KUSHNER v. LINK

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

ALAN KUSHNER, :

:

Petitioner, :

v. : No. 2:16-cv-0045

:

JOSEPH TERRA et al., :

:

Respondents. :

__________________________________________

O P I N I O N

Report and Recommendation, ECF No. 40 – Adopted

Joseph F. Leeson, Jr. August 2, 2024

United States District Judge

I. INTRODUCTION

Alan Kushner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his jury conviction of criminal solicitation to commit murder in the Montgomery

County Court of Common Pleas. Magistrate Judge Carol Sandra Moore Wells issued a Report

and Recommendation (“R&R”) recommending that the habeas corpus claims be denied and

dismissed, to which Kushner has filed objections. For the reasons that follow, the objections are

overruled and the petition is denied and dismissed.

II. BACKGROUND

The R&R summarizes the factual and procedural background of this case. See R&R,

ECF No. 40. Kushner does not object to this summary and, after review, it is adopted and

incorporated herein.

Of note, on July 20, 2009, Kushner was convicted of solicitation to commit murder of his

wife and was sentenced to seven and one-half to twenty years of incarceration. Kushner’s direct

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appeal was denied and his sentence was affirmed. See Commonwealth v. Kushner, 23 A.3d 573

(Pa. Super. Ct. Dec. 8, 2010), allocatur denied, 30 A.3d 487 (Pa. 2011). Following the denial of

his appeal, Kushner unsuccessfully pursued numerous PCRA petitions, beginning in October of

2012.

On January 5, 2016, Kushner filed a writ for habeas corpus. See ECF No. 1. On March

2, 2016, Magistrate Judge Wells stayed the petition pending resolution of Kushner’s ongoing

PCRA proceedings. See ECF No. 10. On June 7, 2021, Kushner filed a “Supplemental 2254

Motion” in which he informed Magistrate Judge Wells that the PCRA petitions were resolved.

See ECF No. 17. On August 15, 2023, the Montgomery County District Attorney’s Office filed

a response. See ECF No. 34. On October 30, 2023, Kushner filed a reply. See ECF No. 39.

On March 1, 2024, Magistrate Judge Wells issued an R&R finding Kushner’s eighth

claim non-cognizable, his first claim procedurally defaulted, and his remaining claims meritless.

See ECF No. 40. Kushner filed objections to the R&R on April 17, 2024. See ECF No. 44-45.1

III. LEGAL STANDARDS

A. Report and Recommendation – Review of Applicable Law

When objections to a report and recommendation have been filed under 28 U.S.C. §

636(b)(1)(C), the district court must make a de novo review of those portions of the report to

which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099,

1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any separate

findings or conclusions when reviewing a Magistrate Judge’s recommendation de novo under 28

U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x. 142, 147 (3d Cir. 2016). The “court may

1 Kushner filed his objections twice. One version has the Strohm report attached while the

other does not. They are otherwise identical.

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accept, reject, or modify, in whole or in part, the findings and recommendations” contained in

the report. 28 U.S.C. § 636(b)(1)(C).

B. Habeas Corpus Petitions under 28 U.S.C. § 2254 – Review of Applicable Law

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “state

prisoners must give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process” before seeking

federal habeas review. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Where a petitioner

has failed to properly present his claims in the state court and no longer has an available state

remedy, he has procedurally defaulted those claims. Id. at 847-848. An unexhausted or

procedurally defaulted claim cannot provide the basis for federal habeas relief unless the

petitioner “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.” See Coleman v. Thompson, 501 U.S. 722, 732-33, 750

(1991) (explaining that a “habeas petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion [because] there are no state remedies any longer

‘available’ to him”). The Supreme Court has held that the ineffectiveness of counsel on

collateral review may constitute “cause” to excuse a petitioner’s default. See Martinez v. Ryan,

566 U.S. 1 (2012). The fundamental 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].’” McQuiggin v. Perkins, 569 U.S. 383,

395 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562

3

U.S. 594, 598 (2011) (internal quotations omitted); See also 28 U.S.C. § 2254(d);2 Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (holding that there is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard” because the

question before a federal court is not whether the state court’s determination was correct, but

whether the determination was unreasonable); Hunterson v. Disabato, 308 F.3d 236, 245 (3d Cir.

