d) applies, habeas relief shall not
be granted unless the adjudication

              (1) resulted in a decision that was
              contrary to, or involved an
              unreasonable      application    of,
              clearly established Federal law, as



Court or this Court. In the District Court, the Commonwealth
asserted the opposite position—that the Pennsylvania
Supreme Court had adjudicated Bennett’s federal due process
claim on the merits. On appeal, the Commonwealth did not
argue procedural default. At the most, the Commonwealth
asserted—without citation, in a footnote—that “only the
Strickland claim is not defaulted and properly before this
Court.” Br. for Appellees 20 n.9. We “refuse to take
cognizance of arguments that are made in passing without
proper development.” Johnson v. Williams, 

,
299 (2013); see also 

.
       Thus, the defense of procedural default is waived. We
do not reach the question whether the requirements of
procedural default would have been satisfied.                See
Munchinski v. Wilson, 

, 335 (3d Cir. 2012)
(holding that state court “did not ‘clearly and expressly’ rely”
on state procedural rule to deny PCRA relief). Nor do we
determine whether Bennett could have overcome any default.




                              23
              determined by the Supreme Court
              of the United States; or

              (2) resulted in a decision that was
              based on an unreasonable
              determination of the facts in light
              of the evidence presented in the
              State court proceeding.

claim was not adjudicated on the merits in state
court, we review legal questions and mixed questions of law
and fact de novo. 

(citing Rompilla v.
Beard, 

, 390 (2005), and Wiggins v. Smith, 

, 534 (2003)); see also Appel v. Horn, 

,
210 (3d Cir. 2001). “However, the state court’s factual
determinations are still presumed to be correct, rebuttable
upon a showing of clear and convincing evidence.” 

(citing 28 U.S.C. § 2254(e)(1)). 12

       A.     Legal Standard: Adjudication on the Merits

       Because it dictates the standard of review, a predicate
question in habeas corpus proceedings is whether the state
court adjudicated a claim on the merits. A judgment is “‘on
the merits’ only if it was ‘delivered after the court . . . heard
and evaluated the evidence and the parties’ substantive

       12
           The parties agree that the operative state court
decision is the Pennsylvania Supreme Court decision
reversing the grant of PCRA relief, Bennett 

.




                               24
arguments.’” 

(emphasis and
ellipsis in original). “On the merits” means, in this context,
review of the “intrinsic rights and wrongs” of the matter. 

internal quotation marks omitted).

       In some cases, “a state court issues an order that
summarily rejects without discussion all the claims raised by
a defendant.”       

(emphasis omitted) (citing
Harrington v. Richter, 

(2011)). In those
circumstances, “the federal habeas court must presume
(subject to rebuttal) that the federal claim was adjudicated on
the merits.” 

.

       There is also a closely related situation, addressed in
Williams, where the “state court rules against the defendant
and issues an opinion that addresses some issues but does not
expressly address the federal claim in question.” 

Under these circumstances, the state court is silent as to the
reasons for denying the federal claim. It “follows logically”
that the Richter rule applies. 

. That is, the same
presumption—that the federal claim was adjudicated on the
merits—applies whether the state court does not address “any
of the defendant’s claims” or “some but not all of a
defendant’s claims.” 

(emphasis in original); see
also Dennis v. Secretary, 

, 312 (3d Cir. 2016)
(en banc) (applying Williams presumption to claim of
cumulative prejudice). But see James v. Ryan, 

,
915 (9th Cir. 2013) (distinguishing Richter and Williams).

       The Williams presumption that a federal claim was
adjudicated on the merits is rebuttable. It applies only “in the
absence of any indication or state-law procedural principles to
the contrary.” 

(quoting Richter,




                              

). “The presumption may be overcome when
there is reason to think some other explanation for the state
court’s decision is more likely.” 

.

       Williams rejected as “go[ing] too far” the state’s
argument for an irrebuttable presumption. 

. The Supreme Court explained that both parties may
attempt to rebut the presumption that a federal claim was
adjudicated on the merits. A petitioner may attempt to rebut
the presumption in order to obtain de novo review. 

02. The state may attempt to rebut the presumption in order
to show that a federal claim was defaulted. 

        Williams set forth a non-exhaustive list of “other
explanation[s] for the state court’s decision” sufficient to
rebut the presumption that a federal claim was adjudicated on
the merits. 

