PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 16-1969

JEFFREY WORKMAN,

 Appellant

v.

SUPERINTENDENT ALBION SCI; DISTRICT 

ATTORNEY PHILADELPHIA; ATTORNEY GENERAL

PENNSYLVANIA

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(E.D. Pa. No.: 2-14-cv-02957)

District Judge: Honorable Paul S. Diamond

Argued: February 21, 2018

(Opinion filed: February 12, 2019)

Before: AMBRO, RESTREPO, and FUENTES, Circuit 

Judges
2

Marshall L. Dayan [ARGUED]

Lisa B. Freeland

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Catherine B. Kiefer [ARGUED]

Max Kaufman

 Acting Chief, Federal Litigation Unit

Ronald Eisenberg

 Deputy District Attorney, Law Division

John Delaney

 First Assistant District Attorney

Kelley B. Hodge

 District Attorney

Susan E. Affronti

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge.

This case arises from the shooting death of Lawson 

Hunt in August 2006. Appellant Jeffrey Workman was one of 

two people to shoot Hunt, and was convicted of first-degree 
3

murder in Pennsylvania on a theory of transferred intent. His 

trial counsel, pursuing what might generously be called a 

unique theory of criminal liability, did not meaningfully test 

the Commonwealth of Pennsylvania’s case. According to 

Workman, his trial counsel told him that he could not be 

convicted of murder because Hunt was already dead when he 

was struck by Workman’s bullet. Based on this representation,

Workman declined a plea bargain for a 20-year term of 

imprisonment. In post-conviction proceedings, Workman’s 

post-conviction counsel failed to make a claim for ineffective 

assistance of trial counsel based on trial counsel’s failure to 

present a cogent defense.

Workman appeals the dismissal of his petition for writ 

of habeas corpus under 28 U.S.C. § 2254, arguing that his trial 

counsel was constitutionally ineffective. Although his claim 

of ineffective assistance of trial counsel was procedurally 

defaulted in state post-conviction relief proceedings, he argues 

that his default should be excused because his state postconviction counsel rendered ineffective assistance. 

Respondents argue that Workman cannot show his attorneys 

rendered ineffective assistance and therefore cannot excuse his 

procedural default under Martinez v. Ryan.

1

Because Workman’s state post-conviction counsel’s 

assistance was ineffective and because his underlying 

ineffective assistance of trial counsel claim has some merit, we 

excuse his procedural default of his underlying claim under 

Martinez. Because, on the face of the record, trial counsel’s 

assistance was manifestly ineffective, we will vacate the Order 

 

1 566 U.S. 1 (2012).
4

of the District Court and remand with instructions to grant a 

conditional writ of habeas corpus.

I. Facts

A. The Shooting of Lawson Hunt

In August 2006, Gary Moses shot Lawson Hunt in 

Philadelphia, Pennsylvania. Hearing the shots, Workman 

found Hunt, saw Moses, and fired at Moses. Workman fired 

eight times. One bullet ricocheted off a solid object and struck 

Hunt in the chest. Hunt died as a result of his injuries. 

According to the assistant medical examiner, who testified at 

trial, either of the two bullets that struck Hunt could have been 

fatal.

B. Workman’s Trial

Workman was charged with first-degree murder, with 

Moses as a co-defendant. The Commonwealth’s theory of 

transferred intent argued that Workman, firing at Moses, had 

intended to kill Moses and therefore his intent to kill Moses 

transferred when his bullet struck Hunt. At trial, Assistant 

Medical Examiner Edwin Lieberman testified that Hunt’s 

death was caused by two gunshot wounds. He testified that the 

wound to Hunt’s chest, caused by the ricocheted bullet fired by 

Workman, was “much more immediately fatal,”2 but the other 

bullet (fired by Moses) “certainly [could have] cause[d] death,”

depending “upon the time between the shooting or the time 

he’s shot and the time he gets to the hospital and how quickly 

they can do something about it.”3 In other words, Lieberman 

 

2 App. at 196.

3

Id.
5

could not definitively state that Moses’s bullet, and not 

Workman’s, had killed Hunt. In fact, Lieberman testified that, 

based on the blood evidence surrounding the ricocheted bullet 

wound, he believed Hunt had still been alive when he was 

struck by the bullet fired by Workman. Workman’s trial 

counsel cross-examined Lieberman, but this cross-examination 

focused on eliciting testimony that Lieberman could not 

establish that Workman’s bullet hit Hunt before Moses’s 

bullet.

