DEWS v. TICE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARRYL DEWS, : CIVIL ACTION

: NO. 20-5135

Petitioner, :

:

v. :

:

ERIC TICE, et al., :

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. OCTOBER 31, 2022

I. INTRODUCTION

Before the Court is Magistrate Judge Hey’s Report and

Recommendations regarding Darryl (West) Dews’ Petition for Writ

of Habeas Corpus (ECF No. 11). Petitioner Dews has filed

objections (ECF No. 13). The Commonwealth has responded to his

objections (ECF No. 15), and Petitioner has responded in turn

(ECF No. 17).

Broadly, Petitioner claims his counsel was ineffective for

(1) failing to call character witnesses to testify on his

behalf, (2) request an eyewitness identification jury

instruction, and (3) preserve a Brady claim. Petitioner also

claims that his Fifth Amendment rights were violated during voir

dire because he was absent during a “critical stage,” and

because the Commonwealth failed to turn over discovery regarding

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a police officer who made an eyewitness investigation. Finally,

Petitioner seeks relief on the grounds that out-of-court

identifications by two eyewitnesses were unduly suggestive. See

Pet. for Writ of Habeas Corpus 8-17, 36-48, ECF No. 2.

Magistrate Judge Hey has recommended denying the petition.

She recommends denying three of Petitioner’s claims on the

merits, and denying three because Petitioner failed to exhaust

those claims, failed to demonstrate cause and prejudice for the

default, and also because those unexhausted claims lack merit.

See R. & R. 38, ECF No. 11.

For the reasons stated below, Magistrate Judge Hey’s Report

and Recommendation is adopted over Petitioner’s objections.

II. BACKGROUND

A. Procedural History

In September 2013, Petitioner was convicted of twelve

counts of robbery, three counts of conspiracy to commit robbery,

and three counts of possessing an instrument of crime, arising

from multiple armed robberies of individuals in barber shops in

West Philadelphia. R. & R. 1-2. Eyewitnesses to and victims of

the first robbery testified at Petitioner’s trial that he and

his accomplice wore ski masks that left their faces exposed. Id.

at 14. Petitioner stole a number of items during the course of

the robberies, including cell phones and wallets. Id. at 14-16.

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Petitioner was ultimately located by use of “Find my iPhone” on

one of the stolen phones, and his identity was corroborated by

eyewitnesses to the final robbery. Id. at 16-17.

These were not Dews’ first convictions; rather, these

crimes were his second “strike” under Pennsylvania’s three-

strike sentencing statute. R. & R. 2. Accordingly, the mandatory

minimum sentence for each robbery was ten (10) to twenty (20)

years. Id.; see also 42 Pa. Cons. Stat. § 9714 (2020). The state

trial judge thus sentenced Petitioner to an aggregate term of

fifty (50) to one hundred (100) years imprisonment. R. & R. 2.

Petitioner appealed his conviction in state court,

challenging the trial court’s denial of a motion to suppress

witness identifications, and the sufficiency and/or weight of

the evidence to support the robbery convictions. Id. The

Superior Court affirmed on appeal, and the Pennsylvania Supreme

Court denied the petition for allowance of appeal. Id. at 3.

Petitioner then filed a timely PCRA petition primarily asserting

ineffective assistance of counsel (on a number of grounds), due

process violations, and actual innocence. Id. at 3-4. Although

Petitioner was then appointed counsel to bring the PCRA

petition, his counsel withdrew because he believed Petitioner’s

claim was meritless. Id. at 5. The PCRA court then denied his

petition, and the Superior Court affirmed. Id. at 5-6.

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Petitioner sought review of his PCRA petition in the

Pennsylvania Supreme Court, which also denied review. Id. at 7.

Petitioner then filed for a writ of habeas corpus under 28

U.S.C. § 2254. See Pet. for Writ of Habeas Corpus, ECF No. 2.

Petitioner seeks habeas relief on the grounds that: (1) counsel

was constitutionally ineffective for failing to call a known

character witness; (2) counsel was constitutionally ineffective

for failing to instruct the jury on eyewitness identification;

(3) Petitioner was not present during jury selection; (4)

counsel was ineffective for failing to preserve a Brady claim on

direct appeal; (5) his due process rights were violated because

the State failed to produce all discovery; and (6) the

eyewitness identifications violated his Fifth and Fourteenth

Amendment rights. ECF No. 2 at 8, 10, 12, 13, 15-16. Petitioner

seeks “bail, evidentary [sic] hearing and/or remand.” Id. at 21.

