PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________
No s

. 14

- 4694 & 15

- 2694

_______________
DAVID MATHIAS

, Appellant ( 15

- 2694 )

v.

SUPERINTENDENT FRACKVILLE SCI; ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

, Appel lants ( 14

- 4694 )

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

- 13

- cv

- 02002 ) Honorable Harvey Bartle, III , U.S. District Judge

_______________ Argued: December 6, 20162 Before: FISHER, ∗ KRAUSE, and MELLOY, ** Circuit Judges

. (Opinion Filed: August 28, 2017 )

Maria K. Pulzetti , Esq. [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106

Counsel for Appellee/Cross

- Appellant

Susan E. Affronti , Esq. Jennifer O. Andress , Esq. [ARGUED] Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107

Counsel for Appellant/Cross

- Appellee

_______________
OPINION OF THE COURT

_______________

∗ Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit, assumed senior status on February 1, 2017.

** Honorable Michael J. Melloy, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.3 KRAUSE, Circuit Judge

.
Under girding federal habeas law is an extensive procedural framework that limits when and how a petitioner may raise post

- conviction claims for relief and which claims are reviewable i n federal court

. Concerns of federalism, comity, and finality shape this complex framework and have required us to generate specific rules for when a petitioner’s claim may be adjudicated on the merits

. I n this appeal brought by the Commonwealth of Pennsylvania from the District Court’s grant of habeas relief on p etitioner’s first

- degree murder conviction

, we must interpret and apply a number of these rules to determine whether we have jurisdiction under Federal Rule of Appellate Procedure 4(a)(3) over p etitioner’s untimely cross

- appeal from the District Court’s de nial of habeas relief on his conspiracy conviction ; if so, whether Rule 4(a)(3)’s timeliness requirement should be waived in the interests of justice ; and whether a certificate of appealability (COA) is required on cross

- appeal

. In addition

, on the Commonwealth’s appeal, we must consider whether the District Court was correct to conclude that petitioner’s due process claim and related ineffective

- assistance

- of

- cou nsel claim based on purportedly unconstitutional jury instructions were properly exhausted in state court , are meritorious, and withstand harmless error review. For the reasons set forth below, we will dismiss petitioner’s cross

- appeal and, on the Commonwealth’s appeal, we will reverse the District Court’s grant of habeas re lief.

I. Factual Background and Procedural History

Petitioner David Mathias was charged with

, inter alia

, first

- degree murder and conspiracy to commit first

- degree4 murder based on a violent i ncident that left one person dead and another severely in jured

, though capable of testify ing at Mathias ’s state court trial

. As relevant to his defenses and the issues he would later raise on appeal, t he record from that 2006 trial in the Philadelphia Court of Common Pleas re flects that in the early hours of May 23, 2005

, Mathias and future co

defendant, Richard Jarmon, traveled to a boarding house where
an acq uaintance named Eric Richardson

— later the victim

witness at Mathias ’s trial

— rented a small efficiency room

. According to Richardson’s trial testimony, Mathias knock ed on Richardson’s door

, while Jarmon entered a n adjacent room where a friend of Richardson’s

, Joseph Drew El

, was l ying on his stomach on the floor watching television

. Richardson cautiously answered Mathias ’s knock

, and Mathias asked if he had change for a five

- dollar bill

. Although he felt “disturbed” and t h ought this a peculiar request, Richardson retreated back into his room, closing the door behind him, and retrieved five singles. App. 304. Richardson then exited the

room , taking care again to shut the door, and handed five one

dollar bills to Mathias , who was waiting nearby with Jarmon and Drew El. Mathias ’s fictitious mission accomplished, he asked Jarmon, “Are you ready?” and Jarmon stood up as if to leave. App. 304.
Suddenly, M athias drew a gun from his waistband and pointed it directly at Richardson’s stomach. Richardson

r eacted quickly by grabbing Mathias ’s wrist

, but Mathias began to shoot at Ri chardson as the two struggled. At the same
moment , Jarmon drew a gun of his own and fired a fatal shot
at Drew El, who still lay in a helpless and vulnerable position on the floor

. Jarmon then turned his gun on Richardson

— joining Mathias ’s ongoing assault

— while Richardson made a desperate attempt to flee the building

, bleeding profusely from5 gunshot wounds in his legs as he narrowly escaped

. Richardson, “shot, scared, . . . frightened , [ and] just running for [his] life, ” App. 307, was fortunate to encounter police a few blocks away who rushed him to the trauma unit of a nearby hospital

. Back at the boarding house, Drew El died from the gunshot wounds inflicted by Jarmon

.
Mathias ’s testimony at trial painted a different picture. He testified that he and Jarmon traveled to Richard son’s residence to buy marijuana , where, once th at transaction was

com plete , Richardson and Jarmon exchanged heated words, drew their guns, and began shooting at one another

. Mathias portrayed himself as an innocent bystander and claimed that he

was unaware Drew El was injured in the crossfire

.
At the conclusion of the trial, the trial judge instructed the jury , among other things, on the charges of first

- degree murder and conspiracy to commit first

- degree murder and on accomplice liability

. In the course of these instructions, however, the judge made inconsistent statements about the specific intent requirement for accomplice liability , at some points properly instructing the jurors they must find the accomplice himself had the specific intent to kill

, and at other points, over defense counsel’s o bjection and contrary to Pennsylvania law

, indicating that the jurors could convict an accomplice based on the specific intent of the principal

. Specifically , b efore giving the “formal charge,” the trial judge offered “plain English” commentary intended to give a “common sense view” of the relevant theories of liability and the crimes charged . App. 610 . During this portion of the instructions, the judge spoke accurately and at length about accomplice liability

. For example, the judge explained that “a defendant is an accomplice of another for a particular crime if6 . . . [it is] proved beyond a reasonable doubt . . . [t]hat the defendant had the intent of promoting or facilitating the commission of that crime.” App. 611. Applying thi s rule to the instant case, the judge further explained that the jury would have to “find beyond a reasonable doubt that there ha[d] been proof beyond a reasonable doubt that the defendant shared that specifi c intent to kill Joseph Drew El. ” App. 614.

