                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

           No. 15-1598 & 15-2673
              _____________

          VINCENT WILKERSON,
                    Appellant in No. 15-2673


                      v.

   SUPERINTENDENT FAYETTE SCI;
   ATTORNEY GENERAL PENNSYLVANIA;
 DISTRICT ATTORNEY PHILADELPHIA,
                  Appellants in No. 15-1598
           _______________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
     (District Court No. 2:12-cv-02190)
  Honorable Paul S. Diamond, District Judge
              _______________

            Argued: March 8, 2017
  Before: HARDIMAN and KRAUSE, Circuit Judges, and
            STENGEL, Chief District Judge.


                  (Filed: September 8, 2017)
                      _______________

Max C. Kaufman        [Argued]
Susan E. Affronti
Ronald Eisenberg
George D. Mosee, Jr.
Anne Palmer
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
          Counsel for Superintendent Fayette SCI,
          Attorney General Pennsylvania,
         and District Attorney Philadelphia

Maria K. Pulzetti      [Argued]
Brett G. Sweitzer
Leigh M. Skipper
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Counsel for Vincent Wilkerson


       
          The Honorable Lawrence F. Stengel, United States
District Judge for the Eastern District of Pennsylvania, sitting
by designation.




                               2
                       _______________

                 OPINION OF THE COURT
                     _______________


KRAUSE, Circuit Judge.

        Following a trial in which the evidence reflected that
Appellee/Cross-Appellant Vincent Wilkerson shot his victim
in the chest and beat the victim with a gun, a Pennsylvania jury
convicted Wilkerson of both attempted murder and aggravated
assault. In his instant petition for habeas corpus, Wilkerson
contends that these convictions violate the Double Jeopardy
Clause because the jury instructions permitted the jury to
convict on both offenses based on the shooting alone.
Wilkerson also raises a challenge under Apprendi v. New
Jersey, 530 U.S. 466 (2000), to the trial judge’s imposition of
an enhanced sentence for attempted murder based on a finding
by the judge, but not the jury, that the victim suffered serious
bodily injury and a related claim that his counsel was
ineffective for failing to object to this finding at sentencing or
to raise the issue on direct appeal. Because Wilkerson has not
demonstrated that the state court’s rejection of his double
jeopardy claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law,” 28 U.S.C
§ 2254(d)(1), he cannot meet the high bar necessary to warrant
habeas relief, and the District Court erred in granting his
petition on that claim. Further, because Wilkerson did not
timely raise his Apprendi claim or related ineffective assistance
claims, he is no more entitled to relief on those grounds.




                                3
Accordingly, we will affirm in part, reverse in part, and remand
for proceedings consistent with this opinion.



 I.    Factual Background

        All charges against Wilkerson arose from a violent
altercation outside of a night club in 1997. As reflected in the
trial testimony, after Wilkerson approached a woman outside
of the club and began talking to her and pulling on her clothing,
a friend of hers, Nasir Hill, who was also leaving the night club,
walked up to speak with her, prompting a heated verbal
exchange in which Wilkerson accused Hill of being
disrespectful for interrupting his conversation. Although the
argument ended quickly and the two men separated, Wilkerson
returned moments later, knocked Hill unconscious with a
punch to the face, and then, after positioning Hill’s body on the
hood of a parked car, struck him in the head with a gun. With
Hill still lying unconscious, Wilkerson stepped back two-to-
four feet and shot Hill in the chest before fleeing the scene.

        Wilkerson was charged with multiple crimes resulting
from this incident including, among other things, attempted
murder and aggravated assault. At the conclusion of his trial,
the judge instructed the jury as to the various counts. As part
of the instructions for the charge of attempted murder, the trial
judge told the jury that a conviction would require that it find
Wilkerson “did a certain act” and “[i]n this case that act is
alleged to be a shooting . . . of [Hill],” App. 586. With respect
to the crime of aggravated assault, the trial judge instructed the
jury that, in order to convict, it would have to find “that
[Wilkerson] caused or attempted to cause serious bodily injury
to [Hill].” App. 587. Of relevance to this appeal, the trial judge




                                4
did not specify that Wilkerson’s shooting Hill could not, in
addition to serving as the basis for an attempted murder
conviction, also serve as the “attempt[] to cause serious bodily
injury” for the aggravated assault conviction, and, after
deliberations, the jury returned a guilty verdict on both counts
on a general verdict form that likewise did not specify whether
the “serious bodily injury” finding underlying the aggravated
assault conviction related to the shooting or the assault that
preceded it.

       Wilkerson was sentenced to ten-to-twenty years of
incarceration on the aggravated assault conviction and twenty-
to-forty years on the attempted murder conviction to be served
consecutively.1 That sentence for attempted murder reflected
an enhancement, allowable under Pennsylvania law only
where there has been a finding of “serious bodily injury,” 18
Pa. Cons. Stat. § 1102(c)—a finding that here was made only
by the judge at sentencing and had not been submitted to the
jury.

II.    Procedural History

       A.     Direct Appeal and Collateral Review in
              Pennsylvania State Court



       1
           Wilkerson was originally sentenced to life
imprisonment without parole under Pennsylvania’s “three
strikes” law, 42 Pa. Cons. Stat. § 9714(a)(2)(1982 & Supp.
1997). That sentence was vacated after the Pennsylvania
Supreme Court declared § 9714 unconstitutional, and the
instant sentence was imposed.




                               5
        Wilkerson appealed to the Pennsylvania Superior Court
and argued that his convictions for attempted murder and
aggravated assault should have merged for sentencing
purposes. In making this argument, Wilkerson relied on
Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), where
the Pennsylvania Supreme Court had held that aggravated
assault is a lesser included offense2 of attempted murder, so
that if the convictions on both counts are based on the same
criminal act, the sentences for the two crimes “merge” as a
matter of state law. Id. at 24. Thus, Wilkerson asserted,
because the bills of information under which he was charged
and the jury instructions given at his trial reflected that he was
convicted of both attempted murder and aggravated assault on
the basis of a single violent episode, his sentences for the two
crimes should have merged.

