Filed: Nov. 25, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APEALS FOR THE THIRD CIRCUIT _ No. 18-2054 _ BASHEER HARRISON, Appellant v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; SUPERINTENDENT GRATERFORD SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-14-cv-02114) District Judge: Hon. Nitza I. Quiñones Alejandro _ Submitted Under Third Circuit LAR 34.1(a) November 12, 2019 Before: JORDAN, SCIRICA
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APEALS FOR THE THIRD CIRCUIT _ No. 18-2054 _ BASHEER HARRISON, Appellant v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; SUPERINTENDENT GRATERFORD SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-14-cv-02114) District Judge: Hon. Nitza I. Quiñones Alejandro _ Submitted Under Third Circuit LAR 34.1(a) November 12, 2019 Before: JORDAN, SCIRICA,..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2054
_____________
BASHEER HARRISON,
Appellant
v.
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
SUPERINTENDENT GRATERFORD SCI; THE DISTRICT ATTORNEY
OF THE COUNTY OF PHILADELPHIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-cv-02114)
District Judge: Hon. Nitza I. Quiñones Alejandro
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 12, 2019
Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.
(Filed: November 25, 2019)
_______________
OPINION ∗
_______________
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Basheer Harrison 1 appeals the order of the District Court denying his petition for
habeas relief under 28 U.S.C. §§ 2241 and 2254. He claims that the reasonable doubt
instruction given to the jury at trial deprived him of due process. Seeing no error in that
instruction, we will affirm.
I. BACKGROUND
On December 19, 2004, Harrison and Anthony Funny, while on Funny’s front
porch, had a physical fight over a gun. In the course of the struggle, Harrison shot
Funny, who later died from his injuries. After the shooting, Harrison dropped the gun
and ran across the street to his car. Having witnessed the struggle from the doorway,
Funny’s stepson, Louis Seabrook, came onto the porch and watched as Harrison, whom
he knew, got into the car. As Seabrook was tending to his stepfather on the porch, two
other armed men opened fire on Seabrook and Funny. Those two shooters then got in
Harrison’s car with him and the three drove away.
Seabrook promptly called the police. When the officers arrived on the scene, he
described the vehicle and license plate number. The officers radioed a description of the
vehicle and plate number to other police and received back a report of the vehicle’s
location. The officers took Seabrook to that location, where he identified Harrison as the
man who shot Funny. Seabrook later also identified the two other shooters from a photo
1
In state court proceedings, Harrison was referred to as Basheer Hairston, which
the Commonwealth claims is how he referred to himself. Harrison now claims that his
actual surname is Harrison. This case is captioned accordingly, and we refer to him by
that name.
2
array. Physical evidence from the scene, including a gun and cartridge casings,
corroborated Seabrook’s testimony.
Harrison was arrested and charged with murder, attempted murder, aggravated
assault, and possession of an instrument of crime. At trial, a jury found him guilty of
third-degree murder, attempted murder, aggravated assault, and possession of an
instrument of a crime. 2
Before deliberations began, the judge instructed the jury on reasonable doubt, as
follows:
Let me speak to you about reasonable doubt. Although the Commonwealth
has the burden of proving that a defendant is guilty, this does not mean that
the Commonwealth must prove its case beyond all doubt or to a
mathematical certainty. Nor must it demonstrate the complete impossibility
of innocence. A reasonable doubt is a doubt that would cause a
reasonably careful and sensible person to pause, to hesitate, to refrain
from acting upon a matter of highest importance in his or her own affairs
or to his or her own interests. A reasonable doubt must fairly arise out of
the evidence that was presented or out of the lack of evidence presented
with respect to some element of a crime charged.
A reasonable doubt must be a real doubt. It may not be an imagined one
nor may it be a doubt that’s manufactured to avoid carrying out an
unpleasant duty. So, to summarize, you may not find the defendant guilty
based upon a mere suspicion of guilt. The Commonwealth has the burden
of proving the defendant guilty beyond a reasonable doubt. If the
Commonwealth has met that burden, then the defendant is no longer
presumed to be innocent and you should find him guilty. On the other
hand, if the Commonwealth has not met its burden, then you must find him
not guilty.
(App. at 102-03) (emphasis added).
2
Harrison was initially charged with first-degree murder. At trial, however, he
was granted an acquittal on the first-degree murder charge, as well as conspiracy charges,
after the presentation of the Commonwealth’s case.
3
After the guilty verdict, Harrison was sentenced to consecutive terms of twenty to
forty years of imprisonment for murder, seven and one-half to fifteen years of
imprisonment for attempted murder, and one and one-half to five years of imprisonment
for possession of an instrument of a crime.