N ext, transitioning to the “ formal instruction ,” App. 621, the trial judge covered first

- , second

- , and third

- degree murder, conspiracy, aggravated assault, and weapons violations

. 1 During this portion of the colloquy, the judge erroneously indicated no less than six times that Mathias could be convicted of first

- degree murder through accomplice liability if the jury found Jarmon possessed the sp ecific intent to kill Drew El. These instructions were misleading ly stated in the disjunctive, with the ju dge announcing the jury was required to find that either Mathias “or his alleged accomplice, Richard Jarmon, had the specific intent to kill

. . . ” App. 615.
Finally, addressing the charge of conspiracy to commit first

- degree murder, the trial judge de clined to “repeat” the definition of first

- degree murder, noting that it was “ the exact same requirement” and that it comprised the “same elements ” that had been introduced earlier in the colloquy, but explaining that first

- degree murder wa s the “object of the conspiracy .” App. 628. From there, the judge correctly laid out the elements of conspiracy, explaining that the alleged co

- conspirators must

1 The jury instructions also covered robbery, for which Mathias was not charged. However, because the prosecution’s theory o f the case was that Mathias and Jarmon intended to rob Richardson, the elements of robbery were relevant to the instruction on second

- degree murder.7 have “shared the intent to commit the crime of first degree murder,” which “would include the defendant havi ng . . . shared the specific intent to kill.” App. 630.
After these instructions, the jury deliberated for approximately one day before returning a verdict of guilty on the charges of first

- degree murder, criminal conspiracy to commit first

- degree murde r, aggravated assault, possession of an instrument of crime, and carry ing a firearm without a license

. Mathias was sentenced to a term of life on the murder conviction and a consecutive term of fifteen

- and

- a

- half to thirty

- one years on the conspiracy c onviction

, to be served concurrent with lesser terms for the additional charges

.
Mathias appealed his conv ictions to the Superior Court. While appellate counsel raised the cl aim that the jury instructions on criminal conspiracy w ere erroneous and violat ed due process because they “forced the jury to convict on first degree murder if they believed that there was an overt or implied agreement

, ” Supp. App. 2, he did not raise any arguments regarding the first

- degree murder instructions

. The Superior Court observed that appellate counsel had not adequately briefed any of Mathias’s claims and so deemed them waived. Nonetheless

, it opted to address the conspiracy instruction claim on the merits, finding it “somewhat difficult to follow” counsel’s argument but concluding that “the trial court clearly instructed the jury that in order to convict Appellant of conspiracy to commit first

- degree murder, it must find that [he] had the specific intent to kill.” App. 678, 680

- 81.
Unsuccessful on direct appeal, Mathias filed a pro se petition under Pennsylvania’s Post

- Conviction Relief Act (“PCRA”)

. Supp. App. 45. In an untimely fili ng attempting to8 amend his petition, Mathias raised a Sixth Amendment claim for ineffective assistance of counsel on the ground th at appellate counsel failed to challenge the constitutionality of the first

- degree murder instruction

. Although the Court of Common Pleas dismissed Mathias’s late filing

, t he Superior Court rejected it on the merits

, applying Pennsylvania’s formulation of the two

- part ineffective

- assistance

- of

- counsel
test laid out in Strickland v. Washington , 466 U.S. 668 (1984)

. Specifically , it held that counsel’s performance was not deficient because although “the specific intent instructions and instruc t ion on first degree murder

. . . [were] less than precise,” App. 664, and “lacked clarity,” App. 665, “the [trial] court did instruct the jury . . . that it was required to find that Appellant had spe cific intent to kill,” App. 665, and that Mathias was n ot prejudiced because “the jury did find that Appellant had a specific intent to kill Mr. El since it found him guilty of conspiracy to commit first degree murder, which requires a finding of specific intent to kill.” App. 666.
Turning next to the feder al courts, Mathias filed a pro

se habeas petition

, pursuant to 28 U.S.C. § 2254

, in which he claimed (1) the first

- degree murder instruction violated his due process rights

, and (2) appellate counsel rendered ineffective assistance by failing generally to file an adequate brief and thereby waiving whatever claims he might have raised on appeal

. T he Magistrate Judge recommend ed denying the first claim either on the ground that it was unexhausted and procedurally defaulted or, alternatively, that the alleged constitutional error in the first

- degree murder instruction was harmless in light of the specific intent finding the jury must have made in convicting Mathias for conspiracy to com mit first

- degree murder , and rejecting the second claim because9 Mathias was unable to show how he was prejudiced by appellate counsel’s deficient performance

.
T he District Court, however, rejected the Magistrate Judge ’s recommendation and concluded that Mathias did not fail to exhaust the first

- degree murder instruction claim because , a lthough he did not label it as a separate claim in his PCRA petition

, the Superior Court, in adjudicating the ineffective

- assistance

- of

- counsel claim that he did expressly raise, also considered the constitutionality of the instruction itself in evaluating deficient performance and prejudice

. In

a nother t hreshold decision

, the District Court found the Superior Court’s application of federal law on internally inconsistent ju ry instructions was contra ry to that prescribed by the Supreme Court in Francis v. Franklin , 471 U.S. 307 (1985)

, and therefore proceed ed to review this claim de novo instead of using the highly deferential standard of review typically required when federal courts review state court decisions on habeas. See Harrington v. Richter , 562 U.S. 86, 100 (2011) (citing 28 U.S.C. § 2254(d)) ; Panetti v. Quarterman , 551 U.S. 930, 953

- 54 (2007)

.
As to the merits of t he jury instruction c laim, the District Court, relying largely on Francis
, held that, read as a whole, the instructions relieved “the Commonwealth of its burden of proving beyond a reasonable doubt the key element that Mathias had a specific intent to kill,” Mathias v. Collins , No. 13

- 2002, 2014 WL 5780834, at *8 (E.D. Pa. Nov. 5, 20 1 4) (citing Francis, 471 U.S. at 322 ; In re Winship , 397 U.S. 358, 364 (1970)) , and thus that the Superior Court’s con trary decision was unconstitutional and warranted habeas relief

. The District Court also rejected the Magistrate Judge’s harmless error determination, reasoning instead that the conspiracy charge, by virtue of incorporating the first

- degree murder10 charge, made it impossible to infer a jury finding of specific intent and that the jury instruction regarding the jury’s manner of deliberating had the same effect

