Petition for Writ of Certiorari — David Mathias, Petitioner v. Kathy Brittain, Superintendent, State Correctional Institution at Frackville, et al.

No.

IN THE SUPREME COURT OF THE UNITED STATES

DAVID MATHIAS,

PETITIONER,

- VS. KATHY BRITTAIN, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION,

FRACKVILLE, ET AL.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

MARIA K. PULZETTI

Assistant Federal Defender

Counsel of Record

BRETT G. SWEITZER

Assistant Federal Defender

Chief of Appeals

LEIGH M. SKIPPER

Federal Defender

FEDERAL COMMUNITY DEFENDER OFFICE

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Suite 540 West - Curtis Center

601 Walnut Street

Philadelphia, PA 19106

(215) 928-1100

Counsel for Petitioner

QUESTION PRESENTED

Whether lower courts may decline to treat precedent of this Court as

“clearly established Federal law” under 28 U.S.C. § 2254(d) if, without

citing that precedent, this Court has reached a different result in a

subsequent per curiam opinion.

i

LIST OF PARTIES

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this petition

is as follows:

David Mathias;

Superintendent, State Correctional Institution Frackville;

Attorney General of Pennsylvania.

ii

TABLE OF CONTENTS

PAGE

Question Presented ......................................................................................................................... i

List of Parties ................................................................................................................................ ii

Table of Contents ......................................................................................................................... iii

Table of Authorities ....................................................................................................................... v

Opinions Below ............................................................................................................................. 1

Statement of Jurisdiction ................................................................................................................ 1

Constitutional and Statutory Provisions Involved ......................................................................... 2

Statement of the Case ..................................................................................................................... 2

Reasons for Granting the Petition .................................................................................................. 6

I.

The lower courts may not decline to treat precedent of this Court as “clearly

established Federal law” under 28 U.S.C. § 2254(d) if, without citing that

precedent, this Court has reached a different result in a subsequent per curiam

opinion. .................................................................................................................. 6

A.

B.

This Court alone has the prerogative to overrule its precedent; in the

habeas context, permitting lower courts to read an earlier opinion as

implicitly overruled or qualified would create confusion in the state

courts. ......................................................................................................... 6

1.

This Court alone may overrule its precedent. ................................ 6

2.

Habeas relief is limited to unreasonable or contrary

applications of clearly established Federal law. ............................ 7

3.

Permitting lower courts to read Supreme Court precedent as

overruled or qualified and no longer “clearly established,”

when this Court has not done so itself, would create confusion

in the state courts. .......................................................................... 8

Because the repeated instructional errors at Petitioner’s trial

implicate due process and because the state court decision was an

unreasonable application of this Court’s due process precedent, the

decision of the court below was wrong. ..................................................... 9

iii

TABLE OF CONTENTS - continued

PAGE

1.

This Court’s due process precedent for jury instruction

errors. ............................................................................................. 9

2.

Francis a straightforward application of due process

precedent. ..................................................................................... 10

3.

Boyde does not affect the key holding of Francis. ...................... 11

4.

This Court’s per curiam decision in Middleton does not

implicate Francis. ........................................................................ 13

5.

In this case, there is a reasonable likelihood the jury applied

the instruction unconstitutionally. ................................................ 14

6.

The Pennsylvania Superior Court’s decision was an

unreasonable application of clearly established federal law. ....... 15

Conclusion ................................................................................................................................... 16

Appendices:

Third Circuit Opinion .................................................................................................. Appendix A

District Court Opinion ................................................................................................. Appendix B

State Appellate Court Opinion ..................................................................................... Appendix C

iv

TABLE OF AUTHORITIES

FEDERAL CASES

PAGE(s)

