NOT PRECEDENTIAL
UNTIED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 09

- 4529

_____________ MICHAEL BOETTLIN, JR.,

Appellant

v. PAUL K. SMEALS, SUPERINTENDENT; THE DISTRI CT ATTORNEY OF THE COUNTY OF BERKS, JOHN T. ADAMS, ESQ. THE ATTORNEY GENERAL OF THE STATE OF PENNYSLVANIA ,

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

- 0 8

- cv - 02 261 ) District Judge: Honorable Timothy J. Savage

____________________
Submitted under Third Circuit LAR 34.1(a)

on March 4, 2013

Before: RENDELL, AMBRO and VANASKIE, Circuit Judges

( Opinion filed: May 1, 2013 )

___________2 O P I N I O N

___________ RENDELL , Circuit Judge : Michael Boettlin appeals the District Court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. For the reasons that follow, we
will affirm the District Court ’s order of d ismissal

. I. In the early morning of July 25, 1987, Boettlin, then sixteen years old , and
his co

- defendant, John Calvaresi, broke into the apartment of Stanley Detweiler to commit robbery . When Detweiler confronted Boettlin and Calvaresi, Cal varesi tackled him and Boettlin kicked him multiple times in the face. Calvaresi later decapitated Detweiler. In addition to Detweiler’s body, the crime scene included words written in Detweiler’s blood on the apartment walls. Based on these events, Boet tlin was tried on several criminal charges before

a jury in Westmoreland County, Pennsylvania

. 1 Evidence at trial presented conflicting accounts of whether Boettlin was involve d in the beheading

. On August 15, 1988, the jury convicted Boettlin of first

- d egree murder, among other crimes, and he was sentenced to life imprisonment plus 20 to 40 years.
Boettlin timely appeal ed his sentence , which the Pennsylvania Superior Court affirmed on April 2, 1990. The Pennsylvania Supreme Court declined to

1 The criminal compl aint against Boettlin was filed in the Court of Common Pleas of Berks County, Pennsylvania. Upon an unopposed motion for change of venue, t he case was transferred to Westmoreland County for trial.3

review hi s appeal. Boettlin then timely initiated proceedings under the Pennsylvania Post Conviction Relief Act (“PCRA”) , including a claim of
ineffective assistance of counsel for failure to object to certain jury instructions for
first

- degree murder , which Boett lin claimed were defective . On November 16, 2005, the PRCA court dismissed the petition, concluding, in part , that the jury
instructions were consistent with Pennsylvania law, thereby rendering Boettlin’s
ineffective counsel claim meritless

. T he Pennsylv ania Superior Court affirmed the
dismissal , and the Pennsylvani a Supreme Court denied allocatur

. On May 15, 2008, Boettlin timely filed his 28 U.S.C. § 2254 petition for writ of habeas corpus with the United States District Court for the Eastern District of Pennsylvania, claiming that: (1) the improper jury instructions violated his due process rights ; and (2) his trial attorney’s failure to object to th ose instructions violated his Sixth Amendment right to effective assistance of counsel. 2 On
November 1 7, 2009, the District Court issued an order overruling Boettlin’s objections to a Magistrate Judge’s report and recommendation (“R&R”) , appro ving and adopting the recommendations, and dismissing Boettlin’s petition with prejudice . In adopti ng the R&R, the District Court determined that the trial court’s instructions on first

- degree murder accurately embodied Pennsylvania law,

2 Boettlin also asserted a violation of his Miranda rights , a claim that the District Court rejected and which Boettlin does not raise on appeal.4

and consequently Boettlin’s counsel was not ineffective for failing to object to
them. Boettlin timely filed a notice of appeal. 3
I I. 4 Central to Boettlin’s appeal is his contention that the trial court’s jury instructions effectively eliminated the Commonwealth’s burden to establish the specific intent requirement for first

- degree murder. As a result, he claims both
that the instruc tions violated his due process rights and that he received ineffective
assistance of counsel due to his attorney’s failure to object to the instructions.

3 In adopting the R&R, the District Court rejected the Commonwealth ’s contention that Boettlin’s due process claim is barred f or failure to exhaust in state court and i s now procedurally defaulted for failure to file within the PCRA’s one

year limitations period

. The Court determined that Boettlin ’s due process claim was fairly presented to the state courts through his ineffect ive assistance of counsel claim. Although the Commonwealth revives the same exhaustion and procedural default arguments on appeal, we will not address them because , as we will discuss, B oettlin’s due process claim is meritless and can be dismissed under 28 U.S.C. § 2254(b)(2). See Carrascosa v. McGuire , 520 F.3d 249, 255 & n.10 (3d Cir. 2008) ( holding that under Section 2254(b)(2) district courts may deny unexhausted claims on the merits).

