PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1259
______________
ARMEL BAXTER,
Appellant
v.
SUPERINTENDENT COAL TOWNSHIP SCI; DISTRICT
ATTORNEY PHILADELPHIA; ATTORNEY GENERAL
PENNSYLVANIA
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-00046)
District Judge: Honorable J. Curtis Joyner
______________
Submitted under Third Circuit L.A.R. 34.1(a)
March 15, 2021
______________
Before: SHWARTZ, PORTER, and MATEY, Circuit Judges.
(Filed: April 8, 2021)
Daniel A. Silverman
Suite 2500
123 South Broad Street
Philadelphia, PA 19109
Counsel for Appellant
David Napiorski
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300 Philadelphia, PA 19103
Counsel for Appellees
______________
OPINION
______________
SHWARTZ, Circuit Judge.
Armel Baxter was convicted of first-degree murder,
criminal conspiracy, and possession of an instrument of crime
in Pennsylvania state court. Baxter filed a federal habeas
petition, asserting that his trial counsel was ineffective for
failing to object to the trial court’s reasonable doubt jury
2
instruction.1 The District Court denied Baxter’s petition, but
issued a certificate of appealability. Because the reasonable
doubt instruction did not prejudice Baxter, we will affirm.
I
A
On a warm April 2007 afternoon, Demond Brown was
shot and killed at a playground in Philadelphia. Two
eyewitness accounts and a corroborating witness implicated
Baxter and his co-defendant Jeffrey McBride as the shooters.
The two eyewitnesses, Hassan Durant and Anthony Harris,
saw Baxter and McBride enter the playground wearing hooded
sweatshirts. Brown noticed the pair and began to run. The pair
then shot Brown eight to ten times and ran away. Durant and
Harris knew Baxter from living in the same neighborhood.
Rachel Marcelis, a friend of Baxter and McBride,
confirmed Baxter and McBride’s presence at the playground
and their roles in the shooting. On the day of the incident,
Marcelis drove by the playground with McBride and Baxter in
her car. Either McBride or Baxter said they saw someone at
the playground and told her to stop to let them out of the car,
and she did so. She thereafter noticed many people running
from the playground, including Baxter and McBride. Baxter
and McBride got back into the car and said that “they got him”
and that McBride “didn’t have the chance to shoot” because
his gun did not work. J.A. 158, 160. McBride later told
Marcelis that Brown had killed their good friend. That
1
Baxter raised other issues, but we focus on the sole
claim for which a certificate of appealability was issued.
3
weekend, Marcelis drove Baxter and McBride to Wilkes-
Barre, Pennsylvania. Marcelis returned to Philadelphia a few
days later, but McBride and Baxter stayed in Wilkes-Barre
until their arrests.2 When law enforcement first confronted
Baxter in Wilkes-Barre, Baxter gave three false names.
B
Baxter was charged with first-degree murder, 18 Pa.
Cons. Stat. § 2502(a); criminal conspiracy to engage in murder,
id. § 903(a)(1); and first-degree possession of an instrument of
a crime with intent to employ it criminally, id. § 907(a).
Durant, Harris, and Marcelis testified at his trial.
At issue in this appeal is the trial judge’s reasonable
doubt instruction. The trial judge first explained that the
Commonwealth’s burden of proof is “beyond a reasonable
doubt,” which is “the highest standard in the law,” and is “the
only standard that supports a verdict of guilty.” J.A. 34. The
trial judge stated that the Commonwealth “is not required to
meet some mathematical certainty” or “to demonstrate the
complete impossibility of innocence.” J.A. 34. Instead, the
trial judge explained that reasonable doubt is “a doubt that
would cause a reasonably careful and sensible person to pause,
to hesitate, to refrain from acting upon a matter of the highest
2
At trial, Baxter’s lawyer attempted to impeach
Marcelis by suggesting that she imagined the events as the
result of drugs and alcohol she consumed the night before the
shooting. Marcelis admitted to using drugs and not sleeping
that night but testified that she did not imagine the events or
conversations with McBride and Baxter.
4
importance to your own affairs or to your own interests.” J.A.
34.
The judge then provided an example for how to think
about reasonable doubt:
If you were advised by your loved one’s
physician that that loved one had a life-
threatening illness and that the only protocol was
a surgery, very likely you would ask for a second
opinion. You’d probably get a third opinion.
You’d probably start researching the illness,
what is the protocol, is surgery really the only
answer. You’d probably, if you’re like me, call
everybody you know in medicine: What do you
know about this illness? What do you know
about this surgery? Who does this surgery across
the country? What is my option.