Agostini v. Felton,

521 U.S. 203 (1997) ............................................................................................ 7

Bey v. Superintendent Greene SCI,

856 F.3d 230 (3d Cir. 2017) .................................................................... 6, 12, 14

Booth v. Maryland,

482 U.S. 496 (1987) ............................................................................................ 6

Bosse v. Oklahoma,

137 S. Ct. 1 (2016) ...................................................................................... 6, 7, 8

Boyde v. California,

494 U.S. 370 (1990) .............................................................................. 10, 11, 12

Burt v. Titlow,

134 S. Ct. 10 (2013) ............................................................................................ 7

Cotts v. Osafo,

692 F.3d 564 (7th Cir. 2012) ....................................................................... 13, 14

Cullen v. Pinholster,

563 U.S. 170 (2011) ........................................................................................ 8, 9

Cupp v. Naughten,

414 U.S. 141 (1973) .......................................................................................... 10

Estelle v. McGuire,

502 U.S. 62 (1991) ............................................................................................ 10

Francis v. Franklin,

471 U.S. 307 (1985) .......................................................................... 4, 10, 11, 12

Greene v. Fisher,

565 U.S. 34 (2011) .............................................................................................. 8

Hall v. Haws,

861 F.3d 977 (9th Cir. 2017) ............................................................................. 14

Hanna v. Ishee,

694 F.3d 596 (6th Cir. 2012) ....................................................................... 12, 14

v

TABLE OF AUTHORITIES - continued

PAGE(s)

Harrington v. Richter,

562 U.S. 86 (2011) .............................................................................................. 9

Hohn v. United States,

524 U.S. 236 (1998) ............................................................................................ 7

In re Winship,

397 U.S. 359 (1970) ...................................................................................... 9, 10

Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151 (10th Cir. 2012) ................................................................... 13, 14

Metrish v. Lancaster,

133 S. Ct. 1781 (2013) ........................................................................................ 8

Middleton v. McNeil,

541 U.S. 433 (2004) ................................................................................ 4, 13, 14

Mathias v. Superintendent Frackville SCI,

876 F.3d 462 (3d Cir. 2017) ................................................................................ 1

Mathias v. Collins,

No. 13-2002, 2014 WL780834 (E.D. Pa. Nov. 5, 2014) .................................... 1

Owens v. McLaughlin,

733 F.3d 320 (11th Cir. 2013) ..................................................................... 12, 14

Payne v. Tennes

501 U.S. 808 (1991) ............................................................................................ 6

Renico v. Lett,

559 U.S. 766 (2010) ............................................................................................ 8

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989) ............................................................................................ 7

Sandstrom v. Montana,

442 U.S. 510 (1979) .......................................................................................... 11

State Oil Co. v. Khan,

522 U.S. 3 (1997) ................................................................................................ 6

vi

TABLE OF AUTHORITIES - continued

PAGE(s)

Strickland v. Washington,

466 U.S. 668 (1984) ............................................................................................ 3

Stromberg v. California,

283 U.S. 359 (1931) ...................................................................................... 9, 11

Torres v. Dubois,

174 F.3d 43 (1st Cir. 1999) ............................................................................... 13

United States v. Hatter,

532 U.S. 557 (2001) ............................................................................................ 6

Waddington v. Sarausad

555 U.S. 179 (2009) .......................................................................................... 10

Williams v. Taylor,

529 U.S. 362 (2000) ............................................................................................ 8

Woodford v. Visciotti,

537 U.S. 19 (2002) .............................................................................................. 8

Woods v. Donald,

135 S. Ct. 1372 (2015) ........................................................................................ 8

Yates v. Aiken,

484 U.S. 211 (1988) .......................................................................................... 10

STATE CASES

PAGE(s)

Commonwealth v. Mathias,

No. 2297 EDA 2011 (Pa. Super. Ct. Oct. 25, 2012) ........................................... 1

FEDERAL STATUTES

PAGE(s)

28 U.S.C. § 1254(a) ................................................................................................. 1

28 U.S.C. § 2254(d) ................................................................................. 1, 3, 6, 7, 8

vii

No.

IN THE SUPREME COURT OF THE UNITED STATES

DAVID MATHIAS,

PETITIONER,

- VS. KATHY BRITTAIN, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION,

FRACKVILLE, ET AL.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI

Petitioner David Mathias respectfully asks that this Court issue a writ of certiorari to

review the decision of the United States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals, Mathias v. Superintendent Frackville

SCI, 876 F.3d 462 (3d Cir. 2017), is appended as Appendix A. The opinion of the United States

District Court for the Eastern District of Pennsylvania, Mathias v. Collins, No. 13-2002, 2014

WL 5780834 (E.D. Pa. Nov. 5, 2014), is appended as Appendix B. The state appellate court

opinion, Commonwealth v. Mathias, No. 2297 EDA 2011 (Pa. Super. Ct. Oct. 25, 2012), is

appended as Appendix C.