The petition was referred to Magistrate Judge Hey. See Order of

Oct. 29, 2020, ECF No. 4.

B. Magistrate Judge Hey’s Report & Recommendations

Magistrate Judge Hey first found that Petitioner had

properly exhausted his claim that counsel was ineffective for

failing to call certain character witnesses at trial or present

other mitigating evidence. R. & R. 18-20. But, she found that

Petitioner failed to demonstrate Strickland prejudice: “Judge

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Bronson’s opinion that there is no reasonable probability he

would have sentenced Dews any differently if counsel had

presented character witnesses at sentencing cannot reasonably be

questioned in this case.” Id. at 20-21. Petitioner’s counsel at

sentencing did argue for a reduced sentence in light of

Petitioners’ difficult upbringing. Id. at 20. And the state

courts were reasonable in concluding that there was no

reasonable probability that testimony from any useful character

witnesses at sentencing would have affected the sentence.

Petitioner thus was not prejudiced.

Next, while Petitioner properly exhausted his claim that

counsel was ineffective for failing to request that the court

provide a Kloiber jury instruction regarding the reliability of

eyewitness identification, Magistrate Judge Hey found the claim

had no merit. Id. at 22-24. The evidence presented at trial

overwhelmingly suggested that the eyewitnesses could clearly see

and identify Petitioner during and after the robberies. Id.

Thus, the state courts reasonably rejected Petitioner’s claim as

meritless because the facts of his case indicated that he was

not entitled to a Kloiber instruction as to all witnesses. Id.

at 24-25. Accordingly, his counsel was not ineffective under

Strickland.

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Third, Magistrate Judge Hey concluded that Petitioner

exhausted his claim that his due process rights were violated

when the trial court failed to grant his motion to suppress

certain suggestive identifications. Id. at 25-29. Based on the

state court record, Magistrate Judge Hey found that there was no

constitutional error, because the witnesses could see Petitioner

sufficiently clearly and reliably during the actual robberies,

such that seeing Petitioner in handcuffs after he was caught was

not unduly suggestive. Id. at 27-29.

Magistrate Judge Hey concluded that Petitioner failed to

exhaust his remaining three claims. First, Petitioner

procedurally defaulted on his claim that counsel was defective

for failing to strike a juror and/or that his rights were

violated because he was not present for all of voir dire,

because he violated a procedural rule barring more than one

docket number on a notice of appeal. Id. at 30-32. Even if that

procedural rule was not a proper ground to deny review on the

merits, Judge Hey found that Petitioner’s claim regarding jury

selection was meritless, as the record indicated he was present

for all substantive portions of voir dire. Id. at 32-33.

Second, Judge Hey found that Petitioner’s claim that

counsel was ineffective for failing to assert a Brady violation

at trial was not exhausted because the claim for ineffectiveness

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of counsel was not asserted until Petitioner submitted a 1925(b)

Statement of Errors on appeal. Id. at 33-34. Because Petitioner

failed to include this IAC theory for relief with his original

claim of a Brady violation in his PCRA petition, Petitioner is

unable to assert the IAC claim now. Id. at 34. In the event this

Court disagreed, or in the event that Petitioner could overcome

the procedural default by demonstrating cause and prejudice

under Martinez, Magistrate Judge Hey found that the underlying

claim was meritless because Petitioner failed to demonstrate

that there was any agreement between a testifying co-felon and

the Commonwealth. Id. at 35.

Finally, Petitioner’s argument that he was prejudiced

because the Commonwealth did not disclose the personnel file of

an off-duty Officer and eyewitness to a robbery, was defaulted

because he failed to raise the claim after his initial PCRA

petition. Id. at 36. Moreover, Magistrate Judge Hey found that

Petitioner failed to establish cause and prejudice to avoid the

procedural default. Even if he could, the claim would fail on

the merits because Petitioner did not demonstrate that there was

a reasonable basis for him to be granted access to the Officer’s

personnel file for discovery. Id. at 36-38.

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C. Petitioner’s Objections

Petitioner first objects to Magistrate Judge Hey’s

interpretation of the exhaustion doctrine, alleging that she has

required more of the Petitioner than what is required by

statute, and that he has properly presented his claims to the

state courts. Pet’r’s Objections to R. & R. ¶¶ 1-3, ECF No. 13.

