PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 1 4

- 2655

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TERRY BROWN, a/k/a ANTONIO LAMBERT

v.

SUPERINTENDENT GREENE SCI; DISTRICT ATTORNEY PHILADELPHIA; ATTORNEY GENERAL PENNSYLVANIA

Terr y Brown, Appellant

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Appeal from the United States District Court for the Eas tern District of Pennsylvania (D.C. Civi l Action No. 2

- 09

- c v

- 0 3970 ) District Judge: Honorable C. Darnell Jones, II

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Argued June 16, 2016

Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges

(Opinion filed : August 22, 2016 )2 Leigh M. Sk ipper Chief Federal Defender Brett G. Sweitzer Assistant Federal Defender, Chief of Appeals Arianna J. Freeman (Argued) Assistant Federal Defender Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106

Counsel for Appellant

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

Counsel for Appellees3 ________________

OPINION THE COURT

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AMBRO, Circuit Judge

This case has a familiar cast of characters: two co

defendants, a confession, and a jury. And, for the most part , it follows a conventional storyline. In the opening chapter, one of the defendants (Miguel Garcia) in a murder case gives a confession to the police that, in addition to being self

incriminating, says that the other defendant ( Antonio Lambert 1 ) pulled th e trigger

. When Lambert and Garcia are jointly tried in Pennsylvania state court

, the latter declines to

te stify, thereby depriving the former of the ability to cross

examine him about the confession. T he judge therefore redacts the confession in an effort to comply with Bruton v. United States , 391 U.S. 123 (1968). As a result, when the jury hears Garcia’s confession, Lambert ’s name is replaced with terms like “the other guy .” Th e idea is that the inability to

cross

- examine Garcia is harmless if the jury h as no reason to think that the confession implicates Lambert

. During closing arguments , however, there is a twist when the prosecutor unmasks Lambert and reveals to the jurors that he has been, all along, “the other guy

. ” Now, instead of a conclusion, we have a sequel. Based on a Sixth Amendment violation caused by the closing arguments

, we conclude that Lambert is entitled to relief. We therefore

1 In the District Court, Lambert used the name Terry Brown. However, at the time of the crime he went by Lambert, and he uses that name in our Court.4 remand so that the District Court can give Pennsylvania (the “Commonwealth”) the option either to retry or re lease him.

I. Background

A. The crime

Mary Edmo nd 2 was shot near a gas station in N orth Philadelphia on February 23 , 2001, and she died later that day from her injuries. The police believed that Lambert pulled the trigger as part of a robbery gone wron g. Earlier in the day, Garcia and his friend Anthony Cheatham had been driving around Philadelphia and smok ing marijuana in Garcia’s Monte Carlo. With Garcia at the wheel, the pair picked up Lambert, and together the three of them drove to North Philadelph ia to buy Xanax pills. Afterward, they drove past th e gas station, and Lambert told Garcia to pull over. F rom that point onward, two competing narratives emerge. One comes from a statement that Cheatham gave the police after the shooting coupled with his t estimony at trial. The second is from Garcia’s statement to the police, which is at the core of this appeal. We e xamine each of the narratives in turn.

Cheatham’s version is that he fell asleep in the car after taking a Xanax pill. When the trio reached the gas station, he was “[l]aid back, stretched out” in the back seat. Lambert and Garcia got out of the car, and although Cheatham could not see them, he heard a gunshot. When Lambert and Garcia returned to the car, the latter asked, “What the fuck did yo u just do?” Lambert then pointed a gun at Garcia and ordered him to drive away. Afterward, Lambert and Garcia dropped Cheatham off at a friend’s house. D etectives found Cheatham the next morning at his

2 The victim’s last name is spelled both “Edmond” and “Edmund” in the record.5 gr andmother’s house, and he went with them to police h eadquarters, where he was threatened with charges if he did

not cooperate . He gave a statement at that time and later testified at the joint trial of Lambert and Garcia. He was not charged in connection with Edmo nd’s death.

Garcia, meanwhile, had a differ ent story, which he outlined in a confession 3 to the police. In his version, he stayed i n the car while Lambert and Cheatham got out and approached the victim. Garcia saw a “tussle” and witnessed the “lady

. . . backing up holding her purse.” He continued, “She yanked back, she resisted and I heard a gunshot.” When the two companions got back in the car, Lambert said that he had “banged the bitch” because she “wouldn’t give up her pocketbook.” This was a preview of Garcia’s defense at trial, which was that he was merely a bystander to the crime.

Whereas Cheatham’s account cut off shortly after the shootin g, when he got to his friend’s house , Garcia’s version described additional events. After dropping off Cheatham, Lambert went with Garcia to the latter’s house. Lambert pulled out the gun and told Garcia that “you better not ever cross me or snitch on me because you know what the deal is.” Garcia understood this to mean that Lambert would kill him.

After seeing the gun, Garcia’s mother asked them to leave . They drove away, and in the early hours of February 24 the two of them , along with another passenger (not

3 Following the lead of the Pennsylvania Supreme Court, we style Garcia’s statement a “confession.” The statement was self

- incriminating because it established his prese nce at the scene of the crime. We note, however, that it is not a typical confession in that Garcia, as discussed below, intended it to be exculpatory.6 Cheatham), wer e pulled over . Garcia was driving and attempted to flee, but the car crashed . According to Garcia, Lambert threw him the gun and tried to escape on foot

. Garcia, now holding the weapon , attempted to do the same. Shortly afterward, officers apprehended both of them.