. With respect to Mathias’s second claim

— based on appellate counsel ’s generally in adequate briefing

— the District Court construed it liberally as a claim that counse l was ineffective specifically for failing to raise these concerns with the first

- degree murder instruction

, a claim which Mathias had expressly raised and exhausted on PCRA review

. The District Court again applied plenary review

, assuming the Superior Court’s application of Pennsylvania law was contrary to that prescribed by the Supreme Court in Strickland

, which Mathias now concedes was error

. And, having determined that the due process claim related to the first

- degree murder instructio n itself had merit, the District Court concluded that appellate counsel necessarily was deficient for failing to raise that claim and that Mathias was prejudiced by that deficient perf ormance

. Accordingly

, the District Court granted Mathias habeas relief on the basis o f his ineffective assistance claim, as well as his due process claim

. The Commonwealth now appeals those rulings , and Mathias, in an untimely filing over which our jurisdiction is uncertain

, cross

- appeals

, seeking a grant of habeas relief on his conviction for criminal conspiracy to commit first

- degree murder and requesting a COA to assert both Sixth Amendment and due process claims based on the jury charge underlying that conviction

. For the reasons that follow, we will exercise jurisdict ion over Mathias’ s untimely cross

- appeal , waiving the Rule 4(a)(3) timeliness requirement but deny ing Mathias’ s application for a COA, and we will reverse the District Court’s grant of habeas relief on Mathias’s murder conviction

.11 II. Mathias’s Cross

- Appeal

The claims Mathias seeks to raise on cross

- appeal

— regarding the constitutionality of the trial court’s conspiracy instructions and appellate counsel’s failure to effectively brief this issue

— are only eligible for review on the meri ts if they can clear three procedural hurdles. The first is jurisdiction al : As Mathias concedes that his notice of cross

- appeal was untimely filed under Federal Rule of Appellate Procedure 4(a)(3)

, Fed. R. App. P. 4(a)(3)

, we must determine if that rule is mandatory and binding on the court or permissive and excusable by the re viewing court

. The second is the standard for excusing a default and our application of that standard to this case. And the third is whether the sta tutory COA requirement that applies to a petitioner’s appeal on a successive petition also extends to a petitioner’s cross

- appeal , and if so, whether we should grant one in Mathias’s case

. We conclude Mathias reaches but falters at this last threshold

.
A. Jurisdiction Over Mathias’s Cross

- Appeal Under Rule 4(a)(3)

We first must determine if Federal Rule of Appellate Procedure 4(a)(3) is jurisdictional , a question that has divided the Courts of Appeals. 2 The crux of the issue is that, in contrast

2 Compare , e.g. , Stephanie

- Cardona LLC v. Smith’s Food & Drug Ctrs., Inc. , 476 F.3d 701, 705 (9th Cir. 20 07) ( finding Rule 4(a)(3) nonjurisdictional ); Clubside, Inc. v. Valentin , 468 F.3d 144, 162 (2d Cir. 2006) (same); Spann v. Colonial Vill., Inc. , 899 F.2d 24, 33 (D.C. Cir. 1990) (same), with , e.g., Jackson v. Humphrey , 776 F.3d 1232, 1239 n.6 (11th Cir.) (finding Rule 4(a)(3) jurisdictional), cert. denied , 136 S. Ct. 155 (2015); Art Midwest Inc. v. Atl. Ltd. P’ship XII , 742 F.3d12 to the thirty

- day time limit for filing an initial notice of appeal, whic h appears in 28 U.S.C. § 2107 and has been recognized by the Supreme Court as a jurisdictional bar

, Bowles v. Russell

, 551 U.S. 205, 214 (2007)

, Rule 4(a)(3) is not a creature of
statute , but a court

- promulgated rule . Today we join those Circuits that have found this distinction of jurisdictional significance

. As explained below, we are guided to this
outcome by our own precedent and by recent Supreme Court case law.

W e begin with our c ase law, which pave s the way for our holding today though not by the straightest of routes

. Our starting point is United States v. Tabor Court Realty Corp. , 943 F.2d 335 (3d Cir. 1991), where we observed that “[a]lthough a timely, initial notice of appeal is mandatory and jurisdictional, it has been the rule of this Circuit that Rule 4(a)(3), which provides . . . time for filing cross or other separate appeals, is not a jurisdictional prerequisite,” id. at 342

- 43

. W e ack nowledged in Tabor that the Supreme Court, in Torres v. Oakland Scavenger Co. , 487 U.S. 312 (1988), deemed jurisdictional Rule 3(c)’s requirement that a notice of cross

appeal name all parties, and that Torres made reference to the “jurisdictional requirem ents of Rules 3 and 4

. ” I d. at 31 7 . But because Torres offered no “definitive statement as to whether
or not a cross

- appeal is mandatory or jurisdictional, ” Tabor

, 943 F.2d at 344, we reasoned that it did not disturb our treatment of Rule 4(a)(3) as permissive. T wo years later

, however, in EF Operating Corp. v. American Buildings , 993

206, 213 (5th Cir. 2014) (same); Sullivan v. City of Augusta

, 511 F.3d 16, 33 n.7 (1st Cir. 2007) (same). See generally Mendoci no Envtl. Ctr. v. Mendocino Cty. , 192 F.3d 1283, 1298 & nn. 27, 28 (9th Cir. 1999) (listing cases).13 F.2d 1046 (1993), we change d course and, without citing to or distinguishing Tabor , held in view of Torres that Rules 3 and 4 are in fact jurisdictional, i d. at 1049 n. 1.