Petitioner also disagrees with Magistrate Judge Hey’s

assessment that his counsel at sentencing did not act

unreasonably and did not cause him prejudice, instead arguing

that his counsel at sentencing failed to be “reasonably

competent” by not calling character witnesses. Id. ¶¶ 9-10.

Petitioner objects to the conclusion that the failure to

instruct on Kloiber was not in error. Id. ¶ 13. Petitioner urges

the Court to find that his attorney “fell below an objective

standard of reasonableness” by failing to request the

instruction. Petitioner also objects to the Magistrate’s

conclusion that the show-up identification was not unreasonably

suggestive, arguing that the state court’s failure to enumerate

the factors of Neil v. Biggers in evaluating his claim was also

improper. Id. ¶¶ 18-22.

Petitioner further objects to Magistrate Judge Hey’s

conclusion that three of his claims were procedurally defaulted,

arguing that those claims were “rejected on the merits by [the]

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trial court in which Petitioner had sought state postconviction

relief” and the appellate court “affirmed without addressing

[the] claim[s] and thus would be assumed to have [been] decided

. . . on [the] same ground[s] as [the] trial court.” Id. ¶ 25.

Petitioner also argues that his state postconviction counsel was

ineffective, which supports a finding of cause under Martinez v.

Ryan. Id. ¶ 26.

III. LEGAL STANDARD

Petitioner has objected to Magistrate Judge Hey’s Report &

Recommendation, taking issue with her interpretation of the

exhaustion requirement, standard for ineffective assistance of

counsel, jury instructions regarding eyewitness testimony, the

reliability of eyewitness identifications, and Brady violations.

Under 28 U.S.C. § 636(b)(1), when a Magistrate Judge has

issued a Report and Recommendation, and a party has filed

written objections to such proposed recommendations, “the court

shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to

which objection is made.” The Court may then “accept, reject, or

modify in whole or in part,” the magistrate judge’s

recommendations. Id.

The Court’s review of Petitioner’s underlying claims is

deferential pursuant to the Antiterrorism and Effective Death

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Penalty Act. The Court must defer to a state-court judgment on

the merits, unless the state court’s decision was “contrary to,

or involved an unreasonable application of, clearly established

Federal law,” or was “based on an unreasonable determination of

the facts in light of the evidence” presented to the state

court. 28 U.S.C. § 2254(d).

A. Exhaustion Requirement

A court may not grant a petitioner’s application for a writ

of habeas corpus unless the petitioner either has exhausted the

remedies available in the courts of the State, petitioner has no

access to state processes to correct the judgment, or the

petitioner’s attempt at state post-conviction relief would be

futile because of structural defects. 28 U.S.C. § 2254(b)(1).

In practice, this requires a petitioner only to “give[] the

state courts the opportunity to pass on the merits of a claim.”

Hameen v. State of Delaware, 212 F.3d 226, 247 (3d Cir. 2000).

But, a petitioner must present both the federal claim’s factual

and legal substance to the state court to properly exhaust a

state remedy. Bennett v. Superintendent Graterford SCI, 886 F.3d

268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999)). “In Pennsylvania, a defendant

‘exhausts his state remedies for a federal claim either by

raising the claim on direct appeal or in a petition for

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collateral relief under the PCRA.’” Id. (quoting Wilkerson v.

Superintendent, 871 F.3d 221, 228-29 (3d Cir. 2017)).

Even if a petitioner has exhausted all of their claims in

state court, a federal habeas court cannot review the decision

of a state court if it rested on independent and adequate state-

law grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). A

defendant’s failure to observe state procedural rules can be an

independent and adequate state ground barring federal habeas

review. Martinez v. Ryan, 566 U.S 1, 9-10 (2012).

A petitioner may overcome a procedural default, such as

failure to exhaust, by showing “cause for the default and

prejudice from a violation of federal law.” Id. at 10 (citing

Coleman, 501 U.S. at 750). Cause exists “only where a prisoner

is impeded or obstructed in complying with the State’s

established procedures.” Id. at 13. A petitioner is prejudiced

where the underlying claim of ineffective assistance of trial

counsel “has some merit.” Id. at 14. A petitioner may thus

overcome procedural default of a claim of ineffective assistance

of trial counsel when the state procedures require that such a

claim be brought in a postconviction proceeding rather than on

direct appeal, and petitioner’s postconviction counsel was also

ineffective. Id. at 13-14. But, this narrow exception to the

“procedural default” bar of habeas petitions has not been

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extended to ineffective assistance of appellate counsel. Davila

v. Davis, 137 S. Ct. 2058, 2062-63 (2017).

