NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-1737 ______________

SPENCER WALLACE, Appellant

v.

SUPERINTENDENT ROCKVIEW SCI; THE ATTORNEY GENERAL PENNSYLVANIA; THE DISTRICT ATTORNEY PHILADELPHIA ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 2-18-cv-03509) District Judge: Honorable Nitza I. Quiñones Alejandro ______________

Submitted under Third Circuit L.A.R. 34.1(a) March 21, 2023

BEFORE: JORDAN, GREENAWAY, JR., and McKEE, Circuit Judges.

(Filed: June 2, 2023) ______________

OPINION* ______________

GREENAWAY, JR., Circuit Judge.

Appellant Spencer Wallace appeals from the District Court’s denial of his habeas

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. petition. For the following reasons, we will affirm the denial.

I. Background

Spencer Wallace was tried by a jury in the Court of Common Pleas of Philadelphia

County for the murder of Harry Ballard. He was charged with the following offenses:

Murder of the First Degree, violations of Pennsylvania’s Uniform Firearms Act (VUFA

charges), and Possession of an Instrument of Crime (PIC charge). The jury convicted

Wallace, and he was sentenced to a mandatory term of life in prison without parole on the

murder offense with a consecutive term of 2 to 7 years for the VUFA charges and 1 to 5

years on the PIC offense, all to run consecutively. In reaching a guilty verdict, the jury

rejected Wallace’s defense that he did not possess the firearm used to shoot Ballard.

Wallace’s principal argument on appeal centers around the trial court’s jury

instructions. The trial court instructed the jury prior to the guilty verdict. As the court

was instructing the jury on the murder count, the court explained that there were three

elements that the prosecution had to prove to be successful: (1) the death of the victim,

(2) that the defendant killed the victim, and (3) that the defendant killed the victim with

the specific intent to kill and with malice. The court explicitly noted that the first element

was not disputed because “there’s no question” that the victim was dead. A307. On the

murder offense, the court continued onwards to explain

[w]hen deciding whether or not the defendant had the specific intent to kill, you should consider all the evidence regarding his words and conduct and the attending circumstances that might show his state of mind.

A307 (emphasis added). The jury was instructed the following on the PIC offense:

2 In order to find the defendant guilty of this offense, you have to find, first of all, that the defendant possessed a firearm. To possess an item, the defendant must have the power to control it and the intent to control it. Secondly, that the firearm was an instrument of a crime. An instrument of a crime is anything that is used for criminal purposes and possessed by a defendant at the time of the alleged offense under circumstances that are not manifestly appropriate for any lawful uses it might have . . . . [T]he second element, that the firearm was an instrument of a crime, has been proven by the facts of this case that are not contradicted; and that the defendant possessed the firearm with the intent to attempt or commit a crime with it—in this case the crime of murder. So what you have to decide is whether or not the defendant possessed a firearm.

A308 (emphasis added). At multiple points, the trial court retold the jurors that they

were the sole judges of the facts and that they had to weigh the evidence presented

and making any logical inferences. Neither defense counsel nor the prosecutor

made objections to the court’s charge to the jury.

Wallace used both state and federal processes to challenge his conviction. After

unsuccessfully appealing his verdict and sentence, Wallace requested relief under

Pennsylvania’s post-conviction relief process. The Superior Court of Pennsylvania

affirmed the denial of post-conviction relief without an evidentiary hearing.

Commonwealth v. Wallace, No. 913-EDA-2016,

, *8 (Pa. Super. Ct.

