PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 16

- 1908

_____________

TONY L. BENNETT, Appellant

v.

SUPERINTENDENT GRATERFORD SCI;
ATTORNEY GENERAL PENNSYLVANIA

______________

Appeal from the United States Distric t Court for the Eastern District of Pennsylvania (D.C. No. 2

- 13

- cv

- 01203) District Judge: Honorable James Knoll Gardner

_____________

Argued: May 9, 2017

______________

Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges

.

(Filed: March 26 , 2018 )

______________2 Richa rd H. Frankel , Esq. Ke Gang, Student Counsel [ ARGUED] Mischa Wheat, Student Counsel [ ARGUED] Appellate Litigation Clinic Drexel University Kline School of Law
3320 Market Street Philadelphia, PA 19104

Counsel for Appellant

Christopher P. Lynett , Esq. [ ARGUED] Simran Dhillon, Esq.
Susan E. Affronti , Esq. Philadelphia County Office of District Attorney Three South Penn Square Philadelphia, PA 19107

- 3499

Counsel for Appellees

______________

OPINION OF THE COURT

______________

RESTREPO

, Circuit Judge

.

In 1990, nineteen year old Tony Bennett was sitting in the passenger seat of a getaway car when his conspirator entered a jewelry store to commit a robbery, shooting the clerk and killing her

. Bennett was convicted of first degree
murder. A fter a capita l sentencing hearing, the jury returned

a sentence of life imprisonment without the possibility of parole

. T wo state courts later vacated Bennett’s first degree3 murder conviction , finding that the trial court erroneously
instructed the jury that it could convict Bennett of first degree
murder based on the shooter ’s intent to kill

. Bennett never got relief; i nstead, the Pennsylvania Supreme Court reversed

. Before us is B ennett’s habeas corpus petition, asserting that
the trial court’s erroneous jury instr uctions deprived him of due process of law under the United States Constitution

. Applying de novo review, we agree and w ill grant the writ

.

I

. Factual and Procedural Background

A

. Trial and Sentencing

The Pennsylvania Supreme Court summarized the
fac tual history of this case as follows:

[Bennett] conspired with four individuals, Michael Mayo, Kecia Ray, Kevin Wyatt, and Paul Johnson, to rob a jewelry store in Philadelphia at gunpoint. The
store was selected because a salesperson, Ms. Ju Yang Lee,
ha d made what the conspirators believed to be an insultingly low offer for a gold chain that Mayo and Johnson earlier had sought to

pawn. Appellee Bennett supplied the loaded gun, but did not enter the store, remaining in the getaway car with Wyatt. Mayo

a nd Johnson were caught on videotape entering and robbing4 the store. During the robbery, Mayo shot Ms. Lee with [Bennett]’s gun, killing her.

Commonwealth v. Bennett (Bennett VI ) , 57 A.3d 1185, 1187 (Pa. 2012).

Bennett proceeded to a jury trial on ch arges of murder, criminal conspiracy, possession of an instrument of crime

, and robbery. The Commonwealth charged mur der generally

, and the trial court instructed the jury on first , second, and third degree murder, as well as voluntary manslaughter

. The Commonwealth also charged conspiracy generally. T he trial
court instructed the jury that the objective of the conspiracy was murder, robbery, possession of an instrument of crime

, and a firearms offense

.

Bennett was tried jointly with two other non

- shoo ters, Johnson and Wyatt. Johnson entered the jewelry store with the shooter. Wyatt, like Bennett, remained in the getaway

car. Id

. The fourth non

- shooter, Ray, testified for the
Commonwealth and later received a lenient sentence

. 1 Mayo, the shooter, w as initially on trial with Johnson and Wyatt, but during jury selection suffered “an acute psychotic episode” requiring hospitalization. App. 284. Mayo was declared incompetent after voir dire and his case severed.

Bennett was charged capitally. 2 Under Pennsylvania law, the Commonwealth could only obtain a death sentence if

1 Ray was sentenced to fourteen to twenty

- eight months’ incarceration and ten years’ probation.

2 So too were co

- defendants Johnson and Wyatt

.5 the jury convicted Bennett of first degree murder. See 18

Pa. Cons. Stat. § 1102 (a)(1) . Therefore, f rom the start of trial,
a central issue was whether Bennett was guilty of this o ffense

. See Bennett VI , 57 A.3d at 1204 n.12. F irst degree murder in Pennsylvania requires that each defendant have the specific
intent to kill. 18 Pa. Cons. Stat. § 2502 (a)

. A n accomplice or conspirator cannot be convicted of first degree murder based
on the specific intent to kill of the principal

. See Commonwealth v. Huffman , 638 A.2d 961, 962 (Pa. 1994) ( citing Commonwealth v. Bachert

, 453 A.2d 931, 935 (Pa.
1982 ))

.

At Bennett’s trial, the Commonwealth never argued that Bennett had the specific i ntent to kill. Rather, its theory
was that he was guilty of first degree murder solely because he was an accomplice and conspirator of the shooter. In the
Commonwealth’s opening statement, the prosecutor told the jury that “ lest you think I am crazy for saying [Bennett, Johnson and Wyatt] are guilty of first degree murder, when I told you that Michael Mayo fired the fatal shots .

. . I will urge upon you that the law of conspiracy makes all of these
defendants first degree murderers.” App. 31 2

- 1 3. In cl osing,
the prosecutor argued that “accomplices are equally guilty with the principal. First degree murder, intent to kill. There is no doubt, there can be no doubt tha t [the shooter] Michael Mayo intended to kill [the victim].

. . . C o

- conspirators and

a ccomplices are equally guilty with the principal.” App. 59 1

- 9 2

.

T his argument

— that an accomplice or conspirator is “equally guilty” of first degree murder

— w as inc orrect as a matter of state law. Nevertheless, the trial court echoed it in6 its jury instr uctions. Bennett’ s petition turns on these jury instructions, and so we describe them in detail.

First, t he trial court charged the jury on criminal conspiracy , in relevant part, as follows :

Whe re two or more join in the commission of an unjustified assault which results fatally, all are guilty regardless of which one
inflicts the mor t al wounds. When
two or more combine to commit a felony or to make an assault, and in carrying out the common purpose another is killed, the one
who enters into the comb ination but does not personally commit the wrongful act is equally responsible for the homicide as

t he one who directly causes it.

. . .

Such responsibility

. . . extend [s]
even to a homicide which is the consequence of the natural and probable execution of the conspiracy even though such homicide is not specifically contemplated by the parties

.

App. 602

- 03 (emphas e s added)

.7 In response to a jury question t he trial court later

r epeated this instruction

.

T he trial court also instructed the jury on accomplice liability

, in relevant part, as follows: “ [O] ne may be legally
accountable for conduct of another not only if he is a co

conspirator, but also if he is an accomplice who aids and
abets the commission of a crime. ” App. 603. “ The degree of

conce rt or collusion between parties to an illegal transaction

means the act of one is the act of all .” App. 60 4 (emphasis added).

The trial court further instructed the jury on murder, beginning with this introduction:

Each defendant comes before you charg ed with murder and voluntary manslaughter.

Now on this bill, you may find each defendant guilty of murder in the first degree, guilty of murder in the second degree

, or guilty of murder in the third degree, or guilty of voluntary manslaughter, or not gui lty.

App. 605.

Five paragraphs l ater, the trial court instructed the jury on first degree murder , which it defined as follows:8 A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. As used in th is statute, intentional killing means among other things a willful, deliberate and premeditated killing.

A killing is willful and deliberate if the defendant consciously
decided to kill the victim and it is premeditated if the defendant possessed a fully

- formed intent to
kill at the time when he acted and though there need not have been any appreciable amount of time
between the time when the
defendant first conceived the idea of killing and the time when he
acted.

The design to kill can be
formulated in a fraction of a
second.