2002) (“[I]f permissible inferences could be drawn either way, the state court decision must

stand, as its determination of the facts would not be unreasonable.”). Additionally, “a federal

habeas court must afford a state court’s factual findings a presumption of correctness and that []

presumption applies to the factual determinations of state trial and appellate courts.” Fahy v.

Horn, 516 F.3d 169, 181 (3d Cir. 2008). The habeas petitioner has the “burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

C. Claims of Ineffective Assistance of Counsel - Review of Applicable Law

To establish counsel’s ineffectiveness, a petitioner must show: (1) counsel’s performance

fell below an objective standard of reasonableness; and (2) the performance was prejudicial to

the defense. Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that

counsel is effective and the courts, guarding against the temptation to engage in hindsight, must

be “highly deferential” to counsel’s reasonable strategic decisions. Id. at 689 (explaining that

courts should not second-guess counsel’s assistance and engage in “hindsight to reconstruct the

circumstances of counsel’s challenged conduct”). The mere existence of alternative, even more

2 “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 . . . resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law . . .;

or . . . resulted in a decision that was based on an unreasonable determination of the facts . . . .”

28 U.S.C. § 2254(d).

4

preferable or more effective, strategies does not satisfy the first element of the Strickland test.

See Marshall v. Hendricks, 307 F.3d 36, 86 (3d Cir. 2002). To establish prejudice under the

second element, the petitioner must show that there is “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Roe v.

Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting Strickland, 466 U.S. at 694). The court must

consider the totality of the evidence and the burden is on the petitioner to prove ineffectiveness.

Strickland, 466 U.S. at 687, 695.

D. Brady v. Maryland – Review of Applicable Law

Under Brady v. Maryland, the prosecution must produce to the defendant evidence that is

material to either guilt or punishment, irrespective of good or bad faith. 373 U.S. 83, 87 (1963);

see also United States v. Bagley, 473 U.S. 667, 676 (1985) (extending Brady to impeachment

and exculpatory evidence); Giglio v. United States, 405 U.S. 150, 154 (1972). “A Brady

violation occurs if: (1) the evidence at issue is favorable to the accused, because either

exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was prejudiced

because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011).

“Evidence is material if there is a reasonable probability that, if the evidence had been disclosed,

the result of the proceeding would have been different.” Wilson v. Beard, 589 F.3d 651, 665 (3d

Cir. 2009). “A ‘reasonable probability’ of a different result is shown when the government’s

suppression of evidence ‘undermines confidence in the outcome of the trial.’” Id. (quoting Kyles

v. Whitley, 514 U.S. 419, 434 (1995)). The Third Circuit has further explained that “evidence

may be material if it could have been used effectively to impeach or corral witnesses during

cross-examination.” Johnson v. Folino, 705 F.3d 117, 129-30 (3d Cir. 2013). To that end, the

Third Circuit has instructed district courts to consider not only the content of the evidence at

5

issue but also “where it might have led the defense in its efforts to undermine [a particular

witness]” when determining whether evidence is “material.” Id. at 131.

IV. ANALYSIS3

Presently before the Court are Kushner’s objections to the R&R’s conclusions regarding

his ineffective assistance of counsel and Brady claims. The Court has conducted a de novo

review of these claims and now writes to address each objection as well as another ground raised

in the habeas petition but unaddressed in the R&R.

A. Ineffective Assistance of Counsel

Kushner objects to Magistrate Judge Wells’ conclusion that trial counsel was not

ineffective for failing to levy a jurisdiction and/or venue challenge. Rolled into the same

objection, Kushner seemingly argues that his counsel was ineffective for failing to raise 18

Pa.C.S. § 905(b) as a defense to jurisdiction or venue. The Court overrules these objections.