       The Superior Court rejected that argument, holding that
Anderson only applies “in those instances where multiple
punishments arise from a single act,” and that Wilkerson’s
convictions stemmed from two separate acts: (1) shooting Hill
in the chest (the attempted murder), and (2) striking Hill with
a gun (the aggravated assault). App. 717-18. According to the
Superior Court, Wilkerson’s challenge therefore was “more
properly characterized as a challenge to the sufficiency of the
evidence underlying the convictions.” App. 718. As it
concluded there was sufficient evidence to support the finding
that Wilkerson was guilty of both criminal acts, the Superior
Court affirmed Wilkerson’s convictions and sentence.


       2
        A lesser included offense is one that “does not require
proof of any additional element beyond those required by the
greater offense.” Government of Virgin Islands v. Bedford,
671 F.2d 758, 765 (3d Cir. 1982).




                                6
      Wilkerson then filed a petition pursuant to
Pennsylvania’s Post-Conviction Relief Act (PCRA), raising a
different claim not relevant to this appeal. The PCRA court
dismissed Wilkerson’s petition, and the Pennsylvania Superior
Court affirmed.

       B.     Federal Habeas Proceedings

        Having been denied relief in state court, Wilkerson filed
a petition for federal habeas relief pursuant to 28 U.S.C § 2254
in the United States District Court for the Eastern District of
Pennsylvania. In that petition, Wilkerson claimed, among
other things, that his convictions for both attempted murder
and aggravated assault on the basis of the same conduct
violated the Double Jeopardy Clause of the Fifth Amendment,
made applicable to the states through the Fourteenth
Amendment. A little over a year after filing his original
petition, Wilkerson filed an “Amended Petition in Support of
Memorandum of Law,” in which he asserted for the first time
that the application of the enhancement to his attempted
murder sentence, reflecting the trial judge’s finding of serious
bodily injury, violated Apprendi because “the element of
serious bodily injury was not made part of the jury instruction
with respect to the charge of attempted murder.” Supp. App.
38.

       Wilkerson’s habeas petition was referred to a
Magistrate Judge who recommended that the District Court
grant relief with respect to Wilkerson’s double jeopardy claim
and deny his petition with respect to all other claims. When
addressing Wilkerson’s Apprendi challenge, the Magistrate
Judge agreed with Wilkerson that an error occurred when he
was sentenced above the twenty-year statutory maximum
without the requisite factual finding by the jury but held that




                               7
this error was harmless and did not warrant habeas relief
because it was “inconceivable that a properly-instructed jury
would not find that Wilkerson created a substantial risk of
Hill’s death.” App. 77. While the Commonwealth filed an
objection to the Magistrate Judge’s double jeopardy
recommendation, Wilkerson did not object on any ground.

        The District Court adopted the Magistrate Judge’s
recommendations in full. With respect to Wilkerson’s double
jeopardy claim, the District Court held that the state court’s
decision to apply a sufficiency of the evidence analysis to
Wilkerson’s merger claim on direct appeal was an
unreasonable application of clearly established federal law.
Reasoning that the proper question for courts to consider when
faced with a challenge to a trial court’s jury instructions is
“whether there is reasonable likelihood that the jury has
applied the challenged instruction in a way that violates the
Constitution,” App. 12 (quoting Estelle v. McGuire, 502 U.S.
62, 72 (1991)), the District Court determined the instructions
here were framed in a way that allowed the jury to conclude
that the shooting could form the basis of both the attempted
murder and aggravated assault convictions. Thus, the District
Court held “there is a ‘reasonable likelihood’ that the jury
applied the trial court’s attempted murder and aggravated
assault instructions in an impermissible manner, and thus
convicted [Wilkerson] of two crimes for a single act” in
violation of the Double Jeopardy Clause. App. 14.

       As for Wilkerson’s Apprendi claim, the District Court
observed that “neither party ha[d] objected” to the Magistrate
Judge’s analysis beyond the double jeopardy claim, including
the Magistrate Judge’s rejection of the sentencing challenge,
and it proceeded to adopt the Report and Recommendation in
full—granting Wilkerson relief on his double jeopardy claim




                              8
and denying relief on his Apprendi claim. This appeal and
cross-appeal followed.



III.   Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C.
§ 2254, and we have jurisdiction under 28 U.S.C. § 2253.
Where, as here, the District Court based its rulings on the
evidence contained in the state court record and did not conduct
an evidentiary hearing or engage in any independent fact-
finding, our review of the District Court’s decision is plenary.
McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993).

        Our review of the state court’s judgment is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which imposes significant procedural and
substantive limitations on the scope of our review. Two such
limitations have particular bearing on this appeal. First, a
petitioner must “ha[ve] exhausted the remedies available in the
courts of the State,” 28 U.S.C. § 2254(b)(1)(A), before seeking
federal habeas relief, and a claim will be deemed unexhausted
if the petitioner “has the right under the law of the State to raise,
by any available procedure, the question presented,” but has
failed to do so, id. § 2254(c). This exhaustion requirement does
not require a habeas petitioner to cite the federal Constitution
“book and verse,” but rather to have “fairly presented” his
federal claim to the state courts. McCandless v. Vaughn, 172
F.3d 255, 261 (3d Cir. 1999) (quoting Picard v. Connor, 404
U.S. 270, 277-78 (1971)). That is, the petitioner must have
“present[ed] a federal claim’s factual and legal substance to the
state courts in a manner that put[] [the state courts] on notice
that a federal claim [was] being asserted.” Id. If a petitioner’s




                                 9
federal claim was not “fairly presented,” and further state-court
review is no longer available under state law, the claim is
“procedurally defaulted . . . and . . . may be entertained in a
federal habeas petition only if there is a basis for excusing the
procedural default.” Wenger v. Frank, 266 F.3d 218, 223-24
(3d Cir. 2001).

