                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                    No. 15-3365
                                    ___________
                                  MARK WHITAKER,
                                            Appellant

                                            v.

                  SUPERINTENDENT COAL TOWNSHIP SCI;
        THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
    THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
                   ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civ. Action No. 2-14-cv-2321)
                     District Judge: Honorable Edward G. Smith
                     ____________________________________

                                Argued: October 3, 2017

      Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT, District Judge 

                            (Opinion filed: January 24, 2018)


Will W. Sachse, Esquire (Argued)1
Katherine U. Davis, Esquire
Dechert LLP
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104


  The Honorable Gerald J. Pappert, District Judge of the Eastern District of Pennsylvania,
sitting by designation.
1
  We thank Appellant’s counsel and his firm for accepting the pro bono appointment and
for their very able representation. Lawyers who act pro bono provide the highest service
that the bar can offer.
Jacob Boyer
University of Pennsylvania School of Law
3400 Chestnut Street
Philadelphia, PA 19104

                                   Counsel for Appellant

John W. Goldsborough, Esquire (Argued)
Max C. Kaufman, Esquire
Susan E. Affronti, Esquire
Ronald Eisenberg, Esquire
Kathleen E. Martin, Esquire
R. Seth Williams, Esquire
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

                                   Counsel for Appellees

                                       ___________

                                        OPINION
                                        __________
PAPPERT, District Judge.

       Appellant Mark Whitaker was convicted and sentenced to life in prison for his role

in the robbery of a bar in Philadelphia and the murder of one of its bartenders. His direct

appeals were unsuccessful as were his efforts under Pennsylvania’s Post-Conviction

Relief Act. He filed a pro se habeas petition raising several claims, including that his

rights under the Sixth Amendment’s Confrontation Clause were violated and that he was

denied effective assistance of counsel at his trial. The Magistrate Judge recommended

the denial of Whitaker’s petition in its entirety and the District Court adopted that

recommendation. While we conclude that the Confrontation Clause claim was untimely



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
and will affirm its denial, we will vacate the part of the District Court’s Order denying

the ineffective assistance claim and remand that claim so that the District Court can

conduct an evidentiary hearing consistent with this Opinion.

                                             I

       Shortly after 7 p.m. on January 26, 1999, Donna Mestichelli, the daytime

bartender at Happy Days Bar in Philadelphia, was completing her shift. (J.A. 86, 411.)

Mestichelli and the bartender relieving her, Mario Lim, were totaling the day’s cash

receipts, which they then placed into a bag under the bar. (J.A. 86.) Mestichelli then

remained in the bar with her boyfriend Thomas Ceneviva and her brother Thomas

Zingani. (Id.)

       Just before Mestichelli finished work for the day, Whitaker, Abdul Lee Stewart

and Saleem Shakuur entered the bar. (Id.) Whitaker subsequently left the bar through a

side door, only to reenter through the front door and hold two customers at gunpoint.

(Id.) Stewart, who also had a gun, went behind the bar to collect the cash and in doing

so, shot and killed Lim. Shakuur, who was holding Mestichelli, Zingani and Ceneviva at

gunpoint, shot Zingani, paralyzing him. (Id.) After taking the money, the three robbers

fled. (Id.)

       Philadelphia police interviewed Ceneviva and Mestichelli shortly after the

robbery. Ceneviva gave two statements, saying in both that there were two robbers,

neither of whom he could identify. (J.A. 487.) Mestichelli said that there were three

robbers, none of whom she could identify. (J.A. 416, 423–26.) Ceneviva was

interviewed two more times in the year following the robbery, and at some point

                                             3
identified Stewart and Shakuur, who were subsequently arrested, as the two robbers.

(J.A. 124, 502, 505–06.) While in custody, Stewart wrote and videotaped a confession

describing his involvement in the robbery along with Shakuur and Whitaker’s

participation. (J.A. 129–131.) Whitaker was eventually arrested and charged with

second-degree murder, robbery, criminal conspiracy and related offenses. (J.A. 126, 87,

598–99.)