Finally, Kushner’s habeas petition argues that counsel was ineffective for failing to seek a

hearing pursuant to Franks v. Delaware. Since this last claim was unaddressed by the R&R, the

Court addresses the matter here.

3 The numerous PCRA efforts, lengthy record, and inconsistent arguments of Kushner’s

post-conviction efforts muddle disposition of this habeas petition. Nonetheless, “[a]n application

for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

Thus, “[m]erits review may be preferable when, for example, the substantive issues are

straightforward, and the procedural concerns involve complicated issues of state law.” Romero

v. Beard, No. CV 08-0528-KSM, 2024 WL 1975475, at *6 (E.D. Pa. May 2, 2024). Given the

convoluted procedural posture of this case, the Court opts to take this route on several objections.

6

1. Challenges to Subject Matter Jurisdiction & Venue

Kushner argues that his trial counsel was ineffective for failing to object to

“jurisdiction/venue in Montgomery County.”4 Pet. at 12. Kushner’s theory, which appears to be

as follows, does not entitle him to relief. He argues that his trial counsel should have requested a

bill of particulars to determine where the solicitation occurred. Had counsel done so, he would

have found that the solicitation occurred only in Philadelphia, not Montgomery County. This

fact would have led competent counsel to move to dismiss the solicitation count or sever it from

the attempted murder and conspiracy counts. The upshot is that Kushner would have been

relieved of the prejudice of trying all three counts together in front of a Montgomery County

jury.

Kushner raised substantially the same claim in his initial PCRA. See ECF No. 7-10. The

same was rejected by the Superior Court which reasoned that:

Although the solicitation occurred in Philadelphia County at Defendant’s office the

crime was to be carried out at the marital home of Defendant and his wife in Bala

Cynwyd, Montgomery County. As such, Montgomery County was the proper

jurisdiction to hear the instant case. See Commonwealth v. Carey, 439 A.2d 151,

155 (Pa. Super. 1981) (“It's logical that even though the original solicitation may

have taken place in Philadelphia County, the ultimate act was to be performed in

Delaware County and that county should have jurisdiction to try the defendant.”)

Commonwealth v. Kushner, No. 2357 EDA 2014, 2015 WL 6470520 at *15 (Pa. Super. Ct. Oct.

6, 2015). Thus, the Superior Court found, because the claim “has no merit, [trial counsel] was

not ineffective in this respect.” Id. The Superior Court’s application of Strickland is neither

“contrary to, or involved an unreasonable application of, clearly established Federal law” nor

“based on an unreasonable determination of the facts in light of the evidence presented.” 28

4 While Kushner uses venue and jurisdiction interchangeably, they are not the same. See

Commonwealth v. Bethea, 828 A.2d 1066, 1074-75 (Pa. 2003).

7

U.S.C. § 2254(d). Any jurisdictional challenge would have failed because “all courts of common

pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code.”

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003).

As regards Kushner’s ineffective assistance of counsel claim regarding venue, it too

would have failed because “a charge of solicitation may be tried in the county where the ultimate

criminal act was to be performed.” 5 See Commonwealth v. Kingston, No. 2016 MDA 2012, 2014

WL 10558605, at *2 (Pa. Super. 2014)). Moreover, “[v]enue relates to the right of a party to

have the controversy brought and heard in a particular judicial district” and is “predominately a

procedural matter, generally prescribed by rules of [the Pennsylvania Supreme] Court.” Bethea,

828 A.2d at 1074 (emphasis added). This Court must defer to the state court’s interpretation of

its own law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of

state law, including one announced on direct appeal of the challenged conviction, binds a federal

court sitting in habeas corpus.”)6

5 See 28 U.S.C. § 2254 (b)(2) (“An application for a writ of habeas corpus may be denied

on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”)