At some moment, however, you’re going to be
called upon to make a decision: Do you allow
your loved one to go forward? If you go forward,
it’s because you have moved beyond all
reasonable doubt.
J.A. 34. The judge then explained that “a reasonable doubt
must be a real doubt” and “may not be a doubt that is imagined
or manufactured to avoid carrying out an unpleasant
responsibility.” J.A. 34. Defense counsel did not object to the
instruction.
A jury convicted Baxter on all charges, and Baxter was
sentenced to life in prison without parole for first-degree
5
murder, and concurrent terms of ten-to-twenty years’
imprisonment for conspiracy and one-to-two years’
imprisonment for instrument possession.
The Pennsylvania Superior Court affirmed Baxter’s
conviction, Commonwealth v. Baxter, 996 A.2d 535 (Pa.
Super. Ct. 2010), and the Pennsylvania Supreme Court denied
review, Commonwealth v. Baxter, 17 A.3d 1250 (Pa. 2011).
Baxter filed a pro se petition and amended petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §
9541 et seq., raising several arguments challenging the
effectiveness of his trial counsel, but not challenging counsel’s
failure to object to the reasonable doubt jury instruction. The
PCRA court denied Baxter’s petition, the Pennsylvania
Superior Court affirmed, Commonwealth v. Baxter, 159 A.3d
589 (Pa. Super. Ct. 2016), and the Pennsylvania Supreme
Court denied review, Commonwealth v. Baxter, 169 A.3d 547
(Pa. 2017).
Baxter petitioned for a writ of habeas corpus in the
United States District Court for the Eastern District of
Pennsylvania, arguing for the first time that his trial counsel
was ineffective for failing to object to the trial court’s
reasonable doubt instruction.3 The Magistrate Judge
concluded that his claim was meritless because “[a]lthough the
contested instruction is inartful and its illustration inapt,” jury
instructions should be viewed in their entirety, and here, the
instruction read as a whole was constitutional. Baxter v.
3
Despite Baxter’s failure to raise this ineffective
assistance of counsel claim until his petition for a writ of
habeas corpus, the Commonwealth does not argue that
Baxter’s claim is procedurally barred.
6
McGinley, No. 18-cv-46, 2019 WL 7606222, at *5-6 (E.D. Pa.
Dec. 5, 2019) (citing Supp. Report & Recomm., Corbin v. Tice,
No. 16-4527 (E.D. Pa. Jan. 15, 2019), ECF No. 42).
Accordingly, the Magistrate Judge recommended that the
petition for writ of habeas corpus be denied with prejudice. Id.
at *10.
The District Court adopted the Magistrate Judge’s
Report and Recommendation, but found that there was
probable cause to issue a certificate of appealability on
Baxter’s ineffective assistance of counsel claim based on his
trial counsel’s failure to object to the trial court’s reasonable
doubt instruction. Baxter appeals.
II4
A
Because Baxter’s ineffective assistance of counsel
claim regarding the constitutionality of the reasonable doubt
instruction was not adjudicated on the merits in state court, we
need not apply the deferential standard of review set forth in
the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2254(d). Rather, our review of the state court’s legal
determinations is plenary. Appel v. Horn, 250 F.3d 203, 210
(3d Cir. 2001). Because the District Court did not hold an
evidentiary hearing, our review of its decision is plenary. Ross
v. Dist. Att’y of the Cnty. of Allegheny, 672 F.3d 198, 205 (3d
Cir. 2012).
4
The District Court had jurisdiction under 28 U.S.C. §
2254. This Court has jurisdiction under 28 U.S.C. §§ 1291 and
2253.
7
B
Baxter argues that his counsel was ineffective for failing
to object to the reasonable doubt instruction. Normally, we
would review an ineffective assistance claim under Strickland
v. Washington, 466 U.S. 668, 687 (1984), which requires that
we consider whether the failure to object fell below the
standards for competent representation and whether that failure
resulted in prejudice.
We will assume that the failure to object to the
instruction fell below the standard for competent
representation,5 and thus focus on the prejudice issue. Under
Strickland, to establish prejudice, a petitioner must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 694. Baxter, however, contends
that he need not prove actual prejudice because the failure to
5
Although the Commonwealth does not challenge
whether the failure to object to the instruction fell below the
standard of competent representation, there are persuasive
arguments that the instruction, read in its entirety, did not
violate due process and thus justified counsel’s decision not to
object to the instruction. See Supp. Report & Recomm.
