                                              NOT PRECEDENTIAL

           UNTIED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                        _____________

                         No. 09-4529
                        _____________

              MICHAEL BOETTLIN, JR.,
                            Appellant


                           v.

       PAUL K. SMEALS, SUPERINTENDENT;
    THE DISTRICT ATTORNEY OF THE COUNTY
  OF BERKS, JOHN T. ADAMS, ESQ. THE ATTORNEY
   GENERAL OF THE STATE OF PENNYSLVANIA,




     On Appeal From the United States District Court
         for the Eastern District of Pennsylvania
             (D.C. Civil No. 2-08-cv-02261)
      District Judge: Honorable Timothy J. Savage
                 ____________________


        Submitted under Third Circuit LAR 34.1(a)
                    on March 4, 2013


Before: RENDELL, AMBRO and VANASKIE, Circuit Judges


              (Opinion filed: May 1, 2013 )



                      ___________
                                    OPINION
                                    ___________

RENDELL, Circuit Judge:

       Michael Boettlin appeals the District Court’s dismissal of his petition for

writ of habeas corpus under 28 U.S.C. § 2254. For the reasons that follow, we

will affirm the District Court’s order of dismissal.

                                          I.

       In the early morning of July 25, 1987, Boettlin, then sixteen years old, and

his co-defendant, John Calvaresi, broke into the apartment of Stanley Detweiler to

commit robbery. When Detweiler confronted Boettlin and Calvaresi, Calvaresi

tackled him and Boettlin kicked him multiple times in the face. Calvaresi later

decapitated Detweiler. In addition to Detweiler’s body, the crime scene included

words written in Detweiler’s blood on the apartment walls.

       Based on these events, Boettlin was tried on several criminal charges before

a jury in Westmoreland County, Pennsylvania.1 Evidence at trial presented

conflicting accounts of whether Boettlin was involved in the beheading. On

August 15, 1988, the jury convicted Boettlin of first-degree murder, among other

crimes, and he was sentenced to life imprisonment plus 20 to 40 years.

       Boettlin timely appealed his sentence, which the Pennsylvania Superior

Court affirmed on April 2, 1990. The Pennsylvania Supreme Court declined to

1
  The criminal complaint against Boettlin was filed in the Court of Common Pleas
of Berks County, Pennsylvania. Upon an unopposed motion for change of venue,
the case was transferred to Westmoreland County for trial.
                                          2
review his appeal. Boettlin then timely initiated proceedings under the

Pennsylvania Post Conviction Relief Act (“PCRA”), including a claim of

ineffective assistance of counsel for failure to object to certain jury instructions for

first-degree murder, which Boettlin claimed were defective. On November 16,

2005, the PRCA court dismissed the petition, concluding, in part, that the jury

instructions were consistent with Pennsylvania law, thereby rendering Boettlin’s

ineffective counsel claim meritless. The Pennsylvania Superior Court affirmed the

dismissal, and the Pennsylvania Supreme Court denied allocatur.

       On May 15, 2008, Boettlin timely filed his 28 U.S.C. § 2254 petition for

writ of habeas corpus with the United States District Court for the Eastern District

of Pennsylvania, claiming that: (1) the improper jury instructions violated his due

process rights; and (2) his trial attorney’s failure to object to those instructions

violated his Sixth Amendment right to effective assistance of counsel.2 On

November 17, 2009, the District Court issued an order overruling Boettlin’s

objections to a Magistrate Judge’s report and recommendation (“R&R”),

approving and adopting the recommendations, and dismissing Boettlin’s petition

with prejudice. In adopting the R&R, the District Court determined that the trial

court’s instructions on first-degree murder accurately embodied Pennsylvania law,




       2
         Boettlin also asserted a violation of his Miranda rights, a claim that the
District Court rejected and which Boettlin does not raise on appeal.
                                           3
and consequently Boettlin’s counsel was not ineffective for failing to object to

them. Boettlin timely filed a notice of appeal.3

                                          II.4

       Central to Boettlin’s appeal is his contention that the trial court’s jury

instructions effectively eliminated the Commonwealth’s burden to establish the

specific intent requirement for first-degree murder. As a result, he claims both

that the instructions violated his due process rights and that he received ineffective

assistance of counsel due to his attorney’s failure to object to the instructions.



       3
         In adopting the R&R, the District Court rejected the Commonwealth’s
contention that Boettlin’s due process claim is barred for failure to exhaust in state
court and is now procedurally defaulted for failure to file within the PCRA’s one-
year limitations period. The Court determined that Boettlin’s due process claim
was fairly presented to the state courts through his ineffective assistance of
counsel claim.
       Although the Commonwealth revives the same exhaustion and procedural
default arguments on appeal, we will not address them because, as we will discuss,
Boettlin’s due process claim is meritless and can be dismissed under 28 U.S.C.
§ 2254(b)(2). See Carrascosa v. McGuire, 520 F.3d 249, 255 & n.10 (3d Cir.
2008) (holding that under Section 2254(b)(2) district courts may deny unexhausted
claims on the merits).
       4
         The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District Court
ruled on the petition without holding an evidentiary hearing, our review is plenary.
See Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005).
       A federal court may grant habeas relief for a constitutional claim that a state
court has adjudicated on the merits, and has “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.” 28 U.S.C.
§ 2254(d)(1). “Where, as here, it is the state court’s application of governing
federal law that is challenged, the decision must be shown to be not only
erroneous, but objectively unreasonable.” Waddington v. Sarausad, 555 U.S. 179,
190 (2009) (internal quotation marks omitted).