While we have recognized the tension between Tabor and EF Operating since that time, we have not had occasion to resolve it. See, e.g.
, Bowers v. Nat ’l Collegiate Athletic Ass ’n
, 346 F.3d 402 , 411

- 12 (3d Cir. 2003) ; United States v. Erwin

, 765 F.3d 219, 232 n.9 (3d Cir. 2014)

. We reach that crossroad today , and

, as our case law teaches that where two precedential opinions are in “unavoidable conflict

, ” the earlier opinion

co ntrols

, Kossler v. Crisanti , 564 F. 3d 181, 194 n.8 (3d Cir. 2009), we deem T abor , which treated Rule 4(a)(3) as nonjurisdictional, to be the law of our Circuit, see Reilly v. City of Harrisburg , 858 F.3d 173, 177 (3d Cir. 2017) (explaining that “ en banc consideration is required” in order to overrule the holding of a prior precede ntial opinion)

.
The rule of Tabor also accords with recent Supreme Court cases that distinguish “claim

- processing rules”

— that is, “rules that seek to promote the orderly progress of litigation by requir ing that the parties take certain procedural steps at certain specified times,” such as “ [ f ] iling deadlines”

— as nonjurisdictional unless Congress has made them jurisdictional through clear and unequivocal statutory language. Henderson v. Shinseki , 562 U.S. 428, 435

- 36 (2011); see Gonzalez v. Thaler , 565 U.S. 134, 141

- 42 (2012); Bowles , 551 U.S. at 214

- 15; Eberhart v. United States , 546 U.S. 12, 16 (2005); Kontrick v. Ryan , 540 U.S. 443, 45 3

- 5 4 (2004)

. Examples of claim

processing rules that the Court has specified are

no n jurisdictional include time limits in bankruptcy proceedings for a creditor to file objections to a debtor’s discharge, Kontrick , 540 U.S. at 453

- 54, and the time period in criminal prosecutions for filing post

- trial motions, Eberhart

,14 546 U.S. at 15

- 16

. By contrast, the Court has classif ied the thirty

- day time period for filing a notice of appeal as jurisdictional, noting “the jurisdictional distinction between
court

- promulgated rules and limits enacted by Congress

, ” Bowles , 551 U.S. at 211

- 12, and explaining that “Rule 4 of the Federal R ules of Appellate Procedure carries § 2107 into practice

, ” Bowles , 551 U.S. at 208, in contrast to mere “procedural rules adopted by the [c]ourt for the orderly transaction of its business,” id. at 211 (quoting Kontrick , 540 U.S. at 454).

These cases indicate that, in contrast to Rule 4(a)(1), which requires appellants to take the “mandatory and jurisdictional” step of initiating a timely appeal, Bowles , 551 U.S. at 209, Rule 4(a)(3) is properly considered a nonjurisdictional “claim

- processing rule”

— pr omulgated to set filing deadlines for appellees considering whether to cross

appeal when a case is already brought within our jurisdiction, Henderson , 562 U.S. at 43 5. That is because, although Rule 4(a)(3) provides for cross

- appeals the analogue to Rule 4(a)(1)’s time limit for initial appeals, it is not derived from any statutory analogue to 28 U.S.C. § 2107(a), but instead is simply a “procedural rule [] adopted by the [c]ourt for the orderly transaction of its business ,” Bowles , 551 U.S. at 211 (quoting Kontrick , 540 U.S. at 454) , like other nonjurisdictional, claim

- processing rules “that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times,” Henderson , 562 U.S. at 435. To designate that type of rule as jurisdictional would too “lightly attach . . . drastic consequences” to a procedural requirement n ever intended to “govern [our] . . . adjudicatory authority.” Gonzalez , 565 U.S. at 141 (internal quotation marks omitted)

.15 In sum, we conclude Rule 4(a)(3) is not jurisdictional so that a party’s failure to comply wit h it may be excused by the reviewing court. We turn next to the standard for granting that relief and whether that standard has been met in this case.

B. Waiver of Timeliness Requirement
In expounding on the standard for excusing a Rule 4(a)(3) violation, we start with Tabor , where we stated that the requirement may be waived “in the interest of justice under appropriate circumstances, ” Tabor , 943 F.2d at 343, but we did
not elaborate on that standard. Because we must do so today, we will review our own case law, the standards articulated by other Courts of Appeals , and an analogous standard for the setting aside of default judgments and draw on their teac hings before defining the standard for our C ourt

. As far as our case law, in Rhoads v. Ford Motor Co.

, 5 14 F.2d 931 (3d Cir. 1975), we waived the deadline for a third

- party defendant on the ground that he “might well have believed that he could not appea l the final judgment,” id. at 934

. Next, in Tabor itself, we excused a party ’s untimely motion of cross

- appeal, observing that, under the facts of that case, “the disposition as to one party [was] inextricably intertwined with the interests of a non

- appealing party so as to make it impossible to grant relief to one party without granting relief to the other.” Tabor , 943 F.2d at 344. Finally, in Repola v. Morbark Industries, Inc. , 980 F.2d 938 (3d Cir. 1992), we declined to waive the strictures of Rule 4(a)(3), observing that the claims excluded as a result of our decision were not “inextricably inter twined” with the claims before us and “relief could [still] be fairly granted” in the case, id. at 942.16 Outside of our own jurisprudence, in S.M. v. J.K. , 262 F.3d 914 (9th Ci r. 2001), the Ninth Circuit, declining to waive the timely filing requirement, considered whether the delay was understandable, the obviousness of the need to file a cross

app eal, and whether the matters were inextricably related

, i d. at 923. That court determined there was “no reason to allow” the delayed cross

- appeal where the putative claims were “essentially unrelated to the issues” on appeal

, and the appellee “knew within the time period for filing her notice . . . that she intended to appeal the court’s punitive damages ruling.” Id. And in Hysell v. Iowa Public Service Com pany , 559 F.2d 468 (8th Cir. 1977), the Eighth Circuit vacated a judgment entered against a party not actually before it

, notwithstanding that the deadline for filing a notice of cross

- appeal had already passed, explaining, “To allow the judgment against t he City to stand would be to risk assessing varying liabilities against two parties to the same wrong.” Id. at 476

- 77.

