                                                           PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 15-2863
                        ___________

                      SALEEM BEY,

                                    Appellant
                            v.

         SUPERINTENDENT GREENE SCI;
   THE DISTRICT ATTORNEY OF THE COUNTY OF
                PHILADELPHIA;
    THE ATTORNEY GENERAL OF THE STATE OF
                PENNSYLVANIA
                  __________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                  (D.C. No. 2-13-cv-05848)
         District Judge: Honorable Anita B. Brody
                        ___________

                 Argued November 8, 2016

                   (Filed: May 10, 2017)


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



Michael Wiseman, Esq.                  [ARGUED]

      *
        Honorable Mark R. Hornak, District Judge for the
United States District Court for the Western District of
Pennsylvania, sitting by designation.
P.O. Box 120
Swarthmore, PA 19081
      Attorney for Appellant

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

                 OPINION OF THE COURT
                      ____________

McKEE, Circuit Judge.

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

                                I

       Bey was charged with the nonfatal shooting of
Kenneth Thompkins and the fatal shooting of Terry Swanson
that took place on November 21, 2001 in a club parking lot in
Philadelphia. Bey’s first trial ended in a hung jury. On retrial,
Bey was convicted of murder, attempted murder, and
                                2
possessing an instrument of crime. He was sentenced to life in
prison for murder, 7.5 to 40 years for attempted murder, and 9
to 18 months for the weapons offense.

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

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

       1
         J.A. at 172.
       2
         J.A. at 173.
       3
         J.A. at 195.

                                3
Thompkins had said that his shooter was not Bey, but a bald,
dark-skinned, bearded man.

       During the retrial, defense counsel requested a special
jury instruction on eyewitness testimony, pursuant to the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Kloiber.4 In Kloiber, the Pennsylvania Supreme Court
recognized the need for a cautionary instruction in certain
eyewitness cases.5 The trial judge here did attempt a Kloiber
charge. However, rather than giving the charge outlined in
Kloiber, the court instructed the jury as follows:
       Where a witness is positive of his identification,
       such as where the opportunity for positive
       identification is good and the witness is positive
       in his identification and the identification has
       not been weakened by any prior failure to
       identify but remains even after cross-
       examination positive and unqualified, the
       testimony as to the identification may not be
       received with caution. Indeed, positive
       testimony as to identity may be treated as a
       statement of fact.

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

Although the bold text in the quoted instruction is critically
inconsistent with Kloiber, defense counsel did not object. In


      4
        106 A.2d 820 (Pa. 1954).
      5
        Id.
      6
        J.A. at 1027 (emphasis added).

                              4
Kloiber, the Pennsylvania Supreme Court had actually stated
the following:
         Where the opportunity for positive
         identification is good and the witness is
         positive in his identification and his
         identification is not weakened by prior
         failure to identify, but remains, even after
         cross-examination,          positive       and
         unqualified, the testimony as               to
         identification need not be received with
         caution—indeed the cases say that “his
         [positive] testimony as to identity may be
         treated as the statement of a fact.” For
         example,      a      positive,     unqualified
         identification of defendant by one witness
         is sufficient for conviction even though
         half a dozen witnesses testify to an alibi.

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

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



      7
       Kloiber, 106 A.2d at 826–27 (citations omitted)
(emphasis added).

                                 5
       The confusion sewn by this instruction was soon
evident. During deliberations, the jury asked the court to
clarify aspects of Officer Taylor’s testimony. The jury asked
the court: “[M]ay we have or hear the transcript of Officer
Taylor’s testimony describing from the time the officer heard
the first shot to when the defendant ran west towards the
wall?” and “May we also have [the] statement where Officer
Taylor says he saw the defendant shoot Swanson?”8 Both
questions went unanswered.

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

       The PCRA Court considered only the third of the
Kloiber issues raised in the petition, holding that the
“statement of fact” language was permissible under state law
and as a result, trial counsel’s assistance was not ineffective



      8
        J.A. at 1041, 1048.
      9
        42 Pa. Const. Stat. § 9541, et seq.
      10
         106 A.2d at 826.
      11
         J.A. at 62–64.

