Argued: February 21, 2018
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
Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges.
FUENTES, Circuit Judge.
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.
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.
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.
The Shooting of Lawson Hunt
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
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,
" 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." 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.
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." 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.
reserved his opening statement for the beginning of
Workman's case-in-chief, Workman's trial counsel
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.
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.
jury convicted Workman of first-degree murder. It acquitted
Moses. Workman received a mandatory sentence of life
imprisonment without parole.
first opportunity to raise a claim regarding the performance
of his trial counsel was during Pennsylvania post-conviction
proceedings under the Post Conviction Relief
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."
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.
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." 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."
Workman's Habeas Proceedings
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. 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." 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." 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.
reply, Workman also stated that counsel's ineffective
assistance "ultimately lead [sic] me to deny a plea
offer, [and to] not testify."
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.
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." 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.
Proceedings Before This Court
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).
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.
Excusing Procedural Default Under Martinez v.
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." This exception is available to
a petitioner who can show that: 1) his procedurally defaulted
ineffective assistance of trial counsel claim has "some
merit"; and that 2) his state-post conviction
counsel was "ineffective under the standards of
Strickland v. Washington." We explain
these requirements in turn.
The Underlying Claim Must Have "Some
excuse procedural default on an ineffective assistance of
trial counsel claim under Martinez, that claim must
be substantial-it must have "some
merit." 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
different from the standard applied on the merits under
Strickland v. Washington[]
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." 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." This is an exacting standard,
reflecting the reluctance of the courts to second-guess
strategic decisions made by counsel.
State Post-Conviction Counsel Must Be Ineffective
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 ...