PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2863

___________

SALEEM BEY,

 Appellant

v.

SUPERINTENDENT GREENE 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. 2-13-cv-05848)

District Judge: Honorable Anita B. Brody

___________

Argued November 8, 2016

(Filed: May 10, 2017)

Before: McKEE and RESTREPO, Circuit Judges; HORNAK, 

District Judge.

*

Michael Wiseman, Esq. [ARGUED]

 

* Honorable Mark R. Hornak, District Judge for the 

United States District Court for the Western District of 

Pennsylvania, sitting by designation.
2

P.O. Box 120

Swarthmore, PA 19081 

Attorney for Appellant

John W. Goldsborough, Esq. [ARGUED]

Philadelphia County Office of District Attorney 

3 South Penn Square

Philadelphia, PA 19107 

Attorney for Appellees

____________

OPINION OF THE COURT

____________

McKEE, Circuit Judge.

Saleem Bey appeals the order of the District Court 

dismissing the habeas corpus petition he filed pursuant to 28 

U.S.C. § 2254. He contends that his trial counsel rendered 

ineffective assistance for failing to object to: (1) a faulty jury 

instruction on eyewitness testimony (Kloiber instruction); and 

(2) the prosecution’s comments on his post-Miranda silence. 

Bey concedes that his claims are procedurally defaulted, but 

argues his default should be excused because his postconviction review counsel’s assistance was ineffective when

he failed to raise the claims in collateral proceedings. For the 

following reasons, we conclude there is cause to excuse Bey’s 

procedural default for his ineffective assistance of counsel

claim pertaining to the Kloiber instruction. We will vacate the 

District Court’s order and remand for issuance of a 

conditional writ based on that claim. Accordingly, we need 

not reach Bey’s claim pertaining to the prosecution’s 

comments on his post-Miranda silence. 

I

Bey was charged with the nonfatal shooting of

Kenneth Thompkins and the fatal shooting of Terry Swanson 

that took place on November 21, 2001 in a club parking lot in 

Philadelphia. Bey’s first trial ended in a hung jury. On retrial, 

Bey was convicted of murder, attempted murder, and 
3

possessing an instrument of crime. He was sentenced to life in 

prison for murder, 7.5 to 40 years for attempted murder, and 9 

to 18 months for the weapons offense. 

The prosecution’s key witness at the retrial was 

Philadelphia Police Officer Daniel Taylor. Taylor testified 

that he saw Bey running from the direction of the first 

gunshots in the south end of the parking lot and that Bey shot 

Thompkins from behind with a silver handgun as he ran. 

Taylor said that he then saw Thompkins fall to the ground as

Bey continued running north toward Taylor. According to 

Taylor, Bey tucked the handgun into his waistband as he ran. 

Taylor testified that when Bey was about fifteen feet away

from him, Taylor shouted “police, drop the gun” and Bey 

looked up in response.

1 Taylor then made “eye-to-eye” 

contact with Bey as Bey “looked right at [Taylor’s] face.”

2

Taylor then gave chase with several other officers, and Bey

was arrested moments later. No weapons were found on Bey, 

though a .380 silver gun—which matched the bullet casings 

at the scene—and a black and silver Derringer handgun were 

found elsewhere in the parking lot. Officer Ferrero testified 

that he saw Bey drop the Derringer as he ran from police. 

Taylor’s identification of Bey as the shooter was 

certain and unequivocal. Taylor said he could see Bey clearly: 

There were no cars or people obstructing his view, and the 

area was “well lit.”

3

 Taylor’s identification of Bey as the 

shooter was consistent in all of Taylor’s interviews, 

preliminary hearings, at the initial trial, and at the retrial that 

occurred after the first jury was unable to reach a verdict.

However, Taylor was the only eyewitness who identified Bey 

as the shooter. Other officers on the scene at the time of the 

shooting testified that they understood Bey to be the shooter 

because Taylor identified him as such. Kenneth Thompkins, 

the surviving victim, testified that he did not see his shooter. 

However, in statements to Bey’s then-defense counsel, 

 

1

J.A. at 172.

2

J.A. at 173. 

3

J.A. at 195. 
4

Thompkins had said that his shooter was not Bey, but a bald, 

dark-skinned, bearded man.

During the retrial, defense counsel requested a special 

jury instruction on eyewitness testimony, pursuant to the 

Pennsylvania Supreme Court’s decision in Commonwealth v. 

Kloiber.

4

In Kloiber, the Pennsylvania Supreme Court 

recognized the need for a cautionary instruction in certain 

eyewitness cases.

5 The trial judge here did attempt a Kloiber 

charge. However, rather than giving the charge outlined in 

Kloiber, the court instructed the jury as follows: 

Where a witness is positive of his identification, 

such as where the opportunity for positive 

identification is good and the witness is positive 

in his identification and the identification has 

not been weakened by any prior failure to 

identify but remains even after crossexamination positive and unqualified, the 

testimony as to the identification may not be 

received with caution. Indeed, positive 

testimony as to identity may be treated as a 

statement of fact.