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(a). The Third Circuit issued its

opinion on November 20, 2017. App. A1. On February 12, 2018, this Court extended the time

for filing a petition for a writ of certiorari to March 20, 2018. This petition is timely filed.

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth and the Fourteenth Amendments to the United States

Constitution. The Sixth Amendment provides, in pertinent part: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, . . . and to have the assistance of counsel

for his defense.” The due process clause of the Fourteenth Amendment provides, in relevant part,

“No State shall make or enforce any law which shall abridge the privileges or immunities of any

citizen of the United States; nor shall any State deprive any person of life, liberty or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection of

the laws.”

STATEMENT OF THE CASE

Mr. Mathias was convicted of first degree murder and received a mandatory sentence of

life imprisonment without parole for a homicide in which his co-defendant fired the fatal shots.

At the time of the offense he had no criminal record. The prosecution’s theory of the first degree

murder charge was accomplice liability. At the trial, the jury heard an erroneous accomplice

liability instruction fourteen times. The court instructed the jurors eight times that they could find

specific intent for first degree murder based upon the mental state of Mr. Mathias “or his alleged

accomplice.” During the instructions for the lesser-included offenses—second degree and third

degree murder and aggravated assault—the court instructed the jury six more times that it could

convict Mr. Mathias as an accomplice based on his mental state or that of his accomplice. The

district court granted habeas relief, holding that the errors violated due process and appellate

counsel was ineffective for failing to raise the issue. The Third Circuit vacated the grant of relief.

2

There is no dispute that the instructions misstated Pennsylvania law, which requires a

jury finding of the defendant’s specific intent in order to find him guilty of first degree murder

on an accomplice liability theory. 1 The errors pervaded the charge as a whole: the error occurred

eight times in the instruction for first degree murder, five times in the instruction for second

degree and third degree murder, and one time in the instruction for aggravated assault. In the

instruction for conspiracy to commit first degree murder, the trial court referred back to its prior

first degree murder instruction, thus re-incorporating the error. Although the trial court twice

gave a correct description of accomplice liability in its “plain English” preface to the formal

instruction, during that introduction the trial court also repeatedly told the jury, “This is still not

my formal charge.” In addition, the “plain English” introduction occurred before the jury heard

the fourteen erroneous statements of accomplice liability.

Defense counsel objected, but the trial court denied making the errors, and overruled the

objections. Appellate counsel failed to raise this issue on direct appeal.

After appointed post-conviction counsel filed a no-merit letter, Mr. Mathias filed a pro se

amendment to his state post-conviction petition. He raised this issue as a due process claim and

as a claim of ineffective assistance of appellate counsel under Strickland v. Washington, 466 U.S.

668 (1984). The Pennsylvania Superior Court addressed the claim of ineffective assistance of

appellate counsel for failing to challenge the accomplice liability instruction for first degree

murder. App. C, 15-17. The court gave two reasons for affirming the denial of relief. First, the

jury was twice instructed that it was required to find that Mr. Mathias had specific intent to kill. 2

Second, the jury found him guilty of conspiracy to commit first degree murder, which required a

1

Likewise, a jury finding of the defendant’s individual mens rea is required for an accomplice

liability conviction for second degree and third degree murder and aggravated assault.

2

The two instances of putatively correct instruction both occurred during the “plain English”

preface to the jury charge.

3

finding of specific intent to kill. App. C, 16-17. Thus, the court concluded, Mr. Mathias cannot

show prejudice, because he “cannot establish that the jury convicted him of first degree murder

without finding that he had the requisite specific intent to kill.” App. C, 17. The Superior Court

did not address the due process issue. 3

In his pro se habeas corpus petition, Mr. Mathias raised the instructional errors as a claim

of ineffective assistance of appellate counsel and as a due process claim. The district court

granted relief on both grounds, holding that appellate counsel was ineffective for failing to raise

the preserved issue, the state court decision was an unreasonable application of clearly

established federal law, and the instructions violated due process. App. B, 24, 26.