6 Finally, the Court notes that, as Kushner points out, there is indeed a constitutional

dimension to venue. For example, the Sixth Amendment contains a vicinage clause which

Kushner only vaguely references in his objections. Obj. at 23. However, the vicinage clause has

not been incorporated to apply to state court proceedings. See Concepcion v. Varano, No. 1:11-

CV-02225, 2017 U.S. Dist. LEXIS 171612, at *16-17 (M.D. Pa. Oct. 16, 2017) (“the Third

Circuit has held that the Sixth Amendment vicinage provision is not applicable to state criminal

trials.”) Kushner’s brief also makes passing reference to Article III, Section II, Clause III.

However, that clause has no bearing as it requires that the trial “be held in the State where the

said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3 (emphasis added). Here,

Kushner does not argue he was tried in the wrong state but rather the wrong county.

8

Since counsel cannot be ineffective for failing to raise a meritless argument, Kushner’s

claims with respect to jurisdiction and venue fail. See Glass v. Sec'y Pennsylvania Dep't of

Corr., 726 F. App'x 930, 933 (3d Cir. 2018).

2. Section 905(b): Mitigation of Solicitation

In his objections, Kushner reiterates 18 Pa.C.S. § 905(b) as a basis for relief. However,

his theory in this respect is unclear. At times, he relates Section 905(b) to Montgomery County’s

subject matter jurisdiction over his case. For instance, on appeal of the denial of his second

PCRA petition, he argued that “based on a lack of subject matter jurisdiction the lower Court

should have granted relief pursuant to Rule 905(b).” Commonwealth of Pennsylvania, v. Alan

Kushner, (Brief of Appellant), 2016 WL 6668660 at * 34 (Aug. 16, 2016). At other times, the

argument is couched in terms of venue. See Obj. at 23. (“However, this was a question of

venue, which is clearly not a state law question.”) Most importantly, but adding further

confusion, Kushner’s habeas petition relates Section 905(b) to a sufficiency/weight of the

evidence claim, arguing that “pursuant to 18 Pa.C.S. § 905, it is clear that the alleged solicitation

of Weldon Gary was unlikely to result or culminate in the commission of a crime and, that the

evidence was insufficient as a matter of law.” Pet. at 10.

On appeal from the denial of Kushner’s second PCRA petition, the Superior Court held

that the matter was both untimely and previously litigated insofar as it related to jurisdiction

because Kushner’s first PCRA rejected an ineffective assistance of counsel claim for failure to

challenge the jurisdiction of the trial court. Commonwealth v. Kushner, No. 792 EDA 2016,

2017 WL 89119 at *4 (Pa. Super. 2017).

While it is not clear which theory Kushner puts forward, it is clear Section 905(b) is

inapplicable and so he cannot show prejudice for trial/initial post-conviction counsel’s failure to

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raise these arguments.7 United States v. Sanders, 165 F.3d 248, 253 (3d Cir.1999) (“[t]here can

be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a

meritless argument.”). Section 905(b) provides:

(b) Mitigation.--If the particular conduct charged to constitute a criminal attempt,

solicitation or conspiracy is so inherently unlikely to result or culminate in the

commission of a crime that neither such conduct nor the actor presents a public

danger warranting the grading of such offense under this section, the court may

dismiss the prosecution.

18 Pa.C.S. § 905(b). The Court finds that Section 905(b) has plainly no bearing on subject

matter jurisdiction because the trial court would need to have jurisdiction over the crime to use

the mitigation discretion afforded by Section 905(b). It logically follows that if the trial court

cannot hear a case, it cannot hear the facts which might entitle the defendant to mitigation.

Nor does Section 905(b) relate to venue. Venue, at its essence, is concerned with the

fairness of bringing a controversy in a particular judicial district. Bethea, 828 A.2d at 1074. Its

“primary concern” is “the location of the trial[’s] impact on the ability of the parties to have their

case decided before a fair and impartial tribunal[.]” Id. at 1075. Again, nothing in Section 905(b)

speaks to venue because the facts that might entitle one to mitigation are wholly divorced from

the concerns that animate questions of venue.