Dec. 8, 2017). Wallace petitioned for allowance of appeal, which the Pennsylvania

Supreme Court denied. Commonwealth v. Wallace,

(Pa. 2018). Wallace

also filed a

habeas petition raising multiple claims, only two of which

are relevant here: (1) trial counsel was ineffective for not objecting to the trial court’s

jury instructions because the court directed a verdict against Wallace on both the VUFA

and PIC charges and (2) trial counsel was ineffective for not objecting to the trial court

3 allegedly inserting its own opinion that Wallace possessed a firearm with intent to

commit murder.1 Wallace’s habeas petition was referred to a magistrate judge. The

magistrate judge issued a report and recommendation, advising that the petition be

dismissed in full. The magistrate judge concluded that both ineffective assistance of

counsel claims were procedurally defaulted because the Superior Court of Pennsylvania

based its decision on an independent and adequate state law ground that barred review of

the claim. The magistrate judge also concluded that Wallace failed to exhaust his claim

under federal law because he did not “‘fairly present’ his due process argument in state

court.” A111.

After reviewing the magistrate judge’s Report and Recommendation, the District

Court denied Wallace’s habeas petition. However, the court disagreed with the

magistrate judge that these two claims were procedurally defaulted. The District Court

concluded that Wallace had adequate citations to federal case law to put the Superior

Court of Pennsylvania on notice that Wallace was raising a federal due process claim.

Proceeding to the merits, the District Court proceeded to the merits of the claim and held

that the Superior Court of Pennsylvania correctly applied federal law in analyzing the

jury instruction issue as pertaining to the VUFA and PIC charges, and that Wallace could

not show prejudice.

1 The District Court granted a certificate of appealability on both claims. 4 II. Discussion2

Wallace urges us to conclude that his trial counsel was ineffective for failing to

object to the trial court’s jury instructions, which he argues constituted a directed verdict

that violated his right to due process. We decline to do so; we agree with the District

Court’s denial of his habeas petition on the merits.

a. Legal Standards

An individual alleging ineffective assistance of counsel must prove two elements:

(1) counsel’s performance was deficient, determined by ascertaining whether counsel’s

representation fell below an objective standard of reasonableness and (2) deficient

performance prejudiced the defendant, which requires that the outcome of trial would

have been different except for counsel’s error. Strickland v. Washington,

(1984).

The Antiterrorism and Effective Death Penalty Act (AEDPA) changed the

standard for federal courts reviewing state-court judgments through

habeas petitions. A federal court can only grant a habeas petition if the state court’s

decision was (1) “contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United States” or

2 The District Court had jurisdiction pursuant to

and 2254(a). The District Court granted a certificate of appealability. We have jurisdiction pursuant to

(c)(1)(A) and 1291. We agree that § 2254(d) does not bar relief and exercise plenary review over a district court’s dismissal of a habeas petition where the court did not hold an evidentiary hearing. Dennis v. Sec’y, Pa. Dep’t of Corr.,

(3d Cir. 2016) (en banc).

5 (2) “resulted in a decision that was based on an unreasonable determination of the facts in

light of evidence presented in the State court proceeding.”

(d). See also

Williams v. Taylor,

, 375–390 (2000).

This standard is exacting—the first requirement is only met when there is “no

possibility for fairminded disagreement” and a party can demonstrate that “Supreme

Court precedent requires a contrary outcome.” Spanier v. Dir. Dauphin Cty. Prob.

Servs.,

(3d Cir. 2020) (cleaned up). The second requirement is met

when a state court’s decision is based on an unreasonable determination of the facts and

the state court’s factual findings are “objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Miller-El v. Cockrell,

(2003).

The Due Process Clause of the Fourteenth Amendment protects defendants from

jury instructions that may inadvertently decrease the burden of proof on the Government

because it requires that each element of an offense be proven beyond a reasonable doubt.

Tyson v. Superintendent Houtzdale SCI,

(3d Cir. 2020) (citing In re

Winship,

(1970)). A conviction violates a defendant’s due process

right if there is “ambiguity, inconsistency, or deficiency” in the jury instruction “such that

it creates a reasonable likelihood the jury misapplied the law and relieved the government

of its burden . . . .”

(cleaned up). In evaluating such a due process claim, the court

must independently review how a reasonable jury would have interpreted the instructions.