        Second, where a state court has rejected a petitioner’s
claim on the merits, AEDPA limits the scope of our substantive
review to whether 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.” 28 U.S.C. § 2254(d)(1). A state court decision is
“contrary to” clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Pazden v. Maurer,
424 F.3d 303, 311 (3d Cir. 2005) (quoting Williams v. Taylor,
529 U.S. 362, 412-13 (2000)). A decision involves an
“unreasonable application” of federal law if “no ‘fairminded
jurist’ could agree with the state court’s decision.” Vickers v.
Superintendent Graterford SCI, 858 F.3d 841, 848 (3d Cir.
2017) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011))
(alteration omitted). If this threshold seems “difficult to meet,”
the Supreme Court has advised that is because “it was meant
to be.” Harrington, 562 U.S. at 102. Thus, we may not grant
relief “simply because we disagree with the state court’s
decision or because we would have reached a different result if
left to our own devices,” Werts v. Vaughn, 228 F.3d 178, 197
(3d Cir. 2000), but only if the state court’s decision “was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for




                               10
fairminded disagreement,” Davis v. Ayala, 135 S. Ct. 2187,
2199 (2015).



IV.    Analysis

        With these standards in mind, we will first address the
Commonwealth’s appeal of the District Court’s grant of habeas
relief on Wilkerson’s double jeopardy claim, and then turn to
Wilkerson’s cross-appeal of the District Court’s denial of
habeas relief on his Apprendi claim.

       A.        Wilkerson’s Double Jeopardy Claim

       The Commonwealth contends that the District Court
made two errors in granting Wilkerson habeas relief on his
double jeopardy claim: first, it should not have reached the
merits because that claim was not raised as a double jeopardy
claim in the state court and thus was unexhausted and
procedurally defaulted; and, second, it did not apply proper
AEDPA deference in its review on the merits. We address
these arguments in turn.

            1.        Procedural Default

       A petitioner seeking § 2254 relief from a Pennsylvania
conviction exhausts his state remedies for a federal claim either
by raising the claim on direct appeal or in a petition for
collateral relief under the PCRA.3 Robinson v. Beard, 762 F.3d

       3
         Although Wilkerson did not seek discretionary review
from the Pennsylvania Supreme Court, we have held that a
petitioner need not seek such relief for his claims to be eligible




                               11
316, 328 (3d Cir. 2014). Here, it is undisputed that Wilkerson
did not explicitly state that he was raising a federal
constitutional claim under the Double Jeopardy Clause in
either of those fora. It is also undisputed, however, that he did
seek relief under Pennsylvania’s merger doctrine on direct
appeal, and the parties’ disagreement centers on whether that
state law merger claim, in the terms he argued it, was sufficient
to “fairly present” his federal double jeopardy claim to the state
court.4



for federal habeas review. Lambert v. Blackwell, 387 F.3d 210,
233 (3d Cir. 2004).
       4
            The Commonwealth also asserts that, even if
Wilkerson’s arguments on his merger claim were sufficient to
present his double jeopardy claim to the state appellate court,
his claim still was not properly exhausted because he did not
first raise them in the trial court. This argument misapprehends
the purpose of the exhaustion and procedural default rules,
which are intended to ensure that habeas petitioners “meet the
State’s procedural requirements for presenting [their] federal
claims” and do not “deprive[] the state courts of an opportunity
to address those claims in the first instance,” Coleman v.
Thompson, 501 U.S. 722, 732 (1991)—not to impose
additional procedural burdens that go beyond those required by
the state courts themselves. Here, because the state appellate
court addressed Wilkerson’s merger claim on the merits,
irrespective of his failure to raise it in the trial court, our focus
for federal habeas purposes is on the decision of the appellate
court. Robinson, 762 F.3d at 328 (federal claims exhausted so
long as they were properly presented “on direct appeal or in a
petition under the PCRA”). Thus, if we agree with Wilkerson




                                 12
       We have held that a state prisoner may “fairly present”
a federal claim to state courts without specifically referencing
the federal Constitution or a federal statute in four ways: “(a)
reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing constitutional
analysis in like fact situations, (c) assertion of the claim in
terms so particular as to call to mind a specific right protected
by the Constitution, and (d) allegation of a pattern of facts that
is well within the mainstream of constitutional litigation.”
McCandless, 172 F.3d at 261-62 (quoting Evans v. Court of
Common Pleas, Delaware Cty., Pa., 959 F.2d 1227, 1232 (3d
Cir. 1992)).5

        In view of the close relationship between
Pennsylvania’s merger doctrine and federal double jeopardy
jurisprudence, and Wilkerson’s citation to Anderson, which
itself relies on Supreme Court jurisprudence, we conclude that
Wilkerson has “assert[ed] [his] claim[s] in terms so particular

that his merger claim put the Superior Court “on notice” that
he was making a federal double jeopardy argument and that the
court rejected that argument, his double jeopardy claim was
properly exhausted. McCandless, 172 F.3d at 261.
       5
         To the extent the Commonwealth implies that the
Supreme Court’s decision in Baldwin v. Reese, 541 U.S. 27, 31
(2004), may have imposed a higher standard for “fair
presentation” than the standard we articulated in McCandless,
our Court has already rejected that very argument. Nara v.
Frank, 488 F.3d 187, 198 n.17. (3d Cir. 2007).




                               13
as to call to mind a specific right protected by the
Constitution,” and thus did fairly present his claim to the
Pennsylvania Superior Court. Id. The Double Jeopardy Clause
of the Fifth Amendment prescribes that “[n]o person shall
be . . . subject for the same offence to be twice put in jeopardy
of life or limb,” U.S. Const. amend. V, and it “protects not only
against a second trial for the same offense, but also against
multiple punishments for the same offense,” Whalen v. United
States, 445 U.S. 684, 688 (1980) (internal quotation marks
omitted). To assess whether two crimes constitute the “same
offense” for double jeopardy purposes, we employ the test
established by the Supreme Court in Blockburger v. United
States, 284 U.S. 299 (1932). That is, “where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Id. at 304. If this
test yields “only one” offense, “cumulative sentences are not
permitted, unless elsewhere specially authorized by Congress.”
Whalen, 445 U.S. at 693.