Finally, in the context of a sufficiency or weight of the evidence claim, Kushner’s

Section 905(b) claim also fails. In his first PCRA petition, Kushner indeed brought a sufficiency

of the evidence claim which the Superior Court rejected, reasoning:

[D]uring trial, Weldon Gary testified that the Defendant offered him $20,000 to kill

Defendant's wife. Furthermore, he received a $1,000 down payment from the

Defendant as an advance and the Defendant gave Mr. Gary the directions to his

wife's house in Bala Cynwyd and a description of her vehicle. This testimony was

7 See 28 U.S.C. § 2254 (b)(2) (“An application for a writ of habeas corpus may be denied

on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”)

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corroborated by the testimony of Craig Lowman, who testified that sometime in

2008, Mr, Gary told him the Defendant gave him $1,000.

In reaching their verdict, the jury clearly chose to believe the testimonies of Mr,

Gary and Mr. Lowman. That is their province and since these testimonies

sufficiently established the elements of Criminal Solicitation to Commit Murder,

we submit the verdict was not contrary to the evidence as to shock one’s sense of

justice. See Commonwealth v. Kane, 10 A.3d 332–333 (Pa. Super. 2010). Thus, the

underlying claim is meritless and we therefore cannot find appellate counsel

ineffective for not raising it on appeal.

Commonwealth v. Kushner, No. 2357 EDA 2014, 2015 WL 6470520, at *16 (Pa. Super. Ct. Oct.

6, 2015). While the Superior Court does not address the applicability of Section 905(b) directly,

its reasoning forecloses 905(b)’s prospects for relief.

Section 905(b) has narrow application. In Commonwealth v. John, the defendant, Donald

John, communicated over the internet with who he thought was a 13-year-old girl named Missy.

Commonwealth v. John, 854 A.2d 591 (Pa. Super. 2004). In reality, Missy was an agent of the

Pennsylvania Attorney General’s Office conducting an operation in conjunction with Delaware

County’s Internet Crimes Against Children Task Force. Id. at 592. Over the course of several

weeks, John made it clear that his intentions were to “hook up” with the young girl, going so far

as to set a meetup in Media, Pennsylvania. Id. Upon arriving at the meetup, John was arrested

by an undercover officer. Id. He was convicted after a bench trial. Id. at 593.

On appeal, John argued that the trial court erred in refusing to dismiss the charges

pursuant to Section 905(b). In particular, he argued that “because there was no ‘Missy,’ his

conduct was inherently unlikely to result in the commission of a crime and so dismissal was

proper.” Id. at 597. The Superior Court upheld the conviction, reasoning that Section 905(b)

explicitly requires a finding that the actor does not pose a public danger. Id. Notwithstanding

the nonexistence of Missy, John’s acts clearly posed a public danger by way of his “capacity to

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do wrong” and “his intent to influence someone to engage in a criminal act” as evidenced by the

overt acts he took toward his criminal end. Id.

Similarly, Kushner’s actions posed a clear public danger irrespective of Gary’s

intentions. As the Superior Court’s examination of the evidence shows, Kushner gave Gary

upfront money for the criminal purpose, directions to his wife’s home, and a description of her

vehicle. This presents a clear public danger. By way of contrast, the Court looks to the

legislative backdrop of Section 905(b). Section 905(b) is derived from Section 5.05 of the

Model Penal Code, the commentaries of which provide as an example an “effort[] to kill by

incantation.” ALI, Model Penal Code Part I Commentaries §5.05, vol. 2, at 491 (1985). This

case stands far apart from the sort of extreme cases in which Section 905(b) might warrant the

dismissal of charges. That Gary did not have the immediate means to effectuate the purpose of

the solicitation does not impair Kushner’s capacity to do wrong.