In determining whether or not the
defendants committed said kind of intentional killing required for first degree murder, you should consider the testimony of expert witnesses, as well as all other evidence which may shed light on what was going on in the9 defendant’s mind at the time of the alleged killing.

If a defendant intentionally uses a deadly weapon on a vital part of the body, you may infer from this that the killing was intentional.

Specific intent as well as malice

may be inferred from the use of a deadly weapon on a vital part of the body.

A p p. 606

- 07. 3

The jury convicted Bennett of first degree murder and related charges. 4 A penalty hearing followed . The

3 The trial court also instructed the jury on second degree murder, third degree murder and voluntary manslaughter . In response to a jury question, the trial court read back the first, second and third degree murder
instructions.

4 In addition to first degree murder , the jury convicted

Bennett of conspiracy, possession of an instrument of crime and two counts of robbery. The trial court granted a judgment of acquittal on a third robbery count. Only the first degree murder conviction is at issue in Bennett’s habeas corpus petition. See Laird v. Horn , 414 F.3d 419, 430 (3d Cir. 2005); Everett v. Beard , 290 F.3d 500, 516 (3d Cir. 2002), abrogated on other grounds by Porter v. McCollum

, 558 U.S. 30 (2009)

.10 Commonwealth sought the death penalty, despite stipulating
that Bennett was nineteen years old at the time of the crime
and had no significant criminal history. After additional deliberation, t he jury returned a sentence of life imprisonment

. On June 1, 1993, the trial court formally
sentenced Bennett to li f e im prisonment without the possibility
of parole

. Bennett V I , 57 A.3d at 1189. 5

B

. Post

- Conviction Proceedings

5 The trial court imposed a life sentence for first degree murder. It also sentenced Bennett to ten to twenty

yea rs’ imprisonment on each of the robbery counts, and two and half to five years’ imprisonment on possession of an instrument of crime. It imposed a suspended sentence on conspiracy. As to whether these sentences were to run concurrently or consecutively, this Court lacks the written sentencing order because the trial court did not provide the state court record. According to the notes of testimony, the trial court stated orally, “on Bill 22 of July Term, 1990, charging you with first degree murder, I impo se a sentence of life imprisonment, and on Bill 24 of July Term, 1900, I impose a sentence of 10 to 20 years to run concurrently. Bill 21 is the robbery bill of July Term, 1992. I will impose a sentence of 10 to 20 years, to run consecutive to Bill 24 bu t also concurrent with the life term and on possession of instruments of crime, I will impose a two and a half to five year sentence also to run concurrently.” App. Sentencing

Tr. 20, June 1, 1993.11 Bennett did not file a direct appeal. In 1995, he filed a

pro se petition under the Pennsylvania Post

- Conviction Relief Act ( PCRA ) , in which he asserted, inter alia , two claims
relevant to this appeal . First, Bennett asserted that the trial
court violated his state and federal due process rights by instructing the jury that he could be convicted of first degree murder without the specific inte nt to kill . Second, Bennett
asserted that trial counsel was ineffective for failing to object

to the trial court’s erroneous jury instructions

. 6

In 1999, the trial court dismissed Bennett’s PCRA petition. Bennett filed an appeal. In 2000, the Superior Court
dismissed the PCRA appeal because post

- conviction counsel
failed to file a brief. Bennett subsequently filed a second PCRA petition seeking to reinstate his right to appeal his first
PCRA petition

.

Meanwhile, as Bennett ’s PCRA was winding through
the courts , his conspirator , Wyatt, reached the Sup e rior Court
on post

- conviction proceedings. Wyatt was the other man sitting with Bennett in the getaway car during the botched robbery. See Bennett VI , 57 A.3d at 1187. The two were tried and convicted together. In 2001, the Superior Court granted Wyatt’s PCRA petition and vacated his first degree
murder conviction

. The court found that that trial court’s jury
instructions “improperly permitted the jury to find [ Wyatt] guilty of first degree murder wi thout evidence to support that finding

, ” and that counsel was ineffecti ve for failing to object

to the flawed charge

. Commonwealth v. Wyatt , No. 2050 EDA 1999, *15, 782 A.2d 1061 (Pa. Super. Jul. 16, 2001)

6 Post

- conviction counsel also filed an amended PCRA pe tition.12 ( table ) (A pp. 228 )

. The Commonwealth sought allo wance of appeal, but the Pennsylvania Supreme Court denied the petition. Commonwealth v. Wyatt , No. 521 EAL 2001, 809 A.2d 904 (Pa. Oct. 15, 2002) (table). Wyatt later ple d guilty to third degree murder , a lesser offense

. See Commonwealth v. Wyatt , 115 A.3d 8 76 , 878 (Pa. Super. 2015) ; see also
18 Pa. Cons. Stat. § § 1102 (d) , 2502(c)

.

Shortly after Wyatt won PCRA relief , the trial court
reinstated Bennett’s right to appeal the denial of his PCRA petition

. Bennett appealed to the same Superior Court that
had recently granted Wyatt ’s petition

. In 2004, however, the
en banc Superio r Court denied relief on procedural grounds.

It found that Bennett’s PCRA petition, through which the trial

court had reinstated his appellate rights, was untimely.
Commonwealt h v. Bennett (Bennett I) , 842 A.2d 953, 954 (Pa. Super. 2004) (en banc), vacated by Commonwealth v. Bennett (Bennett II) , 930 A.2d 1 2 64 (Pa. 2007). In an opinion by

now

- Pennsylvania Supreme Court Justice Todd , the en banc Superior Court express ed its opin ion o f the merits in the strongest possible language:

There is no question that Tony
Bennett was entitled to a new trial: the accom plice liability charge given at his murder trial

was er roneous, and his
codefendant at trial was granted a

new t rial on tha t basis.

. . . [N] o appellate court has yet addressed

Bennett ’ s me ritorious claim, apparently due to the serial
ineffecti veness of counsel.13 Bennett thus stands convicted of
fir st

- degree murder, and
sentenced to life imprisonment,
b ased on an erroneous acc omplice liability charge, for a killing
which occurred when his co

conspirators robbed a jewelry
store while he waited in the
getaway car.

Bennett I , 842 A.2d at 954

.

The Superior Court further opined that “there is no
doubt that there is merit to thi s claim,” id. at 956

, that “Bennett has been denied appellate review of a clearly meritorious issue,” id. at 957, and that “we are in the unenviable position of denying relief where there is no doubt that justice requires such relief

, ” id. at 959.

In 200 7, the Pennsylvania Supreme Court reversed the Superior Court’s ruling that Bennett’s PCRA petition was time

- barred. Bennett II , 930 A.2d at 1275

. The Court
characterized the decision as “significant ” because the Superior Court had granted Wyatt relief “ due to the trial court’s erroneous accomplice liability instruction.” I d. at 1266 n.3

.

On remand, the trial court again reinstated Bennett’s right to appeal the denial of his PCRA petition

. Bennett appealed. T he Superior Court issued a procedural rul ing in
his favor . It vacated the dismissal of Bennett’s PCRA petition and remanded for consideration of his ineffective
assistance of counsel claim. Commonwealth v. Bennett14 (Bennett III) , No. 343 EDA 2008, at *19 , 964 A.2d 428 (Pa

. Super. Oct. 17, 2008) (table) (App. 164). The Superior Court did not separately address Bennett’s due process claim

.

On remand, Bennett won PCRA relief . The trial court
vacated his conviction for first degree murder and ordered a
new trial on that charge

. It found that the jury instructions
violated Bennett’s “ state and federal constitutional rights to

Due P rocess, ” and that Bennett’s trial counsel was ineffective for failing to object to them

. App. 17 6

.

