IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

______________________________________ 

JERMONT COX 

Petitioner, 

v. 

MARTIN HORN, Commissioner, 

Pennsylvania Department of Corrections and 

CONNOR BLAINE, Superintendent of the 

State Correctional Institution at Greene, 

Respondents. 

______________________________________ 

: 

: 

: 

: 

: CIVIL ACTION 

: 

: No. 00-cv-5188 

: 

: Hon. Edward G. Smith 

: 

:

: 

: 

: 

 ________________________________________________________________ 

PETITIONER’S REPLY TO COMMONWEALTH’S RESPONSE TO 

MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO 

FEDERAL RULE OF CIVIL PROCEDURE 59(E) 

 ________________________________________________________________ 

STUART B. LEV 

 LOREN D. STEWART 

 JAHAAN SHAHEED 

 Federal Community Defender Office 

 for the Eastern District of Pennsylvania 

 The Curtis Center, Suite 545 W 

 Philadelphia, Pennsylvania 19106 

 (215) 928-0520 

Counsel for Petitioner Jermont Cox 

Dated: April 15, 2019 

Case 2:00-cv-05188-EGS Document 124 Filed 04/15/19 Page 1 of 10
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TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................................................. i 

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 1

THIS COURT SHOULD GRANT MR. COX’S RULE 59 MOTION TO AMEND OR 

ALTER ITS JUDGEMENT. ........................................................................................................... 1 

A. Respondent’s Argument that the Third Circuit Has Endorsed a Strickland 

Analysis of Underlying IATC Claims Is a Misreading of Workman. .......................... 1 

B. The Court Should Reevaluate the Substantiality of Mr. Cox’s IATC Claim for 

Failure to Present an Adequate Defense Using the Workman Framework. ................. 4 

C. Respondent’s Efforts to Distinguish the Facts of Mr. Cox’s Case From those in 

Workman Fail. .............................................................................................................. 5

CONCLUSION ............................................................................................................................... 7

Case 2:00-cv-05188-EGS Document 124 Filed 04/15/19 Page 2 of 10
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PRELIMINARY STATEMENT 

On August 28, 2018, this Court denied Petitioner’s Rule 60(b)(6) motions. Petitioner 

filed a Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) on September 25, 

2018. (Doc. 113). Respondent filed its Response to the Motion on March 20, 2019. Petitioner 

now files this Reply to address the points raised by Respondent in its filing. All emphasis is 

supplied unless otherwise noted. 

ARGUMENT 

THIS COURT SHOULD GRANT MR. COX’S RULE 59 MOTION TO AMEND OR 

ALTER ITS JUDGEMENT. 

This Court should grant Mr. Cox’s motion because (1) contrary to Respondent’s 

contentions, Workman v. Albion SCI, 915 F.3d 928 (3d Cir. 2019), is an intervening change in 

controlling law, and (2) relief is necessary to correct manifest errors of law and fact and to 

prevent injustice. See Fed. R. Civ. P. 59(e); Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011) 

(quoting Howard Hess Dental Labs, Inc. v. Densply Int’l Inc., 602 F.3d 237, 251 (3d Cir. 2010)). 

A. Respondent’s Argument that the Third Circuit Has Endorsed a Strickland

Analysis of Underlying IATC Claims Is a Misreading of Workman. 

Contrary to Respondent’s contentions, Workman is an intervening change in controlling 

law. In Workman, the Third Circuit explicitly held that substantiality must be evaluated “under a 

standard less exacting” than the two-part test in Strickland v. Washington, 466 U.S. 668 (1984). 

915 F.3d at 939; see also Martinez v. Ryan, 566 U.S. 1 (2012). In a subsequent1

 case, Richardson 

 

1 Workman was initially decided on September 11, 2018. See Workman v. Superintendent, 903 

F.3d 368 (3d Cir. 2018). The panel granted rehearing on October 30, 2018, see 907 F.3d 741 (3d. 

