RIVERA v. HARRY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DIEGO RIVERA, CIVIL ACTION

Petitioner,

NO. 20-3990-KSM

v.

LAUREL HARRY, et al.,

Respondents.

MEMORANDUM

Marston, J. September 30, 2024

Diego Rivera is serving a sentence of 30 to 60 years for third-degree murder, robbery, and

other offenses. (Doc. No. 1.) In August 2020, Rivera filed a Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. (Id.) The Court referred this petition to the Honorable

Richard A. Lloret, United States Magistrate Judge. (Doc. No. 3.) Now before the Court is Judge

Lloret’s Report and Recommendation (“R&R”) (Doc. No. 44), Rivera’s objections to the R&R

(Doc. No. 45), and the Commonwealth’s response to Rivera’s objections (Doc. No. 47). For the

reasons set forth below, the Court overrules Rivera’s objections, adopts the R&R, and dismisses

Rivera’s claims with prejudice and without an evidentiary hearing.

I. Background

A. Factual Background

The Pennsylvania Superior Court recounted the following factual background when

ruling on Rivera’s direct appeal:

On September 1, 2012, Christopher Thompson (“Thompson”) was

“hanging out” on the corner of Rosehill and Somerset streets in

Philadelphia selling drugs. Thompson testified that he had been

“working that corner” for a couple of months. Thompson was

engaged in a drug transaction with a customer when appellant and

an unidentified black man approached him. Thompson described

appellant as Puerto Rican. Appellant and his cohort began cursing

at Thompson and telling him to “get the F off the block.” The black

male punched Thompson while appellant hit him over the head with

a semi-automatic handgun. They took Thompson’s money and

drugs and told him to leave. One of them told Thompson, “whoever

you are working for, show them I did this to you.” “Show them I did

this to you and tell them we are coming back in a couple hours.”

Thompson described appellant as 5’8” to 5’9”, in his early 20s with

a short beard and a neck tattoo.

Thompson returned to the area a few hours later. Thompson was

standing on the corner of Rosehill and Somerset, talking to a girl,

when he saw appellant. Appellant was walking toward Thompson,

but then crossed the street and walked toward the Yadi Market on

Somerset. Shortly thereafter, Thompson heard gunshots and hid

behind a car. Thompson peeked through the car window and saw

appellant firing shots. Appellant then ran down Rosehill and jumped

into a car. After the shooting, Thompson observed the victim,

Kareem Tomlin, lying on the ground with blood coming from his

head. Thompson gave a statement to police and picked out appellant

as the shooter in a photo array. Thompson also identified appellant

at trial.

Yahaira Polanco (“Polanco”) testified that on September 1, 2012,

she was walking up Somerset Street towards her mother’s house

when she heard gunshots. The shots were coming from the direction

of Yadi Market. In a statement to police, Polanco identified

appellant as the gunman and picked his photo out of a photo array.

Polanco told police that when the shooting started, she grabbed her

kids and ran inside her mother’s house. Through her mother’s door

window, Polanco could see appellant firing shots. Afterwards,

Polanco went outside and saw the victim lying on the ground

bleeding from his head. Polanco identified the victim as Kareem

Tomlin, known as “Reem.”

Police recovered video surveillance footage from two locations,

Yadi Market and also a private residence on Rosehill Street. The

video captured appellant’s altercation with Thompson as well as

appellant running from the scene of the shooting and getting into a

white car. The incident with Thompson occurred at 11:21 a.m. on

September 1, 2012, and the shooting outside the grocery store

occurred at 4:07 p.m. In addition, security cameras captured

appellant leaving Coleman Hall, a halfway house, on September 1,

2012. Appellant had a social pass to visit his mother from 10:00 a.m.

to 6:00 p.m. Appellant signed out at 9:47 a.m. and never came back.

After he failed to return to the facility by 6:00 p.m. as scheduled and

was declared an absconder, counselors discovered that appellant had

cleaned out his room. The shift supervisor spoke with appellant’s

stepfather who said he had not seen appellant that day.

