JOHNSON v. KERESTES

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN F. JOHNSON, :

: CIVIL ACTION

Petitioner, : NO. 13-03197

:

v. :

:

JOHN W. KERESTES, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO JULY 24, 2023

CONTENTS

Prologue....................................................... 2

I. Introduction .............................................. 2

II. Background ................................................ 7

III. Legal Standard ......................................... 10

IV. Discussion ............................................... 14

A. Procedural Default and Waiver .......................... 14

B. Brady Claims ........................................... 16

1. Legal Standard Under Brady ............................ 17

2. Effect of Procedural Default .......................... 22

3. The Arrest Photo ...................................... 34

C. Ineffective Assistance of Counsel Claims ............... 39

1. Legal Standard ........................................ 40

2. Discussion ............................................ 43

D. Prosecutorial Misconduct ............................... 58

E. Cumulative Prejudice ................................... 59

1. Legal Standard ........................................ 59

2. Discussion ............................................ 62

F. Actual Innocence ....................................... 65

1. Legal Standard ........................................ 65

2. Discussion ............................................ 67

V. Conclusion ............................................... 71

PROLOGUE

This is a § 2254 petition seeking habeas corpus relief.

Kevin Johnson (“Petitioner”) was convicted of first-degree

murder in the Philadelphia Court of Common Pleas in 1988. Before

the Court is a stipulation and settlement agreement entered into

by Petitioner, John W. Kerestes, and the District Attorney of

the County of Philadelphia (“Respondents”), which, if approved,

would vacate the state court conviction and allow Petitioner to

plead no contest to charges of third-degree murder, criminal

conspiracy, and possession of an instrument of crime, and be

resentenced to a cumulative sentence of no greater than 10 to 20

years imprisonment including credit for time served.

For the reasons that follow, the stipulation and settlement

agreement will not be approved and the request for habeas relief

will be denied.

I. INTRODUCTION

On the evening of October 8, 1986, Lyndon “Cowboy” Morris,

a known drug dealer, was shot to death by two people inside the

home of Opal Nickson. Aside from the two shooters, at least four

other people were in the house at the time: Opal Nickson, Angelo

Smith, James Smith, and Elijah Bennett.1 Those four people--

1 The witnesses’ statements to the police and at trial are

inconclusive as to whether another person, “Abdullah” or

“Abdul,” was also in the house at the time.

Nickson, Angelo Smith, James Smith, and Bennett, were all under

the influence of alcohol, cocaine, and or marijuana at the time

of the shooting. In the hours shortly after the shooting, each

of these four witnesses identified Petitioner as one of the

shooters, based on an array of photographs. No other person was

identified as the other shooter. Petitioner was arrested on

October 10, 1986, charged with capital murder on October 29,

1986, and ultimately proceeded to trial in late 1987. On

February 4, 1988, in the Philadelphia County Court of Common

Pleas, Petitioner was convicted by a jury of first-degree

murder, possession of an instrument of crime, and criminal

conspiracy.

Since then, Petitioner has repeatedly challenged his

conviction. After unsuccessfully appealing his conviction, he

filed his first PCRA petition in 1996 raising several issues,

including ineffective assistance of counsel. The PCRA court

denied the petition in 2003, but the Superior Court reversed on

appeal in 2005 and remanded for an evidentiary hearing,

addressing only the ineffective assistance of counsel claim

contained within the PCRA petition.2 After a hearing, in 2009,

2 As discussed in greater detail below, at this point in time,

Petitioner was aware of the recantation of one eyewitness, James

Smith. Petitioner presented this recantation to the court, but

the PCRA court found that one recantation, in light of the other

evidence, would not have affected the result of the trial.

the PCRA court denied the claim. In 2011, on appeal, the

Superior Court granted Petitioner a new trial on the basis of

his ineffectiveness of counsel claim. However, following

rehearing en banc in 2012, the Superior Court vacated its

decision and affirmed the PCRA court’s prior denial of relief.

Petitioner then filed a federal habeas petition in 2013.

During the pendency of Petitioner’s federal habeas

petition, Petitioner obtained several pieces of new evidence,

including the 2014 affidavits of Opal Nickson, Angelo Smith,

James Smith, and Elijah Bennett. In these new affidavits, all

four eyewitnesses stated that they were coerced into identifying

Petitioner as the man with the pistol. After requesting and

being granted a stay of the federal habeas proceedings,

Petitioner filed another PCRA petition on the basis of newly

discovered evidence. The PCRA court rejected this claim, finding

that (1) Petitioner did not act with the requisite diligence in

uncovering this new evidence to trigger equitable tolling of the

statute of limitations, (2) the government interference

exception did not apply, and (3) Pennsylvania does not recognize

an “actual innocence” equitable exception to the PCRA statute of

limitations. The Superior Court affirmed denial of the PCRA

petition in 2018.

At this point, the parties resumed litigating the federal

habeas claims, engaging in limited discovery. In May 2019,

Respondents produced the arrest photos taken of Petitioner on

October 10, 1986. Petitioner then requested and was granted

another stay to present this newly discovered evidence to the

state courts in a third PCRA petition.3

In 2021, Petitioner and Respondents submitted a settlement

agreement for the Court’s review, describing Petitioner’s

assertions and Respondents’ concessions that there were

sufficient constitutional errors at trial to undermine the

legitimacy of the jury’s verdict. The Court then held a hearing

to consider whether to approve the settlement agreement.

At the conclusion of the hearing, the Court requested that

the parties supplement their original briefing regarding (1) the

Court’s power to grant relief in the form of approving a

settlement agreement of a writ for habeas corpus and (2) the

legal and factual basis supporting the requested relief. Because

both parties agreed that Petitioner’s claims warrant habeas

relief, and therefore the proceeding was no longer adversarial,

the Court sought input from the Pennsylvania Attorney General as

amicus curiae.4

3 This petition was withdrawn in 2021 before the PCRA court could

address the merits.

4 The Court would like to thank then-Attorney General Josh

Shapiro and then-Deputy Attorney General Michelle Henry and

their staff, for their thorough briefing as amicus in this non-

adversarial petition, which assisted the Court greatly in

understanding and coming to judgment on the complex factual and

At this point, with the benefit of input from amicus,

Petitioner’s petition for a writ of habeas corpus (including the

numerous amendments and supplements), the settlement agreement,

and the briefing in support are ripe for review.5

Respondents urge the Court to approve the settlement

agreement, arguing that Court possesses the power to “dispose of

the habeas petition as law and justice require.” Resp’ts’ Suppl.

Br. at 1, ECF No. 85 (quoting 28 U.S.C. § 2243). The Court

certainly possesses “broad discretion in conditioning a judgment

granting habeas relief.” Hilton v. Braunskill, 481 U.S. 770, 775

(1987) (describing a habeas court’s discretion as broad in the

context of a stay of relief pending appeal).

But the Court does not possess unfettered discretion to

order a state prisoner released without assuring itself that the

legal issues present in this case. The District Attorney’s

office did not object to the participation of the Office of the

Attorney General. Hr’g Tr. at 32:2-10, ECF No. 86.

5 The documents referenced herein are: Pet. for Writ of Habeas

Corpus, ECF No. 1 (filed June 12, 2013); Am. Pet. for Writ of

Habeas Corpus, ECF No. 17 (filed Nov. 8, 2013); Suppl. & Am. to

Pet. for Writ of Habeas Corpus, ECF No. 36 (filed Oct. 6, 2014);

Suppl. Appendix, ECF No. 37 (filed Oct. 6, 2014); Third Am. &

Suppl. to Pet. for Writ of Habeas Corpus, ECF No. 68 (filed May

22, 2020); Settlement Agreement, ECF No. 77 (filed Oct. 14,

2021); Pet’r’s Suppl. Br. in Support of Habeas Relief, ECF No.

84 (filed Oct. 11, 2022); Resp’ts’ Suppl Br. in Support of

Habeas Relief (ECF No. 85); Brief of Pa. Att’y Gen. as Amicus

Curiae, ECF No. 91 (filed Jan. 23, 2023); Pet’r’s Reply Brief,

ECF No. 92 (filed Mar. 9, 2023); Fourth Am. & Suppl. to Pet. for

Writ of Habeas Corpus, ECF No. 93-1 (filed Mar. 9, 2023);

Resp’ts’ Reply Brief, ECF No. 94 (filed Mar. 9, 2023).

petitioner’s claims have merit. See Wharton v. Vaughn, 371 F.

Supp. 3d 195, 198-99 (E.D. Pa. Mar. 4, 2019) (Goldberg, J.);

accord Vando v. Clark, No. 21-724, 2023 WL 329422, at *4 (E.D.

Pa. Jan. 20, 2023) (Robreno, J.) (quoting Wharton, 371 F. Supp.

3d at 199); cf. Commonwealth v. Brown, 196 A.3d 130, 145 (Pa.

2018) (“[T]he PCRA requires judicial merits review favorable to

the petitioner before any relief may be granted. A confession of

error by the Commonwealth does not constitute a judicial ruling

in Brown’s favor, and thus is insufficient for any grant of

relief under the PCRA.”). And although this is not a review of a

federal conviction, the principle that “federal prisoners

seeking postconviction relief via § 2255 cannot resolve their

claim outside the courthouse,” Brown v. United States, 748 F.3d

1045, 1066 (11th Cir. 2014), is equally applicable to habeas

review of a state conviction. The Court finds, therefore, that

it must review the merits of Petitioner’s claims, not merely

rubber stamp them, before determining whether the proposed

stipulation and settlement agreement may be approved.

II. BACKGROUND

Petitioner’s claims for relief are spread out across a

number of supplements and amendments to his original petition.

As summarized in the Settlement Agreement, ECF No. 77,

Petitioner currently claims that the following constitutional

violations undermine the validity of his sentence:

(1) Respondents’ failure to disclose material, exculpatory

evidence; (2) ineffective assistance of trial counsel; and

(3) prosecutorial and police misconduct which denied Petitioner

due process of law. Petitioner further brings an actual

innocence claim, arguing that his conviction and sentence

represent a fundamental miscarriage of justice as a result of

the Commonwealth’s misconduct and ineffective assistance of

counsel. He brings the actual innocence claim as a freestanding

claim, or, in the alternative, as a gateway claim to review any

procedurally barred constitutional claims.

First, Petitioner claims that three Brady violations

undermine his conviction. Respondents suppressed the arrest

photograph of Petitioner, taken approximately two days after the

shooting. Petitioner argues that this photograph would have been

favorable and material had it been disclosed at the time of

trial, as Petitioner’s appearance shortly after the shooting

occurred is not consistent with the witnesses’ descriptions of

the man with the pistol. Petitioner also argues that Respondents

wrongfully suppressed eyewitness Angelo Smith’s readiness to

testify and inability to positively identify Petitioner in

person. Petitioner states that, had this information been

disclosed at trial, he would have been able to call Angelo Smith

as a defense witness to support the misidentification and police

coercion theory of defense. Lastly, Petitioner claims that

Respondents wrongfully suppressed Opal Nickson’s statements to

police and or the prosecutor that, while Petitioner looked

somewhat like the man with the pistol, his skin color was

significantly lighter than the man with the pistol. Petitioner

argues that this statement would have been favorable as it would

have further undercut the prosecution’s identification case.

Second, Petitioner argues that trial counsel was

ineffective for failing to (1) substantively meet and consult

with him before trial; (2) obtain and use the arrest photographs

at trial; (3) interview and present testimony from Angelo Smith

or request a missing witness instruction; (4) present a complete

alibi defense on the basis of known alibi witnesses;

(5) inculpate any other person; (6) investigate and expose

police misconduct; and (7) present good character testimony.

