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 District 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

Richard 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. After a capital sentencing hearing, the jury returned 

a sentence of life imprisonment without the possibility of 

parole. Two state courts later vacated Bennett’s first degree 
3

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; instead, the Pennsylvania Supreme Court reversed.

Before us is Bennett’s habeas corpus petition, asserting that 

the trial court’s erroneous jury instructions deprived him of 

due process of law under the United States Constitution. 

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

I. Factual and Procedural Background

A. Trial and Sentencing

The Pennsylvania Supreme Court summarized the 

factual 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, 

had 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 

and Johnson were caught on 

videotape entering and robbing 
4

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 charges of murder, 

criminal conspiracy, possession of an instrument of crime,

and robbery. The Commonwealth charged murder 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. The 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-shooters, 

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, was 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, from the start of trial, 

a central issue was whether Bennett was guilty of this offense. 

See Bennett VI, 57 A.3d at 1204 n.12. First degree murder in 

Pennsylvania requires that each defendant have the specific 

intent to kill. 18 Pa. Cons. Stat. § 2502(a). An 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 intent 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. 312-13. In closing, 

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 that [the shooter] Michael 

Mayo intended to kill [the victim]. . . . Co-conspirators and 

accomplices are equally guilty with the principal.” App. 591-

92.

This argument—that an accomplice or conspirator is 

“equally guilty” of first degree murder—was incorrect as a 

matter of state law. Nevertheless, the trial court echoed it in 
6

its jury instructions. Bennett’s petition turns on these jury 

instructions, and so we describe them in detail. 

First, the trial court charged the jury on criminal 

conspiracy, in relevant part, as follows:

Where two or more join in the 

commission of an unjustified 

assault which results fatally, all 

are guilty regardless of which one 

inflicts the mortal 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 combination 

but does not personally commit 

the wrongful act is equally 

responsible for the homicide as 

the 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 (emphases added).
7

In response to a jury question the trial court later 

repeated this instruction.

The 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 coconspirator, but also if he is an accomplice who aids and 

abets the commission of a crime.” App. 603. “The degree of 

concert or collusion between parties to an illegal transaction 

means the act of one is the act of all.” App. 604 (emphasis 

added).

The trial court further instructed the jury on murder, 

beginning with this introduction:

Each defendant comes before you 

charged 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 guilty. 

App. 605. 

Five paragraphs later, 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 this 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 the 
9

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.

App. 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, the jury returned a sentence of life 

imprisonment. On June 1, 1993, the trial court formally 

sentenced Bennett to life imprisonment without the possibility 

of parole. Bennett VI, 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 

years’ 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 impose 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 but 

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 intent 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 Superior 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 without evidence to support that 

finding,” and that counsel was ineffective 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 petition.
12

(table) (App. 228). The Commonwealth sought allowance 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 pled guilty 

to third degree murder, a lesser offense. See Commonwealth 

v. Wyatt, 115 A.3d 876, 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 Superior 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. 

Commonwealth v. Bennett (Bennett I), 842 A.2d 953, 954 (Pa. 

Super. 2004) (en banc), vacated by Commonwealth v. Bennett 

(Bennett II), 930 A.2d 1264 (Pa. 2007). In an opinion by

now-Pennsylvania Supreme Court Justice Todd, the en banc

Superior Court expressed its opinion of the merits in the 

strongest possible language:

There is no question that Tony 

Bennett was entitled to a new 

trial: the accomplice liability 

charge given at his murder trial 

was erroneous, and his 

codefendant at trial was granted a 

new trial on that basis. . . . [N]o 

appellate court has yet addressed 

Bennett’s meritorious claim, 

apparently due to the serial 

ineffectiveness of counsel. 
13

Bennett thus stands convicted of 

first-degree murder, and 

sentenced to life imprisonment, 

based on an erroneous accomplice 

liability charge, for a killing 

which occurred when his coconspirators 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 this 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 2007, 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.” Id. at 

1266 n.3. 