       Shakuur was tried first. Ceneviva, at that point in jail in Florida for attempted

armed robbery, was brought to Pennsylvania to testify against Shakuur. Before

testifying, he gave a fifth statement to the police that differed from those he gave

immediately after the robbery and the subsequent year. For the first time, he said there

was a third robber, and that Whitaker was that person. (J.A. 492–96.)

       After testifying against Shakuur but before being returned to Florida, Ceneviva

was placed in a holding cell at Curran-Fromhold Correctional Facility. (J.A. 491–92.)

While in the cell, Ceneviva saw Shakuur being escorted into the holding area and placed

in a nearby cell. (J.A. 492.) A conversation began between Shakuur and another man in

a different cell, whom Ceneviva identified as Whitaker through a reflection in the glass

and after walking past his cell to get a drink of water. (J.A. 491.) Ceneviva overheard

and recorded details from the conversation, including Whitaker’s name, a phone number,

and Whitaker’s instruction to Shakuur to “tell them I didn’t know anything about this.”

(J.A. 491–95.)

       Whitaker and Stewart were tried together. (J.A. 87–88.) Before trial, Whitaker’s

counsel filed motions to prohibit the Commonwealth from introducing Stewart’s

                                              4
confession against Whitaker and to preclude Ceneviva from testifying about the

conversation he overheard between Whitaker and Shakuur. (J.A. 87.) The trial court

denied the motions, but ordered Stewart’s confession redacted in an effort to comply with

Bruton v. United States, 391 U.S. 123 (1968), replacing Whitaker’s name in the

confession with “the other guy.” (Id.)

       At trial, neither Whitaker nor Stewart testified but the prosecution introduced

portions of Stewart’s redacted confession. Over counsel’s objection, Mestichelli

identified Whitaker for the first time in court, though nearly five years had passed since

the robbery.2 (J.A. 421, 426–30.) Counsel cross-examined Mestichelli, highlighting

failings in her memory and her prior inability to identify Whitaker, including in a

photograph. (J.A. 426.) Ceneviva testified that Whitaker was the third robber and also

described the conversation he overheard between Whitaker and Shakuur in jail. (J.A.

490–96.) Counsel cross-examined Ceneviva, pointing out inconsistencies between his

trial testimony and prior statements to police. (J.A. 502–512.) Philadelphia Police

Detective Stephen Vivarina also testified and confirmed that the phone number Ceneviva

wrote down while listening to the conversation between Whitaker and Shakuur was

registered to Whitaker’s brother and sister, Paul and Karen Whitaker; Whitaker had listed

Paul and Karen as his siblings when filling out paperwork following his arrest. (J.A.

576–77.)


2
       At sidebar, Whitaker’s lawyer objected and moved for a mistrial because
Mestichelli had not been previously named by the prosecution as someone who could
identify Whitaker. (J.A. 418.)


                                             5
       The prosecutor referred to Stewart’s confession a number of times in his closing

argument. He noted that Stewart’s confession corroborated Ceneviva’s testimony

because both identified a third robber who had a gun. (J.A. 749–50.) The prosecutor also

stated that “Mark Whitaker participated in this and stayed from beginning to end and left

with these men and shared in the proceeds….” (J.A. 765.) Whitaker’s attorney objected

to the closing argument on seven separate occasions, but did not object to the mention of

Whitaker’s participation, which effectively identified Whitaker as “the other guy.” 3

During his closing argument, Whitaker’s attorney argued that there was no evidence of

Whitaker’s guilt other than the testimony of Mestichelli and Ceneviva, highlighted

inconsistencies in their testimony, Mestichelli’s prior inability to identify Whitaker, and

pointed out Ceneviva’s failure to mention or identify a third robber until Shakuur’s trial.

(J.A. 632–43.)