Third, Petitioner contends, based on witnesses’ statements

in the 2001 and 2014 affidavits, that (1) the witnesses’

identifications to police and at trial were coerced; (2) the

prosecutor improperly fabricated a motive for the murder,

calling Petitioner a hitman for a rival drug dealer; (3) the

prosecutor engaged in highly improper cross-examination of

Petitioner; and (4) the prosecutor affirmatively misrepresented

Angelo Smith’s ability to testify.

Fourth, Petitioner claims that he is actually innocent. In

support of this argument, Petitioner points to (1) the general

unreliability of eyewitness identifications; (2) the

circumstances of the identifications in this case; (3) the

subsequent recantations; and (4) Petitioner’s adamance over the

past thirty plus years that he is innocent and was selling

clothes at the time of the shooting.

The Court will address each claim seriatim.

III. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA),

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “For reasons of finality, comity, and

federalism, habeas petitioners ‘are not entitled to habeas

relief based on trial error unless they can establish that it

resulted in actual prejudice.’” Davis v. Ayala, 576 U.S. 257,

267 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)). As the Third Circuit has noted,

Consistent with Supreme Court precedent, we read

§ 2254(d) to require three distinct legal inquiries.

See, e.g., Harrington v. Richter, ––– U.S. ––––, 131 S.

Ct. 770, 785, 178 L. Ed. 2d 624 (2011). First, we “must

inquire whether the state court decision was ‘contrary

to’ clearly established federal law, as determined by

the Supreme Court of the United States; second, if it

was not, [we] must evaluate whether the state court

judgment rests upon an objectively unreasonable

application of clearly established Supreme Court

jurisprudence.” Matteo v. Superintendent, SCI Albion,

171 F.3d 877, 880 (3d Cir. 1999) (en banc). Third, we

must ask whether the state court decision “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)(2).

Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011). In

addition, “a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

Importantly, a federal district court sitting in habeas

does not have jurisdiction to “review a question of federal law

decided by a state court if the decision of that court rests on

a state law ground that is independent of the federal question

and adequate to support the judgment.” Coleman v. Thompson, 501

U.S. 722, 729 (1991). This is because of “concerns of comity and

federalism,” and thus applies regardless of whether the state

law ground is substantive or procedural. Id. at 729, 730.

Similarly, a district court sitting in habeas generally cannot

review a petitioner’s claim that was never presented to a state

court. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)

(describing as “strong” the “considerations of comity that

require giving a state court system that has convicted a

defendant the first opportunity to correct its own errors”);

Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (“Ordinarily, a

state prisoner satisfies [AEDPA’s] exhaustion requirement by

raising his federal claim before the state courts in accordance

with state procedures.”). Thus, a petitioner’s failure to

properly present all his federal claims of error to a state

court “will bar federal habeas unless the petitioner

demonstrates cause and actual prejudice.” Coleman, 501 U.S. at

748 (citing Engle v. Isaac, 456 U.S. 107, 129 (1982)).

But, where a “prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of

justice,” a federal habeas court may review the defaulted

claims. Coleman, 501 U.S. at 750. “Cause” typically refers to

circumstances outside of a petitioner’s control. Id. at 753

(citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Attorney

error will only constitute “cause” where such error constitutes

ineffective assistance of counsel. Id. at 753-54. The

“miscarriage of justice” exception requires a showing of actual

innocence, i.e., “new reliable evidence,” such as “scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence” that would make it more likely than not that no juror,

acting reasonably, would have voted to find a petitioner guilty

beyond a reasonable doubt. House v. Bell, 547 U.S. 518, 536-38

(2006) (quoting Schlup v. Delo, 513 U.S. 298, 324, 329 (1995)).

Respondents to habeas petitions can elect to waive

procedural defaults. This is so because “[e]xhaustion is not a

jurisdictional limitation.” Munchinski v. Wilson, 807 F. Supp.

2d 242, 269 (W.D. Pa. 2011) (citation omitted). As relevant to

this case, the Pennsylvania Postconviction Relief Act statute of

limitations is jurisdictional. See, e.g., Commonwealth v. Brown,

143 A.3d 418, 420 (Pa. Super. 2016) (“This time requirement is

mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.”).6

But, as amicus urges, the Court can reject a waiver of

exhaustion. See, e.g., Hull v. Freeman, 932 F.2d 159, 164 (3d

Cir. 1991), overruled on other grounds by Coleman v. Thompson,

501 U.S. 722 (1991) (addressing exhaustion of state remedies and

procedural default sua sponte); Christy v. Horn, 115 F.3d 201,

207 n.3 (3d Cir. 1997) (“We point out that the Commonwealth may

waive exhaustion . . . thereby permitting the district court to

6 By contrast, “[t]he AEDPA ‘statute of limitations defense . . .

is not jurisdictional.’ It does not set forth ‘an inflexible

rule requiring dismissal whenever’ its ‘clock has run.’” Holland

v. Florida, 560 U.S. 631, 645 (2010) (quoting Day v. McDonough,

547 U.S. 198, 205, 208 (2006)). Equitable tolling is thus

available under AEDPA. Id. at 649.

review the petition as filed. The district court is not

required, however, to accept a waiver and may require state

court exhaustion.”). When a state court does not reach the

merits of a petitioner’s claim--either those claims properly

presented to a state court but not ruled upon, or those claims

not presented to a state court but where the defenses of

exhaustion and procedural default are waived by the respondent--

the Court reviews the claims de novo. See, e.g., Appel v. Horn,

250 F.3d 203, 210 (3d Cir. 2001).

IV. DISCUSSION

A. Procedural Default and Waiver

As a preliminary matter, the Court must address its

jurisdiction to consider the habeas petition, given Petitioner’s

mix of claims that were (1) presented to the state court and

adjudicated on the merits; (2) presented to the state court but

rejected on procedural grounds; and (3) not presented to the

state court.

The Attorney General, as amicus, contends that “virtually

all of the constitutional claims listed in the [settlement]

agreement are procedurally defaulted, because petitioner chose

to wait too long to raise them in state court, and then

intentionally withdrew even those that were timely.” Att’y Gen.

Amicus Br. at 27, ECF No. 91. Moreover, amicus argues,

Petitioner “blocked the state courts from developing the facts,

let alone from reaching the merits,” in an act of forum

shopping. Id. Amicus thus urges the Court to exercise its

discretion in reviewing the petition and disregard the waivers

invoked by Respondents.

Respondents, on the other hand, contend that the Court does

not have the discretion to ignore an intentional waiver of all

non-jurisdictional defenses and address defenses such as

exhaustion and timeliness sua sponte. See ECF No. 94-1 at 8

(discussing Wood v. Milyard, 566 U.S. 463 (2012)).

Given that Petitioner was convicted in 1988, the original

federal habeas petition has been pending since 2013, the parties

represent that the eyewitnesses and Petitioner’s former

attorneys are either dead or unavailable, and that further delay

will not serve the interest of justice, the Court will accept

Respondents’ waiver of potential timeliness and nonexhaustion

defenses to those of Petitioner’s claims that have not been

properly presented either to the state courts or to this Court.

Under these circumstances, the Court will review the unexhausted

claims de novo. Appel, 250 F.3d at 210. However, given the

interests in finality and comity, the Court will not accept the

waiver as to claims that were presented to, but rejected by, the

state courts on procedural grounds.7

7 As discussed below, given that Pennsylvania does not recognize

an equitable exception to the PCRA statute of limitations

B. Brady Claims

Petitioner claims that his right to a fair trial was

violated by the prosecution’s failure to produce exculpatory

evidence. The allegedly suppressed pieces of evidence are

(1) the October 10, 1986, arrest photographs of Petitioner;

(2) Angelo Smith’s inability to identify Petitioner; and

(3) Opal Nickson’s statement that the shooter had darker skin

than Petitioner.

The first of these claims is unexhausted; the second and

third8 have been rejected by the state court below for a failure

of diligence in seeking new evidence.9 Given that the decisions

(unlike the equitable exception to the AEDPA statute of

limitations recognized by the Supreme Court in McQuiggin v.

Perkins, 569 U.S. 383 (2013)), the Court finds that the

interests in federalism and justice require the standard cause

and prejudice analysis as to certain claims. Furthermore, the

cases that Petitioner and Respondents cite to support their

arguments that the Court does not have discretion to review any

defenses that have been waived do not address the specific issue

of a petitioner’s failure to comply with a state court’s statute

of limitations, as is pertinent here.

8 Opal Nickson stated in a 2014 affidavit as well as a 2019

deposition that she believed the shooter to have darker skin

than Kevin Johnson. Although the state courts have not had

occasion to review Ms. Nickson’s 2019 deposition, the central

facts supporting Petitioner’s claim of actual innocence are the

same as those in the 2014 affidavit. Thus, the Court considers

them jointly.

9 The state court found that Petitioner did not exercise the

requisite diligence to qualify for equitable tolling of the

statute of limitations under the Pennsylvania Post-Conviction

Relief Act. Commonwealth v. Johnson, No. 1368 EDA 2017, at 10

(Pa. Ct. Com. Pl. May 22, 2017), App. 1136, ECF No. 91-5

of the state courts below rested on adequate and independent

state law grounds--the PCRA statute of limitations and

associated equitable tolling rules--the Court only has

jurisdiction to review the alleged Brady violations presented to

the PCRA court in 2016 if Petitioner can demonstrate cause and

prejudice for the default, or establish that the Court’s failure

to consider his federal claims would result in a miscarriage of

justice. Coleman, 501 U.S. at 750. A colorable Brady claim can

satisfy the requisite showing of cause and prejudice. Banks v.

Dretke, 540 U.S. 668, 698-99 (2004) (finding that a showing of

suppression of evidence supports a finding of “cause,” and that

a petitioner must show the suppressed evidence was favorable and

material to excuse the procedural default).

1. Legal Standard Under Brady

Brady and its progeny protect the due process rights of

criminal defendants by requiring the prosecution to disclose

evidence that may exculpate the defendant. “[T]he suppression by

(“Certainly, a reasonable investigation in the close to three

decades since this murder could have uncovered these newly made

recantations and allegations of coercion sooner.”). Although

some of these claims were styled as Sixth Amendment ineffective

assistance of counsel and Brady claims, the Court of Common

Pleas never reached the merits of the federal law claims,

instead finding that neither statutory nor equitable tolling of

the PCRA statute of limitations applied. The Superior Court

affirmed. Commonwealth v. Johnson, No. CP-51-CR-1108001-1986,

2018 WL 2295655 (Pa. Super. Ct. May 21, 2018). The Superior

Court’s decision similarly rested on state law grounds.

the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87

(1963). “[T]o establish a Brady violation requiring relief, a

defendant must show that (1) the government withheld evidence,

either willfully or inadvertently; (2) the evidence was

favorable, either because it was exculpatory or of impeachment

value; and (3) the withheld evidence was material.” Lambert v.

Blackwell, 387 F.3d 210, 252 (3d Cir. 2004) (citing Banks v.

Dretke, 540 U.S. 668 (2004)).

First, the prosecution has a duty to disclose information

to defense counsel that is exculpatory or impeaching, regardless

of whether counsel has specifically requested that information.

“[T]he individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the

government’s behalf in the case, including the police.” Kyles v.

Whitley, 514 U.S. 419, 437 (1995). Where defense counsel does

not request specific information from a prosecutor, or makes no

request at all, or generally requests “anything exculpatory,”

the prosecution must produce such information “if the omitted

evidence creates a reasonable doubt that otherwise did not exist

. . . in the context of the entire record.” United States v.