        In Anderson, the Pennsylvania Supreme Court imported
this federal double jeopardy test into its merger doctrine under
state law. In that case, the petitioner had been convicted of
aggravated assault and attempted murder on the basis of a
single shooting and argued that his sentences should have
“merged.” 650 A.2d at 20-21. When analyzing the petitioner’s
claim, the Pennsylvania Supreme Court held that the analysis
necessary to resolve the defendant’s merger claim was
“identical to the inquiry as to whether the double jeopardy
protection of the Fifth Amendment has been violated.” Id. at
23. The Pennsylvania Supreme Court explained that, when a
defendant is charged with two crimes on the basis of the same




                               14
criminal act, “there is no difference between a double jeopardy
analysis and a merger analysis” because “the operative
consideration in both is whether the elements of the offenses
are the same or different.” Id. And it proceeded to apply the
Blockburger test to evaluate whether aggravated assault and
attempted murder would constitute the “same offense” for
merger purposes, concluding petitioner’s sentence for his
aggravated assault conviction must be vacated because
“aggravated assault is necessarily included within the offense
of attempted murder,” id. at 24.

        Here, Wilkerson argued on direct appeal that his
sentences for attempted murder and aggravated assault should
have been merged because both convictions arose from the
same criminal act and, per Anderson, aggravated assault is a
lesser included offense of attempted murder. Wilkerson
directed the Superior Court to the jury instruction given at his
trial for attempted murder, asserting that by convicting him on
that charge, the jury “[n]ecessarily . . . also found that he
intended to inflict serious bodily harm upon the victim,” and
that to convict him on the aggravated assault charge, the jury
was also only required to find that Wilkerson “caused or
attempted to cause serious bodily injury to . . . the victim.”
App. 730. To reinforce his argument that he was convicted and
sentenced twice for the same criminal act, Wilkerson also cited
to the bills of information under which he was charged and
pointed out that they did not distinguish which facts formed the
basis of his attempted murder charge and which formed the
basis of his aggravated assault charge. Thus, Wilkerson urged,
because both convictions stemmed from the same criminal
conduct and, under Anderson, aggravated assault is a lesser
included offense of attempted murder, “the failure of the [trial]




                               15
court to merge the sentence[] on aggravated assault with the
sentence on attempted murder was error.” App. 733.

       Considering that the Pennsylvania state law doctrine
invoked by Wilkerson is based on Supreme Court case law and
involves an analysis that the Pennsylvania Supreme Court has
described as “identical” to that governing a federal double
jeopardy claim,6 Anderson, 650 A.2d at 23, we are persuaded
that the Superior Court had fair notice of that claim and
rejected it on the merits.7 McCandless, 172 F.3d at 261.



       6
          The Commonwealth contends that the Pennsylvania
Supreme Court misconstrued federal law in Anderson, as the
test it announced for analyzing a state law merger claim is not
“identical” to a federal double jeopardy analysis. This
argument misses the mark, as what is relevant for purposes of
our analysis of fair notice is that Anderson explicitly adopted
the Blockburger test.
       7
          The Commonwealth also urges that Wilkerson’s
merger claim could not have alerted the state court that he was
asserting a federal double jeopardy claim because merger and
double jeopardy claims are subject to different waiver rules
and, when successful, provide different remedies. Accepting
these distinctions as accurate, they are irrelevant to whether
Wilkerson fairly presented his double jeopardy claim in state
court. Waiver is not an issue in this case and, although merger
is a challenge to a defendant’s sentence, Anderson, 650 A.2d
at 21, while double jeopardy is a challenge to the underlying
conviction, Rutledge v. United States, 517 U.S. 292, 301-02
(1996), the remedy that would follow from the finding of a
violation is likewise immaterial to whether the nature of the




                              16
       Having satisfied any threshold concerns as to whether
AEDPA allows us to address Wilkerson’s double jeopardy
claim, we now turn to the merits of that claim to assess whether
the state court’s analysis was “contrary to, or involved an
unreasonable application of, clearly established Federal law,”
28 U.S.C. § 2254(d)(1).

          2.         The Merits

        Before we address the central issue of the parties’
dispute, we take note of two points on which they agree. First,
as set forth in Anderson, aggravated assault is a lesser-included
offense of attempted murder under Pennsylvania law. That
is—if one criminal act served as the basis for both of
Wilkerson’s convictions, he has been punished twice for the
“same offense” in violation of the Double Jeopardy Clause.
See Whalen, 445 U.S. at 692; Anderson, 650 A.2d at 24.
Second, as even Wilkerson seems to acknowledge, based on
the evidence at trial, a properly instructed jury could have
convicted Wilkerson of attempted murder and aggravated
assault on the basis of two distinct criminal acts. In other
words, Wilkerson does not contest that the Commonwealth
adduced sufficient evidence for a reasonable jury to find that
he both shot Hill, supporting the attempted murder conviction,
and beat Hill, supporting the aggravated assault conviction.

      Where the parties part ways, however, is on the
appropriate test to assess whether Wilkerson was legally
convicted of both offenses based on separate criminal acts, or

violation claimed put the state court “on notice that a federal
claim [was] being asserted,” McCandless, 172 F.3d at 261.




                               17
if he was illegally convicted twice on the basis of the shooting
alone. According to the Commonwealth, the proper test is
whether a reasonable jury could have convicted Wilkerson on
both counts, so that a reviewing court need look no further than
the trial evidence to determine, as the Superior Court did,
whether it was sufficient to support both convictions.
Wilkerson, on the other hand, urges that the relevant inquiry is
not whether a reasonable jury could have premised the
convictions on two different acts given the evidence at trial, but
whether the jury in his case actually did so—a question that
requires a reviewing court (1) to look not merely to the
sufficiency of the evidence, but also to the indictment and jury
instructions,8 and (2) to construe any ambiguity as to the basis
of the jury’s conviction in the defendant’s favor. That is,
according to Wilkerson, if it is possible the jury convicted him
twice based on the shooting alone, his multiple convictions
cannot stand.