Yet, even where an applicant has failed to exhaust all

available state remedies, a court has power to deny a habeas

corpus petition on the merits. 28 U.S.C. § 2254(b)(2).

Similarly, where a state court has made an alternative merits

decision--even when finding a Defendant procedurally defaulted

during state appellate or collateral proceedings--the state

court’s alternative merits decision is owed deference. See Rolan

v. Coleman, 680 F.3d 311, 319-21 (3d Cir. 2012).

B. Ineffective Assistance of Counsel

The purpose of the Sixth Amendment requirement of

assistance of counsel is to “ensure a fair trial.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). Accordingly, the test for

ineffective assistance of counsel is whether counsel was

deficient as to so “undermine[] the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result.” Id. The goal of the Sixth Amendment is

“not to improve the quality of legal representation,” but “to

ensure that criminal defendants receive a fair trial.” Id. at

689. The same standard for counsel applies at sentencing as at

trial. Id. at 686.

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The two-prong test set forth in Strickland commands a

petitioner first to show that “counsel’s performance was

deficient,” which “requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” Id. at 687. The second prong

requires a petitioner to demonstrate prejudice, in that

“counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Id. Prejudice

has thus occurred when an error had some effect on the judgment;

harmless error, “even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding.”

Id. at 691. A defendant must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

A petitioner must show that both prongs are satisfied to

have a conviction or sentence overturned. Id. at 687. Prejudice

is only presumed where a defendant shows that an actual conflict

of interest existed between defendant and attorney. Id. at 692.

The standard for effective assistance of counsel is

objective: an attorney must provide reasonably effective

assistance. Id. at 687-88. The reasonableness of counsel’s

performance is measured against “prevailing professional norms.”

Id. at 688. But the standard must be flexible, as “[n]o

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particular set of detailed rules for counsel’s conduct can

satisfactorily take account of the variety of circumstances

faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant.” Id. at

688-89. Courts defer to counsel’s decisionmaking and use “a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689.

Moreover, when counsel makes a strategic decision not to raise a

claim that is without merit or futile, counsel cannot be found

inadequate. See, e.g., Premo v. Moore, 562 U.S. 115, 124 (2011);

United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)

(“There can be no Sixth Amendment deprivation of effective

counsel based on an attorney’s failure to raise a meritless

argument.”); Boston v. Mooney, 141 F. Supp. 3d 352, 368-69 (E.D.

Pa. 2015) (finding that counsel’s failure to request a jury

instruction on witness bias did not fall below an objective

standard of reasonableness because counsel reasonably concluded

such an instruction would be futile).

C. Kloiber and Eyewitness Identifications

A Kloiber instruction is a “cautionary instruction” to the

jury “in certain eyewitness cases.” Bey v. Superintendent Greene

SCI, 856 F.3d 230, 234 (3d Cir. 2017). The instruction “is

appropriate when the accuracy of the testimony of an eyewitness’

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identification is ‘so doubtful that the Court should warn the

jury that the testimony as to identity must be received with

caution.’” Commonwealth v. Brown, 196 A.3d 130, 163 (Pa. 2018)

(quoting Commonwealth v. Kloiber, 106 A.2d 820, 826-67 (Pa.

1954)). But, the testimony need not be received with caution--

meaning, an instruction is not necessary--“[w]here the

opportunity for positive identification is good and the witness

is positive in his identification and his identification is not

weakened by prior failure to identify, but remains, even after

cross-examination, positive and unqualified.” Kloiber, 106 A.2d

at 826.