W e also find instructive the standard for setting aside a default judgment

. Federal Rule of Civil Procedure 60(b) provides for relief f rom the entry of a final judgment, order, or proceeding pursuant to enumerat ed circumstances which include, under Rule 60(b)(1), “ mistake, inadvertence, surprise, or excusable neglect” and , under Rule 60(b)(6), “ any othe r reason that justifies relief.” Fed. R. Civ. P. 60(b). We have held that the relevant factors to be considered on a Rule 60(b)(1) motion include prejudice, merito rious defense, culpability , and “ the effectiv eness of alternative sanctions, ” Emcasco Ins. Co. v. Sambrick

, 834 F.2d 71, 73 (3d Cir. 1987), and that a party seeking relief under Rule 60(b)(6) must show “ex ceptional circumstances,” to wit: that “ absent such relief an extreme and unexpected hardship will result

, ” Mayberry v.17 Maroney , 558 F.2d 1159, 1163 (3d Cir. 1977) (internal quotation marks omitted)

.
What we distill from these sources is that the factors informing when waiver of Rule 4(a)(3) is appropriate “in the interest of justice

, ” Tabor , 943 F.2d at 343, include : prejudice, merit s , willfulness

, and extraordinary circumstance. That is, we ask whether any party will be adversely and unfairly affected if t he cross

- appeal is not allowed; whether the issues substantially overlap such that severance may be inefficient or create an absurd result; whet her good reason exist s for the delay in filing ; and whether there are extenuating circumstances present in the case that otherwise warrant relief

. These considerations, taken as a group, encapsulate the issues courts find most significant when deciding wh ether to waive Rule 4(a)(3)

, and, applied with diligence, will maintain a high standard that safeguards the orderly and efficient administration of justice while keeping a level focus on fairness.
Applying these factors, we conclude without difficulty th at waiver is appropriate here. The two new claims Mathias seeks to raise on cross

- appeal would not likely support a second or success ive habeas petition, which, if attempted, would have to overcome the onerous successive

- petition bar

, s ee 28 U.S.C. § 2244 (b)(2), and there is no reason to believe the Government would suffer any prejudice by opposing his claims while litigating its own appeal. Further, although Mathias’s putative cross

- claims pertain to the trial court’s conspiracy instructions rather than its first

- degree murder instructions, they are substantively related to the claims already before us and would require similar legal analyses on the merits

. S ee Repola , 980 F.2d at 941

. Finally

, while proceeding
pro se , Mathias may well have believed he could not raise18 ad ditional claims through a cross

- appeal mechanism

, s ee Rhoads

, 514 F.2d at 934 , a nd , demonstrating diligence on Mathias’s behalf, his newly appointed counsel filed the notice of cross

- appeal promptly after entering an appearance in the

case

. Considering these factors (and without need to consider extraordinary circumstances)

, the interest s of justice are served by the efficien cy and fairness in allowing Mathias’s cross

appeal to proceed . Accordingly, we will excuse his untimely

cross

- appeal and consider the next threshold he must cross: the COA requirement.

C. Certificate of Appealability
The Supreme Court stated as recently as 2015 that whether a petitioner is required to obtain a COA when taking

a cross

- appeal is “ unclear, ” observing that 28 U.S.C. § 2253(c), which establishes the COA requirement on appeal, “performs an important gate

- keeping function” that no longer exists once an appeal is noticed. Jennings v. Stephens , 135 S. Ct. 793, 802 (2015) . The Court expressly dec lined to decide whether § 2253(c) “embraces a cross

- appeal,” id. , and our Circuit has similarly left the matter for another day, see Mickens

- Thomas v. Vaughn , 321 F.3d 374, 376 n.2 (3d Cir. 2003). That day has arrived, and we hold that a COA is mandatory for a petitioner seeking to take a cross

- appeal.
When initiating an appeal, a petitioner is obligated to obtain a COA by making “a substantial showing of the denial of a constitutional right

, ” 28 U.S.C. § 2253(c) (2)

— which includes a “showing that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were ‘ adequate to deserve encouragement to procee d further. ” ’ Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v.19 Estelle , 463 U.S. 880 , 893 n.4 (1983)) . We perceive no reas on to set aside this obligation merely because the petitioner’s claims happen to arrive by way of cross

- appeal. To the contrary, in this context too it can serve its intende d purpose of “screen[ing] out issues unworthy of judicia l time and attention and ensur[ing] that frivolous claims are not assigned to merits panels,” a “gatekeeping function” that is satisfied “[o]nce a judge has made the determination that a COA is warran ted and resources are deployed in briefing and argument.” 3 Gonzalez

, 565 U.S. at 145

. This is a case in point, where two putative cross

- claims, albeit accompanied by novel questions of procedural viability, have added significantly to the parties’ briefing and preparation for argument, affecting our Court in equal

measure. In short, Mathias must obtain a COA before his

cross

- claims can be addressed on the merits, and we now take up his application.

To merit a COA, Mathias must me et the “substantial showing” requirement under 28 U.S.C. § 2253(c) (2)

. See Slack , 529 U.S. at 483

. In addition, where a district court has denied a petition on procedural grounds “a COA should issue when the [petitioner] shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason

3 Although the Seventh Circuit has suggested that once a state has elected to appeal the grant of habeas relief, “there are no remaining gates to be guard ed,” and thus, it is futile to require a COA on cross

- appeal, Szabo v. Walls , 313 F.3d 392, 398 (7th Cir. 2002), we do not interpret § 2253(c)’s “gatekeeping function” so narrowly, Gonzalez , 565 U.S. at 145.20 would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. Quite simply

, Mathias cannot overcome this procedural hurdle.
As Mathias puts it, he “seeks to cross

- appeal the district court’s denial of relief” on his claims that the conspiracy instruction violated his due process rights and that appellate counsel was ineffective for failing to challenge that instruction. App. 58. T he District Court

, however, ma de clear that Mathias “waived any challenge to the conspiracy conviction and instructions ,” Mathias , 2014 WL 5780834, at *9 n.5

, and that conclusion is supported by the record, which n owhere reflects that Mathias raised these claims in his § 2254 p etition

. Mathias, while conceding he did not articulate the claims in explicit terms, nonetheless contends they were implic it in the claims he did raise, suggesting the District Court should have recognized them from offhand reference s to the conspiracy instruction made in the parties’ briefing

, the fact of that instruction’s incorporation of the first

- degree murder instructio n, and the argument raised by counsel on direct appeal that the conspiracy instruction was unconstitutional

. We reject the notion that the mere recitation of facts or procedural history or some combination of hints and innuendo suffice to fairly raise a c laim. Rather, “the crucial question regarding waiver is whether the petitioner presented the argument with sufficient specificity to alert the district court,” that is, whether the district court was put on “ notice of the legal argument. ” Lark v. Sec’y P a. Dep’t of Corr. , 645 F.3d 596, 60 7

- 08 (3d Cir. 2011) (citing Bagot v. Ashcroft , 398 F.3d 252, 256 (3d Cir. 200 5 )). And that standard is not met merely because the facts underlying a potential legal argument w ere available in the record . Mathias failed to alert the District Court to the legal claims themselves

, see id.