On September 4, 2012, the fugitive task force was assigned to locate

and apprehend appellant. A wanted poster was issued with

appellant’s picture and information. Detectives located appellant on

September 9, 2012, but he fled through a bathroom skylight. On

September 11, 2012, appellant was apprehended at a different

location. During the ten days between the shooting and his

apprehension, appellant had covered up the distinctive tattoo on his

neck, “Who Wants Gunplay,” with another tattoo.

The victim died of a single perforating gunshot wound to his head.

The bullet entered through the back of his head and exited out the

front, causing extensive injuries to his brain. The trajectory of the

bullet was from back to front, right to left, and traveling slightly

upward. There was no soot or stipple, meaning that the gun was fired

from beyond 2 1/2 feet. Police recovered seven fired cartridge cases,

all fired from the same .9 millimeter firearm.1 Police also recovered

two bullets, which were fired from the same .9 millimeter firearm.

Police did not find the actual firearm that was used.

Commonwealth v. Rivera, No. 1963 EDA 2014, 2016 WL 5844454, at *1–2 (Pa. Super. Ct. Oct.

5, 2016) (“Rivera I”) (internal citations and footnotes omitted).2 The Commonwealth charged

Rivera under two dockets: one for the robbery and assault and another for the murder. (Doc. No.

44 at 5.) The Court’s independent review of the record reveals that the Superior Court’s

recitation of the factual background of this case is accurate. However, as is relevant to resolving

1 This evidence was elicited from Philadelphia Police Officer Gregory Welsh, who was qualified as an

expert in firearms examination and identification. (N.T. Mar. 12, 2014, at 34.)

2 Judge Lloret included this same summary of facts in his R&R. (Doc. No. 44 at 3–5.) Rivera objected to

its inclusion (Objection I), arguing that Judge Lloret failed to consider the totality of the evidence. (Doc.

No. 45 at 1–5.) However, this section was merely included as background and Judge Lloret proceeded to

make his own additional findings of fact later in the R&R when evaluating whether counsel’s purported

error prejudiced Rivera. (Doc. No. 44 at 15–20.) The Court thus finds Rivera’s objection inappropriate.

To the extent Rivera is arguing that Judge Lloret failed to consider the totality of the evidence in

evaluating his ineffective assistance of counsel claim, we find the issue better resolved later in this

Memorandum. See supra at ___.

the objections presently before the Court, we provide the following additional details of how trial

proceeded.

Rivera’s trial began on March 10, 2014. (See generally N.T. Mar. 10, 2014.) At trial, the

prosecution presented the testimony of the two eyewitnesses: Christopher Thompson and

Yahaira Polanco. (N.T. Mar. 12, 2014, at 122–172, 194–226.) Thompson, testified to the facts

identified above by the Superior Court, including that he was hit by Rivera with a glock-style

pistol while being robbed and that he later saw Rivera on the corner of Somerset and Rosehill

shooting two shots “up toward Ormes [Street].” (N.T. Mar. 11, 2014, at 125–27, 135–38, 151.)

Thompson further explained that he provided a statement to officers at the scene and was

brought in to be interviewed by the homicide division. (Id. at 139; see also id at 118 (the officer

Thompson spoke to at the scene testifying that Thompson described the shooter as “a Hispanic

male, dark skinned with a full beard, wearing a white wife beater shirt who fled in a white

colored car, possibly a Mirage”).) During that interview, Thompson was shown hundreds of

photographs of potential suspects in succession through a photo-imaging computer program. (Id.

at 140–41.) Rivera was not included in any of these initial photographs, and Thompson did not

identify any photograph as the man he had seen. (Id. at 141; N.T. March 12, 2014, at 174–75.)

Shortly thereafter, however, Thompson was shown a photo array of eight individuals, which did

include Rivera. (N.T. Mar. 11, 2014, at 141–44.) At this point, Thompson successfully

identified Rivera as the shooter. (Id.) Finally, in his trial testimony, Thompson acknowledged

that he faced two sets of criminal charges related to his sale of narcotics. (Id. at 154.) Thompson

had pled “no contest” to these charges and was participating in drug court. (Id. at 159–63.)

However, Thompson denied the notion that he received leniency or any promises from the

Commonwealth in exchange for his testimony. (Id. at 154, 160–61.)