At the conclusion of the Commonwealth’s case-inchief, Workman’s counsel moved for a judgment of acquittal. 

He argued that because Moses fired first and because “to a 

reasonable medical certainty the first bullet killed” Hunt, 

Workman could not be convicted because “he has fired into the 

body of a man that is dead and you can’t kill a dead man.”

4

 He 

made this argument despite Lieberman’s testimony, which 

included the opinion that Hunt was alive when struck by 

Workman’s bullet. The Commonwealth pointed out that 

inconsistency. The trial court denied the motion.

Having reserved his opening statement for the 

beginning of Workman’s case-in-chief, Workman’s trial 

counsel simply stated:

Ladies and gentlemen of the jury, 

you’ve been very patient for six or 

seven days. I will inform you now 

as the judge will later charge you, 

Jeffrey Workman will not present 

any evidence. So I’m opening to 

 

4 App. at 231.
6

you and not saying that we’re 

presenting anything. You’ll get 

the full impact of that when the 

judge charges you later in the case. 

Thank you very much.5

Workman’s counsel called no witnesses and presented 

no evidence, resting immediately. Workman’s counsel also 

requested that the jury be instructed on voluntary and

involuntary manslaughter and defense of others. In closing, 

Workman’s trial counsel reiterated his theory: that because 

codefendant Moses shot Hunt first, the Commonwealth could 

not establish that Workman killed Hunt beyond a reasonable 

doubt. Despite Lieberman’s testimony regarding the blood 

evidence suggesting that Hunt survived the immediate 

aftermath of Moses’s gunshot, Workman’s trial counsel stated:

But the point of the matter is [Hunt 

is] fired on by the first bullet. He 

goes down. The blood spots are 

near or at that spot. No showing 

that he moved around or did 

anything. He’s dead. He’s dead 

from the first bullet. And when the 

doctor has – and this is the last 

thing I’m going to say about that –

the unmitigated gall in his position 

as a Philadelphia medical 

examiner to come into this 

courtroom and tell you the man 

was alive when the ricochet hit him 

 

5 App. at 265.
7

and he doesn’t know where the 

ricochet shot comes from . . . at 

that given point you must conclude 

that they have not proved their case 

beyond a reasonable doubt 

because the doctor’s testimony is 

absolutely incredulous.6

In his closing remarks, counsel did not mention Workman’s 

intent to kill or to defend Hunt, despite requesting instructions 

on involuntary and voluntary manslaughter as well as defense 

of others.

The jury convicted Workman of first-degree murder. It 

acquitted Moses. Workman received a mandatory sentence of 

life imprisonment without parole.

C. Workman’s State Post-Conviction

Proceedings

Workman’s first opportunity to raise a claim regarding 

the performance of his trial counsel was during Pennsylvania 

post-conviction proceedings under the Post Conviction Relief 

Act.7 After being appointed counsel and filing an amended 

petition, Workman’s petition raised a single claim: “ineffective 

assistance of trial counsel for failing to request a jury 

instruction that indicated that the transferred intent doctrine 

also applied to the petitioner’s claim of defense of use of force 

to protect a third person.”8

 

6 App. at 275.

7 42 Pa. Cons. Stat. § 9541, et seq.

8 App. at 329.
8

Workman’s state post-conviction counsel did not raise 

any argument concerning Workman’s trial counsel’s failure to 

present evidence or argue consistently with the evidence 

presented to the jury.

The Superior Court of Pennsylvania, addressing the 

claim, found that “review of the certified record reveals that 

the trial court gave a thorough jury instruction regarding the 

defense of force to protect a third person.”9 It concluded that 

the “nonsensical claim of ineffective assistance of counsel 

lack[ed] merit,” and noted that “even if we could make sense 

of [Workman’s] argument, he fails to establish how inclusion 

of the requested jury instructions would have been so 

influential that it would have likely changed the outcome of 

[Workman’s] trial.”10

D. Workman’s Habeas Proceedings

Workman petitioned for a writ of habeas corpus under 

28 U.S.C. § 2254 in the District Court. One ground upon which 

he petitioned was that he was denied the effective assistance of 

counsel at trial and on direct appeal.11 Proceeding pro se, he 

stated that “[t]rail [sic] counsel told me that given the 

[C]ommonwealth’s case and evidence as a whole there was no 

way under the law I could be convicted, which impacted my 

 

9 App. at 344.

10 Id.

11 Workman’s trial counsel continued to represent Workman 

on direct appeal. Nevertheless, procedural default of 

ineffective assistance of direct appeal counsel is not eligible to 

be excused under Martinez. See Davila v. Davis, 137 S. Ct. 