Corbin, No. 16-4527, ECF No. 42 (collecting cases and
upholding identical jury instructions because “in evaluating a
challenge to jury instructions, the court must ‘consider the
totality of the instructions and not a particular sentence or
paragraph in isolation’” (quoting United States v. Thayer, 201
F.3d 214, 221 (3d Cir. 1999))). We, however, need not decide
this issue in this case.
8
object to the reasonable doubt jury instruction led to a
structural error, and such errors so fundamentally impact the
trial process that prejudice is presumed. We will therefore
discuss the concept of structural error and whether prejudice is
always presumed.
The Supreme Court has defined a structural error as one
that “affect[s] the framework within which the trial proceeds,
rather than being simply an error in the trial process itself.”
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017)
(alteration in original) (quotation marks and citation omitted).
The Court has identified the following as structural errors:
(1) complete deprivation of the right to counsel; (2) lack of an
impartial judge; (3) unlawful exclusion of grand jurors of the
defendant’s race; (4) denial of the right to self-representation
at trial; (5) denial of the right to a public trial; and (6) an
erroneous reasonable doubt jury instruction. See Johnson v.
United States, 520 U.S. 461, 468-69 (1997) (collecting cases);
Lewis v. Pinchak, 348 F.3d 355, 358 (3d Cir. 2003).
The Supreme Court has stated that “the . . . doctrines
[of structural error and ineffective assistance of counsel] are
intertwined; for the reasons an error is deemed structural may
influence the proper standard used to evaluate an ineffective-
assistance claim premised on the failure to object to that error.”
Weaver, 137 S. Ct. at 1907. A showing of structural error,
however, does not always trigger a presumption of prejudice.
For example, in Weaver, the Supreme Court examined a
structural error related to the right to a public trial, closing the
courtroom during jury selection, and whether that error
triggered a presumption of prejudice. 137 S. Ct. at 1905. The
petitioner argued that he need not show prejudice, as his
attorney’s failure to object to the courtroom closure (the
9
structural error) rendered the trial “fundamentally unfair.” Id.
at 1911.
The Court stated that it would “assume,” “[f]or the
analytical purposes of th[e] case,” “that petitioner’s
interpretation of Strickland is the correct one,” but, in light of
its ultimate holding, it wrote that it “need not decide that
question here.” Id. The Court concluded that, even under the
petitioner’s theory, while some deprivations of the right to a
public trial might not require proof of actual prejudice, others
do require such proof. See id. at 1908 (“[T]he question is
whether a public-trial violation counts as structural because it
always leads to fundamental unfairness or for some other
reason.”). The Court noted that closing voir dire is not akin to
closing the part of trial where the evidence is being adduced,
and thus prejudice was not presumed.6 See id. at 1913
6
Contrary to Baxter’s argument, Weaver did not
establish that an erroneous reasonable doubt instruction is a
structural error that warrants presumptive prejudice. In
Weaver, the Supreme Court acknowledged that its holding did
not call into question precedents determining that certain
structural errors, such as an erroneous jury instruction, require
automatic reversal if raised on direct appeal. 137 S. Ct. at
1911-12 (citing, e.g., Sullivan v. Louisiana, 508 U.S. 275, 278-
79 (1993)). Furthermore, the Court declined to address, in the
context of structural errors other than the one at issue in
Weaver, “whether the result should be any different if the
errors were raised instead in an ineffective-assistance claim on
collateral review,” as is the case here. Id. at 1912; see also id.
at 1907 (limiting the holding to “the context of trial counsel’s
failure to object to the closure of the courtroom during jury
selection”).
10
(explaining that some circumstances might warrant a
presumption of prejudice, such as if “defense counsel errs in
failing to object when the government’s main witness testifies
in secret”). Assuming without deciding that an inartful or
partially incorrect reasonable doubt instruction constitutes a
structural error, and, like the Weaver Court, “that prejudice can
be shown by a demonstration of fundamental unfairness,” we
will apply a similar approach to evaluate whether such an error
triggers the presumption of prejudice. Id. at 1913. The
complete failure to give such an instruction is a structural error
that so infects the trial process that the verdict cannot be said
to reflect a proper verdict in a criminal case. See Sullivan v.