B. The trial

The Commonwealth charged Lambert and Garcia with murder (first degree for the former and second degree for th e latter), conspiracy, robbery, and possession of an instrument of crime. It sought a joint trial in state court for the two defendants, and Lambert responded with a motion to sever ( i.e. , to have a separate trial for each defendant)

. At the time, it was c lear that t he Commonwealth intended to use Garcia’s confession and that the latter was planning to invoke his Fifth Amendment rights by not testifying at trial. Lambert’s counsel argued that the combined effect

— t he introduction of the confession without an y ability to cross

- examine Garcia

— violated the Sixth Amendment’s Confrontation Clause.

The trial judge agreed that the Commonwealth could not, under those circumstances, introduce a full version of Garcia’s confession without violating the Confrontation Clause

. As discussed in Part III below, that would have been a classic violation of the Supreme Court’s Bruton decision. However, relying on other Supreme Court decisions interpreting Bruton

, the judge determined that the confession could be redacted in a way that satisfied the Sixth Amendment , thereby negating the need for separate trials. Under Bruton , it is proper for the jury to consider the confession against Garcia; it only becomes problematic to use it against Lambert. If the confession were redacted so that the jury did not know it implicated Lambert, the judge reasoned, the risk of improper use could be contained. On that basis, the judge denied the motion to sever.7 With severance off t he table, the parties discussed h ow to implement the redaction s. They ultimately settled on using terms such as “the other guy ,” “one of the guys,” or “the guy with the gun” to replace Lambert’s name in the confession

. 4 At trial, a detective read to the jury the redacted confession

, which took the form of questions p osed to Garcia and his

answers

. Before the reading, the judge instruct ed the jurors that the confession “may be considered as evidence only against [Garcia]” and that they “must not consider the statement as evidence against defendant Antonio Lambert.” The following is, for our purposes, the key portion of what the jury heard

. The italicized phrases are replacements for Lambert’s name.

Q: What happened next?

A: They got in the car and I said what the fuck happened. One of the guys said I banged the bitch .

. . . She wouldn’t give up her pocketbook or nothing, so I banged her.

. . . I told the first

guy what the fuck, you didn’t tell me you had a burner.

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after he shot the lady. After he shot the lady we went to my house and we went inside. He pulled it

out in the kitchen. I told him to put it away because my peoples was [sic] there. My mom

4 Cheatham’s name was also replaced with generic identifiers.8 told me to get the guy out of her house. We left
my hou se and drove down North Philly.

The disparities between the statements of Cheatham and Garcia proved to be a delicate needle for the Commonwealth to thread. It encouraged the jury to believe Cheatham’s statement in its entirety and to credit all of Garci a’s story except for the part where he remained in the car during the shooting while the other two got out

. During closing arguments, when the prosecutor was attempting to discredit Garcia’s insistence that he did not get out of the car with Lambert, she m ade the following statement:

If Garcia had not been part of what happened, how easy would it have been for him to drop Lambert off, go home, tell his mother what happened, pick up the phone and call the police and say I was just with a guy who shot and kil led somebody? He doesn’t do that. What does he do [sic] is this, he takes Lambert to his house. They’re at his house and he says the guy I’m with brings the gun into my house and I tell him put it away because my people are there.

Defense counsel, believi ng that this statement had effectively nullified one of the redactions and unmasked Lambert as the person who accompanied Garcia home after the shooting and pulled out the murder weapon , immediately requested a sidebar, but the judge permitted closing
argu ments to continue. After the prosecutor finished, defense counsel moved for a mistrial, explaining:

The reason for [ the ] mistrial is Your Honor will recall that the Court and c ounsel went through painstaking efforts to properly redact Mr. Garcia’s statemen t and one of the first thing s9 [the prosecutor] did is whip it out and read from it and tell the jury that Mr. Garcia took Mr. Lambert back to his hou se with the gun and read the entire portion of that statement implicating Mr. Lambert as the other guy. In fact, [she] told the jury that Mr. Lambert was the other guy.

The judge denied the moti on. Having lost his request for a mistrial , defense counsel followed up by asking the judge to instruct the jury to disregard the unmasking

, but he later abandoned the r equest after deciding that rehashing the incident might reinforce in the jurors’ minds the idea that Lambert was the other guy. 5

Before sending th e jury to deliberate, the judge reiterated the instruction given before the redacted confession was read int o evidence: that it could only be used against Garcia and must not be considered as evidence against Lambert

. Per defense counsel’s request, the judge did so without calling attention to the slip

- up during closing

5 The statement about Lambert going home with Garcia and brandishing the gun was not the only time the prosecutor used the confession against Lambert during closing arguments . At another point, she said: “It’s an old ugly gun, but it worked. It killed Mary Edmond. It did just what Antonio Lamber t wanted it to do. He managed to shoot her. Why? Because she didn’t give up her pocketbook. She resisted it. And that’s exactly what Mr. Garcia said in his statement.” As discussed below, however, this second instance has not been a focus of the post

- trial litigation. As such, unless otherwise noted, all references to comments by the prosecutor during closing arguments pertain to the remarks about Lambert accompanying Garcia home and pulling out the weapon.10 arguments. During deliberations, the juror s asked for a copy of Garcia’s confession

. Ins tead of giving it to them , the judge had the court reporter read the re dacted version . Ultimately, the jury convicted Lambert on all counts. Meanwhile, it found Garcia guilty of all charges except the weapon

- re lated count.