On the other hand, if you believe that a witness 

is not in a position to clearly observe and was 

not in a position because of lighting and/or 

conditions, then you may use that as a factor in 

determining whether or not that the person 

actually had the opportunity to observe that 

which he testified to and a positive 

identification of a defendant by one witness is 

sufficient for a conviction.6

Although the bold text in the quoted instruction is critically 

inconsistent with Kloiber, defense counsel did not object. In 

 

4 106 A.2d 820 (Pa. 1954).

5

Id.

6

J.A. at 1027 (emphasis added).
5

Kloiber, the Pennsylvania Supreme Court had actually stated 

the following:

Where the opportunity for positive 

identification is good and the witness is 

positive in his identification and his 

identification is not weakened by prior 

failure to identify, but remains, even after 

cross-examination, positive and 

unqualified, the testimony as to 

identification need not be received with 

caution—indeed the cases say that “his 

[positive] testimony as to identity may be 

treated as the statement of a fact.” For 

example, a positive, unqualified 

identification of defendant by one witness 

is sufficient for conviction even though 

half a dozen witnesses testify to an alibi.

On the other hand, where the witness is not 

in a position to clearly observe the 

assailant, or he is not positive as to identity, 

or his positive statements as to identity are 

weakened by qualification or by failure to 

identify defendant on one or more prior 

occasions, the accuracy of the 

identification is so doubtful that the Court 

should warn the jury that the testimony as 

to identity must be received with caution.

7

The difference between telling jurors that they “may 

not” receive an identification with caution and instructing 

them that they “need not” receive the identification with 

caution is the difference between telling jurors that they must

accept an identification and telling them that they may accept 

the testimony without reservation, but they need not do so. 

 

7 Kloiber, 106 A.2d at 826–27 (citations omitted) 

(emphasis added).
6

The confusion sewn by this instruction was soon 

evident. During deliberations, the jury asked the court to 

clarify aspects of Officer Taylor’s testimony. The jury asked

the court: “[M]ay we have or hear the transcript of Officer 

Taylor’s testimony describing from the time the officer heard 

the first shot to when the defendant ran west towards the 

wall?” and “May we also have [the] statement where Officer 

Taylor says he saw the defendant shoot Swanson?”8 Both 

questions went unanswered.

The jury ultimately convicted Bey of the murder of 

Terry Swanson, attempted murder of Kenneth Thompkins, 

and possessing an instrument of crime. Thereafter, Bey filed a

petition for post-conviction relief pursuant to Pennsylvania’s 

Post Conviction Relief Act (“PCRA”).9 His appointed PCRA 

counsel raised an ineffective assistance of counsel claim 

based on the Kloiber instruction, but failed to highlight the 

“may not be received with caution” language. Instead, Bey’s 

PCRA counsel challenged three other aspects of the 

instruction. Counsel argued the instruction: (1) failed to 

inform jurors that if they found circumstances casting doubt

on the identification’s accuracy, the testimony “must be 

received with caution,” thereby omitting language from 

Kloiber;

10 (2) impermissibly placed a burden on the defense 

to prove circumstances casting doubt on the accuracy of the 

identification; and (3) improperly instructed jurors that 

“positive testimony as to identity may be treated as a 

statement of fact.”11

The PCRA Court considered only the third of the 

Kloiber issues raised in the petition, holding that the 

“statement of fact” language was permissible under state law 

and as a result, trial counsel’s assistance was not ineffective 

 

8

J.A. at 1041, 1048.

9 42 Pa. Const. Stat. § 9541, et seq.

10 106 A.2d at 826.

11 J.A. at 62–64. 
7

for failing to object to the instruction.

12 The Court thus denied

the PCRA petition, and the Pennsylvania Superior Court 

thereafter affirmed the PCRA court’s conclusions.13 Bey 

sought leave to appeal to the Pennsylvania Supreme Court but 

that request was declined.

14

Bey then filed this petition for habeas corpus relief,

alleging, among other things, that his Sixth Amendment right 

to counsel was violated by his trial counsel’s failure to object 

to the “may not be received with caution” language of the

Kloiber instruction. Bey also argues that his PCRA counsel’s 

failure to raise his ineffective assistance of trial counsel claim

on collateral review amounted to a Sixth Amendment 

violation that excuses any procedural default at the PCRA 

appeal level. 

