PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 14-4694 & 15-2694

_______________

DAVID MATHIAS,

Appellant (15-2694)

v.

SUPERINTENDENT FRACKVILLE SCI;

ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA,

 Appellants (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, 2016
2

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.

Undergirding 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 in 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. In this appeal brought 

by the Commonwealth of Pennsylvania from the District 

Court’s grant of habeas relief on petitioner’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 petitioner’s

untimely cross-appeal from the District Court’s denial 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-counsel 

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 relief.

I. Factual Background and Procedural History

Petitioner David Mathias was charged with, inter alia,

first-degree murder and conspiracy to commit first-degree 
4

murder based on a violent incident that left one person dead 

and another severely injured, though capable of testifying at 

Mathias’s state court trial. As relevant to his defenses and the 

issues he would later raise on appeal, the record from that 2006 

trial in the Philadelphia Court of Common Pleas reflects that in 

the early hours of May 23, 2005, Mathias and future codefendant, Richard Jarmon, traveled to a boarding house where 

an acquaintance named Eric Richardson—later the victimwitness at Mathias’s trial—rented a small efficiency room. 

According to Richardson’s trial testimony, Mathias

knocked on Richardson’s door, while Jarmon entered an 

adjacent room where a friend of Richardson’s, Joseph Drew El,

was lying 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 thought 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 onedollar 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, Mathias drew a gun from his waistband and 

pointed it directly at Richardson’s stomach. Richardson 

reacted quickly by grabbing Mathias’s wrist, but Mathias

began to shoot at Richardson 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 from 
5

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 Richardson’s 

residence to buy marijuana, where, once that transaction was 

complete, 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 objection and contrary to 

Pennsylvania law, indicating that the jurors could convict an 

accomplice based on the specific intent of the principal. 

Specifically, before 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 if 
6

. . . [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 this 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 

specific intent to kill Joseph Drew El.” App. 614. 

Next, 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 specific intent 

to kill Drew El. These instructions were misleadingly stated in 

the disjunctive, with the judge 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 declined 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 was 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 of 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 having . . . 

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 murder, aggravated assault, possession of 

an instrument of crime, and carrying 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 conviction, to be served 

concurrent with lesser terms for the additional charges. 

Mathias appealed his convictions to the Superior Court. 

While appellate counsel raised the claim that the jury 

instructions on criminal conspiracy were erroneous and 

violated 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 filing attempting to 
8

amend his petition, Mathias raised a Sixth Amendment claim 

for ineffective assistance of counsel on the ground that 

appellate counsel failed to challenge the constitutionality of the 

first-degree murder instruction. Although the Court of 

Common Pleas dismissed Mathias’s late filing, the 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 

instruction 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 specific intent to kill,” App. 665, and that Mathias was not 

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 federal 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. The Magistrate Judge recommended 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 commit 

first-degree murder, and rejecting the second claim because
9

Mathias was unable to show how he was prejudiced by 

appellate counsel’s deficient performance. 

The 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, although 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 

another threshold decision, the District Court found the 

Superior Court’s application of federal law on internally 

inconsistent jury instructions was contrary to that prescribed 

by the Supreme Court in Francis v. Franklin, 471 U.S. 307 

(1985), and therefore proceeded 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 the jury instruction claim, 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, 2014) 

(citing Francis, 471 U.S. at 322; In re Winship, 397 U.S. 358,

364 (1970)), and thus that the Superior Court’s contrary

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 murder 
10

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 inadequate briefing—the District

Court construed it liberally as a claim that counsel 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 instruction

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 performance.

Accordingly, the District Court granted Mathias habeas relief

on the basis of 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 

jurisdiction over Mathias’s untimely cross-appeal, waiving the 

Rule 4(a)(3) timeliness requirement but denying 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 merits if they 

can clear three procedural hurdles. The first is jurisdictional: 

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 reviewing 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 statutory 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. 2007) (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.3d 
12

to the thirty-day time limit for filing an initial notice of appeal, 

which 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.

