# JOHNSON v. KERESTES

> District Court, E.D. Pennsylvania · July 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10405631

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405631

## How later opinions describe it (automated extraction)

- 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”
- describing a habeas court’s discretion as broad in the context of a stay of relief pending appeal

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405631. Public record. Not legal advice.