On remand, the trial court again reinstated Bennett’s 

right to appeal the denial of his PCRA petition. Bennett 

appealed. The Superior Court issued a procedural ruling 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. Bennett 
14

(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 Process,” and that Bennett’s trial counsel was ineffective 

for failing to object to them. App. 176. 

Bennett again won PCRA relief on the 

Commonwealth’s appeal. Commonwealth 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 firstdegree 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. In 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 question posed by the Commonwealth: 
15

whether “overturning [Bennett’s] first-degree murder 

conviction on the basis of a supposedly defective accomplice 

liability instruction overlook[s] and 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 1187. 

Then-Chief Justice Castille wrote an opinion for a threeJustice majority.

7 The Pennsylvania Supreme Court found

that the only issue before it was the ineffective assistance of 

counsel claim. See id. at 1187 n.1, 1195. As to Bennett’s

“underlying” due process challenge to the jury instructions,

the Court stated in passing that the issue was “defaulted,” id.

at 1193, or “waived,” id. at 1204, but did not explain why this 

was so. The Pennsylvania Supreme Court addressed the jury 

instructions within its analysis of the ineffective assistance of 

counsel 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 

District Attorney of Philadelphia, where the crime took place. 

Chief Justice Castille left his position as District Attorney 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 counsel was not deficient in failing 

to object. See id. 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 

irrelevant 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. This 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 before 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 possessed 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 PCRA relief. Id. at 1197-99 (citing

Commonwealth v. Thompson, 674 A.2d 217, 223 (Pa. 1996) 

and Commonwealth v. Simpson, 754 A.2d 1264, 1275-76 (Pa. 

2000)). The Pennsylvania Supreme Court held that the 

Superior Court erred by relying on another state decision, 

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 Justice of the Pennsylvania 

Supreme Court, and Justice McCaffrey concurred. Id. at 

1206 (Saylor, C.J., concurring). They opined that the trial 

court’s jury instructions “could be taken as overriding the 

specific-intent requirement for first-degree murder.” Id. at 

1207. They were particularly concerned that the jury could 

have convicted Bennett of first degree murder because he was 

“an accomplice or conspirator in some other crime.” Id.

(emphasis in original). Specifically, the 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 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 

 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 

(emphases, ellipses and second brackets 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 established “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 coconspirator 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 1208 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 the United States Constitution because the 

trial court’s jury instructions erroneously relieved the 

Commonwealth of its burden to prove the specific intent to 

kill, and (2) that trial counsel was ineffective for failing to 

object to the flawed jury instructions. 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 could not 

overcome the standard of review of the Antiterrorism and 
19

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 issued a report and recommendation. As to 

Bennett’s underlying due process claim, the 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 than the 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-reasoned 

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 appealability

in part and denied it in part.

D. Bennett’s Habeas Corpus Appeal to this 

Court

Bennett filed this timely appeal. Consistent with the 

certificate of appealability, 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 

ineffective assistance of counsel claim.

The Commonwealth’s response is surprisingly 

incongruous. It has chosen not to respond to Bennett’s due 
20

process claim—the only claim raised on appeal. Instead, it

takes the unusual position that Bennett must be raising an

ineffective assistance of counsel claim. The Commonwealth

asserts as much repeatedly 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 offers an equally unusual 

explanation for its approach. It asserts that Bennett’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, this is incorrect. The 

issue on appeal is the claim authorized by the certificate 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. Therefore, this is the 

claim we will address.10

II. Exhaustion

Under AEDPA, a habeas petitioner 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. We 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 that 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 

relief under the PCRA.” Wilkerson v. Superintendent, 871 

F.3d 221, 228-29 (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 Bennett, 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 outside 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 his federal claim on PCRA review by citing
22

the relevant provision of the United States Constitution and 

federal cases supporting 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 instructions 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 Cone 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 quotation 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.3d 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 District 
23

III. Standard of Review

AEDPA’s Section 2254(d) limits the ability of a 

federal court to grant habeas corpus relief to a petitioner 

based upon a federal constitutional claim that was

“adjudicated on the merits” in state court. 28 U.S.C. 

