Bey v. Superintendent Greene SCI

• Decision Date: 10 May 2017
• Docket Number: No. 15-2863,15-2863
• Citation: 856 F.3d 230
• Parties: Saleem BEY, Appellant v. SUPERINTENDENT GREENE SCI; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania
• Court: U.S. Court of Appeals — Third Circuit

856 F.3d 230

Saleem BEY, Appellant

v.SUPERINTENDENT GREENE SCI; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania

No. 15-2863

United States Court of Appeals, Third Circuit.

Argued November 8, 2016

Filed: May 10, 2017

Michael Wiseman, Esq. [ARGUED], P.O. Box 120, Swarthmore, PA 19081, Attorney for Appellant

John W. Goldsborough, Esq. [ARGUED], Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Attorney for Appellees

Before: McKEE and RESTREPO, Circuit Judges; HORNAK, District Judge.^*

OPINION OF THE COURT

McKEE, Circuit Judge.

Saleem Bey appeals the order of the District Court dismissing the habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. He contends that his trial counsel rendered ineffective assistance for failing to object to: (1) a faulty jury instruction on eyewitness testimony (Kloiber instruction); and (2) the prosecution's comments on his post-Miranda silence. Bey concedes that his claims are procedurally defaulted, but argues his default should be excused because his post-conviction review counsel's assistance was ineffective when he failed to raise the claims in collateral proceedings. For the following reasons, we conclude there is cause to excuse Bey's procedural default for his ineffective assistance of counsel claim pertaining to the Kloiber instruction. We will vacate the District Court's order and remand for issuance of a conditional writ based on that claim. Accordingly, we need not reach Bey's claim pertaining to the prosecution's comments on his post-Miranda silence.

I

Bey was charged with the nonfatal shooting of Kenneth Thompkins and the fatal shooting of Terry Swanson that took place on November 21, 2001 in a club parking lot in Philadelphia. Bey's first trial ended in a hung jury. On retrial, Bey was convicted of murder, attempted murder, and possessing an instrument of crime. He was sentenced to life in prison for murder, 7.5 to 40 years for attempted murder, and 9 to 18 months for the weapons offense.

The prosecution's key witness at the retrial was Philadelphia Police Officer Daniel Taylor. Taylor testified that he saw Bey running from the direction of the first gunshots in the south end of the parking lot and that Bey shot Thompkins from behind with a silver handgun as he ran. Taylor said that he then saw Thompkins fall to the ground as Bey continued running north toward Taylor. According to Taylor, Bey tucked the handgun into his waistband as he ran. Taylor testified that when Bey was about fifteen feet away from him, Taylor shouted "police, drop the gun" and Bey looked up in response.¹ Taylor then made "eye-to-eye" contact with Bey as Bey "looked right at [Taylor's] face."² Taylor then gave chase with several other officers, and Bey was arrested moments later. No weapons were found on Bey, though a .380 silver gun—which matched the bullet casings at the scene—and a black and silver Derringer handgun were found elsewhere in the parking lot. Officer Ferrero testified that he saw Bey drop the Derringer as he ran from police.

Taylor's identification of Bey as the shooter was certain and unequivocal. Taylor said he could see Bey clearly: There were no cars or people obstructing his view, and the area was "well lit."³ Taylor's identification of Bey as the shooter was consistent in all of Taylor's interviews, preliminary hearings, at the initial trial, and at the retrial that occurred after the first jury was unable to reach a verdict. However, Taylor was the only eyewitness who identified Bey as the shooter. Other officers on the scene at the time of the shooting testified that they understood Bey to be the shooter because Taylor identified him as such. Kenneth Thompkins, the surviving victim, testified that he did not see his shooter. However, in statements to Bey's then-defense counsel, Thompkins had said that his shooter was not Bey, but a bald, dark-skinned, bearded man.