. They include the
following:      A state court may have “inadvertently
overlooked” the federal claim. 

; see
also Brown v. Romanowski, 

, 711-12 (6th Cir.
2017); Bester v. Warden, 

, 1336-37 (11th Cir.
2016). A state court may have applied a state standard that is
“in at least some circumstances . . . less protective” or “quite
different from the federal standard.” 

(emphasis in original); see also Ashburn v. Korte, 

, 751 (7th Cir. 2014). It may have disregarded the
federal claim based upon a belief—correct or not—that the
federal claim was not fairly presented. 

-03; see also Barton v. Warden, 

, 461-62
(6th Cir. 2015). Where the Williams presumption is rebutted
for one of these, or any other reason, review of the claim is de
novo. 

-02.




                              26
       B.     Bennett’s Due Process Claim Not
              Adjudicated on the Merits

        In Bennett’s case, we begin by considering whether the
Williams presumption applies. We conclude that it does not
because the Pennsylvania Supreme Court expressly stated that
it did not perceive there to be any federal claim presented.
Accordingly, this is not a case where the state court “rule[d]
against the defendant and issue[d] an opinion that addresse[d]
some issues but d[id] not expressly address the federal claim
in question.” 

Rather, the Court provided an
“explicit explanation of its own decision,” and so the
Williams presumption is inapplicable. 

. 13

       The Pennsylvania Supreme Court’s own explicit
statements further establish that Bennett’s federal due process
claim was not adjudicated on the merits. See 

. This is apparent for several reasons. To begin with,
the Pennsylvania Supreme Court granted review of Bennett’s
PCRA petition only on the state law question presented by the
Commonwealth—whether “overturning [Bennett’s] first-
degree murder conviction on the basis of a supposedly
defective accomplice liability instruction overlook[s] and
contradict[s] th[e Pennsylvania Supreme] Court’s precedent.”
Bennett 

. It characterized the “underlying”
federal due process claim as “defaulted,” while providing no
explanation for this statement. Bennett 

.
The Court then addressed the ineffective assistance claim as

       13
         Moreover, as explained below, we would apply de
novo review even if the Williams presumption were
applicable because Bennett has rebutted it.




                              27
relating exclusively to counsel’s failure to object on state law
grounds and did not acknowledge or address any deficiency
or prejudice in counsel’s failure to raise a federal due process
claim. 

It held that Bennett’s PCRA
petition lacked merit because it was in conflict with “[the
Pennsylvania Supreme Court’s] developed case law.” 

It identified the error of the lower state courts in
granting PCRA relief as a “failure to consider controlling,
subsequent cases by th[e Pennsylvania Supreme] Court.” 

. Indeed, the Court even said that to the extent
Bennett cited federal cases, they were not binding in the
context of “construing Pennsylvania law.” 

if the Williams presumption were to
apply, we would conclude that Bennett has rebutted it.
Applying the Williams presumption, the question that follows
is whether Bennett has rebutted the presumption that his
federal claim was adjudicated on the merits. He has because
“the evidence leads very clearly to the conclusion that [the]
federal claim was inadvertently overlooked in state court.”

. For the reasons above, there is no
ambiguity as to whether the Pennsylvania Supreme Court
resolved the federal due process claim on the merits; the
Court made clear that it overlooked it. It expressly declined
to rule on Bennett’s federal claim, and held that it “need not
review and compare each of the federal cases” cited by
Bennett because it was deciding a state law question. Bennett

; see also 

“we are not
bound by the decisional law of the lower federal courts,
construing Pennsylvania law”); 

(characterizing the
“underlying” due process challenge as “defaulted”). Because
the Court made a “clear demarcation” between the state and
federal questions and ruled on the merits of only the former,




                              28
the Williams presumption is rebutted. 

(holding that federal claim was overlooked under Williams, as
evidenced by the fact that the state court expressly addressed
all claims in the petitioner’s original motion, but none in his
amended motion). 14 Therefore, we will review Bennett’s due
process claim de novo. 15

      14
            We note, furthermore, that unlike Williams the
Pennsylvania Supreme Court did not “underst[an]d itself to
be deciding a question with federal constitutional
dimensions.” 