The Third Circuit reversed the district court’s grant of relief. On the ineffective assistance

of counsel issue, the Third Circuit concluded that the state court’s adjudication of the Strickland

prejudice prong was not an unreasonable application of clearly established federal law. App. A,

26-28. The Third Circuit reasoned that Francis v. Franklin, 471 U.S. 307 (1985), a case relied

upon by Mr. Mathias, is rendered “less than clearly established” by a subsequent Supreme Court

case, Middleton v. McNeil, 541 U.S. 433 (2004), and therefore the holding of Francis is no

longer “clearly established federal law” for the purposes of the Section 2254(d) analysis. App. A,

27-28. On the due process claim, the Third Circuit held that the district court erred in granting

relief for the same reason as above, reasoning that Francis is not “clearly established federal

law,” and because the due process violation was harmless. App. A, 29-32.

Mr. Mathias petitioned for panel and en banc rehearing. Both were denied, but the Third

Circuit issued an amended precedential opinion, correcting two errors raised in the rehearing

3

The Third Circuit held that the Superior Court addressed the due process issue “within its

discussion of the ineffective-assistance-of-counsel claim,” and thus it was adjudicated on the

merits. App. A, 30.

4

petition. Those errors did not affect the outcome and are not related to the question presented

here. Likewise, the question presented does not implicate the Third Circuit’s disposition of Mr.

Mathias’s cross-appeal.

5

REASONS FOR GRANTING THE PETITION

I.

The lower courts may not decline to treat precedent of this Court as “clearly

established Federal law” under 28 U.S.C. § 2254(d) if, without citing that precedent,

this Court has reached a different result in a subsequent per curiam opinion.

In this case, the Third Circuit hinged its reversal of relief on the conclusion that a

subsequent Supreme Court decision, Middleton v. McNeil, rendered a prior Supreme Court

decision, Francis v. Franklin, “less than ‘clearly established.’” App. A, 27 (describing the

“divergence” between the cases as “outcome determinative”). 4 Because only the Supreme Court

can overrule its precedent and in any event Middleton does not call Francis into question,

because permitting lower federal courts to thus define “clearly established federal law” would

inject uncertainty into myriad proceedings, and because the state court decision in this case is an

unreasonable application of Francis and the long line of due process precedent addressing jury

instruction errors, certiorari should be granted.

A.

This Court alone has the prerogative to overrule its precedent; in the habeas

context, permitting lower courts to read an earlier opinion as implicitly overruled or

qualified would create confusion in the state courts.

1.

This Court alone may overrule its precedent.

“[I]t is this Court’s prerogative alone to overrule one of its precedents.” Bosse v.

Oklahoma, 137 S. Ct. 1, 2 (2016) (quoting United States v. Hatter, 532 U.S. 557, 567 (2001)

(quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))) (internal quotation marks omitted). In

Bosse, a habeas case, the state appellate court had concluded that Payne v. Tennessee, 501 U.S.

808 (1991), “implicitly overruled” part of the holding of Booth v. Maryland, 482 U.S. 496

(1987). Although Payne did abrogate Booth in part, the decision “specifically acknowledged its

4

The opinion acknowledged that the Third Circuit had relied upon Francis in a precedential

opinion just a few months earlier. See Bey v. Superintendent Greene SCI, 856 F.3d 230, 240-41

(3d Cir. 2017).

6

holding did not address” the aspect of Booth at stake in the Oklahoma case. Bosse, 137 S. Ct. at

2. Thus, as this Court made clear, the state appellate court “was wrong to go further and conclude

that Payne implicitly overruled Booth in its entirety.” Id.

This Court specifically cautions against lower courts determining that its precedent has

been overruled by implication:

We do not acknowledge, and we do not hold, that other courts should

conclude our more recent cases have, by implication, overruled an earlier

precedent. We reaffirm that “if a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its

own decisions.”

Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). One year later, this Court again

reminded the lower federal courts: “Our decisions remain binding precedent until we see fit to

reconsider them, regardless of whether subsequent cases have raised doubts about their

continuing vitality.” Hohn v. United States, 524 U.S. 236, 252-53 (1998).

2.

Habeas relief is limited to unreasonable or contrary applications of clearly

established federal law.

The statutory scheme governing habeas corpus, enacted in the Anti-Terrorism and

Effective Death Penalty Act (AEDPA), “recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow,

134 S. Ct. 10, 15 (2013). Respect for state courts and their adjudication of constitutional issues in

state criminal proceedings is the core principle of 28 U.S.C. § 2254(d). Under the statute, a

federal court may grant habeas relief on a claim that was adjudicated on the merits in state court

only if the state decision was “contrary to, or involved an unreasonable application of, clearly

7

established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

“Clearly established Federal law . . . refers to the holdings, as opposed to the dicta, of this

Court’s decisions.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The statutory requirement

“reflect[s] a ‘presumption that state courts know and follow the law.’” Woods v. Donald, 135 S.

Ct. 1372, 1376 (2015) (per curiam) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). The

clause “requires federal courts . . . to measure state-court decisions against th[e Supreme] Court’s

precedents as of the time the state court renders its decision.” Greene v. Fisher, 565 U.S. 34, 38

(2011) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). 5

3.

Permitting lower courts to read Supreme Court precedent as overruled or

qualified and no longer “clearly established,” when this Court has not done

so itself, would create confusion in the state courts.

A federal habeas court may not extend clearly established federal law beyond the

holdings of Supreme Court precedent. See, e.g., Metrish v. Lancaster, 133 S. Ct. 1781, 1784-85

(2013) (reversing grant of habeas relief where it relied on Supreme Court precedent that “bears

scant resemblance to this case”); Renico v. Lett, 559 U.S. 766, 779 (2010) (reversing grant of

habeas relief, because it was based on a principle “nowhere established” in the relevant Supreme

Court precedent). Similarly, a federal habeas court may not eliminate from consideration a

holding of this Court that has not been overruled. In addition, state courts necessarily remain

bound by this Court’s holdings, even where this Court has overruled other aspects of a case.

Bosse, 137 S. Ct. at 2 (the state appellate court “was wrong to go further and conclude that Payne

[v. Tennessee] overruled Booth [v. Maryland] in its entirety”).

5

One of the reasons Congress enacted AEDPA was to limit federal habeas review to legal

precepts that were binding on the state courts at the time they ruled. See 139 Cong. Rec. S15813

(Nov. 17, 1993) (Sen. Hatch) (“it is not fair to the States to change the rules of the game via

habeas review when the state correctly applied the law as it existed at the time of trial”).

8

Here, the Third Circuit held that a precedent of this Court had been implicitly overruled

or qualified, although this Court has not held as much, and that the precedent no longer qualifies

as clearly established federal law. Such a rule undermines the purpose of the Section 2254(d)(1)

requirement. As set forth above, the habeas statute presumes that state courts ably apply this

Court’s precedent, and that relief is required only in the unusual case where that presumption

fails. Harrington v. Richter, 562 U.S. 86, 102 (2011) (describing habeas as “a guard against

extreme malfunctions in the state criminal justice systems”). But under the rule set out by the

Third Circuit, state courts would not know which undisturbed Supreme Court holdings remain

clearly established, and which holdings may have been implicitly “called into question.” In the

AEDPA framework, which places the primary responsibility for adjudicating constitutional

claims upon state courts, and focuses “review under Section 2254(d)(1) on what a state court

knew and did,” Pinholster, 563 U.S. at 182, injecting uncertainty into the question of what

constitutes clearly established federal law would be unfair to the state courts, and lead to

inconsistent outcomes. Federal courts, in turn, would face a foggy landscape of Supreme Court

precedent—some clearly established, some not—against which to analyze state court decisions.

B.

Because the repeated instructional errors at Petitioner’s trial implicate due process

and because the state court decision was an unreasonable application of this Court’s

due process precedent, the decision of the court below was wrong.