2058, 2063 (2017).
9

decisions through out [sic] the proceedings.”12 He alleged in 

his petition that he included this in his initial post-conviction 

motion, but his appointed post-conviction counsel “did not 

brief it to the courts.”13 He did not specifically allege that he 

told post-conviction counsel of this claim in his petition. He 

did, however, specifically allege that, with regard to this claim,

the Commonwealth failed to prove he killed Hunt. Further, in 

his reply to Respondents’ Answer to Workman’s habeas 

petition, Workman stated:

Also again to clarify what is meant 

by this claim of ineffectiveness 

[sic] assistance of counsel was not 

to limit the claim to the advice of 

counsel, but to counsel’s overall 

performance. . . . Counsel did not 

only tell me this [deficient advice], 

he used it as his sole defense at 

trial.

14

In his reply, Workman also stated that counsel’s 

ineffective assistance “ultimately lead [sic] me to deny a plea 

offer, [and to] not testify.”15

The petition was referred to a Magistrate Judge, who 

issued a Report and Recommendation that the petition be 

dismissed. The Magistrate Judge concluded that Workman’s 

claims were without merit. In his objections to the Report and 

 

12 App. at 355.

13 Id.

14 App. at 442 (emphasis added).

15 Id.
10

Recommendation, Workman stated that his trial counsel’s 

conduct led him to deny a plea agreement offered by the 

Commonwealth of between ten and twenty years’ 

imprisonment. Moreover, Workman also stated that but for 

trial counsel’s statement that he could not be convicted, he

would have testified in his own defense.

The District Court adopted the Magistrate Judge’s 

Report and Recommendation. With respect to Workman’s 

ineffective-assistance-of-counsel claims, which are before us 

now, it held that Workman could not excuse procedural default 

under Martinez. The District Court refused to consider 

Workman’s allegations regarding his failure to accept the plea 

offer and his failure to testify, because it mistakenly believed 

these allegations were first raised in his objections to the report 

and recommendation. It concluded that Workman had not 

shown prejudice from trial counsel’s allegedly deficient 

performance, though it did not conclude that trial counsel’s 

performance was deficient, because Workman did not specify 

“the alternate actions he would have taken but for trial 

counsel’s purportedly defective advice.”16 It concluded that 

Workman’s post-conviction counsel was not deficient. Noting 

that it presumed the reasonableness of post-conviction 

counsel’s strategic choices, the Court stated that Workman’s 

ability to rebut that presumption was undermined by 

Workman’s failure to allege either of two events. First, 

Workman failed to allege that he informed his post-conviction 

counsel that his trial counsel told him that he could not be 

convicted. Second, Workman failed to allege that his postconviction counsel was aware of this allegation. The District 

 

16 App. at 23.
11

Court dismissed the petition, and Workman applied for a 

certificate of appealability.

E. Proceedings Before This Court

We granted a certificate of appealability in October 

2016. In January 2018, we amended the certificate of 

appealability sua sponte. The amended certificate states, in 

full:

The foregoing request for a 

certificate of appealability is 

granted as to Workman’s claim 

that trial counsel rendered 

ineffective assistance of counsel 

when he gave erroneous advice 

that Workman could not be 

convicted and thus failed to 

present a cogent defense strategy 

at trial. Jurists of reason might 

well agree that this claim is 

procedurally defaulted, as it was 

not presented to the Superior Court 

and Pennsylvania courts would 

now refuse to consider the claim in 

a new Post Conviction Relief Act 

(“PCRA”) petition. See 42 Pa.

C.S. § 9545(b); Slack v. McDaniel, 

529 U.S. 473, 484 (2000). 

However, “[w]here, under state 

law, claims of ineffective 

assistance of trial counsel must be 

raised in an initial-review 

collateral proceeding, a procedural 
12

default will not bar a federal 

habeas court from hearing a 

substantial claim of ineffective 

assistance at trial if, in the initialreview collateral proceeding, there 

was no counsel or counsel in that 

proceeding was ineffective.” 

Martinez v. Ryan, 132 S. Ct. 1309, 

1320 (2012). Jurists of reason 

could debate whether Workman’s 

claim that trial counsel was 

ineffective for providing erroneous 

advice that he could not be 

convicted and thus failed to 

present any cogent defense at trial, 

causing him to reject a plea offer, 

was substantial. Strickland v. 