, so that we cannot21 say “jurists of reason would find it debatable whether the District C ourt was correct in its procedural ruling” that those claims were waive d

, Slack , 529 U.S. at 48 4

. For that reason

, we will deny Mathias’s application for a COA and dismiss his

cross

- appeal

.
III. Commonwealth’s Appeal
The Commonwealth appeals the District Court’s grant of the Great Writ on Mathias’s con viction for first

- degree murder based on his ineffective

- assistance

- of

- counsel and due process claim s arising from the first

- degree murder instruction

. For the reasons set forth below, we agree with the Commonwealth that the District Court incorrectly applied a de novo standard of review in consider ing the ineffective assistance claim and that, when reviewed with proper deference, the Superior Court’s decision was not contrary to or an unreasonable application of Strickland v. Washington , 466 U.S. 668 (1984) . We also reach this conclusion as to the due process claim, applying appropriate deference and holding that that claim was exhausted and the Superior Court had the opportunity to

, and in fact did

, address the merits, rendering a decision that was not contrary to or an unreasonable application of federal law governing internally inconsistent jury instructions , and nonetheless any error arising from the instructions would have been harmless

.
A. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. § 2253. Because the District Court did not conduct an evidentiary hearing and engaged in no independent fact finding

, we apply de novo review to its factual inferences drawn from the state22 court record and it s legal conclusions, including the grant of habeas relief

. Albrecht v. Horn , 485 F.3d 103, 114 (3d Cir. 2007) ; Hakeem v. Beyer , 990 F.2d 750, 758 (3d Cir. 1993)

.
B. First

- Degree Murder Instruction Claims

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Mathias , to prevail on his habeas petition, carried the burden of demonstrating that the Superior Court decision was “ ‘ contrary to ’ federal law then clearly established in the holdings o f [the Supreme] Court ” or

‘ “involved an unreasonable application of ’ such law.” Richter

, 562 U.S. at 100 (2011) ( quoting 28 U.S.C. § 2254(d) (1) ) ; see Cullen v. Pinholster , 563 U.S. 170, 181 (2011) . “A state court decision is ‘contrary to’ clearly establi shed federal law if it ‘applies a rule that contradicts the governing law set forth’ in Supreme Court precedent, or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [ the Supreme ] Court and nevertheless arrives at a result different from that reached by the Supreme Court.’” Eley v. Erickson

, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Williams v. Taylor

, 529 U.S. 362, 405, 406 (2000)) (alteration in original)

. In contrast, a state court decision reflects an “unreasonable application of such law” only “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents,” a standard the Supreme Court has advi sed is “difficult to meet” because it was “meant to be.” Richter , 562 U.S. at 102. As the Supreme Court has cautioned, a n

“ unreasonable application of federal law is different from an incorrect application of federal law,” Richter , 562 U.S. at 101 (quoti ng Williams , 529 U.S. at 410), and w hether we

“ conclude[] in [our] independent judgment that the relevant23 state

- court decision applied clearly established federal law erroneously or incorrectly ” is irrelevant , as AEDPA sets a higher bar

. Williams , 529 U.S . at 411.

Here, as to both Mathias’s ineffective

- assistance

- of

counsel and due process claims based on the first

- degree murder instruction , the District Court held the Superior Court’s decision was “contrary to” clearly established Supreme Court precedent and thus applied de novo review instead of AEDPA deference , concluding t he claim s were meritorious

. The se rulings were in error . As we explain below, (1) the Superior Court’s decision was not contrary to Strickland so that the District Court sh ould have applied AEDPA deference

, determining whether the Superior Court’s application of Strickland was an unreasonable application of clearly established Supreme Court precedent ; (2) the Superior Court’s decision was not an unreasonable application of S trickland because

, regardless of whether counsel’s performance was deficient, the Superior Court did not clearly err in determining there was no prejudice; and (3) the Superior Court’s decision was not an unreasonable application of Supreme Court precedent on internally inconsistent jury instructions , and regardless any error was harmless

. We address these issues in
turn.

1. AEDPA Deference

The District Court here declined to apply AEDPA deference in reviewing the Superior Court’s ineffective assistance and due process analysis

, holding both were

“ contrary to clearly established Supreme Court precedent. ” Mathias , 2014 WL 5780834, at *8 ; see id. at *5. It did so in

error because , as for the ineffective

- assista nce

- of

- counsel claim, it determined the Superior Court, by relying on the24 Pennsylvania formulation of Strickland

, “ did not delve into the [] questions ” of defici ent performance and prejudice that Strickland requires and therefore was “contrary to Strickland

. ” Id. at *5. The state law formulation on which the Superior Court relied, however, is one we already have expressly held is “not contrary to Strickland

, ” Jacobs v. Horn , 395 F.3d 92, 106 n.9 (3d Cir. 2005), and the S uperior Court not only invoked that permissible test, but proceeded to apply it, making findings
as to both deficient performance and actual prejudice

. Hence
, as even Mathias concedes on appeal, the District Court simply erred in viewing the Superior Court’s decision as “contrary to” clear ly established federal law

, Richter , 562 U.S. at 10 0 , and the proper inquiry is whether the Superior Court ’s rejection of Mathias’s ineffective

- assistance

- of

- counsel claim was an unreasonable application of clearly established federal law, Knowles v. Mirzayance , 556 U.S. 111, 1 21

- 23 (2009) ; Collins v. Sec’y of Pa. Dep’t of Corr. , 742 F.3d 528, 546

- 50 (3d Cir. 2014)

. The District Court misapplied plenary review to Mathias’s due process claim as well

, failing to cite or consider in its analysis a key Su preme Court case under which the Superior Court’s decision is not “contrary to” clearly established federal law

. Richter , 562 U.S. at 10 0

. Applying the appropriate deferential standard of review, w e turn first to the ineffective

- assistance

- of

- counsel cla im.