Agurs, 427 U.S. 97, 112 (1976). “Impeachment evidence . . . as

well as exculpatory evidence, falls within the Brady rule.”

United States v. Bagley, 473 U.S. 667, 676 (1985) (citing Giglio

v. United States, 405 U.S. 150, 154 (1972)).

Similarly, a defendant’s due process rights are violated

“when the State, although not soliciting false evidence, allows

it to go uncorrected when it appears.” Napue v. Illinois, 360

U.S. 264, 269 (1959); see also Haskell v. Superintendent Green

SCI, 866 F.3d 139, 146-47 (3d Cir. 2017) (finding that the

prosecution’s failure to correct false testimony regarding

cooperation with the prosecution affected the judgment of the

jury where the witness at issue was the only witness who had not

been impeached and provided strong inculpatory testimony). By

that logic, “a conviction obtained by the knowing use of

perjured testimony is fundamentally unfair, and must be set

aside if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” Agurs,

427 U.S. at 103 (footnote omitted).

Second, evidence is favorable if it is exculpatory or

impeaching; there is no distinction between the two. And, just

because a witness has been impeached in one manner does not mean

that withheld evidence cannot further impeach a witness; a Brady

violation may still occur where the additional impeaching

evidence carries a reasonable probability that the proceeding

would have been different. See Dennis v. Sec’y, Pa. Dep’t of

Corr., 834 F.3d 263, 279 (3d Cir. 2016).

Third, “[t]he evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” Bagley, 473

U.S. at 682. A petitioner’s due process rights are violated

“where the evidence is material either to guilt or punishment.”

Brady, 373 U.S. at 87. For instance, where “[t]he evidence at

trial overwhelmingly showed that [defendant] had the motivation”

to commit the crime and had taken steps in preparation, the

evidence would be sufficient to convict even if the withheld

evidence implicated another person in the crime. Lambert, 387

F.3d at 254; see also Johnson v. Folino, 705 F.3d 117, 129 (3d

Cir. 2013) (“The materiality of Brady material depends almost

entirely on the value of the evidence relative to the other

evidence mustered by the state.” (quoting Rocha v. Thaler, 619

F.3d 387, 396 (5th Cir. 2010))).

The Court must thus consider whether purported Brady

material would be cumulative, or, on the other hand, would

“undermine the testimony of a key witness” especially where such

“testimony lacks strong corroboration.” Johnson, 705 F.3d at

129. Although “admissibility is a consideration that bears on

Brady materiality. . . . inadmissible evidence may be material

if it could have led to the discovery of admissible evidence.”

Id. at 129-30. For example, undisclosed evidence is material

where a witness’s testimony “was the only evidence linking [a

defendant] to the crime” and the “undisclosed statements

directly contradict [the witness’s] testimony.” Smith v. Cain,

565 U.S. 73, 76 (2012). In Smith, the eyewitness contradicted

himself when he told police on the night of the crime that he

was unable to see the face of any perpetrator and would not know

them if he saw them, but, at trial, testified that he was

certain that the defendant was one of the perpetrators as they

stood “face to face.” Id.

On the other hand, in Turner v. United States, the Supreme

Court found that favorable, suppressed evidence, was not

material. There, “virtually every witness to the crime itself

agreed as to a main theme: that [the victim] was killed by a

large group of perpetrators.” 582 U.S. 313, 326 (2017). Thus,

suppressed evidence that raised an inference that fewer

perpetrators were involved was not enough to have led to a

different result at trial in the face of overwhelming evidence

that the victim was killed by a group. Id. at 326-27 (finding

that the petitioners’ alleged claim of materiality failed

because the jury would have had to make too many attenuated

inferences from the undisclosed evidence).

2. Effect of Procedural Default

The Court initially considers, in turn, whether Petitioner

has demonstrated cause and prejudice for failing to timely

present his Brady claims to the PCRA court as to Angelo Smith’s

inability to recognize Petitioner and Opal Nickson’s statements

about skin color. In light of Banks, the Court assesses the

viability of these Brady claims to determine whether cause

(suppression) and prejudice (favorability and materiality) exist

to allow consideration of these claims on the merits along with

the non-defaulted claim.

(a) Angelo Smith

In 2014, Angelo Smith attested, in two separate affidavits,

that he was prepared to testify at trial for the Commonwealth

but was told by someone affiliated with the prosecution or

police that he was no longer needed at trial, after he stated

that he could not affirmatively identify Petitioner in the

courtroom at trial. However, the prosecutor stated during trial

that he was unable to secure Angelo Smith’s attendance and

requested a bench warrant to facilitate his attendance.

First, it is true that if Angelo Smith’s statements in his

2014 affidavits are to be believed, then the prosecution

certainly suppressed his availability and inability to identify

Petitioner in court, as the prosecutor affirmatively represented

that Angelo Smith was simply unavailable to testify.

Second, it is also true that if Angelo Smith’s 2014

affidavit is to be believed, then his statement that he could

not identify Petitioner in the courtroom was favorable.

According to Angelo Smith:

I was subpoenaed to the trial of Kevin Johnson. The

police asked me if I saw the man who pointed the pistol

at us that night in the court room. I did not recognize

anyone in the court room as the person who pointed the

pistol at me, Elijah and Opal. I told them that I really

did not get a good look at the guys face because I was

high on crack and was just staring at the gun in the

guys hand. I told the police this same thing when they

interviewed me on October 9th, 1986. The police then

told me that they did not need me to testify that day in

court.

Suppl. App. Ex. H (June 10, 2014 Affidavit), ECF No. 37 at 29-

30.10 This information would have been useful to the defense,

especially given the misidentification and alibi theories that

had been presented at trial.

Third, however, the Court cannot conclude that the failure

to disclose Angelo Smith’s availability would have been

material. Angelo Smith’s inability to identify Petitioner may

have undercut the credibility of the other three witnesses. But

Petitioner’s trial counsel was on notice that Angelo Smith could

10 He elaborated in another affidavit on August 14, 2014, that he

was not sure whether it was the police or the prosecutor that

had asked him if he recognized the defendant in the courtroom.

But he reiterated that he could not identify the man with the

pistol in the courtroom and was then told he did not have to

testify. Suppl. App. Ex. K (Angelo Smith Aug. 14, 2014

Affidavit), ECF No. 37 at 25.

have been an exculpatory witness, in light of his statement to

the police, and failed to compel his attendance. At the time of

Petitioner’s trial, there could be no Brady violation where

defense counsel, with reasonable diligence, could have obtained

the information. Bracey v. Superintendent Rockview SCI, 986 F.3d

274, 289-90 & 290 n.14 (3d Cir. 2021) (noting that the “due

diligence exception to Brady” remained valid Third Circuit

precedent up until the en banc opinion in Dennis v. Secretary,

Pennsylvania Department of Corrections, 834 F.3d 263 (3d Cir.

2016)). Thus, Petitioner has not demonstrated that both cause

and prejudice exist to excuse procedural default as to Angelo

Smith’s inability to recognize Petitioner.

Petitioner has also failed to demonstrate that the

“miscarriage of justice” exception to Coleman should apply.

Petitioner has not shown, based on Angelo Smith’s inability to

recognize him at trial, that “no juror, acting reasonably, would

have voted to find [the petitioner] guilty beyond a reasonable

doubt.” Schlup, 513 U.S. at 329. Other eyewitnesses positively

and unequivocally identified Petitioner at trial, and the jury

accepted their testimony in light of factors that may have

affected their credibility (i.e., lighting, drug use).

(b) Opal Nickson

The Court next considers whether the alleged Brady

violation underlying the failure to disclose Opal Nickson’s

statements on skin color support a finding of cause and

prejudice or actual innocence to excuse the procedural default.

First, if Opal Nickson’s affidavits are to be believed,

this evidence was suppressed. See, e.g., Suppl. App. Ex. I, ECF

No. 37, at 31. There were no notes in her initial statement to

the police, nor at the preliminary hearing, that indicate that

she identified the wrong person on the basis of his skin color.

Second, if believed, this evidence may have been weakly

favorable to Petitioner: Opal Nickson attested that Petitioner

looked similar to the man with the pistol but had lighter skin

than him. Ms. Nickson has not stated, however, that Petitioner

had significantly different facial features from the man with

the pistol. So, the evidence is slightly exculpatory; but, given

that the shooting occurred in her residence, at night, with

limited lighting, it is as likely as not likely that the skin of

the man with the pistol looked darker than it actually was.

Third, Petitioner has not demonstrated that Opal Nickson’s

testimony as to the skin color of the man with the pistol would

have been material, as it would have opened the door for the

introduction of her initial identification of Petitioner. The

jury then would have been left to decide which of her

identifications they believed. Accordingly, Petitioner has not

demonstrated cause and prejudice for his failure to timely

present this Brady claim to the PCRA court.

As with Angelo Smith’s statement, Petitioner has not

sufficiently shown that Opal Nickson’s statement are grounds for

the “miscarriage of justice” exception. Opal Nickson’s statement

is much less exculpatory than Angelo Smith’s: she has stated

that Petitioner and the man with the pistol looked exactly the

same except for their skin color. Thus, it is not reasonably

probable that no reasonable juror would have voted to convict

Petitioner had they been presented with Opal Nickson’s

statements that the man with the pistol had darker skin.

And, to the extent that Petitioner argues that Opal

Nickson’s testimony was false and the prosecutor “allow[ed] it

to go uncorrected,” Napue, 360 U.S. at 269, Petitioner has not

sufficiently shown that her trial testimony was false.

For instance, when interviewed in 2016 by police

investigators, Opal Nickson did not mention that James Smith was

also in the room with her, Angelo Smith, and Elijah Bennett,

despite testifying at trial that James Smith was present. But,

Opal Nickson reaffirmed in 2016 that she had seen Petitioner

driving a green car earlier in the day, and affirmed she was

“absolutely sure” that Petitioner had the pistol. She even

admitted in that same 2016 interview that she told Petitioner’s

investigators in 2014 that she had not seen Petitioner with the

pistol because she “was still mad at the district attorney for

screaming at me.” Given Opal Nickson’s changing testimony over

the years, the Court cannot conclude that the prosecution

allowed knowingly false testimony to go uncorrected at trial

when she positively identified Petitioner as the man with the

pistol.

(c) Ineffective Assistance of Counsel as Cause and

Prejudice for Failing to Timely Present Brady Claims

Petitioner has also argued that the cause of his delay in

presenting the recantation evidence (and the resulting prejudice

by the PCRA court’s failure to review his claim on the merits)

was the ineffective assistance of his initial PCRA counsel.11 As

stated above, attorney error will only constitute “cause” where

such error constitutes ineffective assistance of counsel; any

negligence by postconviction counsel is imputed to a petitioner

under principles of agency law. Coleman, 501 U.S. at 753-54.

“Inadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s

procedural default of acclaim of ineffective assistance at

trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012); see also Trevino

v. Thaler, 569 U.S. 413, (2013) (expanding the Martinez

exception to Coleman in cases where “state procedural framework,

by reason of its design and operation, makes it highly unlikely

11 Petitioner made some form of this argument before the PCRA

court in 2016. The PCRA court construed his claim of ineffective

assistance of counsel as a “newly discovered fact,” for which he

could not demonstrate the requisite diligence.

in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of trial

counsel on direct appeal”).