       On direct appeal, the state court applied the analysis
now advocated by the Commonwealth, treating Wilkerson’s
claim as one of “sufficiency of the evidence,” and holding that
because the evidence at trial could have supported separate
convictions for aggravated assault and attempted murder, there
was no merger or double jeopardy violation. App. 718-20. Our

       8
         In his briefing, Wilkerson appeared to take the position
that, when assessing the basis for a jury’s verdict, a reviewing
court may not consider the evidence presented at trial at all,
and must confine its inquiry to only the indictment, jury
instructions, jury interrogatories, and verdict sheet. Wilkerson
reversed course at oral argument, however, and conceded that
a review of the entire trial record is appropriate when
evaluating the grounds on which a jury reached its verdict.




                               18
task on federal habeas review is not to decide whether we agree
with this treatment of Wilkerson’s claim or with the result the
state court reached, but to analyze whether the state court’s
ruling “was so lacking in justification” that, based on existing
Supreme Court case law, it was unreasonable “beyond any
possibility for fairminded disagreement.” Davis, 135 S. Ct. at
2199 (citation omitted). Upon review of the Supreme Court’s
double jeopardy jurisprudence and our Court’s precedents in
this context, we conclude that Wilkerson cannot satisfy this
high threshold.9




       9
         Wilkerson argues that AEDPA’s deferential standard
does not apply to his double jeopardy claim because, by re-
characterizing his merger claim as a sufficiency of the evidence
challenge, the state court did not address the merits of that
claim.     This argument is meritless. When addressing
Wilkerson’s merger claim, the state court explained that
merger only applies “in those instances where multiple
punishments arise from a single act” and, because Wilkerson’s
attempted murder and aggravated assault convictions
“stemmed from his alleged commission of two separate
criminal acts,” relief was not warranted. App. 717-18. By
concluding that Wilkerson’s multiple convictions each derived
from a distinct criminal act, the state court unambiguously
addressed and rejected Wilkerson’s merger/double jeopardy
claim on the merits. In any event, Wilkerson explicitly argued
that AEDPA dictated the appropriate standard of review in his
petition for habeas relief before the District Court, and any
argument to the contrary is therefore waived, see Bailey v.
United Airlines, 279 F.3d 194, 202 (3d Cir. 2002).




                              19
        The Supreme Court has never spoken directly to the
appropriate test to determine whether multiple convictions
resulting from the same trial were based on one criminal act or
two. However, it has interpreted the Double Jeopardy Clause
in an analogous context—cases in which a defendant
previously has been acquitted of one charge and the
Government seeks to prosecute the same defendant on another
charge, arguably based on the same criminal act. And in those
“issue preclusion”10 cases, the Supreme Court assessed what
facts formed the basis of a jury’s verdict on the one charge in
order to determine whether a double jeopardy violation would
occur if a trial were to move forward on the other, in effect
employing the very test applied by the Superior Court here.

        In Ashe v. Swenson, for instance, the Supreme Court
explained that, in the double jeopardy issue preclusion context,
a reviewing court must “examine the record of a prior
proceeding, taking into account the pleadings, evidence,
charge, and other relevant matter, and conclude whether a
rational jury could have grounded its verdict upon an issue
other than that which the defendant seeks to foreclose from
consideration.” 397 U.S. 436, 444 (1970) (emphasis added)
(internal quotation marks omitted). Ashe makes clear that the
correct approach in the issue preclusion context is to review the
entire trial record in an attempt to discern the basis of the jury’s
conviction but that, where no clear answer emerges, the tie

       10
         Although the parties use the term “collateral estoppel”
to describe the question at issue in those circumstances, the
Supreme Court has recently advised that “‘issue preclusion’ is
the more descriptive term.” Bravo-Fernandez v. United States,
137 S. Ct. 352, 356 n.1 (2016).




                                20
goes to the Government: so long as a reasonable jury “could
have” based its decision on facts that would not create a double
jeopardy violation, the subsequent prosecution may move
forward. Id.; see also Bravo-Fernandez v. United States, 137
S. Ct. 352, 365-66 (2016) (inconsistent verdict at first trial did
not prevent retrial on vacated conviction because it was a
“mystery what the jury necessarily decided” and, therefore, the
defendants could not “establish the factual predicate necessary
to preclude the Government from retrying them . . . namely,
that the jury in the first proceeding actually decided that they
did not violate the [statute in question]”); United States v.
Rigas, 605 F.3d 194, 219 (3d Cir. 2010) (en banc) (denying
issue preclusion double jeopardy claim because it was
“impossible to determine with any certainty” whether the issue
in question was “definitively decided” at previous trial).

        Moreover, although the Supreme Court has addressed
this issue only in the issue preclusion context, we have
addressed it in the context of multiple convictions resulting
from a single trial—applying the exact same test. For example,
in United States v. Finley, the defendant argued that a double
jeopardy violation occurred when he was convicted of both
“receiving” and “distributing” child pornography, each a
distinct violation of 18 U.S.C. § 2252(a)(2). 726 F.3d 483, 495
(3d Cir. 2013). When analyzing whether the defendant had
been convicted of multiple criminal acts or wrongly punished
multiple times for one act, we assessed the evidence presented
at trial and concluded that because the evidence supported
separate convictions for separate criminal acts, no double
jeopardy violation had occurred. Id. at 496. Likewise, in
United States v. Chorin, the defendant argued that his
convictions for both the attempt to manufacture more than one
kilogram of methamphetamine, and for the possession of




                               21
monomethylamine knowing, or having reasonable cause to
believe, that it would be used to manufacture
methamphetamine, violated the Double Jeopardy Clause. 322
F.3d 274, 276-77 (3d Cir. 2003). Citing primarily to the trial
testimony, we concluded that the defendant “possessed
different methylamine liquid at different places for different
purposes on different occasions,” and thus his convictions were
not “based on the same predicate act

or transaction,” and no double jeopardy violation had occurred.
Id. at 282.