                              6
for failing to object to the instruction.12 The Court thus denied
the PCRA petition, and the Pennsylvania Superior Court
thereafter affirmed the PCRA court’s conclusions.13 Bey
sought leave to appeal to the Pennsylvania Supreme Court but
that request was declined.14

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

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

       12
          Commonwealth v. Bey, Nos. CP-51-CR-1206691-
2001, CP-51-CR-1209051-2001, slip op. at 4, 11–12 (Phila.
Ct. Com. Pl. July 26, 2011).
       13
          Id. at 2; Commonwealth v. Bey, 53 A.3d 922 (Pa.
Super. Ct. 2012) (unpublished table decision).
       14
          Commonwealth v. Bey, 67 A.3d 792 (Pa. 2013).
       15
          Bey v. Folino, No. CIV.A. 13-5848, 2015 WL
4130358, at *1 (E.D. Pa. July 9, 2015).
       16
          Id. at *1 n.1.

                                7
we are granting relief on the Kloiber ineffectiveness claim,
we do not reach Bey’s claim based on the prosecution’s
closing argument.17

                              II

        “The doctrine of procedural default prohibits federal
courts from reviewing a state court decision involving a
federal question if the state court decision is based on a rule
of state law that is independent of the federal question and
adequate to support the judgment.”18 Bey concedes that both
of his ineffective assistance of counsel claims are
procedurally defaulted. However, a habeas petitioner’s
procedural default may be excused if the petitioner can show
cause for the default and prejudice arising from failure to
consider the claim.19 If cause and prejudice are shown and the
default excused, our review of a petitioner’s claim is de novo
because the state court did not consider the claim on the
merits.20 On the other hand, if a constitutional claim is
properly raised in state court—and therefore, not procedurally
defaulted—the state court’s determination is afforded




      17
           The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254. We have appellate jurisdiction to review
the certified issues under 28 U.S.C. § 2253.
       18
           Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008). A
state procedural rule is “independent” if it is not interwoven
with federal law or dependent upon a federal constitutional
ruling. Michigan v. Long, 463 U.S. 1032, 1040–41 (1983). A
state procedural rule is “adequate” if it was “firmly
established and regularly followed” at the time of the alleged
procedural default. Ford v. Georgia, 498 U.S. 411, 424
(1991).
       19
          United States v. Frady, 456 U.S. 152, 167–68
(1982).
       20
          Bronshtein v. Horn, 404 F.3d 700, 710 n.4, 715 (3d
Cir. 2005).

                              8
substantial deference under the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”).21

                               A

        We must first determine if Bey’s claim is procedurally
defaulted. Procedural default occurs when “the prisoner ha[s]
failed to meet a state law procedural requirement.”22
Pennsylvania’s procedural rules state that a defendant waives
an ineffective assistance of counsel claim unless he or she
raises it during the first state collateral review proceeding.23

       Bey concedes that his PCRA counsel failed to argue
that his trial counsel’s assistance was ineffective in failing to
object to the Kloiber instruction that the jury “may not . . .
receive[] with caution” positive eyewitness testimony. Bey
therefore acknowledges that his claim is procedurally
defaulted. Nevertheless, he argues that the default should be
excused. In rejecting that position, the District Court reasoned
that because the PCRA petition generally raised

       21
           Under AEDPA, federal courts may grant habeas
relief only if a state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
        22
           Coleman v. Thompson, 501 U.S. 722, 730 (1991).
        23
           Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002) (“[A]ny ineffectiveness claim will be waived only after
a petitioner has had the opportunity to raise that claim on
collateral review and has failed to avail himself of that
opportunity.”). See also 42 Pa. Cons. Stat. § 9545(b) (PCRA
petitioners are time-barred from raising claims after one year
of the final judgment). We have held that this state procedural
rule is independent of the federal question and adequate to
support the judgment. Glenn v. Wynder, 743 F.3d 402, 409
(3d Cir. 2014).