In Davila v. Davis, the Supreme Court recognized these

exceptions as narrow, holding that a claim of ineffective

assistance of postconviction counsel, as cause for procedural

default, did not apply where the claim that postconviction

counsel failed to raise was the ineffective assistance of

appellate counsel. 582 U.S. 521, 524-25 (2017).12 Relief for this

narrow set of ineffective assistance of postconviction counsel

claims arises only because (1) the claims involved are claims

that, dictated implicitly or explicitly by state law, must be

raised in a collateral proceeding and (2) there is no

constitutional right to counsel in postconviction proceedings.

Id. at 534-35.

The Third Circuit has applied Martinez to claims that

ineffective assistance of postconviction counsel serves as

“cause” for failing to raise the ineffectiveness of post-

sentencing counsel--that is, any counsel that a petitioner

claims was constitutionally defective up until the point that a

12 Petitioners are further limited in their relief on the basis

of ineffective assistance of postconviction counsel in that “a

federal habeas court may not conduct an evidentiary hearing or

otherwise consider evidence beyond the state-court record based

on ineffective assistance of state postconviction counsel.”

Shinn, 142 S. Ct. at 1734.

notice of appeal is filed. Richardson v. Superintendent Coal

Township SCI, 905 F.3d 750, 761-62 (3d Cir. 2018).

Although narrow, the exception in Martinez was created out

of the concern that “[w]hen an attorney errs in initial-review

collateral proceedings, it is likely that no state court at any

level will hear the prisoner’s claim” and that “if counsel’s

errors in an initial-review collateral proceeding do not

establish cause to excuse the procedural default in a federal

habeas proceeding, no court will review the prisoner’s claims.”

Martinez, 566 U.S. at 10-11. Petitioner’s claim of ineffective

assistance of postconviction counsel as “cause” for procedural

default is thus analogous in some sense to the exceptions set

forth in Martinez and Trevino: Petitioner could not have

presented these Brady claims until he brought his first

collateral proceeding because the proceeding was instituted in

part on the basis of newly discovered evidence.

In order to prove ineffectiveness of counsel under

Strickland v. Washington, a petitioner must show that counsel’s

performance “fell below an objective standard of

reasonableness.” 466 U.S. 668, 688 (1984). He must also

demonstrate that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. at 694. “A court considering a

claim of ineffective assistance must apply a ‘strong

presumption’ that counsel’s representation was within the ‘wide

range’ of reasonable professional assistance.” Harrington v.

Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S.

at 689). A decision by counsel that “was not mere oversight or

neglect but was instead the result of a deliberate decision to

focus on other defenses” is a strategic decision that is

entitled to deference. Wood v. Allen, 558 U.S. 290, 302-03

(2010). Petitioner “bears the burden of rebutting this

presumption ‘by showing either that the conduct was not, in

fact, part of a strategy or by showing that the strategy

employed was unsound.’” United States v. Schneider, 852 F. App’x

690, 693 (3d Cir. 2021) (quoting Thomas v. Varner, 428 F.3d 491,

499-500 (3d Cir. 2005)).

It is true that postconviction counsel’s failure to

investigate the other eyewitnesses and fully assess Petitioner’s

case after receiving notice of James Smith’s recantation may

have prejudiced petitioner. The 2003 PCRA court rejected James

Smith’s recantation, in part because recantation evidence is

generally unreliable, but also in part because he was the only

witness to have recanted--there were two other eyewitnesses at

trial who had positively identified Petitioner and had not

recanted. See 2003 PCRA Ct. Op. at 8-9. As Respondents contend,

had counsel investigated the other eyewitnesses at that time,

additional recantations (allegedly) would have been discovered.

See, e.g., Suppl. App. Ex. H to L, 29-37, ECF No. 37 (2014

affidavits of Angelo Smith, Opal Nickson, James Smith, and

Elisha Bennett). The PCRA court at that time, presented with

recantations from all eyewitnesses, may have reached a different

conclusion, despite viewing the recantations with suspicion.

Moreover, Petitioner was also prejudiced in subsequent PCRA

proceedings by initial postconviction counsel’s failure to

adequately investigate the eyewitnesses: the 2017 PCRA court

found that Petitioner could not present the 2014 affidavits to

the court for merits review because he was on notice of

potential infirmity of the other identifications since James

Smith’s 2001 recantation. 2017 PCRA Ct. Op. at 10.

However, and notwithstanding any prejudice caused by

counsel, Petitioner has not demonstrated that “no sound strategy

. . . could have supported” his postconviction counsel’s

performance.13 Schneider, 852 F. App’x at 693 (quoting Thomas,

428 F.3d at 500). In addition to James Smith’s recantation, PCRA

counsel also obtained (1) affidavits of Conchetta Parks and

13 Although Petitioner at one point presented affidavits from his

PCRA counsel stating that there was no strategic reason for

failing to include all grounds for relief in a Rule 1925(b)

statement which was submitted to the Superior Court following

the PCRA court’s denial of his petition after the evidentiary

hearing, Petitioner has not provided any affidavit from any

counsel stating that it was or was not a strategic choice for

PCRA counsel not to investigate the eyewitnesses further when

originally presenting the amended PCRA petition.

Evette DeBose, whose statements generally corroborated

Petitioner’s alibi defense; (2) affidavits of ten character

witnesses who attested that they had known Petitioner for some

time and knew him to be peaceful and nonviolent; and (3) the

affidavit of John Spencer, a witness who gave a statement to the

prosecutor that Petitioner had confessed to Cowboy’s murder, in

exchange for a leniency deal with the Prosecutor. See Mem. of

Law in Supp. of Pet. for Writ of Habeas Corpus App. 2, ECF No.

19-2 at 49-76. Although the record does not reflect that PCRA

counsel investigated the other eyewitnesses, it is clear that

PCRA counsel diligently pursued and presented a number of the

alibi and character witnesses that Petitioner sought to have

testify on his behalf at trial. See Mem. of Law in Supp. of Pet.

for Writ of Habeas Corpus App. 4, ECF No. 19-4 at 24-25

(Petitioner’s alibi statement sent to trial counsel dated

February 23, 1987); id. at 41-43 (Petitioner’s letter to PCRA

counsel enclosing a list of the alibi witnesses he gave to trial

counsel after the preliminary hearing).

Petitioner’s PCRA counsel could have made a number of

strategic choices, all of which fall within the range of

reasonable assistance. For instance, PCRA counsel could have

reasonably believed that Petitioner’s case would be best

supported by additional alibi and character witnesses, rather

than an investigation of the witnesses who previously testified

at trial. This is especially so in light of the suspicion with

which courts view recantations.14 Alternatively, PCRA counsel may

have made a strategic choice that James Smith’s statement was

not sufficiently “trustworthy” to warrant investigating the

other eyewitnesses. On the other hand, PCRA counsel could have

made the strategic choice not to investigate the other

eyewitnesses because the allegations of police and prosecutorial

misconduct laid out in James Smith and John Spencer’s affidavits

were sufficient to cast doubt on the fairness of Petitioner’s

trial. A number of possible strategic reasons for PCRA counsel’s

decisions exist.

14 A trial witness’s recantation, “essentially admitting that the

bulk of such testimony was perjury,” is “suspicious and

untrustworthy” and “does not, in the absence of additional

corroborating evidence or circumstances, meet the standard of

reliability contemplated by Schlup.” Teagle v. Diguglielmo, 336

F. App’x 209, 213 (3d Cir. 2009) (citing Landano v. Rafferty,

856 F.2d 569, 572 (3d Cir. 1988); Schlup, 513 U.S. at 324 (“To

be credible, such a claim requires petitioner to support his

allegations of constitutional error with new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence--that was not

presented at trial.”); see also Arnold v. Dittmann, 901 F.3d

830, 838-41 (7th Cir. 2018) (discussing the general

unreliability of recantation evidence as found by other Circuits

and explaining that recantation evidence is only sufficiently

“reliable” to demonstrate actual innocence under Schlup where

the recantations are subject to adversarial testing). But see

Howell v. Superintendent SCI, 978 F.3d 54, 60 (3d Cir. 2020)

(“As a general matter, a recantation in the absence of

corroborating evidence or circumstances will probably fall short

of the standard of reliability contemplated by Schlup. But that

does not mean that recantation evidence is to be categorically

rejected.”).

Petitioner has thus not shown that the decisions of PCRA

counsel were not strategic decisions or were objectively

unreasonable; therefore, Petitioner has not shown that he was

denied effective assistance of counsel during his initial-review

proceeding such that PCRA counsel’s failure could act as “cause

and prejudice” and allow the Court to review the defaulted

claims on the merits.

3. The Arrest Photo

The Court now addresses Petitioner’s Brady claim as to the

arrest photographs on the merits. Petitioner states that he did

not receive any of his arrest photographs (including the one

used by the police for his identification by eyewitnesses) until

May 2019, during the course of discovery in this federal habeas

matter. See, e.g., ECF No. 84, at 5. He argues that this

evidence was withheld because (1) it was available to the

prosecution; (2) there is no indication that his trial counsel

ever received it; and (3) photographic evidence used for

identification is the type of evidence that the prosecution

would normally provide to a criminal defendant. Given that

Petitioner has not brought this issue before the state court and

Respondents have waived any nonjurisdictional defenses, the

Court’s review of this claim is de novo.

Where the disclosure of arrest photographs is at issue,

there is no Brady violation where the photographs are disclosed,

albeit delayed, such that defense counsel either can use the

evidence or has a meaningful opportunity to do so. Hooper v.

Shinn, 985 F.3d 594, 620 (9th Cir. 2021). But, the disclosure of

an arrest photo alone is not always sufficient: where an arrest

photograph is disclosed, but certain exculpatory features of the

photo such as a defendant’s clothing have been cropped out,

there could be a plausible Brady violation. Cf. United States v.

Ortiz, No. 92-592-01, 1993 WL 131329, at *7 (E.D. Pa. Apr. 23,

1993) (finding that the government’s failure to produce the

entirety of the arrest photo, which was exculpatory, was grounds

for a new trial).

First, under Brady, and under the circumstances, there may

be an obligation to disclose these photographs. See Hooper, 985

F.3d at 620; Ortiz, 1993 WL 131329, at *7. Here, it is not clear

whether the October 10, 1986 arrest photographs were ever

disclosed. A number of references were made to photographs at

trial, as the eyewitnesses testified that they identified him on

the basis of photographs.15 But the arrest photographs were never

15 Petitioner’s trial counsel may have generally known that there

were arrest photographs in existence, as he filed a motion to

suppress the identifications. See Mot. to Suppress

Identification ¶ 2, App. 85, ECF No. 91-1 (“Kevin Johnson was

arrested on a warrant which issued as the result of alleged

identifications by witnesses who were shown photos by the

Philadelphia Police Department); id. at 2, App. 86 (seeking

suppression of “[a]ll identification evidence”); see also Amicus

Br. 29, ECF No. 91. The notes of testimony are not available, so

the Court cannot determine whether trial counsel also sought to

introduced (or attempted to be introduced) into evidence. And,

it appears that all references to photographs at trial were with

regard to arrest photographs from Petitioner’s previous

offenses; the materials provided by Amicus indicate that the

photograph used in the array was from August 8, 1985, taken

approximately a year before the murder. App. 26-27, 35, ECF No.

91-1. Thus, the trial record appears consistent with the claim

that Petitioner’s counsel did not have access to the October 10,

1986 arrest photos.