       Against the backdrop of Ashe and these other double
jeopardy cases, the Superior Court’s analysis can hardly be
deemed “an unreasonable application of . . . clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). On the contrary, that
court reviewed the trial record and determined that there was
sufficient evidence for the jury to convict Wilkerson of
attempted murder based on the shooting and to convict him of
aggravated assault based on the beating—concluding, in
substance, that the jury “could have” reached its verdicts on
grounds that posed no double jeopardy concern. Ashe, 397
U.S. at 444. Thus, although “sufficiency of the evidence” may
have been an inartful descriptor,11 App. 718, the approach the

       11
          In the double jeopardy context, of course, the inquiry
cannot be strictly limited to sufficiency, as there may be
situations where the trial evidence would allow a jury to
convict on grounds that would not violate the Double Jeopardy
Clause, but, once the jury instructions or indictment are
considered, it becomes apparent the jury did, in fact, base its
verdict on unconstitutional grounds. E.g., if the trial judge in
this case had instructed: “If you find that Mr. Wilkerson shot
Mr. Hill, you must return a verdict of guilty as to both




                              22
Superior Court took and the conclusion that it reached appear
entirely consistent with Ashe and its progeny.12

        At the very least, absent Supreme Court precedent
dictating that a different analysis is required when a
defendant’s double jeopardy claim arises in this “multiple
punishment” context rather than in the context of issue

attempted murder and aggravated assault.” In such situations,
while there may be “sufficient evidence” for the jury to convict
on constitutional grounds, an examination of the record as a
whole may preclude a determination that a rational jury “could
have” convicted on those grounds as it would have been
explicitly instructed to do otherwise. Ashe, 397 U.S. at 444.
Here, however, where the jury instructions were merely
ambiguous and did not foreclose the jury from rendering
multiple constitutionally sound convictions, the state court was
not unreasonable in sustaining those convictions based on the
sufficiency of the trial evidence.
       12
          Although Wilkerson points us to two Supreme Court
cases in the issue preclusion context that reach the opposite
outcome, both cases are simply applications of Ashe in which
the trial record precluded the possibility that the jury “could
have grounded its verdict upon an issue other than that which
the defendant seeks to foreclose from consideration,” Ashe,
397 U.S. at 444. See, e.g., Turner v. Arkansas, 407 U.S. 366,
369 (1972) (per curiam) (applying Ashe and ruling in
defendant’s favor on issue preclusion double jeopardy claim
because “[t]he only logical conclusion” from the trial record
was that the defendant had already been acquitted of the act for
which the Government sought to retry him).




                              23
preclusion, the Superior Court’s analysis cannot be deemed
“contrary to” any “clearly established Federal law,” 28 U.S.C.
§ 2254(d)(1), or so unreasonable as to put it “beyond any
possibility for fairminded disagreement,” Davis, 135 S. Ct. at
2199; see also Carey v. Musladin, 549 U.S. 70, 77 (2006)
(“Given the lack of holdings from this Court [on the specific
issue in question], it cannot be said that the state court
“unreasonabl[y] appli[ed] clearly established Federal law.”
(second and third alterations in original) (internal quotation
marks omitted)).

       Wilkerson counters that there is such precedent to be
found in the Supreme Court’s due process jurisprudence.
Specifically, Wilkerson cites to the Supreme Court’s decision
in Griffin v. United States, where the Court explained that
“where a provision of the Constitution forbids conviction on a
particular ground, the constitutional guarantee is violated by a
general verdict that may have rested on that ground.” 502 U.S.
46, 53 (1991). Because the jury instructions and verdict sheet
here leave open the possibility that Wilkerson’s attempted
murder and aggravated assault convictions likewise may have
rested on the impermissible basis of a single criminal act, the
shooting, Wilkerson argues that one of those convictions must
be vacated. This argument dovetails with the reasoning of the
District Court which, relying on due process case law, granted
Wilkerson habeas relief because it concluded that there was a
“‘reasonable likelihood’ that the jury applied the trial court’s
attempted murder and aggravated assault instructions in an
impermissible manner.” App. 14 (quoting Estelle, 502 U.S. at
72).

       We acknowledge the tension between the Supreme
Court’s double jeopardy jurisprudence—which gives the
benefit of the doubt to the Government and allows for a second




                              24
criminal prosecution to move forward so long as the jury in the
prior proceeding “could have grounded its verdict” on facts
that would not create a double jeopardy violation, Ashe, 397
U.S. at 444 (emphasis added)—and its due process
jurisprudence—which gives that same benefit to the defendant
and requires reversal so long as the conviction “may have
rested” on an unconstitutional basis, Griffin, 502 U.S. at 53, or
there is a “reasonable likelihood” that the jury applied an
ambiguous instruction “in a way that violates the
Constitution,” Estelle, 502 U.S. at 72 (internal quotation marks
omitted); this case, however, arising in the context of
deferential habeas review is not the forum for our Court to
resolve that tension. While we commend the District Court’s
thoughtful analysis and recognize that we may need to address
this issue at a later date if it comes before us on direct appeal,
it is sufficient under AEDPA that the jury could have convicted
Wilkerson on separate counts of attempted murder and
aggravated assault, Ashe, 397 U.S. at 444, and thus, no double
jeopardy violation occurred in this case.

        Accordingly, we will reverse the District Court’s order
granting Wilkerson relief on that claim, and turn to
Wilkerson’s cross-appeal challenging the sentence imposed for
his attempted murder conviction.

       B.     Wilkerson’s Apprendi Claim

       The claim at issue in Wilkerson’s cross-appeal rests on
the trial judge’s failure to ask the jury to decide whether
“serious bodily injury result[ed],” 18 Pa. Cons. Stat. § 1102(c),
from Wilkerson’s attempted murder before she imposed a
sentence enhancement on that charge. See Apprendi, 530 U.S.
at 490 (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed




                               25
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”); Commonwealth v. Johnson, 910
A.2d 60, 67 (Pa. Super. Ct. 2006) (holding that, under
Apprendi, “it was not the prerogative of the trial court, but
solely the responsibility of the jury . . . to find, beyond a
reasonable doubt, whether a serious bodily injury resulted from
[an] attempted murder”). Wilkerson asserts that he is entitled
to habeas relief because his attempted murder sentence
contravened Apprendi and also because his counsel’s failure to
either object at sentencing or to raise the issue on appeal
constituted ineffective assistance of counsel.