Bennett again won PCRA relief on the Commonwealth’s appeal. Comm onwealth v. Bennett (Bennett IV) , 19 A.3d 541 , 542 (Pa. Super. 2011). The Superior Court
held that the jury instructions on conspiracy and accomplice liability “ did not tell the jurors that they needed to find Bennett possessed the specific intent to kill before they could
convict him of first

- degree murder

. ” Id. at 544. Rather

, “the charge could likely have led jurors to conclude that Bennett, by being an accomplice and/or a conspirator in the robbery, was therefore equally responsible with the shooter for first

degree murder, even without proof that Bennett himself had the specific intent to kill.” Id. Trial counsel was ineffective for failing to object. Id. at 542.

Still, Bennett did not get relief. I n 2011, the Pennsylvania Supreme Court granted the Commonwealth’s petition for allowance of appeal, despite having denied the same request in Wyatt’s case nine years earlier. Compare
Commonwealth v. Bennett (Bennett V) , 32 A.3d 586 (Pa. 2011) (per curiam), with Commonwealth v. Wyatt , No. 521
EAL 2001 , 809 A.2d 904 (Pa. Oct. 15, 2002) (table)

. It agreed to consider the que stion posed by the C ommonwealth:15 whether “overturning [ Bennett’s ] first

- degree murder conviction on the basis of a supposedly defective accomplice liability instruction overlook [s] a nd contradict [s] th [e Pennsylvania Supreme] Court’s precedent

. ” Bennett V , 32
A.3d at 587

.

In 2012, the Pennsylvania Supreme Court reversed the Superior Court’s grant of relief

. Bennett VI , 57 A.3d at 118 7

. Then

- Chief Justice Castille wrote an opinio n for a three

Justice majority

. 7 The Pennsylvania Supreme C ourt found
that the only issue before it was the i neffective assistance of
counsel claim

. See i d. at 1187 n.1, 1195. As to Bennett’s “underlying” due process challenge to the jury instructions

, the C ourt stated in passing that the issue w a s “defaulted

, ” id. at 1193, or “waived

, ” i d. at 1204, but did not explain why this

was so

. The Pennsylvania Supreme Court address ed the jury
instructions within its analysis of the ineffective assistance of

cou nsel claim

. It concluded that “in light of both the charge
when read as a whole and the factual circumstances of this case,” the jury instructions did not violate state precedent

. Id.

7 In 1990, when this crime was committed and Bennett charged, Chief Justice Castille was the elected

D istrict A ttorney of Philadelphia, where the crime took place. Chief Justice Castille left his position as D istrict A ttorney in
1991. Bennett’s capital jury trial took place in 1992. Cf.
Williams v. Pennsylvania , 136 S. Ct. 1899, 1905 (2016) (holding that Chief Justice Castille was obligated to recuse himself where he had “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case”). It is not known how significant was his involvement
when he was the District Attorney.16 at 1196. It followed that c ounsel was not deficie nt in failing to obj ect

. See i d. at 1203. 8

The Pennsylvania Supreme Court did not address Bennett’s federal due process challenge to the jury
instructions . Although Bennett cited several decisions of our Court, the Pennsylvania Supreme Court found that they were
irrelevan t to the state law question it was deciding

. Id. at
1203 (“[W]e are not bound by the decisional law of the lower

8 When reviewing the charge as whole, the Pennsylvania Supreme Court emphasized the murder
instruction. See Bennett VI , 57 A.3d at 1200. T his portion of
its opinion inaccurately quoted the record. Specifically, the state court spliced together two disparate portions of the murder charge. First, in the introduction, the trial court
instructed the jury that “[e]ach defendant comes be fore you charged with murder and voluntary manslaughter .” App. 605. Second, five paragraphs later, the trial court instructed the jury on first degree murder, directing it to determine whether “the defendant possessed a fully

- formed intent to kill at the
time when he acted

. . . . ” App. 606. The Pennsylvania Supreme Court combined these quotes in one sentence . It
stated that the trial court “informed the jury that ‘each’ defendant could be found guilty of first

- degree murder only if ‘the defendant poss essed a fully

- formed intent to kill at the
time when he acted .’” Bennett VI , 57 A.3d at 1200. This
misstatement of the record was a clear error; the jury never heard that “each” defendant must have the specific intent to
kill

.17 federal courts, construing Pennsylvania law.”). 9 Rather, the Pennsylvania Supreme Court relied on state precedent to overturn the grant of PC RA relief

. Id. at 11 97

- 99 ( citing Commonwealth v. Thompson , 674 A.2d 217 , 223 (Pa. 1996)
and Commonwealth v. Simpson , 754 A.2d 1264 , 127 5

- 76 (Pa. 2000)). The Pennsylvania Supreme Court held that the
Su perior Court erred by relying on another state decisi on, Huffman , 638 A.2d at 964, which the Pennsylvania Supreme Court distinguished. Bennett VI , 57 A.3d at 1187; see also id. at 1203 (“As we have made clear, the instant case is simply not controlled by Huffman

. . . . ”).

Justice Saylor , now Chief Justic e of the Pennsylvania Supreme Court, and Justice McCaffrey concurred

. Id. at
120 6 ( Saylor, C.J. , concurring). They opined that the trial
court’s j ury instructions “could be taken as overriding the specific

- intent requ irement for first

- degree murder. ” I d

. at
1207. They were particularly concerned that the jury could have convicted Bennett of first degree murder because he w as

“ an accomplice or conspirator in some other crime .” Id. (emphasis in original). Specifically, t he concurring Justices emphasized that the jury instructions stated that : (1) “[w]hen

two or more join in the commission of an unjustified assault which results fatally, all are guilty ”; (2) a co

- conspirator is

“ equally responsible for the homicide ” as the principal ; and (3) “[s]uch respo nsibility .

. . extend[s] even to a homicide which is the consequence of the natural and probable execution of the conspiracy even though such homicide is not

9 While the state court referred to our decision in

Everett in a footnote, it merely held that the case was factually distinguishable. Bennett VI , 57 A.3d at 1203 n.10 (citing Everett , 290 F.3d at 504 ).18 specifically contemplated by the parties. ” Id. at 1206

- 07 (emphas e s, ellipses and second bracket s in original) (quoting

Bennett VI , 57 A.3d at 1188

- 89)

.

However, the concurring Justices found that they were

“ bound ” by Pennsylvania law. Bennett VI , 57 A.3d at 1208 (Saylor, C.J., concurring). Prior state court decisions

, they explained, had establi shed “ that a trial court’s reference to ‘the defendant’ in a jury charge delineating the requirement of specific intent to kill to support a first

- degree

- murder conviction ameliorates potential ambiguities which might otherwise arise out of accomplice or c oconspirator liability
instructions.” Id. They concluded that

, under state law

, Bennett’s claim lacked merit, but there remained a claim “to be litigated in the federal courts under due process theory.”
Id. at 120 8 n.3 ( internal quotation marks omitted)

.

C

. Habeas Corpus Proceedings in the District
Court

After his PCRA relief was reversed, Bennett filed a timely pro se petition for a writ of habeas corpus. He raised
two claims in the District Court : (1) that he was deprived of due process under t he United States Constitution because the trial court’s jury instruction s erroneously relieved the
Commonwealth of its burden to pro ve the specific intent to kill, and (2) that trial counsel was ineffective for failing to object to the flawed jury instruct ions

. Bennett asserted that
he was entitled to de novo review because the state court did not adjudicate his federal due process claim on the merits

. In response, the Commonwealth argued that Bennett’s claims
had been decided on the merits , and that he c ould not

overcome the standard of review of the Anti t errorism and19 Effective Death Penalty Act of 1996 (AEDPA)

, 28 U.S.C. § 2254(d)(1)

.