. The Court relied
upon two state cases, Thompson and Simpson, which do not
have federal constitutional underpinnings. See Bennett 

(citing 

, and

). The Pennsylvania state case
that arguably does have federal constitutional underpinnings
is Huffman, which cites In re Winship for the proposition that
a meritorious jury instruction claim did not amount to
harmless error. 

(citing In re
Winship, 

(1970)). Huffman, however, is the
very case that the Pennsylvania Supreme Court held was
inapplicable to Bennett. Bennett 

; see
also 

(“As we have made clear, the instant case is
simply not controlled by Huffman . . . .”). As Chief Justice
Saylor put it, “the only surviving vestige of Huffman is that
which remains to be litigated in the federal courts under due
process theory.” Bennett 

n.3 (Saylor,
C.J., concurring) (quoting Commonwealth v. Jones, 

, 297 (Pa. 2006) (Saylor, C.J., concurring)).
      15
           In reaching this conclusion, we are mindful of the
Supreme Court’s observation that having a less protective
state standard would “provide no guidance to state trial judges




                              29
IV.    Analysis of the Merits

       While the state may choose how to define first degree
murder, McMillan v. Pennsylvania, 

, 85 (1986),
the Constitution requires proof beyond a reasonable doubt of
every element necessary to constitute the crime, In re

. Due process is violated when a
jury instruction relieves the government of its burden of
proving every element beyond a reasonable doubt. See
Waddington v. Sarausad, 

, 190-91 (2009);
Sandstrom v. Montana, 

, 521 (1979).

      Under the federal due process standard, we ask
whether there is “some ‘ambiguity, inconsistency, or


bound to follow both state and federal law.” 

. This may indeed be the case in Pennsylvania. In
fact, Chief Justice Saylor has cautioned the state trial courts to
follow the federal due process standard, because the
alternative—following state law—“risks a needless waste of
untold resources on the part of the Commonwealth, defense
attorneys, and the courts” when those cases are challenged on
due process grounds. Commonwealth v. Sepulveda, 

, 1158 (Pa. 2012) (Saylor, C.J., concurring). Indeed,
Pennsylvania’s suggested jury instructions also appear to
exceed the requirements of state law, although that issue is
not before us. See Bennett 

n.9 (noting
that the standard jury instructions “now include a specific
charge related to liability for the conduct of another person
for the crime of first-degree murder for both accomplice and
conspiracy liability” but reiterating that “these are merely
suggested instructions”).




                               30
deficiency’ in the instruction, such . . . that there was ‘a
reasonable likelihood’ that the jury applied the instruction in a
way that relieved the State of its burden of proving every
element of the crime beyond a reasonable doubt.” 

(quoting Middleton v. McNeil, 

, 437 (2004) (per curiam), and Estelle v. McGuire, 

, 72 (1991) (quoting Boyde v. California, 

, 380 (1990))). “In making this determination, the jury
instruction ‘may not be judged in artificial isolation,’ but
must be considered in the context of the instructions as a
whole and the trial record.” 

(quoting 

(quoting Cupp v. Naughten, 

, 147
(1973))).

        Under federal law, “[l]anguage that merely contradicts
and does not explain a constitutionally infirm instruction will
not suffice to absolve the infirmity.” Francis v. Franklin, 

, 322 (1985). “While a single defect does not
necessarily make an instruction erroneous, . . . other language
in the instruction does not always serve to cure the error.
This is so even when other language correctly explains the
law.” 

& n.54 (ellipsis in original)
(quoting Whitney v. Horn, 

, 256 (3d Cir. 2002)
(citing 

)). This is because “[a]
reviewing court has no way of knowing which of the two
irreconcilable instructions the jurors applied in reaching their
verdict.” 

. As such, there is a
reasonable likelihood that the jury applied the instructions
incorrectly in violation of the right to due process. 

16 This Court has repeatedly reaffirmed this longstanding

       16
         This Court recently noted a potential “tension”
between 

, and a subsequent per




                               31
principle. See 

; 

;

; 

.

       As to jury instructions on the specific intent to kill, our
Court is troubled by the likelihood that the instructions as a
whole could lead a jury to believe that an accomplice or
conspirator to one crime is guilty of first degree murder
despite having no specific intent to kill. Indeed, we have
repeatedly identified due process violations for this very
reason. See, e.g., 

(stating that “the
jury could easily have convicted Laird of first-degree murder
based on his conspiring with Chester to kidnap or assault”);

(noting that “the jury could find
Bronshtein guilty of first-degree murder if it found that he
had conspired to commit the robbery”); 

(holding that there was a reasonable likelihood that the



curiam decision, 

, but declined
to resolve it. 