        The Commonwealth does not contest the error but urges
that Wilkerson is not entitled to habeas relief because: (1) we
lack jurisdiction to hear Wilkerson’s cross-appeal because he
did not timely file a notice of appeal under Rule 4(a)(3) of the
Federal Rules of Appellate Procedure; (2) Wilkerson’s claim
is time barred under AEDPA’s one-year statute of limitations;
(3) the claim is procedurally defaulted; and (4) even if we have
jurisdiction and can reach the merits of Wilkerson’s claim, it
fails on the merits under the appropriate standard of review.

        Although we conclude we have jurisdiction over the
claim, we agree with the Commonwealth that Wilkerson’s
cross-appeal is time barred under AEDPA’s statute of
limitations, and thus have no need to reach his remaining
arguments.13


       13
          Because we conclude that Wilkerson’s failure to
timely raise his Apprendi and ineffective-assistance-of-counsel
claims bars him from habeas relief, we will neither address
whether these claims were also procedurally defaulted nor, as
Wilkerson asserts, qualify for the narrow exception to




                              26
              1.      Federal Rule of Appellate Procedure
                      4(a)(3)

       We turn first to the Commonwealth’s assertion that we
lack jurisdiction over Wilkerson’s cross-appeal because
Wilkerson failed to comply with Federal Rule of Appellate
Procedure 4(a)(3). Under this rule, “[i]f one party timely files
a notice of appeal, any other party may file a notice of appeal
within 14 days after the date when the first notice was filed.”
Fed. R. App. P. 4(a)(3). Wilkerson did not file his cross-appeal
within that allotted time frame, and the Commonwealth
maintains that this failure divests us of our jurisdiction to even
consider his cross-appeal.

        Our Court has recently addressed this very issue,
however, and reached the opposite conclusion. As we
explained in Mathias v. Superintendent Frackville, No. 15-
2694, 2017 WL 3687781, *10-14 (3d Cir. Aug. 28, 2017), Rule
4(a)(3) is not a jurisdictional constraint, but a “claim-
processing” rule that we may excuse in the interests of justice.
Id. at *13. And as a claim-processing rule, it remains subject
to forfeiture and waiver, see Bowles v. Russell, 551 U.S. 205,
214 (2007); Baker v. United States, 670 F.3d 448, 455 (3d Cir.
2012); Gutierrez v. Johnson & Johnson, 523 F.3d 187, 197 (3d
Cir. 2008)—doctrines that dispose of the Commonwealth’s
objection here in view of its failure to move to dismiss
Wilkerson’s untimely cross-appeal despite multiple



AEDPA’s procedural default rule announced by the Supreme
Court in Martinez v. Ryan, 566 U.S. 1 (2012).




                               27
opportunities to do so over the course of six months prior to the
instant merits briefing.14

       Given its persistent refusal to oppose Wilkerson’s cross-
appeal on Rule 4(a)(3) grounds despite numerous invitations to
do so, the Commonwealth forfeited that challenge to
Wilkerson’s cross-appeal, Baker, 670 F.3d at 455, and we
move on to address whether Wilkerson’s Apprendi and related
ineffective-assistance-of-counsel claims were timely raised.

              2.     Timeliness



       14
           When Wilkerson filed his notice of appeal on July 9,
2015, our Court’s Clerk’s Office noted the possible
jurisdictional concern and gave both parties the opportunity to
address Rule 4(a)(3)’s application in this case. Wilkerson
responded to the Clerk’s Office’s letter and requested a
certificate of appealability on the Apprendi issue now set forth
in his cross-appeal. The Commonwealth, however, failed to
respond to the Clerk’s Office’s letter or to Wilkerson’s motion.
The Commonwealth was then given yet another opportunity to
take a position on Wilkerson’s late notice of cross-appeal, as a
motion’s panel of our Court sent Wilkerson’s request for a
certificate of appealibility back to the District Court. The
Commonwealth, however, again failed to oppose Wilkerson’s
motion. As a result, the District Court granted Wilkerson a
certificate of appealability in January 2016, and the case then
returned to us for merits briefing. Only in its merits brief did
the Commonwealth assert for the very first time that
Wilkerson’s claim must be dismissed for failure to comply
with Rule 4(a)(3).




                               28
        In addition to the requirements described above,
AEDPA imposes a one-year statute of limitations on state
inmates seeking to file habeas claims in federal court. 28
U.S.C. § 2244(d)(1). If an inmate complies with this deadline,
the Federal Rules of Civil Procedure allow him, like other any
civil litigant, to later amend his petition to add additional
claims so long as those additional claims “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).
Here, it is not contested that Wilkerson filed a timely habeas
petition raising his double jeopardy claim but did not file the
“Amended Petition in Support of Memorandum of Law” that
added his Apprendi claim until well after the one-year mark.15
Supp. App. 36. The timeliness of Wilkerson’s Apprendi-
related claims therefore depends on whether they “relate back”
to the double jeopardy claim in his original habeas petition.

        We conclude that they do not. In Mayle v. Felix, the
Supreme Court addressed how this relation back rule applies
in the context of a habeas petition. 545 U.S. 644 (2005). The
petitioner in Mayle had filed a petition asserting that his Sixth
Amendment right to confront adverse witnesses had been


       15
          It appears that, even in his amended petition,
Wilkerson did not raise his ineffective-assistance-of-counsel
claims that he has now derived from his Apprendi claim, and
that claim is therefore waived, Bailey, 279 F.3d at 202.
Nonetheless, even assuming the ineffective-assistance-of-
counsel claims were somehow implicit in the underlying
Apprendi claim, they were not timely raised for the reasons
explained below.




