NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 18

- 2062

____________ RONDELL SLAUGHTER, Appellant

v. SUPERINTENDENT PHOENIX SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 1 6

- cv - 0 4143 ) District Judge: Honorable Joel H. Slomsky

____________ Argued March 5 , 20 20 Before: SMITH, Chief Judge , HARDIMAN, and KRAUSE , Circuit Judges

. (Filed: Ju ne 10, 20 20 ) Stephen W. Kirsch Arianna J. Freeman Leigh M. Skipper Joel Mandelman ( Argued ) Federal Community Defender Office for the Eastern District of Pennsylvania Suite 540 West

— Curtis Center 601 Walnut Street Philadelphia, PA 19106 Counsel for Appellant Rondell Slaughter2

Joshua S. Goldwert ( A rgued ) Max C. Kaufman Nancy Winkelman Carolyn Engel Temin Lawrence S. Krasner Philadelphia County Office of the District Attorney 3 South Penn Square Philadelphia, PA 19107 Counsel for Appellees Superintendent Phoenix SCI, District Attorney of Philadelphia, and Attorney General of Pennsylvania

____________ OPINION *

____________ HARDIMAN, Circuit Judge

. Rondell Slaughter appeals an order of the District Court denying his petition for writ of habeas corpus under 28 U.S.C. § 2254. We will affirm.
I 1
A Pennsylvania state court jury convicted Slaughter of arson, criminal conspiracy, and aggravated assault

. Th e jury began its deliberations on a Thursday . The next day, the jury notified the court that it was at an impasse on some charges , so the court recessed for the weekend. On Monday, the jury returned with one juror absent. Because the absent juror was sick, the court substitute d an alternate juror over Slaughter’s counsel’s objection. When the recomposed jury reached another impasse on Tuesday , the court

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 The District Court had jurisdiction under 2 8 U.S.C. § § 2241 and 2254(a). We have jurisdiction under 28 U.S.C. § § 1291 and 2253(a).3

encouraged it to continue deliberations. The jury reached a verdict the next day. The court sentenced Sla ughter to 35 to 70 years’ imprisonment. After exhausting his direct appeal rights, Slaughter sought relief under
Penn sylvania’s Post

- Conviction Relief Act (PCRA). The C ourt of C ommon P leas appointed counsel , who filed two amended PCRA petitions. The court ultimately dismissed Slaughter’s Second Amended PCRA Petition.
T he Pennsylvania Superior Court appointed new counsel and allowed Slaughter to appeal the order denying his Second Amended PCRA petition. On ap peal, Slaughter argued his trial counsel was ineffective for failing to properly object to “ the replacement of an already dismissed alternate juror after the juror had started deliberations.” App.
618

– 19. And although he also claimed his counsel on direct appeal was ineffective, he gave no factual or legal basis for this claim. The Superior Court held that Slaughter’s trial counsel was ineffective, reversed the lower court’s order dismissing his PCRA petition, and granted him a new trial. Commonwealth v. S laughter , 2014 WL 10588398, at *6 (Pa. Super. Ct. 2014). The Superior C ourt ’s decision was based on Commonwealth v. Saunders , 686 A.2d 25 (Pa. Super. Ct. 1996), which held that the Pennsylvania Rules of Criminal Procedure do not authorize a trial court to replace a juror after deliberations have begun. Id. at *4. Saunders also held that “where the trial court has substituted an alternate juror after deliberations have begun, there is a presumption of prejudice to the defendant.” Saunders , 686 A.2d at 28. To overcome this presumption , a trial court must : (1) question the alternat e and remaining jurors to ensure the alternate has not been exposed to improper outside4

influences and deliberations can begin anew ; and (2) instruct the recomposed jury that the principal juror was discharged for personal reasons only and that deliberatio ns must begin

anew . Id. at 29. Because Slaughter’s counsel did not properly object when the trial court failed to adequately question the alternate and remaining jurors , the Superior Court ordered a new trial. The Commonwealth appealed and the Pennsylvania Supreme Court vacated the Superior Court’s order in a summary per curiam order. Commonwealth v. Slaughter , 120 A.3d 992 (Pa. 2015). It remanded the case to the Superior Court so it could “reevaluate [Slaughter’s] ineffectiveness claim under th e Pierce/Strickland standard requiring a showing of actual prejudice . . . .” Id. On remand, Slaughter filed a supplemental brief that largely mirrored his prior appellate brief before the Superior Court. Slaughter again claimed his trial counsel was ineff ective “for failing to object to the replacement of an already dismissed alternate juror after the juror had started deliberations.” App. 636 . He mentioned appellate counsel only in passing. Applying Strickland , the Superior Court held Slaughter did not sh ow he was prejudiced by the trial court’s failure to question the jurors. Commonwealth v. Slaughter , 2016 WL 298642, at *6