. We now conclude
that Middleton did not overrule Franklin. The Supreme Court
has cautioned the Courts of Appeals not to conclude that its
precedent has been overturned by implication, and Middleton
did not overrule Franklin or even refer to it. Agostini v.
Felton, 

, 237 (1997). Moreover, Middleton did
not directly address whether there had been a federal due
process violation, but rather only whether the state court’s
application of federal law was objectively unreasonable under
28 U.S.C. § 

. This explains why
our Court continues to apply Franklin as binding precedent,
and has done so repeatedly post-Middleton. See 

& n.54; 

; 

.




                               32
jurors convicted Smith of first degree murder because they
found that he was an accomplice to robbery). 17

       17
            In contrast, Pennsylvania state law construes the
instructions “as a whole” in a particular way—one highly
permissive of instructional errors regarding the specific intent
to kill of conspirators or accomplices. 

(internal quotation marks omitted). Its permissive
approach is this: under the state standard, the instructions as a
whole survive review, so long as an erroneous charge on the
specific intent to kill is paired with standard definitions—
such as the standard definitions of accomplice liability and
conspiracy, Commonwealth v. Speight, 

, 460-61
(Pa. 2004), or the standard definition of accomplice liability
and a statement that first degree murder is intentional,
Commonwealth v. Daniels, 

, 431-32 (Pa. 2009);
Commonwealth v. Cox, 

, 550-51 (Pa. 2004). Put
more critically, state law relies on the inclusion of standard
definitions to obviate the grant of relief on misleading
instructions regarding the specific intent to kill. 

(Saylor, C.J., concurring). State law thus rejects
the argument that the inclusion of standard definitions only
creates inconsistency and does not cure the error.
        The problem is that, even with standard definitions, the
instructions as a whole could lead a jury to believe that an
accomplice or conspirator to a lesser crime is guilty of first
degree murder despite having no specific intent to kill. For
example, a jury could conclude that “an accomplice and/or a
conspirator in [a] robbery . . . was thereby equally responsible
with the shooter for first-degree murder, even without proof
that [the defendant] himself had the specific intent to kill.”
Bennett 

, vacated by Bennett 

.     The Pennsylvania Supreme Court rejected this




                               33
        In Bennett’s case, the trial court’s jury instructions on
conspiracy and accomplice liability were deficient, or at the
least ambiguous and inconsistent. The trial court repeatedly
suggested that the jury could convict Bennett of first degree
murder based upon the shooter’s specific intent to kill. It
instructed the jury that where conspirators join together to
commit an “unjustified assault which results fatally, all are
guilty.” App. 602. It instructed the jury that when
conspirators “combine to commit a felony or to make an
assault, and in carrying out the common purpose another is
killed, the one who enters into the combination but does not
personally commit the wrongful act is equally responsible for
the homicide as the one who directly causes it.” 

the jury that a conspiratorial liability “extend[s]
even to a homicide . . . even though such homicide is not
specifically contemplated.” App. 603. It instructed the jury
that, among accomplices, “the act of one is the act of all.”
App. 604.

        Reviewing these instructions in the context of the trial
record, we conclude that there is “‘a reasonable likelihood’
that the jury applied the[se] instruction[s] in a way that
relieved the State of its burden of proving” the specific intent
to kill. 

(quoting 

(quoting 

)). The trial evidence
established that Bennett “conspired . . . to rob a jewelry store
in Philadelphia at gunpoint.” Bennett 

.
“Bennett supplied the loaded gun, but did not enter the store.”


argument as “without merit” under state law. Bennett 

; see also 

(Saylor, C.J.,
dissenting).




                               34


sitting in the passenger seat of the getaway car
when the shooter, Mayo, botched the robbery, killing the
clerk. 

of the record, there is “a reasonable
likelihood” that the jury found that Bennett was guilty of first
degree murder because he was a conspirator and accomplice
to the robbery, not because it found that he possessed the
requisite specific intent. 

(internal quotation marks omitted); see also 

; 

.