Cir. 2018), and issued a new opinion on November 15, 2018, see 908 F.3d 896 (3d. Cir. 2018). 

On February 6, 2019, the panel granted a “sur” rehearing motion and vacated the November 15, 

2018, opinion. See 915 F.3d 171 (3d Cir. 2019). On February 12, 2019, the court issued its final 

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v. Superintendent Coal Twp. SCI, the Third Circuit cited Workman for the proposition that 

“substantiality is a notably lower standard than the proof of prejudice required by Strickland’s 

second prong.” 905 F.3d 750, 764 (3d Cir. 2018).2 Richardson supports Petitioner’s contention 

that, in Workman, for the first time, the Third Circuit concluded that a Petitioner “need not make 

any additional showing of prejudice, as Strickland would require.” Id.

Despite the unambiguous language of the Third Circuit, Respondent ignores this directive 

and inexplicably cites earlier decisions to endorse a Strickland analysis of underlying IATC 

claims. For example, Respondents argues that the substantiality analysis in Workman is the same 

as that in Bey v. Superintendent Greene SCI, 856 F.3d 230 (3d Cir. 2017). In Bey, the Third 

Circuit considered the substantiality requirement in Martinez by evaluating trial counsel’s 

performance under Strickland, finding both deficient performance and prejudice. Id. at 238 

(“[W]e conclude that Bey was prejudiced because of his trial counsel's failure to object to the 

faulty Kloiber charge. . . . Therefore, we hold that Bey can show his underlying ineffective 

assistance of trial counsel claim is a substantial one under Martinez.). This determination of 

substantiality is inapposite to Workman’s renunciation of a Strickland standard for underlying 

IATC claims. 

In subsequent cases, such as Preston v. Superintendent Graterford, SCI, the Third Circuit 

questioned whether the prejudice prong of Strickland should be applied to IATC claims under 

Martinez. 902 F.3d 365, 377 (3d Cir. 2018) (“[I]t would seem that, in light of the relatively light 

 

opinion. The portions of Workman at issue in this Rule 59(e) motion did not materially change in 

the rehearing process. 

2

 Although Richardson (a 2018 opinion) appears to precede Workman (a 2019 opinion), 

Richardson (decided on October 2, 2018) actually post-dated the first Workman opinion 

(September 11, 2018) and relied on the first Workman opinion. 

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‘substantiality test’ regarding the merits of the IATC claim, a strict prejudice analysis for 

Martinez purposes would be misplaced.”). But the Third Circuit did not affirmatively answer this 

question in Preston. 902 F.3d at 378 (“Here, where counsel’s performance in failing to assert the 

Confrontation Clause claim seems clearly substandard under the first prong of Strickland, we 

need not concern ourselves with the prejudice prong of Strickland in order to satisfy Martinez

and excuse the procedural default of the IATC claim.”). That question was not resolved until 

Workman. 

Moreover, in other cases cited by Respondent—Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 

2014); Jones v. Pennsylvania Board of Probation and Parole, 492 Fed. Appx. 242, 244-245 (3d 

Cir. 2012)—the Third Circuit suggested that the Certificate of Appealability (COA) standard 

should be used in a determination of substantiality. However, those decisions are void of a 

practical COA analysis, and the underlying IATC claims are not evaluated to determine whether 

reasonable jurists could disagree about the claims or whether the claims deserved encouragement 

to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 226 (2003) (quoting Slack v. 

McDaniel, 529 U.S. 473, 484 (2000)). Likewise, Respondents’ argument that Preston and Bey

are “cited with approval” in Workman fails. Resp. at 8. Though Workman cites Preston and Bey

in footnotes, the Third Circuit does not endorse a Strickland analysis of underlying IATC claims 

in any of those citations. 