The District Court referred the matter to a Magistrate Judge who iss ued a report and recommendation. As to
Bennett’s u nderlying due process claim , t he Magistrate Judge agreed with Bennett that the conspiracy and accomplice liability jury instructions “ do seemingly relieve the Commonwealth of the burden of proving that Bennett had the specific intent to kill, rather t han t he intent to rob the store. ” App. 21

. However, she recommended denying relief under 28 U.S.C. § 2254(d)(1). The Magistrate Judge nevertheless
observed that numerous state judges had questioned “ the propriety of the charge given in this case in well

- reas oned
decisions

, ” and so recommended granting a certificate of appealability “ on Bennett’s due process claim. ” App. 30. The Magistrate Judge recommended denying Bennett’s
ineffective assistance of counsel claim without a certificate of appealability

. The District Court adopted the Report and Recommendation and granted the certificate of appealabil i ty in part and denied it in part

.

D. Bennett ’s Habeas Corpus Appeal to t his
Court

Bennett filed this timely appeal. Consistent with the
certificate of a ppealability, Bennett seeks our review of one
claim

— his federal due process challenge to the trial court’s jury instructions

. He does not appeal the denial of his
ineffectiv e assistance of counsel claim.

The Commonwealth ’s response is surprisingly
i ncon gruous

. It has chosen not to respond to Bennett’s due20 process claim

— the only claim raised on appeal. Instead, it
takes the unusual position that Bennett must be raising an ineffective assistanc e of counsel claim. The Commonwealth
asserts as much repeate dly in its brief

. For example, it
contends that “Bennett spends 40 pages arguing about the quality of the jury instructions [] presumably to make a point that trial counsel’s decision not to object was a failure of performance.” Br. for Appellees at 54. This is incorrect.

Bennett addresses the quality of the jury instructions because
the claim certified on appeal is a due process challenge to
those instructions

.

The Commonwealth offer s an equally unusual explanation for its approach

. It asserts that B ennett’s claim
must be “ a Strickland

- ineffectiveness claim [because] [t] he Pennsylvania Supreme Court identified it as such in the first page of its opinion

. ” Id. at 24

. Again, t his is incorrect

. The issue on appeal is the claim authorized by the certif icate of appealability

— a due process challenge to the trial court’s jury
instructions

. See 28 U.S.C. § 2253(c) (3) ; see also Fed. R. App. P. 22(b) ; Local App

. R

. 22.2. T herefore, t his is the
claim we will address. 10

II

. Exhaustion

Under AEDPA, a habeas petit ioner must “ exhaust []
the remedies available ” in state court. 28 U.S.C.

10 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We exercise plenary review of the District
Court’s decision. Showers v. Beard , 635 F.3d 625, 628 (3d Cir. 2011).21 § 2254(b)(1) (A). To do so, the petitioner must “ ‘ fairly
present ’

. . . a federal claim’s factual and legal substance to the state courts in a manner that puts them on notice tha t a federal claim is being asserted.” McCandless v. Vaughn , 172 F.3d 255, 261 (3d Cir. 1999). In Pennsylvania, a defendant

“ exhausts his state remedies for a federal claim either by raising the claim on direct appeal or in a petition for collateral
relie f under the PCRA .” Wilkerson v. Superintendent

, 871
F.3d 221 , 22 8

- 29 (3d Cir. 2017) ; see also Mathias v. Superintendent

, 876 F.3d 462

, 479

- 80 (3d Cir. 2017) (holding
that the petitioner exhausted his federal due process claim on PCRA review)

.

As to Be nnett, the Commonwealth did not raise
exhaustion before the District Court or in its opening brief to
this Court

. Although it did purport to raise exhaustion in two letters styled under Federal Rule of Appellate Procedure 28(j), the argument falls outside the bounds of that rule. See United States v. Hoffecker , 530 F.3d 137, 163 (3d Cir. 2008) (holding that a party cannot use a Rule 28(j) letter to raise additional arguments omitted from an opening brief); United States v. Khorozian , 333 F.3d 498, 506 n.7 (3d Cir. 2003) (declining to consider new arguments out side the scope of Rule 28(j)).

We need not determine whether the Commonwealth expressly waived the exhaustion requirement because we hold
that Bennett did exhaust his federal due process claim

. See 28 U.S.C. § 2254(b)(3); see also Sharrieff v. Cathel , 574 F.3d 225, 230 (3d Cir. 2009) (“Section 2254(b)(3) requires that a state’s waiver of exhaustion be express, but it does not demand the invocation of any ‘magic words.’”). Bennett fairly presented h is federal claim on PCRA review by citing22 the relevant provision of the United States Constitution and federal cases support ing his argument

. See Wilkerson

, 871
F.3d at 229 (citing McCandless , 172 F.3d at 261

- 62). 11

11 We are mindful that Bennett ’s counsel did not object to the challenged jury instruc tions and did not file a direct appeal. Perhaps for these reasons the Pennsylvania Supreme Court stated without explanation that the underlying due process challenge to the jury instructions was “defaulted”
or “waived.” Bennett VI , 57 A.3d at 1193, 1204. The Commonwealth, however, has failed to raise and therefore waived any potential defense of procedural default. “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.” Bey v. Superintendent

, 856 F.3d 230, 236 (3d Cir. 2017) (quoting Fahy v. Horn , 516 F.3d 169, 187 (3d Cir. 2008)); see also C one v. Bell , 556 U.S. 449, 465 (2009). “[P]rocedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter.” Trest v. Cain

, 522 U.S. 87, 89 (1997) ( internal quotati on marks, alteration and citation omitted); see also Lee v. Kemna , 534 U.S. 362, 376 n.8 (2002) ( stating that state waived procedural default by failing to raise the argument in the appellate court or in opposition to certiorari); Showers v. Beard , 635 F.3 d 625, 629 (3d Cir. 2011) (procedural default waived); Smith v. Horn

, 120 F.3d 400, 408

- 09 (3d Cir. 1997) (same). Unlike exhaustion, waiver of procedural default need not be express. Cf. 28 U.S.C. § 2254(b)(3). In Bennett’s case, the Commonwealth did not preserve the defense of procedural default before either the District23 I II

. Standard of Review

AEDPA’s Sectio n 2254(d) limits the ability of a federal court to grant habeas corpu s relief to a petitioner based upon a federal constitutional claim that was “adjudicated on the merits ” in s tate court. 28 U.S.C. § 2254(d)

. If Section 2254(d) applies

, habeas relief sh all not be granted unless the adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as

Court or this Court. In the District Court

, the Commonwealth
asserted the opposite position

— that the Pennsylvania Supreme Court had adjudicated Bennett’s federal due process
claim o n the merits

. On appeal, the Commonwealth did not

argue procedural default

. At the most, the Commonwealth
asserted

— without citation

, in a footnote

— that “only the
Strickland claim is not defaulted and properly before this
Court .” Br. for Appellees 20 n.9

. We “refuse to take cognizance of arguments that are made in passing without proper development.” Johnson v. Williams , 568 U.S. 289,
299 (2013) ; see also Hoffecker , 530 F.3d at 162

. Thus, the defense of procedural default is waived. We
do not reach the question whether the requirements of procedural default would have been satisfied. See
Munchinski v. Wilson , 694 F.3d 308, 335 (3d Cir. 2012) (holding that state court “ did not ‘ clearly and expressly ’ rely ” on state procedural rule to deny PCRA relief ). Nor do we
determine whether Bennett could have overcome any default.2 4 determined by the Supreme Court of the United States; or

(2) resulted in a decisi on that was
based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id.

If a claim was not adjudicated on the merits in state
court, we review legal questions and mixed questions of law
and fact de novo

. Cone , 556 U.S. at 472 (citing Rompilla v.
Beard , 545 U.S. 374, 390 (2005) , and Wiggins v. Smith , 539 U.S. 510, 534 (2003) ) ; see also Appel v. Horn , 250 F.3d 203, 210 (3d Cir. 2001). “However, the state court’ s factual
determinations are st ill presumed to be correct, rebuttable upon a showing of clear and convincing evidence. ” Appel

, 250 F.3d at 210 (citing 28 U.S.C. § 2254(e)(1)). 12

A. Legal Standard: Adjudication on the Merits

Because it dictates the standard of review, a predicate

que stion in habeas corpus proceedings is w hether the state court adjudicated a claim on the merits

. A judgment is “ ‘on the merits’ only if it was ‘delivered after the court .