       The court instructed the jury, inter alia, that the Commonwealth had the burden to

prove each defendant guilty of every element of the crimes charged, that each defendant’s

guilt should be considered separately, that the jurors should consider Stewart’s confession

only against him and not Whitaker, and that they should assess the truthfulness and



3
        Counsel objected to: (1) a statement that Whitaker and Stewart were neighbors,
(J.A. 702); (2) the comment that Mestichelli was previously unable to identify Whitaker
in a photo line-up because the people in the photos all look the same, (J.A. 720); (3) a
comment about a hearing challenging Ceneviva’s identification of Whitaker, (J.A. 732);
(4) a second statement that Whitaker and Stewart were neighbors, (J.A. 737); (5) a
comment about Ceneviva’s testimony recounting the size of the bar, (J.A. 743); (6) the
reading to the jury of Corrections Officer Nolan’s statement that Ceneviva identified
Whitaker after walking past his cell, (J.A. 747); and (7) the statement that the jury was to
infer Shakuur did not want Whitaker implicated in the crime after Shakuur was arrested
and being tried, (J.A. 757).
                                              6
accuracy of each witness’s testimony and decide whether to believe all, part or none of

that testimony. (J.A. 774–80.) The court also specifically instructed the jury to consider

Mestichelli’s testimony with caution based on her prior failure to identify Whitaker.

(J.A. 795.) The jury found Whitaker guilty of second-degree murder, robbery, criminal

conspiracy, possessing instruments of a crime, and aggravated assault, and he was

sentenced to life imprisonment. (J.A. 85, 88.)

                                             II

       Whitaker appealed the verdict to the Superior Court of Pennsylvania, arguing that

the introduction of Stewart’s redacted statement violated his Confrontation Clause rights

under Bruton, and that his lawyer provided ineffective assistance when he failed to object

to the prosecutor’s “unmasking” of Whitaker as “the other guy.” The Superior Court

denied Whitaker’s Bruton claim and dismissed his ineffective assistance claim without

prejudice so that the claim could be presented on collateral review. (J.A. 85–103.)

       The following year, Whitaker filed for collateral review under Pennsylvania’s

Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541–46, asserting

ineffective assistance of counsel, again based on his lawyer’s failure to object to the

prosecutor’s identification of Whitaker as “the other guy” in Stewart’s confession. (J.A.

104.) The PCRA court dismissed the claim without a hearing. (J.A. 107–08.) On

appeal, the Superior Court dismissed the ineffectiveness claim as meritless, relying on the

Pennsylvania Supreme Court’s decision in Commonwealth v. Brown, 592 Pa. 376 (2007)

(Brown I), which held that the United States Supreme Court had not extended the reach

of the Confrontation Clause to non-evidentiary commentary by counsel. (J.A. 114–15.)

                                              7
       On April 16, 2014, Whitaker filed in the District Court a timely pro se habeas

petition. (ECF No. 1.) He raised seven claims, including ineffective assistance of

counsel for failing to object or seek a mistrial based on the prosecution’s identification of

him as “the other guy.” (ECF No. 1 at 13–14.) The Commonwealth responded to the

petition on November 19, 2014. (ECF No. 18.) Whitaker replied on December 29, 2014,

and included for the first time an eighth claim: that admitting Stewart’s confession at trial

violated Whitaker’s Confrontation Clause rights under Bruton. (ECF No. 22 at 17–20.)

       The Magistrate Judge recommended the denial of Whitaker’s petition in its

entirety. (J.A. 39–45, 69–72.) The Report and Recommendation did not reach the merits

of Whitaker’s Bruton claim, concluding that the claim was time-barred by the one-year

statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”). (J.A. 41–42.) The Report also stated that Whitaker’s Bruton claim

did not relate back to his timely ineffective assistance claim. (J.A. 43.)