The District Court adopted the Magistrate Judge’s 

recommendation that Bey’s claims be rejected.15 The District 

Court held generally that to the extent that Bey’s ineffective 

assistance claims were not procedurally defaulted, Bey could 

not show prejudice because “there was overwhelming 

evidence of guilt.”16 We thereafter certified the following two 

issues for appeal: (1) Whether Bey’s trial attorney’s 

assistance was ineffective for failing to object to a faulty 

Kloiber instruction and whether any procedural default of this 

issue should be excused; (2) Whether Bey’s trial attorney 

rendered ineffective assistance in failing to object on proper 

grounds to the prosecutor’s comments on Bey’s post-arrest, 

post-Miranda silence and whether the procedural default of 

that issue should be excused. As we noted at the outset, since 

 

12 Commonwealth v. Bey, Nos. CP-51-CR-1206691-

2001, CP-51-CR-1209051-2001, slip op. at 4, 11–12 (Phila. 

Ct. Com. Pl. July 26, 2011).

13 Id. at 2; Commonwealth v. Bey, 53 A.3d 922 (Pa. 

Super. Ct. 2012) (unpublished table decision).

14 Commonwealth v. Bey, 67 A.3d 792 (Pa. 2013).

15 Bey v. Folino, No. CIV.A. 13-5848, 2015 WL 

4130358, at *1 (E.D. Pa. July 9, 2015).

16 Id. at *1 n.1.
8

we are granting relief on the Kloiber ineffectiveness claim, 

we do not reach Bey’s claim based on the prosecution’s 

closing argument.

17

II

“The doctrine of procedural default prohibits federal 

courts from reviewing a state court decision involving a 

federal question if the state court decision is based on a rule 

of state law that is independent of the federal question and 

adequate to support the judgment.”

18 Bey concedes that both 

of his ineffective assistance of counsel claims are 

procedurally defaulted. However, a habeas petitioner’s 

procedural default may be excused if the petitioner can show 

cause for the default and prejudice arising from failure to 

consider the claim.19 If cause and prejudice are shown and the 

default excused, our review of a petitioner’s claim is de novo

because the state court did not consider the claim on the 

merits.20 On the other hand, if a constitutional claim is 

properly raised in state court—and therefore, not procedurally 

defaulted—the state court’s determination is afforded 

 

17 The District Court had jurisdiction under 28 U.S.C. 

§§ 2241 and 2254. We have appellate jurisdiction to review

the certified issues under 28 U.S.C. § 2253.

18 Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008). A 

state procedural rule is “independent” if it is not interwoven 

with federal law or dependent upon a federal constitutional 

ruling. Michigan v. Long, 463 U.S. 1032, 1040–41 (1983). A 

state procedural rule is “adequate” if it was “firmly 

established and regularly followed” at the time of the alleged 

procedural default. Ford v. Georgia, 498 U.S. 411, 424 

(1991).

19 United States v. Frady, 456 U.S. 152, 167–68 

(1982).

20 Bronshtein v. Horn, 404 F.3d 700, 710 n.4, 715 (3d 

Cir. 2005).
9

substantial deference under the Anti-Terrorism and Effective 

Death Penalty Act (“AEDPA”).21

A

We must first determine if Bey’s claim is procedurally 

defaulted. Procedural default occurs when “the prisoner ha[s]

failed to meet a state law procedural requirement.”22

Pennsylvania’s procedural rules state that a defendant waives 

an ineffective assistance of counsel claim unless he or she 

raises it during the first state collateral review proceeding.23

Bey concedes that his PCRA counsel failed to argue 

that his trial counsel’s assistance was ineffective in failing to 

object to the Kloiber instruction that the jury “may not . . .

receive[] with caution” positive eyewitness testimony. Bey 

therefore acknowledges that his claim is procedurally 

defaulted. Nevertheless, he argues that the default should be 

excused. In rejecting that position, the District Court reasoned 

that because the PCRA petition generally raised 

 

21 Under AEDPA, federal courts may grant habeas 

relief only if a state court’s adjudication “resulted in a 

decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined 

by the Supreme Court of the United States” or “resulted in a 

decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d).

22 Coleman v. Thompson, 501 U.S. 722, 730 (1991).

23 Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 

2002) (“[A]ny ineffectiveness claim will be waived only after 

a petitioner has had the opportunity to raise that claim on 

collateral review and has failed to avail himself of that 

opportunity.”). See also 42 Pa. Cons. Stat. § 9545(b) (PCRA 

petitioners are time-barred from raising claims after one year 

of the final judgment). We have held that this state procedural 

rule is independent of the federal question and adequate to 

support the judgment. Glenn v. Wynder, 743 F.3d 402, 409 

(3d Cir. 2014).
10

ineffectiveness claims based on issues with the Kloiber 

charge, Bey’s counsel did raise this claim to state courts.

24

Accordingly, the Court applied deferential AEDPA review 

and held that the state courts reasonably rejected the Kloiber 

ineffectiveness claim and Bey was therefore not entitled to 

habeas relief.

25

Bey’s PCRA petition did claim ineffective assistance 

of counsel based on a faulty Kloiber instruction, and argued 

that as a basis for the objection under the state and federal 

constitutions. But none of the three Kloiber issues raised in 

the petition pertain to the claim Bey is raising here or the

language it is based on. As noted above, the current objection 

challenges the trial court’s instruction that positive and 

unqualified eyewitness testimony “may not be received with 

caution.”

