Jeffrey Workman v. Superintendent Albion SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 16-1969

JEFFREY WORKMAN,

Appellant

v.

SUPERINTENDENT ALBION SCI; DISTRICT

ATTORNEY PHILADELPHIA; ATTORNEY GENERAL

PENNSYLVANIA

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

Argued: February 21, 2018

(Opinion filed: November 15, 2018)

Before: AMBRO, RESTREPO, and FUENTES, Circuit

Judges

Marshall L. Dayan [ARGUED]

Lisa B. Freeland

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

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

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellee

OPINION OF THE COURT

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

2

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

1

566 U.S. 1 (2012).

3

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,

2

App. at 196.

3

Id.

4

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

4

App. at 231.

5

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

5

App. at 265.

6

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 to the jury.

The Superior Court of Pennsylvania, addressing the

claim, found that “review of the certified record reveals that

6

App. at 275.

7

42 Pa. Cons. Stat. § 9541, et seq.

8

App. at 329.

7

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

9

App. at 344.

10

Id.

11

Workman’s trial counsel continued to represent Workman

on direct appeal. Nevertheless, procedural default of

ineffective assistance of direct appeal counsel is not eligible to

be excused under Martinez. See Davila v. Davis, 137 S. Ct.

2058, 2063 (2017).

12

App. at 355.

13

Id.

8

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.

14

App. at 442 (emphasis added).

15

Id.

9

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

16

App. at 23.

10

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.”

11

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).

12

II. Discussion17

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.

17

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

review the legal conclusions of the District Court de novo.

Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).

18

Martinez, 566 U.S. at 9.

19

Id. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322

(2003)).

20

Id.

13

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.23 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

21

Id. (citing Miller-El, 537 U.S. 322).

22

Miller-El, 537 U.S. at 336 (internal citation, quotation

marks, and alteration omitted).

23

466 U.S. 668 (1984).

24

Id. at 687.

25

Id.

14

standard,26 reflecting the reluctance of the courts to second-

guess strategic decisions made by counsel.

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 excuse the procedural default of

the underlying claim.27

We have described Strickland as containing two prongs,

both of which must be met to sustain a claim of ineffective

assistance of counsel: the “performance” and “prejudice”

prongs.28 The “performance” prong refers to Strickland’s

requirement that “counsel’s representation fell below an

26

See Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)

(noting that the Strickland standard is “highly demanding”).

27

Martinez, 566 U.S. at 14.

28

See Bey v. Superintendent Greene SCI, 856 F.3d 230, 238

(3d Cir. 2017) (“To prove ineffective assistance of counsel

under Strickland v. Washington, a petitioner must prove ‘(1)

that his counsel’s performance was deficient, that is, it fell

below an objective standard of reasonableness, and (2) that

counsel’s deficient performance prejudiced his client,’ i.e., that

‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.’ We have previously referred to these as the

‘performance’ and ‘prejudice’ prongs of the Strickland test.”

(citation omitted)).

15

objective standard of reasonableness.”29 The “prejudice”

prong refers to Strickland’s requirement that a petitioner show

“a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different.”30

For Workman to show that his state post-conviction

counsel’s deficient performance caused prejudice under

Strickland, he must show that his state post-conviction counsel

could have obtained a different result had he presented the

now-defaulted ineffective-assistance-of-trial-counsel claim.

In other words, he must prove the merits of his underlying

ineffective-assistance-of-trial-counsel claim in order to excuse

the procedural default of that claim and obtain consideration

on the merits. At this stage, what is important is that the

underlying ineffective-assistance-of-trial-counsel claim is

“substantial,” not that a petitioner has, in fact, been

“prejudiced” by trial counsel’s deficient performance under

Strickland.

If the use of the word “substantial” and the phrase

“some merit” rather than “prejudicial” does not make it

explicit, the Supreme Court clearly implies, by relying on

Miller-El v. Cockrell in its requirement that the claim be

substantial, that the underlying ineffective-assistance-of-trial-

counsel claim must be evaluated under a standard less exacting

than Strickland prejudice.31 In Martinez, the Court

29

Strickland, 466 U.S. at 687–88.

30

Id. at 694.

31

See Martinez, 566 U.S. at 14; Bey, 856 F.3d at 238

(interpreting Martinez as “suggesting that we apply the

16

acknowledged that an unrepresented or ineffectively

represented prisoner likely cannot vindicate an ineffective

assistance of trial counsel claim:

Without the help of an adequate

attorney, a prisoner will have

similar difficulties vindicating a

substantial ineffective-assistance-

of-trial-counsel claim. Claims of

ineffective assistance at trial often

require investigative work and an

understanding of trial strategy.