       As to the ineffective assistance claim, the Magistrate Judge concluded that the

Superior Court’s reliance on Brown I was not an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984) because there had been no underlying Bruton violation

by the prosecutor’s comments, and thus “any attempt to move for a mistrial would have

been unsuccessful.” (J.A. 71.) The District Court adopted the Report and

Recommendation in its entirety and denied Whitaker’s petition. (J.A. 17–18.) Whitaker

filed a timely notice of appeal. (J.A. 1).




                                              8
                                             III


       The District Court had subject matter jurisdiction over Whitaker’s habeas petition

under 28 U.S.C. §§ 2241 and 2254. We have jurisdiction over this appeal from the

District Court’s order denying the petition pursuant to 28 U.S.C. §§ 1291 and 2253. We

granted a certificate of appealability on two claims: (1) that the admission of Stewart’s

redacted confession violated Whitaker’s rights under the Confrontation Clause of the

Sixth Amendment and Bruton; and (2) that Whitaker’s trial counsel rendered ineffective

assistance by failing to object or seek a mistrial when the prosecutor, in his closing

argument, identified Whitaker as “the other guy” in Stewart’s confession. “Our review of

the District Court’s legal conclusions is…plenary, and we evaluate ‘the state courts’

determinations under the same standard that the District Court was required to apply.’”

Williams v. Beard, 637 F.3d 195, 204 (3d Cir. 2011) (quoting Lewis v. Horn,581 F.3d 92,

100 (3d Cir. 2009)).

                                             A


       We first address Whitaker’s Bruton claim, which he did not assert until he filed his

Reply on December 23, 2014. (J.A. 39–45.) AEDPA imposes a strict one-year time

limitation on the filing of a habeas petition. Federal Rule of Civil Procedure 15(c)(1)(B),

however, states that an amendment of a pleading relates back to the date of the original

pleading when it “arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). “So long

as the original and amended petitions state claims that are tied to a common core of

                                              9
operative facts, relation back will be in order.” Mayle v. Felix, 545 U.S. 644, 664

(2005); see also Hodge v. United States, 554 F.3d 372, 378 (3d Cir. 2009). An untimely

claim “does not relate back (and thereby escape AEDPA's one-year time limit) when it

asserts a new ground for relief supported by facts that differ in both time and type from

those the original pleading set forth.” Mayle, 545 U.S. at 650 (parenthetical in original).

We review “the District Court’s interpretation of the relation back doctrine de novo.”

Hodge, 554 F.3d at 377 (citing United Auto. Workers Local 259 Social Sec. Dept. v.

Metro Auto. Ctr., 501 F.3d 283, 286 (3d Cir. 2007) (conducting plenary review of district

court’s interpretation of procedural rules)).

       The one-year limitations period governing Whitaker’s habeas petition expired on

August 4, 2014.4 Though Whitaker timely filed his petition on April 16, 2014, he did not

assert his Bruton claim until December 23, 2014, 141 days after the expiration of the

limitations period. (J.A. 42.) Whitaker argues that the Bruton claim relates back to his

timely ineffective assistance of counsel claim because they are both based on Stewart’s

confession. Pet’r’s Br. 20. Whitaker’s Bruton claim, however, fails to relate back under




4
       Whitaker was convicted on October 29, 2003. Following the direct appeal
process, the Pennsylvania Supreme Court denied allocatur on December 21, 2005. (J.A.
40.) His conviction became final ninety days later, on March 21, 2006, when the time for
seeking certiorari with the United States Supreme Court expired. (Id.) This triggered
AEDPA’s one-year statute of limitations.
       On October 26, 2006—219 days into the one year period—Whitaker filed his first
PCRA petition, which tolled AEDPA’s statute. Following the direct appeal process, the
Pennsylvania Supreme Court denied allocatur on March 11, 2014, and AEDPA’s one
year limitation period began to run again, leaving Whitaker with 146 days, until August
4, 2014, to file his habeas petition. (J.A. 41–42.)
                                                10
Federal Rule of Civil Procedure 15(c) because the claims rely on facts that differ in both

time and type, and thus fail to share a common core of operative facts.

