NOT PRECEDENTIAL UNITED STATES COURT OF APEALS FOR THE THIRD CIRCUIT _____________

No. 18-2054 _____________

BASHEER HARRISON, Appellant

v.

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; SUPERINTENDENT GRATERFORD SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-14-cv-02114) District Judge: Hon. Nitza I. Quiñones Alejandro _______________

Submitted Under Third Circuit LAR 34.1(a) November 12, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges.

(Filed: November 25, 2019) _______________

OPINION ∗ _______________

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.

Basheer Harrison 1 appeals the order of the District Court denying his petition for

habeas relief under

and 2254. He claims that the reasonable doubt

instruction given to the jury at trial deprived him of due process. Seeing no error in that

instruction, we will affirm.

I. BACKGROUND

On December 19, 2004, Harrison and Anthony Funny, while on Funny’s front

porch, had a physical fight over a gun. In the course of the struggle, Harrison shot

Funny, who later died from his injuries. After the shooting, Harrison dropped the gun

and ran across the street to his car. Having witnessed the struggle from the doorway,

Funny’s stepson, Louis Seabrook, came onto the porch and watched as Harrison, whom

he knew, got into the car. As Seabrook was tending to his stepfather on the porch, two

other armed men opened fire on Seabrook and Funny. Those two shooters then got in

Harrison’s car with him and the three drove away.

Seabrook promptly called the police. When the officers arrived on the scene, he

described the vehicle and license plate number. The officers radioed a description of the

vehicle and plate number to other police and received back a report of the vehicle’s

location. The officers took Seabrook to that location, where he identified Harrison as the

man who shot Funny. Seabrook later also identified the two other shooters from a photo

1 In state court proceedings, Harrison was referred to as Basheer Hairston, which the Commonwealth claims is how he referred to himself. Harrison now claims that his actual surname is Harrison. This case is captioned accordingly, and we refer to him by that name. 2 array. Physical evidence from the scene, including a gun and cartridge casings,

corroborated Seabrook’s testimony.

Harrison was arrested and charged with murder, attempted murder, aggravated

assault, and possession of an instrument of crime. At trial, a jury found him guilty of

third-degree murder, attempted murder, aggravated assault, and possession of an

instrument of a crime. 2

Before deliberations began, the judge instructed the jury on reasonable doubt, as

follows:

Let me speak to you about reasonable doubt. Although the Commonwealth has the burden of proving that a defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt or to a mathematical certainty. Nor must it demonstrate the complete impossibility of innocence. A 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 highest importance in his or her own affairs or to his or her own interests. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of a crime charged.

A reasonable doubt must be a real doubt. It may not be an imagined one nor may it be a doubt that’s manufactured to avoid carrying out an unpleasant duty. So, to summarize, you may not find the defendant guilty based upon a mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If the Commonwealth has met that burden, then the defendant is no longer presumed to be innocent and you should find him guilty. On the other hand, if the Commonwealth has not met its burden, then you must find him not guilty.

(App. at 102-03) (emphasis added).

2 Harrison was initially charged with first-degree murder. At trial, however, he was granted an acquittal on the first-degree murder charge, as well as conspiracy charges, after the presentation of the Commonwealth’s case. 3 After the guilty verdict, Harrison was sentenced to consecutive terms of twenty to

forty years of imprisonment for murder, seven and one-half to fifteen years of

imprisonment for attempted murder, and one and one-half to five years of imprisonment

for possession of an instrument of a crime.

Represented by his trial counsel, Harrison filed direct appeals, and his conviction

was affirmed. With new counsel, Harrison also completed Pennsylvania’s collateral

review process. On collateral review, his petition was dismissed without a hearing, and

the dismissal was affirmed by both the Superior Court and the Supreme Court of

Pennsylvania. Not at anytime during trial, direct appeal, or on collateral review did

Harrison raise a due process claim based on the reasonable doubt instruction, as he now

does. 3

After losing on collateral review, Harrison filed the present petition for a writ of

habeas corpus, which was referred to a Magistrate Judge for a report and

recommendation. The Magistrate Judge recommended that the petition be denied. The

District Court agreed and denied relief, but it certified the due process issue for appeal to

us, and this appeal followed.

