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Workman v. Superintendent Albion Sci

United States Court of Appeals, Third Circuit

September 11, 2018

JEFFREY WORKMAN, Appellant
v.
SUPERINTENDENT ALBION SCI; DISTRICT ATTORNEY PHILADELPHIA; ATTORNEY GENERAL PENNSYLVANIA

          Argued: February 21, 2018

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No.: 2-14-cv-02957) District Judge: Honorable Paul S. Diamond

          Marshall L. Dayan [ARGUED] Lisa B. Freeland Office of the Federal Public Defender Counsel for Appellant.

          Catherine B. Kiefer [ARGUED] Max Kaufman Acting Chief, Federal Litigation Unit Ronald Eisenberg Deputy District Attorney, Law Division John Delaney First Assistant District Attorney Kelley B. Hodge District Attorney Susan E. Affronti Philadelphia County Office of District Attorney Counsel for Appellee.

          Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges.

          OPINION

          FUENTES, Circuit Judge.

         This case arises from the shooting death of Lawson Hunt in August 2006. Appellant Jeffrey Workman was one of two people to shoot Hunt, and was convicted of first-degree murder in Pennsylvania on a theory of transferred intent. His trial counsel, pursuing what might generously be called a unique theory of criminal liability, did not meaningfully test the Commonwealth of Pennsylvania's case. According to Workman, his trial counsel told him that he could not be convicted of murder because Hunt was already dead when he was struck by Workman's bullet. Based on this representation, Workman declined a plea bargain for a 20-year term of imprisonment. In post-conviction proceedings, Workman's post-conviction counsel failed to make a claim for ineffective assistance of trial counsel based on trial counsel's failure to present a cogent defense.

         Workman appeals the dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254, arguing that his trial counsel was constitutionally ineffective. Although his claim of ineffective assistance of trial counsel was procedurally defaulted in state post-conviction relief proceedings, he argues that his default should be excused because his state post-conviction counsel rendered ineffective assistance. Respondents argue that Workman cannot show his attorneys rendered ineffective assistance and therefore cannot excuse his procedural default under Martinez v. Ryan.[1]

         Because Workman's state post-conviction counsel's assistance was ineffective and because his underlying ineffective assistance of trial counsel claim has some merit, we excuse his procedural default of his underlying claim under Martinez. Because, on the face of the record, trial counsel's assistance was manifestly ineffective, we will reverse the Order of the District Court and remand with instructions to grant a conditional writ of habeas corpus.

         I. Facts

         A. The Shooting of Lawson Hunt

         In August 2006, Gary Moses shot Lawson Hunt in Philadelphia, Pennsylvania. Hearing the shots, Workman found Hunt, saw Moses, and fired at Moses. Workman fired eight times. One bullet ricocheted off a solid object and struck Hunt in the chest. Hunt died as a result of his injuries. According to the assistant medical examiner, who testified at trial, either of the two bullets that struck Hunt could have been fatal.

         B. Workman's Trial

         Workman was charged with first-degree murder, with Moses as a co-defendant. The Commonwealth's theory of transferred intent argued that Workman, firing at Moses, had intended to kill Moses and therefore his intent to kill Moses transferred when his bullet struck Hunt. At trial, Assistant Medical Examiner Edwin Lieberman testified that Hunt's death was caused by two gunshot wounds. He testified that the wound to Hunt's chest, caused by the richocheted bullet fired by Workman, was "much more immediately fatal, "[2] but the other bullet (fired by Moses) "certainly [could have] cause[d] death," depending "upon the time between the shooting or the time he's shot and the time he gets to the hospital and how quickly they can do something about it."[3] In other words, Lieberman could not definitively state that Moses's bullet, and not Workman's, had killed Hunt. In fact, Lieberman testified that, based on the blood evidence surrounding the ricocheted bullet wound, he believed Hunt had still been alive when he was struck by the bullet fired by Workman. Workman's trial counsel cross-examined Lieberman, but this cross-examination focused on eliciting testimony that Lieberman could not establish that Workman's bullet hit Hunt before Moses's bullet.

