NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No . 20

- 3260

______________ SHAWN OMAR JACOBS,

Appellant

v. SUPE R INTENDENT MAHANOY SCI; THE DISTRICT ATTORNEY OF MONTGOMERY COUNTY; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (No . 2

- 17

- cv - 00569 ) U.S. District Judge: Honorable Edward G. Smith

______________ Argued March 6 , 2023

______________ Before: SHWARTZ , BIBAS, and AMBRO , Circuit Judges

.

(Filed: March 15, 2023)

______________ OPINION 

______________
Victor J. Abreu, Jr. Samuel R. Welch [ARGUED]

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Federal Community Defender Officer for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 545 West Philadelphia, PA 19106 Counsel for Appellant Shawn Omar Jacobs
Robert M. Falin [ARGUED] Adrienne D. Jappe Montgomery County Office of District Attorney P.O. Box 311 Norristown, PA 19404 Counsel for Appellees Superintendent Mahanoy SCI , District Attorney Montgomery County and Attorney General Pennsylvania Ronald Eisenberg Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103
Counsel for Appellee Attorney General Pennsylvania

SHWARTZ, Circuit Judge

. Shawn Jacobs appeals the order denying his habeas petition under 28 U.S.C. § 2254. For the reasons that follow, we will affirm the District Court’s order.
I
A
Jacobs and a codefendant , Stanley Howard, were convicted of killing Jamal Terry
in December 2008 . The day Terry was murdered, Officer Brian Saxon of the Norristown , Pennsylvania Police Department noticed a white Chevrolet Lum ina parked illegally in
front of a store called the Golden Dragon. As Officer Saxon was placing tickets on the3

vehicle, a man

— who m Officer Saxon later identified as Jacobs

— approached him to discuss the tickets. Later that night, Terry and a friend, Andr ew Willis, entered the Golden Dragon. While inside, Willis observed two men standing by the door. Willis and Terry left and were thereafter approached by the same two men

. One of them was armed. The armed assailant forced Willis to the ground, told him to empty his pockets, and struck him on the head with the gun multiple times . His companion, meanwhile, robbed Terry. According to Willis, at some point the armed assailant left Willis, handed his companion the gun, and returned to Willis

. Willis then heard a single gunshot and the two assailants fled. Terry died shortly thereaft er from a gunshot wound to the neck

. T hree days after the shooting , Officer Saxon saw the same Lumina he had ticketed parked on a Norristown street

. As he and another officer approached the car, the person in the passenger seat

— later identified as Jacobs

— fled. Howard, who was sitting in the driver’s seat , was arrested. The office r s recovered a handgun on the ground outside the passenger door. A ballistics expert determined that the bullet that killed Terry was fired from the gun and DNA from Jacobs , Howard, and others was present on the firearm

. Howard told the police that he committed the robbery with Jacobs, and that Jacobs shot Terry. He also told the police that he paid to have two teardrop s tattoo ed on his face immediately after the murder , one of which was intended to commemorate t he shooting

. After the shooting , Jacobs also got two teardrops tattooed on his face but he had them4

altered after Howard was arreste d. Jacobs and Howard were charged with first degree
murder , and Jacobs turned himself in

. B
Jacobs and Howard were tried jointly , and Willis testified at their trial. On direct examination, Willis explained that, after the police arrived at the scene of the crime, he was “hysterical” but able to “pretty much tell [ the police] what the guys looke d like.” App. 585

- 86

. He testified that, a few days after Terry’s murder, he looked at two photo arrays and identified Howard as the assailant who hit him in the head with the gun

. He
also identified Jacobs as the shooter but ha d some “reservations” about the identification because “[t]he lighting on the photo made . . . his skin tone [appear] a little off

. . . . ” App. 591. S everal months after the incident, Willis identified Jacobs as the shooter during an in

- person lineup. A t trial, Willis testified that he was “ [ o ] ne hundred percent sure” that Jacobs and Howard were the assailants, App. 585, and that Jacobs was the
shooter

. On cross

- examination, Willis testified that on the night of the incident he
described the shooter as (1) measuring between five

- foot

- eleven and six

- foot

- one in height, ( 2 ) weighing between 150 and 160 pounds, ( 3 ) having a medium complexion with a little beard, and ( 4 ) appearing to be eighteen to twent y - one years old. Willis explained, however, that days after the incident, he contacted the police to explain that he might have “confus [ ed ] ” the assailants’ heights in his initial description and the shooter might have been shorter than he initially descr ibed. App. 1064