Id.; Francis v. Franklin,

(1985). The court must focus on the

challenged language but consider it in the context of the whole charge to determine

whether there is a reasonable likelihood that the jury applied the instructions in a manner

6 that violated due process rights. Tyson,

.

b. Analysis

Viewing the jury instructions as a whole makes clear that the trial judge was not

issuing a directed verdict. If the disputed language is looked at in isolation, one may

conclude that the trial court was pronouncing Wallace to be the perpetrator during the

charge, which would not pass constitutional muster. But reviewing the rest of the charge

shows that the trial court repeatedly instructed that it was the jury’s duty, and not the

court’s, to determine whether Wallace was the perpetrator.

There is no reasonable likelihood that the jury was misled in convicting Wallace.

Wallace’s due process rights under the Fourteenth Amendment were not violated by the

trial court’s jury instructions as a whole on either the VUFA charge or the PICU charge.3

The specific language of the jury instructions that Wallace points to is the excerpt from

the trial court’s PIC instruction that “the second element, that the firearm was an

instrument of the crime, has been proven by the facts of this case that are not

contradicted; and that the defendant possessed the firearm with the intent to attempt or

commit a crime with it—in this case the crime of murder.” A308 (emphasis added).

According to Wallace, that instruction implied that he possessed the gun and therefore

had the intent to commit murder. We agree with the District Court’s observation that this

3 The District Court evaluated these claims together because the analysis requires identical legal principles and discussion of the facts. We adopt the same approach here for the same reason. 7 instruction, taken in isolation, would relieve the prosecution of its burden of having to

prove mens rea.

But our analysis does not stop there. Before accidentally stating that “the

defendant possessed the firearm with the intent to attempt or commit a crime with it,”

A308, the trial court properly instructed the jury on the mens rea element for first degree

murder. This directive correctly explained the “state of mind,” A307, requirement for

first degree murder, and shows that, although the trial court may have made an error, the

error was unlikely to have altered the juror’s understanding of the mens rea burden of

proof, United States v. Pennue,

(1st Cir. 2014) (error in jury

instruction improbable to impact government burden of proof where erroneous

instruction was surrounded by other correct instructions). The trial court, before and after

the mistaken instruction, described the different mental states and how they were defined

for the jurors to reach a verdict. The trial court went on to explain that the main

contested element was possession of the firearm and that that was what the jury needed to

decide. Interspersed throughout the jury instructions was the trial court’s repeated

directive that the jury was the sole arbiter of the facts and that the jury had to make

logical inferences and credibility determinations about the evidence presented. This

shows that despite the trial court’s slip of the tongue in referring to the perpetrator as “the

defendant,” the inadvertent error did not decrease the Government’s burden of proof at

trial.

8 The trial court’s emphasis, in the context of the PIC instruction, on possession of a

firearm, as opposed to mens rea, is logical given Wallace’s defense at trial. Wallace did

not emphasize whether Ballard was killed by a firearm or whether someone used a

firearm with the intent to commit a crime. The trial court’s instructions were an attempt

to focus the jury on the most contested element of the trial—who possessed the firearm.

Neither party objected to the jury instructions before the case was submitted to the jury,

indicating that counsel did not recognize an error. See United States v. Flores,

(3d Cir. 2006) (“[C]ounsel’s failure to object leaves us with the impression that

the misstatement in the oral charge was hardly noticeable.”).

Considering the jury instructions as a whole, it is evident that the trial court’s use

of the word “defendant,” instead of generic perpetrator, did not absolve the prosecution

of meeting its burden to prove that Wallace possessed the firearm, killed Ballard, and did

so with the specific intent to kill. The jurors were forcefully directed to disregard any

factual errors made by the trial court, showing that the jury could make factual

determinations for itself. We must assume that “the judge or jury acted according to

law,” Strickland,

, and that the jurors followed the entirety of the

instructions they received to evaluate each element of each offense, United States v.