       As to time, Whitaker’s ineffective assistance claim concerns his counsel’s conduct

at trial—specifically, his lawyer’s failure to object to that part of the prosecutor’s closing

where Whitaker was effectively revealed to be “the other guy” in Stewart’s confession—

and whether Whitaker’s constitutional rights were violated as a result of his lawyer’s

inaction. In contrast, his untimely Bruton claim focuses on what happened before trial—

whether the trial court improperly admitted Stewart’s confession using “the other guy” in

place of Whitaker’s name.

       The facts supporting both claims also differ in type. Whitaker’s untimely claim

does not seek to clarify his timely ineffective assistance claim; it purports to introduce a

new theory into the case. In his habeas petition, Whitaker seeks relief due to ineffective

assistance of counsel solely because his lawyer failed to object or seek a mistrial based on

the prosecutor’s statements identifying Whitaker as “the other guy.” While both claims

involve Stewart’s confession, Whitaker’s timely ineffective assistance claim challenges

the performance of trial counsel, whereas the untimely Bruton claim pertains to the trial

court’s admission of Stewart’s redacted confession. Whitaker himself recognizes that the

facts supporting these two claims differ in type: he states that “[o]ne claim on appeal

alleges the descriptor was itself insufficient to prevent a Bruton violation, whereas the

other alleges counsel was deficient for failing to request a mistrial when it became

apparent during closing that the prosecution had undone any protection otherwise

afforded by the alteration.” Pet’r’s Br. 21–22.

                                              11
       Whitaker was required to set forth all grounds for relief in his petition to avoid

“be[ing] barred from presenting additional grounds at a later date.” Pet. for Writ of

Habeas Corpus Instructions at 8; see also Mayle, 545 U.S. at 655–56 (model habeas form

includes cautionary instruction to include all grounds for relief). Whitaker could have

included the details surrounding his untimely Bruton claim when he filed his ineffective

assistance claim, but failed to do so. Because Whitaker’s untimely Bruton claim relies on

facts that differ in time and type from his ineffective assistance claim, the claims do not

share a common core of operative facts, and the Bruton claim does not relate back to the

ineffective assistance of counsel claim.

                                             B


       We turn next to Whitaker’s claim that he was denied effective assistance of

counsel when his lawyer failed to object or seek a mistrial after the prosecutor revealed

that Whitaker was “the other guy” during closing argument, a claim the Superior Court

rejected. AEDPA requires a deferential standard of review of the state court’s decision.

Under the statute, a federal court “may not grant a habeas corpus application ‘with

respect to any claim that was adjudicated on the merits in State court proceedings,’ 28

U.S.C. § 2254(d), unless the state court’s decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States….’” Berghuis v. Thompkins, 560 U.S. 370, 380

(2010) (quoting 28 U.S.C. § 2254(d)(1)). A state court ruling “is considered an

‘unreasonable application’ if the state court unreasonably applies the correct legal rule to


                                             12
the particular facts, unreasonably extends a legal principle to a new context, or

unreasonably refuses to extend the principle to a new context where it should apply.”

McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009). When we review an

ineffectiveness claim under § 2254(d)(1), as here, we must “determine what arguments or

theories supported…the state court’s decision,” and then “ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent with

the holding in a prior decision” of the Supreme Court. Harrington v. Richter, 562 U.S.

86, 102 (2011).

       A determination that a state court’s analysis is contrary to or an unreasonable

application of clearly established law is not alone sufficient to grant habeas relief. See

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 849 (3d Cir. 2017). When a

federal court reviewing a habeas petition concludes “that the state court analyzed the

petitioner’s claim in a manner that contravenes clearly established federal law, it then

must proceed to review the merits of the claim de novo to evaluate if a constitutional

violation occurred.” Id. (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)).