Second, the arrest photographs are somewhat, but not

strongly favorable to Petitioner. In the arrest photograph,

taken approximately thirty-six hours after the murder,

Petitioner is depicted with a thin mustache, and no other facial

hair. As the record indicates, Petitioner seems to have

maintained a similar thin mustache for approximately five years

prior to his arrest in 1986. See App. 27-37, ECF No. 91-1. Yet,

both James Smith and Angelo Smith initially described the man

with the pistol as having no facial hair. See App. 5, ECF No.

suppress evidence on the basis of the photo taken after

Petitioner’s arrest. However, given that the arrest photographs

were taken after Petitioner was identified by the eyewitnesses,

the mention of arrest photographs at the suppression hearing

more likely pertains to the actual photographs that the

witnesses were shown at the police station. This argument thus

is more relevant to Petitioner’s ineffective assistance of

counsel claim than the Brady claim: counsel was on notice that

arrest photographs existed and should have requested the

photograph taken after Petitioner’s arrest for this offense.

91-1 (initial statement of James Smith); id. at 21-22 (initial

statement of Angelo Smith). Petitioner thus argues that the

photographs taken shortly after the murder would be exculpatory

because the witnesses saw a clean-shaven man and Petitioner was

not clean-shaven.16

This argument is plausible but not particularly strong.

Petitioner’s mustache was thin. He also had a barely perceptible

goatee but was otherwise clean-shaven--according to the

photograph taken on October 10, 1986. Given the thinness of the

mustache, the Court cannot conclude that the photograph is

exculpatory, as (1) much of the encounter with the man with the

pistol occurred in partial darkness and (2) Petitioner could

have grown out some of the mustache in the two days between the

shooting and his arrest. However, this photograph could also be

slightly impeaching, as both James and Angelo Smith (if Angelo

Smith had testified) could have been questioned about their

statements that the man with the pistol was clean-shaven. To the

extent that witnesses described the man with the pistol as

having a dark complexion (i.e., darker than Petitioner), the

photographs could have been exculpatory. See, e.g., App. 21, ECF

16 Two of the witnesses, however--Elijah Bennett and Opal

Nickson--did not provide any statement to the police or

testimony at trial as to facial hair; therefore, it is possible

that these witnesses did not notice whether or not the shooter

had a mustache or even believed he did have a mustache.

No. 91-1 (initial statement of Angelo Smith to police; Suppl.

App. Ex. I ¶ 5 (2014 statement of Opal Nickson). But see App. 5,

ECF No. 91-1 (initial statement of James Smith describing the

man with the shotgun as “dark complexion” but describing the man

with the pistol as “Brown skin”).

Third, standing alone, the arrest photograph is not

material. According to the photographs of Petitioner provided by

amicus, Petitioner looked very similar in the photograph shown

to the eyewitnesses at the police station and the photograph

taken after his arrest. Nothing in the initial statements to the

police indicate that any witness had difficulty identifying

Petitioner on the basis of his mustache; or otherwise commented

on Petitioner’s appearance in the photograph.17 And, at trial,

three eyewitnesses (James Smith, Opal Nickson, and Elijah

Bennett) positively identified Petitioner as the man with the

pistol. These in-court identifications also belie a claim of

actual innocence, as Petitioner’s appearance at the time of his

arrest was consistent in part with the descriptions given by the

17 This is not dispositive, however, given the numerous

allegations of police misconduct in this case. For instance, the

eyewitnesses all now allege that they were coerced into pointing

out Petitioner’s photograph, but no such interaction is

memorialized in the police statement or any other documentation.

The prosecution’s entire theory of the case was that the

identifications were all independent. So, it is plausible that

any sort of statements by the witnesses that tended not to

inculpate Petitioner might not have been included in the police

statements.

witnesses immediately after the shooting. Petitioner’s trial

counsel certainly could have cross examined these witnesses as

to their identifications and the Petitioner’s facial hair. But,

Petitioner has not shown on the basis of the arrest photo alone

that there is a “reasonable probability” that “the result of the

proceeding would have been different” had counsel been given the

arrest photograph, and been able to question the witnesses about

the photograph. See Bagley, 473 U.S. at 682.

Given that there is only one piece of newly discovered,

suppressed evidence that can be reviewed, i.e., the arrest

photograph, the cumulative Brady error analysis set forth in

Kyles v. Whitley is unnecessary.

C. Ineffective Assistance of Counsel Claims

Petitioner asserts that his trial counsel was ineffective

in a number of ways. First, he argues that trial counsel failed

to meaningfully consult with him prior to trial. This claim was

fully litigated before the state courts below. Second,

Petitioner argues that trial counsel failed to properly

investigate and present an alibi defense. This issue was

similarly presented to the state courts and reviewed on the

merits. Third, Petitioner claims that trial counsel was

ineffective for failing to secure the October 10, 1986, arrest

photographs. This claim has not been reviewed by a state court.

Fourth, Petitioner asserts that counsel was ineffective for

failing to interview Angelo Smith or request a missing witness

instruction at trial. This claim has similarly not been fully

presented to the state court.18

1. Legal Standard

In order to prove ineffectiveness under Strickland, a

petitioner must show that counsel’s performance “fell below an

objective standard of reasonableness.” 466 U.S. at 688. He must

also demonstrate that there is a reasonable probability that,

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

proceeding would have been different. Id. at 694.19 The

“reasonable probability” standard is less stringent than the

preponderance standard, and only requires the Court to find by

such probability that at least one juror would not have

convicted a petitioner in the absence of error. See Jermyn v.

Horn, 266 F.3d 257, 282 (3d Cir. 2001); Bey v. Superintendent

Greene SCI, 856 F.3d 230, 242 (3d Cir. 2017); Massey v.

18 At one point, Petitioner argued that the ineffectiveness of

postconviction counsel was a standalone basis for relief. It is

not clear whether this early argument remains part of

Petitioner’s current claim for relief. To the extent petitioner

argues that ineffective assistance of his postconviction counsel

forms grounds for relief, such relief is barred by statute. 28

U.S.C. § 2254(i); see also Martinez, 566 U.S. at 17

(distinguishing between “grounds for relief” and “cause” for

procedural default).

19 This standard for “prejudice” or “materiality” under

Strickland is the same as that under Brady. See, e.g., Bagley,

473 U.S. at 681-82.

Superintendent Coal Township SCI, No. 19-2808, 2021 WL 2910930,

at *6 (3d Cir. July 12, 2021). As the Supreme Court has

explained,

Representation of a criminal defendant entails certain

basic duties. Counsel’s function is to assist the

defendant, and hence counsel owes the client a duty of

loyalty, a duty to avoid conflicts of interest. From

counsel’s function as assistant to the defendant derive

the overarching duty to advocate the defendant’s cause

and the more particular duties to consult with the

defendant on important decisions and to keep the

defendant informed of important developments in the

course of the prosecution. Counsel also has a duty to

bring to bear such skill and knowledge as will render

the trial a reliable adversarial testing process.

Strickland, 466 U.S. at 688 (citations omitted). The Court

reviews trial counsel’s strategy with deference. Id. at 689.

“[T]he failure to investigate a critical source of

potentially exculpatory evidence may present a case of

constitutionally defective representation.” United States v.

Baynes, 622 F.2d 66, 69 (3d Cir. 1980). In Baynes, the defendant

was implicated in a drug conspiracy solely on the basis of

wiretap evidence, in which the speaker only uttered twelve

words. The Third Circuit found that the defendant’s claim for

ineffective assistance of counsel was not clearly frivolous

where his trial counsel made “no attempt to obtain the voice

exemplar, a copy of the Government’s intercepted telephone

conversation implicating [the defendant], or make any comparison

of the two to determine if [the defendant] was the speaker on

the tape. Given the centrality of the identification of

[defendant] to the Government’s case, the failure of counsel

even to investigate the possibility that comparison of the tape

with the exemplar might exculpate [defendant] significantly

calls into question the adequacy of counsel’s representation.”

Id.20

And, in Sims v. Livesay, a petitioner argued that his trial

counsel was ineffective for failing to investigate an FBI report

provided during discovery and realize the significance of a

particular piece of evidence--a quilt with gunpowder residue

that supported the defendant’s theory that he was not guilty of

first-degree murder. 970 F.2d 1575 (6th Cir. 1992). The Sixth

Circuit agreed with the petitioner in Sims, finding that it was

unreasonable for counsel to fail to investigate a known piece of

evidence that would contest the state’s “easily refutable”

theory of the case. Id. at 1580-81. Similarly, in a case where

eyewitness testimony was the only form of evidence inculpating a

defendant, counsel’s failure to interview any of the

eyewitnesses was unreasonable, even where counsel ultimately

subjected the witnesses to extensive cross examination at trial.

Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994); cf.

20 This was a § 2255 case that was remanded for an evidentiary

hearing. The Third Circuit did not determine whether or not the

petitioner’s claim merited collateral relief.

Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990)

(“Similarly, trial counsel’s assertion that she intended to

defend [defendant] on a theory of misidentification does not

excuse her failure to investigate all potential alibi

witnesses. . . . A tactical decision to rely on a

misidentification defense in no way forecloses the concurrent

use of alibi witnesses.”).

2. Discussion

Petitioner’s first amended PCRA petition was ultimately

denied in 2003. He presented the following issues to the PCRA

court for review: (1) ineffectiveness of trial counsel for

failure to present character witnesses; (2) ineffectiveness of

trial counsel for failure to give “alibi” notice and present

additional alibi witnesses; (3) ineffectiveness of trial counsel

for failure to discover and utilize on cross examination the

extensive history of police misconduct; (4) ineffectiveness of

trial counsel for failing to implicate another person in the

murder; (5) ineffectiveness of appellate counsel for failing to

properly argue the ineffectiveness of trial counsel;

(6) recantation of a prosecution witness whose statements were

ultimately not used at trial; and (7) recantation of James

Smith’s identification. The PCRA court’s decision rested

primarily on state law grounds and assessments of the evidence

adduced at trial.

Petitioner’s claim of ineffective assistance of trial

counsel again reached the PCRA court in 2010 after remand by the

Superior Court for an evidentiary hearing. There, in considering

both state and federal law, the PCRA court found (and the

Superior Court affirmed) that, while certainly deficient in some

regard, Petitioner’s trial counsel provided at least the

constitutional minimum required assistance of counsel.

Petitioner at that time also presented evidence that his trial

attorney was disciplined by the Disciplinary Board of the

Supreme Court of Pennsylvania after Petitioner brought a

complaint to the Board following his conviction.

Although an attorney’s violation of a rule of ethics or

professional conduct may weigh in favor of a finding of

ineffective assistance of counsel, such a violation does not

constitute per se ineffective assistance of counsel. See Nix v.

Whiteside, 475 U.S. 157, 165 (1986) (“Under the Strickland

standard, breach of an ethical standard does not necessarily

make out a denial of the Sixth Amendment guarantee of assistance

of counsel.”); Government of Virgin Islands v. Weatherwax, 77

F.3d 1425, 1431 (3d Cir. 1996) (“[W]hile professional standards

provide guidance in evaluating the performance of counsel, they

do not define the boundary between constitutionally acceptable

and constitutionally unacceptable performance.”); United States

v. Nickerson, 556 F.3d 1014, 1019 (9th Cir. 2009); cf. Royster

v. Mahally, No. 19-2126, 2020 WL 13598928, at *2 (E.D. Pa. May

20, 2020) (“Attorney disciplinary action, however, does not

convert Strickland claims into Cronic claims.”).

The Court’s review of these ineffective assistance of trial

counsel claims is thus deferential. See 28 U.S.C. § 2254(d).