. Willis also testified on cross5

that he had seen Jacobs’ photo “ [ m ] omentarily” on television before identifying him during the in

- person lineup

. App. 619

. T he prosecution also presented Howard’s post

- arrest statements to the police

. Because Howard did not testify , and Jacobs therefore could not cross

- examine him, the references to Jacobs in Howard’s statements were replaced with the words “the person ” in an effort to comply with Bruton v. United States , 391 U.S. 123 (1968). Jacobs’ counsel did not object to the redactions nor did he object when the statements were
offered into evidenc e. The jury was instructed that it could not consider the statements as evidence against Jacobs. At closing, the prosecutor twice “broke” the redactions and referred to Jacobs’ name when discussing Howard’s statements. First, the prosecutor s tated that Howard
“sa [id] h e [was] in control of Mr. Willis [and] Defendant Jacobs ha [ d] control of Mr. Terry.” App. 845. Ja cobs’ counsel did not object to this statement. Second, the prosecutor stated “Mr. Howard said in his statement that Mr. Jacobs had handled th [ e ] gun . . . .” App. 855. Jacobs’ counsel objected to this statement and the prosecutor immediately corrected himself , stating “[p]ardon me [

— t]hat the other person had handled
th [ e ] gun.” App. 855. The court did not rule on the objection. In his closing argument , Jacobs’ counsel attacked the reliability of Willis’
identification . He argued that the description Willis provided immediately after the shooting did not accurately describe Jacobs’ height, skin tone, or facial hair. He also suggested that , on the day Terry was murdered, Officer Sa xon encountered a different

man outside the Golden Drago n who looked similar to the person described as the6

shooter

. Jacobs’ counsel did not seek, and the court did not give, an instruction under
Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954), which would have directed the jury to receive Willis’ identification testimony with cautio n. Jacobs was found guilty of first

- degree murder, among othe r crimes , and was sentenced to life imprisonment without parol e. C
Ja cobs appealed to the Superior Court of Pennsylvania , which affirmed his conviction, and b oth the Pennsylvania Supreme Court , Commonwealth v. Jacobs , 21 A.3d 1191 (Pa. 2011), and the United States Supreme Court , Jacobs v. Pennsylvania , 565 U.S. 1216 (2012), declined revie w. Jacobs then filed a petition under the Pennsylvania
Post

- Conviction Relief Act (“PCRA”) , App. 1016
- 52 , which the PCRA Court denied,
and t he Superior Court affirmed.
Jacobs next filed a petition for writ of habea s corpus pursuant to 28 U.S.C. § 2254 , which a Magistrate Judge recommended that the District Court deny

. W ith one non dispositive exception, t he District Court adopted the Magistrate Judge’s report and denied Jacobs’ petition. See Jacobs v. DelBalso , No. 17

- cv - 00569, 2020 WL 5705689 , at * 15 (E.D. Pa. Sep t . 24, 2020). We granted a certificate of appealability as to Jacobs’ claims that (1) his trial counsel was ineffective for failing to object to : ( a) the admission of Howard’s redacted
statements, and (b) the first instance in which the prosecutor mentioned Jacobs’ name in his closing statement ; (2) his Confrontation Clause rights were violated the second time the prosecutor mentioned Jacobs’ name in his closing statement ; (3) his trial counsel was7

ineffective for failing to request a Kloiber instruction ; and ( 4 ) he suffered cumulative prejudice f

ro m these errors.
II 1
A Even assuming that Jacobs’ counsel should have objected to the admission of Howard’s redacted statements and the prosecutor ’s first mention of Jacobs’ name during his summation, and even assuming there was a Bruton error the second time the prosecutor mentioned Jacobs’ name during his summation , these errors did not prejudice
Jacobs and hence were harmless.
Under the prejudice prong of Strickland v. Washington , a petitioner alleging
ineffective assistance must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different .” 466 U.S. 668, 694 (1984). “ A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “When a defendant challenges a convic tion, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. Similarly, a habeas petitioner asserting a Bruton violation i s only entitled to r elief
if the state court’s error was not harmless. Eley v. Erickson , 712 F.3d 837, 84 7 (3d Cir. 2013) . An error is harmless unless it caused “actual prejudice,” or, in other words, it had

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review Jacobs’ claims under the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

. See 28 U.S.C. § 2254.8

a substantial and injurious effect on the verdict. Brecht v. Abra hamson , 507 U.S. 619,
6 37 (1993) (citation omitted). The harmless