26 Though Bey’s petition and the PCRA Court’s 

opinion reprint the problematic phrase, Bey’s counsel made 

no argument about it, and the court did not consider that 

language in adjudicating Bey’s PCRA claim.27 Accordingly, 

we conclude that the specific ineffective assistance claim 

addressing the trial court’s instruction that the jury “may not . 

. . receive[]” positive identification testimony with caution 

was not raised in state court and was therefore waived under 

state law. Consequently, Bey’s claim is procedurally 

defaulted and we may only review it if the default can be 

excused. 28

 

24 Bey, 2015 WL 4130358, at *15 n.4.

25 Id. at *15–16.

26 As outlined above, the PCRA petition raises only the 

following issues: (1) the instruction failed to inform jurors 

that if a factor was present that cast doubt on the accuracy of 

the eyewitness’s perception, then the testimony “must be 

received with caution” (omitting language from Kloiber) (2) 

the instruction improperly placed the burden on the defense to 

prove the presence of those factors, and (3) the instruction 

improperly told jurors that positive identification “may be 

treated as a statement of fact.” J.A. at 60–65.

27 Bey, slip op. at 11–12. 

28 Frady, 456 U.S. at 167–68.
11

B

Pursuant to the Supreme Court’s decision in Martinez 

v. Ryan,

29 counsel’s failure to raise an ineffective assistance 

claim on collateral review may excuse a procedural default if:

“(1) collateral attack counsel’s failure itself constituted 

ineffective assistance of counsel under Strickland, and (2) the 

underlying ineffective assistance claim is ‘a substantial 

one.’”

30 Because Bey’s claim that his PCRA counsel’s 

assistance was ineffective stems from the strength of his 

underlying ineffective assistance of trial counsel claim, we 

consider the second Martinez requirement first. 

To satisfy the second Martinez requirement, the 

petitioner must “demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one.”31 In 

other words, “the [petitioner] must demonstrate that the claim 

has some merit.”32 In Martinez, the Court relied upon Miller–

El v. Cockerell,

33 suggesting that we apply the standard for 

issuing certificates of appealabililty in resolving the inquiry 

into what constitutes a “substantial” claim.

34 Thus, whether a 

claim is “substantial” is a “threshold inquiry” that “does not 

require full consideration of the factual or legal bases adduced 

in support of the claims.”35 With this framework as our guide, 

we can now turn to an analysis of Bey’s ineffective assistance 

of counsel claim. 

To prove ineffective assistance of counsel under 

Strickland v. Washington,

36 a petitioner must prove “(1) that 

his counsel’s performance was deficient, that is, it fell below 

an objective standard of reasonableness, and (2) that 

 

29 566 U.S. 1 (2012).

30 Glenn, 743 F.3d at 409–10 (quoting Martinez, 566 

U.S. at 14).

31 Martinez, 566 U.S. at 14.

32 Id.

33 537 U.S. 322 (2003).

34 Martinez, 566 U.S. at 14.

35 Miller–El, 537 U.S. at 327, 336.

36 466 U.S. 668 (1984).
12

counsel’s deficient performance prejudiced his client,”

37 i.e.,

that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.”38 We have previously referred to these as the 

“performance” and “prejudice” prongs of the Strickland test.39

Generally, trial counsel’s stewardship is 

constitutionally deficient if he or she “neglect[s] to suggest 

instructions that represent the law that would be favorable to 

his or her client supported by reasonably persuasive 

authority” unless the failure is a strategic choice.

40 As noted 

above, Bey’s trial counsel failed to object to a Kloiber charge 

that blatantly misstated the wording in Kloiber itself. A 

proper charge under Kloiber informs the jury that it has the 

ultimate discretion of deciding whether to credit positive 

eyewitness testimony.

41 Instead, the trial court’s instruction 

essentially required the jury to accept positive eyewitness

testimony as true by directing that “testimony as to the 

identification may not be received with caution.”42 The fact 

 

37 Albrecht, 485 F.3d 103, 127 (3d Cir. 2007) (citing 

Strickland, 466 U.S. at 689–92).

38 Strickland, 466 U.S. at 694.

39 See, e.g., Glenn, 743 F.3d at 409.

40 Everett v. Beard, 290 F.3d 500, 514 (3d Cir. 2002). 

See also Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002)

(“Given our discussion of the nature of the defect in this 

charge, and the problems that arise from it, it follows a 

fortiori that unless counsel had a strategic reason for not 

objecting, [the petitioner] will satisfy the first prong of 

Strickland.”)

41 Kloiber, 106 A.2d at 826 (“Where the opportunity 

for positive identification is good and the witness is positive 

in his identification and his identification is not weakened by 

prior failure to identify, but remains, even after crossexamination, positive and unqualified, the testimony as to 

identification need not be received with caution . . . .”

(emphasis added)).