In sum, Workman did not simply “repeat[] the same definition of ‘substantial’” that the 

Third Circuit had endorsed in prior opinions. Resp. at 4. As explained in Petitioner’s motion, 

Workman denounced the use of Strickland analysis, particularly the prejudice prong, in the 

determination of substantiality. Accordingly, this Court’s evaluation of Mr. Cox’s IATC claims 

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under Strickland should be altered in light of Workman. This Court should amend the judgment 

and evaluate Mr. Cox’s underlying defaulted ineffectiveness claims under the correct standard. 

B. The Court Should Reevaluate the Substantiality of Mr. Cox’s IATC Claim 

for Failure to Present an Adequate Defense Using the Workman Framework. 

Respondent argues that there was “nothing improper about the Court evaluating the 

substantiality of petitioner’s defaulted” IATC claims “by analyzing them under the Strickland

standard.” Resp. at 7. This Court denied relief because “none of Cox’s procedurally defaulted 

IATC claims have merit on either element of the Strickland test.” Id. Respondent asserts “that is 

precisely the approach endorsed by the Third Circuit.” Id. As discussed above, this is a 

misreading of Workman. The Third Circuit unequivocally held that underlying IATC claims 

“must be evaluated under a standard less exacting that Strickland prejudice.” Workman, 915 F.3d 

at 938. Yet this Court engaged in the very analysis that Workman precluded. See Memo. Op. at 

23-28 (analyzing claims under “deficient performance” and “prejudice” standards of Strickland).

Mr. Cox’s judgment must be amended in light of Workman. 

Finally, the standard elucidated by the Third Circuit in Workman rejected any notion that 

the IATC claims have to be meritorious in order to clear the hurdle of default. Thus, this Court 

should alter its decision, which found that a successful Martinez claim “must be rooted in 

substantially meritorious” IATC claims. See Memo. Op. at 31. Workman makes it clear that 

“meritorious” is not the proper standard necessary to grant relief under Martinez. In reaching its 

conclusion, this Court imposed a higher standard than was permissible in its adjudication of Mr. 

Cox’s Martinez claim. This Court should grant Mr. Cox’s motion for amendment or alteration of 

the judgment. 

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C. Respondent’s Efforts to Distinguish the Facts of Mr. Cox’s Case from those 

in Workman Fail. 

Respondent argues that Mr. Cox’s case is different from Workman because “trial counsel 

here did not persist with an impossible defense theory that had zero chance of persuading the 

factfinder.” Resp. at 12. To support this assertion, Respondent aggrandizes the testimony of the 

Commonwealth’s ballistics expert and concludes that Officer John Finor did not “refute trial 

counsel’s buck fever theory.” Id. Trial counsel asked Officer Finor if he had heard of “buck 

fever.” N.T. 10/28/93 at 64. After answering affirmatively, Officer Finor described “buck fever” 

as “a term that’s used in the hunting area” and where a hunter “gets very excited and usually 

misses the deer because he’s so excited.” Id. Trial counsel proceeded to ask whether “it’s not 

uncommon for someone to shoot into the ground” when they have buck fever. Id. Officer Finor 

responded that he “really [didn’t] know.” Id. at 65. Counsel concluded his “buck fever” 

questions by asking Officer Finor if “buck fever” is a “collective term” of “strange and relatively 

unexplainable behavior . . . in hunters,” including “shooting more shots than they ever realized.” 

Id. Officer Finor testified that “buck fever could apply . . . I guess.” Id. This is hardly an 

endorsement of counsel’s “buck fever” theory. Moreover, Officer Finor’s initial description of 

“buck fever” focused on hunters missing their target, further demonstrating the improbability of 

counsel’s defense. Id. at 64. 