We begin with our case law, which paves 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. We 

acknowledged 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 crossappeal name all parties, and that Torres made reference to the 

“jurisdictional requirements of Rules 3 and 4.” Id. at 317. 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. Two 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 

Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1298 

& nn. 27, 28 (9th Cir. 1999) (listing cases). 
13

F.2d 1046 (1993), we changed course and, without citing to or 

distinguishing Tabor, held in view of Torres that Rules 3 and 

4 are in fact jurisdictional, id. 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 

controls, Kossler v. Crisanti, 564 F.3d 181, 194 n.8 (3d Cir. 

2009), we deem Tabor, 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 precedential 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 

requiring 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, 453-54 (2004). Examples of claimprocessing rules that the Court has specified are 

nonjurisdictional 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 classified 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 Rules 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”—promulgated to set 

filing deadlines for appellees considering whether to crossappeal when a case is already brought within our jurisdiction, 

Henderson, 562 U.S. at 435. 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 never 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 with 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 teachings 

before defining the standard for our Court. 

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

514 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 appeal 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 intertwined” 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 Cir. 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 crossappeal, and whether the matters were inextricably related, id. 

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 Company, 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 the City to stand 

would be to risk assessing varying liabilities against two parties 

to the same wrong.” Id. at 476-77.

We also find instructive the standard for setting aside a 

default judgment. Federal Rule of Civil Procedure 60(b) 

provides for relief from the entry of a final judgment, order, or 

proceeding pursuant to enumerated circumstances which 

include, under Rule 60(b)(1), “mistake, inadvertence, surprise, 

or excusable neglect” and, under Rule 60(b)(6), “any other 

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, meritorious defense, 

culpability, and “the effectiveness 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 

“exceptional 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, 

merits, willfulness, and extraordinary circumstance. That is, 

we ask whether any party will be adversely and unfairly 

affected if the cross-appeal is not allowed; whether the issues 

substantially overlap such that severance may be inefficient or 

create an absurd result; whether good reason exists 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 whether 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 

that waiver is appropriate here. The two new claims Mathias 

seeks to raise on cross-appeal would not likely support a 

second or successive habeas petition, which, if attempted, 

would have to overcome the onerous successive-petition bar,

see 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. See Repola, 980 F.2d at 941. Finally, while proceeding 

pro se, Mathias may well have believed he could not raise 
18

additional claims through a cross-appeal mechanism, see 

Rhoads, 514 F.2d at 934, and, 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 interests of justice are served 

by the efficiency and fairness in allowing Mathias’s crossappeal 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 declined 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 proceed 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 reason 

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 intended purpose of 

“screen[ing] out issues unworthy of judicial 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 warranted 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 meet 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 guarded,” 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. The District Court, however, made 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 nowhere reflects 

that Mathias raised these claims in his § 2254 petition. 

Mathias, while conceding he did not articulate the 

claims in explicit terms, nonetheless contends they were 

implicit in the claims he did raise, suggesting the District Court 

should have recognized them from offhand references to the 

conspiracy instruction made in the parties’ briefing, the fact of

that instruction’s incorporation of the first-degree murder 

instruction, 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 claim. 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 Pa. Dep’t of Corr., 645 F.3d 596, 

607-08 (3d Cir. 2011) (citing Bagot v. Ashcroft, 398 F.3d 252, 

256 (3d Cir. 2005)). And that standard is not met merely 

because the facts underlying a potential legal argument were 

available in the record. Mathias failed to alert the District 

Court to the legal claims themselves, see id., so that we cannot 
21

say “jurists of reason would find it debatable whether the 

District Court was correct in its procedural ruling” that those 

claims were waived, Slack, 529 U.S. at 484. 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 conviction for first-degree 

murder based on his ineffective-assistance-of-counsel and due 

process claims 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 considering 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 state 
22

court record and its 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 of [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 established 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 advised is 

“difficult to meet” because it was “meant to be.” Richter, 562 

U.S. at 102. As the Supreme Court has cautioned, an 

“unreasonable application of federal law is different from an 

incorrect application of federal law,” Richter, 562 U.S. at 101 

(quoting Williams, 529 U.S. at 410), and whether we 

“conclude[] in [our] independent judgment that the relevant 
23

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-ofcounsel 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 the claims were meritorious. These

rulings were in error. As we explain below, (1) the Superior 

Court’s decision was not contrary to Strickland so that the 

District Court should 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 Strickland