2. Ineffective Assistance Claim

On habeas review, we may begin and, when dispositive, end with either of Strickland ’s two prongs, see Burt v. Titlow

, 134 S. Ct. 10, 18 n.3 (2013) ; Collins , 742 F.3d at 547

, and here we follow “the practical suggestion in Strickland that we

. . . consider the prejudice prong before examining the performance of counsel prong” because that approach is “less burdensome to defense counsel ,” United States v. Lilly , 53625 F.3d 190, 196 (3d Cir. 2008) (a lteration omitted) (citation omitted)

, and makes it “easier to dispose of [the] ineffectiveness cl aim, ” Strickland , 466 U.S. at 697; Vickers v. Superintendent Graterford SCI , 858 F.3d 841, 850 n.10 (3d Cir. 2017)

. A pplying “the doubly deferential judicial review that applies to a Strickland claim evaluated under [ AEDPA ]
, ” Knowles , 556 U.S. at 123

, w e must assess whether , even assuming counsel’s performance was deficient

, Mathias suffered prejudice

, see Strickland , 46 6 U.S. at 687, 693

- 94

— an assessment that requires us to ask whether the petitioner has shown “ that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” with “a reasonable probability” meaning “ a probability sufficient to undermine confidence in the outcome

, ” i d. at 694. Because the Strickland standard is an especially “general” one, “a state court has even more latitude to reasonably determine” whether a petitioner has satisfied it. Knowles , 556 U.S. at 123 (“The more general the rule, the more leeway courts have in reaching outcomes i n

case

- b y

- case determinations.”) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664 (2004)).

Here, Mathias argues he was prejudiced by appellate counsel’s d eficient performance because, had counsel argued that the inconsistent jury charge allowed him to be convi cted of first

- degree murder without a finding of specific intent, he would have received a new trial. Mathias bases this argument

on Francis v. Franklin , 471 U.S. 307 (1985) , where the Supreme Cou r t observed that if two discrete jury instructions regarding a requisite element are presented in contradictory
terms , there exists “a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm26 language sufficientl y to eliminate this possibility, ” id. at 322 n.8 . The Superior Court’s failure to heed that admonition, according to Mathias (and the District Court), 4 was an unreasonable application of clearly esta blished Supreme Court case law.

That is n ot so, for neit her Mathias nor the District Court considered the Supreme Court’s subsequent decision in Middleton v. McNeil , 541 U.S. 433 (2004) (per curiam), which calls the holding of Francis into question and, at a minimum, demonstrates that it was not then “ clearly established. ” In Middleton , the Court reversed the Ninth Circuit’s grant of habeas relief where the trial court had given “three correct instructions and one contrary one” regarding imperfect self

defense without providing any correction or explanation fo r the discrepancy

. Id. at 4 38 . Relying on the familiar test that asks whether there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that violates the

4 Based on Francis , the District Court granted habeas relief to Mathias because the trial court gave contradictory instructions

— directing on the one hand, that the jury would have to “find beyond a reasonable doubt that there ha[d] been proof beyond a reasonable doubt that the defendant shared th[e] s pecific intent to kill Joseph Drew El,” App. 614, and that “a defendant is an accomplice of another for a particular crime if . . . [it is] proved beyond a reasonable doubt . . . [t]hat the defendant had the intent of promoting or facilitating the commissi on of that crime,” App. 611, and stating on the other, on at least six occasions that the jury was required to find that either Mathias “or ” his alleged accomplice, Richard Jarmo n , had the specific intent to kill Joseph Drew El

. App. 615

- 16, 622

- 23

.27 Constitution,” id. at 437 (citing Estelle v. Mcguire , 502 U.S. 62, 7 2 (1991) ), but omitting any citation or reference to Francis
, the Court explained that the N inth Circuit “failed to give appropriate deference to the state court’s decision” where the state court applied the proper test and merely reached a different conclusion regarding the “likelihood the jury was misled

, ” id. at 437

- 38. The Court expressly characterized the instructions as “ambiguous because they were internally inconsistent,” id. at 438, a descriptor that could easily apply to both Francis and th e instant case.

Middleton ’s divergence from Francis is striking and

, here

, outcome determinative because it renders the relevant Supreme Co urt precedent on ambiguous jury instructions less than “clearly established

. ” Middleton and Francis are both cited and applied as good law for th e propositions we discuss today

, and it appears no court has had occasion to resolve the tension between them. S ee, e.g. , Waddington v. Sarausad , 555 U.S. 179, 191

- 92 , (2009) (citing Middleton ) ; Bey v. Superintendent Greene SCI , 856 F.3d 230, 240 n.47 (3d Cir. 2017) (citing Francis ); Wade v. Timmerman

- Cooper , 785 F.3d 1059, 1078 (6th Cir. 2015) ( citing Middleton ); Johnson v. McKune , 288 F.3d 1187, 1194 (10th Cir. 2002) (discussing Francis ) ; United St ates v. Hernandez , 176 F.3d 719, 73 3

- 3 5 (3d Cir. 1999 ) (same) . Nor need we today

, because the significance of Middleton to our decision is that it calls into question when and under what circumstances the curative jury instruction mandated by Francis is r equired and “ fairminded jurists could disagree ” and reasonably reach different results unde r the se two cases. Richter , 562 U.S. at 102.
Here, in conducting its analysis of Mathias’s ineffective

- assistance

- of

- counsel claim , the Superior Court found conclusive the accurate portions of the trial court’s first

-28 degree murder instruction

— where it properly articulated the specific intent requirement

— as well as the conspiracy instruction, which was consistently correct and served as the basis for the jury’s conviction on that charge. Although the Superior Court acknowledged trial counsel’s multiple objections to the first

- degree murder instructions, and that the instructions were “less than precise,” App. 664, it concluded Mathias could not establish prejud ice because the due process claim appellate counsel might have raised was unlikely to succeed given the Superior Court’s assessment of the jury instructions in their entirety

.
A pplying “the doubly deferential judicial review that applies to a Strickland claim evaluated under [AEDPA],” we conclude the Superior Court’s application of Strickland was not an unreasonable one. Knowles , 556 U.S. at 123

. By reviewing the jury charge as a whole and accounting for the unique facts of Mathias’s case, the Superior Court , as a threshold matter, properly applied the Supreme Court’s “reasonable likelihood” test for determining an incorrect instr uction’s constitutional effect, s ee Estelle , 502 U.S. at 72, and

, i n light of the tension between Francis and Middleton and
t he implications of that tension for the jury instructions in Mathias’s case, 5 we cannot say the Superior Court

5 Although the Superior Court did not discuss Francis or Middleton , we consider, in reviewing its reasoned opinion

, the arguments that supported or “ could have supported

, ” Richter

, 562 U.S. at 102, the Superior Court’s evaluation of whether there was a “reas onable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland , 466 U.S. at 694 ; see Collins , 742 F.3d at 548 ( applying Richter ).29 unreasonably applied the prejudice prong of Strickland

, see Richter , 562 U.S. at 101; Jacobs , 395 F.3d at 106

. In sum, because the Superior Court ’s decision passes muster when reviewed with proper deference under AEDPA

, the District Court erred in granting Mathias habeas relief on this claim.