Louisiana, 508 U.S. 275, 281 (1993) (stating that “[d]enial of
the right to a jury verdict of guilt beyond a reasonable doubt”
is a “structural defect[] in the constitution of the trial
mechanism, which def[ies] analysis by harmless-error
standards” (citation and internal quotation marks omitted)). In
such circumstances, “the resulting trial is always a
fundamentally unfair one.” Weaver, 137 S. Ct. at 1908 (citing
Sullivan, 508 U.S. at 279). When a reasonable doubt
instruction is given, however, the rules concerning evaluating
a jury instruction apply. United States v. Isaac, 134 F.3d 199,
204 (3d Cir. 1998). These rules “do[] not require that any
particular form of words be used in advising the jury of the
government’s burden of proof.” Victor v. Nebraska, 511 U.S.
1, 5 (1994). Instead, the rules require examining the language
in its totality and determining whether the instructions
correctly captured the applicable legal concepts. Isaac, 134
F.3d at 204 (upholding a reasonable doubt instruction because
although part of the instruction was erroneous, “this defect was
counterbalanced by the explanation that preceded and
succeeded it”). In the context of an ineffective assistance of
counsel claim, if we conclude that the instruction contains an
11
error, we then examine whether the instruction resulted in
actual prejudice.7
Here, Baxter contends, and the Commonwealth does not
dispute, that the instruction contained an example that
impacted the accuracy of the jury instruction. Even if the
example used in the instruction improperly cast the reasonable
doubt standard, the surrounding language correctly expressed
the standard. Moreover, the evidence against Baxter shows
that even the inapt example did not prejudice him. See Buehl
v. Vaughn, 166 F.3d 163, 171-72 (3d Cir. 1999) (concluding
that “[i]n view of the magnitude of the evidence that the
Commonwealth presented,” the defendant could not show he
was prejudiced by the absence of a limiting instruction).
7
This approach is similar to how we examine various
claims of ineffective assistance of counsel. For example, in
United States v. Cronic, 466 U.S. 648, 658 (1984), the
Supreme Court noted that prejudice is presumed when (1) there
is complete denial of counsel, (2) counsel fails to subject the
prosecution’s case to meaningful adversarial testing, or
(3) there is a very small likelihood that even a fully competent
counsel could provide effective assistance. Id. at 659-60; see
also Bell v. Cone, 535 U.S. 685, 695-96 (2002) (same). When,
however, counsel makes an isolated error during the trial, such
as failing to object to a jury instruction, the defendant must
show actual prejudice to prevail on a claim of ineffective
assistance of counsel. See Strickland, 466 U.S. at 695-96
(distinguishing errors that have an “isolated, trivial” effect and
do not affect factual findings from those that have a pervasive
effect that therefore result in a “breakdown in the adversarial
process”). Thus, not all errors involving the actions of counsel
trigger a presumption of prejudice.
12
Various eyewitnesses who were in close proximity of and who
knew Baxter for years testified that Baxter and McBride chased
Brown and repeatedly shot him. Baxter’s friend Marcelis
corroborated the eyewitness accounts with her report of driving
Baxter and McBride to the playground, hearing their
incriminating remarks after the shooting and their motive for
it, and their flight to Wilkes-Barre.8 This flight, together with
Baxter’s use of false names when he encountered law
enforcement after the murder, provided a basis to infer a
consciousness of guilt. In light of this evidence, Baxter cannot
show he was prejudiced by the phrasing of the example in an
otherwise correct reasonable doubt jury instruction. See
Saranchak v. Secretary, Pa. Dep’t of Corrs., 802 F.3d 579, 592
(3d Cir. 2015) (concluding that trial errors “did not contribute
to a reasonable probability of a different outcome given the
strength of the Commonwealth’s case”). Accordingly,
8
Baxter’s challenges to the strength of the evidence are
not persuasive. First, although Baxter notes that Durant had an
open drug case at the time he testified, there was no promise
he would reason favorable treatment in that case in exchange
for his testimony against Baxter. Next, Baxter relies upon
testimony at the PCRA hearing to argue that Harris identified
a different shooter. Because this evidence was not presented
at trial, we cannot consider it to determine prejudice. See
Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (“In
assessing prejudice, courts must consider the totality of the
evidence before the judge or jury.” (quotation marks and
citations omitted)). His efforts to undermine Marcelis
testimony also fail. The jury had sufficient evidence to reject
his argument that Marcelis imagined the events about which
she testified given her testimony that, while she used drugs the
night before, she had a clear recollection of the events.
13
Baxter’s counsel’s failure to object to the reasonable doubt
instruction did not prejudice him, and thus he cannot show he
was deprived of effective assistance of counsel.
III
For the foregoing reasons, we will affirm.
14