Washington, 466 U.S. 668, 687-

88, 694 (1984). Jurists of reason 

could also debate whether PCRA 

counsel was ineffective for failing 

to raise the claim on initialcollateral review. On this ground 

only, we find that the District 

Court’s procedural ruling is 

debatable and that Workman has 

met his burden of making a 

substantial showing of the denial 

of a constitutional right. Slack v. 

McDaniel, 529 U.S. 473, 484 

(2000). The application for a 

certificate of appealability is 

denied as to all other issues.
13

Notably, jurists of reason would 

agree that evidence was sufficient 

to support Workman’s 

convictions. Jackson v. Virginia, 

443 U.S. 307, 319 (1979).

II. Discussion17

Workman’s claim of ineffective assistance of trial 

counsel on the basis of trial counsel’s failure to present a 

cogent defense and trial counsel’s defective advice was never 

presented to the state courts in post-conviction relief 

proceedings. It is procedurally defaulted. Accordingly, he 

must rely on the exception established by Martinez.

A. Excusing Procedural Default Under Martinez 

v. Ryan

Martinez recognizes a narrow exception to the doctrine 

of procedural default: “Inadequate assistance of counsel at 

initial-review collateral proceedings may establish cause for a 

prisoner’s procedural default of a claim of ineffective 

assistance at trial.”18 This exception is available to a petitioner 

who can show that: 1) his procedurally defaulted ineffective 

assistance of trial counsel claim has “some merit”

19; and that 

2) his state-post conviction counsel was “ineffective under the 

 

17 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We 

review the legal conclusions of the District Court de novo. 

Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).

18 Martinez, 566 U.S. at 9.

19 Id. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322 

(2003)).
14

standards of Strickland v. Washington.”20 We explain these

requirements in turn.

The Underlying Claim Must Have 

“Some Merit”

To excuse procedural default on an ineffective

assistance of trial counsel claim under Martinez, that claim 

must be substantial—it must have “some merit.”21 Miller-El v. 

Cockrell, the case on which the Supreme Court based its 

description of what a “substantial claim” entails, concerns the 

standards for issuing a certificate of appealability. To 

demonstrate that his claim has some merit, a petitioner must 

“show that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a 

different manner or that the issues presented were adequate to 

deserve encouragement to proceed further.”22

This is different from the standard applied on the merits 

under Strickland v. Washington.

23 That standard requires a 

petitioner to show counsel was “deficient,” meaning “that 

counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed to the defendant by the 

Sixth Amendment.”24 A petitioner must also show that “the 

deficient performance prejudiced the defense,” which 

“requires showing that counsel’s errors were so serious as to 

 

20 Id.

21 Id. (citing Miller-El, 537 U.S. 322).

22 Miller-El, 537 U.S. at 336 (internal citation, quotation 

marks, and alteration omitted).

23 466 U.S. 668 (1984).

24 Id. at 687.
15

deprive the defendant of a fair trial.”25 This is an exacting 

standard,26 reflecting the reluctance of the courts to secondguess strategic decisions made by counsel.

State Post-Conviction Counsel Must Be 

Ineffective

A substantial claim alone is not sufficient to excuse a 

petitioner’s procedural default. Martinez holds that state postconviction counsel must be “ineffective under the standards of 

Strickland v. Washington” to excuse the procedural default of 

the underlying claim.27

We have described Strickland as containing two prongs, 

both of which must be met to sustain a claim of ineffective 

assistance of counsel: the “performance” and “prejudice” 

prongs.28 The “performance” prong refers to Strickland’s 

 

25 Id.

26 See Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) 

(noting that the Strickland standard is “highly demanding”).

27 Martinez, 566 U.S. at 14.

28 See Bey v. Superintendent Greene SCI, 856 F.3d 230, 238 

(3d Cir. 2017) (“To prove ineffective assistance of counsel 

under Strickland v. Washington, 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

counsel’s deficient performance prejudiced his client,’ i.e., that 

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

unprofessional errors, the result of the proceeding would have 

been different.’ We have previously referred to these as the 

‘performance’ and ‘prejudice’ prongs of the Strickland test.”

(citation omitted)).
16

requirement that “counsel’s representation fell below an 

objective standard of reasonableness.”29 The “prejudice” 

prong refers to Strickland’s requirement that a petitioner show 

“a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.”

30

For Workman to show that his state post-conviction 

counsel’s deficient performance caused prejudice under 

Strickland, he must show that his state post-conviction counsel 

could have obtained a different result had he presented the 

now-defaulted ineffective-assistance-of-trial-counsel claim. 