§ 2254(d). If Section 2254(d) applies, habeas relief shall 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 on 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.
24

determined by the Supreme Court 

of the United States; or

(2) resulted in a decision that was 

based on an unreasonable 

determination of the facts in light 

of the evidence presented in the 

State court proceeding.

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 still 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

question in habeas corpus proceedings is whether 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 evaluated 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.’” Williams, 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 an 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, “the 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 related situation, addressed in 

Williams, where the “state court rules against the defendant 

and issues 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 “follows logically” 

that the Richter rule applies. Id. at 293. That is, the 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. Secretary, 834 F.3d 263, 312 (3d Cir. 2016) 

(en banc) (applying Williams presumption to claim of 

cumulative prejudice). But see James v. Ryan, 733 F.3d 911, 

915 (9th Cir. 2013) (distinguishing Richter and Williams).

The Williams presumption that a federal 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 when 

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, 568 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 100. 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 original); see also Ashburn v. Korte, 761 

F.3d 741, 751 (7th Cir. 2014). 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, 786 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 301-02.
27

B. Bennett’s Due Process Claim Not 

Adjudicated on the Merits

In Bennett’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 not 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 Court 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] firstdegree murder conviction on the basis of a supposedly 

defective accomplice liability instruction overlook[s] and 

contradict[s] th[e Pennsylvania Supreme] Court’s precedent.”

Bennett V, 32 A.3d at 587. It characterized the “underlying” 

federal due process claim as “defaulted,” 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, as 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 address 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.” Id.

at 1203. Indeed, the Court even said that to the extent 

Bennett cited federal cases, they were not binding in the 

context of “construing Pennsylvania law.” Id.

Furthermore, even if the Williams presumption were to

apply, we would conclude that Bennett has rebutted it. 

Applying the Williams presumption, the question that follows

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, 568 U.S. at 303. For the reasons above, there is no 

ambiguity as to whether the Pennsylvania 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 federal courts, 

construing Pennsylvania law”); id. at 1193 (characterizing the 

“underlying” due process challenge as “defaulted”). Because 

the 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 

amended motion).

14 Therefore, we 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 federal 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 

harmless 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 made 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 at 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 standard would “provide no guidance to state trial judges 
30

IV. 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 beyond a reasonable doubt of 

every element necessary to constitute the crime, In re 

Winship, 397 U.S. at 364. Due process is violated when a 

jury instruction relieves the government of its burden of 

proving every element beyond a reasonable doubt. See

Waddington 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 federal 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. Sepulveda, 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 accomplice and 

conspiracy liability” but reiterating that “these are merely 

suggested instructions”).
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 190-91 (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 determination, the jury 

instruction ‘may not be judged in artificial isolation,’ but 

must be considered in the context 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 constitutionally infirm instruction will 

not suffice to absolve the infirmity.” Francis v. Franklin, 471 

U.S. 307, 322 (1985). “While a single defect does not 

necessarily make an instruction erroneous, . . . other language 

in the instruction does not always serve to cure the error. 

This is so even when other language correctly explains the 

law.” 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] 

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. As such, there is a 

reasonable likelihood that the jury applied the instructions 

incorrectly in violation 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 per 
32

principle. See Bey, 856 F.3d at 241; Laird, 414 F.3d at 428; 

Bronshtein, 404 F.3d at 712; Whitney, 280 F.3d at 256.

As to jury instructions on the specific 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”); 

Bronshtein, 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 decision, 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 

precedent has been overturned by implication, and Middleton

did not overrule Franklin or even refer to it. Agostini v. 

Felton, 521 U.S. 203, 237 (1997). Moreover, Middleton did 

not directly address whether there had been a federal due 

process violation, but rather 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. This 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 Smith 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 is this: 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, Commonwealth 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.2d at 296 (Saylor, C.J., concurring). State law thus 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 this 
34

In Bennett’s case, the trial court’s jury instructions on 

conspiracy and accomplice liability were deficient, or at the 

least ambiguous and inconsistent. The trial court repeatedly 

suggested that the jury could convict Bennett of first degree 

murder based upon the shooter’s specific intent to kill. It 

instructed the jury that where conspirators join together to 

commit an “unjustified assault which results fatally, 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

instructed 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. 604.

