                                      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: February 12, 2019)


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 vacate the Order


1
    566 U.S. 1 (2012).




                               3
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 ricocheted bullet fired by
Workman, was “much more immediately fatal,”2 but the other
bullet (fired by Moses) “certainly [could have] cause[d] death,”
depending “upon the time between the shooting or the time
he’s shot and the time he gets to the hospital and how quickly
they can do something about it.”3 In other words, Lieberman

2
    App. at 196.
3
    Id.




                                 4
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. Workman’s counsel also
requested that the jury be instructed on voluntary and
involuntary manslaughter and defense of others. 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


5
    App. at 265.




                                    6
              and he doesn’t know where the
              ricochet shot comes from . . . at
              that given point you must conclude
              that they have not proved their case
              beyond a reasonable doubt
              because the doctor’s testimony is
              absolutely incredulous.6

In his closing remarks, counsel did not mention Workman’s
intent to kill or to defend Hunt, despite requesting instructions
on involuntary and voluntary manslaughter as well as defense
of others.

       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


6
  App. at 275.
7
  42 Pa. Cons. Stat. § 9541, et seq.
8
  App. at 329.




                                7
       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
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


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).




                                8
decisions through out [sic] the proceedings.”12 He alleged in
his petition that he included this in his initial post-conviction
motion, but his appointed post-conviction counsel “did not
brief it to the courts.”13 He did not specifically allege that he
told post-conviction counsel of this claim in his petition. He
did, however, specifically allege that, with regard to this claim,
the Commonwealth failed to prove he killed Hunt. Further, in
his reply to Respondents’ Answer to Workman’s habeas
petition, Workman stated:

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

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

       The petition was referred to a Magistrate Judge, who
issued a Report and Recommendation that the petition be
dismissed. The Magistrate Judge concluded that Workman’s
claims were without merit. In his objections to the Report and


12
   App. at 355.
13
   Id.
14
   App. at 442 (emphasis added).
15
   Id.




                                9
Recommendation, Workman stated that his trial counsel’s
conduct led him to deny a plea agreement offered by the
Commonwealth of between ten and twenty years’
imprisonment. Moreover, Workman also stated that but for
trial counsel’s statement that he could not be convicted, he
would have testified in his own defense.

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


16
     App. at 23.




                                10
Court dismissed the petition, and Workman applied for a
certificate of appealability.

        E.   Proceedings Before This Court

      We granted a certificate of appealability in October
2016. In January 2018, we amended the certificate of
appealability sua sponte. The amended certificate states, in
full:
              The foregoing request for a
              certificate of appealability is
              granted as to Workman’s claim
              that trial counsel rendered
              ineffective assistance of counsel
              when he gave erroneous advice
              that Workman could not be
              convicted and thus failed to
              present a cogent defense strategy
              at trial. Jurists of reason might
              well agree that this claim is
              procedurally defaulted, as it was
              not presented to the Superior Court
              and Pennsylvania courts would
              now refuse to consider the claim in
              a new Post Conviction Relief Act
              (“PCRA”) petition. See 42 Pa.
              C.S. § 9545(b); Slack v. McDaniel,
              529 U.S. 473, 484 (2000).
              However, “[w]here, under state
              law, claims of ineffective
              assistance of trial counsel must be
              raised in an initial-review
              collateral proceeding, a procedural




                            11
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.




                  12
              Notably, jurists of reason would
              agree that evidence was sufficient
              to      support       Workman’s
              convictions. Jackson v. Virginia,
              443 U.S. 307, 319 (1979).

II.    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


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)).




                                13
standards of Strickland v. Washington.”20 We explain these
requirements in turn.

                   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


20
   Id.
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.




                               14
deprive the defendant of a fair trial.”25 This is an exacting
standard,26 reflecting the reluctance of the courts to second-
guess strategic decisions made by counsel.

                     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


25
   Id.
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
requirement that “counsel’s representation fell below an
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 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 [tactical] 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.