- error test is coextensive with Strickland ’s prejudice prong. See Preston v. Superintendent Graterford SCI , 902 F.3d 365, 382 (3d Cir. 2018) (“The prejudice prong of the Strickland analysis is consistent with the general ‘harmless error’ standard applicable to all federal habeas petitioners alleging non

structural errors.” (citation omitted)); Breakiron v. Horn , 642 F.3d 126, 147 n.18 (3d Cir. 2011). 2 Therefore, if Jacobs cannot show prejudice under Strickland on his two
ineffective

- assistance claims , he also cannot show that he was “actually prejudiced” by
the Bruton violation in the prosecutor’s closing statement.
Jacobs cannot make th e required showing under Strickland or Bre cht

. T he testimony established that (1) he was at the scene of the crime hours before Terry was
murdere d, (2) Jacobs fled from the police when they approached him and Howard days after the murder, (3) the police found the murder weapon on the ground outsi de the passenger side of the car from which Jacobs fled, (4) his DNA was on the murder
weapon , (5) he and Howard got two teardrop tattoos hours after the murder , and (6) J acobs got the tattoo s altered after Howard was arrested . In addition, Willis, an eyewitness to the murder, testified he was “ [o] ne hundred percent ” certain that Jacobs
was the shooter. App. 585, 592 ; See Bond v. Beard , 539 F.3d 256, 27 5

- 7 6 (3d Cir. 2008) ( concluding that a B ruton error did not prejudice the defendant where , among other evidence, an eyewitness testified that they were “absolutely certain” the defendant was

2 See also Byrd v. Workman , 645 F.3d 1159, 1167 n.9 (10 th Cir. 2011); Smith v. Dixon , 14 F.3d 956, 974, 976 (4 th Cir. 1994) (en banc).9

the shooter). T his evidence places Jacobs at the scene, indicates he handled the murder
weapon, identifies him as the shooter, and shows consciousness of guilt. Thus, Howard’s

statement about Jacobs was largely cumulative of the other evidence and its admission did not prejudice Jacobs. Jacobs argues Howard’s statements were prejudicial because they “bolstered and reinforced the testimony of the Commonwealth’s only other eyewitness, Willis, whose account was highly unreliable on its own.” Petitioner’s Br. at 35. Jacobs is incorrect that Willis’ testimony was highly unreliable. While W illis expressed reservation when he initially identified Jacobs in the photo arra y only because of the tone of the photo , he specifically stated that the photo of Jacobs depicted the facial features of the shooter

. Moreover, Willis sought to clear up any discrepancies in his statement to the police regarding the assailant s’ heights and offered a reasonable explanation for any confusion on this point

— that , as a relatively tall m an, Willis has a hard time describing the heights of people who are shorter than him , and he was on the ground during most of the
interaction. Finally, at trial , Willis did not equivocate in his identification of Jacobs as
the shooter.
Furthermore , Willis’ testimony was corroborated by evidence other than Howard’s

statements

. Willis testified that Jacobs was in the Golden Dragon prior to the attack and Officer Saxon’s testimony placed Jacobs in the vicinity of the Golden Dragon hours
before the incident. Willis testified that Howard handed the gun to Jacobs and both
actors’ DNA was on the firearm . Willis testified Terry was killed by a gunshot and
fore nsic and ballistic evidence established that Terry was killed by a bullet fired from the10

gun that was found near the side of the car from which Jacobs fled . Thus , Willis’ testimony is reliable on its own and is consistent with the other evidence. 3
F or these reasons, Jacobs’ ineffective assistance of counsel and Bruton claims fail.
B We next evaluate Jacobs’ claim that his counsel was ineffective for failing to request a Kloiber instruction directing the jury to receive Willis’ identification testimony
with caution

. 4 The state courts did not adjudicate this claim , so our review is plenary.

3 This case is not like the ones in which we have previously found Bruton violations prejudicial

. See, e.g. , Johnson v. Su perintendent Fayette SCI , 949 F.3d 791, 802

- 03 (3d Cir. 2020) ( concluding prejudice existed because eyewitness testimony was generally inconsistent with the other witnesses, and “[t]he prosecution presented no physical evidence that directly implicated [th e defendant ] in the shooting” ); Washington v. Sec’y Pa. Dep’t of Corr. , 801 F.3d 160, 16 2 (3d Cir. 2015) ( determining prejudice existed where the eyewitness , who was a participant in the crime , had “significant inconsistencies” including the eyewitness’ s “history of substance abuse and admitted heavy impairment from drugs at the time of the incident in question” ); Eley , 712 F.3d at 861 (holding a Bruton error prejudicial where “the [ Commonwealth ] ma[de] no argument to the contrary” and the codefendant’s confession “added substantial, perhaps even critical , weight to the Commonwealth’s case” (quotations omitted)); Vazquez v. Wilson , 550 F.3d 270, 283 (3d Cir. 2008) (concluding the Bruton err ors we re prejudicial because the only direct evidence implicating the defendant as the shooter was the improperly admitted codefendant’s statement and “ no witness at the trial [testified seeing the defendant] fire a weapon” )

