# DEWS v. TICE

> District Court, E.D. Pennsylvania · November 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10404293

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** November 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10404293

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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
1
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.
2
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.
3
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
4
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.

5
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
6
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.

7
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]
8
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
9
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
10
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
11
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.

12
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
13
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’
14
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
16
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
19
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
20
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
21
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,
22
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
23
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.
24
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
25
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.

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404293. Public record. Not legal advice.