D. Due Process and the Reliability of Identifications

When a petitioner alleges that a show-up identification was

improper, it is “the likelihood of misidentification which

violates a defendant’s right to due process,” not the fact

itself that there was a show-up identification. Neil v. Biggers,

409 U.S. 188, 198 (1972). A witness is less likely to err in

identification where the testimony and identification are shown

to be reliable. See Manson v. Brathwaite, 432 U.S. 98, 114

(1977) (“[R]eliability is the linchpin in determining the

admissibility of identification testimony . . . .”). A court

generally looks to “the opportunity of the witness to view the

criminal at the time of the crime, the level of certainty

15

demonstrated by the witness at the confrontation, and the length

of time between the crime and the confrontation.” Biggers, 409

U.S. 199-200; see also Perry v. New Hampshire, 565 U.S. 228, 238

(2012) (“[D]ue process concerns arise only when law enforcement

officers use an identification procedure that is both suggestive

and unnecessary.” (citing Manson, 432 U.S. at 107, 109, and

Biggers, 409 U.S. at 198)).

E. Brady Standard

There are three elements to a Brady violation: “The

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The

prosecution has a duty to disclose such information, even if it

has not been requested. Id. at 280 (citing United Sates v.

Agurs, 427 U.S. 97, 107 (1976)). This information includes

information known to police but not the prosecutor; it is the

duty of the prosecutor to uncover evidence that is favorable to

the defense and known by government agents. Kyles v. Whitley,

514 U.S. 419, 433-34, 437-38 (1995). Evidence is material “if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

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have been different.” United States v. Bagley, 473 U.S. 667, 682

(1985); see also Turner v. United States, 137 S. Ct. 1885, 1894

(2017) (framing the inquiry as the centrality of undisclosed

evidence to the main evidentiary points).

But, Brady does not create a constitutional right to

discovery in a criminal case; rather, it merely ensures a

defendant’s due process rights are satisfied by creating a

minimum requirement of disclosure of material exculpatory

evidence to the defense. See Weatherford v. Bursey, 429 U.S.

545, 559-60 (1977). So, for instance, the prosecution is not

required to disclose the names of all witnesses that the

prosecution intends to call to testify unfavorably against the

defendant. Id.

IV. DISCUSSION

A. Petitioner’s Objections to the Non-Defaulted Claims

1. Claim 1: Character Witnesses

Petitioner has not demonstrated any prejudice that resulted

from his sentencing counsel’s failure to call character

witnesses at sentencing. Rather, the sentencing court explicitly

stated that, given Petitioner’s history, character witnesses

would not have had any effect on his sentencing decision.

Commonwealth v. Dews, CP-51-CR-0001772-2012, Opinion, at 5 (Pa.

17

Ct. Com. Pl. May 30, 2019). Thus, Petitioner fails to

demonstrate that his counsel was ineffective under Strickland.

Moreover, Petitioner has not shown that the sentencing

judge’s decision was contrary to or an unreasonable application

of clearly established federal law, as required under AEDPA to

give this Court jurisdiction to review his claim.

2. Claim 2: The Kloiber Instruction

Petitioner’s objections to the Magistrate’s recommendation

regarding the Kloiber claim also fail. A defendant is entitled

to a Kloiber instruction when “a witness is not in a position to

clearly observe the assailant, or he is not positive as to

identity, or his positive statements as to identity are weakened

by qualification or by failure to identify defendant on one or

more prior occasions.” Kloiber, 106 A.2d at 826-27.

The Court of Common Pleas, in affirming Petitioner’s

sentence, found that one eyewitness to one of the robberies

picked out Petitioner’s photograph from a photo array

approximately four days after the robbery, “stating he was 85%

certain” that he had picked the person who robbed him; two

months after the photo lineup, that eyewitness “did not

hesitate” in identifying Petitioner in a lineup. Commonwealth v.

Dews, CP-51-CR-001366-2012, at *6 (Pa. Ct. Com. Pl. June 10,

2014), attached to Pet. for Writ of Habeas Corpus, ECF No. 2, at

18

51 [hereinafter Dews, June 10, 2014 Op.]. A different eyewitness

positively identified Petitioner from a photo array containing

his photograph approximately a week after that witness was

robbed. Id.

A Kloiber instruction was given with respect to one

particular eyewitness who failed to identify Petitioner in a

lineup after the robbery and prior to trial. Commonwealth v.

Dews, CP-51-CR-0001366-2012, at *7-8 (Pa. Ct. Com. Pl. May 30,

2019), attached to Pet. for Writ of Habeas Corpus, ECF No. 2, at

80 [hereinafter Dews, May 30, 2019 Op.].