Bryant,

(3d Cir. 2011).

The Superior Court’s analysis on jury instructions was not contrary to federal law

and did not result in a decision based on an unreasonable application of the facts. This

case is distinguishable from cases finding due process violations based on faulty jury

9 instructions. See, e.g., Bey v. Superintendent Green SCI,

, 241–42 (3d Cir.

2017) (jury instructions resulted in prejudice because they misstated instruction expressly

directing jury not to weigh most critical testimony to establishing defendant’s guilt);

Bennett v. Superintendent Graterford SCI,

, 287–88 (3d Cir. 2018) (jury

instructions relieved government of having to prove mental state because directives by

the court did not contain specific-intent-to-kill instructions for accomplices); Tyson, 976

F.3d at 392–94 (jury instructions violated due process because they completely omitted

the requisite mental state of an accomplice in first-degree murder).4

Instead, these facts are in line with our precedent in Mathias v. Superintendent

Frackville SCI,

(3d Cir. 2017). The trial court in Mathias made

inconsistent statements about when an accomplice could be liable for first-degree murder,

stating that jurors could find shared intent or that an accomplice’s intent could be inferred

by a principal’s intent to kill.

at 467–68. The due process claim could not succeed on

appeal because parts of the instructions “properly articulated the specific intent

requirement.”

.

4 Wallace’s discussion of the Court’s ruling in Sandstrom v. Montana,

(1979) provides no support for his position. The Supreme Court held that jury instructions that allowed a jury to create a mandatory presumption or permissive inference where the burden to prove intent shifted to the defendant violated due process. Sandstrom, 442 U.S. at 515–16. We find that the trial court’s instruction here did not amount to a directed verdict or create a presumption or inference that resulted in improper burden-shifting by the court. As described, the instructions as a whole maintain the proper burden on the prosecution, especially as relevant to the mental state required for conviction. 10 The inconsistencies in Wallace’s jury instructions are even less concerning than in

Mathias.5 Taken as a whole, the jury instructions here incorporated the correct mens rea.

The trial judge repeatedly stated the actual contested issue at trial and cabined her jury

instructions by demanding the jury make its own factual findings. The instructions were

correct—even with the trial court’s verbal scrivener’s error—with respect to the elements

of the crimes and the prosecution’s burden at trial.

This case is unlike Querica v. United States,

(1933), where the

Supreme Court determined that the trial court’s statement “I think that every single word

that man said, except when he agreed with the Government’s testimony, was a lie”

prejudiced the defendant.

. In reaching this conclusion, the Court

reasoned that “the judge is not a mere moderator” such that the jury will give great

weight to a judge’s statements.

. Although a judge may comment on evidence

at trial, he or she must “make[] it clear to the jury that all matters of facts are submitted to

their determination.”

Here, the trial judge followed this rule by telling the jurors

multiple times that they were the ultimate arbiters of the facts. The statement by the

judge in this case was less damaging than the one in Querica; the court did not comment

on any direct pieces of evidence and did not take a stance on any testimony. The

5 The Mathias panel noted two lines of reasoning established by the Supreme Court of the United States that we include here for comprehensiveness. The first line of reasoning consisted of a discussion from Francis v. Franklin,

(1985). 876 F.3d at 477–78. The second line of reasoning is from the Supreme Court’s decision in Middleton v. McNeil,

(2004) (per curiam).

. We decline to resolve or comment on any alleged tension between these two cases, as documented in Mathias, because it is unnecessary to our decision.

11 accidental use of the word “defendant” instead of “perpetrator” in a jury instruction does

not rise to the level of a judge categorizing an accused’s action as a marker of guilt.

Because there was no due process violation in the instructions, Wallace’s trial

counsel did not perform deficiently when he did not object to the instructions.

Consequently, Wallace’s ineffective-assistance-of-counsel claim fails.

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s denial of the habeas

petition.

12