The Commonwealth also presented the testimony of Yahaira Polanco, who in an

interview with the police the day after the shooting, identified Rivera as the shooter when

presented with an array of eight individuals. (Id. at 206, 213.) However, she testified at trial that

she did not recall what the shooter looked like, that she didn’t recall identifying Rivera to the

police, and that officers forced her to pick a photo before she was allowed to leave. (Id. at 202,

204–07, 218.) The Commonwealth thereafter established that Polanco still lived in the

neighborhood of the shooting, that she was afraid to testify against Rivera, and that she did not

want to be a witness. (Id. at 208–09.) The Commonwealth was thus permitted to admit

Polanco’s statement to police as substantive evidence. (Id. at 239–44.)

In addition to the two eyewitnesses, the Commonwealth elicited testimony from Ashley

Maldonado, an individual who lived near the scene of the shooting and arrived shortly after

Tomlin was shot. (Id. at 88, 93, 96.) Maldonado testified that she did not see the shooter but

heard shots from the direction of the store. (Id. at 91–93, 96.) She left her apartment and rushed

to Tomlin’s body, holding his head. (Id. at 94.) While there, she heard a group of people in the

middle of the street say that a “black guy” was the shooter. (Id. at 97, 108.) She also heard this

crowd say that the shooter was wearing a white shirt. (Id. at 103–04, 108.) However, when the

Commonwealth pressed this issue, Maldonado testified that she “may or may not have heard”

what the group had to say because she “wasn’t paying attention . . . [or] really listening” and was

instead focused on helping Tomlin. (Id. at 98–99.)

The Commonwealth also introduced the testimony of Detective Dunlap, a video

technician at the Philadelphia Police Department who assembled a composite videotape of the

shooting and robbery. (N.T. Mar. 12, 2014, at 103–05.) Dunlap was qualified as an expert

forensic video technician, premised on his specialized training in digital imaging video collection

from the Federal Bureau of Investigation and the Philadelphia Police Department, his seven

years with the Philadelphia Police Department, his experience of recovering videos at over 500

crime scenes, and the fact that he had previously been qualified as an expert in both state and

federal cases. (Id. at 106–07.) Dunlap described how he arrived at the scene three hours after

the murder and collected video of the shooting from the corner grocery store and a nearby private

residence. (Id. at 111–19; see also 107–10 (Dunlap explaining how he generally retrieves video

from a scene).) He explained that due to power outages and other battery-related issues, he

needed to correct the time stamps on the video, which he did using the U.S. Naval Observatory

Master Clock. (Id.) The day after the shooting, Dunlap returned to the scene to retrieve footage

of Rivera’s robbery of Thompson and similarly adjusted the time stamps on the video. (Id. at

119–20.) In anticipation of trial, Dunlap generated a video compilation from the footage he

retrieved from these sources. (Id. at 124.) Dunlap testified that the videos he retrieved were in a

“proprietary format” that required them to be played with a particular player and prevented the

videos from being altered without it becoming “extremely apparent.” (Id. at 122.) And he used

software called Tech-Smith to create the compilation. (Id. at 122–23.)

Detective Dunlap played the video compilation for the jury, periodically drawing the

jury’s attention to particular aspects of what was being shown. (Id. at 124–153.) As noted in the

Superior Court’s summary, the videotape showed a man in a white shirt and acid-washed jeans

(Rivera) assaulting and robbing Thompson on the morning of September 1, 2012. (Id. at 131–

36.) It then showed Thompson, later that day, hiding behind a car. (Id. at 142–46.) Finally, the

video showed the same man in acid-washed jeans (Rivera) firing two shots before fleeing. (Id.)

Earlier that day, Andrea Harris—who was the operations manager in charge of security at the

halfway house in which Rivera resided—testified that she saw Rivera wearing the same

distinctive pair of acid-washed jeans and authenticated a video showing Rivera in a yellow shirt

and those jeans when leaving the halfway house at 9:47 a.m. (N.T. Mar. 12, 2014, at 71–78.)

Dunlap testified that he received this video from Coleman Hall, reviewed it, and created still

photographs from it. (Id. at 146–47.) The jury was shown these still photographs next to still

photos from Yadi Market, both of which showed an individual wearing distinctive acid-washed

jeans. (Id. at 147–48.)