Petitioner was ultimately apprehended in part on the

identification of Officer Jackson, an off-duty police officer

who was at a barbershop while it was being robbed. Officer

Jackson testified at trial that the barbershop was well-lit at

the time of the robbery, and that Petitioner was not wearing

anything to cover his face. Dews, June 10, 2014 Op., at *7.

Officer Jackson gave the description of Petitioner, as well as

his co-conspirators and their vehicle, to another police

officer, and then positively identified Petitioner approximately

fifteen minutes later, when Petitioner was found. Id.

Although Petitioner states that there were witnesses who

might not have been able to see the robbers properly because

they wore ski masks, Pet’r’s Reply 3, ECF No. 17, the jury’s

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decision either not to believe those witnesses, or to believe

other eyewitnesses more, does not appear to be a “clearly

erroneous” determination of the facts. As the state court was

not wrong in only providing the Kloiber instruction with regard

to the one eyewitness who specifically made inconsistent

identifications, there can be no ineffective assistance of

counsel claim. Neither the state court nor Magistrate Judge Hey

made a clearly erroneous determination of the facts or an

unreasonable application of the law. Thus, this claim must also

fail on the merits, and the Court adopts the Magistrate’s

Recommendation.

3. Claim 6: Suggestiveness of Identifications

Petitioner argues that the Report and Recommendation failed

to properly consider the Neil v. Biggers factors. Pet’r’s

Objections ¶ 21. Petitioner is wrong. Neil v. Biggers directs

lower courts to look to factors such as “the opportunity of the

witness to view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of the witness’ prior

description of the criminal, the level of certainty demonstrated

by the witness at the confrontation, and the length of time

between the crime and the confrontation” in “evaluating the

likelihood of misidentification.” 409 U.S. at 199-200. In her

Report and Recommendation, Magistrate Judge Hey points to the

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state judge’s discussion of the exact same factors. R. & R. 28.

It is irrelevant that Magistrate Judge Hey and Judge Bronson of

the Pennsylvania Superior Court did not directly refer these

factors as “the five Biggers factors,” as Petitioner does,

Pet’r’s Objections ¶ 19, so long as the facts of Petitioner’s

case were applied to the relevant factors to assess the

likelihood of misidentification by the witnesses. Additionally,

Petitioner fails to show how or why any suggestiveness of the

show-up created an impermissible likelihood of

misidentification, in the face of numerous other eyewitnesses

and other corroborating evidence. This objection is thus

meritless and the Court will adopt Magistrate Judge Hey’s

Recommendation regarding Petitioner’s Claim 2.

B. Petitioner’s Objections to the Defaulted Claims

1. Claim 3: Absence During a Critical Stage

Petitioner misconstrues the standard for “fair

presentation.” Petitioner states that he did not procedurally

default because he brought the claim to the attention of the

PCRA court. See Pet’r’s Objections ¶ 25-26. But, from a habeas

court’s perspective, a claim is only “fairly presented” to a

state court when it is based on substantially the same factual

and legal basis as the petitioner brings in the federal habeas

proceeding. See, e.g., Bennett, 886 F.3d at 280. Petitioner

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initially presented this claim in a pro se PCRA petition on the

grounds that counsel was ineffective “for failing to move to

strike juror number 10, who once worked as the trial judge’s law

clerk, because Dews and/or his attorney were absent from the

courtroom at the time of the disclosure.” R. & R. 3-4. On appeal

of the denial of his PCRA petition, Petitioner framed the claim

as ineffective assistance of counsel for “failing to move to

strike juror 10.” Id. at 5. But, “[i]n his brief to the Superior

Court . . . [h]e altered the remaining claim, regarding juror

10/venireperson 14, which he no longer presented as an

ineffectiveness claim, but instead for the first time presented

it as a denial of his due process and jury trial rights.” Id. at

6. The Superior Court denied his petition on procedural grounds,

but also noted that it would have denied the appeal on the

merits, as “each of Appellant’s claims is waived or otherwise

merits no relief.” Id. at 7 (quoting Commonwealth v. West, 226

A.3d 648 (table) (Pa. Super. Jan. 16, 2020)). In his federal

habeas petition, Petitioner now frames the claim regarding Juror

10/venireperson 14 as a violation of his Fifth Amendment rights,

on the grounds that, “[d]uring the jury selection process juror

let it be known that he used to work for the judge. Although

counsel was present petitioner wasn’t present in the court

room.” Pet. for Writ of Habeas Corpus 12, ECF No. 2. So,

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Magistrate Judge Hey properly concluded that Petitioner’s claim

is barred because his claim was not fairly presented to the

state court. Even if Petitioner can avoid procedural default,

the claim fails on the merits.