During the retrial, defense counsel requested a special jury instruction on eyewitness testimony, pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Kloiber .⁴ In Kloiber , the Pennsylvania Supreme Court recognized the need for a cautionary instruction in certain eyewitness cases.⁵ The trial judge here did attempt a Kloiber charge. However, rather than giving the charge outlined in Kloiber , the court instructed the jury as follows:

Where a witness is positive of his identification, such as where the opportunity for positive identification is good and the witness is positive in his identification and the identification has not been weakened by any prior failure to identify but remains even after cross-examination positive and unqualified, the testimony as to the identification may not be received with caution . Indeed, positive testimony as to identity may be treated as a statement of fact.

On the other hand, if you believe that a witness is not in a position to clearly observe and was not in a position because of lighting and/or conditions, then you may use that as a factor in determining whether or not that the person actually had the opportunity to observe that which he testified to and a positive identification of a defendant by one witness is sufficient for a conviction.⁶

Although the bold text in the quoted instruction is critically inconsistent with Kloiber , defense counsel did not object. In Kloiber , the Pennsylvania Supreme Court had actually stated the following:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution —indeed the cases say that "his [positive] testimony as to identity may be treated as the statement of a fact." For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.

On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.⁷

The difference between telling jurors that they "may not" receive an identification with caution and instructing them that they "need not" receive the identification with caution is the difference between telling jurors that they must accept an identification and telling them that they may accept the testimony without reservation, but they need not do so.

The confusion sewn by this instruction was soon evident. During deliberations, the jury asked the court to clarify aspects of Officer Taylor's testimony. The jury asked the court: "[M]ay we have or hear the transcript of Officer Taylor's testimony describing from the time the officer heard the first shot to when the defendant ran west towards the wall?" and "May we also have [the] statement where Officer Taylor says he saw the defendant shoot Swanson?"⁸ Both questions went unanswered.

The jury ultimately convicted Bey of the murder of Terry Swanson, attempted murder of Kenneth Thompkins, and possessing an instrument of crime. Thereafter, Bey filed a petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA").⁹ His appointed PCRA counsel raised an ineffective assistance of counsel claim based on the Kloiber instruction, but failed to highlight the "may not be received with caution" language. Instead, Bey's PCRA counsel challenged three other aspects of the instruction. Counsel argued the instruction: (1) failed to inform jurors that if they found circumstances casting doubt on the identification's accuracy, the testimony "must be received with caution," thereby omitting language from Kloiber ;¹⁰ (2) impermissibly placed a burden on the defense to prove circumstances casting doubt on the accuracy of the identification; and (3) improperly instructed jurors that "positive testimony as to identity may be treated as a statement of fact."¹¹

The PCRA Court considered only the third of the Kloiber issues raised in the petition, holding that the "statement of fact" language was permissible under state law and as a result, trial counsel's assistance was not ineffective for failing to object to the instruction.¹² The Court thus denied the PCRA petition, and the Pennsylvania Superior Court thereafter affirmed the PCRA court's conclusions.¹³ Bey sought leave to appeal to the Pennsylvania Supreme Court but that request was declined.¹⁴

Bey then filed this petition for habeas corpus relief, alleging, among other things, that his Sixth Amendment right to counsel was violated by his trial counsel's failure to object to the "may not be received with caution" language of the Kloiber instruction. Bey also argues that his PCRA counsel's failure to raise his ineffective assistance of trial counsel claim on collateral review amounted to a Sixth Amendment violation that excuses any procedural default at the PCRA appeal level.

The District Court adopted the Magistrate Judge's recommendation that Bey's claims be rejected.¹⁵ The District Court held generally that to the extent that Bey's ineffective assistance claims were not procedurally defaulted, Bey could not show prejudice because "there was overwhelming evidence of guilt."¹⁶ We thereafter certified the following two issues for appeal: (1) Whether Bey's trial attorney's assistance was ineffective for failing to object to a faulty Kloiber instruction and whether any procedural default of this issue should be excused; (2) Whether Bey's trial attorney rendered ineffective assistance in failing to object on proper grounds to the...