C. Post

- trial proceedings

Lambert appealed his conviction to the Pennsylvania Superior Court. He argued that the trial judge erred by denying the motion to sever and that, even if a joint trial were proper, the comments in the closing argume nt s constituted prosecutorial misconduct and deprived him of his Confrontation Clause rights. A p anel of the Court unanimously agreed with both arguments and ordered a new trial. The Commonwealth appealed to the Pennsylvania Supreme Court, which re versed t he Superior Court by a 3

- 2

vote.

In the Pennsylvania Supreme Court’s decision, the majority rejected the argument that the trial judge was required to grant Lambert’s motion to sever . It wrote that the redactions obviated the need for separate trials bec ause Garcia’s confession “ as redacted did not identify [Lambert], or his role, at all.” Commonwealth v. Brown , 925 A.2d 147, 163 (Pa. 2007). On that basis, it determined that the jury should be pr esumed to have obeyed the judge’s instruction s to use the co nfession as evidence only against Garcia.

Similarly, the majority disagreed with the Superior Court’s conclusion that the prosecutor’s comments during closing arguments made a new trial necessary . It agreed with Lambert that “[t] here is no point in reda cting and sanitizing otherwise inculpatory statements of a non

- testifying co

defendant, to facilitate a joint trial, if that protective measure approved by the [U.S. Supreme] Court to comport with the11 Confrontation Clause could be deliberately and directly undone by lawyer commentary.” Id. at 159. And the majority stressed that it did “not condone the prosecutor’s misstatement.” Id. at 160. However, it relied on the U.S. Supreme Court’s decision in Frazier v. Cupp , 394 U.S. 731 (1969), to conclude that the trial judge’s instructions about how the confession could (and could not be) used were sufficient and that a new trial was not necessary. We discuss Frazier , as well as the majority’s reliance on it, in detail in Parts III and IV of this opinion.

In a di ssent joined by then

- Chief Justice Cappy, Justice Baer wrote that the comments during closing arguments violated the Confrontation Clause and that the jury should be considered incapable of following the instruction s not to use the confession against Lambe rt . He wrote that a “defendant is . . . deprived of his rights under the Confrontation Clause if an otherwise effective redacti on is corrupted by a prosecutor’ s comment [s] .” Brown , 925 A.2d at 164 (Baer, J., dissenting). He noted that under Bruton Lambert would have gotten a new trial (and the limiting instructions would have been considered inadequate) if Garcia’s confession had been read to the jury without redactions. Justice Baer concluded that it would be anomalous to reach a different result when a
pr osecutor undoes a redaction by revealing the identity of the person whose name was removed. He admonished that “ this Court should not admit a violation of the fundamental right of confrontation and cross

- examination by means of a back

- door revelation, when Bruton so carefully guards the front door. ” Id. at 166.

After unsuccessfully seeking relief under Pennsylvania’s Post Conviction Relief Act, Lambert filed a

pro se federal habeas petition in the District Court unde r 28 U.S.C. § 2254

. He raised the seve rance and prosecutorial misconduct arguments rejected by the Pennsylvania Supreme12 Court, as well as a second prosecutorial misconduct claim and certain claims of ineffective assistance of counsel

. The Court denied the petition. It rejected the arguments no t presented to the Pennsylvania Supreme Court (ineffectiveness of counsel and the second claim of prosecutorial misconduct) on procedural grounds. Meanwhile, it denied relief on the merits

on the two issues

— severance and the first prosecutorial misconduct claim

— considered by the Pennsylvania Supreme Court. We granted a certificate of appeal ability as to these two claims and appointed counsel to represent Lambert.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 2254, and we have appellat e jurisdiction per 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over the District Court’s legal conclusions. Werts v. Vaughn , 228 F.3d 178, 191 (3d Cir. 2000).

Like that Court, our task is to review a state court decis ion. As such, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) also bears on our analysis. Under AEDPA’s deferential standard of review, if a claim was “adjudicated on the merits in State court proceedings,”

we can grant relief only if t he state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States

, ” or “ w as based on an unreasonable determination of the facts in lig ht of the evi dence presented” in state court. 28 U.S.C. § 2254(d). The decision that gets AEDPA deference is the “last reasoned [one] of the state courts on the petitioner’s claim s .” Simmons v. Beard , 590 F.3d 223, 231

– 32 (3d Cir. 2009) (internal quotation marks omitte d) . Here that is the Pennsylvania Supreme Court’s reversal of the Superior Court’s judgment

. Because no facts are in dispute, the Pennsylvania Supreme13 Court’s decision must stand unless it was “ contrary to ” or an “unreasonable application of ” clearly estab lished federal law

. We can grant relief under the “contrary to” standard only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Sup reme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000)

. Meanwhile, a decision from a state court “is an unreasonable application of [the Supreme Court’s] clearly established precedent if it correctly i dentifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner’s case.” White v. Woodall , 134 S. Ct. 1697, 1706 (2014). In thi s context, an “unreasonable application

. . . must be objectively unreasonable, not m erely wrong; even clear error will not suffice.” Id. at 1702 (internal quotation marks omitted).