On March 13, 2014, the jury found Rivera guilty of third-degree murder, robbery,

aggravated assault, criminal conspiracy, carrying a firearm without a license, carrying a firearm

in public in Philadelphia, and possession of an instrument of crime. (N.T. Mar. 13, 2014, at 152–

55.) On June 13, 2014, the trial court sentenced Rivera to 30 to 60 years of incarceration. (N.T.

June 13, 2014, at 38–39.)

B. Procedural History

1. Direct Appeal Proceedings

Rivera filed a post-sentence motion on June 25, 2014, which the court denied two days

later as untimely. Rivera I, 2016 WL 5844454, at *2. Rivera then timely filed an appeal on July

9, 2014 and was appointed counsel. Id. at *3. On April 13, 2016, Rivera’s counsel submitted a

no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1976) and filed an application to

withdraw. Id. at *3. A few months later, on October 5, 2016, the Pennsylvania Superior Court

affirmed Rivera’s sentence after determining that the issues he raised on appeal were meritless.

Rivera I, 2016 WL 5844454, at *7. Rivera did not appeal the Superior Court’s decision to the

Pennsylvania Supreme Court.

2. State Habeas Proceedings

On August 31, 2017, Rivera filed a timely pro se petition for post-conviction collateral

relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”). (Doc. No. 44 at 6.) He

raised, among other things, a claim that his trial counsel was “ineffective for failing to conduct

an independent investigation.” (N.T. July 24, 2018, at 9–10.) On December 14, 2017, the PCRA

court appointed Rivera counsel, who, on May 11, 2018 filed a no merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Pennsylvania v. Finley, 481 U.S. 55

(1987) and requested permission to withdraw. (Doc. No. 44 at 6.) The PCRA Court conducted a

brief hearing on July 24, 2018 to address counsel’s no merit letter. See Commonwealth v. Rivera,

Nos. CP-51-CR-0013542-2012, CP-51-CR-13543-2012 (PCRA Op. Dec. 11, 2018)

(“Rivera II”). As to his ineffective assistance of counsel claim related to his counsel’s

investigation, the PCRA court found as follows:

[Rivera] gives no factual basis or hypothesis as to how there’s no

independent investigation in the case. He cites no facts upon which

this Court can rule. He claims that Mr. Stosic did not call witnesses,

but he does not name any of the alleged witnesses. He does not state

what testimony these witnesses would’ve offered to support his

defense. Therefore, this issue lacks merit.

(N.T. July 24, 2018, at 9–10.) Following the hearing, the PCRA Court sent Rivera a notice

pursuant to 234 Pa. Code Rule 907, which required a response within 20 days.3 (Id.)

3 Rule 907 states:

(1) the judge shall promptly review the petition, any answer by the attorney

for the Commonwealth, and other matters of record relating to the

defendant’s claim(s). If the judge is satisfied from this review that there

are no genuine issues concerning any material fact and that the defendant

is not entitled to post-conviction collateral relief, and no purpose would be

served by any further proceedings, the judge shall give notice to the parties

of the intention to dismiss the petition and shall state in the notice the

reasons for the dismissal. The defendant may respond to the proposed

dismissal within 20 days of the date of the notice. The judge thereafter

On August 16, 2018, Rivera filed a response to the Rule 907 notice, but was informed by

the court that it was untimely and would not be accepted. (Doc. No. 44 at 6 (citing Rivera II, at 2

n.7).) The PCRA court thus dismissed Rivera’s PCRA petition on August 21, 2018. (Id.) The

court submitted a short opinion on December 11, 2018, which attached the July 24, 2018 hearing

transcript, and provided that Rivera’s petition lacked merit. See Rivera II.

Rivera appealed on September 19, 2018, raising eight grounds for relief, including that

his “[t]rial counsel was ineffective for failing to conduct an independent investigation [of the

composite videotape].” (Doc. No. 44 at 6.) But because Rivera only filed one notice of

appeal—even though his convictions were on two separate dockets—the Superior Court quashed

the appeal on March 10, 2020 pursuant to Commonwealth v. Walker, 185 A.2d 969 (Pa. 2018).

See Commonwealth v. Rivera, No. 2784 EDA 2018, 2020 WL 1158711, at *2 (Pa. Super. Ct. Mar.