– 7 (Pa. Super. Ct. 2016)

. The Pennsylvania Supreme Court denied review

. Slaughter then filed a pro se petition for writ of habeas corpus in federal court under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. The District Court referred the case to a magistrate judge , who recommended denial of Slaughter’s claims for relief. Slaughter filed object ions to the Report and Recommendation (R&R) , but t he District Court approved and adopted the R&R and5

denied Slaughter’s petition. Slaughter appeal ed and this Court granted a certificate of appealability.
II Our cert ificate of appealability asked the parties to address whether the state courts reasonably applied Strickland when deciding (1) whether trial counsel was ineffective for failing to object to the trial court’s jury instruction in seating an alternate juror after the jury had started deliberations ; and (2) whether appellate counsel was ineffective for failing to challenge the trial court’s decision to seat an alternate juror after deliberations had begun and its jury instruction in seating the alternate juror . The District Court found that Slaughter procedurally defaulted on the first issue . And because Slaughter did not properly raise the s econd issue in his habeas petition, the District Court did not consider it either. We disagree that Slaughter default ed on the first issue

. W e will nevertheless affirm the District Court because the state court reasonably applied Strickland

. See 28 U.S.C. § 2254(d); Simmons v. Beard , 590 F.3d 223, 231 (3d Cir. 2009). As for the second issue , after reviewing the record, Slaughter’s counsel was “constrained to concede that [the ineffective assistance of appellate counsel claim was not fairly presented to the state courts].” Oral Argument at 6:25

– 38, available at https://www.ca3.uscourts.gov/oral

argument

- recordings; see id. at 1:27

– 38, 3:07

– 24. We commend counsel for his candor. His ethical duty required this concession because Slaughter did not properly rais e an ineffective assistance of appellate counsel claim in the state courts, in his habeas petition, or in his motion for a certificate of appealability. See P a. R. Prof’l Conduct 3.1 cmt. 26

(“ What is required of lawyers, however, is that they inform themselves about the facts of their clients ’ cases and the applicable law and determine that they can make good faith arguments in support of their clients ’ positions. ”)

. A Slaughter raised the issue of whether his trial counsel was ineffective for failing to object to the trial court’s jury instruction in seating an alternate juror

. He claimed in his PCRA appellate briefs that trial counsel was ineffective for failing to “properly object” to the court’s decision to empanel the alternate juror. App. 619

– 21. Although this claim lacks specificity, a court could reasonably construe it to be a claim challenging trial counsel ’s failure to object to the lack of the jury instruction required by Saunders

. Because Slaughter properly raised this claim and the state co urt adjudicated it on the merits, we review it under AEDPA’s deferential standard. So t he question is not whether the state court ’ s holding was wrong, but whether it was reasonable. Indeed, “even a strong case for relief does not mean the state court ’ s contrary conclusion was unreasonable.” Harrington v. Richter , 562 U.S. 86, 102 (2011). Slaughter claims the state courts unreasonably applied Strickland in determin ing that he failed to show his trial counsel was ineffective. Under Strickland ’s familiar two

part test, we consider whether counsel’s performance was deficient and, if so, whether it prejudiced Slaughter. Strickland v. Washington , 466 U.S. 668, 687 (1984)

. B ut “ [t] he standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, the review is ‘doubly ’ so.” Richter , 562 U.S. at 105 ( quoting Knowles v. Mirzayance , 556 U.S. 111, 123 (2009) ). We are “not authorized to grant7

habeas corpus relief simply because we disagree with the state court ’ s decision or because we would have reached a different result if left to our own devices.” Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (citing Matteo v. Superintendent, SC I Albion, 171 F.3d 877, 88 8 (3d Cir. 1999)). On remand from the Pennsylvania Supreme Court, the Superior Court considered whether Slaughter could establish that his trial counsel caused him actual prejudice when counsel failed to properly object to the substitution of the alternate juror. Slaughter , 2016 WL 298642, at *6

– 7

. The court held Slaughter did not show that the alternate

— or any other

— juror was exposed to any outside influence. Id. at *7

. Instead, Slaughter proffered “mere speculation,” which cannot establish actual prejudice. Id. ; see Strickl and , 466 U.S. at 694 (a petitioner must establish “a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different” ). We hold the Superior Court’s decision was not un reasonable because Slaught er failed to show that any jurors had been exposed to outside influence or that the deliberations were otherwise tainted by the belated substitution