Additionally, a state court applying Supreme Court

cases has no o bligation to extend their rationales

. Id. at 1706. At the same time, “AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.” Panetti v. Quarterman , 551 U.S. 930, 953 (2007) (internal quotation marks omitted). Rather, “state courts must reasonably apply the rules squa rely established by [the Supreme] Court’s holdings to the facts of each case.” W

hite , 134 S. Ct. at 1706 (internal quotation marks omitted). In determining whether they have done so, we are guided by the specificity of the Supreme Court rule they are apply ing. Under that metric, the “more general the rule, the more leeway [state] courts have in reaching outcomes in case

- by

- case determinations.” Yarborough v. Alvarado , 541 U.S. 652, 664 (2004).

Even if we conclude that a state court decision is improper un der these standards , we must also examine14 whether the error was harmless. An error

- infected state court conviction can stand on habeas review if the mistake did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” B ond v. Beard , 539 F.3d 256, 276 (3d Cir. 2008) (quoting Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)) (internal quotation marks omitted). Because the Pennsylvania Supreme Court denied relief on the merits without addressing harmlessness, there is no ruli ng on that subject to which we must defer. As a result, our harmlessness review is plenary. See Davis v. Ayala , 135 S. Ct. 2187, 2198 (2015); Fry v. Pliler , 551 U.S. 112, 121

– 22 (2007).

III

. Bruton and Its Progeny

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. And a “major reason underlying [this] rule is to give a defendant charged with [a] crime an opportunity to cross

- examine the witnesses against him.” Pointer v. T

exas , 380 U.S. 400, 406

– 07 (1965)

. Occasionally, however, the right to cross

- examine runs headlong into another constitutional right: the Fifth Amendment’s protection against self

- incrimination. See U.S. Const. amend. V (providing that “[n]o person . . . s hall be compelled in any criminal case to be a witness against himself”). 6 A classic example is our situation here. The Sixth Amendment gives Lambert the right to cross

- examine Garcia about his confession, but the Fifth Amendment allows Garcia to refuse

to take the stand. The Supreme Court has dealt with different

6 The Confrontation Clause and the privilege agai nst self

incrimination both apply to proceedings in state courts. See Cr uz v. New York , 481 U.S. 186, 189 (1987) (Confrontation Clause); Malloy v. Hogan , 378 U.S. 1, 6 (1964) (self

incrimination).15 variations on this theme , and four of its decisions

— Bruton ; Frazier ; Richardson v. Marsh , 481 U.S. 200 (1987); and Gray v. Maryland , 523 U.S. 185 (1998)

— guide our analysis. We discuss each in turn

.

In Bruton , two defendants (Evans and Bruton) were tried together for an armed postal robbery. Evans, who had given a confession that also implicate d Bruton, opted not to take the stand , but the jury heard his confession in full, unredacted form through a postal inspector’s testimony

. The trial judge instructed the jury that the confession could be used against Evans but not against Bruton. The Supreme Court held that the reading of the confession was a Confrontation Clause violation and that limiting in structions were incapable of curing it. 391 U.S. at 135

– 36.

It based its conclusion on the cognitive dissonance that results from asking jur ors to consider a confession only against one defendant. It wrote that “ there are some contexts in which the risk t hat the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135. It continued:

Such a context is presen ted here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side

- by

- side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defenda nt but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame16 onto others. The unreliability of such evidenc e is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross

- examination. It was against such threats to a fair trial that the Confrontation Clause was directed.

Id. at 135

– 36 (footnote omitted).

The ne xt year, the Court decided Frazier , which involved two cousins (Frazier and Rawls) who were jointly indicted. Rawls pled guilty and gave a confession that also incriminated Frazier

, who elected to proceed to trial . Though Frazier’s lawyer told the prosecut or that Rawls intended to invoke the Fifth Amendment if called, the prosecutor believed he would cooperate and previewed his expected testimony to the jury. That “summary [of the expected testimony] was not emphasized in any particular way,” and it “took o nly a few minutes to recite.” 394 U.S. at 733. After Rawls eventually asserted the Fifth Amendment, Frazier argued that there was a Bruton violation because the substance of the incriminating statement had been put in front of the jury without an opportuni ty for cross

- examination. The Court disagreed and concluded that, unlike in Bruton , limiting instructions “were suffi cient to protect [Frazier’s] constitutional rights.” Id. at 735. Importantly, at no point during the trial was the jury read Rawls’ confess ion . Rather, it only heard the outline of what Rawls was expected to say if he testified.

In rejecting Frazier’s argument, the Court highlighted four differences between that case and the typical Bruton scenario . First, the jur y was exposed to a paraphra sed version of Rawls’ account rather than a verbatim confession

. Id. Second, the account was introduced during opening statements rather than through witness testimony. Id. Third, only one defendant was on trial, so the “jury was not being17 asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial.” Id. And finally, “Rawls’ statement was not a vitally important part of the prosecution’s case.” Id.

The Court noted that it is common for a party not to be able to produce all the evidence promised in an opening statement and that “[c]ertainly not every variance between the advance description and the actual presentati on constitutes reversible error

. . . when a proper limiting instructi on has been given.” Id. at 736. Howe ver, it “ may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable.” Id.