42 J.A. at 1047 (emphasis added). In a footnote, the 

Appellees argue that because the transcript of the trial was 
13

that the jurors were told that they only had to accept the 

identification if it was made under favorable circumstances 

and was not equivocal does not negate the fact that the jury 

did not know that it was free to reject Officer Taylor’s 

identification even if Taylor was positive as to his 

identification. The instruction is likewise contrary to 

Pennsylvania’s Suggested Jury Instruction that was based on

Kloiber. The edition of the suggested instruction available at 

the time of Bey’s trial directs the jury to weigh positive 

eyewitness testimony as follows: “you need not receive the 

testimony with caution; you may treat it like ordinary 

testimony.”43

Although Kloiber and its progeny did not specifically 

prohibit the instruction given here at the time of Bey’s 

retrial,

44 the trial court’s deviation from the language in 

 

riddled with errors, it is therefore possible that the words 

“may not” were mis-transcribed and the judge did instruct the 

jury that they “need not” receive the testimony with caution. 

Appellees’ Br. at 36 n.13. Because Appellees have presented 

no evidence to support this utterly speculative claim, we need 

not respond to it. 

43 Pa. Bar Inst., Pa. SSJI § 4.07 (Crim.) (1st ed., rev. 

1985). 

44 Kloiber’s requirements were not focused on 

identification problems when the witness had a clear view of 

the defendant and was consistent in his or her identification. 

Rather, Kloiber was primarily concerned with providing 

special instructions to caution the jury when an eyewitness 

did not have a clear opportunity to view a defendant, 

equivocated on the identification of the defendant, or had 

some difficulty making an identification in the past. Kloiber, 

106 A.2d at 826–27; Commonwealth v. Ali, 10 A.3d 282, 303 

(Pa. 2010) (“Under Kloiber, ‘a charge that a witness’[s] 

identification should be viewed with caution is required 

where the eyewitness: (1) did not have an opportunity to 

clearly view the defendant; (2) equivocated on the 

identification of the defendant; or (3) had a problem making 

an identification in the past.’” (quoting Commonwealth v. 
14

Kloiber was so problematic that any alert defense counsel 

should have immediately known that it raised serious 

constitutional issues. Jurors were basically told that they had 

to accept the only eyewitness identification of the defendant 

as fact; they were not free to question it if they found Officer 

Taylor had a good opportunity to observe and was certain of 

his identification. Those are clearly relevant factors in 

evaluating the identification, but they were certainly no 

guarantee as to the accuracy of Taylor’s identification of 

Bey.45 The charge removed the discretion that the jury could 

otherwise have exercised that may have raised a reasonable 

doubt in the mind of one or more jurors about the identity of 

the shooter. Moreover, as we explain below, the instruction’s 

deviation from Kloiber reaches constitutional dimensions. 

A jury instruction deprives a defendant of his or her

Fourteenth Amendment due process rights when it suggests a 

 

Gibson, 688 A.2d 1152, 1163 (Pa. 1997))). Furthermore, 

Pennsylvania law gives trial courts broad latitude in phrasing 

its instructions. Commonwealth v. Spotz, 896 A.2d 1191, 

1247 (Pa. 2006). We note, however, that after Bey’s trial, 

Kloiber’s lack of concern with positive eyewitness testimony 

was cast into doubt by the Pennsylvania Supreme Court’s 

decision in Commonwealth v. Walker, which specifically 

questioned “misconceptions” such as the “infallibility of 

eyewitness identification” and “the correlation between 

certainty and accuracy.” 92 A.3d 766 (Pa. 2014).

45 See Nat’l Research Council, Identifying the Culprit: 

Assessing Eyewitness Identification 15 (2014) (noting that 

human perception is not only susceptible to external limits 

such as lighting conditions but also “can be heavily 

influenced by bias and expectations derived from cultural 

facts, behavioral goals, emotions, and prior experiences with 

the world”); James Michael Lampinen et al., The Psychology 

of Eyewitness Identification 172–86 (2012) (noting that even 

though people generally believe that confident eyewitnesses 

are accurate, the degree of confidence an eyewitness 

possesses is malleable and even confident eyewitnesses can 

be mistaken).
15

conclusive presumption that removes the prosecution’s 

burden of proving an element of an offense beyond a 

reasonable doubt.46 If a “reasonable juror could have 

understood the [instruction] as a mandatory presumption that 

shifted to the defendant the burden of persuasion on [an] 

element” of the offense, the instruction is constitutionally 

defective.