The Third Circuit wrongly decided that Middleton calls Francis into question, and that as

a result of this “tension,” the Pennsylvania Superior Court decision was not an unreasonable

application of clearly established federal law.

1.

This Court’s due process precedent for jury instruction errors.

This Court’s line of precedent addressing when errors in jury instructions violate due

process extends from Stromberg v. California, 283 U.S. 359 (1931), through In re Winship, 397

9

U.S. 359 (1970), to Waddington v. Sarausad, 555 U.S. 179 (2009). Francis falls squarely within

that line of precedent, which clearly establishes the following principles for reviewing jury

instruction errors:

1) “[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged,” In re Winship, 397

U.S. at 364; see also Francis, 471 U.S. at 309 (due process requires

“that the State prove every element of a criminal offense beyond a

reasonable doubt”);

2) To determine whether an erroneous intent instruction violates due

process by relieving the state of the burden of proof, it “must be

considered in the context of the charge as a whole,” Francis, 471 U.S.

at 309, 315; Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); Estelle v.

McGuire, 502 U.S. 62, 72-73 (1991);

3) The charge as a whole is reviewed for a reasonable likelihood that the

jury applied the challenged instruction in such a manner so as to

relieve the state of the burden of proof. Estelle, 502 U.S. at 72-73;

Boyde v. California, 494 U.S. 370, 380 (1990).

2. Francis is a straightforward application of due process precedent.

As this Court has explained, Francis v. Franklin “was merely an application

of the principle that governed our decision in Sandstrom v. Montana. ” Yates v. Aiken,

484 U.S. 211, 216-17 (1988) (holding that Francis is not retroactive, because it does

not establish a new rule of constitutional law). That conclusion was based on the

explicit reliance in Francis on the earlier precedent:

“Sandstrom v. Montana made clear that the Due Process Clause of the

Fourteenth Amendment prohibits the State from making use of jury

instructions that have the effect of relieving the State of the burden of

proof enunciated in Winship on the critical question of intent in a criminal

prosecution. Today we reaffirm the rule of Sandstrom and the wellspring

due process principle from which it was drawn.”

Yates, 484 U.S. at 217 (quoting Francis, 471 U.S. at 326-27) (internal citations omitted).

10

In Francis, this Court held that the contradictory instructions regarding intent

in that case, which were not corrected or explained to the jury, created a reasonable

likelihood of an unconstitutional conviction:

The Court today holds that contradictory instructions as to intent -- one of

which imparts to the jury an unconstitutional understanding of the

allocation of burdens of persuasion -- create a reasonable likelihood that a

juror understood the instructions in an unconstitutional manner, unless

other language in the charge explains the infirm language sufficiently to

eliminate this possibility.

Francis, 471 U.S. at 322 n. 8 (relying upon Sandstrom v. Montana, 442 U.S. 510, 526 (1979),

and Stromberg v. California). That is the holding of Francis relevant to this case, and it is

consistent with this Court’s long line of due process precedent holding that jury instruction errors

in the prosecution’s burden of proof violate due process when there is a reasonable likelihood the

jury understood the instruction in a way that reduces the prosecution’s burden.

3.

Boyde does not affect the key holding of Francis.

A later Supreme Court decision, Boyde v. California, 494 U.S. 370 (1990), arguably

overruled one aspect of Francis: its language that due process is violated when a reasonable jury

“could have understood” the errors to relieve the state of the burden of proof. Importantly,

though, the question before this Court in Boyde was how to define the standard, consistently

articulated in longstanding precedent and expressly applied in Francis, that due process is

violated when instructional errors “create a reasonable likelihood that a juror understood the

instructions in an unconstitutional manner.” Francis, 471 U.S. at 322, n.8. Boyde did not revisit

that question. Instead, it asked how courts define “reasonable likelihood.” As this Court

explained:

In this case we are presented with a single jury instruction. The

instruction is not concededly erroneous, nor found so by a court, as was the

case in Stromberg v. California, 283 U.S. 359 (1931). The claim is that the

11

instruction is ambiguous and therefore subject to an erroneous interpretation.