When the issue cannot be raised on

direct review, moreover, a prisoner

asserting an ineffective-assistance-

of-trial-counsel claim in an initial-

review collateral proceeding

cannot rely on a court opinion or

the prior work of an attorney

addressing that claim. . . . To

present a claim of ineffective

assistance at trial in accordance

with the State’s procedures, then, a

prisoner likely needs an effective

attorney.

The same would be true if the State

did not appoint an attorney to assist

in the initial-review collateral

proceeding. The prisoner,

standard for issuing certificates of appealability in resolving

the inquiry into what constitutes a ‘substantial’ claim”).

17

unlearned in the law, may not

comply with the State’s procedural

rules or may misapprehend the

substantive details of federal

constitutional law. . . . While

confined to prison, the prisoner is

in no position to develop the

evidentiary basis for a claim of

ineffective assistance, which often

turns on evidence outside the trial

record.32

Martinez also recognizes that “[a] finding of cause and

prejudice does not entitle the prisoner to habeas relief. It

merely allows a federal court to consider the merits of a claim

that otherwise would have been procedurally defaulted.”33

Two other appellate courts have considered the role of

Martinez’s “substantial” requirement and whether the

underlying ineffective-assistance-of-trial-counsel claim must

also be analyzed under the exacting bar of Strickland. In our

view, and in accordance with the view shared by the Seventh

and Ninth Circuits, when a petitioner shows that post-

conviction relief counsel’s performance was unreasonably

deficient, the requirement that the deficient performance result

in prejudice may be satisfied “with a substantial claim of

ineffective assistance of trial counsel that would otherwise

have been deemed defaulted.”34

32

Martinez, 566 U.S. at 11–12 (internal citations omitted).

33

Id. at 17.

34

Brown v. Brown, 847 F.3d 502, 513 (7th Cir. 2017) (citing

Detrich v. Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013)).

18

In Detrich v. Ryan,35 the Ninth Circuit considered the

application of Martinez in light of Trevino v. Thaler.36 In

Trevino, the Supreme Court set out the four requirements of

Martinez:

We consequently read Coleman as

containing an exception, allowing

a federal habeas court to find

“cause,” thereby excusing a

defendant's procedural default,

where (1) the claim of

“ineffective assistance of trial

counsel” was a “substantial”

claim; (2) the “cause” consisted of

there being “no counsel” or only

“ineffective” counsel during the

state collateral review proceeding;

(3) the state collateral review

proceeding was the “initial”

review proceeding in respect to

the “ineffective-assistance-of-

trial-counsel claim”; and (4) state

law requires that an “ineffective

assistance of trial counsel [claim]

. . . be raised in an initial-review

collateral proceeding.”37

Addressing “prejudice,” the Ninth Circuit recognized that:

35

740 F.3d 1237 (9th Cir. 2013).

36

569 U.S. 413 (2013).

37

Id. at 423 (citing Martinez, 566 U.S. at 12–18).

19

If a prisoner who had [post-

conviction relief] counsel were

required to show prejudice, in the

ordinary Strickland sense,

resulting from his [post-conviction

relief] counsel’s deficient

performance in order to satisfy the

second Martinez requirement, the

prisoner would have to show, as a

condition for excusing his

procedural default of a claim, that

he would succeed on the merits of

that same claim.38

The Ninth Circuit rejected that notion. The Court

concluded that, “for the narrow purpose of satisfying the

second Martinez requirement to establish ‘cause,’ a prisoner

need only show that his [post-conviction relief] counsel

performed in a deficient matter.”39 The Court explained that

“[a] prisoner need not show actual prejudice resulting from his

[post-conviction relief] counsel’s deficient performance, over

and above his required showing that the [ineffective-

assistance-of-trial-counsel] claim be ‘substantial’ under the

first Martinez requirement.”40

The Ninth Circuit also considered Justice Breyer’s

statement “respecting the denial of the petition for the writ of

38

Detrich, 740 F.3d at 1246.

39

Id. at 1245.

40

Id. at 1245–46.

20

certiorari” in Gallow v. Cooper,41 understanding him to

distinguish between “cause” under the second prong of

Martinez and “cause and prejudice” under Strickland: “That is,

cause and prejudice under Strickland are determined separately

from, and after, a determination of ‘cause’ under Martinez.”42

Justice Breyer, who wrote for the Court in Trevino, wrote in

Gallow that “[t]he ineffective assistance of state habeas

counsel might provide cause to excuse the default of the claim,

thereby allowing the federal habeas court to consider the full

contours of Gallow’s ineffective-assistance claim.”43 We

agree with the Ninth Circuit’s analysis. Whether the

ineffectiveness of post-conviction relief counsel provided

cause to excuse procedural default is separate from the

question of whether an ineffective-assistance-of-trial-counsel

claim would prevail on the merits.