           D.   The Ineffective Assistance 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



55
     Id.
56
     Id.




                               25
consider the claim on the merits.”57 Our review of Workman’s
claim for ineffective assistance of trial counsel proceeds under
the two prongs of Strickland v. Washington,58 which require
Workman to show both that “counsel’s performance was
deficient” and that he was prejudiced as a result.59

       Workman’s trial counsel’s performance was deficient
under Strickland even without considering allegations of
defective advice and purported plea agreements. To establish
deficient performance, a “defendant must show that counsel’s
representation fell below an objective standard of
reasonableness.”60 However, “to eliminate the distorting
effects of hindsight . . . . a court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.’”61   Nonetheless, “[w]here the deficiencies in
counsel’s performance are severe and cannot be characterized
as the product of strategic judgment, ineffectiveness may be
clear.”62 Ultimately, “[t]he relevant question is not whether

57
   Bey, 856 F.3d at 236 (citing Bronshtein v. Horn, 404 F.3d
700, 710 n.4, 715 (3d Cir. 2005)).
58
   466 U.S. 668 (1984).
59
   Id. at 687. Although the Court here conducts its own
analysis under Strickland, the Commonwealth concedes in its
Supplement to Petition for Rehearing and Rehearing En Banc
that relief under Strickland is proper.
60
   Id. at 688.
61
   Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).
62
   United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)




                              26
counsel’s choices were strategic, but whether they were
reasonable.”63

       The record is clear that counsel’s performance was
deficient. 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 ricocheted bullet fired by
Workman, trial counsel argued that Lieberman possessed
“unmitigated gall.”64 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 Lieberman’s
testimony 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
the role of an advocate.’”65 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

63
   Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).
64
   App. at 275.
65
   United States v. Cronic, 466 U.S. 648, 656 (1984) (quoting
Anders v. California, 386 U.S. 738, 743 (1967)).




                               27
willfully neglected this when faced with Lieberman’s
testimony. No sound strategy would support counsel’s
choices,66 and counsel’s performance falls below an objective
standard of reasonable performance.67

       Under Strickland, this deficient performance must be
paired with specific prejudice—a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”68 A “reasonable
probability is a probability sufficient to undermine confidence
in the outcome.”69 Counsel’s failure in this case prejudiced
Workman. Counsel failed to present a case on behalf of his
client and, when cross-examining the Commonwealth’s
witnesses, failed to modify his theory of the case to account for
the evidence presented by the Commonwealth. Workman’s
counsel wholly failed to rebut the Commonwealth’s evidence,

66
   Cf. Lewis v. Horn, 581 F.3d 92, 114 (3d Cir. 2009); Thomas
v. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (“In cases in which
the record does not explicitly disclose trial counsel’s actual
strategy or lack thereof (either due to lack of diligence on the
part of the petitioner or due to the unavailability of counsel),
the presumption may only be rebutted through a showing that
no sound strategy posited by the Commonwealth could have
supported the conduct.”).
67
   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.
68
   Strickland v. Washington, 466 U.S. 668, 694 (1984).
69
   Id.




                               28
instead stating in his closing statement that Lieberman’s
testimony was supported only by “unmitigated gall.” Counsel
also requested jury instructions on involuntary and voluntary
manslaughter and defense of others, in an effort to establish
that Workman acted in defense of Hunt. Counsel, however,
did nothing to support a conviction for those lesser offenses.
Although the Commonwealth mounted a strong case against
Workman, he is required here only to show that but for
counsel’s unprofessional errors there is a reasonable
probability that the outcome of the proceeding would have
been different. He has met that burden.

        As a result, we hold that Workman’s trial counsel was
constitutionally ineffective. Workman is entitled to habeas
relief under 28 U.S.C. § 2254.

III.   Conclusion

       For the foregoing reasons, we will vacate the order of
the District Court and remand with instructions to grant a
conditional writ of habeas corpus.




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