        We reach this holding having also considered the
instructions as a whole, particularly the first degree murder
charge. In this portion of the charge, the trial court instructed
the jury that first degree murder is an intentional killing,
wherein “the defendant consciously decided to kill the victim
and . . . possessed a fully-formed intent to kill at the time
when he acted.” App. 606. It further instructed the jury that
“[i]f a defendant intentionally uses a deadly weapon on a vital
part of the body, you may infer from this that the killing was
intentional.” App. 607.

        Bennett asserts that the first degree instruction was
itself ambiguous because the “defendant” could have been the
shooter, Mayo. He points out that Mayo is the only person
who “use[d] a deadly weapon.” 

that Mayo
began the trial as a defendant, and the Commonwealth
continued to refer to Mayo as a “defendant” throughout its
opening statement and closing argument. See App. 304
(“these two defendants T.S., Michael Mayo and . . .
Johnson”); App. 309 (“The defendant Mayo”); App. 310
(“you will see what the defendant [Mayo] does”); App. 312
(“the defendant T.S., Michael Mayo, who is not here”); App.
570 (“the defendants, two of them being T.S., T.S., the man




                               35
who is not here”); App. 575 (“the defendant Mayo”). 18 The
Pennsylvania Supreme Court, however, disagreed with this
interpretation. Bennett 

. As such, the
Commonwealth argues that we are bound by the state court’s
factual determination under 28 U.S.C. § 2254(e)(1).

        Even if the state court’s interpretation of the first
degree murder charge is correct, the charge as a whole still
violated Bennett’s due process rights. The first degree
murder charge, at the most, contradicted the erroneous
conspiracy and accomplice liability instructions. Nothing in
this language “or in the charge as a whole makes clear to the
jury that one of these contradictory instructions carries more
weight than the other. Language that merely contradicts and
does not explain a constitutionally infirm instruction will not
suffice to absolve the infirmity.” 

;
see also 

& n.54; 

;

. “A reviewing court has no way
of knowing which of the two irreconcilable instructions the
jurors applied in reaching their verdict.” 

. Thus, it was reasonably likely that the jury applied
the instructions to relieve the Commonwealth of its burden of
proving that Bennett had the specific intent to kill.

       Our conclusion is further supported by the arguments
of counsel, although they “carry less weight with a jury” than
the trial court’s instructions. 

(quoting 

). In Bennett’s case, the
arguments compounded the instructional error.              The
Commonwealth never argued that Bennett had the specific
intent to kill. To the contrary, in its opening statement, the

      18
           “T.S.” is a nickname for Mayo.




                              36
prosecutor told the jury “lest you think I am crazy for saying
[Bennett, Johnson and Wyatt] are guilty of first degree
murder, when I told you that Michael Mayo fired the fatal
shots . . . I will urge upon you that the law of conspiracy
makes all of these defendants first degree murderers.” App.
312-13. In closing, the prosecutor argued that “accomplices
are equally guilty with the principal. First degree murder,
intent to kill. There is no doubt, there can be no doubt that
[the shooter] Michael Mayo intended to kill [the victim]. . . .
Co-conspirators and accomplices are equally guilty with the
principal.” App. 591-92. These arguments increased the
likelihood that the jury interpreted the charge so as to relieve
the Commonwealth of its burden of proof.

       Thus, we conclude that the trial court’s jury
instructions relieved the Commonwealth of its burden of
proving that Bennett had the specific intent to kill, in
violation of his right to due process under the United States
Constitution. We are far from the first court to reach this
conclusion. To the contrary, thirteen different Pennsylvania
judges, in four separate decisions, have held or opined that
these very jury instructions allowed the jury to convict of first
degree murder without finding the specific intent to kill. See
Bennett 

; Bennett 

; Wyatt,
No. 2050 EDA 1999, *1; App. 167; see also Bennett 

n.3 (noting “the trial court’s erroneous
accomplice liability instruction”). Two additional concurring
Pennsylvania Supreme Court justices recognized that the
“charge could be taken as overriding the specific-intent
requirement for first-degree murder.” Bennett 

(Saylor, C.J., concurring). We agree.




                               37
V.     Harmless Error

        This brings us to the issue of harmless error. Brecht v.
Abrahamson, 

(1993). Under Brecht, this Court
must grant habeas relief if an error “had a substantial and
injurious effect or influence in determining the jury’s
verdict.” 