3 Harrison frankly admits that, for habeas purposes, his failure to raise his due process claim earlier amounts to a procedural default. Harrison claims, however, that ineffective assistance of counsel excuses the procedural default that would otherwise prohibit his federal habeas claim. See Martinez v. Ryan,

(2012). We recently considered the procedural default analysis at length in Workman v. Superintendent Albion SCI,

(3d Cir. 2019), although we note that the District Court reviewed Harrison’s petition prior to the Workman decision. Because Harrison’s due process argument fails on the merits, we do not address his procedural default. 4 II. DISCUSSION 4

Harrison asserts that he was denied due process by the trial court’s instruction to

the jury on reasonable doubt. Specifically, he claims that the phrase “to pause, to

hesitate, to refrain from acting” impermissibly lowered the prosecution’s burden of proof.

We disagree.

A. Reasonable Doubt Jury Instruction

The Due Process Clause ensures that when an individual is accused of a crime, the

jury must convict that person “upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” In re Winship,

(1970). Accordingly, any instructions a judge gives to a jury on what it means to

find someone guilty beyond a reasonable doubt must “correctly convey the concept of

reasonable doubt to the jury.” Victor v. Nebraska,

(1994) (alterations and

citation omitted). Jury instructions violate due process when “there is a reasonable

likelihood that the jury understood the instructions to allow conviction based on proof

insufficient to meet the [reasonable doubt] standard.”

.

Harrison claims that the reasonable doubt instruction at his trial violated his due

process rights because it included the phrase “to refrain from acting” as being conjunctive

with the phrases “to pause” and “to hesitate” in describing reasonable doubt. While “to

pause” and “to hesitate,” reflect an appropriate description of reasonable doubt, Harrison

4 The District Court had jurisdiction under

and 2254. We have jurisdiction pursuant to

and 2253. We review the District Court’s legal conclusions de novo. See Thomas v. Horn,

(3d Cir. 2009). 5 argues, “to refrain from acting” impermissibly lowers the prosecution’s burden of proof.

Harrison cites our opinion in Thomas v. Horn, in which we said in dicta that the phrase to

“‘restrain from acting’… decreases, to some extent, the burden of proof[.]” 5

(3d Cir. 2009).

We disagree with Harrison’s reading of the jury instruction. First, we are not

convinced that the most natural reading of the instruction is as a conjunctive list. The

lack of an actual conjunction in the list more naturally indicates that the words “to pause,

to hesitate, to refrain from acting” were intended as a disjunctive, illustrative list of

behaviors that could reflect what it means to have a reasonable doubt. This is

underscored by the fact that “to pause” and “to hesitate” are nearly synonymous, thus

negating the need for a conjunctive “and” to include both behaviors. Importantly, and as

Harrison notes, this Court and the Pennsylvania courts have repeatedly approved jury

instructions that include “to refrain from acting” or “to restrain from acting” when it is in

a disjunctive list. See, e.g.,

; Commonwealth v. Uderra,

(Pa.

2004).

Second, even if the jury instruction were properly understood as setting forth a

conjunctive list, we approved the “to restrain from acting” formulation of reasonable

doubt in Thomas. Although we indicated that “to restrain from acting” is not an exact

synonym of “to pause” or “to hesitate,” we upheld the jury instruction that included that

phrase. We reasoned that “even though we believe that the ‘restrain from acting’

5 The parties agree, as do we, that “to refrain from acting” and “to restrain from acting” are effectively synonymous. 6 formulation lessens the prosecution’s burden of proof, we cannot say that its use is

unconstitutional.” Thomas,

.

Whether understood as conjunctive or disjunctive, the wording at issue in this

instruction falls within the range of permissible instructions on reasonable doubt. There

was no warrant for habeas relief here, and the District Court correctly denied the petition.

III. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court.

7