47 However, a single jury instruction “may not be 

judged in artificial isolation, but must be viewed in the 

context of the overall charge.”48

Here, the prosecution was obviously required to 

establish that Bey—and no one else—fatally shot Swanson 

and wounded Thompkins. Officer Taylor’s testimony that he 

saw Bey running from the direction of the Swanson shooting

and that he saw him shoot Thompkins, if accepted, 

established Bey’s guilt. The trial court then told the jury that

positive eyewitness testimony “may not be received with 

caution” when “the opportunity for positive identification is 

good” and “the identification has not been weakened by any 

prior failure to identify but remains even after crossexamination positive and unqualified.”49 Based on this 

instruction, a reasonable juror could only have concluded that 

he or she was required to accept Officer Taylor’s testimony as 

true as long as Taylor’s identification was positive and 

consistent. Thus, as long as Officer Taylor’s testimony was 

consistent and he testified he was certain Bey was the shooter, 

a guilty verdict would necessarily result—regardless of 

whether the testimony was accurate. The scientific 

community has understood for decades that eyewitness 

identifications that are certain and confident are not 

necessarily accurate.50 Rather, a witness may honestly hold 

 

46 Sandstrom v. Montana, 442 U.S. 510, 523–24 

(1979).

47 Francis v. Franklin, 471 U.S. 307, 316 (1985).

48 Boyde, 494 U.S. 370, 378 (1990) (quoting Boyd v. 

United States, 271 U.S. 104, 107 (1926)).

49 J.A. at 1027.

50 See, e.g., Nat’l Research Council, Identifying the 

Culprit: Assessing Eyewitness Identification 31 (2014) 
16

beliefs about what he or she saw that are distorted, inaccurate, 

or even completely wrong.51 Accordingly, under established 

Supreme Court precedent, Bey has a substantial claim that the

faulty Kloiber instruction deprived him of his due process 

right to have the prosecution prove every element beyond a 

reasonable doubt. 

Appellees argue that there is no due process problem

here because in the context of the instructions as a whole, the 

jury could not have reasonably believed that it was required 

to accept Officer Taylor’s testimony as true.52 We realize, of 

course, that the jury charge included general instructions on 

evaluating the credibility of witnesses. For example, the 

jurors were told that they “must consider and weigh the 

testimony of each witness and give it the weight that you 

 

(“Research has cast doubt, for instance, on the belief that the 

apparent certainty displayed in the courtroom by an 

eyewitness is an indicator of an accurate identification . . . .”); 

Siegfried Ludwig Sporer et al., Choosing, Confidence, and 

Accuracy: A Meta-Analysis of the Confidence–Accuracy 

Relation in Eyewitness Identification Studies, 118 Psychol. 

Bulletin 315, 315–16, 323–24 (1995) (noting that the 

correlation between accuracy and confidence in eyewitness 

identifications is “weak at best”); Elizabeth F. Loftus, 

Eyewitness Testimony 19 (1979) (“[E]yewitness testimony is 

likely to be believed by jurors, especially when it is offered 

with a high level of confidence, even though the accuracy of 

an eyewitness and the confidence of that witness may not be 

related to one another at all.”).

51 See The Innocence Project, Reevaluating Lineups: 

Why Witnesses Make Mistakes and How to Reduce the 

Chance of a Misidentification 3 (2009) (estimating that 

eyewitness misidentifications have been a factor in 75% of 

the wrongful convictions that were subsequently overturned 

by DNA evidence); James Michael Lampinen et al., The 

Psychology of Eyewitness Identification 5 (2012) (explaining 

that police lineup data shows that eyewitnesses identify a 

non-suspect as the culprit at least 20% of the time).

52 Appellees’ Br. at 40–42.
17

think in your own personal judgment it is fairly entitled to 

receive.”53 Appellees rely on this to argue that the error was 

harmless. We disagree. 

As we have explained: “[W]hile a single defect does 

not necessarily make an instruction erroneous, . . . other 

language in the instruction does not always serve to cure the 

error. This is so even when other language correctly explains 

the law.”54 Specifically, “a defect in a charge may result in 

legal error if the rest of the instruction contains language that 

merely contradicts and does not explain the defective 

language in the instruction.”55 Here, the misstated Kloiber 

instruction that positive eyewitness testimony “may not be 

received with caution” neither explained nor acknowledged 

the general instruction that the jury “must consider and weigh 

the testimony of each witness.” Rather, the Kloiber 

instruction directly contradicted the general instruction by 

instructing the jury not to weigh the testimony that was most 

critical to establishing Bey’s guilt. In this context, a jury 

would have reasonably concluded that positive eyewitness 

testimony was an exception to the general rule, and that this 

category of testimony was entitled to special deference if the 

eyewitness’s identification was positive and unqualified. 

Indeed, such an instruction would be consistent with 

generally held assumptions that eyewitnesses are accurate and 

trustworthy.

56

 

53 J.A. at 1017–18.

54 Whitney, 280 F.3d at 256 (citing Francis, 471 U.S. 

at 322). See also Everett, 290 F.3d at 512 (“The mere fact that 

the law was correctly stated in one part of the charge will not 

automatically insulate the charge from a determination of 

error.”). 

55 Whitney, 280 F.3d at 256 (citing Francis, 471 U.S. 

at 322). 