. . heard
and evaluat ed the evidence and the parties’ substantive

12 The parties agree that the operative state court decision is the Pennsylvania Supreme Court decision reversing the grant of PCRA relief, Bennett VI , 57 A.3d at
1187

.25 arguments.’” Wil liams

, 568 U.S. at 302 ( emphasis and ellipsis in original). “ On the merits ” means , in this context,
review of the “intrinsic rights and wrongs” of the matter. Id. ( emphasis and internal quotation marks omitted).

In some cases, “ a state court issues a n order that summarily rejects without discussion all the claims raised by
a defendant .” Id. at 293 (emphasis omitted) ( citing Harrington v. Richter , 562 U.S. 86 (2011)). In those circumstances, “t he federal habeas court must presume (subject to rebuttal ) that the federal claim was adjudicated on
the merits .” Williams

, 568 U.S. at 293.

There is also a closely r elated situation , addressed in
Williams

, where the “ state court rule s against the defendant
and issue s an opinion that addresses some issues but does not expressly address the federal claim in question .” Id. at 292

. Under these circumstances, the state court is silent as to the reasons for denying the federal claim. It “follow s logically”
that the Richter rule applie s

. Id. at 293. That is, th e same presumption

— that the federal claim was adjudicated on the
merits

— applies whether the state court does not address “ any of the defendant’s claims” or “some but not all of a
defendant’s claims.” Id. at 298 (emphasis in original) ; see also Dennis v. S ecretary , 834 F.3d 263, 312 (3d Cir. 2016) ( en banc ) (applying Williams presumption to claim of cumulative prejudice)

. B ut see James v. Ryan , 733 F.3d 911, 915 (9th Cir. 2013) (distinguishing Richter and Williams )

.

Th e Williams presumption that a federa l claim was adjudicated on the merits is rebuttable. It applies only “in the absence of any indication or state

- law procedural principles to the contrary.” Williams

, 568 U.S. at 298 (quoting Richter

,26 562 U.S. at 99). “ The presumption may be overcome whe n there is reason to think some other explanation for the state court’s decision is more likely.” Richter , 562 U.S. at 99

- 100.

Williams rejected as “ go [ ing ] too far” the state’s argument for an irrebuttable presumption. Williams , 5 68 U.S.
at 301. The Supreme Court explained that both parties may attempt to rebut the presumption that a federal claim was adjudicated on the merits

. A petitioner may attempt to rebut the presumption in order to obtain de novo review. Id. at 301

- 02

. The state may attempt to rebut the presumption in order

to show that a federal claim was defaulted

. Id. at 302.

Williams set forth a non

- exhaustive list of “other explanation[s] for the state court’s decision” sufficient to rebut the presumption that a federal claim was adjudicated on
the merits. Richter , 562 U.S. at 1 00. They include the following: A state court may have “inadvertently
overlooked” the federal claim. Williams

, 568 U.S. at 303 ; see also Brown v. Romanowski , 845 F.3d 703, 711

- 12 (6th Cir. 2017); Bester v. Warden , 836 F.3d 1331, 1336

- 37 (11th Cir. 2016). A state court may have applied a state standard that is
“in at least some circumstances

. . . less protective” or “quite
different from the federal standard.” Williams

, 568 U.S. at
301 (emphasis in orig inal) ; see also Ashburn v. Korte , 761 F.3d 741, 751 (7th Cir. 201 4)

. It may have disregarded the
federal claim based upon a belief

— correct or not

— that the
federal claim was not fairly presented

. Williams

, 568 U.S. at
302

- 03 ; see also Barton v. Warden , 78 6 F.3d 450, 461

- 62 (6th Cir. 2015)

. Where the Williams presumption is rebutted for one of these, or any other reason, review of the claim is de

novo

. Williams

, 568 U.S. at 30 1

- 0 2

.27 B

. Bennett’s Due Process Claim Not Adjudicated on the Merits

In Be nnett’s case, we begin by considering whether the
Williams presumption applies. We conclude that it does not because the Pennsylvania Supreme Court expressly stated that it did not perceive there to be any federal claim presented. Accordingly, this is no t a case where the state court “rule[d] against the defendant and issue[d] an opinion that addresse [d]
some issues but d [id] not expressly address the federal claim in question.” Id. at 292. Rather, the C ourt provided an “explicit explanation of its own decision

, ” and so the
Williams presumption is inapplicable. James

, 733 F.3d at
916. 13

The Pennsylvania Supreme Court’s own explicit

statements further establish that Bennett’s federal due process
claim was not adjudicated on the merits. See Cone , 556 U. S

. at 472. This is apparent for several reasons. To begin with, the Pennsylvania Supreme Court granted review of Bennett’s PCRA petition only on the state law question presented by the
Commonwealth

— whether “overturning [Bennett’s] first

degree murder c onviction on the basis of a supposedly defective accomplice liability instruction overlook[s] and contradict[s] th[e Pennsyl vania Supreme] Court’s precedent. ”

Bennett V , 32 A.3d at 587 . It characterized the “underlying” federal due process claim as “defa ulted

, ” while providing no explanation for this statement. Bennett VI , 57 A.3d at 1193

. The Court then addressed the ineffective assistance claim as

13 Moreover, a s explained below, we would apply de

novo review even if the Williams presumption were applicable because Bennett has rebutted it.28 relating exclusively to counsel’s failure to object on state law grounds and did not acknowledge or addre ss any deficiency or prejudice in counsel’s failure to raise a federal due process
claim

. Id. at 1196

- 1203. It held that Bennett’s PCRA petition lacked merit because it was in conflict with “[the Pennsylvania Supreme Court’s] developed case law.” Id. at 1202. It identified the error of the lower state courts in granting PCRA relief as a “failure to consider controlling, subsequent cases by th [e Pennsylvania Supreme] Court .” I d.
at 1203 . Indeed, the Court even said that to the extent
Bennett cited fede ral cases, they were not binding in the context of “construing Pennsylvania law

. ” Id.

Furthermore, e ven if the Williams presumption were to apply, we would conclude that Bennett has rebutted it

. Applying the Williams presumption , the question that follo ws is whether Bennett has rebutted the presumption that his federal claim was adjudicated on the merits. He has because “the evidence leads very clearly to the conclusion that [the] federal claim was inadvertently overlooked in state court.”
Williams , 56 8 U.S. at 303. For the reasons above, there is no ambiguity as to whether the P ennsylvania Supreme Court
resolved the federal due process claim on the merits ; the
Court made clear that it overlooked it

. It expressly declined
to rule on Bennett’s federal claim, and held that it “need not review and compare each of the federal cases” cited by Bennett because it was deciding a state law question. Bennett
VI , 57 A.3d at 1203; see also id. (stating that “we are not bound by the decisional law of the lower fed eral courts, construing Pennsylvania law”); id. at 1193 (characterizing the “underlying” due process challenge as “defaulted”). Because
th e Court made a “clear demarcation ” between the state and federal questions and ruled on the merits of only the former

,29 the Williams presumption is rebutted. Brown , 845 F.3d at 712 (holding that federal claim was overlooked under Williams , as evidenced by the fact that the state court expressly addressed all claims in the petitioner’s original motion, but none in his

ame nded motion )

. 14 Therefore

, w e will review Bennett’s due process claim de novo

. 15

14 We note, furthermore, that unlike Williams the Pennsylvania Supreme Court did not “underst[an]d itself to be deciding a question with fe deral constitutional
dimensions.” Williams , 568 U.S. at 305. The Court relied
upon two state cases, Thompson and Simpson , which do not
have federal constitutional underpinnings

. See Bennett VI , 57
A.3d at 1198

- 99 (citing Thompson , 674 A. 2d at 223, and Simpson , 754 A.2d at 1275

- 76). The Pennsylvania state case that arguably does have federal constitutional underpinnings
is Huffman , which cites In re Winship for the proposition that a meritorious jury instruction claim did not amount to
ha rmless error. Huffman , 638 A.2d at 963 (citing In re Winship , 397 U.S. 358 (1970)). Huffman , however, is the very case that the Pennsylvania Supreme Court held was inapplicable to Bennett. Bennett VI , 57 A.3d at 1187; see also id. at 1203 (“As we have m ade clear, the instant case is simply not controlled by Huffman

. . . .”). As Chief Justice Saylor put it, “the only surviving vestige of Huffman is that which remains to be litigated in the federal courts under due process theory.” Bennett VI , 57 A.3d a t 1208 n.3 (Saylor, C.J., concurring) (quoting Commonwealth v. Jones , 912 A.2d 268, 297 (Pa. 2006) (Saylor, C.J., concurring)).