We think the proper inquiry in such a case is whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way that

prevents the consideration of constitutionally relevant evidence. . . . This

“reasonable likelihood” standard, we think, better accommodates the concerns

of finality and accuracy than does a standard which makes the inquiry

dependent on how a single hypothetical “reasonable” juror could or might

have interpreted the instruction.

Boyde, 494 U.S. at 378-380 (distinguishing Francis, which asked the question “what a

reasonable juror could have understood”). Thus, the Supreme Court in Boyde expressly rejected

defining reasonable likelihood as whether a juror “could have understood” the instruction

incorrectly. Instead, courts must examine, in the context of the charge as a whole, whether there

is a reasonable likelihood the jury applied the erroneous instruction(s) in an unconstitutional

way. Boyde, 494 U.S. at 380.

Boyde does not disturb Francis’s core holding that “contradictory instructions as to intent

-- one of which imparts to the jury an unconstitutional understanding of the allocation of burdens

of persuasion -- create a reasonable likelihood that a juror understood the instructions in an

unconstitutional manner, unless other language in the charge explains the infirm language

sufficiently to eliminate this possibility.” Francis, 471 U.S. at 322 n.8 (emphasis in original).

The continued reliance of the lower courts on Francis for this proposition shows that it remains

good law. See, e.g., Bey v. Superintendent Greene SCI, 856 F.3d 230, 241 (3d Cir. 2017)

(erroneous instruction violated due process despite correct general instruction, because the

correct instruction “merely contradicts and does not explain the defective language,” relying

upon Francis); Owens v. McLaughlin, 733 F.3d 320, 326 (11th Cir. 2013) (erroneous instruction

violated due process, despite other correct instruction, because an instruction that “does not

explain a constitutionally infirm instruction will not suffice to absolve the infirmity,” quoting

Francis); Hanna v. Ishee, 694 F.3d 596, 622 (6th Cir. 2012) (instructional error distinguished

12

from Francis, because the error at Hanna’s trial was not as to intent, and the overall instructions

were curative, again distinguishing Francis); Cotts v. Osafo, 692 F.3d 564, 568 (7th Cir. 2012)

(erroneous burden of proof instruction not cured by another correct instruction, because the error

was repeated and the “more general instruction did not ‘dissipate the error in the challenged . . .

instruction’”) (quoting Francis); Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1159–60

(10th Cir. 2012) (erroneous burden of proof instruction was prejudicial, despite trial court’s

correct statements “both before and after the challenged instruction,” because in context, “the

correct portions of the instructions simply conflict with the erroneous portion without shedding

further light upon it,” citing Francis); Torres v. Dubois, 174 F.3d 43, 46 (1st Cir. 1999) (Francis

is clearly established federal law, but petitioner not entitled to relief, because challenged

instruction did not relieve the prosecution of the burden of proof).

4.

This Court’s per curiam decision in Middleton does not implicate Francis.

Middleton v. McNeil, a short per curiam opinion, does not mention Francis at all and

does not overrule Francis expressly or by implication. The legal issue in Middleton was a single

error in the instruction for imminent peril, part of the imperfect self-defense instruction. That

error did not relieve the state of the burden to prove an element of the offense, in contrast to the

error in both Francis and in Mr. Mathias’s trial. The Ninth Circuit had held in Middleton that a

single error in the imminent peril instruction, despite multiple correct statements of the same

instruction in the charge, violated due process and that the state court was unreasonable to

conclude otherwise. Middleton, 541 U.S. at 436-37. This Court explained that the legal standard

is “whether there is a ‘reasonable likelihood that the jury has applied the challenged instruction

in a way’ that violates the Constitution.” Id. (quoting Estelle). Holding that the state court did not

unreasonably apply that standard in concluding there was no due process violation, this Court

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summarily reversed. Id.at 437-48 (“Given three correct instructions and one contrary one, the

state court did not unreasonably apply federal law when it found that there was no reasonable

likelihood the jury was misled.”).

The outcome in Middleton is best explained that in the context of the charge as a whole,

the single error in the imperfect self-defense instruction, which did not implicate the

prosecution’s burden of proof, did not raise a reasonable likelihood that the jury applied the

instructions in an unconstitutional manner.