Moreover, Respondent’s argument belies Officer Finor’s testimony on direct 

examination. Prior to counsel’s “buck shot” questions, the Commonwealth presented evidence 

that with “three shots, especially if it’s a revolver, you have to pull a double action trigger and/or 

cock the hammer” it is highly “unlikely” to commit an accidental shooting. Id. at 57. If, as the 

Respondent concludes, the weapon was a revolver, see Resp. at 12, then trial counsel proceeded 

with a theory that did not adapt to the facts of trial. Cf. Workman, 915 F.3d at 941 (“Any 

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objective standard of reasonableness requires counsel to understand facts and testimony and 

adapt to them, even at the expense of purportedly clever theories.”). The evidence adduced on 

direct foreclosed trial counsel’s theory of “buck fever.” As in Workman, Mr. Cox’s trial counsel 

proceeded with a theory that “had zero chance of persuading the factfinder.” Resp. at 12. After 

applying Workman, this Court should amend its analysis and find that Mr. Cox’s claims have at 

least “some merit,” satisfying the initial prong of Martinez. 

In its support of the “buck fever” defense, Respondent repeats the Court’s finding that 

“Cox’s inculpatory admission that he shot twice left him without winning options.” Resp. at 9 

(quoting Cox v. Horn, 2018 WL 4094963 at *15). This is untrue. Mr. Cox’s attorney could have 

presented a plausible, or even winning option, had he hired a ballistics expert to rebut the factual 

scenario presented at trial through Officer Finor.3

 Relatedly, the Court’s finding that the revised 

ballistics report did not constitute an “extraordinary circumstance” was based on a manifestly 

erroneous finding of fact and conclusion of law. 

In sum, post-conviction counsel’s ineffectiveness caused any procedural default. PCRA 

counsel was ineffective in his failure to pursue Petitioner’s substantial claim that trial counsel 

was ineffective. This Court should grant relief. 

 

3

 In its argument that Mr. Cox was not diligent in pursuing his ballistics claim, Respondent posits 

that Mr. Cox’s pro se petition for allowance of appeal and pro se PCRA petition were filed “long 

after his 1993 trial, and thus do not establish diligence.” Resp. at 15. But this Court 

acknowledged that these very same petitions proved that Mr. Cox “diligently pursued his 

defaulted IATC claims,” and that Respondents “appear to concede” as much. See Memo. Op. at 

29 (Doc. 113). Thus, the timing of Mr. Cox’s pro se petitions is not dispositive of his diligence. 

Case 2:00-cv-05188-EGS Document 124 Filed 04/15/19 Page 8 of 10
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CONCLUSION 

For the reasons stated in Petitioner’s prior submissions and herein, this Court should 

amend or alter its judgement and grant Mr. Cox relief pursuant to Federal Rule of Civil 

Procedure 59(e) and 60(b)(6). 

 Respectfully Submitted, 

 /s/ Loren D. Stewart 

 STUART LEV 

 LOREN STEWART 

 JAHAAN SHAHEED 

 Federal Community Defender Office 

 for the Eastern District of Pennsylvania 

 The Curtis Center, Suite 545 W 

 Philadelphia, Pennsylvania 19106 

 (215) 928-0520 

Counsel for Petitioner-Appellant Jermont Cox 

Dated: April 15, 2019 

Case 2:00-cv-05188-EGS Document 124 Filed 04/15/19 Page 9 of 10
CERTIFICATE OF SERVICE 

I, Loren Stewart, hereby certify that on this date, I served the foregoing Reply to 

Commonwealth’s Response to Motion to Alter or Amend Judgment Pursuant to Federal Rule of 

Civil Procedure 59(e), on the following persons by filing the same through the Court’s CM/ECF 

System: 

 Max Kaufman 

 Supervisor, Federal Litigation Unit 

 Philadelphia District Attorney’s Office 

 Three South Penn Square 

 Philadelphia, PA 19107-3499 

 /s/ Loren D. Stewart 

Loren D. Stewart 

Assistant Federal Defender 

Dated: April 15, 2019 

Case 2:00-cv-05188-EGS Document 124 Filed 04/15/19 Page 10 of 10