NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-3260

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SHAWN OMAR JACOBS,

Appellant

v.

SUPERINTENDENT 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

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Argued March 6, 2023

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

(Filed: March 15, 2023)

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OPINION

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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 Lumina parked illegally in 

front of a store called the Golden Dragon. As Officer Saxon was placing tickets on the 
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vehicle, a man—whom Officer Saxon later identified as Jacobs—approached him to 

discuss the tickets. 

Later that night, Terry and a friend, Andrew 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 thereafter from a gunshot wound to the neck. 

Three 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 officers 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 teardrops tattooed on his face

immediately after the murder, one of which was intended to commemorate the shooting. 

After the shooting, Jacobs also got two teardrops tattooed on his face but he had them
4

altered after Howard was arrested. 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 looked 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 had some “reservations” about the identification 

because “[t]he lighting on the photo made . . . his skin tone [appear] a little off . . . .” 

App. 591. Several months after the incident, Willis identified Jacobs as the shooter 

during an in-person lineup. At 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 twenty-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 described. App. 1064. Willis also testified on cross 
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that he had seen Jacobs’ photo “[m]omentarily” on television before identifying him 

during the in-person lineup. App. 619. 

The 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 evidence. 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 stated that Howard

“sa[id] he [was] in control of Mr. Willis [and] Defendant Jacobs ha[d] control of Mr. 

Terry.” App. 845. Jacobs’ 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 Saxon encountered a different 

man outside the Golden Dragon who looked similar to the person described as the 
6

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 caution. 

Jacobs was found guilty of first-degree murder, among other crimes, and was

sentenced to life imprisonment without parole. 

C

Jacobs appealed to the Superior Court of Pennsylvania, which affirmed his 

conviction, and both 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 review. Jacobs then filed a petition under the Pennsylvania 

Post-Conviction Relief Act (“PCRA”), App. 1016-52, which the PCRA Court denied,

and the Superior Court affirmed. 

Jacobs next filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, 

which a Magistrate Judge recommended that the District Court deny. With one nondispositive exception, the 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. Sept. 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 was 
7

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

prejudice from these errors. 

II1

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 conviction, 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 is only entitled to relief 

if the state court’s error was not harmless. Eley v. Erickson, 712 F.3d 837, 847 (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. Abrahamson, 507 U.S. 619,

637 (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 nonstructural 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 the required showing under Strickland or Brecht. The

testimony established that (1) he was at the scene of the crime hours before Terry was 

murdered, (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 outside 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) Jacobs got the tattoos 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, 275-76 (3d Cir. 2008)

(concluding that a Bruton 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 (10th Cir. 2011); Smith v. 

Dixon, 14 F.3d 956, 974, 976 (4th Cir. 1994) (en banc). 
9

the shooter). This 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 Willis expressed reservation when he 

initially identified Jacobs in the photo array 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 assailants’ heights and offered a reasonable explanation for any confusion

on this point—that, as a relatively tall man, 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 

forensic and ballistic evidence established that Terry was killed by a bullet fired from the 
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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 

For 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. Superintendent 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 [the defendant] in the shooting”); Washington

v. Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 162 (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 errors were 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, even 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 perpetrator and, based on this testimony among other 

evidence, we concluded that the Bruton error was harmless. 539 F.3d at 276.

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). We 

need not, however, determine whether Jacobs showed cause and prejudice to excuse the 

default because we conclude his ineffectiveness claim lacks sufficient merit. See Roman 

v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (“Because we will deny Roman’s 

claims on the merits, we need not address the issue of exhaustion in this case.”).
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Baxter v. Superintendent Coal Twp. SCI, 998 F.3d 542, 546 (3d Cir. 2021). Because an 

instruction was unwarranted, 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 470, 488-89 (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]” at the time of 

the murder). Willis also provided a description of the attackers after the incident, 

positively identified both Jacobs and Howard before and at trial, and, even after crossexamination, stated that he was “[o]ne hundred percent” certain that Jacobs was the 

shooter, App. 585, 592. Thus, the evidence shows that Willis was able to identify the

attackers. Reid, 99 A.3d at 490-91 (“Our case law makes clear that the need for a Kloiber

instruction focuses 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 warranted. Willis, in fact, did pick Jacobs out of the photo array but 
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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 photographic 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 unnecessary.

Because counsel cannot be ineffective for failing to raise an unpersuasive 

argument, United States v. Sanders, 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 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 all had the same 

effect: they revealed that Howard identified Jacobs as the shooter. Given the single 

effect, and in 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.