After Middleton, lower courts have continued to rely expressly upon Francis in

adjudicating instructional errors in the context of other correct instructions. This also shows that

Middleton did not overrule Francis. Since Middleton was decided, at least six courts of appeals

have relied upon Francis in adjudicating instructional errors in the context of other correct

instructions. See, e.g., Hall v. Haws, 861 F.3d 977, 990 (9th Cir. 2017); Bey v. Superintendent

Greene SCI, 856 F.3d 230, 241 (3d Cir. 2017); Owens v. McLaughlin, 733 F.3d 320, 326 (11th

Cir. 2013); Hanna v. Ishee, 694 F.3d 596, 620 622 (6th Cir. 2012) (relying upon Middleton);

Cotts v. Osafo, 692 F.3d 564, 568 (7th Cir. 2012); Lederman v. Frontier Fire Prot., Inc., 685

F.3d 1151, 1159–60 (10th Cir. 2012). Only one of these decisions, Hanna, mentions Middleton;

it is cited for the uncontroversial proposition that a jury instruction violates due process if it fails

to give effect to the state’s burden to prove every element of the offense.

For all of these reasons, Middleton does not change the due process standard.

5.

In this case, there is a reasonable likelihood the jury applied the instruction

unconstitutionally.

Mr. Mathias’s jury heard eight errors as to accomplice intent in the first degree murder

instruction, six additional errors regarding the standard for accomplice intent in the instructions

for the lesser-included offenses, and only two correct statements in the trial court’s introduction

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to the charge, which the judge described as “not my formal charge.” Here, the number of

errors—more errors than in any case counsel has encountered, the repetition throughout the

charge, and the fact that the errors reduced the prosecution’s burden of proof for the defendant’s

intent create a reasonable likelihood the jury applied the instructions unconstitutionally.

6.

The Pennsylvania Superior Court’s decision was an unreasonable

application of clearly established federal law.

The Superior Court’s decision in this case was an unreasonable application of this

Court’s due process precedent. Here, in the context of the jury charge as a whole, there is a

reasonable likelihood that the jury convicted Mr. Mathias of first degree murder without finding

that he had the specific intent to kill. The accomplice liability instructions were erroneous,

inviting the jury to convict on the basis of Mr. Mathias’s intent or that of his accomplice, and the

error’s incessant repetition pervaded the charge on the first degree murder count and on the other

offenses. The Superior Court’s conclusion that the two correct statements of accomplice liability

in the trial court’s “preface” to its formal instructions outweigh the subsequent fourteen instances

when the jury was told a conviction could be based on the intent of Mr. Mathias “or” his

accomplice is an unreasonable application of this Court’s due process precedent. Here, there is a

reasonable likelihood the jury misunderstood the charge. The Superior Court’s conclusion

otherwise is an unreasonable application of Estelle v. McGuire, Francis, and Sandstrom v.

Montana.

In addition, the Superior Court applied Strickland and the due process precedent in its

analysis of the appellate ineffectiveness claim, requiring Mr. Mathias to show “actual prejudice”

by “establish[ing] that the jury convicted him of first degree murder without finding that he had

the requisite specific intent to kill.” App. C, 16-17. The Strickland prejudice standard requires

only a reasonable probability of a different outcome; here, it requires a reasonable probability

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that raising the due process issue on direct appeal would result in a different outcome. The due

process standard, as discussed at length above, does not require a petitioner to “establish” that

the jury convicted without finding specific intent. App. C, 16-17. Instead, it requires a reasonable

likelihood that the jury applied the erroneous instructions unconstitutionally. For these reasons as

well, the state court decision was an unreasonable application of clearly established federal law,

and the Third Circuit was wrong to conclude otherwise.

CONCLUSION

This petition for writ of certiorari should be granted.

Respectfully submitted,

/s/ Maria K. Pulzetti

MARIA K. PULZETTI

Assistant Federal Defender

BRETT G. SWEITZER

Assistant Federal Defender

Chief of Appeals

LEIGH M. SKIPPER

Federal Defender

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