In other words, he must prove the merits of his underlying 

ineffective-assistance-of-trial-counsel claim in order to excuse 

the procedural default of that claim and obtain consideration 

on the merits. At this stage, what is important is that the 

underlying ineffective-assistance-of-trial-counsel claim is 

“substantial,” not that a petitioner has, in fact, been 

“prejudiced” by trial counsel’s deficient performance under 

Strickland.

If the use of the word “substantial” and the phrase 

“some merit” rather than “prejudicial” does not make it 

explicit, the Supreme Court clearly implies, by relying on 

Miller-El v. Cockrell in its requirement that the claim be 

substantial, that the underlying ineffective-assistance-of-trialcounsel claim must be evaluated under a standard less exacting 

than Strickland prejudice.31 In Martinez, the Court

 

29 Strickland, 466 U.S. at 687–88.

30 Id. at 694.

31 See Martinez, 566 U.S. at 14; Bey, 856 F.3d at 238 

(interpreting Martinez as “suggesting that we apply the 
17

acknowledged that an unrepresented or ineffectively 

represented prisoner likely cannot vindicate an ineffectiveassistance-of-trial-counsel claim:

Without the help of an adequate 

attorney, a prisoner will have 

similar difficulties vindicating a 

substantial ineffective-assistanceof-trial-counsel claim. Claims of 

ineffective assistance at trial often 

require investigative work and an 

understanding of trial strategy. 

When the issue cannot be raised on 

direct review, moreover, a prisoner 

asserting an ineffective-assistanceof-trial-counsel claim in an initialreview collateral proceeding

cannot rely on a court opinion or 

the prior work of an attorney 

addressing that claim. . . . To 

present a claim of ineffective 

assistance at trial in accordance 

with the State’s procedures, then, a 

prisoner likely needs an effective 

attorney.

The same would be true if the State 

did not appoint an attorney to assist 

in the initial-review collateral 

proceeding. The prisoner, 

 

standard for issuing certificates of appealability in resolving 

the inquiry into what constitutes a ‘substantial’ claim”).
18

unlearned in the law, may not 

comply with the State’s procedural 

rules or may misapprehend the 

substantive details of federal 

constitutional law. . . . While 

confined to prison, the prisoner is 

in no position to develop the 

evidentiary basis for a claim of 

ineffective assistance, which often 

turns on evidence outside the trial 

record.32

Martinez also recognizes that “[a] finding of cause and 

prejudice does not entitle the prisoner to habeas relief. It 

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

that otherwise would have been procedurally defaulted.”

33

Two other appellate courts have considered the role of 

Martinez’s “substantial” requirement and whether the 

underlying ineffective-assistance-of-trial-counsel claim must 

also be analyzed under the exacting bar of Strickland. In our 

view, and in accordance with the view shared by the Seventh

and Ninth Circuits, when a petitioner shows that postconviction relief counsel’s performance was unreasonably 

deficient, the requirement that the deficient performance result 

in prejudice may be satisfied “with a substantial claim of 

ineffective assistance of trial counsel that would otherwise 

have been deemed defaulted.”34

 

32 Martinez, 566 U.S. at 11–12 (internal citations omitted).

33 Id. at 17.

34 Brown v. Brown, 847 F.3d 502, 513 (7th Cir. 2017) (citing 

Detrich v. Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013)).
19

In Detrich v. Ryan,

35 the Ninth Circuit considered the 

application of Martinez in light of Trevino v. Thaler.

36

 In 

Trevino, the Supreme Court set out the four requirements of 

Martinez:

We consequently read Coleman as 

containing an exception, allowing 

a federal habeas court to find 

“cause,” thereby excusing a 

defendant’s procedural default, 

where (1) the claim of “ineffective 

assistance of trial counsel” was a 

“substantial” claim; (2) the 

“cause” consisted of there being 

“no counsel” or only “ineffective” 

counsel during the state collateral 

review proceeding; (3) the state 

collateral review proceeding was 

the “initial” review proceeding in 

respect to the “ineffectiveassistance-of-trial-counsel claim”; 

and (4) state law requires that an 

“ineffective assistance of trial 

counsel [claim] . . . be raised in an 

initial-review collateral 

proceeding.”37

Addressing “prejudice,” the Ninth Circuit recognized that: 

 

35 740 F.3d 1237 (9th Cir. 2013).

36 569 U.S. 413 (2013).