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-assistance-of-counsel 

claim, it determined the Superior Court, by relying on the 
24

Pennsylvania formulation of Strickland, “did not delve into 

the[] questions” of deficient 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 Superior 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” 

clearly established federal law, Richter, 562 U.S. at 100, 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, 121-23 (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 Supreme Court case under which the 

Superior Court’s decision is not “contrary to” clearly 

established federal law. Richter, 562 U.S. at 100. Applying 

the appropriate deferential standard of review, we turn first to 

the ineffective-assistance-of-counsel claim.

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, 536 
25

F.3d 190, 196 (3d Cir. 2008) (alteration omitted) (citation 

omitted), and makes it “easier to dispose of [the] 

ineffectiveness claim,” Strickland, 466 U.S. at 697; Vickers v. 

Superintendent Graterford SCI, 858 F.3d 841, 850 n.10 (3d 

Cir. 2017). Applying “the doubly deferential judicial review 

that applies to a Strickland claim evaluated under [AEDPA],”

Knowles, 556 U.S. at 123, we must assess whether, even 

assuming counsel’s performance was deficient, Mathias 

suffered prejudice, see Strickland, 466 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,” id. 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 in 

case-by-case determinations.”) (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). 

Here, Mathias argues he was prejudiced by appellate 

counsel’s deficient performance because, had counsel argued 

that the inconsistent jury charge allowed him to be convicted 

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 Court 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 infirm 
26

language sufficiently 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 established Supreme Court 

case law. 

That is not so, for neither 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 selfdefense without providing any correction or explanation for the 

discrepancy. Id. at 438. 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] specific 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 

commission 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 Jarmon,

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, 72 (1991)), but omitting any citation or reference to 

Francis, the Court explained that the Ninth 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 the instant case. 

Middleton’s divergence from Francis is striking and,

here, outcome determinative because it renders the relevant 

Supreme Court precedent on ambiguous jury instructions less 

than “clearly established.” Middleton and Francis are both 

cited and applied as good law for the propositions we discuss 

today, and it appears no court has had occasion to resolve the 

tension between them. See, 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 States v. Hernandez, 176 F.3d 719, 733-35

(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 required and “fairminded 

jurists could disagree” and reasonably reach different results

under these 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 prejudice 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. 

Applying “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 

instruction’s constitutional effect, see Estelle, 502 U.S. at 72, 

and, in light of the tension between Francis and Middleton and 

the 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 “reasonable 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 agree 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 event. 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 ineffective assistance in the headers 

to this argument, Mathias expressly argued in the text of his 

brief before the Superior Court that the first-degree murder 

instruction itself violated the Due Process Clause and cited to 

the Fourteenth Amendment of the United States Constitution 
30

and to relevant United States Supreme Court cases, including 

Francis, to support that argument. Under these circumstances, 

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 Court and that the Superior Court

rejected that claim on the merits—albeit within its discussion

of the ineffective-assistance-of-counsel claim and based on 

state cases that incorporated the federal 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 expansion 

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 deemed 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, 

see 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 have 
31

v. Connor, 404 U.S. 270, 277-78 (1971); McCandless v. 

Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). 

Because the due process claim was properly exhausted,

we move on to review the merits of the Superior Court’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—was 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 Federal 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, 623 (1993). Just as we held in Bronshtein v. Horn, 

404 F.3d 700 (3d Cir. 2005), that the error was harmless where 

the first-degree murder instruction likewise erroneously 

omitted specific intent but the trial court’s instructions 

regarding conspiracy and the jury’s guilty verdict on that 

charge evinced a finding of specific intent to kill, id. at 711-15, 

so 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. We hold only that 

where, 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 the defendant having . . . shared the specific 

intent to kill,” App. 630, and the jury proceeded to return a 

guilty verdict on that charge. Nor is our conclusion altered by 

the fact that the trial court gave a progression charge or that the 

conspiracy charge also referred back to the first-degree murder 

instruction because the jury received 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 corpus and 

deny Mathias’s application for a certificate of appealability.