                               9
ineffectiveness claims based on issues with the Kloiber
charge, Bey’s counsel did raise this claim to state courts.24
Accordingly, the Court applied deferential AEDPA review
and held that the state courts reasonably rejected the Kloiber
ineffectiveness claim and Bey was therefore not entitled to
habeas relief.25

       Bey’s PCRA petition did claim ineffective assistance
of counsel based on a faulty Kloiber instruction, and argued
that as a basis for the objection under the state and federal
constitutions. But none of the three Kloiber issues raised in
the petition pertain to the claim Bey is raising here or the
language it is based on. As noted above, the current objection
challenges the trial court’s instruction that positive and
unqualified eyewitness testimony “may not be received with
caution.”26 Though Bey’s petition and the PCRA Court’s
opinion reprint the problematic phrase, Bey’s counsel made
no argument about it, and the court did not consider that
language in adjudicating Bey’s PCRA claim.27 Accordingly,
we conclude that the specific ineffective assistance claim
addressing the trial court’s instruction that the jury “may not .
. . receive[]” positive identification testimony with caution
was not raised in state court and was therefore waived under
state law. Consequently, Bey’s claim is procedurally
defaulted and we may only review it if the default can be
excused. 28

       24
           Bey, 2015 WL 4130358, at *15 n.4.
       25
           Id. at *15–16.
        26
           As outlined above, the PCRA petition raises only the
following issues: (1) the instruction failed to inform jurors
that if a factor was present that cast doubt on the accuracy of
the eyewitness’s perception, then the testimony “must be
received with caution” (omitting language from Kloiber) (2)
the instruction improperly placed the burden on the defense to
prove the presence of those factors, and (3) the instruction
improperly told jurors that positive identification “may be
treated as a statement of fact.” J.A. at 60–65.
        27
           Bey, slip op. at 11–12.
        28
           Frady, 456 U.S. at 167–68.

                               10
B
       Pursuant to the Supreme Court’s decision in Martinez
v. Ryan,29 counsel’s failure to raise an ineffective assistance
claim on collateral review may excuse a procedural default if:
“(1) collateral attack counsel’s failure itself constituted
ineffective assistance of counsel under Strickland, and (2) the
underlying ineffective assistance claim is ‘a substantial
one.’”30 Because Bey’s claim that his PCRA counsel’s
assistance was ineffective stems from the strength of his
underlying ineffective assistance of trial counsel claim, we
consider the second Martinez requirement first.

       To satisfy the second Martinez requirement, the
petitioner must “demonstrate that the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one.”31 In
other words, “the [petitioner] must demonstrate that the claim
has some merit.”32 In Martinez, the Court relied upon Miller–
El v. Cockerell,33 suggesting that we apply the standard for
issuing certificates of appealabililty in resolving the inquiry
into what constitutes a “substantial” claim.34 Thus, whether a
claim is “substantial” is a “threshold inquiry” that “does not
require full consideration of the factual or legal bases adduced
in support of the claims.”35 With this framework as our guide,
we can now turn to an analysis of Bey’s ineffective assistance
of counsel claim.

       To prove ineffective assistance of counsel under
Strickland v. Washington,36 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

       29
          566 U.S. 1 (2012).
       30
          Glenn, 743 F.3d at 409–10 (quoting Martinez, 566
U.S. at 14).
       31
          Martinez, 566 U.S. at 14.
       32
          Id.
       33
          537 U.S. 322 (2003).
       34
          Martinez, 566 U.S. at 14.
       35
          Miller–El, 537 U.S. at 327, 336.
       36
          466 U.S. 668 (1984).