Next up is Richardson

. At a joint trial for co

defendants Marsh and Williams, the prosecution introduced the latter’s confession. Williams did not testify, and the judge instructed the jury not to use his confession against Marsh. Th e confession recounted, among other things, an incriminat ing conversation that took place in a car carrying Marsh, Williams, and Martin (who was charged alongside the other two but was a fugitive at the time of trial). Unlike in Bruton , however, the confession was redacted before being read to the jury. The reda ctions did not, as did ours, merely replace the other defendant’s nam e with generic terms. Rather, the confession “was redacted to omit all reference” to Marsh or her role in the crime. 481 U.S. at 203. Thus, the version that the jury heard placed Martin a nd Williams in the

car but did not mention a third person being there.

The potential problem arose when Marsh took the stand and testified that she was in the car with Martin and Williams

. Her argument was that, although Williams’ redacted confession di d not implicate her on its own, the combination of the confession (which described an18 incriminating conversation in the car) and her testimony (which put her in the car) created an intolerab le risk that the jur y would be unable to follow the limiting instr uction. In other words, the concern was that the jury impermissibly would use the confession against her by determining that she heard the conversation.

The Court rejected this argument, concluding that when a “confession [is] not incriminating on its fa ce” toward

a co

- defendant and “bec[omes] so only when linked with evidence introduced later at trial,” it is “a less valid generalization that the jury will not likely obey the [limiting] instruction.” Id. at 208. As a result , it is presumed able to consid er the confess ion to determine the speaker’s

, but not the co

- defendant’s

, guilt. The Court summarized its holding as follows: “[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting in struction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Id. at 211.

That hol ding, however, did not end the case . That is because, during closing arguments, the prosecuto r encouraged the jury to do precisely what Marsh f eared would happen and what the limiting instruction was meant to avoid

— to assume, based on the combination of the confession and her testimony, that she heard the incriminating conversation. The Court desc ribed this as seeking “to undo the effect of the limiting instruction” and called it an “error.” Id. Because Marsh’s lawyer did not obje ct to the prosecutor’s comments

, the Court remanded f

or a determination of whether they nonetheless could serve as a bas is for relief. Id.

The final piece of the puzzle is Gray , which falls somewhere between Bruton and Richardson

. As in Richardson and unlike in Bruton , the confession was19 redacted. But whereas the redactions in Richardson removed all reference to the co

- def endant’s existence, the co

defendant’s name in Gray merely was replaced with a blank space or the word “deleted.” For instance, the jury heard that “Me, deleted, deleted, and a few other guys” co mmitted a crime. 523 U.S. at 196 . The Court held that, when a name is replaced “with an obvious indication of deletion,” Bruton applies and no limiting instructions can be sufficient. Id. at 192

.
It noted that, as in Richardson , the jury would need to make inferences for the confession to become incriminating (in Richardson by linking the con fession to testimony and in Gray by divining the identity of the blanked

- out name). However, it concluded that “inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outs ide Bruton ’ s scope confessions that use shortened first names, nicknames, descriptions as unique as the ‘ red

- haired, bea rded, one

- eyed man

- with

- a

- limp,’ and perhaps even full names of defendants who are always known by a nickname. ” Id. at 195 (citation omi tted)

. Maintaining that its approach was not overly burdensome, the Court implied that it might have been permissible to replace “Me, deleted, deleted, and a fe w other guys” (the example from above) with “Me and a few other guys,” thereby making the infere nce less obvious. Id. at 196.

In sum, there are some cases ( Bruton and Gray ) where no limiting instruction can cure the harm that comes from the jury’s exposure to an incriminating confession. Meanwhile, in other situations ( Frazier and Richardson ) we c an assume that the jury is capable of following instructions. We must now consider on which side of the line our case falls.20 IV. The Bruton Violation in Lambert’s Trial

Lambert has two arguments for why his trial violated Bruton . First, he contends that it and its progeny required severance of his tr ial from Garcia’s. He claims this is a straightforward application of our Bruton

- based decisions in Vazquez v. Wilson , 550 F.3d 270 (3d Cir. 2008); Eley v. Erickson , 712 F.3d 837 (3d Cir. 2013); and Washington v. Sec’ y Pa. Dep’t of Corr. , 801 F.3d 160 (3d Cir. 2015). Next, he asserts that, even assuming a joint trial was permissible, a Bruton violation occurred during closing arguments because of the prosecutor’s comments. He labels this a prosecutorial miscond uct claim. 7 We agree with this second argument and conclude, without deciding whether the denial of the severance request was proper, that the comments during closing arguments violated Bruton

.

7 At the outset of this appeal , there appeared to be disag reement about whether this claim is properly before us.

“ Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999). To ensure that state courts have this opportunity, the petitioner’s claims must be “fairly presented” to them. Picard v. Connor , 404 U.S. 270, 275 (1971). This means that the petitioner must put before the state court s the “substantial equivalent” of the claims pursued in federal court. Id. at 278. In his brief, Lambert, in addition to arguing that the prosecutor’ s
comments violated Bruton , also invoked the Supreme Court’s standards for prosecutorial misconduct from Donnelly v. DeChristoforo , 416 U.S. 637 (1974), and Darden v.21 We start from the undisputed premise, stated by the Pennsyl vania Supreme Court, that “[t] here is no point in redacting and sanitizing otherwise inculpatory statements of a

non

- testifying co

- defendant, to facilitate a joint trial, if that protective measure approved by the [U.S. Supreme] Court to comport with the C onfrontation Clause could be deliberately and directly undone by lawyer commentary.” Brown , 925 A.2d at 159. Indeed, the Pennsylvania Supreme Court conceded that, under the right circumstances, there could be a Bruton violation based on an “argument by cou nsel concerning Bruton

- redacted evidence.” Id. at 160. As an example, it imagined a scenario where a prosecutor tells the jury: “You heard the co

- defendant’s confession, which also described the actions of someone he identified only as ‘the other guy;’ wel l, I’m here to tell you that ‘the other guy’ he was speaking of was the defendant and we just changed the wording of the statement.” Id. at 159 (internal quotation marks omitted).