4 The District Court had jurisdiction pursuant to 28 U.S.C. § 2254 , and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. B ecause the District Court ruled on the petition without holding an evidentiary hearing , o ur review is plenary. See Jacobs v. Horn , 395 F.3d 92, 99 (3d Cir. 2005). A federal court may grant habeas relief for a constitutional claim th at a state court has ad

judicated on the merits, and has “ 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.” 28 U.S.C. § 2254( d)(1). “Where , as here, it is the state court’s application of governing federal law th at is challenged, the decision must be shown to be not only erroneous , but objectively unreasonable. ” Waddington v. Sarausad , 555 U.S. 179 , 190 (2009) (internal quotati on marks omitted).5 “ In a criminal trial, the State must prove every element of the offense, and a jury instruction viola tes due process if it fails to give effect to that requirement. ”
Middleton v. McNeil , 541 U.S. 433, 43 7 (2004)

. An instruction violates due process when “the instruction contained some ambiguity , inconsistency, or deficiency,” and “there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element
of the c rime beyond a reasonable doubt. ” Williams v. Beard , 637 F.3d 195, 223 (3d Cir. 2011) (internal quotation marks omitted).
T h e jury instructions here did not relieve the Commonwealth of its burden of proving all elements of f irst

- degree murder

. In Pennsylvania , “ first

- degree murder requires the specific intent to kill, and that mens rea is also required of accomplices and co

- co nspirators .” Laird v. Horn , 414 F.3d 419 , 425 (3d Cir. 2005); see also 18 Pa. Cons. Stat. §§ 306 (c)

- (d), 2502(a )

. Boettlin claims that the instructions improperly suggested that the jury could convict him as an accomplice
to first

- degree murder so long a s Calvaresi had the specific intent to kill, and regardless of whether Boettlin, himself, possessed the specific intent to promote or facilitate the murder

. Specifically, t he parts of the jury charge that Boettlin claims are improper are as follows : [ I]f you find that John Calvaresi actually had the specific intent, and actually killed Stanley Detweiler, with specific intent, so that John Calvaresi’s crime was first degree murder, then, the only way that Michael Boettlin can also be found guilty of first d egree mu rder is if Michael Boettlin [was] an accomplice

. . . .

. . . .6 . . . You may find the D efendant guilty of murder in the first degree, if you are satisfied that each of the following 3 elements has been proven beyond a reasonable doubt

. F irst, tha t Stanley Detweiler is dead, sec ond, that an accomplice of the D efendant killed him, and third, that the killing was with specific intent to kill and with malice.

. . . .

. . . [Y]ou cannot find the Defendant guilty of first degree murder unless you are s atisfied beyond a reasonable doubt that he and/or his accomplice had a specific intent to kill. 2 Resp’t App. at 845:17

- 22; 848:25

- 849:6; 849:20

- 23

. However, we do not review parts of jury instructions in isolation, and we are “bound” to consider the ins tructions “as a whole.” Middleton , 541 U.S. at 43 7

. Thus, i n addition to th e specific language that Boettlin cites in his challenge , we are cognizant of the context in which the trial court made them. For example, the trial court initially instructed th e jury about what an accomplice was as follows: An accomplice may be defined as a person who knowingly and voluntarily cooperates with or aids another in the commission of a particular crime. Otherwise, it must have been the purpose of the accomplice to i ntend to commit the crime; that is, his conscious purpose, to commit the crime. 2 Resp’t App. at 836:7

- 12

. As another example, the trial court further explained that if the jury found that Calvaresi had the requisite specific intent and was guilty
of fir st

- degree murder, then

t he only way that Michael Boettlin can also be guilty of first degree murder is if Michael Boettlin [was] an accomplice; that is, with the intent of promoting or facilitating the first degree murder of Stanley Detwailer, he, Michael Boettlin, solicited, commanded, encouraged, or requested John Calvaresi to commit first degree murder upon Stanley Detweiler, or that Michael Boettlin aided, or agreed to aid, or attempted to aid John Calvaresi in planning or committing the first degree mu rder upon Stanley Detweiler.7

2 Resp’t App. at 845:20

- 846:4

. Upon reviewing the jury instructions in toto , w e agree with the District Court’s determination that “the entirety of the instructions to the jury were both reasonable and a proper recitation of Pennsylvania law.” Appellant App. at 22 (emphasis in original)

. Because the instructions embody an accurate reflection of
state law , they were neither ambiguous nor objectively unreasonable so as to relieve the Commonwealth of its burden of proving every element of the crime

. T he District Court did not err in concluding that the instructions did not violate Boettlin’s due process rights

. Furthermore, b ecause the jury instructions were not improper, the District Court properly concluded that Boettlin’s trial counsel was not deficient on these grounds. Boettlin’s claim of ineffe ctive assistance of counsel is unpersuasive

. III. Accordingly, we will affirm the District Court ’s order dismissing Boettlin’s petition for habeas relief

.