(a) Failure to Meaningfully Consult

Petitioner’s claim that his trial counsel was ineffective

for failing to meaningfully consult with him before trial has

been reviewed by the state courts. The decision of the Superior

Court on this issue appears to have rested at least in part on

federal law--namely Strickland v. Washington and United States

v. Cronic. Thus, the Court reviews this claim deferentially,

looking to whether the state court’s decision was contrary to,

or an unreasonable application of, clearly established federal

law. 28 U.S.C. § 2254(d)(1).

Under Cronic, ineffective assistance of counsel and

resulting prejudice to a defendant are presumed where there is

(1) a complete denial of counsel; (2) “counsel entirely fails to

subject the prosecution’s case to meaningful adversarial

testing”; and (3) where “the likelihood that counsel could have

performed as an effective adversary was so remote as to have

made the trial inherently unfair.” United States v. Cronic, 466

U.S. 648, 659-61 (1984).

First, the Pennsylvania Superior Court found that

Petitioner was not completely denied counsel, as trial counsel

met with Petitioner “at his preliminary hearing, again at the

prison before trial, and performed at least one telephone

consultation.” Commonwealth v. Johnson, 51 A.3d 237, 245 (Pa.

Super. Ct. 2012). And, the Superior Court agreed with the PCRA

court in that these meetings must have been substantive to some

extent, as counsel presented five alibi witnesses and made a

good faith attempt to secure the appearance of a sixth alibi

witness. Id. at 244.

Second, counsel subjected the prosecution’s case to

meaningful adversarial testing by (1) presenting several alibi

witnesses, (2) attentively objecting to certain elements of the

prosecution’s case, and (3) cross-examining the prosecution’s

witnesses. Petitioner’s trial counsel filed a motion to suppress

“any identification testimony” because “[t]he photo line-up

shown to the witnesses by Philadelphia Police Detectives was a

line-up which was unduly suggestive.” Def.’s Mot. to Suppress,

App. 85-86, ECF No. 91-1. The motion was denied.21 See Criminal

Docket at 3, App. 92, ECF No. 91-1.

21 As the Attorney General points out, there is not a record of

the trial court’s reasoning for denying the motion to suppress.

It is thus not clear from the face of the attached state-court

materials whether or not Petitioner’s trial counsel had access

to the photographs used for identification.

At trial, counsel was fairly involved during the

presentation of prosecution’s case and objected to numerous

lines of questioning. Counsel moved for a demurrer at the close

of the prosecution’s case, as to both the murder and conspiracy

charges. When the prosecution implied that Petitioner possessed

a gun, defense counsel objected and moved for a mistrial. See

Feb. 2, 1988, Trial Tr. 612:13-16, App. 711, ECF No. 91-3.

It is true that in retrospect, trial counsel could have

done more to exculpate petitioner. For instance, the arrest

warrant notes there was a stab wound, and a detective testified

about a steak knife placed atop the TV in Cowboy’s room.22 Jan.

28, 1988, Trial Tr. at 351:1-3, App. 446, ECF No. 91-3. It is

not clear whether this lead was investigated at all, to attempt

to cast doubt on the cause of death or the potential involvement

of another person. Similarly, some of the eyewitnesses mentioned

the presence of “Abdul” or “Abdullah,” in Cowboy’s room in the

time leading up to the shooting, but the witnesses were not

questioned about this other person extensively, and it does not

appear that this other person was investigated. Yet,

Petitioner’s trial counsel, on cross examination of the

22 Detective Hanlon testified that there was not evidence that

Cowboy was stabbed and he was not told that Cowboy was stabbed.

Jan. 29, 1988, Trial Tr. at 405:22-25, App. 501, ECF No. 91-2.

Petitioner’s trial counsel did not cross examine him extensively

on this point or otherwise attempt to show that something other

than a gunshot wound was the cause of death.

prosecution’s ballistics expert, created doubt about which of

the bullets found in or near Cowboy could have come from a

pistol, could have come from the same gun, or could have been

fired at different times. Jan. 28, 1988, Trial Tr. at 458:2-

459:11, App. 554-55, ECF No. 91-3.

On balance, and regardless of what more counsel could have

done at trial, Petitioner has not demonstrated that the trial

was inherently unfair because of the remote likelihood that

counsel performed as an effective adversary. Thus, the state

court did not improperly apply Cronic to Petitioner’s claim for

ineffective assistance of counsel vis-à-vis a de facto denial of

counsel.

(b) Failure to Properly Investigate and Present Alibi

Witnesses

Petitioner next argues that trial counsel was ineffective

for failing to properly present an alibi defense. This claim was

exhausted and properly reviewed by the state courts below. Thus,

the Court’s review is limited to whether the state courts’

decisions were contrary to, or involved an unreasonable

application of, clearly established federal law, or were based

on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. 28 U.S.C.

§ 2254(d).

As the Pennsylvania Superior Court reasoned in finding that

Petitioner was not completely denied counsel,

Attorney Gallagher managed to secure five witnesses for

Appellant’s trial. In addition, Attorney Gallagher hired

a private investigator in an effort to track down

Appellant’s alibi witness, Ronald Crawford. The only way

Attorney Gallagher and the private investigator could

have known to look for these witnesses was by information

obtained from Appellant. Based on the record in this

case, we find that “at least one in-person meeting” did

occur between Attorney Gallagher and Appellant before

trial.

Johnson, 51 A.3d at 244 (footnote omitted). Given the

investigation and presentation of the alibi defense before the

trial court, the Superior Court found that the prosecution’s

case was subject to meaningful adversarial testing under Cronic.

Id. at 245.

Upon review of the trial record, the Court agrees with the

Pennsylvania Superior Court that Petitioner’s counsel was

diligent in presenting multiple alibi witnesses.23 Even if trial

23 Trial counsel called Douglas Yancy, James Lawrence, Wanda

Johnson, Theresa Johnson, and Lidel Johnson. Yancy, Lawrence,

and Wanda Johnson all testified that they saw Petitioner selling

clothes with another man on the evening of the shooting.

Lawrence and Petitioner testified that Petitioner was wearing

green pants and a blue shirt on the night of the shooting.

Further, Theresa and Lidel Johnson testified that Petitioner did

not own a black leather jacket and the jacket found in

Petitioner’s mother’s home belonged to another person. Theresa

Johnson testified that she had been using her car all day, to

rebut the testimony of Opal Nickson that she had seen Petitioner

using Theresa Johnson’s car (a light green vehicle) earlier in

the day. It also appears that Petitioner’s counsel made all

attempts to secure Ronald Crawford--the man who was in the car

with Petitioner--as a final alibi witness. Defense counsel told

counsel failed to meet with Petitioner sufficiently in terms of

the frequency and duration of meetings, the Pennsylvania

Superior Court’s reasoning was neither contrary to nor an

unreasonable application of federal law when it concluded that

Petitioner suffered no prejudice as to trial counsel’s

presentation of an alibi defense. See Johnson, 51 A.3d at 253-54

(Wecht, J., concurring).

(c) Failure to Secure Arrest Photographs

Petitioner argues that, if the prosecution’s failure to

produce the arrest photographs could not be considered a Brady

violation, then counsel was ineffective for failing to

specifically request the photographs or use them during trial.

This issue was not properly presented to the state courts below

but Respondents have waived exhaustion; thus, the Court assesses

this claim de novo.

Petitioner states that competent counsel “would have

secured the photographs before trial” and “immediately

the trial court that he had been trying to find the witness

“Since last Monday. . . I had them out all weekend and they have

been going on every day. We have right now, we’re trying to find

a girlfriend if we can find her to get in. This is the guy that

was driving around with him all night.” Feb. 2, 1988, Trial Tr.

663:3-14, App. 761, ECF No. 91-4. The following day of trial,

defense counsel stated that Mr. Crawford was still not located,

but that he intended to call his investigator as witness “just

to say when I gave him this name he tried to go out and find

these people.” Feb. 3, 1988, Trial Tr. 759:5-12, App. 859, ECF

No. 91-4.

understand how they impeached the Commonwealth case.” Pet’r’s

Suppl. Br. at 11, ECF No. 84. Not only would competent counsel

use the arrest photo to impeach Commonwealth witnesses at trial,

Petitioner argues, but competent counsel would also use the

arrest photograph in the litigation of a motion to suppress

identification testimony. See Pet’r’s Reply Br. to Amicus at 26-

27, ECF No. 92-1. Further, Petitioner argues that “[t]here is

simply no strategic reason why defense counsel would not seek

this discovery in a case that turns entirely on identification

testimony.” Id. at 27. Respondents agree that the use of the

arrest photograph at trial would have undermined the strength of

the prosecution’s identification case, and thus trial counsel’s

deficient performance “was sufficiently prejudicial to

constitute a constitutional violation.” Resp’ts’ Suppl. Br. 5,

ECF No. 85.

Respondents contend that competent counsel would have been

on notice that arrest photos from October 10, 1986, were in

existence. Trial counsel filed a motion to suppress prior to

trial, which focused on photographic identifications. See Mot.

to Suppress, ECF No. 91-1, App. 84-86. These identifications

occurred on the basis of a photo array, which included an arrest

photo of Petitioner from August of 1985. Therefore, trial

counsel should have known that the police would have taken an

arrest photo of Petitioner on or about October 10, 1986, and he

should have requested the photograph in order to test the

witnesses’ identifications and challenge their credibility. This

is especially true where a primary theory of the defense’s case

at trial was misidentification.

However, Petitioner has not demonstrated that he was

prejudiced by counsel’s error: he has not shown that trial

counsel’s actions were not a product of any sound strategy. See

Thomas, 428 F.3d at 499-500. It was reasonable for trial counsel

to make a strategic decision to attempt to discredit the

witnesses’ ability to perceive and recall the events of October

8, 1986, rather than to attack each element of their

identifications of Petitioner.24

First, trial counsel elicited on cross examination that

James Smith had been drinking a wine cooler before the gunmen

entered but was not substantially impaired. Jan. 27, 1988, Trial

Tr. 116:2-17, ECF No. 91-1, App. 210. To challenge the

identification of Petitioner, trial counsel cross examined James

Smith about the man with the pistol’s height and determined that

that man was shorter than James Smith, approximately 5’6” or

5’7”. Id. at 139:9-19, ECF No. 91-1, App. 233. That statement of

24 Trial counsel moved to suppress all photo identifications,

arguing that the photo arrays were unduly suggestive. The trial

court denied the motion; thus, it is probable that counsel

elected not to pursue this line of questioning to avoid opening

the door to evidence which would confirms the accuracy of the

identifications. See Mot. to Suppress, ECF No. 91-1, App. 84-85.

James Smith was inculpatory. So, trial counsel then extensively

cast doubt on James Smith’s ability to have seen the man with

the pistol. Id. at 141:9-146:8, ECF No. 91-1, App. 235-40.

Second, as to Opal Nickson, counsel on cross examination

elicited testimony about the shooter’s build--“[b]etween 5/6,

5/7, small build . . . .” Jan. 28, 1988, Trial Tr. 220:2-3, ECF

No. 91-2, App. 315. Opal Nickson also testified that, shortly

before the gunmen entered the residence, James Smith was smoking

cocaine, Angelo Smith and Elijah Bennett were smoking marijuana

and cocaine, and she was smoking marijuana. Jan. 28, 1988 Trial

Tr. 238:2-239:7, ECF No. 91-2, App. 333-34. As with James Smith,

trial counsel challenged Opal Nickson’s ability to see the man

with the pistol or differentiate between the shots from the

shotgun and the pistol, especially given that Opal Nickson had

identified someone approximately the same height as Petitioner.

Id. at 246:19-262:7, ECF No. 91-2, App. 341-57.