The Pennsylvania Supreme Court is correct, of course, that those circumsta nces would violate Bruton

. Were it

Wainwright , 477 U.S. 168 (1986). Those cases held that improper comments by prosecutors r esult in constitutional error when they “so infect [ ] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden , 477 U.S. at 181 (quoting Donnelly , 416 U.S. at 643) (internal quotation marks omitted). The Commonwealth

co rrectly notes that Lambert did not present an argument base d on this standard to the state courts. However, as discussed below, we resolve this claim based only on Bruton and its progeny. Because the Commonwealth agreed at oral argument that a Bruton

- based attack on the prosecutor’s comments was in front of the state courts, the fair presentation requirement does not create any obstacles here.22 otherwise, Bruton would mean little . There would be no point in redacting confessions only to have the identities of the co

defendants blatantly unmasked. And we know from Gray that Bruton is not so easily defeated. Other wise, the Supreme Court would not have gone out of its way to say that Bruton cannot be circumvented by replacing somebody’s n ame with an obvious identifier ( such as the “red

- haired, bea rded, one

eyed man

- with

- a

- limp”). Gray , 5 23 U.S at 195 (internal quota tion marks omitted). Indeed, we discern no difference in effect between the situation in Bruton , where the jury heard an unredacted statement naming the co

- defendant, and one where the jury hears a redacted statement but is later told to whom the redaction s refer.

If there were any doubt as to the applicability of Bruton to the Pennsylvania Supreme Court’s hypothetical, Richardson eliminated it. On the one hand, Richardson made clear that a properly redac ted confession does not violate the Confrontation C lause when linked with other admissible evidence. Yet it also established that a prosecutor’s inadmissible use of a confession during closing arguments runs afoul of Bruton

. That is because it is “error” for a prosecutor “to undo the effect of the limiting instruction.” 481 U.S. at 211.

We part company, however, with the Pennsylvania Supreme Court with regard to the three attempts it made to distinguish our case from its hypothetical example . First, it implied that a prosecutor’s unmasking of a co

- defenda nt must be done “deliberately” for Bruton to come into play. Brown

, 925 A.2d at 159. A ny such requirement of intentional conduct would be contrary to clearly established Supreme Court law. Specifically, the Court in Frazier said that “we do not believe tha t the prosecutor’ s good faith, or lack of it, is controlling in determining whether a defendant has been deprived of the right of confrontation

. ” 394 U.S. at 736. Here, though there is23 no evidence that the prosecutor acted in bad faith

, that is irrelevant for constitutional purposes. Indeed, the Commonwealth conceded (as it must) during oral argument before us that the Pennsylvania Supreme Court erred by suggesting that intent matters.

Second, we disagree that the statement needs to be as conspicuous as t he example presented by the Pennsylvania Supreme Court, where the pros ecutor tells the jury that the confession had been redacted and had previously included the

co

- defendant’s name . During closing arguments, the prosecutor revealed that Garcia t ook Lamber t to his house, where the latter pulled out the murder weapon. Thus, the prosecutor’s comments conveyed a message

— that Lambert was the person whose name was withheld in the redacted confession

— as clearly as would have been the case in the example used by t he Pennsylvania Supreme Court. 8

8 If there had been other evidence that Lambert went home with Garcia and took out the murder weapon, the prosecut or properly could have relied on that in closing arguments as long as she did not also encourage the jury to use the redacted confession against Lambert. The Commonwealth argues that this is the case here. It says that the prosecutor was not undoing the re dactions but instead was encouraging the jury to draw inferences from other evidence in the record. However, the Pennsylvania Supreme Court rejected this argument and found that “Garcia’s statement was the only source suggesting that Garcia took [Lambert] to his house.”
Brown , 925 A.2d at 156 n.5. Under AEDPA, this factual determination is “presumed to be correct,” 28 U.S.C. § 2254(e)(1), and there is no reason here to set aside that presumption.24 Moreover, Richardson forecloses the Pennsylvania Supreme Court’s analysis. As discussed , a redacted confession in that case described a conversation that took place in a car, and Marsh admitted that she was in that same

c ar. The prosecutor put these two facts together in closing arguments and asked the jury to draw the inference that Marsh heard the conversation. That is much less direct than our case, where the prosecutor did more than merely argue an inference and instea d recounted the confession as though Lambert’s name had been in it all along. T hough the prosecutor in Richardson did not unmask Mar sh as a passenger in the car

— Marsh did that herself through her testimony

— the Court nonetheless fou nd a Confrontation Clause error. 481 U.S. at 211. The only r eason why the Court remanded rather than granting relief directly was the failure of defense counsel to object during closing arguments

— a failure not present here.