(quoting Kotteakos v. United States, 

, 776 (1946)); see also 

. If,
“in the judge’s mind, the matter is so evenly balanced that he
feels himself in virtual equipoise as to the harmlessness of the
error[,] . . . the uncertain judge should treat the error, not as if
it were harmless, but as if it affected the verdict.” O’Neal v.
McAninch, 

, 435 (1995); see also Adamson v.
Cathel, 

, 260 (3d Cir. 2011). A state may waive
the harmless error defense by failing to assert it “timely and
unequivocal[ly].” Lam v. Kelchner, 

, 269 (3d
Cir. 2002); see also Gibbs v. Frank, 

, 277 n.7
(3d Cir. 2004).

       In Bennett’s case, the Commonwealth waived the
harmless error defense by failing to assert it unequivocally on
appeal. This is a product of its unusual approach to briefing
this case. As explained above, it chose not to address
Bennett’s due process claim—the only issue on appeal.
Instead, it addressed a hypothetical claim of ineffective
assistance of counsel. In keeping with this approach, the
Commonwealth did not argue harmless error. Instead, it
argued that Bennett failed to prove prejudice for a
hypothetical claim of ineffective assistance of counsel under

. This Strickland argument is not
an “unequivocal” harmless error argument. 

. Moreover, to the extent the Commonwealth’s Strickland
argument left open the question whether it was asserting




                                38
harmless error, any such possibility was eliminated by the
Commonwealth’s Rule 28(j) letter of May 19, 2017. In this
letter, the Commonwealth took the position that “Strickland
prejudice and harmless error are different, and it is the former
standard that applies to the only claim properly before the
Court.” Appellees’ 28(j) Letter at 1 (May 19, 2017). But cf.

n.18 (suggesting that “if a habeas
petitioner meets the Strickland test, then he/she need not also
demonstrate that the error was harmful”). Thus, the harmless
error defense is waived.

        Moreover, even if we were to reach harmless error, we
would conclude that the due process violation is not harmless
in the context of “the record as a whole.” 

. The trial evidence established that Bennett conspired to
commit armed robbery, and was sitting in the passenger seat
of the getaway car when the shooter, Mayo, botched the
robbery and killed the clerk. Bennett 

.
The Commonwealth never argued that Bennett had the
specific intent to kill. Its theory of the case was that Bennett
was guilty of first degree murder solely because he was an
accomplice and conspirator. In its opening statement, the
prosecutor told the jury “that the law of conspiracy makes all
of these defendants first degree murderers.” App. 313. In
closing, the prosecutor argued that that “[c]o-conspirators and
accomplices are equally guilty” of first degree murder. App.
592. The Commonwealth, “[h]aving repeatedly urged the
jury to base its verdict on a theory predicated on a
fundamental constitutional error, . . . cannot now seriously
contend that that error had no ‘substantial and injurious effect
or influence’ on the verdict.” 

.




                              39
        Nor would the error be harmless under Bronshtein.
There we held that the trial court’s jury instructions relieved
the Commonwealth of its burden to prove the specific intent
to kill, but that the error was 

.
In Bronshtein it necessarily followed from the particular jury
instructions, and the verdict of guilt on conspiracy to murder,
that the jury “must have found . . . the specific intent to kill.”

see also 

, 480 (following
Bronshtein where the jury convicted the defendant of
conspiracy to commit first degree murder). This is not so in
Bennett’s case. Unlike Bronshtein, the Commonwealth
charged Bennett with conspiracy generally, and the trial court
instructed the jury that the object of the conspiracy was
murder, robbery, possession of an instrument of crime, and a
firearms violation. Therefore, we cannot infer anything about
the specific intent to kill from the jury’s conspiracy verdict.
See 

(distinguishing Bronshtein). The
jury might have found that Bennett intended to participate in
the robbery, and so was “equally responsible for the
homicide,” as the trial court erroneously instructed. App.
602.

       Finally, we address the Commonwealth’s argument
that there is no Strickland prejudice to support a hypothetical
claim of ineffective assistance of counsel. In its brief, the
Commonwealth argues that Bennett could not prove prejudice
for a hypothetical ineffectiveness claim under our decision in
Rainey v. Varner, 

, 203 (3d Cir. 2010). In
Rainey, the petitioner asserted ineffective assistance of
counsel for counsel’s failure to challenge the sufficiency of
the evidence for first degree murder. We held that even if the
evidence were insufficient for first degree murder, the
petitioner would have been convicted of second degree




                               40
murder, and would have received the same mandatory life
sentence. 