3. Due Process Claim
With respect to Mathias’s due process claim based on the first

- degree murder instruction, as a threshold matter, the Commonwealth challenges the District Court’s conclusions that it was exhausted, had merit, and was not harmless. As explained below, we ag ree with the District Court only as to exhaustion because we conclude the Superior Court’s rejection of the due process claim was not contrary to or an unreasonable application of clearly established federal law, and that any error was harmless, in any eve nt. We will reverse the District Court’s grant of habeas on this claim.
Federal courts may not grant relief unless a petitioner has “exhausted the remedies available” in the state courts

. 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, a petitioner must “ fairly present ” his 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.” Robinson v. Beard , 762 F.3d 316, 328 (3d Cir . 2014) ; see Baldwin v. Reese

, 541 U.S. 27, 29 (2004)

. Here, although his pro se brief mentioned only a claim of ineff ective ass istance in the hea ders to this argument, Mathias expressly argued in the text of his brief b efore the Superior Court that the f irst

- degree murder instruction itself violated the Due P rocess C lause and cited to the Fourteenth Am endment of the U nited States Cons titution30 and to relevant United States Supreme Court cases, inclu d ing Francis , to support th at argument. Under these circu mstances, and recognizing, as we must, that pro se petitions are to be construed liberally, Rainey v. Varner , 603 F.3d 189, 198 (3d Cir. 2010) ; Commonwealth v. Eller , 807 A.2d 838, 845 ( Pa. 2002)

, we are satisfied that Mathias did fairly present his due process claim to the Superior C our t and that the Superior Court rejected that claim on the merits

— albeit with in its discussion of the ineffective

- assistance

- of

- counsel claim and based on state cases that incorporated the fede ral standard, 6 See Picard

6 To be clear, we do not hold today that, simply because a petitioner brings a claim of ineffective assistance of counsel or a state court adjudicates that claim , every claim counsel is allegedly deficient for failing to raise necessarily has been fairly presented to the state court as a federal claim. Indeed

, that would effect a novel, gaping, and unwarranted expan sion of federal habeas review , particularly as petitioners may discuss and state courts may analyze the alleged deficiency exclusively in terms of state law. Even those Courts of Appeals that have deem ed exhausted claims that were raised sua sponte by the state court have done so only where the state court explicitly identified the claim as a federal claim and analyzed it under federal law. See, e.g.
, Jones v. Dretke , 375 F.3d 352, 355 (5th Cir. 2004); Sandgathe v. Maass , 314 F.3d 371, 376

- 77 (9th Cir. 2002); Walton v. Caspari , 916 F.2d 1352, 1356 (8th Cir. 1990); Sandstrom v. Butterworth , 738 F.2d 1200, 1206 (11th Cir. 1984). We have not adopted that rule to date

, s ee Sharrieff v. Cathel , 574 F .3d 225, 228 n.4 (3d Cir. 2009) ( noting in dictum that the Supreme Court has “recognized exceptions” to the fair presentation requirement “where the State has actually passed upon the claim” (quoting Castille v. Peoples , 489 U. S. 346, 351 (1989)) )

, and we do not have31 v. C onnor , 404 U.S. 270, 27 7

- 7 8 (1971); McCandless v. Vaugh n , 172 F.3d 255, 261 (3d Cir. 1999)

. Because the due process claim was properly exhausted

, we move on to review the merit s of th e Superior C ourt ’ s decision. Here, again, the tension between Francis and Middleton is dispositive, because, as we discussed in connection with Mathias’s ineffective assistance claim, the relevant Supreme Court case law on ambiguous jury instructions

— specifically, whether a curative instruction is required when inconsistent instructions are given

— wa s not then

- clearly established. Richter , 562 U.S . at 101

. Accordingly, the Superior Court’s rejection of Mathias’s due process claim was neither “contrary to, [n]or involved an unreasonable application of, clearly established Fed eral law.” 28 U.S.C. 2254(d)(1).

Moreover, any error would be harmless because there

was no “ substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson , 507 U.S. 619, 62 3 (1993). Just as we held in Bro nsh tein v. Horn
, 404 F.3d 7 00 (3d Cir. 2005), that the error was harmless where the first

- degree murder instruction likewise errone ously omitted specific intent but the trial court’s instructions regarding conspiracy and the jury’s guilty verdict on that charge e vinced a finding of specific intent to kill, i d. at 71 1

- 15

, s o too here the error was harmless because the jury was

occasion to consider it further today because here, Mathias himself fairly presented the federal claim. W e hold only that

w here, as here, a pro se petitioner has expressly identified the claim that counsel allegedly failed to raise as a federal constitutional claim and has briefed the merits of that claim by citing to federal cases

, the claim has been properly exhausted.32 instructed that the alleged co

- conspirators must have “shared the intent to commit the crime of first degree murder,” which “would include t he defendant having . . . shared the specif ic intent to kill, ” App. 630 , and the jury proceeded to return a guilty verdict on that charge . Nor is o ur conclusion altered by the fact that the trial court gave a progression charge or that the conspiracy cha rge also referred back to the first

- degree murder instruction because the jury r ece ived its instructions in toto before beginning deliberations

, and we presume the jury followed those instructions, including as to the specific intent it was required to find to convict Mathias as a co

- conspirator. See Weeks v. Angelone , 528 U.S. 225, 234 (2000)

.
IV. Conclusion
For the foregoing reasons, we will reverse the District Court’s order granting Mathias a writ of habeas corp us and deny Mathias’s application for a certificate of appealability.