         At the conclusion of the Commonwealth's case-in-chief, Workman's counsel moved for a judgment of acquittal. He argued that because Moses fired first and because "to a reasonable medical certainty the first bullet killed" Hunt, Workman could not be convicted because "he has fired into the body of a man that is dead and you can't kill a dead man."[4] He made this argument despite Lieberman's testimony, which included the opinion that Hunt was alive when struck by Workman's bullet. The Commonwealth pointed out that inconsistency. The trial court denied the motion.

         Having reserved his opening statement for the beginning of Workman's case-in-chief, Workman's trial counsel simply stated:

Ladies and gentlemen of the jury, you've been very patient for six or seven days. I will inform you now as the judge will later charge you, Jeffrey Workman will not present any evidence. So I'm opening to you and not saying that we're presenting anything. You'll get the full impact of that when the judge charges you later in the case. Thank you very much.[5]

         Workman's counsel called no witnesses and presented no evidence, resting immediately. In closing, Workman's trial counsel reiterated his theory: that because codefendant Moses shot Hunt first, the Commonwealth could not establish that Workman killed Hunt beyond a reasonable doubt. Despite Lieberman's testimony regarding the blood evidence suggesting that Hunt survived the immediate aftermath of Moses's gunshot, Workman's trial counsel stated:

But the point of the matter is [Hunt is] fired on by the first bullet. He goes down. The blood spots are near or at that spot. No showing that he moved around or did anything. He's dead. He's dead from the first bullet. And when the doctor has - and this is the last thing I'm going to say about that - the unmitigated gall in his position as a Philadelphia medical examiner to come into this courtroom and tell you the man was alive when the ricochet hit him and he doesn't know where the ricochet shot comes from . . . at that given point you must conclude that they have not proved their case beyond a reasonable doubt because the doctor's testimony is absolutely incredulous.[6]

         The jury convicted Workman of first-degree murder. It acquitted Moses. Workman received a mandatory sentence of life imprisonment without parole.

         C. Workman's State Post-Conviction Proceedings

         Workman's first opportunity to raise a claim regarding the performance of his trial counsel was during Pennsylvania post-conviction proceedings under the Post Conviction Relief Act.[7] After being appointed counsel and filing an amended petition, Workman's petition raised a single claim: "ineffective assistance of trial counsel for failing to request a jury instruction that indicated that the transferred intent doctrine also applied to the petitioner's claim of defense of use of force to protect a third person."[8]

         Workman's state post-conviction counsel did not raise any argument concerning Workman's trial counsel's failure to present evidence or argue consistently with the evidence presented by the jury.

         The Superior Court of Pennsylvania, addressing the claim, found that "review of the certified record reveals that the trial court gave a thorough jury instruction regarding the defense of force to protect a third person."[9] It concluded that the "nonsensical claim of ineffective assistance of counsel lack[ed] merit," and noted that "even if we could make sense of [Workman's] argument, he fails to establish how inclusion of the requested jury instructions would have been so influential that it would have likely changed the outcome of [Workman's] trial."[10]

         D. Workman's Habeas Proceedings

         Workman petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in the District Court. One ground upon which he petitioned was that he was denied the effective assistance of counsel at trial and on direct appeal.[11] Proceeding pro se, he stated that "[t]rail [sic] counsel told me that given the [C]ommonwealth's case and evidence as a whole there was no way under the law I could be convicted, which impacted my decisions through out [sic] the proceedings."[12] He alleged in his petition that he included this in his initial post-conviction motion, but his appointed post-conviction counsel "did not brief it to the courts."[13] He did not specifically allege that he told post-conviction counsel of this claim in his petition. He did, however, specifically allege that, with regard to this claim, the Commonwealth failed to prove he killed Hunt. Further, in his reply to Respondents' Answer to Workman's habeas petition, Workman stated:

Also again to clarify what is meant by this claim of ineffectiveness [sic] assistance of counsel was not to limit the claim to the advice of counsel, but to counsel's overall performance. . . . Counsel did not only tell me this [deficient advice], he used it as his sole defense at trial.[14]

         In his reply, Workman also stated that counsel's ineffective assistance "ultimately lead [sic] me to deny a plea offer, [and to] not testify."[15]

         The petition was referred to a Magistrate Judge, who issued a Report and Recommendation that the petition be dismissed. The Magistrate Judge concluded that Workman's claims were without merit. In his objections to the Report and Recommendation, Workman stated that his trial counsel's conduct led him to deny a plea agreement offered by the Commonwealth of between ten and twenty years' imprisonment. Moreover, Workman also stated that but for trial counsel's statement that he could not be convicted, he would have testified in his own defense.