15 In reaching this conclusion, we are mindful of the Supreme Court’s observation that having a less protective
state standar d would “provide no guidance to state trial judges30 I V

. Analysis of the Merits

While the state may choose how to define first degree murder, McMillan v. Pennsylvania , 477 U.S. 79, 85 (1986), the Constitution requires proof be yond a reasonable doubt of

every element necessary to consti tute the crime, In re Winship , 397 U.S. at 364. D ue process is violated when a jury instruction relieves the government of its burden of proving every element beyond a reasonable doubt. See
Wadd ington v. Sarausad , 555 U.S. 179, 190

- 91 (2009);
Sandstrom v. Montana , 442 U.S. 510 , 521 (1979 )

.

Under the federal due process standard, we ask whether there is “some ‘ambiguity, inconsistency, or

bound to follow both state and federal law.” Williams , 568
U.S. at 305. This may indeed be the case in Pennsylvania. In
fact

, Chief Justice Saylor has cautioned the state trial courts to
follow the fede ral due process standard, because the
alternative

— following state law

— “risks a needless waste of untold resources on the part of the Commonwealth, defense attorneys, and the courts” when those cases are challenged on due process grounds. Commonwealth v. S epulveda , 55 A.3d 1108, 1158 (Pa. 2012) (Saylor, C.J., concurring). Indeed, Pennsylvania’s suggested jury instructions also appear to
exceed the requirements of state law, although that issue is
not before us. See Bennett VI , 57 A.3d at 1201 n.9 ( noting that the standard jury instructions “now include a specific charge related to liability for the conduct of another person for the crime of first

- degree murder for both acco mplice and conspiracy liability” but reiterating that “ these are merely suggested in structions ” )

.31 deficiency’ in the instruction, such .

. . that 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 crime beyond a reasonable doubt.” Sarausad

, 555 U.S. at 19 0

- 9 1 (quoting Middleton v. McNeil , 541 U.S. 433, 437 (2004) (per curiam), and Estelle v. McGuire , 502 U.S. 62, 72 (1991) (quoting Boyde v. California , 494 U.S. 370, 380 (1990))). “ In making this determ ination, the jury
instruction ‘may not be judged in artificial isolation,’ but
must be considered in the co ntext of the instructions as a
whole and the trial record.” Id. at 191 (quoting Estelle , 502
U.S. at 72 (quoting Cupp v. Naughten , 414 U.S. 141, 147 (1973))).

Under federal law, “[l] anguage that merely contradicts and does not explain a constitutional ly infirm instruction will not suffice to absolve the infirmity.” Francis v. Franklin , 471 U.S. 307, 322 (1985). “W hile a single defect does not necessarily make an instruction erroneous

, . . . other language in the instruction does not always serve to c ure the error. This is so even when other language correctly explains the
law.” Bey , 856 F.3d at 241 & n.54 ( ellipsis in original) ( quoting Whitney v. Horn , 280 F.3d 240, 256 (3d Cir. 2002) (citing Franklin , 471 U.S. at 222) ). This is because “[a]
revie wing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their
verdict.” Franklin , 471 U.S. at 322

. As such, there is a reasonable likelihood that the jury applied the instructions incorrectly in violat ion of the right to due process. Id

. at 325. 16 This Court has repeatedly reaffirmed this longstanding

16 This Court recently noted a potential “tension”
between Franklin , 471 U.S. at 322, and a subsequent per32 principle. See Bey , 856 F.3d at 241; Laird , 414 F.3d at 428 ; Bronshtein , 404 F.3d at 71 2; Whitney , 280 F.3d at 256.

As to jury instructions on the spe cific intent to kill, our Court is troubled by the likelihood that the instructions as a whole could lead a jury to believe that an accomplice or conspirator to one crime is guilty of first degree murder despite having no specific intent to kill. Indeed, we have repeatedly identified due process violations for this very

reason. See, e.g.

, Laird , 414 F.3d at 427 (stating that “the jury could easily have convicted Laird of first

- degree murder based on his conspiring with Chester to kidnap or assault”);

Bron shtein , 404 F.3d at 711 (noting that “the jury could find Bronshtein guilty of first

- degree murder if it found that he had conspired to commit the robbery”); Smith , 120 F.3d at 414 (holding that there was a reasonable likelihood that the

curiam decis ion, Middleton , 541 U.S. at 437

- 38, but declined
to resolve it

. Mathias , 876 F.3d at 478. We now conclude
that Middleton did not overrule Franklin . The Supreme Court has cautioned the Courts of Appeals not to conclude that its preced ent has been overturned by implication, and Middleton
did not overrule Franklin or even refer to it. Agostini v.
Felton , 521 U.S. 203, 237 (1 997). Moreover, Middleton did not directly address whether there had been a federal due process violation, but ra ther only whether the state court’s application of federal law was objectively unreasonable under 28 U.S.C. § 2254(d)(1). 541 U.S. at 436. T his explains why our Court continues to apply Franklin as binding precedent, and has done so repeatedly post

- Middleton

. See Bey , 856 F.3d at 241 & n.54; Laird , 414 F.3d at 428; Bronshtein , 404
F.3d at 712.33 jurors convicted S mith of first degree murder because they found that he was an accomplice to robbery). 17

17 In contrast, Pennsylvania state law construes the instructions “as a whole” in a particular way

— one highly permissive of instructional errors regarding the specific intent
to kill of conspirators or accomplices. Thompson , 674 A.2d at 219 (internal quotation marks omitted). Its permissive approach i s th is: under the state standard, the instructions as a whole survive review, so long as an erroneous charge on the specific intent to kill is paired with standard definitions

— such as the standard definitions of accomplice liability and conspiracy, Commonw ealth v. Speight , 854 A.2d 450, 460

- 61 (Pa. 2004), or the standard definition of accomplice liability and a statement that first degree murder is intentional,
Commonwealth v. Daniels , 963 A.2d 409, 431

- 32 (Pa. 2009);
Commonwealth v. Cox , 863 A.2d 536, 550

- 51 (Pa. 2004). Put more critically, state law relies on the inclusion of standard definitions to obviate the grant of relief on misleading instructions regarding the specific intent to kill. Jones , 912
A.2 d at 296 (Saylor, C.J., concurring). State law t hus rejects the argument that the inclusion of standard definitions only creates inconsistency and does not cure the error. The problem is that, even with standard definitions, the instructions as a whole could lead a jury to believe that an accomplice or conspirator to a lesser crime is guilty of first degree murder despite having no specific intent to kill. For example, a jury could conclude that “an accomplice and/or a conspirator in [a] robbery .

. . was thereby equally responsible
with the shooter for first

- degree murder, even without proof that [the defendant] himself had the specific intent to kill.”