. Instead, he assumed prejudice by the mere fact that the recomposed jury reached a verdict after the original jury deadlocked on some issues. T his a ssumption ignores that the recomposed jury deadlocked, just like the original jury, before ultimately return ing its guilty verdict . It also ignores the possibility that the or iginal jury, if given more time, likewise may have reached the same verdict after the impasse

. For these reasons, we conclude that Slaughter’s first argument is unavailing

.8 B Next, we address Slaughter’s ineffective assistance of appellate counsel claim. W e will deny relief because, as his counsel conceded at argument , Slaughter did not fairly present his claim to the state courts. See Picard v. Connor , 404 U.S. 270, 275 (1971)

.

“ A petitioner can ‘ fairly present ’ his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of f acts that is well within the mainstream of constitutional litigation. ” Nara v. Frank , 488 F.3d 187, 198 (3d Cir. 2007), as amended (June 12, 2007)

. Slaughter did not satisfy any of these requirements. It’s important to note that Slaughter did properly raise an ineffective assistance of appellate counsel claim in his Second Amended PCRA Petition in the Court of Common Pleas. There he claimed : “ Petitioner’s appellate counsel was ineffective for failing to raise on appeal t he issue of the Court’s refusal to accept or record the first jury’s verdict and the Court’s empaneling a new jury after the original one had begun deliberations.” App. 595 (emphasis added). He further alleged, “there could have been no rational, strategic or tactical reason for counsel to have failed to have raised the [ Saunders ] issue[] on appeal.” App. 602. By raising it properly in the Court of Common Pleas, we know Slaughter

— who was represented by counsel at the time

— understood this claim and how to pr esent it.9

But Slaughter’s claims changed in the Superior Court , where he mentioned appellate counsel only twice . In a point heading, he claimed: The Appellant was denied due process and effective assistance of counsel by both trial and appellate counsel w here there was a failure to object to and/or request that the jury’s partial verdict be recorded before the trial court terminated deliberations and seated the already dismissed alternate juror to begin new deliberations. App. 618 (initial brief), 636 (on remand). He then directed his argument entirely at trial counsel before making an other passing reference to appellate counsel: [T]he trial court’s post

- submission substitution of the alternate . . . violated the rule of law in Saunders . Counsel should hav e properly preserved this issue since it violated the Appellant’s right to a fair trial. If it was not for counsel’s ineffectiveness on the trial and appellate level , the Appellant would have been awarded a new trial. App. 620

– 21 (initial brief); App. 639 (on remand). According to our dissenting colleague, these two passing references to appellate counsel suffice for Slaughter to have asserted his claim “ in terms so particular as to call to mind a specific right protected by the Constitution ,” or to have alleged “ a pattern of facts that is well within the mainstream of constitutional litigation. ” Nara , 488 F.3d at 198 ; see Diss. Op. 4

– 5. We disagree.
For starters , the single reference to appellate counsel in the point heading cannot constitute fair presentation because the claim articulated there is cognizable only against trial counsel. It would have been a magical feat indeed had a ppellate counsel “object[ed]”

o r “request[ed] that the jury’s partial verdict be recorded before the trial court terminated deliberations and seated the already dismissed alternate juror to begin new deliberations.” App. 618, 636. The logical impossibility of appellate counsel objecting at trial explains why Slaughter’s argument focused entirely on trial counsel. He began by stating : “The10

Appellant claims that trial counsel was ineffective for failing to object to the replacement of an already dismissed alternate juror after the juror ha d started deliberations.” App. 618. Then, a fter describing the events from trial and the relevant legal rules , Slaughter explained: “In the instant matter, [trial] counsel was ineffective for failing to properly object to and preserve th is issue [of impaneling the alternate after the deliberations had started] for appeal.” App. 619

– 20. A fter three pages devoted entirely to trial counsel’s ineffectiveness, Slaughter then claimed he would have been entitled to a new trial had it not been “ for counsel’s ineffectiveness on the trial and appellate level

. ” Because that reference to the “appellate level” was a non sequitur , it’s no surprise that Slaughter provided no factual or legal basis for a claim of ineffectiveness at the “appellate level.” Ap p. 621. For these reasons , Slaughter neither assert ed an ineffective assistance of appellate counsel claim “ in terms so particular as to call to mind a specific right protected by the Constitution ,” nor allege d “ a pattern of facts that is well within the mainstream of constitutional litigation. ” Nara , 488 F.3d at 198 ; see Diss. Op. 4