10, 2020) (“Rivera III”). Rivera did not seek discretionary review from the Pennsylvania

Supreme Court. (Doc. No. 44 at 7.)

3. Federal Habeas Proceedings

On July 11, 2020, Rivera, proceeding pro se at the time, filed a petition for habeas corpus

with this Court under 28 U.S.C. § 2254. (Doc. No. 1.) Rivera’s petition sought a new trial on

three grounds. (Id.) First, Rivera argued that his trial counsel was ineffective for (a) failing to

independently investigate the composite videotape presented at his trial, (b) failing to file a

motion to sever his robbery and assault case from his murder case, (c) failing to object to

prosecutorial remarks during opening and closing arguments, (d) failing to move for a mistrial,

and (e) forcing Rivera not to testify at trial. (Id. at 7.) Second, Rivera argued that his appellate

shall order the petition dismissed, grant leave to file an amended petition,

or direct that the proceedings continue.

counsel was ineffective for failing to raise that trial counsel was ineffective. (Id. at 9.) Finally,

Rivera argued that his PCRA hearing was not “full and fair.” (Id. at 11.)

On August 25, 2020, the Court referred this matter to Magistrate Judge Lloret for an

R&R (Doc. No. 3), which Judge Lloret issued on May 10, 2021 (Doc. No. 11). In his R&R,

Judge Lloret first concluded that Rivera’s habeas petition was untimely under the Antiterrorism

and Effective Death Penalty Act’s statute of limitations and that Rivera was not entitled to

equitable tolling. (Id. at 7–10.) Judge Lloret further reasoned that, even assuming Rivera was

entitled to equitable tolling, his two ineffective assistance of counsel claims were procedurally

defaulted because the Pennsylvania Superior Court rejected these claims on independent and

adequate state procedural grounds under Walker. (Id. at 10–14.) Finally, Judge Lloret found that

Rivera’s claim that the PCRA hearing was not “full and fair” was non-cognizable because it

“does not assert a violation of any federal right.” (Id. at 15.) Judge Lloret therefore

recommended that the Court dismiss Rivera’s claims with prejudice and without an evidentiary

hearing. (Id. at 16.)

Rivera, still proceeding pro se, objected to the R&R on May 26, 2021. (Doc. No. 13.)

On July 30, 2021, Rivera retained counsel. (Doc. No. 16.) Through counsel, Rivera filed

supplemental objections to the R&R on August 13, 2021, (Doc. No. 20), which the

Commonwealth responded to on November 1, 2021 (Doc. No. 24).

On January 10, 2021, this Court partially adopted and partially rejected Judge Lloret’s

R&R. (Doc. No. 27.) While the Court agreed that Rivera’s third claim was non-cognizable for

failing to assert a federal right, the Court declined to adopt the R&R as it pertained to Rivera’s

ineffective assistance of counsel claims. (Id.) First, the Court held that Rivera was entitled to

equitable tolling because of the prison’s restrictions during the COVID-19 pandemic. (Id. at 9–

11.) Next, the Court held that although Rivera’s claims were procedurally defaulted after the

Pennsylvania Superior Court quashed his September 2018 appeal pursuant to Walker, this did not

bar habeas review because the Walker rule was both short-lived and inconsistently applied. (Id.

at 12–15.) The Court remanded the case back to Judge Lloret, instructing him to determine

whether the Court should hold an evidentiary hearing. (Doc. No. 28.)

On January 19, 2022, Judge Lloret ordered the Commonwealth to provide Rivera with

the composite videotape played at his trial and for both parties to submit a joint status report.

(Doc. No. 30.) Judge Lloret also ordered Rivera to submit a counseled memorandum of law in

support of his petition within 30 days of receiving the videotape discussing “all ‘merits’ issues”

and for the Commonwealth to file a responsive memorandum 30 days after that. (Id. at 1.)

On August 1, 2022, Rivera filed his amended memorandum. (Doc. No. 38.) Rivera’s

amended memorandum focused exclusively on his first ineffective assistance of trial counsel

claim, which asserts that his trial counsel was ineffective for failing to investigate the composite

videotape and hire an expert in the “creation and interpretation of composite videotapes.” (Id. at

8.) In addition to arguing that his trial counsel was ineffective, Rivera also argued that he is

entitled to relief under Brady v. Maryland, 373 U.S. 83 (1963) because the Commonwealth

suppressed the composite videotape played at his trial. (Doc. No. 38 at 9–11.) Finally, Rivera

argued that the Court should grant him habeas relief because he is actually innocent of the

offenses for which he was convicted. (Id. at 11–12.)

