Bey v. Superintendent — habeas corpus — reversal — McKee

The Third Circuit today ruled in a prisoner’s favor in a habeas corpus appeal, holding that the prisoner’s trial lawyer was ineffective for failing to object to a faulty jury instruction and that, while this claim was procedurally defaulted, the default was excused under Martinez v. Ryan because his state post-conviction counsel (known as PCRA counsel in Pennsylvania) was ineffective for not raising the issue.

Interestingly, the issue involved eyewitness identifications, the subject of the circuit task force Judge McKee co-chairs. The jury was instructed, without objection, that an eyewitness i.d. “may not be received with caution.”

Joining McKee were Restrepo and Hornak WDPA by designation. Arguing counsel were Michael Wiseman of Swarthmore PA (my former boss, and a force to be reckoned with in criminal and habeas cases) for the prisoner and John Goldsborough of the Philadelphia DA’s office for the commonwealth.