37 Id. at 423 (citing Martinez, 566 U.S. at 12–18).
20

If a prisoner who had [postconviction relief] counsel were 

required to show prejudice, in the 

ordinary Strickland sense, 

resulting from his [post-conviction 

relief] counsel’s deficient 

performance in order to satisfy the 

second Martinez requirement, the 

prisoner would have to show, as a 

condition for excusing his 

procedural default of a claim, that 

he would succeed on the merits of 

that same claim.38

The Ninth Circuit rejected that notion. The Court 

concluded that, “for the narrow purpose of satisfying the 

second Martinez requirement to establish ‘cause,’ a prisoner 

need only show that his [post-conviction relief] counsel 

performed in a deficient matter.”39 The Court explained that 

“[a] prisoner need not show actual prejudice resulting from his 

[post-conviction relief] counsel’s deficient performance, over 

and above his required showing that the [ineffectiveassistance-of-trial-counsel] claim be ‘substantial’ under the 

first Martinez requirement.”40 

The Ninth Circuit also considered Justice Breyer’s 

statement “respecting the denial of the petition for the writ of 

 

38 Detrich, 740 F.3d at 1246.

39 Id. at 1245.

40 Id. at 1245–46.
21

certiorari” in Gallow v. Cooper,

41 understanding him to 

distinguish between “cause” under the second prong of 

Martinez and “cause and prejudice” under Strickland: “That is, 

cause and prejudice under Strickland are determined separately 

from, and after, a determination of ‘cause’ under Martinez.”42 

Justice Breyer, who wrote for the Court in Trevino, wrote in 

Gallow that “[t]he ineffective assistance of state habeas 

counsel might provide cause to excuse the default of the claim, 

thereby allowing the federal habeas court to consider the full 

contours of Gallow’s ineffective-assistance claim.”43 We

agree with the Ninth Circuit’s analysis. Whether the 

ineffectiveness of post-conviction relief counsel provided 

cause to excuse procedural default is separate from the 

question of whether an ineffective-assistance-of-trial-counsel 

claim would prevail on the merits.

In Brown v. Brown,

44 the Seventh Circuit adopted the 

Ninth Circuit’s rule as follows: “To demonstrate cause under 

Martinez-Trevino, the petitioner must show deficient 

performance by counsel on collateral review as required under 

the first prong of the Strickland analysis. . . . Actual resulting 

prejudice can be established with a substantial claim of 

ineffective assistance of trial counsel that would otherwise 

have been deemed defaulted.”45 

This rule is sensible, workable, and a proper reading of 

Martinez. If Workman shows that his underlying ineffective-

 

41 570 U.S. 933 (2013).

42 Detrich, 740 F.3d at 1246.

43 Gallow, 570 U.S. at 933.

44 847 F.3d 502 (7th Cir. 2017)

45 Id. at 513 (internal citations omitted).
22

assistance-of-trial-counsel claim has some merit and that his 

state post-conviction counsel’s performance fell below an 

objective standard of reasonableness, he has shown sufficient 

prejudice from counsel’s ineffective assistance that his 

procedural default must be excused under Martinez.

46

B. Workman’s Underlying Claim Has “Some 

Merit”

On the question presented by the amended certificate of 

appealability, Workman’s claim has “some merit” under the 

standard contemplated by Martinez. Respondents argue that 

the claim that Workman’s trial counsel was constitutionally 

ineffective for failing to present a cogent defense was not 

presented to the District Court and, therefore, was waived by 

Workman.

We disagree that Workman waived this claim. “A 

habeas corpus petition prepared by a prisoner without legal 

assistance may not be skillfully drawn and should thus be read 

generously. ‘It is the policy of the courts to give a liberal 

construction to pro se habeas petitions.’”47 Reviewing the 

events at trial reflected by the record and the habeas petition 

 

46 See Preston v. Superintendent of Graterford SCI & Att’y 

Gen. of Pa., No. 16-3095, slip op. at 21-22 (3d Cir. Sept. 5, 

2018) (stating that “[a]ctual resulting prejudice” may be 

established “with a substantial claim of ineffective 

assistance of trial counsel” (quoting Brown, 846 F.3d at 

513)).

47 Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (quoting 

United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 

555 (3d Cir. 1969)).
23

prepared pro se by Workman, we construe his third ground for 

relief in his petition to raise a claim of ineffective assistance of 

trial counsel based on trial counsel’s defective defense, which 

included calling no witnesses, presenting no evidence, and 

arguing inconsistently with the testimony in evidence.