– 5. Instead, he articulated an ineffective assistance of trial counsel claim bookended by stray (and inapposite) references to appellate counse l. Bald and irrelevant references such as these two cannot pass for fair presentation. In light of the foregoing, Slaughter’s counsel predictably admitted that the claim of ineffective appellate counsel was not fairly presented in state court

. At the outset of oral argument, the Court asked whether the ineffective assistance of trial counsel claim was the only “live claim” on appeal . C ounsel readily agreed. Oral Argument 1:20

– 38.11

And w hen pressed about this concession that Slaughter did not fairly present the ineffective assistanc e of appellate counsel claim, counsel explained: “The concern that we had was that the argument really focused on trial counsel’s performance, although appellate counsel was mentioned in the heading.” See Oral Argument at 13:14

– 30

. Counsel was right to hav e this concern

. Although Slaughter mentioned appellate counsel, his claims were aimed at trial counsel alone

. 2 Slaughter ’s failure to preserve his claim of ineffective appellate counsel is not limited to the state court litigation. He also failed to pursue that claim in his federal habeas petition and the accompanying memorandum of law he filed pro se in the District
Court

. Repeating what his counsel filed in the Superior Court, Slaughter mentioned appellate counsel only in passing, claiming he was denied effective assistance of “both trial and appellate counsel where there was a failure to object to and / or request that the jury ’ s partia l verdict be recorded before the trial court terminated delibera tions and seated the already dismissed alternate juror to begin new deliberations. ” App. 43. Despite this

one - word reference to “appellate” counsel, Slaughter again presented no legal or factual basis for ineffective assistance of appellate counsel in his memorandum of law.

2 The dissent claims we are not bound by counsel’s concession. Diss. Op. 8

– 9. But the cases it cites in support of that position stand only for the proposition that courts are not bound by concessions on points of law. For example, the dissent relies on our opinion in United States v. Engler , 806 F.2d 425, 433 (3d Cir. 1986). In Engler , we noted merely that we were not bound by the government’s concession “that the absence of a scienter requirement in the felony provision of the Migratory Bird Treaty Act vio lates the due process clause.” 806 F.2d at 433. The concession by Slaughter’s counse l was markedly different because he effectively withdrew the ineffective assistance of appellate counsel claim. And we know of no authority allowing us to, sua sponte, resu scitate withdrawn claims.12

Finally, Slaughter failed to raise th is claim in his pro se motion for a certificate of appealability. See 28 U.S.C. § 2253(c)(2) and (3) (certificate may issue only on a substantial showing of denial of constitutional right and certifi cate shall indicate issue satisfying that requirement ) . He argued that trial counsel was ineffective for failing to properly object to the trial court’s Saunders violations, never once mentioning appellate counsel in relation to th at issue. Docket No. 18

- 2062, June 15, 2018 Motion for Certificate of Appealability , 10

– 13

. Although we construe pro se habeas petitions liberally, see, e.g. , Rainey v. Varner , 603 F.3d 189, 198 (3d Cir. 2010), we cannot relieve a petitioner of the requirement to “state the facts supporting each ground” for relief. Habeas Corpus Rule 2(c); see Mayle v. Felix , 545 U.S. 644, 649 (2005). And we will not create claims that a habeas petitioner did not pursue, particularly when he also failed to raise them in his motion for a certificate of appealability.

* * * For the reasons stated, w e will affirm the District Court ’s order denying Slaughter’s petition for writ of habeas corpus

.1

KRAUSE, Circuit Judge , dissent ing.
Because I would hold that Appellant Rondell Slaughter fairly presented a meritorious ineffective

- assistance

- of

- appellate counsel (IAAC) claim to the Pennsylvania courts, I respectfully dissent.
I. At the time of Slaughter’s trial in 2002, Pennsylvania Rule of Criminal Procedure 1108(a) provided that “[a]n alternate juror who does not replace a principal juror shall be discharged before the jury retires to consider its verdict.” Pa. R. Crim. P. 1108(a) (1980). Thus, an alternate juror could not be substituted for a principal juror after deliberations began. The Pennsylvania Superior Court

— whose decisions we take as authoritative on federal habeas review , Everett v. Beard , 290 F.3d 500, 511 (3d Cir. 2002)