In terms of applying this clearly established Supreme C ourt precedent , our opinion in Vazquez provides useful guidance. 9 There, as here, the prosecutor , without going so far as telling the jury that the confession had been redacted to omit the co

- defendant’s name, “effectively eliminated the redaction” through a slip of the tongue during closing

9 We do not rely on Vazquez as having created clearly estab lished law, as only Supreme Court cases can do that for AEDPA purposes. Rather, we look to it to determine the pri nciples that we have determined previously to be clearly defined by Supreme Court cases. Cf. Marshall v. Rodgers

, 133 S. Ct. 1446, 1450 (2013) (noting that “an appellate panel may, in accordance with its usual law

- of

- the

- circuit procedures, look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent”).25 arguments while paraphrasing the confession. 550 F.3d at 275. Though we granted relief on other grounds , we also interpreted Bruton to leave “no doubt” that the comments during closing arguments were “a grave and probab ly fatal constitutional violation.” Id. at 283 n.14. T here was “no difference between the admission of [the] unredacted statement” at the outset and a situation where the prosecutor negates the redaction s during arguments. Id. ; s ee also Fowler v. Ward , 200 F.3d 1302, 1311 (10th Cir. 2000) (noting that it would “squarely violate[]” the Confrontation Clause even to “suggest” that a redacted confession implicated a co

defendant), overruled on other grounds by Slack v. McDaniel

, 529 U.S. 473 (2000).

Finally, w e disagree with the Pennsylvania Supreme Court’s reliance on Frazier as a means of escaping Bruton ’s command. As discussed, the Court in Frazier gave four reasons for its conclusion. None apply here. The first and second factors are that the prosecutor in Frazier 1)

s ummarized a confession that 2) was never actually read

— redacted or otherwise

— to the jury. Here the jury heard a full reading of the redacted confession and then had the redactions compromised during closing arguments. This difference is critica l. The task of the jury in Frazier was merely to pretend that there was no confession. By contrast, the jury here was asked to consider the confession, but only against Garcia

, when the prosecutor effectively said during closing arguments that it also impl icated Lambert. That is the situation Bruton describes as “intolerabl [ e ] .” 391 U.S. at 136.

Meanwhile, the third Frazier factor

— that there was only one defendant on trial, so the “jury was not being asked to perform the mental gymnastics of considering a n incriminating statement against only one of two defendants in a joint trial,” 394 U.S. at 735

— is not present here because there was a joint trial and jurors were told that they had to26 limit their use of the confession to one defendant. Once again, this p laces us squarely within Bruton and its warning that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limi tations of the jury system cannot be ignored.” 391 U.S. at 135.

The final factor in Frazier was that the evidence was not “vitally important” to the prosecution’s case. 394 U.S. at 735. As discussed below in explaining why the error was not harmless, the evidence here was crucial to the Commonwealth’s case.

Properly understood, then, Frazier does not carry the day for the Commonwealth. Frazier made clear that not all mistakes in opening or cl osing statements are Bruton violations. But it never said (or even implied) that Bruton has a back door that allows prosecutors to do what the Supreme Court has expressly forbidden

— dangle an incriminating statement in front of jurors, tell them it implicates a particular defendant, and then expect that they will not use it against that person.

We therefore hold, as a matter of clearly established Supreme Court law, that the prosecutor’s comments violated the Confrontation Clause. There are some circumstances when the prosecution can commit what otherwise would be a constitutional violation but nonetheless escape a mistrial through limiting instructio ns. However, in cases falling within the ambit of Bruton and its progeny, limiting instructions cannot cure the error. See Bruton , 391 U.S. at 135

– 36. This is such a case

. In deciding otherwise, the Pennsy lvania Supreme Court acted contrary to U.S. Supreme Court law by apparently requiring prosecutors to act in bad faith for27 protections to arise , and it misapplied Bruton

, Frazier

, Richardson , and Gray by not requiring a mi strial.

V. Harmlessness

Having found an error, we next consider whether it was harmless. To determine whether the Bruton violation had a “substantial and injurious effect or influence” on the outcome, Bond , 539 F.3d at 276 (internal quotation marks omitt ed), we must look at the evidence that the jury properly could have considered against the defendant. Here the Commonwealth’s case against Lam bert rested almost entirely on Cheatham’s testimony. Indeed, Cheatham was the only witness with admissible testimo ny about what Lambert did at the gas station. And, because Garcia had the gun at the time of the arrest, Cheatham provided the only admissible link between Lambert and the murder weapon

. But, as noted below, Cheatham had substantial flaws as a witness. Hen ce we conclude that the Bruton error was not harmless.

Ch eatham’s own testimony undercut his reliability and usefulness as a witness. By his own admission, he was impaired from marijuana and Xanax. As a result, he was asleep shortly before the crime

. And , more importantly, he said he stayed in the back seat the whole time. His most powerful statement is that he saw Lambert and Garcia get out of the car and, when they got back in, Lambert pointed a gun at Garcia and ordered him to drive. But Cheatham never claimed to witness the robbery or the murder as they took place.

Another red flag is that Cheatham added key details to his narrative between when he gave a statement to the police and when he testified. For instance, the part about Lambert pointing the gun at Garcia emerged for the first time in court

. During cross

- examination, Cheatham admitted that he had not28 included that detail when talking to detectives the day after the crime.

And Cheatham had a powerful motive to implicate Lambert. The former e scaped charges by convincing detectives that he had remained in the car while Lambert and Garcia got out. Garcia was telling an entirely different story in which he was merely present for a crime committed by Lambert and Cheatham

. And Cheatham only g ave hi s statement after being told he would be charged with a crime if he did not cooperate. This would give the jury reason to view Cheatham’s testimony skeptically.