Third, on cross examination of Elijah Bennett, trial

counsel elicited that the witness had been smoking marijuana

just before the gunmen entered. Jan. 28, 1988, Trial Tr. 474:10-

11, ECF No. 91-3, App. 570. Trial counsel then similarly cast

doubt on Elijah Bennett’s ability to observe the man with the

pistol. Id. at 489:7-494:25, ECF No. 91-3, App. 585-90.

Trial counsel thus appears to have sufficiently attempted

to make the following points with regard to each witness:

(1) the witness was under the influence of drugs and or alcohol

which may have impaired their ability to perceive or recall the

events; (2) the witness was not able to clearly see the man with

the pistol because of the man’s position, the witness’s position

in the room, and the lighting; and (3) the witness has not

always testified consistently, by reference to their statements

to the police.

It is true that trial counsel did not explicitly challenge

the witnesses’ identifications of Petitioner by reference to his

height, weight, skin color, or facial hair.25 Whether this was a

strategic choice, or whether trial counsel only chose not to

question the witnesses about their specific recollections or

statements as to the man with the pistol’s appearance because he

did not have access to the arrest photos is not apparent from

the record. Regardless, given the unequivocal in-court

identifications of Petitioner, it is not likely that detailed

questions directed to the witnesses about the man with the

pistol’s facial hair (or lack thereof) would have had more than

a minimal impeaching impact on their testimony.

25 Two of the witnesses, James Smith and Opal Nickson, testified

that the man with the pistol was 5’6” or 5’7”--consistent with

Petitioner’s height as recorded on October 10, 1986. Thus, some

of the testimony that came out on cross tended to inculpate

Petitioner on the basis of his height.

In any event, Petitioner looks nearly the same in the

photos taken on August 8, 1985--which were used to identify

Petitioner--and the photos taken on October 10, 1986, after his

arrest. Compare App. 35 (August 8, 1985 photo), with App. 36

(October 10, 1986 photo).26 Thus, if a witness recognized

Petitioner as the man with the pistol on the basis of the August

8, 1986 photograph, they likely would have also recognized

Petitioner in the October 10, 1986 photograph. Under these

circumstances, it is not reasonably probable that a different

result would have occurred had trial counsel been able to cross

examine the witnesses with the arrest photograph.

(d) Failure to Interview Angelo Smith

Petitioner also claims that trial counsel’s failure to

interview Angelo Smith prior to trial was constitutional error.

Petitioner presented this claim to the PCRA court in 2016. The

PCRA court did not address the issue directly, instead focusing

on Petitioner’s claims pertaining to the 2014 recantations. The

26 Although Petitioner argued in his 2014 supplement that he was

clean shaven in the arrest photo that was used as part of the

photo array, the materials provided by amicus indicate that

Petitioner’s August 8, 1985 photograph, which depicts Petitioner

with a mustache, was used in the array. Petitioner has a thin

mustache in all of the arrest photographs provided by amicus.

See ECF No. 91-1, App. 26-37. It is not clear, however, whether

there is yet another arrest photograph of Petitioner that shows

him without a mustache and that has not yet been produced in the

course of his federal habeas petition.

Court thus reviews this claim de novo, in light of Respondents’

waiver of nonjurisdictional defenses.

According to a letter sent to trial counsel on December 19,

1986, trial counsel received from the Commonwealth, among other

discovery, the arrest warrant and the statement of Angelo Smith.

Suppl. Mem. Ex. C, ECF No. 85-1 at 8. Both of these documents

indicate that Angelo Smith was not certain in his identification

of Petitioner. Thus, Petitioner argues, reasonable trial counsel

would have sought to call Angelo Smith as a witness to test the

reliability of his identification.

Petitioner states,

When the Commonwealth failed to present Angelo Smith at

trial, competent defense counsel would have had reason

to suspect that Angelo had information favorable to the

defense. Given Mr. Johnson’s insistence that he was

wrongfully arrested and charged in this matter, and

given the prosecutor’s discussion of Angelo in his

opening statement, competent counsel would have

interviewed Angelo.

Suppl. & Am. to Pet. ¶ 82, ECF No. 36.

On the other hand, amicus argues that counsel was not

ineffective for failing to call Angelo Smith because Angelo

Smith’s testimony would not have been exculpatory. Rather,

Angelo Smith’s testimony that he could not identify Petitioner

would open the door to his initial statements to the police and

generally corroborate the statements of the other eyewitnesses.

Amicus Br. at 32, ECF No. 91.

However, the prosecution represented that Angelo Smith was

unavailable to testify at trial, despite the court’s issuance of

a bench warrant. If the prosecutor was to be believed, then

trial counsel may reasonably have believed that any independent

efforts to secure Angelo Smith’s appearance at trial would be

futile. Thus, the central issue was whether counsel was

ineffective for failing to interview Angelo Smith upon reviewing

his statement to the police.

Baynes, as well as Sims and Bryant, discussed supra, lend

support to Petitioner’s argument that reasonable defense

counsel, in an identification case, would interview all

eyewitnesses to the crime, even if counsel also intended to

cross examine the witnesses at trial. Reasonable defense counsel

should further investigate any evidence that has a possibility

of being exculpatory. This holds true even where defense counsel

also intends to present an alibi defense, as any inconsistent

testimony from the eyewitnesses in support of the

misidentification theory would “bolster rather than detract”

from the alibi defense. Lawrence, 900 F.2d at 130. Counsel thus

acted unreasonably in failing to interview Angelo Smith.27

27 As discussed in subsection IV.B.2.a, supra, the prevailing

interpretation of Brady in the Third Circuit prior to 2016

required counsel to act with due diligence in obtaining

exculpatory information. Thus, the fact that the state courts

below found no Brady violation with regard to Angelo Smith’s

statement, in part because of trial counsel’s failure to

In light of the record, it is probable that defense counsel

acted unreasonably in failing to secure the police reports for

witnesses who could support the misidentification and alibi

defense. Nevertheless, there is not a reasonable probability of

a different result had Angelo Smith been interviewed by defense

counsel or presented as a defense witness at trial. Three other

witnesses recognized Petitioner as the man with the pistol at

trial. And, unlike the other three witnesses, Angelo Smith had

never met Petitioner before--thus, he may have been less likely

to remember his face. Therefore, any error by counsel was not

prejudicial to Petitioner.

D. Prosecutorial Misconduct

Petitioner argues that he was denied a fair trial because

of the pervasive misconduct of the prosecutor and police in his

case. Petitioner claims that the prosecutor at trial made a

number of comments and statements that, while not grounds for a

mistrial, were unprofessional and may have affected the jury’s

assessment of the case, despite the trial judge’s numerous

limiting instructions. This claim of prosecutorial misconduct

interview Angelo Smith prior to trial or call him as a witness

at trial, supports the Court’s current finding that counsel was

not reasonably diligent.

was raised and rejected in post-trial motions, on appeal, and in

his PCRA petitions. This issue thus has been fully exhausted.28

Petitioner has not demonstrated that the state courts’

rejection of his prosecutorial misconduct claims were contrary

to or an unreasonable application of clearly established federal

law. Rather, the state court decisions regarding prosecutorial

misconduct (rather than counsel’s failure to challenge the

investigation) rested entirely on state law. Thus, the Court has

no jurisdiction to consider the merits of this claim.

E. Cumulative Prejudice

1. Legal Standard

The Third Circuit has recognized that “errors that

individually do not warrant habeas relief may do so when

combined.” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007)

(citing Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002));

see also Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)

(“Individual errors that do not entitle a petitioner to relief

may do so when combined, if cumulatively the prejudice resulting

from them undermined the fundamental fairness of his trial and

denied him his constitutional right to due process.” (citing

Albrecht v. Horn, 471 F.3d 435, 468 (3d Cir. 2006), vacated and

28 The issue of prosecutorial misconduct as discussed herein

applies only to the statements made by the prosecutor during the

trial and do not include any of the claimed Brady violations

discussed in section IV.B, supra.

superseded on other grounds by Albrecht, 485 F.3d 103). Thus

there must be a colorable claim of constitutional error in order

for the Court to accumulate the resulting prejudice. See, e.g.,

Hannibal v. Gilmore, No. 13-619, 2021 WL 4597084, at *20 (E.D.

Pa. Feb. 23, 2021); Richardson v. Capozza, No. 19-1188, 2020 WL

12957619, at *20 n.25 (E.D. Pa. May 27, 2020); see also Gee v.

Kerestes, No. 09-825, 2009 WL 6598378, at *10 (E.D. Pa. Nov. 17,

2009), report and recommendation adopted as modified, 722 F.

Supp. 2d 617 (E.D. Pa. 2010) (“The court, therefore, examines

only the cumulative effect of errors, not the cumulative effect

of petitioner’s claims.”). The cumulative error doctrine thus

does not allow a petitioner to aggregate all of his claims,

including those a court finds meritless, to argue that the trial

was unfair; a petitioner may only argue that the cumulative

effect of meritorious trial errors that were individually

harmless violated their right to a fair trial. In other words,

zero plus zero is zero and does not add up to one.

A habeas petitioner has the burden of establishing “actual

prejudice” on the basis of cumulative error, in order to be

afforded relief. Albrecht, 485 F.3d at 139. But, “in cases of

grave doubt as to harmlessness the petitioner must win.” O’Neal

v. McAninch, 513 U.S. 432, 437 (1995).

Cumulative errors are not harmless if they had a

substantial and injurious effect or influence in determining the

jury’s verdict.” Id. “In other words, ‘[t]here must be more than

a “reasonable probability” that the error was harmful.’”

Charleston v. Gilmore, 305 F. Supp. 3d 612, 630 (E.D. Pa. 2018)

(quoting Johnson v. Lamas, 850 F.3d 119, 133 (3d Cir. 2017)).

By that logic, “the stronger the evidence against the

defendant, the more likely that improper arguments or conduct

have not rendered the trial unfair.” Marshall v. Hendricks, 307

F.3d at 69. For instance, in Albrecht, the court found that the

petitioner could not demonstrate cumulative prejudice resulting

from the petitioner’s complaints of the jury instructions,

actual innocence, ineffectiveness of counsel, and the

prosecution’s failure to timely disclose witness statements,

because the petitioner had a motive to commit the crime, there

was physical evidence about him, and he had previously told

people he would commit a crime. 485 F.3d at 139.

Other courts have found cumulative prejudice to warrant

granting a habeas petition where “[t]he jury did not have the

opportunity to consider highly damning impeachment evidence and

did not consider and rely on critical witness testimony that has

since been found to be false.” Roberts v. Broomfield, --- F.

Supp. 3d ---, 2022 WL 16532819, at *119 (E.D. Cal. Oct. 28,

2022). More specifically, in Roberts, the court found cumulative

prejudice resulting from the prosecution’s failure to disclose

potential biases of the eyewitnesses who testified against the

petitioner at trial critically undermined the fairness of the

petitioner’s trial because the prosecution’s case rested solely

on the testimony of eyewitnesses. Id. at *117. In another case

from the Ninth Circuit, the court found that “the collective

presence of” “the failure to disclose impeachment evidence, [the

prosecution’s main witness’s] perjury, and the prosecution’s

comments on privileged conduct . . . . [was] devastating to

one’s confidence in the reliability of th[e] verdict and

therefore requires, at the very least, a new trial.” Killian v.

Poole, 282 F.3d 1204, 1211 (9th Cir. 2002). Similarly, in Cargle

v. Mullin, the Eleventh Circuit focused on the “inherent

synergistic effect” of the prosecution’s improper bolstering of

two critical witnesses and defense counsel’s failure to

challenge the vulnerable witnesses in an already weak case,

finding that “habeas relief [was] warranted on the basis of

cumulative error”. 317 F.3d 1196, 1220-21 (10th Cir. 2003).