56 See Timothy P. O’Toole et al., District of Columbia 

Public Defender Survey, Champion, April 2005, at 28–29 

(concluding that jurors overestimate eyewitnesses’ ability to 

recall an event despite the limitations of memory and as a 

result, “jurors often believe mistaken eyewitnesses”); 

Elizabeth F. Loftus, Eyewitness Testimony 19 (1979) (“All 
18

Clearly, this instruction could be reasonably 

understood as requiring the jury to accept an eyewitness’s

identification of Bey as the shooter. Indeed, that was what the 

jurors were told. We can think of no strategic reason for

defense counsel not to object to a charge that raises such due 

process concerns. Nevertheless, Appellees try to argue that it 

was strategic and reasonable for Bey’s trial counsel not to 

object to the instruction because Bey’s attorney requested the 

Kloiber instruction, and under the circumstances of the case, 

he was “lucky to have received one.”57 This argument is 

frivolous. Neither legal authority nor common sense supports 

an argument that defense counsel would not object to an 

erroneously-worded charge that raises such grave 

constitutional concerns merely because the charge was given 

pursuant to defense request. We therefore conclude that Bey’s 

trial counsel’s performance was deficient under Strickland.

Bey likewise establishes that he was prejudiced by the 

instruction. Prejudice requires a showing that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.”58 A “reasonable probability” is one “sufficient to 

undermine confidence in the outcome.”59 The prejudice 

standard “is not a stringent one” and is “less demanding than 

the preponderance standard.”

60 However, a petitioner must 

show “not merely that the errors at his trial created a 

possibility of prejudice, but that they worked to his actual and 

substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions.”

61

 

evidence points rather strikingly to the conclusion that there is 

almost nothing more convincing than a live human being who 

takes the stand, points a finger at the defendant, and says 

‘That’s the one!’”).

57 Appellees’ Br. at 42. 

58 Strickland, 466 U.S. at 694.

59 Id. 

60 Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001)

(quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999)).

61 Frady, 456 U.S. at 170.
19

Appellees argue that because “[t]he eyewitness 

identification was sure” and the bullets in the victims’ bodies 

matched the gun found at the scene, “the Commonwealth 

presented an overwhelming case that Bey was guilty,” and 

Bey was not prejudiced by the instruction. We again disagree. 

At the first trial, nearly identical evidence resulted in a 

hung jury. A hung jury can signal that the outcome of a case 

was close and support a finding that an error on retrial 

prejudiced a convicted defendant.

62 For example, in Ouber v. 

Guarino, the First Circuit found it significant that “two 

different [prior] juries found the prosecution’s case so 

evanescent that they were unable to reach a verdict” when 

analyzing whether counsel’s performance prejudiced the 

defendant in his third trial.63 Likewise, in Alston v. Garrison, 

the Fourth Circuit noted that “hung juries the first two times 

[the defendant] was tried” indicated that the prosecution’s 

“evidence [was] not so airtight” and led to the conclusion that 

“the representation rendered by [the defendant’s] courtappointed attorney grossly violated the defendant’s sixth 

amendment rights.”64 Furthermore, in analogous situations, 

even a single prior hung jury has been deemed sufficient to 

indicate that the case was close and an error on retrial was not 

harmless.65 Here, the fact that Bey’s first jury was unable to 

 

62 E.g., Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir. 

2002); Alston v. Garrison, 720 F.2d 812, 817 (4th Cir. 1983). 

63 293 F.3d at 33.

64 Alston, 720 F.2d at 817.

65 United States v. Beckman, 222 F.3d 512, 525 (8th 

Cir. 2000) (concluding that failure to admit evidence was not 

harmless error in part because “when the [previous trial] court 

allowed the inquiry, a hung jury resulted”); United States v. 

Paguio, 114 F.3d 928, 935 (9th Cir. 1997) (“We cannot 

characterize the error as harmless, because the hung jury at 

the first trial persuades us that the case was close and might 

have turned on this evidence.”). Cf. Breakiron v. Horn, 642 

F.3d 126, 147 n.18 (3d Cir. 2011) (“Strickland prejudice and 
20

reach a verdict after hearing Taylor’s unequivocal 

identification strongly suggests that the evidence was not 

nearly as “overwhelming” as the state would like us to 

believe. 

Furthermore, the jury’s deliberations in the second trial 

also support our conclusion that the second jury did not think 

this was the “slam dunk” that the state claims. The jury’s

questions specifically focused on Officer Taylor’s testimony. 

First, the jury asked: “[M]ay we have or hear the transcript of 

Officer Taylor’s testimony describing from the time the 

officer heard the first shot to when defendant ran west 

towards the wall[?]”66 Second, and even more to the essence 

of the error here, the jury asked: “May we also have [his] 

statement where Officer Taylor said he saw the defendant 

shoot Swanson?” Thus, despite arguments to the contrary, 

Taylor’s testimony may well have been a source of concern.