Represented by his trial counsel, Harrison filed direct appeals, and his conviction
was affirmed. With new counsel, Harrison also completed Pennsylvania’s collateral
review process. On collateral review, his petition was dismissed without a hearing, and
the dismissal was affirmed by both the Superior Court and the Supreme Court of
Pennsylvania. Not at anytime during trial, direct appeal, or on collateral review did
Harrison raise a due process claim based on the reasonable doubt instruction, as he now
does. 3
After losing on collateral review, Harrison filed the present petition for a writ of
habeas corpus, which was referred to a Magistrate Judge for a report and
recommendation. The Magistrate Judge recommended that the petition be denied. The
District Court agreed and denied relief, but it certified the due process issue for appeal to
us, and this appeal followed.
3
Harrison frankly admits that, for habeas purposes, his failure to raise his due
process claim earlier amounts to a procedural default. Harrison claims, however, that
ineffective assistance of counsel excuses the procedural default that would otherwise
prohibit his federal habeas claim. See Martinez v. Ryan, 566 U.S. 1, 14 (2012). We
recently considered the procedural default analysis at length in Workman v.
Superintendent Albion SCI,
915 F.3d 928 (3d Cir. 2019), although we note that the
District Court reviewed Harrison’s petition prior to the Workman decision. Because
Harrison’s due process argument fails on the merits, we do not address his procedural
default.
4
II. DISCUSSION 4
Harrison asserts that he was denied due process by the trial court’s instruction to
the jury on reasonable doubt. Specifically, he claims that the phrase “to pause, to
hesitate, to refrain from acting” impermissibly lowered the prosecution’s burden of proof.
We disagree.
A. Reasonable Doubt Jury Instruction
The Due Process Clause ensures that when an individual is accused of a crime, the
jury must convict that person “upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970). Accordingly, any instructions a judge gives to a jury on what it means to
find someone guilty beyond a reasonable doubt must “correctly convey the concept of
reasonable doubt to the jury.” Victor v. Nebraska,
511 U.S. 1, 5 (1994) (alterations and
citation omitted). Jury instructions violate due process when “there is a reasonable
likelihood that the jury understood the instructions to allow conviction based on proof
insufficient to meet the [reasonable doubt] standard.”
Id. at 6.
Harrison claims that the reasonable doubt instruction at his trial violated his due
process rights because it included the phrase “to refrain from acting” as being conjunctive
with the phrases “to pause” and “to hesitate” in describing reasonable doubt. While “to
pause” and “to hesitate,” reflect an appropriate description of reasonable doubt, Harrison
4
The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review the District Court’s
legal conclusions de novo. See Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009).
5
argues, “to refrain from acting” impermissibly lowers the prosecution’s burden of proof.
Harrison cites our opinion in Thomas v. Horn, in which we said in dicta that the phrase to
“‘restrain from acting’… decreases, to some extent, the burden of proof[.]” 5 570 F.3d
105, 118 (3d Cir. 2009).
We disagree with Harrison’s reading of the jury instruction. First, we are not
convinced that the most natural reading of the instruction is as a conjunctive list. The
lack of an actual conjunction in the list more naturally indicates that the words “to pause,
to hesitate, to refrain from acting” were intended as a disjunctive, illustrative list of
behaviors that could reflect what it means to have a reasonable doubt. This is
underscored by the fact that “to pause” and “to hesitate” are nearly synonymous, thus
negating the need for a conjunctive “and” to include both behaviors. Importantly, and as
Harrison notes, this Court and the Pennsylvania courts have repeatedly approved jury
instructions that include “to refrain from acting” or “to restrain from acting” when it is in
a disjunctive list. See, e.g., id. at 119; Commonwealth v. Uderra,
862 A.2d 74, 92 (Pa.
2004).
Second, even if the jury instruction were properly understood as setting forth a
conjunctive list, we approved the “to restrain from acting” formulation of reasonable
doubt in Thomas. Although we indicated that “to restrain from acting” is not an exact
synonym of “to pause” or “to hesitate,” we upheld the jury instruction that included that
phrase. We reasoned that “even though we believe that the ‘restrain from acting’
5
The parties agree, as do we, that “to refrain from acting” and “to restrain from
acting” are effectively synonymous.
6
formulation lessens the prosecution’s burden of proof, we cannot say that its use is
unconstitutional.” Thomas, 570 F.3d at 118.
Whether understood as conjunctive or disjunctive, the wording at issue in this
instruction falls within the range of permissible instructions on reasonable doubt. There
was no warrant for habeas relief here, and the District Court correctly denied the petition.
III. CONCLUSION
For the foregoing reasons, we will affirm the order of the District Court.
7