2. Discussion29

Having previously concluded that it was error for (1) the

prosecution to fail to timely disclose the arrest photo;

29 In 2014, the Third Circuit held that a standalone claim of

cumulative error, like its component independent claims of

error, is subject to exhaustion. Collins v. Sec’y Pa. Dep’t of

Corr., 742 F.3d 528, 543 (3d Cir. 2014). This federal habeas

petition was docketed on June 7, 2013. Petitioner first

presented a standalone claim of cumulative error in his first

counseled amended petition, docketed on November 8, 2013. See

Am. Pet., ECF No. 17. The Court previously granted Petitioner’s

(2) trial counsel to fail to secure the arrest photo; and

(3) trial counsel to fail to interview Angelo Smith, the Court

now considers whether these errors, taken together and in light

of the trial evidence, would “undermine[] the fundamental

fairness” of Petitioner’s trial. Fahy, 516 F.3d at 205.

The prejudice resulting from each of these errors--

individually and cumulatively--was minor. First, the arrest

photograph at issue was only weakly favorable to Petitioner as

his mustache was thin and the shooting occurred in the dark.

Second, trial counsel’s failure to obtain the arrest photo was

not material because the arrest photo was not strongly

exculpatory. Third, trial counsel’s failure to interview or

present Angelo Smith as a witness did not strongly prejudice him

in light of the unequivocal identification testimony by three

eyewitnesses who knew him from around the neighborhood.30

motion for a stay and abeyance in order to exhaust claims based

on newly discovered evidence. See May 4, 2015 Order, ECF No. 47.

However, Petitioner did not raise a standalone claim of

cumulative error in the amended PCRA petition filed on his

behalf by the Pennsylvania Innocence Project on January 21,

2016. See 2016 Amended PCRA Petition, ECF No. 96-2. This claim

is thus not exhausted. However, as noted previously, the Court

will review this claim on the merits as doing so at this time is

in the interests of justice.

30 Although all four eyewitnesses have since averred that they

were threatened by police in some capacity to identify

Petitioner as the man with the pistol, neither Petitioner nor

Respondents articulate how this police misconduct constituted a

constitutional error that may be aggregated as part of the

cumulative prejudice analysis. Furthermore, aside from James

The state courts in this matter have acknowledged that

trial counsel was deficient (though not constitutionally

ineffective) for failing to consult more extensively with

Petitioner before trial. See, e.g., Pet’r’s Reply to Amicus at

27 n.10, ECF No. 92-1 (summarizing the state courts’ holdings

regarding Petitioner’s ineffective assistance of counsel

claims). Petitioner’s PCRA petition was denied by the PCRA

court, appealed by Petitioner, remanded by the Superior Court

for an evidentiary hearing, granted by the PCRA court following

the evidentiary hearing, appealed by Respondents, granted by the

Superior Court, and then subsequently denied by the Superior

Court after rehearing en banc. The record thus indicates that

whether or not Petitioner’s trial counsel was a constitutionally

effective advocate was not a clear call.

Yet, three eyewitnesses testified that Petitioner was the

man with the pistol. Although the eyewitnesses did not see

Smith’s 2001 affidavit, the allegations of police misconduct

derive from 2014 statements of the eyewitnesses, in which they

explain that they were coerced by police. However, when

interviewed by police investigators again in 2016, neither Opal

Nickson nor Angelo Smith described coercion by police.

Accordingly, the parties have not described a sufficient factual

basis for the claim of police misconduct, either.

Nor do the parties sufficiently describe how the

prosecutor’s conduct violated any of Petitioner’s constitutional

rights, especially in light of the trial judge’s recognition

that, while the prosecutor’s comments were frequently

inappropriate, many of the inappropriate comments were made

outside the presence of the jury, and the jury was given a

number of limiting instructions regarding statements of counsel.

Cowboy being shot by anyone, another shooter was never found, no

weapons were ever recovered, and Petitioner presented an alibi

defense, the jury believed the testimony of the eyewitnesses

that Petitioner was the man with the pistol. Thus, in light of

Petitioner’s claims that counsel was ineffective for failing to

discover and use the arrest photos before and at trial--and

counsel’s ineffectiveness for failing to investigate an

exculpatory eyewitness--there was not a reasonable probability

of a different result had trial counsel’s performance not been

deficient and had Brady material been disclosed. Defense counsel

attempted to impeach the eyewitnesses at trial, and had Angelo

Smith been presented as a defense witness, the prosecution

similarly would have undermined his credibility.

Accordingly, any cumulative prejudice flowing from the

constitutional errors at trial is insufficient to warrant

relief.

F. Actual Innocence

1. Legal Standard

A petitioner’s claim of actual innocence may serve as an

equitable exception to compliance with AEDPA’s one-year statute

of limitations. McQuiggin v. Perkins, 569 U.S. 383 (2013). Where

the showing of evidence of innocence is credible, a prisoner may

be permitted to maintain constitutional claims “on the merits

notwithstanding the existence of a procedural bar to relief.”

Id. at 392. This “miscarriage of justice exception . . . applies

to a severely confined category: cases in which new evidence

shows ‘it is more likely than not that no reasonable juror would

have convicted [the petitioner].’” Id. at 394-95 (quoting

Schlup, 513 U.S. at 329) (alteration in original). The Court

reviews de novo whether a petitioner’s evidence, new and

existing, is sufficient to show that the Schlup standard is

satisfied. Munchinski v. Wilson, 694 F.3d 308, 337 (3d Cir.

2012). This does not mean that the Court “make[s] an independent

factual determination of what actually happened. Rather, [the

Court] assess[es] the likely impact that the new evidence would

have had on reasonable jurors.” Wallace v. Mahanoy, 2 F.4th 133,

151 (3d Cir. 2021). Although a showing of diligence is not

required for an “actual innocence” claim, untimeliness “does

bear on the credibility of evidence proffered to show actual

innocence.” McQuiggin, 569 U.S. at 401.

In reviewing all the evidence, the Court considers “both

newly discovered evidence as well as exculpatory evidence that

counsel failed to discover or present at trial.” Wallace, 2

F.4th at 152 (citing Reeves v. Fayette SCI, 897 F.3d 154, 163-64

(3d Cir. 2018)).

Per Wallace, the Court considers (1) the “newness” of the

evidence; (2) the reliability of the “new” evidence; (3) whether

the evidence tends to show actual innocence as a matter of law;

and (4) the general relevance of the “new” evidence, in

determining whether no reasonable juror would have reasonable

doubt about a petitioner’s guilt in light of the new, reliable

evidence. Id. at 152-53.

2. Discussion

Petitioner has not demonstrated that he meets the high bar

for actual innocence. The “new” evidence that he sets forth

include the 2014 statements of the eyewitnesses as well as the

arrest photographs. Although this evidence is relevant and tends

to exculpate him, it is not sufficiently reliable.

First, the statements are not “new,” but the photographs

can be considered “new.” The 2014 statements of the

eyewitnesses--alleging that they were coerced to identify

Petitioner and did not actually think he was the man with the

pistol--were created nearly thirty years after the shooting. One

witness, James Smith, stated in a 2001 affidavit that he wrongly

identified Petitioner. That affidavit is fresher, as it was

created only approximately fifteen years after the shooting.

Petitioner does not explain why it took so long to re-interview

the other eyewitnesses, especially where each of those witnesses

stated that they would have come forward sooner had anyone asked

them about their testimony. On the other hand, the arrest

photographs are “new.” These were discovered in 2019, and there

is no indication that the photographs are not the authentic

photographs taken in 1986.

Second, while the arrest photographs are genuine, the

statements of the eyewitnesses are not particularly reliable.

James Smith’s statements are relatively consistent from 2001 to

2014. But the other three statements are problematic. First,

Elijah Bennett attested in his 2014 statement that he has

significant memory problems because of a head injury and did not

remember testifying at trial--although he recalled wrongfully

identifying Petitioner. His statement therefore creates some

doubt about his ability to recall the initial statement in the

first place--and also indicates that his statement could not be

subjected to adversarial testing. Next, Opal Nickson has given

three statements--in 2014, 2016, and 2019--and said something

slightly different each time. In 2014, she stated that she

testified falsely at trial, in 2016, she stated that she

testified truthfully at trial, and in 2019, she stated in a

deposition that she was told to testify truthfully and thus told

the truth when she testified that Petitioner looked like the man

who had the pistol. In 2019 she also said she had no

recollection of what was in the 2014 affidavit but described

Petitioner’s investigator as “harassing” her. She has since

passed away, so her testimony cannot be subject to further

adversarial testing. Finally, Angelo Smith’s 2014 and 2016

statements, while generally consistent, are not particularly

reliable. In both statements, Angelo Smith said that he appeared

at trial, told someone affiliated with the prosecution that he

did not recognize Petitioner, and then was told his presence was

no longer required at trial. In the 2016 statement to police

investigators, however, Angelo Smith stated that he did not read

his 2014 statements. Thus there is some doubt as to the

integrity of the 2014 affidavits, with respect to Angelo Smith

and, more generally, with respect to the three other

eyewitnesses. And, this is not even considering that the

recantation statement has not been subject to adversarial cross-

examination.31

Third, the arrest photograph does not tend to show

innocence as a matter of law. As discussed at length above, the

arrest photographs are not particularly exculpatory; the trial

testimony regarding Petitioner’s appearance is somewhat

consistent with the photograph, and three eyewitnesses

positively identified him at trial. For this reason, the

31 None of the eyewitnesses were ever cross examined as to their

recantations in open court. In 2016, as part of PCRA proceedings

(when Respondents had still taken an adversarial position)

Angelo Smith and Opal Nickson were asked about their 2014

recantations. In 2019, Opal Nickson was deposed and subjected to

informal cross examination. There is no record of James Smith or

Elijah Bennett ever being questioned by Respondents regarding

their recantations.

photographs are also not particularly relevant to the claim of

innocence.

Fourth, the affidavits, if believed, are relevant and could

be probative of innocence--all four eyewitnesses have stated

that they did not actually recognize Petitioner as the man with

the pistol and instead were coerced into choosing his picture.

However, as discussed above, these recantations are not reliable

in that they were not made until long after the threat of

charges for perjury had passed, and they were made in the face

of conceded memory problems, thus impacting the parties’ ability

to subject the statements to adversarial testing. Furthermore,

the allegations of coercion by the prosecution or police

detectives are one-sided and made without the benefit of so much

as interviews with those actually involved.32 Thus, the Court

cannot determine the full extent of any alleged coercion or

misconduct.

32 Although Petitioner points to a number of cases in which

Pennsylvania courts found the prosecutor or one of the

detectives involved in Petitioner’s case liable for misconduct,

see Settlement Agreement at 13 n.15, ECF No. 77 (collecting

cases discussing the prosecutor’s misconduct); Mem. of Law in

Support of Pet. for Writ of Habeas Corpus at 94 n.23, ECF No. 19

(collecting cases highlighting Detective Bittenbender’s past

misconduct), no such claim has been adjudicated on the facts of

this case. The Court cannot take instances of prior misconduct,

without more, as conclusive evidence that the prosecutor or

detectives in Petitioner’s criminal case engaged in misconduct.

Accordingly, Petitioner has not presented sufficiently

reliable “new” evidence to support a meritorious claim of actual

innocence.

V. CONCLUSION

For the foregoing reasons, habeas relief is not warranted

on Petitioner’s claims. The settlement agreement will not be

approved.

An appropriate Order follows.