Judge Lloret issued his second R&R on August 31, 2023, once more recommending that

the Court dismiss Rivera’s claims with prejudice and without an evidentiary hearing. (Doc. No.

44.) As to Rivera’s claim that his trial counsel was ineffective for failing to investigate the

videotape, Judge Lloret recommended that the Court dismiss the claim on three grounds. First,

Judge Lloret reasoned that given the weight of the evidence against him, Rivera could not show

that his trial counsel’s failure to investigate the videotape amounted to prejudice under Strickland

v. Washington, 466 U.S. 668 (1984). (Doc. No. 44 at 11–18.) Second, and in the alternative,

Judge Lloret reasoned that Rivera’s claim failed at the prejudice prong because he failed to

explain “how an expert could have helped [him] at trial” other than an “unexplained assertion

that the jury could not possibly understand the videotape without a defense expert.” (Id. at 18–

19.) And finally, Judge Lloret found that Rivera’s ineffective assistance of counsel claim failed

the deficient performance prong under Strickland, reasoning that “[h]iring an expert to further

explain how the composite videotape was created and how the timestamps were adjusted would

add nothing to Mr. Rivera’s defense, and ‘an attorney need not pursue an investigation that

would be fruitless.’” (Doc. No. 44 at 23 (citing Harrington v. Richter, 562 U.S. 86, 108 (2011)

(alterations accepted)).)

Judge Lloret also recommended that the Court dismiss Rivera’s newly added Brady

claim, reasoning that (1) the composite videotape was not exculpatory, (2) the Commonwealth

gave Rivera’s trial counsel a copy of the videotape months before his trial, and (3) Rivera was

not prejudiced. (Id. at 25.) And finally, Judge Lloret recommended that the Court dismiss

Rivera’s “actual innocence” claim since Rivera introduced “no new evidence that was not

presented at trial” as is required to support an actual innocence claim. (Id. at 27.)

Rivera filed timely objections to Judge Lloret’s R&R on September 14, 2023, focusing on

Judge Lloret’s conclusions as to Rivera’s ineffective assistance and Brady claims. (Doc. No. 45.)

These sweeping and overlapping objections broadly fall into three buckets. (Id.) The first group

of objections—objections I and XII—center around Judge Lloret’s finding that Rivera’s trial

counsel’s performance was not deficient. (Id. at 1, 14.) The second group of objections—

objections III, IV, VI,4 VII, VIII, IX, and XI—focus on Judge Lloret’s conclusion that any

ineffectiveness on the part of Rivera’s trial counsel did not prejudice him.5 (Id. at 6–11, 13–14.)

Finally, in objections X and XIII , Rivera objects to Judge Lloret’s conclusion that Rivera’s

Brady claim is meritless. (Id. at 11–13, 15.)

Following an Order from the Court (Doc. No. 46), the Commonwealth responded on

October 6, 2023, arguing that the Court should overrule Rivera’s objections and adopt the R&R.

(Doc. No. 47.)

II. Standards of Review

A. Standards Governing Review of a Magistrate Judge’s R&R

“In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner’s

objections to a magistrate judge’s report and recommendation.” Piasecki v. Ct. Com. Pl. of

Bucks Cnty., Civil Action No. 14-7004, 2021 WL 1105338, at *3 (E.D. Pa. Mar. 23, 2021).

Under that Rule, a petitioner must “specifically identify the portions of the proposed findings,

recommendations, or report to which objection is made and the basis for such objections.” Id.

4 There is no objection V.

5 In particular, along with objecting to the entirety of Judge Lloret’s prejudice analysis (Objection III),

Rivera asserts that Judge Lloret failed to consider the totality of the evidence (Objection IV); failed to

consider certain forensic evidence (Objection VI); erred in considering the prosecution’s explanation for

Polanco recanting her identification of Rivera and in failing to reference Maldonado’s testimony

(Objection VII); erred in claiming that the videotape was properly obtained, properly authenticated, and

properly provided to the defense in advance of trial (Objection IX); and erred in concluding that the

evidence against Rivera was “overwhelming” (Objection XI). In addition, Rivera objects to Dunlap and

Harris’s testimony. (Objection VIII). The Court finds that all these objections relate to Judge Lloret’s

prejudice analysis and therefore rise and fall with that claim.