                              11
counsel’s deficient performance prejudiced his client,”37 i.e.,
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”38 We have previously referred to these as the
“performance” and “prejudice” prongs of the Strickland test.39

        Generally,     trial   counsel’s      stewardship     is
constitutionally deficient if he or she “neglect[s] to suggest
instructions that represent the law that would be favorable to
his or her client supported by reasonably persuasive
authority” unless the failure is a strategic choice.40 As noted
above, Bey’s trial counsel failed to object to a Kloiber charge
that blatantly misstated the wording in Kloiber itself. A
proper charge under Kloiber informs the jury that it has the
ultimate discretion of deciding whether to credit positive
eyewitness testimony.41 Instead, the trial court’s instruction
essentially required the jury to accept positive eyewitness
testimony as true by directing that “testimony as to the
identification may not be received with caution.”42 The fact

       37
           Albrecht, 485 F.3d 103, 127 (3d Cir. 2007) (citing
Strickland, 466 U.S. at 689–92).
        38
           Strickland, 466 U.S. at 694.
        39
           See, e.g., Glenn, 743 F.3d at 409.
        40
           Everett v. Beard, 290 F.3d 500, 514 (3d Cir. 2002).
See also Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002)
(“Given our discussion of the nature of the defect in this
charge, and the problems that arise from it, it follows a
fortiori that unless counsel had a strategic reason for not
objecting, [the petitioner] will satisfy the first prong of
Strickland.”)
        41
           Kloiber, 106 A.2d at 826 (“Where the opportunity
for positive identification is good and the witness is positive
in his identification and his identification is not weakened by
prior failure to identify, but remains, even after cross-
examination, positive and unqualified, the testimony as to
identification need not be received with caution . . . .”
(emphasis added)).
        42
           J.A. at 1047 (emphasis added). In a footnote, the
Appellees argue that because the transcript of the trial was

                              12
that the jurors were told that they only had to accept the
identification if it was made under favorable circumstances
and was not equivocal does not negate the fact that the jury
did not know that it was free to reject Officer Taylor’s
identification even if Taylor was positive as to his
identification. The instruction is likewise contrary to
Pennsylvania’s Suggested Jury Instruction that was based on
Kloiber. The edition of the suggested instruction available at
the time of Bey’s trial directs the jury to weigh positive
eyewitness testimony as follows: “you need not receive the
testimony with caution; you may treat it like ordinary
testimony.”43

        Although Kloiber and its progeny did not specifically
prohibit the instruction given here at the time of Bey’s
retrial,44 the trial court’s deviation from the language in

riddled with errors, it is therefore possible that the words
“may not” were mis-transcribed and the judge did instruct the
jury that they “need not” receive the testimony with caution.
Appellees’ Br. at 36 n.13. Because Appellees have presented
no evidence to support this utterly speculative claim, we need
not respond to it.
        43
           Pa. Bar Inst., Pa. SSJI § 4.07 (Crim.) (1st ed., rev.
1985).
        44
           Kloiber’s requirements were not focused on
identification problems when the witness had a clear view of
the defendant and was consistent in his or her identification.
Rather, Kloiber was primarily concerned with providing
special instructions to caution the jury when an eyewitness
did not have a clear opportunity to view a defendant,
equivocated on the identification of the defendant, or had
some difficulty making an identification in the past. Kloiber,
106 A.2d at 826–27; Commonwealth v. Ali, 10 A.3d 282, 303
(Pa. 2010) (“Under Kloiber, ‘a charge that a witness’[s]
identification should be viewed with caution is required
where the eyewitness: (1) did not have an opportunity to
clearly view the defendant; (2) equivocated on the
identification of the defendant; or (3) had a problem making
an identification in the past.’” (quoting Commonwealth v.

                               13
Kloiber was so problematic that any alert defense counsel
should have immediately known that it raised serious
constitutional issues. Jurors were basically told that they had
to accept the only eyewitness identification of the defendant
as fact; they were not free to question it if they found Officer
Taylor had a good opportunity to observe and was certain of
his identification. Those are clearly relevant factors in
evaluating the identification, but they were certainly no
guarantee as to the accuracy of Taylor’s identification of
Bey.45 The charge removed the discretion that the jury could
otherwise have exercised that may have raised a reasonable
doubt in the mind of one or more jurors about the identity of
the shooter. Moreover, as we explain below, the instruction’s
deviation from Kloiber reaches constitutional dimensions.