— expl ained in Commonwealth v. Saunders , 686 A.2d 25 (Pa. Super. Ct. 1996) , that a violation of Rule 1108(a) was presumed prejudicial on direct appeal. Id. at 28. Only if a trial court took four specific steps, involving the questioning and instruction of both the alternate and primary jurors, would that presumption of prejudice be rebutted. Id. at 29. Rule 1108(a) was plainly violated at Slaughter’s trial. A fter the first day of deliberations, one of the jurors became sick and appeared unlikely to return. S laughter’s
counsel moved for a mistrial , but t he judge denied the motion and instead substituted an alternate juror. Slaughter’s counsel objected to that ruling and his objection was noted for the record. T he judge then re

- instructed the jurors but did n ot question them to the thorough extent described in Saunders as necessary to rebut the presumption of prejudice2

resulting from a violation of Rule 1108(a)

. Slaughter’s counsel did not object to the judge’s failure to colloquy the jurors

. The case was by all appearances a close one. The evidence against Slaughter consisted of testimony by a single eyewitness who was the admitted leader of a prostitution and drug

- dealing ring and had refused for several months to cooperate; physical evidence was found in the possession of Slaughter’s co - defendant but not, apparently, in Slaughter’s. The jury struggled with this evidence: B efore the juror substitution, the jury deadlocked; after the juror substitution, it did so again. Ultimately, t he reconstituted jury convicted Slaughter on all c harges , so Slaughter brought a direct appeal of his conviction. His appellate counsel did not raise a claim under Rule 1108(a) and Saunders , opting instead to challenge the sufficiency of the evidence, the length of the sentence, and the judge’s charge to the once

- deadlocked jury to continue deliberating . The se claims were rejected on direct review

. Slaughter proceeded to challenge his conviction under the Post

- Conviction Reform Act (PCRA). After his petition was denied in the Court of Common Pleas, th e Superior Court granted relief on Slaughter’s ineffective

- assistance

- of

- trial

- counsel (IATC) claim

. B ecause it granted relief, that court expressly declined to reach Slaughter’s other claims, including his IAAC claim

. After t he Supreme Court vacated and remanded for reconsideration of the IATC claim under the proper prejudice standard , the Superior Court reconsidered, and denied, Slaughter’s trial

- counsel ineffectiveness claim . It once again failed, this time without explanation, to reach any of Slaught er’s other claims.3

Slaughter then filed a timely pro se federal habeas petition , which was denied. W e granted a certificate of appealability (COA) on th re e questions: “(1) whether trial counsel was ineffective for failing to object to the trial court’s jury instruction in seating an alternate juror after the jury had started deliberations, see Commonwealth v. Saunders , 686 A.2d 25 (Pa. Super. Ct. 1996); and (2) whether appellate counsel was ineffective for failing to challenge the trial court’s (a) decision to seat an alternate juror after deliberations had begun, see Saunders , 686 A.2d at 27, and (b) jury instruction in seating the alternate juror, see id. at 29.” JA 31. And at our instruction, appointed counsel diligently briefed those issues.
II. The crux of my disagreement with the M ajority concern s whether Slaughter’s IAAC claim was fairly presented to the state courts. The M ajority concludes that Sl aughter did not fairly present this claim and therefore accepts Slaughter’s counsel’s perplexing concession at oral argument to that end . I respectfully disagree. Under a straightforward application of our fair

- presentation precedent, Slaughter’s claim w as properly before the state courts. The Commonwealth ’s contrary conclusion rests on inapposite case law dealing with forfeiture on direct appeal. And we are not compelled to accept Slaughter’s legally incorrect last

- minute concession. For those reasons , I would hold that Slaughter’s IAAC claim was fairly presented. 1

1 The M ajority examines Slaughter’s District Court briefing and his application to a motions panel of our Court for a C ertificate of Appealability and concludes that , because Slaughter allegedly failed to raise the IAAC claim in those submissions , we cannot now “ create claims that a habeas petitioner did not pursue

. ” Maj. Op. at 12. For4 A. The fair

- presentation requirement “merely requires a petitioner to give the state courts the opportunity to pass on the merits of a claim.” Velazquez v. Superintendent Fayette SCI , 937 F .3d 151, 160 (3d Cir. 2019) (internal quotation marks and citation omitted) . A petitioner fulfills this obligation “if he presented the same factual and legal basis for the claim to the state courts” as he presents to the federal courts. Nara v. Frank , 4 88 F.3d 187, 198 (3d Cir. 2007) (internal quotation marks and citation omitted ). In his briefing to the Pennsylvania Superior Court, 2 Slaughter presented the factual and legal basis for a conclusion that h is appellate counsel rendered constitutionally ineffective assistance. His point heading expressly referenced his IAAC claim: The Appellant was denied due process and effective assistance of counsel by both trial and appellate counsel where there was a failure to object to and/or request that the ju ry’s partial verdict be recorded before the trial court terminated deliberations and seated the already dismissed alternate juror to begin new deliberations.