                                           4
        “In a criminal trial, the State must prove every element of the offense, and

a jury instruction violates due process if it fails to give effect to that requirement.”

Middleton v. McNeil, 541 U.S. 433, 437 (2004). An instruction violates due

process when “the instruction contained some ambiguity, inconsistency, or

deficiency,” and “there was a reasonable likelihood that the jury applied the

instruction in a way that relieved the State of its burden of proving every element

of the crime beyond a reasonable doubt.” Williams v. Beard, 637 F.3d 195, 223

(3d Cir. 2011) (internal quotation marks omitted).

       The jury instructions here did not relieve the Commonwealth of its burden

of proving all elements of first-degree murder. In Pennsylvania, “first-degree

murder requires the specific intent to kill, and that mens rea is also required of

accomplices and co-conspirators.” Laird v. Horn, 414 F.3d 419, 425 (3d Cir.

2005); see also 18 Pa. Cons. Stat. §§ 306(c)-(d), 2502(a). Boettlin claims that the

instructions improperly suggested that the jury could convict him as an accomplice

to first-degree murder so long as Calvaresi had the specific intent to kill, and

regardless of whether Boettlin, himself, possessed the specific intent to promote or

facilitate the murder. Specifically, the parts of the jury charge that Boettlin claims

are improper are as follows:

       [I]f you find that John Calvaresi actually had the specific intent, and
       actually killed Stanley Detweiler, with specific intent, so that John
       Calvaresi’s crime was first degree murder, then, the only way that
       Michael Boettlin can also be found guilty of first degree murder is if
       Michael Boettlin [was] an accomplice . . . .
              ....


                                           5
              . . . You may find the Defendant guilty of murder in the first
       degree, if you are satisfied that each of the following 3 elements has
       been proven beyond a reasonable doubt. First, that Stanley
       Detweiler is dead, second, that an accomplice of the Defendant
       killed him, and third, that the killing was with specific intent to kill
       and with malice.
              ....
              . . . [Y]ou cannot find the Defendant guilty of first degree
       murder unless you are satisfied beyond a reasonable doubt that he
       and/or his accomplice had a specific intent to kill.

2 Resp’t App. at 845:17-22; 848:25-849:6; 849:20-23.

       However, we do not review parts of jury instructions in isolation, and we

are “bound” to consider the instructions “as a whole.” Middleton, 541 U.S. at 437.

Thus, in addition to the specific language that Boettlin cites in his challenge, we

are cognizant of the context in which the trial court made them. For example, the

trial court initially instructed the jury about what an accomplice was as follows:

       An accomplice may be defined as a person who knowingly and
       voluntarily cooperates with or aids another in the commission of a
       particular crime. Otherwise, it must have been the purpose of the
       accomplice to intend to commit the crime; that is, his conscious
       purpose, to commit the crime.

2 Resp’t App. at 836:7-12. As another example, the trial court further explained

that if the jury found that Calvaresi had the requisite specific intent and was guilty

of first-degree murder, then

       the only way that Michael Boettlin can also be guilty of first degree
       murder is if Michael Boettlin [was] an accomplice; that is, with the
       intent of promoting or facilitating the first degree murder of Stanley
       Detwailer, he, Michael Boettlin, solicited, commanded, encouraged,
       or requested John Calvaresi to commit first degree murder upon
       Stanley Detweiler, or that Michael Boettlin aided, or agreed to aid,
       or attempted to aid John Calvaresi in planning or committing the
       first degree murder upon Stanley Detweiler.

                                          6
2 Resp’t App. at 845:20-846:4.

       Upon reviewing the jury instructions in toto, we agree with the District

Court’s determination that “the entirety of the instructions to the jury were both

reasonable and a proper recitation of Pennsylvania law.” Appellant App. at 22

(emphasis in original). Because the instructions embody an accurate reflection of

state law, they were neither ambiguous nor objectively unreasonable so as to

relieve the Commonwealth of its burden of proving every element of the crime.

The District Court did not err in concluding that the instructions did not violate

Boettlin’s due process rights.

       Furthermore, because the jury instructions were not improper, the District

Court properly concluded that Boettlin’s trial counsel was not deficient on these

grounds. Boettlin’s claim of ineffective assistance of counsel is unpersuasive.

                                              III.

       Accordingly, we will affirm the District Court’s order dismissing Boettlin’s

petition for habeas relief.




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