      A jury instruction deprives a defendant of his or her
Fourteenth Amendment due process rights when it suggests a

Gibson, 688 A.2d 1152, 1163 (Pa. 1997))). Furthermore,
Pennsylvania law gives trial courts broad latitude in phrasing
its instructions. Commonwealth v. Spotz, 896 A.2d 1191,
1247 (Pa. 2006). We note, however, that after Bey’s trial,
Kloiber’s lack of concern with positive eyewitness testimony
was cast into doubt by the Pennsylvania Supreme Court’s
decision in Commonwealth v. Walker, which specifically
questioned “misconceptions” such as the “infallibility of
eyewitness identification” and “the correlation between
certainty and accuracy.” 92 A.3d 766 (Pa. 2014).
        45
           See Nat’l Research Council, Identifying the Culprit:
Assessing Eyewitness Identification 15 (2014) (noting that
human perception is not only susceptible to external limits
such as lighting conditions but also “can be heavily
influenced by bias and expectations derived from cultural
facts, behavioral goals, emotions, and prior experiences with
the world”); James Michael Lampinen et al., The Psychology
of Eyewitness Identification 172–86 (2012) (noting that even
though people generally believe that confident eyewitnesses
are accurate, the degree of confidence an eyewitness
possesses is malleable and even confident eyewitnesses can
be mistaken).

                              14
conclusive presumption that removes the prosecution’s
burden of proving an element of an offense beyond a
reasonable doubt.46 If a “reasonable juror could have
understood the [instruction] as a mandatory presumption that
shifted to the defendant the burden of persuasion on [an]
element” of the offense, the instruction is constitutionally
defective.47 However, a single jury instruction “may not be
judged in artificial isolation, but must be viewed in the
context of the overall charge.”48

        Here, the prosecution was obviously required to
establish that Bey—and no one else—fatally shot Swanson
and wounded Thompkins. Officer Taylor’s testimony that he
saw Bey running from the direction of the Swanson shooting
and that he saw him shoot Thompkins, if accepted,
established Bey’s guilt. The trial court then told the jury that
positive eyewitness testimony “may not be received with
caution” when “the opportunity for positive identification is
good” and “the identification has not been weakened by any
prior failure to identify but remains even after cross-
examination positive and unqualified.”49 Based on this
instruction, a reasonable juror could only have concluded that
he or she was required to accept Officer Taylor’s testimony as
true as long as Taylor’s identification was positive and
consistent. Thus, as long as Officer Taylor’s testimony was
consistent and he testified he was certain Bey was the shooter,
a guilty verdict would necessarily result—regardless of
whether the testimony was accurate. The scientific
community has understood for decades that eyewitness
identifications that are certain and confident are not
necessarily accurate.50 Rather, a witness may honestly hold

       46
            Sandstrom v. Montana, 442 U.S. 510, 523–24
(1979).
       47
          Francis v. Franklin, 471 U.S. 307, 316 (1985).
       48
          Boyde, 494 U.S. 370, 378 (1990) (quoting Boyd v.
United States, 271 U.S. 104, 107 (1926)).
       49
          J.A. at 1027.
       50
          See, e.g., Nat’l Research Council, Identifying the
Culprit: Assessing Eyewitness Identification 31 (2014)

                               15
beliefs about what he or she saw that are distorted, inaccurate,
or even completely wrong.51 Accordingly, under established
Supreme Court precedent, Bey has a substantial claim that the
faulty Kloiber instruction deprived him of his due process
right to have the prosecution prove every element beyond a
reasonable doubt.

       Appellees argue that there is no due process problem
here because in the context of the instructions as a whole, the
jury could not have reasonably believed that it was required
to accept Officer Taylor’s testimony as true.52 We realize, of
course, that the jury charge included general instructions on
evaluating the credibility of witnesses. For example, the
jurors were told that they “must consider and weigh the
testimony of each witness and give it the weight that you