C. Workman’s Post-Conviction Counsel

Rendered Ineffective Assistance

Workman’s state post-conviction counsel failed to 

recognize the merit of Workman’s claim that trial counsel was 

constitutionally ineffective for failing to present a cogent 

defense. In a case in which trial counsel presented no witnesses

or evidence and appeared on the face of the record to be unable 

to adapt to the medical examiner’s testimony that Hunt was 

alive when the ricocheted bullet struck him in the chest, 

Workman’s state post-conviction counsel presented one claim 

in PCRA proceedings: “ineffective assistance of trial counsel 

for failing to request a jury instruction that indicated that the 

transferred intent doctrine also applied to the petitioner’s claim 

of defense of use of force to protect a third person.”48 The 

Superior Court found that claim “nonsensical,” to the extent 

that it could not determine what exactly Workman, through 

state post-conviction counsel, claimed.49

There is a “strong presumption” that an attorney’s 

decision to pursue some claims and decline to pursue others is 

a tactical choice.50 However, this presumption is not 

 

48 App. at 329.

49 Id.

50 Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (“When counsel 

focuses on some issues to the exclusion of others, there is a 
24

invincible: “A petitioner may rebut the suggestion that the 

challenged conduct reflected merely a [tactical] choice . . . by 

showing that counsel omitted significant and obvious issues 

while pursuing issues that were clearly and significantly 

weaker.”51

Here, a significant and obvious issue existed: trial

counsel’s utter and complete failure to test the 

Commonwealth’s case with appropriate cross-examination of 

Lieberman, his failure to present witnesses (either fact or 

expert) in support of his position, or to adapt his argument to 

the testimony in evidence instead of simply asserting the 

contrary statement that “[Hunt is] dead. He’s dead from the 

first bullet.” 52 State post-conviction counsel overlooked these 

errors, as is apparent from his letter to Workman that said, 

“Contrary to your assessment, a review of the notes of 

testimony does not reveal ‘numerous issues of ineffective 

assistance of counsel.’ Trial counsel’s argument to the jury 

was an attempt to save you from a first[-]degree murder 

conviction.”53

Moreover, the claim that state post-conviction counsel 

chose to pursue was clearly and significantly weaker. The

Superior Court held that the “nonsensical claim of ineffective 

assistance of counsel lack[ed] merit.”54 It further stated that 

 

strong presumption that he did so for tactical reasons rather 

than through sheer neglect.”).

51 McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999)

(citation and quotation marks omitted). 

52 App. at 275.

53 App. at 460.

54 App. at 344.
25

“even if we could make sense of [Workman’s] argument, he 

fails to establish how inclusion of the requested jury 

instructions would have been so influential that it would have 

likely changed the outcome of [Workman’s] trial.”55

 

The evident weakness of this claim is not merely 

illuminated with the benefit of hindsight, as a “review of the 

certified record reveals that the trial court gave a thorough jury 

instruction regarding the defense of force to protect a third 

person.”56 In other words, it appears that state post-conviction 

counsel’s claim was that trial counsel was ineffective for 

failing to request a jury instruction that was actually given. 

This is the epitome of a doomed claim. 

In our view, Workman has rebutted the presumption 

that state post-conviction counsel made a strategic choice in 

omitting the issue of trial counsel’s failure to present a cogent 

defense, and that state post-conviction counsel’s performance 

was deficient under the “performance” prong of Strickland. 

We therefore conclude that Workman has satisfied the 

requirements of Martinez. The procedural default of his 

ineffective-assistance-of-trial-counsel claim is excused.

D. The Ineffective Assistance of Workman’s 

Trial Counsel Violated Workman’s Sixth 

Amendment Right to Counsel

Once procedural default is excused, “our review of a 

petitioner’s claim is de novo because the state court did not 

 

55 Id.

56 Id.
26

consider the claim on the merits.”57 Our review of Workman’s 

claim for ineffective assistance of trial counsel proceeds under 

the two prongs of Strickland v. Washington,

58 which require 

Workman to show both that “counsel’s performance was 

deficient” and that he was prejudiced as a result.

59

Workman’s trial counsel’s performance was deficient 

under Strickland even without considering allegations of 

defective advice and purported plea agreements. To establish 

deficient performance, a “defendant must show that counsel’s 

representation fell below an objective standard of 

reasonableness.”60 However, “to eliminate the distorting 

effects of hindsight . . . . a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, 

the challenged action ‘might be considered sound trial 

strategy.’”

61

 Nonetheless, “[w]here the deficiencies in 

counsel’s performance are severe and cannot be characterized 

as the product of strategic judgment, ineffectiveness may be 

clear.”62 Ultimately, “[t]he relevant question is not whether 

 

57 Bey, 856 F.3d at 236 (citing Bronshtein v. Horn, 404 F.3d 

700, 710 n.4, 715 (3d Cir. 2005)).