Thus, because any invocation of Section 905(b) would have been unsuccessful, Kushner

can show no prejudice from his counsel’s failure to raise that claim.

3. Franks Hearing

Kushner argues that trial counsel was ineffective for failing to seek a Franks hearing8. In

particular, he argues that:

While Counsel asserted that critical averments in the search warrant application

involving an interview with Petitioner’s medical receptionist, Yvette Harris

(Hawkins), were not truthful, he only utilized a “four-corners” analysis to suggest

8 “In Franks, the Supreme Court determined that a criminal defendant has the right to

challenge the truthfulness of factual statements made in an affidavit of probable cause supporting

a warrant subsequent to the ex parte issuance of the warrant.” United States v. Yusuf, 461 F.3d

374, 383 (3d Cir. 2006). “In order to obtain a hearing to do so, the defendant must first make ‘a

substantial preliminary showing’ that the affidavit contained a false statement or omission that

(1) was made knowingly and intentionally, or with reckless disregard for the truth, and (2) was

material to the finding of probable cause.” United States v. Aviles, 938 F.3d 503, 508 (3d Cir.

2019) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).

12

that these statements were not truthful and not sufficient to create probable cause.

However, Counsel should have requested a hearing to present evidence that

Hawkins was not reliable. Moreover, Counsel should have sought to reopen the

suppression hearing after learning of the material witness warrants required to

produce Ms. Hawkins at trial.

Pet. at 13. At the outset, the Court notes that trial counsel indeed challenged the search. Further,

his initial post-conviction counsel raised the argument that trial counsel was ineffective for

failing to challenge the denial of Kushner’s Motion to Suppress. The Superior Court addressed

the same as follows:

Again, this claim has no merit because Attorney Rose did in fact challenge this

court's suppression ruling. Specifically, in his Concise Statement filed March 31,

2010, Attorney Rose raised the issue as follows:

The Defendant's pretrial motion to suppress evidence seized from

his home on October 2, 2008, particularly the $75,000,00 cash taken

from his safe, should have been granted because, under the four

corners of the Affidavit of Probable Cause, there was inadequate

probable cause to justify the search and seizure of the Defendant's

residence. There was an insufficient basis for the issuing authority

to reasonably conclude that the Defendant's residence contained

evidence of criminal activity on October 2, 2008. As a result, the

Commonwealth was able to introduce at trial evidence of the

$75,000.00 cash to argue to the jury that this was evidence of the

Defendant's guilt which also provided corroboration of the

inculpatory solicitation testimony of Weldon Gary [.] (Citation to

notes of testimony omitted).

(Def. Concise Statement, 03/31/2010 # 2). On appeal, the Superior Court found the

suppression challenge meritless. Commonwealth v. Kushner, No. 762 EDA 2010,

p. 5 (Pa, Super. Dec.8, 2010). This claim is therefore waived as being previously

litigated per 42 Pa.C.S.A. § 9543(a)(3); and § 9544(a). Nevertheless, we clearly

cannot find Attorney Rose ineffective for failing to challenge the suppression ruling

on appeal when he in fact did just that. See Commonwealth v. Spotz, 896 A.2d 1191,

1224 (Pa.2006)

Commonwealth v. Kushner, No. 2357 EDA 2014, 2015 WL 6470520, at *17 (Pa. Super. 2015).

Notwithstanding, Kushner’s argument fails for two reasons. First, “[i]t is well-

established that a substantial showing of the informant’s untruthfulness is not sufficient to

13

warrant a Franks hearing.” United States v. Brown, 3 F.3d 673, 677 (3d Cir. 1993). Rather,

Franks is concerned with “intentional or reckless falsity on the part of the affiant.” Id. (emphasis

in original); see also United States v. Krall, No. 07-607-01, 2009 U.S. Dist. LEXIS 68244 at *

25-26 (E.D. Pa. Aug. 4, 2009) (finding defendant was not entitled to a Franks hearing because

Franks hearings concern the affiant’s, not the informant’s, truthfulness). Kushner’s petition is

silent in this respect.