The Pennsylvania Superior Court recently concluded that the

requirement that an appellant list only one docket number in a

notice of appeal has no basis in Rule 341, and must be

abolished, as the Pennsylvania Rules of Appellate Procedure must

be “liberally construed to effectuate justice.” Commonwealth v.

Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020). Johnson thus

effectively overruled Commonwealth v. Creese, on that issue,

which was the basis for the Superior Court’s quashal of Dews’

PCRA appeal. Commonwealth v. West, No. 743 EDA 2019, 2020 WL

250506, at *2-3 (Pa. Super. Jan. 16, 2020) (citing Commonwealth

v. Creese, 216 A.3d 1142 (Pa. Super. 2019)). Given the factual

similarity of Petitioner’s notices of appeal to those in

Johnson, wherein appellant listed each related docket number on

each of his properly filed notices of appeal, see Johnson, 236

A.3d at 1144, it is plausible that the application of Rule 341

would not be adequate and independent state grounds to bar

review on the merits.1

1 Respondent concedes that the Pennsylvania Superior Court’s

decision in Johnson may render Rule 341 an inadequate ground for

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Regardless, the Court will adopt Magistrate Judge Hey’s

Recommendation on the merits. The juror in question was not

disqualified from serving on the jury based on the colloquy in

which he admitted he had clerked for the trial judge. R. & R.

32. And, although Petitioner was not present when the trial

judge initially recognized the juror (before voir dire had

begun), Petitioner was present throughout all of voir dire and

had ample opportunity to consult with counsel regarding his

concerns for bias or other juror defects. Id. at 29-32. So, the

PCRA court’s determination that the claim was meritless was not

“contrary to, or involved an unreasonable application of,

clearly established federal law.” 28 U.S.C. § 2254(d)(1); see

also Dews, May 30, 2019 Op., at 10-11 (finding that the juror’s

prior clerkship for the trial judge was not proper grounds for

dismissal of the juror for cause as the juror “denied that these

relationships would in any way interfere with his ability to be

fair to both parties”).

2. Claims 4 and 5: Exculpatory Evidence and Cause

and Prejudice under Martinez

Giving the pro se motion the benefit of the doubt and

assuming Petitioner has demonstrated cause, Petitioner still

procedural default. See Resp. in Opp’n to Pet. for Writ of

Habeas Corpus 6 n.5, ECF No. 9.

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fails to demonstrate that he was prejudiced by any form of

procedural default, thus barring this Court’s review of his

claims.

First, on the merits, Petitioner’s claim fails to set forth

a Brady violation. Brady did not create a “general

constitutional right to discovery” for a defendant in a criminal

case. Weatherford, 429 U.S. at 559. Petitioner’s claim that he

was prejudiced by the Commonwealth’s failure to disclose a plea

agreement with a co-felon fails because there was no agreement

between the co-felon and the Commonwealth at the time the co-

felon testified against Petitioner. The PCRA Court stated that,

although the co-felon testified that he pled guilty to two of

the robbery charges and agreed to testify against Petitioner in

return for immunity for one of the robbery charges, there was no

other agreement or understanding between the co-felon and the

Commonwealth. Dews, May 30, 2019 Op., at 12-13. Thus, there

could be no Brady violation underlying any ineffective

assistance of counsel, as Petitioner has not shown that the

evidence was favorable, suppressed by the Commonwealth, and

material. See R. & R. 35. The state court and Magistrate Judge

Hey did not err in arriving at this conclusion.

Similarly, even if Petitioner could demonstrate cause and

prejudice under Martinez, his second Brady claim regarding

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Officer Jackson’s personnel file is meritless. Petitioner has

made no showing that Officer Jackson’s personnel file could

reasonably exculpate Petitioner or impeach the Commonwealth’s

evidence.

V. CONCLUSION

Petitioner’s objections are meritless. Accordingly,

Magistrate Judge Hey’s Report and Recommendation concluding that

the petition for a writ of habeas corpus be denied, is adopted.

An appropriate order follows.

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