the reasons I explain below, I disagree. But at this point, it would not be dispositive , even if Slaughter had not clearly raise d the IAAC claim at earlier stages of the federal habeas litigation . T his issue is before us now because our own motions panel granted a COA on the IAAC claim

— and if there are a ny prior instance s in which a merits panel of this Court reexamined the providence of a prior panel’s decision to grant a COA , they are exceedingly rare . Instituting such a practice would not only unnecessarily add to the burden of this Court’s merits panels but also undermine the reliance interests of litigants we instruct to brief such issues

.

2 The M ajority asserts that Slaughter’s earlier briefing in the Court of Common Pleas demonstrated that he “understood this [appellate

- counsel] claim and how to present it.” Maj. Op. at 8 . Even assuming that is true it is immaterial, for the fair

- prese ntation inquiry concerns what the reviewing court

—here, the Superior Court

— would have reasonably understood from Slaughter’s briefing, not what Slaughter did or did not understand about his own claim.5

JA 618 (emphasis added) (initial brief); JA 636 (emphasis added) (on remand). And in discussing this claim, he clearly explained the reason that appellate counsel erred

— i.e., failing to raise a claim of error of improper juror substitution under Saunders ’ elaboration of Rule 1108(a)

— and the conclusion that this error constituted ine ffective assistance on the part of his appellate counsel: [T]he trial court’s post

- submission substitution of the alternate . . . violated the rule of law in Saunders . Counsel should have properly preserved this issue since it violated the Appellant’s rig ht to a fair trial. If it was not for counsel’s ineffectiveness on the trial and appellate level , the Appellant would have been awarded a new trial. JA 620

– 21 (emphasis added) (initial brief); JA 639 (emphasis added) (on remand). Thus, Slaughter did all he needed to do: He notified the state courts of the legal nature of his claim

— ineffective assistance of appellate counsel

— and set forth the factual basis upon which that claim rested. The M ajority faults Slaughter for devoting his explanation of the err or to a description of what occurred at trial, which the M ajority perceives as direct ed “entirely to trial counsel’s ineffectiveness.” Maj. Op. at 10. But what else would Slaughter need to say? The basis for trial counsel’s alleged ineffectiveness

— the v iolation of Rule 1108(a)

— was the very same basis for appellate counsel’s alleged ineffectiveness. So Slaughter’s description of the trial court’s error and trial counsel’s failure to request a curative instruction after having properly objected to
the sub stitution, combined with the absence of this issue in Slaughter’s briefing on direct appeal, relay all that is necessary to explain what Slaughter meant when he referenced “counsel’s ineffectiveness on the trial and appellate level.” JA 620

– 21.6

And in an y event, having been confronted with the fact that the trial court in this case effected a plain violation of state law, the persistence of this error through the direct

appeal process in conjunction with Slaughter’s repeated references to appellate counse l’s ineffectiveness was enough to call to mind for any reasonable jurist “a pattern of facts that is well within the mainstream of constitutional litigation,” which suffices to fairly present a claim under our case law. Wilkerson v. Superintendent Fayette SCI , 871 F.3d 221, 229 (3d Cir. 2017). Indeed, Slaughter did more than that here; his “filings provided ample basis to pass on the merits of this claim,” and so his claim was fairly presented. Velazquez , 937 F.3d at 160.
B. In urging a contrary result, the Commonwealth contends that Slaughter’s clear mentions of appellate

- counsel ineffectiveness in his state

- court briefing “can hardly be
considered fair presentation when the argument section contains little or no explanation
as to how , on the petitioner ’s theory, any such violation occurred.” 3 Appellee’s Br. 51. This line of argument misapprehends the applicable standard. As explained above, Slaughter presented the “factual and legal basis” for his IAAC claim to the state courts and therefore fairly presented it under our precedent.
Nara , 488 F.3d at 198. The Commonwealth does not cite any relevant habeas case law to
cont ravene this conclusion and support its assertion that Slaughter’s IAAC claim was not

3 The Commonwealth’s procedural

- default argument is advanced as the Commonwealth ’s alternative theory as to why th e Superior Court failed to address the IAAC claim. Its primary theory is that the Superior Court considered the IAAC claim so frivolous it was not worth addressing