Second, Kushner fails to state what “substantial preliminary showing” his counsel should

have made which would have entitled him to a Franks hearing, much less a successful one.

Franks, 438 U.S. at 155-56. He appears to argue his counsel was ineffective for failing to attack

the warrant from a different angle. However, he does not elucidate how that should have been

done. Kushner argues Counsel should have presented evidence Hawkins was not reliable. He

does not explain nor expound upon what this evidence is anywhere in his briefs. He does not

even go so far as to explain what averments of Yvette Harris figured into any affidavit of

probable cause. Instead, he puts forward the sort of “mere conclusory allegations” which are

insufficient to obtain a Franks hearing. Yusuf, 461 F.3d 383 n.8. Strickland requires that there

be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Roe, 528 U.S. at 482 (quoting Strickland, 466 U.S. at

694). With respect to this claim, Kushner’s theory fails early because he has failed to put forward

a theory which may have entitled him to a Franks hearing and the protections it provides. It

reasonably follows then that a Franks hearing would not have changed the result of the

proceeding. Thus, Kushner has shown no prejudice and his claim fails.

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B. Brady Violation

In his next objection, Kushner argues that the Commonwealth suppressed certain

evidence about Weldon Gary in violation of Brady.9 This claim is unexhausted as it was not

presented to the state court. However, a Brady violation may demonstrate cause and prejudice so

as to excuse that default. Johnson, 705 F.3d at 128.

Kushner’s Brady claim is premised on the 2019 Strohm report which purportedly

revealed that Gary only testified because he was threatened with a two-to-five-year sentence had

he not. Thus, the theory is that this previously unknown fact could have been used to impeach

Gary’s testimony because “it showed Gary’s motive for testifying [was] not to receive a lengthy

prison sentence.” Obj. at 12. The Court finds that Kushner’s claim fails because the evidence

was immaterial and thus procedurally defaulted. Banks v. Dretke, 540 U.S. 668, 698 (2004)

(quoting Strickler v. Greene, 527 U.S. 263, 282 (1999) (“Unless suppressed evidence is ‘material

for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to overcome [a]

procedural default.’”)

Kushner’s argument is that this evidence would have been used to undermine Gary’s

credibility by suggesting to the jurors that he had a motive to lie in that he would avoid prison

time. This motive was referenced many times during trial. The following direct examination of

Gary by the Commonwealth made it clear Gary was testifying under immunity:

Q: When we’ve - - did you give - - you gave a statement to the detectives in October

of 2008; is that right?

A: Yes.

9 It is not clear where this claim was raised. It appears that the claim is rooted in the

“Strohm report” which was provided to Kushner on October 15, 2019, far after this January 2016

habeas petition. Thus, it appears this Brady claim is brought in Kushner’s “Supplemental 2254

Motion” filed in June of 2021. See ECF No. 17.

15

Q: Okay. And did you meet me that day?

A: Yes, I did.

Q: All right. And did I tell you that you weren’t going to get arrested for anything?

A: Yes, you did.

Q: But you didn’t trust me, did you?

A: No, I didn’t trust you.

Q: All right.

…

Q: Mr. Gary, did you ask me for immunity –

A: No –

Q: -- Even though I told you you weren’t going to get arrested?

A: No, I didn’t

Q: Oh, you didn’t ask – did I offer to give you immunity?

A: Yes, you did.

Q: Okay, fair enough. And did I explain to you what immunity meant?

A: Yes, you did.

ECF No. 7-114 at 130:9-131:13. On cross, Kushner’s counsel reemphasized Gary’s immunity:

Q: So its clear to the jury, I want to make a couple points clear here. You weren’t

charged with anything in this case is that correct?

A: No I wasn’t charged

Q: Okay, because you got immunity right? I’ll get to that.