More importantly, it is because Taylor’s identification

appears positive and unequivocal that the Kloiber instruction 

so undermined the integrity of the trial. Taylor’s testimony fit 

into the precise category of evidence that the jury was 

required to accept. Taylor’s testimony was positive: he had a 

clear view of Bey, making “eye-to-eye” contact with him in 

the “well lit” parking lot from fifteen feet away.67 Taylor’s 

testimony was also unqualified: he never wavered in his 

identification of Bey as the shooter in all of his interviews, 

preliminary hearings, or in either trial. As a result, to obtain a 

verdict of guilty the prosecution only needed to show: (1) that 

Taylor was certain the shooter was Bey; and (2) that Taylor’s 

identification was not otherwise weakened by circumstances 

such as poor lighting or the inability to see. There was no 

room for any juror to conclude that Taylor, though certain, 

was wrong. Accordingly, the prosecution was 

 

Brecht harmless error are essentially the same standard.” 

(quoting Albrecht, 485 F.3d at 139) (brackets omitted)).

66 J.A. at 1041.

67 J.A. at 173, 195. 
21

unconstitutionally relieved of its burden of proving that Bey 

was the shooter beyond a reasonable doubt. 

Nor can we say that other evidence presented at Bey’s 

retrial would have resulted in Bey’s conviction had the jury 

been given a correct instruction and chosen to disbelieve 

Taylor’s identification. Indeed, Taylor’s identification was 

the cornerstone of the prosecution’s case. All other police 

officers at the scene believed Bey to be the shooter because 

Taylor identified him as such. The surviving victim’s 

testimony was inconsistent and unreliable—he testified that 

he didn’t see his shooter, but at other times said his shooter 

was not Bey. No one but Taylor claimed to see Bey with the 

weapon that matched the bullets at the scene—the silver 

0.380 handgun. 

Thus, in light of the importance of Officer Taylor’s 

eyewitness testimony in this case, and the fact that Bey’s 

previous trial resulted in a hung jury, we conclude that Bey 

was prejudiced because of his trial counsel’s failure to object 

to the faulty Kloiber charge. The questions the second jury 

had about Taylor’s testimony also strengthen our conclusion. 

Therefore, we hold that Bey can show his underlying 

ineffective assistance of trial counsel claim is a substantial 

one under Martinez. 

To excuse his procedural default, Martinez also 

requires that Bey show that his counsel on collateral review 

rendered ineffective assistance under Strickland.

68 As 

discussed above, in Pennsylvania, it is PCRA counsel’s 

responsibility to raise any ineffective assistance of counsel 

claims to avoid forfeiting them under state law.69 Since

collateral review with new counsel is the first possible 

instance in which to raise claims of ineffective assistance of 

trial counsel, PCRA counsel’s failure to raise an 

 

68 Martinez, 566 U.S. at 14.

69 Grant, 813 A.2d at 738.
22

ineffectiveness claim in the initial petition means that “no

state court at any level will hear the prisoner’s claim.”

70

As we noted above, the three Kloiber claims that Bey’s

PCRA counsel raised failed to include or refer to the language 

requiring the jury to accept testimony that Bey was the 

shooter. While we have no record of why PCRA counsel 

would have chosen to omit an ineffectiveness argument based 

on the language at issue here, we can think of no strategic 

reason why counsel would do so, and the state has not offered 

any viable explanation for such a glaring omission. 

Accordingly, we agree with Bey that his PCRA counsel’s 

performance was deficient under Strickland and that Bey was

prejudiced by PCRA counsel’s omission. Bey’s case, 

therefore, fits into the narrow category of cases outlined in 

Martinez, and his procedural default is excused as to his 

ineffectiveness claim based on the faulty Kloiber jury 

instruction.

C

Because Bey has shown cause and prejudice to 

overcome his procedural default, we now consider the merits 

of his claim.

71 Given what we have already said, resolution of 

the merits requires little additional discussion. We need not 

repeat the numerous reasons why the Kloiber jury instruction 

violated Bey’s due process rights. For the same reasons Bey’s 

Sixth Amendment claim is “substantial” under Martinez, Bey 

is able to sustain his burden of showing that his trial counsel’s 

assistance was ineffective for failing to preserve a claim that 

has obvious merit. Accordingly, we will vacate the District 

Court’s order denying his petition and remand with 

instructions to issue a conditional writ. Because we grant 

relief based on Bey’s ineffective assistance of counsel claim 

pertaining to the Kloiber issue, we need not consider his

 

70 Martinez, 566 U.S. at 10.

71 Id. at 17 (“A finding of cause and prejudice . . . . 

allows a federal court to consider the merits of a claim that 

otherwise would have been procedurally defaulted.”).
23

ineffectiveness claim based on the prosecution’s closing 

statements.

III

For the reasons stated above, we will vacate the 

District Court’s order denying habeas relief and remand with 

instructions for the court to grant a conditional writ of habeas 

corpus.