(“Research has cast doubt, for instance, on the belief that the
apparent certainty displayed in the courtroom by an
eyewitness is an indicator of an accurate identification . . . .”);
Siegfried Ludwig Sporer et al., Choosing, Confidence, and
Accuracy: A Meta-Analysis of the Confidence–Accuracy
Relation in Eyewitness Identification Studies, 118 Psychol.
Bulletin 315, 315–16, 323–24 (1995) (noting that the
correlation between accuracy and confidence in eyewitness
identifications is “weak at best”); Elizabeth F. Loftus,
Eyewitness Testimony 19 (1979) (“[E]yewitness testimony is
likely to be believed by jurors, especially when it is offered
with a high level of confidence, even though the accuracy of
an eyewitness and the confidence of that witness may not be
related to one another at all.”).
        51
           See The Innocence Project, Reevaluating Lineups:
Why Witnesses Make Mistakes and How to Reduce the
Chance of a Misidentification 3 (2009) (estimating that
eyewitness misidentifications have been a factor in 75% of
the wrongful convictions that were subsequently overturned
by DNA evidence); James Michael Lampinen et al., The
Psychology of Eyewitness Identification 5 (2012) (explaining
that police lineup data shows that eyewitnesses identify a
non-suspect as the culprit at least 20% of the time).
        52
           Appellees’ Br. at 40–42.

                                16
think in your own personal judgment it is fairly entitled to
receive.”53 Appellees rely on this to argue that the error was
harmless. We disagree.
        As we have explained: “[W]hile a single defect does
not necessarily make an instruction erroneous, . . . other
language in the instruction does not always serve to cure the
error. This is so even when other language correctly explains
the law.”54 Specifically, “a defect in a charge may result in
legal error if the rest of the instruction contains language that
merely contradicts and does not explain the defective
language in the instruction.”55 Here, the misstated Kloiber
instruction that positive eyewitness testimony “may not be
received with caution” neither explained nor acknowledged
the general instruction that the jury “must consider and weigh
the testimony of each witness.” Rather, the Kloiber
instruction directly contradicted the general instruction by
instructing the jury not to weigh the testimony that was most
critical to establishing Bey’s guilt. In this context, a jury
would have reasonably concluded that positive eyewitness
testimony was an exception to the general rule, and that this
category of testimony was entitled to special deference if the
eyewitness’s identification was positive and unqualified.
Indeed, such an instruction would be consistent with
generally held assumptions that eyewitnesses are accurate and
trustworthy.56

       53
           J.A. at 1017–18.
       54
           Whitney, 280 F.3d at 256 (citing Francis, 471 U.S.
at 322). See also Everett, 290 F.3d at 512 (“The mere fact that
the law was correctly stated in one part of the charge will not
automatically insulate the charge from a determination of
error.”).
        55
           Whitney, 280 F.3d at 256 (citing Francis, 471 U.S.
at 322).
        56
           See Timothy P. O’Toole et al., District of Columbia
Public Defender Survey, Champion, April 2005, at 28–29
(concluding that jurors overestimate eyewitnesses’ ability to
recall an event despite the limitations of memory and as a
result, “jurors often believe mistaken eyewitnesses”);
Elizabeth F. Loftus, Eyewitness Testimony 19 (1979) (“All

                               17
        Clearly, this instruction could be reasonably
understood as requiring the jury to accept an eyewitness’s
identification of Bey as the shooter. Indeed, that was what the
jurors were told. We can think of no strategic reason for
defense counsel not to object to a charge that raises such due
process concerns. Nevertheless, Appellees try to argue that it
was strategic and reasonable for Bey’s trial counsel not to
object to the instruction because Bey’s attorney requested the
Kloiber instruction, and under the circumstances of the case,
he was “lucky to have received one.”57 This argument is
frivolous. Neither legal authority nor common sense supports
an argument that defense counsel would not object to an
erroneously-worded charge that raises such grave
constitutional concerns merely because the charge was given
pursuant to defense request. We therefore conclude that Bey’s
trial counsel’s performance was deficient under Strickland.