In Brown v. Brown,44 the Seventh Circuit adopted the

Ninth Circuit’s rule and as follows: “To demonstrate cause

under Martinez-Trevino, the petitioner must show deficient

performance by counsel on collateral review as required under

the first prong of the Strickland analysis. . . . Actual resulting

prejudice can be established with a substantial claim of

ineffective assistance of trial counsel that would otherwise

have been deemed defaulted.”45

This rule is sensible, workable, and a proper reading of

Martinez. If Workman shows that his underlying ineffective-

41

570 U.S. 933 (2013).

42

Detrich, 740 F.3d at 1246.

43

Gallow, 570 U.S. at 933.

44

847 F.3d 502 (7th Cir. 2017)

45

Id. at 513 (internal citations omitted).

21

assistance-of-trial-counsel claim has some merit and that his

state post-conviction counsel’s performance fell below an

objective standard of reasonableness, he has shown sufficient

prejudice from counsel’s ineffective assistance that his

procedural default must be excused under Martinez.46

B. Workman’s Underlying Claim Has “Some

Merit”

On the question presented by the amended certificate of

appealability, Workman’s claim has “some merit” under the

standard contemplated by Martinez. Respondents argue that

the claim that Workman’s trial counsel was constitutionally

ineffective for failing to present a cogent defense was not

presented to the District Court and, therefore, was waived by

Workman.

We disagree that Workman waived this claim. “A

habeas corpus petition prepared by a prisoner without legal

assistance may not be skillfully drawn and should thus be read

generously. ‘It is the policy of the courts to give a liberal

construction to pro se habeas petitions.’”47 Reviewing the

events at trial reflected by the record and the habeas petition

46

See Preston v. Superintendent of Graterford SCI & Att’y

Gen. of Pa., No. 16-3095, slip op. at 21-22 (3d Cir. Sept. 5,

2018) (stating that “[a]ctual resulting prejudice” may be

established “with a substantial claim of ineffective

assistance of trial counsel” (quoting Brown, 846 F.3d at

513)).

47

Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (quoting

United States ex rel. Montgomery v. Brierley, 414 F.2d 552,

555 (3d Cir. 1969)).

22

prepared pro se by Workman, we construe his third ground for

relief in his petition to raise a claim of ineffective assistance of

trial counsel based on trial counsel’s defective defense, which

included calling no witnesses, presenting no evidence, and

arguing inconsistently with the testimony in evidence.

C. Workman’s Post-Conviction Counsel

Rendered Ineffective Assistance

Workman’s state post-conviction counsel failed to

recognize the merit of Workman’s claim that trial counsel was

constitutionally ineffective for failing to present a cogent

defense. In a case in which trial counsel presented no witnesses

or evidence and appeared on the face of the record to be unable

to adapt to the medical examiner’s testimony that Hunt was

alive when the ricocheted bullet struck him in the chest,

Workman’s state post-conviction counsel presented one claim

in PCRA proceedings: “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.”48 The

Superior Court found that claim “nonsensical,” to the extent

that it could not determine what exactly Workman, through

state post-conviction counsel, claimed.49

There is a “strong presumption” that an attorney’s

decision to pursue some claims and decline to pursue others is

a tactical choice.50 However, this presumption is not

48

App. at 329.

49

Id.

50

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (“When counsel

focuses on some issues to the exclusion of others, there is a

23

invincible: “A petitioner may rebut the suggestion that the

challenged conduct reflected merely a strategic choice . . . by

showing that counsel omitted significant and obvious issues

while pursuing issues that were clearly and significantly

weaker.”51

Here, a significant and obvious issue existed: trial

counsel’s utter and complete failure to test the

Commonwealth’s case with appropriate cross-examination of

Lieberman, his failure to present witnesses (either fact or

expert) in support of his position, or to adapt his argument to

the testimony in evidence instead of simply asserting the

contrary statement that “[Hunt is] dead. He’s dead from the

first bullet.” 52 State post-conviction counsel overlooked these

errors, as is apparent from his letter to Workman that said,

“Contrary to your assessment, a review of the notes of

testimony does not reveal ‘numerous issues of ineffective

assistance of counsel.’ Trial counsel’s argument to the jury

was an attempt to save you from a first[-]degree murder

conviction.”53

Moreover, the claim that state post-conviction counsel

chose to pursue was clearly and significantly weaker. The

Superior Court held that the “nonsensical claim of ineffective

assistance of counsel lack[ed] merit.”54 It further stated that

strong presumption that he did so for tactical reasons rather

than through sheer neglect.”).

51

McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999)

(citation and quotation marks omitted).

52

App. at 275.

53

App. at 460.

54

App. at 344.

24

“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.”55

The evident weakness of this claim is not merely

illuminated with the benefit of hindsight, as a “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.”56 In other words, it appears that state post-conviction

counsel’s claim was that trial counsel was ineffective for

failing to request a jury instruction that was actually given.

This is the epitome of a doomed claim.