Reviewing these instructions in the context of the trial 

record, we conclude that there is “‘a reasonable likelihood’ 

that the jury applied the[se] instruction[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 rob 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 shooter, Mayo, botched the robbery, killing 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 possessed the 

requisite specific intent. Sarausad, 555 U.S. at 190-91 

(internal quotation marks omitted); see also Laird, 414 F.3d 

at 427; Smith, 120 F.3d at 414.

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 instruction 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 the 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 man 
36

who is not here”); App. 575 (“the defendant Mayo”).

18 The 

Pennsylvania Supreme Court, however, disagreed with this 

interpretation. 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 charge 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 the 

jury that one of these contradictory instructions carries more 

weight than the other. Language 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 urge upon you that the law of conspiracy 

makes all of these defendants first degree murderers.” App. 

312-13. In closing, 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 that 

[the shooter] Michael Mayo intended to kill [the victim]. . . . 

Co-conspirators and accomplices are equally guilty with the 

principal.” App. 591-92. These arguments increased the 

likelihood that the jury interpreted the charge 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 process under the United States 

Constitution. We are far from the first court to reach this 

conclusion. To the contrary, thirteen different Pennsylvania 

judges, in four separate decisions, have held or opined that 

these very jury instructions allowed 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 erroneous 

accomplice liability instruction”). Two additional concurring 

Pennsylvania Supreme Court justices recognized that the 

“charge could be taken as overriding the specific-intent 

requirement for first-degree murder.” Bennett VI, 57 A.3d at 

1207 (Saylor, 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 influence 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 equipoise 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, 435 (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, 304 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 Commonwealth 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 ineffective 

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 ineffective 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 asserting 
39

harmless error, any such possibility was eliminated by the 

Commonwealth’s Rule 28(j) letter of May 19, 2017. In this 

letter, the Commonwealth took the position that “Strickland

prejudice and harmless error are different, and it is the former 

standard that applies to the only claim properly before the 

Court.” Appellees’ 28(j) Letter at 1 (May 19, 2017). But 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 

demonstrate that the error was harmful”). Thus, the harmless 

error defense is waived.

Moreover, even 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. The 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 killed the clerk. Bennett VI, 57 A.3d at 1187. 

The Commonwealth 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 the 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. 

592. The Commonwealth, “[h]aving repeatedly 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. 404 F.3d at 711-12. 

In Bronshtein it necessarily 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 the jury convicted the defendant of 

conspiracy to commit first degree murder). This is not so in 

Bennett’s case. Unlike Bronshtein, the Commonwealth 

charged Bennett with conspiracy generally, and the trial court 

instructed the jury that the object of the conspiracy 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. 

602. 

Finally, we address the Commonwealth’s argument 

that there is no Strickland prejudice to support a hypothetical

claim of ineffective 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 degree murder, the 

petitioner would have been convicted of second degree 
41

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 203.

Rainey 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. Therefore, any argument that Rainey

applies to this claim is waived. 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 evidence for first degree 

murder, where the petitioner would nevertheless have been 

convicted of second degree murder, which required 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 that 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 penalty 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 decision 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) (citations 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 

counsel 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 occurred in an alternate universe”); Jones 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 jury 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/Kotteakos

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 

which they reached their verdict.”).

Thus, for the reasons above, we conclude that the 

Commonwealth waived the harmless error defense and that,

even if the argument were preserved, the due process 

violation was not harmless. 

VI. Conclusion

We will reverse 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 murder20 so that the matter may be returned to 

state court for further proceedings 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 516 

(granting the writ “with regard to [the defendant’s] conviction 

for first degree murder”). 

21 The Court acknowledges and thanks the Drexel 

University Appellate Litigation Clinic for the skillful pro 

bono advocacy provided to Mr. Bennett in this appeal.