       Bey likewise establishes that he was prejudiced by the
instruction. Prejudice requires a showing that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.”58 A “reasonable probability” is one “sufficient to
undermine confidence in the outcome.”59 The prejudice
standard “is not a stringent one” and is “less demanding than
the preponderance standard.”60 However, a petitioner must
show “not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.”61

evidence points rather strikingly to the conclusion that there is
almost nothing more convincing than a live human being who
takes the stand, points a finger at the defendant, and says
‘That’s the one!’”).
       57
          Appellees’ Br. at 42.
       58
          Strickland, 466 U.S. at 694.
       59
          Id.
       60
          Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001)
(quoting Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999)).
       61
          Frady, 456 U.S. at 170.

                               18
        Appellees argue that because “[t]he eyewitness
identification was sure” and the bullets in the victims’ bodies
matched the gun found at the scene, “the Commonwealth
presented an overwhelming case that Bey was guilty,” and
Bey was not prejudiced by the instruction. We again disagree.

       At the first trial, nearly identical evidence resulted in a
hung jury. A hung jury can signal that the outcome of a case
was close and support a finding that an error on retrial
prejudiced a convicted defendant. 62 For example, in Ouber v.
Guarino, the First Circuit found it significant that “two
different [prior] juries found the prosecution’s case so
evanescent that they were unable to reach a verdict” when
analyzing whether counsel’s performance prejudiced the
defendant in his third trial.63 Likewise, in Alston v. Garrison,
the Fourth Circuit noted that “hung juries the first two times
[the defendant] was tried” indicated that the prosecution’s
“evidence [was] not so airtight” and led to the conclusion that
“the representation rendered by [the defendant’s] court-
appointed attorney grossly violated the defendant’s sixth
amendment rights.”64 Furthermore, in analogous situations,
even a single prior hung jury has been deemed sufficient to
indicate that the case was close and an error on retrial was not
harmless.65 Here, the fact that Bey’s first jury was unable to


       62
           E.g., Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir.
2002); Alston v. Garrison, 720 F.2d 812, 817 (4th Cir. 1983).
        63
           293 F.3d at 33.
        64
           Alston, 720 F.2d at 817.
        65
           United States v. Beckman, 222 F.3d 512, 525 (8th
Cir. 2000) (concluding that failure to admit evidence was not
harmless error in part because “when the [previous trial] court
allowed the inquiry, a hung jury resulted”); United States v.
Paguio, 114 F.3d 928, 935 (9th Cir. 1997) (“We cannot
characterize the error as harmless, because the hung jury at
the first trial persuades us that the case was close and might
have turned on this evidence.”). Cf. Breakiron v. Horn, 642
F.3d 126, 147 n.18 (3d Cir. 2011) (“Strickland prejudice and

                               19
reach a verdict after hearing Taylor’s unequivocal
identification strongly suggests that the evidence was not
nearly as “overwhelming” as the state would like us to
believe.

        Furthermore, the jury’s deliberations in the second trial
also support our conclusion that the second jury did not think
this was the “slam dunk” that the state claims. The jury’s
questions specifically focused on Officer Taylor’s testimony.
First, the jury asked: “[M]ay we have or hear the transcript of
Officer Taylor’s testimony describing from the time the
officer heard the first shot to when defendant ran west
towards the wall[?]”66 Second, and even more to the essence
of the error here, the jury asked: “May we also have [his]
statement where Officer Taylor said he saw the defendant
shoot Swanson?” Thus, despite arguments to the contrary,
Taylor’s testimony may well have been a source of concern.

        More importantly, it is because Taylor’s identification
appears positive and unequivocal that the Kloiber instruction
so undermined the integrity of the trial. Taylor’s testimony fit
into the precise category of evidence that the jury was
required to accept. Taylor’s testimony was positive: he had a
clear view of Bey, making “eye-to-eye” contact with him in
the “well lit” parking lot from fifteen feet away. 67 Taylor’s
testimony was also unqualified: he never wavered in his
identification of Bey as the shooter in all of his interviews,
preliminary hearings, or in either trial. As a result, to obtain a
verdict of guilty the prosecution only needed to show: (1) that
Taylor was certain the shooter was Bey; and (2) that Taylor’s
identification was not otherwise weakened by circumstances
such as poor lighting or the inability to see. There was no
room for any juror to conclude that Taylor, though certain,
was      wrong.     Accordingly,     the     prosecution      was



Brecht harmless error are essentially the same standard.”
(quoting Albrecht, 485 F.3d at 139) (brackets omitted)).
       66
          J.A. at 1041.
       67
          J.A. at 173, 195.