Bennett IV , 19 A.3d at 544, vacated by Bennett VI , 57 A.3d at 1187. The Pennsylvania Supreme Court rejected this34 In Bennett’s case, the trial court’s jury instructions on conspiracy and accomplice liability were deficient , or at the
l east ambiguous and inconsistent. The trial co urt repeatedly suggested that the jury could convict Bennett of first degree
murder based up on the shooter’s specific intent to kill. It
instructed the jury that where conspirators join together to
commit an “ unjustified assault which results fata lly, all are guilty.” App. 602

. It instructed the jury that when conspirators “combine to commit a felony or to make an assault, and in carrying out the common purpose another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for
the homicide as the one who directly causes it .” Id. It
instruct ed the jury that a conspiratorial liability “extend[s]
even to a homicide .

. . even though such homicide is not specifically contemplated. ” App. 603

. It instructed the jury
that

, among accomplices

, “ the act of one is the act of all .” App. 60 4.

Reviewing these instructions in the context of the trial record, we conclude that there is “‘a reasonable likelihood’ that the jury applied the [se] instruct ion [s] in a way that relieved the State of its burden of proving” the specific intent
to kill. Sarausad , 555 U.S. at 191 (quoting Estelle , 502 U.S.
at 72 (quoting Boyde , 494 U.S. at 380) ). The trial evidence
established that Bennett “ conspired

. . . to r ob a jewelry store in Philadelphia at gunpoint. ” Bennett VI , 57 A.3d at 1187.

“ Bennett supplied the loaded gun, but did not enter the store.”

argument as “without merit ” under state law. Bennett VI , 57 A.3d at 1203; see also Cox , 863 A.2d at 561

- 62 (Saylor, C.J., dissenting).35 Id. He was sitting in the passenger seat of the getaway car
when the sho oter, Mayo, botched the robbery, killi ng the
clerk. Id. In light of the record, there is “ a reasonable
likelihood ” that the jury found that Bennett was guilty of first degree murder because he was a conspirator and accomplice to the robbery , not because it found that he possess ed the requisi te specific intent

. Sarausad , 555 U.S. at 19 0

- 9 1 ( internal quotation marks omitted); s ee also Laird , 414 F.3d at 427; Smith , 120 F.3d at 41 4

.

We reach this holding having also considered the instructions as a whole, particularly the first degree murder charge. In this portion of the charge, the trial court instructed the jury that first degree murder is an intentional killing,
wherein “ the defendant consciously decided to kill the victim
and

. . . possessed a fully

- formed intent to kill at the time
when he acted

. ” App. 606. It further instructed the jury that “[i]f a defendant intentionally uses a deadly weapon on a vital part of the body, you may infer from this that the killing was intentional.” App. 607.

Bennett asserts that the first degree in struction was
itself ambiguous because the “defendant” could have been the shooter, Mayo. He points out that Mayo is the only person who “use[d] a deadly weapon.” Id. Bennett notes that Mayo began the trial as a defendant, and t he Commonwealth
continued to refer to Mayo as a “defendant” throughout its opening statement and closing argument. See App. 304 (“these two defendants T.S., Michael Mayo and .

. . Johnson”); App. 309 (“The defendant Mayo”); App. 310 (“you will see what the defendant [Mayo] does”) ; App. 312 (“the defendant T.S., Michael Mayo, who is not here”); App. 570 (“the defendants, two of them being T.S., T.S., the man36 who is not here”); App. 575 (“the defendant Mayo”)

. 18 The Pennsylvania Supreme Court , however, disagreed with this interpreta tion

. Bennett VI , 57 A.3d at 1202. As such, the Commonwealth argues that we are bound by the state court’s
factual determination under 28 U.S.C. § 2254(e)(1).

Even if the state court’s interpretation of the first degree murder charge is correct, the ch arge as a whole still violated Bennett’s due process rights. The first degree murder charge

, at the most

, contradicted the erroneous conspiracy and accomplice liability instructions . Nothing in this language “ or in the charge as a whole makes clear to th e jury that one of these contradictory instructions carries more weight than the other. L anguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. ” Franklin , 471 U.S. at 322;

see also Bey , 856 F.3d at 241 & n.54; Laird , 414 F.3d at 428;
Bronshtein , 404 F.3d at 712 . “ A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Franklin , 471 U.S.
at 322. Thus, it was reasonably likely that the jury applied
the instructions to relieve the Commonwealth of its burden of proving that Bennett had the specific intent to kill.

Our conclusion is further supported by the arguments of counsel, although they “carry less weight with a jury” than
the trial court’s instructions

. Sarausad , 555 U.S. at 195 (quoting Boyde , 494 U.S. at 384) . In Bennett’s case, the
arguments compounded the instructional error. The
Commonwealth never argued that Bennett had the specific
intent to kill. To the contrary, in its opening statement, the

18 “T.S.” is a nickname for Mayo.37 prosecutor told the jury “ lest you think I am crazy for saying [Bennett, Johnson and Wyatt] are guilty of first degree murder, when I told you that Michael Mayo fired the fatal
shots .

. . I will ur ge upon you that the law of conspiracy makes all of these defendants first degree murderers.” App.
312

- 13. In closing, the prosecutor a rgued that “accomplices are equally guilty with the principal. First degree murder,
intent to kill. There is no doubt , there can be no doubt that [the shooter] Michael Mayo intended to kill [the victim].

. . . Co

- conspirators and accomplices are equally guilty wi t h the principal.” App. 591

- 92. These arguments increased the likelihood that the jury interpreted the charg e so as to relieve the Commonwealth of its burden of proof.

Thus, we conclude that the trial court’s jury
instructions relieved the Commonwealth of its burden of proving that Bennett had the specific intent to kill, in violation of his right to due p rocess under the United States
Constitution. We are far from the first c ourt to reach this
conclusion

. T o the contrary, t hirteen different Pennsylvania judges, in four separate decisions, have held or opined that
the se very jury instructions allo wed the jury to convict of first degree murder without finding the specific intent to kill. See

Bennett I , 842 A.2d at 954; Bennett IV , 19 A.3d at 542; Wyatt

, No. 2050 EDA 1999, * 1; App. 167; see also Bennett II , 930 A.2d at 1266 n.3 (noting “ the trial court’s er roneous accomplice liability instruction”). T wo additional concurr ing Pennsylvania Supreme Court j ustices recognized that the

“ charge could be taken as overriding the specific

- intent requirement for first

- degree murder .” Bennett VI , 57 A.3d at
12 0 7 ( Sayl or, C.J. , concurring). We agree.38 V

. Harmless Error

This brings us to the issue of harmless error. Brecht v.
Abrahamson , 507 U.S. 619 (1993). Under Brecht , this Court
must grant habeas relief if an error “had a substantial and injurious effect or i nfluence in determining the jury’s
verdict.” Id. at 623 (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)); see also Mathias , 876 F.3d at 480

. If, “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoi se as to the harmlessness of the

error [,]

. . . the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict .” O’Neal v.
McAninch , 513 U.S. 432, 43 5 (1995) ; see also Adamson v.
Cathel , 633 F.3d 248, 260 (3d Cir . 2011). A state may waive the harmless error defense by failing to assert it “ timely and unequivocal [ ly ]

. ” Lam v. Kelchner , 30 4 F.3d 256, 269 (3d Cir. 2002); see also Gibbs v. Frank , 387 F.3d 268, 277 n.7 (3d Cir. 2004).

In Bennett’s case, the Commo nw ealth waived the
harmless error defense by failing to assert it unequivocally on appeal

. This is a product of its unusual approach to briefing this case. As explained above, it chose not to address Bennett’s due process claim

— the only issue on appeal. Instead, it addressed a hypothetical claim of in effective
assistance of counsel

. In keeping with this approach

, the
Commonwealth did not argue harmless error

. Instead, it argued that Bennett failed to prove prejudice for a hypothetical claim of ineffect ive assistance of counsel under
Strickland , 466 U.S. at 694

. This Strickland argument is not

an “ unequivocal ” harmless error argument. Lam , 304 F.3d at
269. Moreover, to the extent the Commonwealth’s Strickland
argument left open the question whether it was asserting39 harmless error

, any such possibility was eliminated by the
Commonwealth’s Rule 28(j) letter of May 19, 2017. In this
l e tter, the Commonwealth took the position that “ Strickland prejudice and harmless error are different, and it is the forme r standard that applies to the only claim properly before the
Court.” Appellee s’ 28(j) Letter at 1 (May 19, 2017). B ut cf. Whitney , 280 F.3d at 258 n.18 ( suggesting that “ if a habeas petitioner meets the Strickland test, then he/she need not also
demonst rate that the error was harmful ”). Thus

, the harmless

error defense is waived.