Therefore, Rainey held that the
petitioner failed to establish Strickland prejudice. 

       Rainey does not control Bennett’s due process claim
for two reasons. First, the Commonwealth has never argued
that Rainey applies to the claim actually raised—a due
process challenge to the trial court’s jury instructions on the
specific intent to kill. Therefore, any argument that Rainey
applies to this claim is waived. Second, even if the argument
were preserved, we would decline to extend Rainey outside of
its context—a claim that counsel was ineffective for failing to
challenge the sufficiency of the evidence for first degree
murder, where the petitioner would nevertheless have been
convicted of second degree murder, which required the same
mandatory life sentence under state law. 

19


       19
          In declining to read Rainey outside of its context, we
note that Rainey relied on three Supreme Court decisions for
the proposition that Strickland prejudice requires a reasonable
probability of “a different sentence.” 

n.5. Each of the cited cases, however, addressed claims of
ineffective assistance of counsel at the penalty phase. 

v. McCollum, 

, 41 (2009) (per
curiam); Wong v. Belmontes, 

, 20 (2009) (per
curiam); Wiggins v. Smith, 

, 536 (2003)). Even
the Commonwealth, in opposing certiorari, read Rainey as a
narrow decision that “certainly did not purport to redefine
prejudice globally by adding a requirement of a more onerous
sentence for all petitioners alleging guilt-phase
ineffectiveness.” Br. for Respondents in Opp’n to Pet. for
Writ of Cert., Rainey v. Walsh, 

(2011) (No.




                              41
        Rather, we follow the ordinary rule that “the ultimate
issue under either [the Strickland or Brecht] test reduces to
determining what effect, if any, the erroneous instruction had
on the jury’s verdict.” 

. In making
this determination, “[h]armless-error review looks . . . to the
basis on which ‘the jury actually rested its verdict.’ . . . That
must be so, because to hypothesize a guilty verdict that was
never in fact rendered—no matter how inescapable the
findings to support that verdict might be—would violate the
jury-trial guarantee.” Sullivan v. Louisiana, 

,
279 (1993) (citations omitted) (emphasis in original) (quoting
Yates v. Evatt, 

, 404 (1991)) (reviewing claim on
direct appeal); see also United States v. Gonzalez-Lopez, 

, 150 (2006) (holding that the denial of the right to
counsel of one’s choice is structural error not subject to
harmlessness review because “[h]armless-error analysis in
such a context would be a speculative inquiry into what might
have occurred in an alternate universe”); Jones v. United
States, 

, 404 (1999) (evaluating for harmless
error purposes what “the jury in this case actually
understood”). Accordingly, in Laird we rejected a Brecht
harmless error argument because “we can not substitute
ourselves for the jury by speculating about what portion of
the testimony the jury 

; see also 2-
31 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice and Procedure § 31.4(d) (2017) (“The
determinative consideration under the Brecht/Kotteakos
standard thus is not the strength of the evidence or the
probability of conviction at a hypothetical retrial absent the


10-431), 

, at *30 (alterations, emphasis and
citation omitted). We agree.




                               42
error,” but rather “whether the error substantially affected the
actual thinking of the jurors or the deliberative processes by
which they reached their verdict.”).

       Thus, for the reasons above, we conclude that the
Commonwealth waived the harmless error defense and that,
even if the argument were preserved, the due process
violation was not harmless.

VI.    Conclusion

        We will reverse the District Court’s order denying
habeas corpus relief and remand with instructions to grant a
conditional writ of habeas corpus as to Bennett’s conviction
for first degree murder 20 so that the matter may be returned to
state court for further proceedings consistent with this
opinion. 21




       20
            Under Laird, “[o]ur holding in no way undermines
the jury’s guilty verdict on the remaining charges.” 

n.9; see also 

(granting the writ “with regard to [the defendant’s] conviction
for first degree murder”).
       21
          The Court acknowledges and thanks the Drexel
University Appellate Litigation Clinic for the skillful pro
bono advocacy provided to Mr. Bennett in this appeal.




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