                               20
unconstitutionally relieved of its burden of proving that Bey
was the shooter beyond a reasonable doubt.

        Nor can we say that other evidence presented at Bey’s
retrial would have resulted in Bey’s conviction had the jury
been given a correct instruction and chosen to disbelieve
Taylor’s identification. Indeed, Taylor’s identification was
the cornerstone of the prosecution’s case. All other police
officers at the scene believed Bey to be the shooter because
Taylor identified him as such. The surviving victim’s
testimony was inconsistent and unreliable—he testified that
he didn’t see his shooter, but at other times said his shooter
was not Bey. No one but Taylor claimed to see Bey with the
weapon that matched the bullets at the scene—the silver
0.380 handgun.

       Thus, in light of the importance of Officer Taylor’s
eyewitness testimony in this case, and the fact that Bey’s
previous trial resulted in a hung jury, we conclude that Bey
was prejudiced because of his trial counsel’s failure to object
to the faulty Kloiber charge. The questions the second jury
had about Taylor’s testimony also strengthen our conclusion.
Therefore, we hold that Bey can show his underlying
ineffective assistance of trial counsel claim is a substantial
one under Martinez.

       To excuse his procedural default, Martinez also
requires that Bey show that his counsel on collateral review
rendered ineffective assistance under Strickland.68 As
discussed above, in Pennsylvania, it is PCRA counsel’s
responsibility to raise any ineffective assistance of counsel
claims to avoid forfeiting them under state law.69 Since
collateral review with new counsel is the first possible
instance in which to raise claims of ineffective assistance of
trial counsel, PCRA counsel’s failure to raise an



      68
           Martinez, 566 U.S. at 14.
      69
           Grant, 813 A.2d at 738.

                               21
ineffectiveness claim in the initial petition means that “no
state court at any level will hear the prisoner’s claim.”70

       As we noted above, the three Kloiber claims that Bey’s
PCRA counsel raised failed to include or refer to the language
requiring the jury to accept testimony that Bey was the
shooter. While we have no record of why PCRA counsel
would have chosen to omit an ineffectiveness argument based
on the language at issue here, we can think of no strategic
reason why counsel would do so, and the state has not offered
any viable explanation for such a glaring omission.
Accordingly, we agree with Bey that his PCRA counsel’s
performance was deficient under Strickland and that Bey was
prejudiced by PCRA counsel’s omission. Bey’s case,
therefore, fits into the narrow category of cases outlined in
Martinez, and his procedural default is excused as to his
ineffectiveness claim based on the faulty Kloiber jury
instruction.

                               C

        Because Bey has shown cause and prejudice to
overcome his procedural default, we now consider the merits
of his claim.71 Given what we have already said, resolution of
the merits requires little additional discussion. We need not
repeat the numerous reasons why the Kloiber jury instruction
violated Bey’s due process rights. For the same reasons Bey’s
Sixth Amendment claim is “substantial” under Martinez, Bey
is able to sustain his burden of showing that his trial counsel’s
assistance was ineffective for failing to preserve a claim that
has obvious merit. Accordingly, we will vacate the District
Court’s order denying his petition and remand with
instructions to issue a conditional writ. Because we grant
relief based on Bey’s ineffective assistance of counsel claim
pertaining to the Kloiber issue, we need not consider his

       70
         Martinez, 566 U.S. at 10.
       71
         Id. at 17 (“A finding of cause and prejudice . . . .
allows a federal court to consider the merits of a claim that
otherwise would have been procedurally defaulted.”).

                               22
ineffectiveness claim based on the prosecution’s closing
statements.

                              III

       For the reasons stated above, we will vacate the
District Court’s order denying habeas relief and remand with
instructions for the court to grant a conditional writ of habeas
corpus.




                              23