Id. at 136:19-24.

Q: And when you gave that statement, that’s when - - before you gave the

statement, you got immunity right?

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A: No I didn’t.

Q: You didn’t?

A: Yes, I did, yes I did. You’re right.

Q: Of course you did.

A: Yeah.

Q: So I understand the sequence here, Mr. McGoldrick came down, he saw you,

he gave you immunity, use immunity. You’ve got to tell these people here

A: He gave me immunity.

Q: Gave you immunity. You know what immunity means because you’ve been in

the criminal justice system. You know what it means?

A: I ain’t never had it before.

Q: Never had it but you know what it is right?

A: I still do. Yes, I do.

Id. at 137:16-138:9. Kushner’s counsel then proceeded to read the immunity agreement, which

had been admitted into evidence. see ECF No. 7-121 at 45, to Gary. ECF No. 7-114 at 138:21-

139:20. Moreover, trial counsel made a point to address Gary’s immunity in closing as well:

Before [Gary] talked to the police, he got immunity. He’s got - - he could tell them

anything. He could tell them I shot Kennedy. He could tell them whatever he wants

to tell them. They’re not going to charge him. He still didn’t get charged in this

case he’s not charged.

ECF No. 7-126 at 49:8-13. The jury instructions properly instructed the jury to consider what

“interest a witness would have in the outcome of the litigation,” ECF No. 7-120 at 16:24-25,

whether “the witness had anything to gain or lose from the outcome of the case,” Id. at 17:14-15,

and whether the witness displayed “any motive to testify falsely[.]” Id. at 16:19.

The reason the Court does not find this evidence material is because the very nature of

immunity is that it applies only when the witness has something to be immune from. Thus, the

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jurors were aware of Gary’s purported motivation to testify even if they were not aware of the

exact terms of the threat. Gary’s immunity was made a substantial issue at trial and the jurors

were properly instructed to consider his motivation to testify and the purported suppression of

this evidence does not undermine the Court’s “confidence in the outcome of the trial.”10 Kyles,

514 U.S. at 434.

Accordingly, Kushner’s argument fails because the evidence upon which Kushner’s

Brady claim relies is immaterial.

C. Certificate of Appealability

A certificate of appealability (“COA”) should only be issued “if the petitioner ‘has made

a substantial showing of the denial of a constitutional right.’” Tomlin v. Britton, 448 F. App'x

224, 227 (3d Cir. 2011) (quoting 28 U.S.C. § 2253(c)). “Where a district court has rejected the

constitutional claims on the merits ... the petitioner must demonstrate that reasonable jurists

would find the district court's assessment of the constitutional claims debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Where the denial of a habeas petition is based on

procedural grounds and the Court does not reach the underlying constitutional claim, “a COA

should issue when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.” Id.

10 Kushner quibbles slightly with the Commonwealth’s presentation of the events. In

particular, he takes issue with the Commonwealth telling the jury that Gary was only offered

immunity after it had tried to convince Gary that he would not be prosecuted. See ECF No. 7-

127, 121:24-122:20. Thus, Kushner argues, the jury was left with the mistaken impression that

Gary was never under threat of prosecution—a notion purportedly belied by the Strohm report.

However, that is incorrect because the Commonwealth indeed explained that Gary was served a

Grand Jury subpoena and explained to the jury that “if [Gary] didn’t show up, we would have

locked him up for not appearing for the Grand Jury.” Id. at 121:13-14.

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In the Court's view, Kushner has failed to demonstrate his entitlement to a COA under the

applicable standard, and no COA will be issued.

V. CONCLUSION

After de novo review and for the reasons set forth above, the Court overrules the

objections to the R&R and adopts the R&R’s findings and recommendations in its entirety.

Kushner’s petition for habeas relief is denied and dismissed. The Court further declines to issue

a COA or hold an evidentiary hearing.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._______

JOSEPH F. LEESON, JR.

United States District Judge

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