. Unlike all of these cases, here, ev en without Howard’s statement, there is both reliable eyewitness and forensic evidence implicating Jacobs as the shooter. Thus, the case is more like Bond in which an eyewitness testified at trial that he was absolutely certain the defendant was the perpe trator and, based on this testimony among other evidence, we concluded that the Bruton error was harmless. 539 F.3d at 27 6

.

4 Because Jacobs failed to raise this issue on PCRA review, it is procedurally defaulted. Bey v. Superintendent Greene SCI , 856 F.3d 230, 236

- 37 (3d Cir. 2017)

. W e need not , however, determine whether Jacobs show ed cause and prejudice to excuse the default because we conclude his ineffectiveness c laim lacks sufficient merit

. See Roman v. DiGuglielmo , 675 F.3d 204, 209 (3d Cir. 2012) (“Because we will deny Roman’s claim s on the merits, we need not address the issue of exhaustion in this case.”).11

Baxter v. Superintendent Coal Twp. SCI , 998 F.3d 542, 546 (3d Cir. 2021)

. Because a n in struction was un warranted, counsel was not ineffective for failing to request it

. In Kloiber , the Pennsylvania Supreme Court held that “where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify [the] defendant on one or more prior occasions,” the trial court “should warn the jury that the testimony as to identity must be received with caution.” 106 A.2d at 826

- 27

. Jacobs has not shown a Kloiber instruction was necessary here. The trial testimony established that Willis had the opportunity to observe his assailants while in the Golden Dragon when they approached him and Terry on the street and during the robbery

. See Commonwealth v. Reid , 99 A.3d 4 70 , 4 8 8

- 8 9 (Pa. 2014) (holding a Kloiber charge was unnecessary partly because the defendant did not demonstrate that the identification witnesses “did not have an opportunity to clearly view [ him ]” a t the time of the murder). Willis also provide d a description of the attackers after the incident , positively identified both Jacobs and Howard before and at trial , and, even after cross

examination , stated that he was “[ o ] ne hundred percent ” certain that Jacobs was the
shooter , App. 585, 592

. Thus, the evidence shows that Willis was ab le to identify t h e attackers. Re id , 99 A.3d at 4 90

- 91 (“Our case law makes clear that the need for a Kloiber
instruction focuse s on the ability of a witness to identify the defendant.”)

. Furthermore, contrary to Jacobs’ argument, Willis’ failure to identify Jacobs in a photo array days after the incident without reservation does not indicate that a Kloiber
instruction was warrant ed. Willis, in fact, did pick Jacobs out of the photo array but12

expressed reservation only because “[t]he lighting on the photo [the police showed him] made . . . his skin tone [appear] a little off

. . . . ” App. 591. The Pennsylvania Supreme
Court has held that the witness’s failure to unequivocally identify the defendant prior to
trial does not warrant a Kloiber instruction where the witness later positively identifies the defendant without equivocation. See, e.g. , Commonwealth v. Gibson , 688 A.2d 1152, 1163 (Pa. 1997) (holding a Kloiber instruction was unnecessary where the witness testified one of the photographs in a photograph ic array was “familiar” but chose to wait
to make an in

- person identification and immediately made a positive identification of the defendant at trial). Given Willis’ positive identification of Jacobs both before and at trial ,

a Kloiber instruction was un necessary. B ecause counsel cannot be ineffective for failing to raise a n unpersuasive argument, United States v. Sander s , 165 F.3d 248, 253 (3d Cir. 1999), Jacobs’ Kloiber
claim fails

. III For the foregoing reasons , we will affirm

. 5

5 Even assuming that competent counsel would have obj ected to the admission of Howard’s redacted statements and the prosecutor ’s first mention of Jacobs’ name during his summation, and even assuming there was a Bruton error the second time the prosecutor mentioned Jacobs’ name during his summation, these err ors all had the same effect: they revealed that Howard identified Jacobs as the shooter. Given the single effect, and i n light of the other evidence establishing Jacobs’ guilt, Jacobs cannot demonstrate the alleged errors had a “substantial and injurious” effect on the jury. Brecht , 507 U.S. at 637.