. See id.7

sufficiently developed . Rather, it invokes the principle set forth in two direct appeals, In re Wettach , 811 F.3d 99, 115 (3d Cir. 2016) , and United States v. Rawlins , 60 6 F.3d 73, 82 n.11 (3d Cir. 2010) , that we will not review a claim in our Court where a party “ fail[s] to develop [the] argument in [its] opening brief.” Wettach , 811 F.3d at 115; accord Rawlins , 606 F.3d at 82 n.11 (stating that the party “waived the iss ue by failing to develop it in the argument section of his brief”). Those cases are inapposite. It is true that we hold a claim forfeited if it is not developed in a party’s opening brief to our Court . Here, however, Slaughter’s opening
brief exhausti vely set forth his IAAC claim in eight pages of lucid argument. That is as far as the standard recited in Wettach

— that an argument in our Court must be stated and developed, or else it is forfeited

— reaches. Our s tandard for fair presentation is far less demanding: It does not even require that the petitioner expressly state his claim in his
state

- court briefing. See Wilkerson , 871 F.3d at 228

– 30. T he gravamen of the fair

presentation inquiry is simply whether the state courts had the opportunity to reach the claim, see Velazquez , 937 F.3d at 160

— not the quantum of “support for [the] position” or the presence of “substantive argument ” in the petition er’s state

- court briefing, see Wettach , 811 F.3d at 115. In any case, even if this more stringent standard were applicable

— which it plainly is not

— Slaughter not only expressly stated to the state
courts that he was making an IAAC claim but also set forth ample support for that claim in his state

- court briefing. So the Commonwealth ’s argument fails.8 C. The Ma jority also bases its rejection of the IAAC claim on Slaughter’s counsel’s startling concession at oral argument that the IAAC claim was not fairly p resented. Under the circumstances, I would not accept that concession. I begin by noting just how improvident the concession was. We granted a COA for the express purpose of addressing Slaughter’s IAAC claim. In Slaughter’s opening brief in this Court, the IAAC claim was the primary issue: It was discussed first and in the most depth , as Slaughter’s counsel persuasively contended that the IAAC claim was properly before us and was correct on its merits. In opposing this claim , th e Commonwealth ’s brief hardly touch ed on the fair

- presentation requirement: It contended primarily that the state courts neglected to address the IAAC claim because it was patently meritless and argued only in the alternative that they neglected to address the claim because it was not fairly presented. Th at argument ran two double

- spaced pages in

a nearly sixty

- page brief and, as explained above, was legally incorrect. Nonetheless, Slaughter’s arguing counsel

— a different attorney than the one who prepared his opening brief

— began his oral argument by conceding the IAAC claim on fair

- presentation grounds. We are not bound by that concession. As the Second Circuit recently explained, “It is well

- established that a court cannot properly determine a question of law on the basis of a party’s concession . . . . Indeed, a court retains the independent power to identify and apply the proper construction of governing law.” United States v. Castillo , 896 F.3d 141 , 149 (2nd Cir. 2018) (internal quotation marks and ci tations omitted) (citing9

Nat’l Aeronautics & Space Admin. v. Nelson , 562 U.S. 134, 163 n.* (2011) (Scalia and Thomas, JJ., concurring in the judgment ) (“We are not bound by a litigant’s concession on an issue of law.”) ) ; accord United States v. Perez

- Silva n , 861 F.3d 935, 938 n.2 (9th Cir. 2017); United States v. Hope , 545 F.3d 293, 295 (5th Cir. 2008); United States v.
Borrero

- Acevedo , 533 F.3d 11, 15 n.3 (1st Cir. 2008) . We have recognized the same principle

. See United States v. Engler , 806 F.2d 425, 433 (3d Cir. 1986)

. In this case, our duty to exercise our “independent power to identify and apply”
the law weighs most heavily

. Castillo , 896 F.3d at 149. We confront what is unmistakably a question of law. Before counsel’s concession, w e granted Slaughter a COA to consider the IAAC claim and th at claim was fully briefed to us . And while counsel stated at oral argument that he decided to “focus on the IATC claim, not the IAAC claim,” Oral Argument at 1:40, because of “concerns about fair presentation with the [IAAC] claim,” id. at 3:25, he also stated that he would “be grateful if the court felt it could reach [the IAAC claim] on this record,” id. at 12:50. Counsel thus conceded that , in his view, the IAAC claim had not been fairly presented

— but also expressly invited us to analyze it if we disagreed with his legal analysis

. We can do so because, a s even the Majority agrees, “courts are not bound by concessions on points of law.” Maj. Op. at 11
n.2 . And u nder the circumstances of this case, that is our duty