The Commonwealth admits that Cheatham is a flawed witness but gives us three r easons why it th inks the error wa s nonetheless harmless. They do not persuade us. First, it argues that the convictions of both Lambert and Garcia mean that the jury must have believed Cheatham ( despite his weaknesses ) and disbelieved Garcia

. The consequence, in the Commo nwealth’s view, is that it would not matter if it became obvious that the redacted confession implicated Lambert because the jury rejected Garcia’s narrative

. We agree that the jury , in convicting Garcia, apparently credited Cheatham’s account that Lambe rt and Garcia got out of the car rather than Garcia’s story that Lambert and Cheatham did so. But it does not follow that the jurors necessarily disbelieved the other porti ons of Garcia’s confession that implicated Lambert as the shooter. These parts, whic h the jury was not supposed to use against Lambert, reinforced rather than contradicted Cheatham’s spotty testimony

. Hence we cannot say that the jury, once aware during closing arguments that Garcia’s confession29 incriminated Lambert, did not make signific ant use of that information. 10

Next, the Commonwealth notes that the unmasking of Lambert happened during a part of the closing ar guments when the prosecutor was asking the jury to find Garcia guilty. Specifically, she was d iscussing Garcia’s story that L ambert and Cheatham committed the crime . If that were true, the prosecutor asked, why did Garcia bring one of the criminals to his home afterward rather than dropping him off and calling the police? It was in this context that she used Lambert’s name, rath er than a generic identifier, and revealed that he was the one who went home with Garcia. Essentially, the Commonwealth’ s argument is that, based on the structure of the closing arguments, the jury would not have been tempted to use the information against Lambert. However, as discussed below, the information was quite harmful to Lambert , and we cannot realistic ally assume that the jury ignored it.

The Commonwealth’s final argument is that the details that the prosecutor im properly revealed

— Lambert

accom pa nying Garcia home and pulling out the gun

— did not add much to the case against Lambert because they related to events after the shooting. That misses the point. If the redactions were ever effective

— a question we do not decide

— it would be because they ef fectively encrypted the confession by obscuring from the jury part of its meaning. During closing arguments, the prosecutor essentially gave the

10 The jury’s request to see the confession during deliberations also lends possible support to the notion that jurors relied on it to convict Lambert

. Nonetheless, we do not know what motivated the request, and we need not give it an y particular import in r each ing our conclusion.30 jury the key to break the encryption. And, in doing so, she revealed far more to the jury than Garcia’s stateme nt that Lambert came home with him.

As noted above but repeated here for convenience , the key portion of the confession (with the replacements shown in italics) is:

Q: What happened next?

A: They got in the car and I said what the fuck happened. One of t he guys said I banged the bitch . . . . She wouldn’t give up her pocketbook or nothing, so I banged her. . . . I told the first

guy what the fuck, you didn’t tell me you had a burner.

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy ha ve?

A: A .38. He showed it to me in my house after he shot the lady. After he shot the lady we went to my house and we went inside. He pulled it

out in the kitchen. I told him to put it away because my peoples was [sic] there. My mom told me to get the guy out of her house. We left
my house and drove down North Philly.

On ce the jury knew that Lambert was the person who went to Garcia’ s house, it could follow the story backward to learn that Lambert was the one with the “burner” and was therefore the person who shot the victim. We are thus unconvinced by the31 Commonwealth’s attempt to minimize the importance of the unmasking.

Lambert has argued in federal court that the harmfulness of the error was compounded by the prosecutor’s flouting of the redactions at another point in her closing argument s

. As discussed, see supra n.5

, apart from the comments about Lambert accompanying Garcia home, she also told the jury : “It’s an old ugly gun, but it worked. It killed Mary Edmond. It did just what Antonio Lambert want ed it to do. He managed to shoot her. Why? Because she didn’t give up her pocketbook. She resisted it. And that’s exactly what Mr. Garcia said in his statement.” The Commonwealth says that this argument is procedurally defaulted because Lambert did not
exp licitly reference these other remarks in state court

. However, w e need not weigh in because

, for the reasons we have explained above

, we conclude that the error would not have been harmless even if the prosecutor had not made these other comments.

Ultima tely, given the significance of Garcia’s confession to the Commonwealth’s case, Cheatham’s potential unreliability, and the absence of other evidence identifying Lambert as the shooter, we believe that the prosecutor’s unmasking of him as “the other guy” h ad a “substantial and injurious effect” and that relief is therefore warranted. Bond , 539 F.3d at 276 (internal quotation marks omitted).

VI. Conclusion

We expect that this case will be the exception rather than the norm. The potential for constitutional error could have been mitigated at the outset by32 granting the motion to sever the trials. After settling on a joint trial, th e Commonwealth could have, during closing arguments, guarded more carefully against the special risks posed by redacted confessions

. Having failed to do so, it nonetheless could have avoided a mistrial had the mistake been of the variety that Frazier says can be cured through limiting instructions. And even after missing these first three safety valves, the Commonwealth could have esc aped this result had the error been harmless.

Here, however, the prosecutor’s comments created a Bruton violation that was not harmless. We therefore reverse the order of the District Court and remand with instructions for it to grant Lambert’s petition and require the Commonwealth either to release him or retry him within a specified and reasonable time period.