58 466 U.S. 668 (1984).

59 Id. at 687. Although the Court here conducts its own 

analysis under Strickland, the Commonwealth concedes in its 

Supplement to Petition for Rehearing and Rehearing En Banc 

that relief under Strickland is proper.

60 Id. at 688.

61 Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)).

62 United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)
27

counsel’s choices were strategic, but whether they were 

reasonable.”63

The record is clear that counsel’s performance was 

deficient. In response to Lieberman’s testimony, which 

indicated that the blood evidence revealed that Hunt was alive 

when he was shot in the chest by the ricocheted bullet fired by 

Workman, trial counsel argued that Lieberman possessed 

“unmitigated gall.”64 Trial counsel did not call an expert 

witness to rebut Lieberman’s testimony, or call any fact 

witnesses. Trial counsel’s cross-examination of Lieberman 

focused solely on establishing that Workman’s bullet did not 

hit Hunt first. At best, trial counsel established that Lieberman 

could not conclusively state that Workman’s bullet hit Hunt 

before Moses’s. He utterly failed to contend with Lieberman’s 

testimony that Moses’s bullet hit Hunt first, but Hunt remained 

alive when Workman’s bullet struck Hunt. 

“[T]he adversarial process protected by the Sixth 

Amendment requires that the accused have ‘counsel acting in 

the role of an advocate.’”65 Workman’s trial counsel acted as 

an advocate not of his client but of his theory—that one cannot 

kill a dead man, and therefore the jury could not convict 

Workman of homicide—all contrary to the facts and testimony 

before the jury. Any objective standard of reasonableness 

requires counsel to understand facts and testimony and adapt 

to them, even at the expense of purportedly clever theories. 

Workman’s trial counsel appears to have misunderstood or 

 

63 Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).

64 App. at 275.

65 United States v. Cronic, 466 U.S. 648, 656 (1984) (quoting 

Anders v. California, 386 U.S. 738, 743 (1967)).
28

willfully neglected this when faced with Lieberman’s 

testimony. No sound strategy would support counsel’s 

choices,66 and counsel’s performance falls below an objective

standard of reasonable performance.67

Under Strickland, this deficient performance must be 

paired with specific prejudice—a “reasonable probability that, 

but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.”

68

 A “reasonable 

probability is a probability sufficient to undermine confidence 

in the outcome.”

69

 Counsel’s failure in this case prejudiced 

Workman. Counsel failed to present a case on behalf of his 

client and, when cross-examining the Commonwealth’s 

witnesses, failed to modify his theory of the case to account for 

the evidence presented by the Commonwealth. Workman’s 

counsel wholly failed to rebut the Commonwealth’s evidence, 

 

66 Cf. Lewis v. Horn, 581 F.3d 92, 114 (3d Cir. 2009); Thomas 

v. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (“In cases in which 

the record does not explicitly disclose trial counsel’s actual 

strategy or lack thereof (either due to lack of diligence on the 

part of the petitioner or due to the unavailability of counsel), 

the presumption may only be rebutted through a showing that 

no sound strategy posited by the Commonwealth could have 

supported the conduct.”).

67 Even as early as the preliminary hearing, Lieberman testified 

that either gunshot wound would have been fatal to Hunt. 

Thus, before trial began, counsel had notice that the 

Commonwealth had some evidence that cut against Workman. 

Counsel chose to ignore it and press his own theory to 

Workman’s detriment.

68 Strickland v. Washington, 466 U.S. 668, 694 (1984).

69 Id.
29

instead stating in his closing statement that Lieberman’s 

testimony was supported only by “unmitigated gall.” Counsel 

also requested jury instructions on involuntary and voluntary 

manslaughter and defense of others, in an effort to establish 

that Workman acted in defense of Hunt. Counsel, however,

did nothing to support a conviction for those lesser offenses. 

Although the Commonwealth mounted a strong case against 

Workman, he is required here only to show that but for 

counsel’s unprofessional errors there is a reasonable

probability that the outcome of the proceeding would have 

been different. He has met that burden.

As a result, we hold that Workman’s trial counsel was 

constitutionally ineffective. Workman is entitled to habeas 

relief under 28 U.S.C. § 2254.

III. Conclusion

For the foregoing reasons, we will vacate the order of 

the District Court and remand with instructions to grant a 

conditional writ of habeas corpus.