. 4 S ee Castillo , 896 F.3d at

4 Because w hether a claim was fairly presented is a legal question and because the Majority agrees that we are not bound by concessions on points of law, Maj. Op. at 11 n.2, it should also agree that the fair presentation issue is one we must independently address. Instead, t he M ajority circumvent s this logic by asserting that counsel’s concession “effectively ” withdrew the IAAC claim in its entirety. Id. But the effect is of10

149

. I therefore would accept counsel’s invitation to reject his concession, would consider the fair

- presentation issue and, as I have explained, would resolve it in Slaughter’s favor

. III.
Because I conclude that the IAAC claim was fairly presented, I would consider its merits , and because the state courts failed entirely to address that claim, we do not apply
AEDPA deference but instead review it de novo

. S ee Simmons v. Beard , 590 F.3d 223, 231 (3d Cir. 2009)

. A petitioner is entitled to relief on an ineffective

- assistance

- of

appellate

- counsel claim where appellate counsel performs unreasonably and the petitioner is prejudiced as a result. See Smith v. Robbins , 528 U.S. 259, 288 (2000)

. Both prongs of this tes t were met here. Slaughter’s appellate counsel performed unreasonably. Appellate counsel’s performance is objectively unreasonable “when ignored issues are clearly stronger than those presented.” Id. ( internal quotation marks and citation omitted ). Here , Slaughter’s counsel presented three claims: excessive sentence , coercion of the jury by charging them to continue deliberating after initial deadlock , and sufficiency of the evidence. See JA 570

– 72. These claims were easily rejected by the Superior Cou rt. See i d. The claim of improper juror substitution was “clearly stronger.” Robbins , 528
U.S. at 288. Under Rule 1108(a) , Slaughter’s trial judge was forbidden from substituting the alternate juror , and under Saunders , that error was presumptively prej udicial unless

our own making: T he record of oral argument makes clear that is not what happened here.11

the judge extensively questioned the jurors, which he failed to do

. See 686 A.2d at 2 8

– 29. Thus, the Saunders claim would have resulted in a new trial. Id. at 29. The Commonwealth ’s only response to this straightforward reasoning is that the juror

- substitution claim was not preserved at trial and that appellate counsel therefore did
not err in declining to raise it. The Commonwe alt h contends that because Slaughter’s
trial counsel did not object to the trial court’s instructions to the reconstituted jury , his appellate counsel could not have argued on appeal that the juror substitution was improper

. But that contention misapprehends squarely applicable Pennsylvania law: “[W] hen an object ion is overruled, failing to request curative instructions or a mistrial does not result in waiver .” Commonwealth v. McGeth , 622 A.2d 940, 943 (Pa. Super. Ct. 1993). Thus, any objection ( or lack thereof ) to the jury instructions was irrelevant to
preserv ation of the error in seating the alternate juror

— which Slaughter’s trial counsel unequivocally objected to and therefore preserved

. For that reason, Slaughter’s appellate counsel performed deficiently in failing to raise the juror

- substitution issue. Tha t error prejudiced Slaughter . Prejudice results from ineffective appellate assistance where there is “a reasonable probability that, but for his counsel’s unreasonable failure to [identify the issue], he would have prevailed on his appeal.” Robbins , 528 U.S. at 28 5

. H ere, h ad Slaughter’s counsel raised the Saunders claim on appeal, Slaughter unquestionably “would have prevailed” because the trial court violated Rule 1108(a) and failed to colloquy the jurors as required to rebut the resulting presumption of prejudice. See Saunders , 686 A.2d at 2 9. Slaughter’s appellate counsel’s
failure to raise such a claim therefore cost him a new trial

.12 IV.
Because Slaughter fairly presented his IAAC claim and it succeeds on the merits, I would reverse the judgment of the District Court and remand for the petition to be granted . I express no opinion on whether Slaughter may be able to seek belated relief through the narrow but extant avenues for bringing successive habeas claims under state or federal law. See Common w ealth v. Parish , 224 A.3d 682 , 702 (Pa. 2020) (allowing filing of second PCRA petition where first counsel’s “ performance [wa]s so deficient that it ha [d] entirely denied the post

- conviction petitioner the right to appeal ”); 28 U.S.C. § 2244(b)(2) (allowing filing of s econd federal habeas petition in certain cases involving newly discovered evidence). If they are not, then this case will represent a dee ply unfortunate

— and, I hope, rare

— instance of attorney errors costing a defendant a clearly
meritorious claim. Given these reservations, I respectfully dissent

.