(quoting Savior v. Superintendent of Huntingdon SCI, No. 11-cv-5639, 2012 WL 4206566, at *1

(E.D. Pa. Sept. 20, 2012)).

When a party objects to a magistrate judge’s findings, the district court must make “a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); United States v. Raddatz,

447 U.S. 667, 673 (1980). “De novo review is non-deferential and generally permits the district

court to conduct an ‘independent review’ of the entire matter.” Piasecki, 2021 WL 1105338, at

*3. “Although review is de novo, [a district judge] [is] permitted, by statute, to rely upon the

magistrate judge’s proposed findings and recommendations to the extent [the judge], in the

exercise of sound discretion, deem[s] proper.” Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa.

1993) (citing Raddatz, 477 U.S. at 676). After reviewing the magistrate judge’s conclusions, the

district court may “accept, reject, or modify, in whole or in part, the findings or

recommendations” and “receive further evidence, or recommit the matter to the magistrate judge

with instructions.” 28 U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 673–74.

“Objections which merely rehash an argument presented to and considered by a

magistrate judge are not entitled to de novo review” and should be overruled. Gray v. Delbiaso,

Civil Action No. 14-4902, 2017 WL 2834361, at *4 (E.D. Pa. June 30, 2017); see also Prout v.

Giroux, Civil Action No. 14-3816, 2016 WL 1720414, at *11 (E.D. Pa. Apr. 29, 2016) (“Where

objections do not respond to the Magistrate’s recommendation, but rather restate conclusory

statements from the original petition, the objections should be overruled.”). Also, where a

petitioner fails to “identify with specificity any legal or factual errors in the R&R,” the R&R is

reviewed for clear error. Lee v. Houtzdale SCI, 798 F.3d 159, 162 (3d Cir. 2015); see also

Kennedy v. Borough of Minersville, No. 3:19-CV-0124, 2019 WL 4316218, at *1 (M.D. Pa. Sept.

11, 2019) (“In particular, Plaintiff does not take issue with the substance of any of the Magistrate

Judge’s conclusions and/or recommendations. As such, the Report and Recommendation is

reviewed for clear error, and finding none, it will be adopted.”); Guzman v. Rozum, No. CV 13-

7083, 2017 WL 1344391, at *9 (E.D. Pa. Apr. 12, 2017) (explaining that “federal district courts

are not required to engage in de novo review of objections to a Magistrate’s R&R that lack

specificity”).

B. Standards Governing Review of a § 2254 Petition

A federal court’s authority to issue habeas corpus relief for persons in state custody is

restricted by the 1996 Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) amendment

to 28 U.S.C. § 2254. The AEDPA prohibits federal courts from granting habeas relief for claims

adjudicated on the merits in state courts unless the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). But, where, as is the case here, the state court does not issue a merits decision

as to a particular claim, the deference set forth in the AEDPA does not apply. Appel v. Horn, 250

F.3d 203, 210 (3d Cir. 2001).6 Instead, the Court conducts de novo review. See Cone v. Bell, 556

U.S. 449, 472 (2009) (“Because the Tennessee courts did not reach the merits of Cone’s Brady

claim, federal habeas review is not subject to the deferential standard that applies under AEDPA

to any claim that was adjudicated on the merits in State court proceedings. Instead, the claim is

reviewed de novo.” (citation omitted)). Still, the Court presumes that the state courts’ factual

6 As noted above, in addressing Rivera’s PCRA counsel’s no merit letter, the PCRA court ruled that

Rivera’s claim that his trial counsel was “ineffective for failing to conduct an independent investigation,”

was meritless. (N.T. July 24, 2018, at 9–10.) However, because the Pennsylvania Superior Court did not

rule on the merits of this claim, out of an abundance of caution, the Court will apply de novo review.

determinations are correct unless rebutted by clear and convincing evidence. Breakiron v. Horn,