       After applying AEDPA’s deferential standard of review, we conclude that the

Superior Court’s denial of Whitaker’s ineffective assistance claim was an unreasonable

application of clearly established federal law. Despite correctly identifying Strickland as

controlling, the Superior Court unreasonably applied that standard by concluding that any

ineffectiveness claim was meritless because there had been no Bruton violation.

       Under Bruton, “a defendant is deprived of his rights under the Sixth Amendment’s

Confrontation Clause when the non-testifying co-defendant’s statement naming him a

                                             13
participant in the crime is introduced at their joint trial….” Vazquez v. Wilson, 550 F.3d

270, 279 (3d Cir. 2008). At Whitaker’s trial, the prosecutor did just that when he

identified Whitaker as “the other guy” in Stewart’s confession during closing argument.

In denying Whitaker’s ineffectiveness claim, the Superior Court relied on the

Pennsylvania Supreme Court’s decision in Brown I, which held that the United States

Supreme Court had not extended the reach of the Confrontation Clause to non-

evidentiary commentary by counsel. 592 Pa. at 397. In Brown v. Superintendent Greene

SCI (Brown II) however, we rejected that reasoning and held that Bruton extends to

closing argument, protecting a defendant from having a non-testifying co-defendant’s

statement introduced at trial which names him as a participant in the crime. 834 F.3d

506, 517 (3d Cir. 2016).5 In so holding, we relied on Bruton, Frazier v. Cupp, 394 U.S.

731 (1969), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S.

185 (1998), all of which predated Whitaker’s trial. No fairminded jurist could disagree

that Brown I—the basis for the Superior Court’s denial of Whitaker’s ineffective

assistance claim—is inconsistent with those Supreme Court precedents.

       Because Whitaker’s Sixth Amendment rights were violated when the prosecutor

revealed him to be “the other guy” in Stewart’s confession, an objection under Bruton by

trial counsel would have been meritorious. The Superior Court’s denial of Whitaker’s



5
       As the Supreme Court instructed, “an appellate panel may, in accordance with its
usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it has
already held that the particular point in issue is clearly established by Supreme Court
precedent….” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

                                            14
ineffectiveness claim on the basis that there was no Bruton violation is therefore not

entitled to AEDPA’s deferential standard, and his claim must be reviewed de novo.

       The Supreme Court’s two-part test in Strickland governs claims for ineffective

assistance of counsel. “To succeed on such a claim, the petitioner must demonstrate (1)

that counsel’s performance was deficient, in that it fell below an objective standard of

reasonableness, and (2) that the petitioner suffered prejudice as a result of the

deficiency.” Blystone v. Horn, 664 F.3d 397, 418 (3d Cir. 2011) (citing Strickland, 466

U.S. at 687)). “Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010). With respect to Strickland’s first prong, there is a

“strong presumption” that counsel’s performance was not deficient. Jermyn v. Horn, 266

F.3d 257, 282 (3d Cir. 2001). “[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466

U.S. at 690.

       Here, the record is silent concerning whether counsel had a strategic reason for not

objecting to the “unmasking” of Whitaker, as the record contains no clear explanation as

to why trial counsel chose not to object to the prosecutor’s comments during closing

arguments. Counsel objected multiple times during the prosecutor’s closing argument

but did not object during the statement about Whitaker sharing the proceeds. Counsel

was clearly attentive during the summations but the record is silent concerning why

counsel did not object. Thus, we will remand for the development of an evidentiary

record on this subject and other findings concerning Strickland that the District Court

deems warranted.

                                             15
                                             IV

       Whitaker’s untimely Bruton claim fails to relate back, but the Superior Court

unreasonably applied Strickland. We will affirm the District Court’s decision as to

Whitaker’s Bruton claim but vacate the District Court’s judgment on Whitaker’s

ineffective assistance of counsel claim. We will remand that claim for an evidentiary

hearing to investigate trial counsel’s reasons for not objecting to the prosecutor’s

identification of Whitaker in his closing argument and to make additional findings on his

ineffective assistance of counsel claim as warranted.




                                             16