Moreover, e ven if we were to reach harmless error , we would conclude that the due process violation is not harmless
in the context of “ the record as a whole

. ” Brecht , 507 U. S. at
638. T he trial evidence established that Bennett conspired to commit armed robbery, and was sitting in the passenger seat of the getaway car when the shooter, Mayo, botched the robbery and kill ed the clerk. Bennett VI , 57 A.3d at 1187.
The Commonw ealth never argued that Bennett had the specific intent to kill

. Its theory of the case was that Bennett was guilty of first degree murder solely because he was an accomplice and conspirator. In its opening statement, the
prosecutor told the jury “ that t he law of conspiracy makes all of these defendants first degree murderers.” App. 313. In closing, the prosecutor argued that that “ [c] o

- conspirators and accomplices are equally guilty” of first degree murder. App.
59 2. The Commonwealth, “ [h] aving repea tedly urged the jury to base its verdict on a theory predicated on a
fundamental constitutional error

, . . . cannot now seriously contend that that error had no ‘substantial and injurious effect
or influence’ on the verdict.” Smith , 120 F .3d at 419

.40 Nor would the error be harmless under Bronshtein

. There we held that the trial court’s jury instructions relieved
the Commonwealth of its burden to prove the specific intent to kill, but that the error was harmless. 40 4 F.3d at 711

- 12.

In Bronshtein it nec essarily followed from the particular jury
instructions

, and the verdict of guilt on conspiracy to murder

, that the jury “ must have found

. . . the specific intent to kill

. ”
Id. at 714; see also Mathias

, 876 F.3d at 467, 480 (following
Bronshtein where th e jury convicted the defendant of conspiracy to commit first degree murder)

. T his is not so in
Bennett’s case. Unlike Bronshtein

, the Commonwealth charge d Bennett with conspiracy generally , and the trial court
instructed the jury that the object of the c onspiracy was murder, robbery, possession of an instrument of crime, and a firearms violation

. Therefore, we cannot infer anything about
the specific intent to kill from the jury’s conspiracy verdict

. See Laird , 414 F.3d at 430 (distinguishing Bronshtein ). The jury might have found that Bennett intended to participate in
the robbery , and so was “equally responsible for the
homicide

, ” as the trial court erroneously instructed. App.
60 2

.

Finally, we address the Commonwealth’s argument that there is no Strickland prejudice to support a hypothetical
claim of in effective assistance of counsel. In its brief, the Commonwealth argues that Bennett could not prove prejudice for a hypothetical ineffectiveness claim under our decision in Rainey v. Varner , 603 F .3d 189, 203 (3d Cir. 2010). In Rainey , the petitioner asserted ineffective assistance of
counsel for counsel’s failure to challenge the sufficiency of the evidence for first degree murder. We held that even if the
evidence were insufficient for first de gree murder, the petitioner would have been convicted of second degree41 murder, and would have received the same mandatory life

sentence. Id. at 202. Therefore, Rainey held that the petitioner failed to establish Strickland prejudice. Id. at 2 03.

Raine y does not control Bennett’s due process claim
for two reasons

. First, the Commonwealth has never argued
that Rainey applies to the claim actually raised

— a due

process challenge to the trial court’s jury instructions on the specific intent to kill

. There fore, any argument that Rainey applies to this claim is wai ved. Second, even if the argument were preserved, we would decline to extend Rainey outside of
its context

— a claim that counsel was ineffective for failing to challenge the sufficiency of the evid ence for first degree murder, where the petitioner would nevertheless have been
convicted of second degree murder, which require d the same mandatory life sentence under state law. Id. at 201

- 02

. 19

19 In declining to read Rainey outside of its context, we
note that Rainey relied on three Supreme Court decisions for the proposition th at Strickland prejudice requires a reasonable probability of “a different sentence.” Rainey , 603 F.3d at 202
n.5. Each of the cited cases, however, addressed claims of ineffective assistance of counsel at the penalt y phase. Id. (citing Porter v. McCollum , 558 U.S. 30, 41 (2009) (per curiam); Wong v. Belmontes , 558 U.S. 15, 20 (2009) (per curiam); Wiggins v. Smith , 539 U.S. 510, 536 (2003)). Even the Commonwealth, in opposing certiorari, read Rainey as a narrow deci sion that “certainly did not purport to redefine prejudice globally by adding a requirement of a more onerous sentence for all petitioners alleging guilt

- phase
ineffectiveness.” Br. for Respondents in Opp’n to Pet. for Writ of Cert., Rainey v. Walsh , 562 U.S. 1286 (2011) (No.42 Rather, we follow the ordinary rule that “the ultimate issue under either [the Strickland or Brecht ] test reduces to determining what effect, if any, the erroneous instruction had on the jury’s verdict.” Whitney , 280 F.3d at 258. In making this determination, “[h] armless

- error review looks

. . . to the
basis on which ‘ the jury actually rested its verdict. ’

. . . That must be so, because to hypothesize a guilty verdict that was
never in fact rendered

— no matter how inescapable the findings to support that verdict might be

— would violate the jury

- trial guarantee. ” Sullivan v. Louisiana , 508 U.S. 275, 279 (1993) ( citation s omitted) (emphasis in original) (quoting

Yates v. Evatt , 500 U.S. 391, 404 (1991) ) (reviewing claim on direct appeal) ; see also United States v. Gonzalez

- Lopez , 548 U.S. 140, 150 (2006) (holding that the denial of the right to

counse l of one’s choice is structural error not subject to
harmlessness review because “[h] armless

- error analysis in such a context would be a speculative inquiry into what might
have oc curred in an alternate universe”); Jo nes v. United
States , 527 U.S. 373, 404 (1999) (evaluating for harmless

error purposes what “the jury in this case actually
understood” )

. Accordingly, in Laird we rejected a Brecht harmless error argument because “we can not substitute ourselves for the j ury by speculating about what portion of the testimony the jury believed.” 414 F.3d at 429; see also 2

- 31 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 31.4(d) (2017) ( “The
determinative consideration under the Brecht / Kott eakos
standard thus is not the strength of the evidence or the probability of conviction at a hypothetical retrial absent the

10

- 431), 2011 WL 663181, at *30 ( alterations , emphasis and citation omitted). We agree.43 error,” but rather “whether the error substantially affected the actual thinking of the jurors or the deliberative processes by
wh ich they reached their verdict.”)

.

Thus, for the reasons above, we conclude that the
Commonwealth wa ived the harmless error defense and that

,
e ven if the argument were preserved, the due process
violation was not harmless

.

V I

. Conclusion

W e will r everse the District Court’s order denying
habeas corpus relief and remand with instructions to grant a conditional writ of habeas corpus as to Bennett’s conviction for first degree murder 20 so that the matter may be returned to state court for further proce edings consistent with this opinion

. 21

20 Under Laird , “[o]ur holding in no way undermines the jury’s guilty verdict on the remaining charges.” Laird

, 414 F.3d at 430 n.9 ; see also Everett , 290 F.3d at 5 16 (granting th e writ “with regard to [the defendant’s] conviction for first degree mu r der ” ).

21 The Court acknowledges and thanks the Drexel University Appellate Litigation Clinic for the skillful pro bono advocacy provided to Mr. Bennett in this app eal.