                               29
violated when the trial judge admitted certain out-of-court
statements made by a jailhouse informant. Id. at 650-51. The
petitioner then sought to amend his petition to add another
claim—this time that his Fifth Amendment right against self-
incrimination had been violated when the trial judge allowed
the prosecutor to introduce statements the petitioner had made
during a pretrial police interrogation. Id. at 651-52. The
Supreme Court rejected this amendment as time barred,
explaining that while both claims related to the admission of
pre-trial statements, those statements “were separated [from
each other] in time and type,” id. at 657, and the petitioner had
thus defined “ar[ising] out of the conduct, transaction, or
occurrence” for relation back purposes at “too high a level of
generality,” id. at 661 (internal quotation marks omitted). The
Court elaborated that two claims merely arising from the same
“conviction or sentence” cannot be enough to satisfy the
relation back standard and that, in order to properly relate to
one another, the claims in the amendment and the claims in the
original petition must be “tied to a common core of operative
facts.” Id. at 657, 664.

       Wilkerson urges that his claims meet this standard
because both his double jeopardy claim and his Apprendi claim
“arise from . . . the jury instructions, the jury verdict and the
sentence imposed,” Second Step Br. 49, and “both hinge upon
[a] serious bodily injury finding,” Fourth Step Br. 15. This
explanation falls short. Like the petitioner in Mayle, Wilkerson
defines the “same conduct, transaction, or occurrence”
necessary for relation back at “too high a level of generality.”
Mayle, 545 U.S. at 661 (internal quotation marks omitted). To
say that the claims relate to the same “jury verdict and sentence
imposed” is just another way of couching the argument
explicitly rejected in Mayle—that relation back can be satisfied




                               30
simply because the amendment and petition pertain to the same
“conviction or sentence.” Id. at 657. Although both claims in
this case also coincidentally relate to the jury charge and
involve the term “serious bodily injury,” these common
features are not enough to make the claims arise from the same
“operative facts” when the problems asserted with the jury
charge are entirely unrelated, id. at 664.

        The operative fact underlying Wilkerson’s double
jeopardy claim is that, for the aggravated assault charge, the
jury instruction stated that Wilkerson could be found guilty for
“caus[ing] or attempt[ing] to cause serious bodily injury,” App.
587, without specifying that, if he was also convicted of
attempted murder, his shooting of Nasir Hill could not be the
act that satisfied that requirement. The operative facts for
Wilkerson’s Apprendi-related claims, on the other hand, are
that for the attempted murder charge, the jury was never asked
to determine whether Wilkerson inflicted serious bodily injury
at all, and his counsel did not object on this ground at
sentencing or raise the issue on direct appeal. These claims are
not the same in “time and type,” Mayle, 545 U.S. at 657, but
are distinct claims with their own factual predicates that
happen to involve the presence or absence of the phrase
“serious bodily injury” in the jury instructions.16 For these

       16
           Perhaps recognizing the attenuated relationship
between his original petition and its subsequent amendment,
Wilkerson contends that his relation back claim should be
accorded liberal treatment because he filed his original habeas
petition and amendment pro se. While pro se litigants are, as a
general matter, given more lenient treatment when assessing
their compliance with pleading requirements, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), the




                              31
reasons, Wilkerson’s untimely Apprendi claim and related
ineffective-assistance-of-counsel claims do not relate back to
his original petition for habeas corpus, and these claims are
therefore barred by AEDPA’s one-year statute of limitations.17


petitioner in Mayle itself was pro se, Mayle, 545 U.S. at 648,
eliminating any possibility that the Supreme Court’s
explanation of the relation back requirements in the habeas
context would not apply with equal force to a pro se petitioner.
       17
           Even if we could reach the merits of Wilkerson’s
Apprendi claim, it would fail under the applicable standard of
review. Because Wilkerson did not object to the Magistrate
Judge’s Report and Recommendation denying this claim, we
review that denial for plain error. Nara, 488 F.3d at 196.
When reviewing for plain error, we reverse only if the error is
“(1) clear or obvious, (2) affect[ed] substantial rights, and (3)
seriously affected the fairness, integrity or public reputation of
judicial proceedings.” Leyva v. Williams, 504 F.3d 357, 363
(3d Cir. 2007) (alteration in original) (internal quotation marks
omitted). Only the first prong of this three-part test is satisfied
in Wilkerson’s case. At Wilkerson’s trial, the parties stipulated
to the introduction of medical records that reflected Nasir Hill
was taken to the hospital to receive emergency surgery for a
gunshot wound in his chest. In view of that record, Wilkerson
does not challenge the seriousness of Hill’s injuries resulting
from the shooting, and we agree with the Magistrate Judge that,
had the jury been asked, it is “inconceivable” that it would not
have made the requisite finding of “serious bodily injury” for
Wilkerson to receive an enhanced sentence. App. 77. Thus,
because it is a near certainty that Wilkerson would have
received the identical sentence had the jury been given the
proper instruction, Wilkerson cannot demonstrate that this




                                32
 V.    Conclusion

      For the foregoing reasons, we will reverse the District
Court’s order granting a writ of habeas corpus on Wilkerson’s
double jeopardy claim, affirm the District Court’s order
denying relief on all other claims, and remand the case for
proceedings consistent with this opinion.




Apprendi error, or any ineffective-assistance-of-counsel claim
derived from it, “affect[ed] his substantial rights” or “seriously
affected the fairness, integrity or public reputation of judicial
proceedings.” Leyva, 504 F.3d at 363 (alteration in original).
See United States v. Cotton, 535 U.S. 625, 632-33 (2002)
(holding Apprendi error cannot meet the plain error
requirement of “seriously affect[ing] the fairness, integrity, or
public reputation of judicial proceedings” when the fact that
increased the defendant’s sentence without having been
submitted to the jury was supported by “overwhelming”
evidence that was “essentially uncontroverted”); United States
v. Vazquez, 271 F.3d 93, 101 (3d Cir. 2001) (en banc) (holding
substantial rights are not affected by an Apprendi violation
where “the court determines that the evidence was sufficiently
conclusive to support the sentence actually imposed”).




                               33