In our view, Workman has rebutted the presumption

that state post-conviction counsel made a strategic choice in

omitting the issue of trial counsel’s failure to present a cogent

defense, and that state post-conviction counsel’s performance

was deficient under the “performance” prong of Strickland.

We therefore conclude that Workman has satisfied the

requirements of Martinez. The procedural default of his

ineffective-assistance-of-trial-counsel claim is excused.

55

Id.

56

Id.

25

D. The Ineffective Asssitance of Workman’s

Trial Counsel Violated Workman’s Sixth

Amendment Right to Counsel

Once procedural default is excused, “our review of a

petitioner’s claim is de novo because the state court did not

consider the claim on the merits.”57

Workman’s trial counsel’s performance fell below an

objective standard of reasonableness even without considering

allegations of defective advice and purported plea agreements.

In response to Lieberman’s testimony, which indicated that the

blood evidence revealed that Hunt was alive when he was shot

in the chest by the richocheted bullet fired by Workman, trial

counsel argued that Lieberman possessed “unmitigated gall.”58

Trial counsel did not call an expert witness to rebut

Lieberman’s testimony, or call any fact witnesses. Trial

counsel’s cross-examination of Lieberman focused solely on

establishing that Workman’s bullet did not hit Hunt first. At

best, trial counsel established that Lieberman could not

conclusively state that Workman’s bullet hit Hunt before

Moses’s. He utterly failed to contend with the possibility that

Moses’s bullet hit Hunt first, but Hunt remained alive when

Workman’s bullet struck Hunt.

“[T]he adversarial process protected by the Sixth

Amendment requires that the accused have ‘counsel acting in

57

Bey, 856 F.3d at 236 (citing Bronshtein v. Horn, 404 F.3d

700, 710 n.4, 715 (3d Cir. 2005)).

58

App. at 275.

26

the role of an advocate.’”59 Workman’s trial counsel acted as

an advocate not of his client but of his theory—that one cannot

kill a dead man, and therefore the jury could not convict

Workman of homicide—all contrary to the facts and testimony

before the jury. Any objective standard of reasonableness

requires counsel to understand facts and testimony and adapt

to them, even at the expense of purportedly clever theories.

Workman’s trial counsel appears to have misunderstood or

willfully neglected this when faced with Lieberman’s

testimony. This falls below an objective standard of

reasonable performance.60

Typically, under Strickland, this deficient performance

must be paired with specific prejudice—a reasonable

probability that, but for trial counsel’s error or errors, the jury

would have returned a different result.61 However, we are

faced here with a trial counsel who effectively failed to present

a case on his client’s behalf. The effect of trial counsel’s errors

is not limited to one discrete failure upon which the verdict

might have turned, but instead pervades the entire proceeding.

In United States v. Cronic, the Supreme Court held that

“if counsel entirely fails to subject the prosecution’s case to

59

United States v. Cronic, 466 U.S. 648, 656 (1984) (quoting

Anders v. California, 386 U.S. 738, 743 (1967)).

60

Even as early as the preliminary hearing, Lieberman testified

that either gunshot wound would have been fatal to Hunt.

Thus, before trial began, counsel had notice that the

Commonwealth had some evidence that cut against Workman.

Counsel chose to ignore it and press his own theory to

Workman’s detriment.

61

Strickland, 466 U.S. at 694.

27

meaningful adversarial testing, then there has been a denial of

Sixth Amendment rights that makes the adversary process

itself presumptively unreliable.”62 That is what we are faced

with in the case before us. Trial counsel’s failure to present a

case on behalf of Workman or to modify his theory of the case

to account for, if not rebut with evidence, the testimony offered

by the Commonwealth, represents an “entire[] fail[ure]”63 on

the part of trial counsel to contest the Commonwealth’s case.

This is not to say that the decisions not to call a rebuttal expert

on a defendant’s behalf or to decline to call fact witnesses in a

defendant’s case-in-chief are inherently unreasonable. Here,

however, they clearly derived not from a legitimate and

reasonable trial strategy but from trial counsel’s failure to

understand what was happening in the case in which he was

ostensibly participating. The Commonwealth sought to prove

that Workman killed Hunt, but Workman’s counsel sought

only to prove his chosen theory seemingly without regard for

the facts in evidence. In effect, counsel here “failed to function

in any meaningful sense as the Government’s adversary.”64

Thus, counsel’s strategy deprived Workman of his Sixth

Amendment right to counsel.

As a result, we find that Workman’s trial counsel was

constitutionally ineffective. Workman is entitled to habeas

relief under 28 U.S.C. § 2254.

62

Cronic, 466 U.S. at 659.

63

Id.

64

Id. at 666.

28

III. Conclusion

For the foregoing reasons, we will reverse the order of

the District Court and remand with instructions to grant a

conditional writ of habeas corpus.

29