         The District Court adopted the Magistrate Judge's Report and Recommendation. With respect to Workman's ineffective assistance of counsel claims, which are before us now, it held that Workman could not excuse procedural default under Martinez. The District Court refused to consider Workman's allegations regarding his failure to accept the plea offer and his failure to testify, because it mistakenly believed these allegations were first raised in his objections to the report and recommendation. It concluded that Workman had not shown prejudice from trial counsel's allegedly deficient performance, though it did not conclude that trial counsel's performance was deficient, because Workman did not specify "the alternate actions he would have taken but for trial counsel's purportedly defective advice."[16] It concluded that Workman's post-conviction counsel was not deficient. Noting that it presumed the reasonableness of post-conviction counsel's strategic choices, the Court stated that Workman's ability to rebut that presumption was undermined by Workman's failure to allege either of two events. First, Workman failed to allege that he informed his post-conviction counsel that his trial counsel told him that he could not be convicted. Second, Workman failed to allege that his post-conviction counsel was aware of this allegation. The District Court dismissed the petition, and Workman applied for a certificate of appealability.

         E. Proceedings Before This Court

         We granted a certificate of appealability in October 2016. In January 2018, we amended the certificate of appealability sua sponte. The amended certificate states, in full:

The foregoing request for a certificate of appealability is granted as to Workman's claim that trial counsel rendered ineffective assistance of counsel when he gave erroneous advice that Workman could not be convicted and thus failed to present a cogent defense strategy at trial. Jurists of reason might well agree that this claim is procedurally defaulted, as it was not presented to the Superior Court and Pennsylvania courts would now refuse to consider the claim in a new Post Conviction Relief Act ("PCRA") petition. See 42 Pa. C.S. § 9545(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). However, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). Jurists of reason could debate whether Workman's claim that trial counsel was ineffective for providing erroneous advice that he could not be convicted and thus failed to present any cogent defense at trial, causing him to reject a plea offer, was substantial. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Jurists of reason could also debate whether PCRA counsel was ineffective for failing to raise the claim on initial-collateral review. On this ground only, we find that the District Court's procedural ruling is debatable and that Workman has met his burden of making a substantial showing of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The application for a certificate of appealability is denied as to all other issues. Notably, jurists of reason would agree that evidence was sufficient to support Workman's convictions. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         II. Discussion[17]

         Workman's claim of ineffective assistance of trial counsel on the basis of trial counsel's failure to present a cogent defense and trial counsel's defective advice was never presented to the state courts in post-conviction relief proceedings. It is procedurally defaulted. Accordingly, he must rely on the exception established by Martinez.

         A. Excusing Procedural Default Under Martinez v. Ryan

         Martinez recognizes a narrow exception to the doctrine of procedural default: "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial."[18] This exception is available to a petitioner who can show that: 1) his procedurally defaulted ineffective assistance of trial counsel claim has "some merit"[19]; and that 2) his state-post conviction counsel was "ineffective under the standards of Strickland v. Washington."[20] We explain these requirements in turn.

         1. The Underlying Claim Must Have "Some Merit"

         To excuse procedural default on an ineffective assistance of trial counsel claim under Martinez, that claim must be substantial-it must have "some merit."[21] Miller-El v. Cockrell, the case on which the Supreme Court based its description of what a "substantial claim" entails, concerns the standards for issuing a certificate of appealability. To demonstrate that his claim has some merit, a petitioner must "show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further."[22]

         This is different from the standard applied on the merits under Strickland v. Washington[[2]] That standard requires a petitioner to show counsel was "deficient," meaning "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment."[24] A petitioner must also show that "the deficient performance prejudiced the defense," which "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial."[25] This is an exacting standard, [26] reflecting the reluctance of the courts to second-guess strategic decisions made by counsel.

         2. State Post-Conviction Counsel Must Be Ineffective

         A substantial claim alone is not sufficient to excuse a petitioner's procedural default. Martinez holds that state post-conviction counsel must be "ineffective under the standards of Strickland v. Washington" to ...


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