642 F.3d 126, 131 (3d Cir. 2011).

III. Discussion

As discussed above, Rivera’s objections focus on two of the claims set forth in his

amended memorandum: (1) his claim that his trial counsel was ineffective for failing to

investigate the composite videotape and hire an expert “in the creation and interpretation of

composite videotapes” (Doc. No. 38 at 9), and (2) his claim that the Commonwealth’s failure to

preserve the composite videotape opens it up to sanctions and entitles him to relief under Brady

(id. at 9–11.) The Court addresses Rivera’s objections to these claims before reviewing the

remaining portion of the R&R, which recommended dismissal of Rivera’s actual innocence

claim and to which Rivera did not object, for clear error.

A. Ineffective Assistance of Trial Counsel

The Court begins with Rivera’s ineffective assistance of trial counsel claim.7

1. Legal Standard

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.

7 In his original petition Rivera raised additional ways in which his trial counsel was ineffective, namely

by failing to file a motion to sever his robbery and assault case from his murder case, failing to object to

prosecutorial remarks during opening and closing arguments, failing to move for a mistrial, and forcing

Rivera not to testify at trial. (Doc. No. 1.) However, Rivera did not discuss these claims when Judge

Lloret called for briefing on “all merits issues” after the Court remanded this matter back to Judge Lloret.

(See Doc. No. 30 (quotation marks omitted); Doc. No. 38.) Thus, Judge Lloret’s R&R treats these

additional ineffective assistance claims as waived and no longer a part of this case. (Doc. No. 44.)

Because Rivera did not object to Judge Lloret’s characterization of his ineffective assistance of trial

counsel claims, the Court is not required to determine de novo whether Judge Lloret erred in disregarding

these claims and instead reviews that decision for clear error. See Medina v. Diguglielmo, 461 F.3d 417,

426 (3d Cir. 2006) (noting that “a district court is not required to determine de novo whether a magistrate

judge erred in failing to consider a claim in his or her report and recommendation if no objection was

made by a party on that ground” and finding a claim raised in a pro se petition that was not reasserted by

counsel was waived).) And the Court finds no such error here.

Nonetheless, the Sixth Amendment “does not guarantee the right to perfect counsel; it promises

only the right to effective assistance.” Burt v. Titlow, 571 U.S. 12, 24 (2013) (citation omitted).

To show that counsel was constitutionally ineffective under the Sixth Amendment, a defendant

must show: (1) “counsel’s performance was deficient”; and (2) “the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687; see also United States v. Booth, 432 F.3d

542, 546 (3d Cir. 2005) (“[A] criminal defendant may demonstrate that his representation was

constitutionally inadequate by proving: (1) that his attorney’s performance was deficient, i.e.,

unreasonable under prevailing professional standards; and (2) that he was prejudiced by the

attorney’s performance.”).

Under the first prong, counsel’s performance was deficient if they “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687. The broad phrase “effective assistance”

encompasses counsel’s “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.” Id. at 688. “[C]ounsel is

strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690.

Under the second prong, the defendant establishes prejudice by “show[ing] 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. In other words, an “error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Id. at 691. In making this determination,

courts “must consider the totality of the evidence before the judge or jury.” Id. at 695.

The Third Circuit has “endorsed the practical suggestion in Strickland to consider the

prejudice prong before examining the performance of counsel prong ‘because this course of

action is less burdensome to defense counsel.’” Booth, 432 F.3d at 546 (quoting United States v.

McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005)).

2. Analysis

In his R&R, Judge Lloret recommends that the Court dismiss Rivera’s ineffective

assistance of trial counsel claim, finding that Rivera failed to satisfy either prong of Strickland.

(Doc. No. 44 at 11–24.) As to the prejudice component, Judge Lloret specifically found:

(1) Rivera failed to meaningfully explain how additional investigation from his counsel or the

testimony of an expert would have helped him at trial; and (2) the evidence against Rivera

outside of this video compilation was overwhelming. (Doc. No. 44 at 11–19.) Rivera broadly

objects to both findings. (Objections I, III, IV, VI, VII, VIII, IX, XI, and XII). (Doc. No. 45.)

The Court analyzes both components of Judge Lloret’s prejudice analysis below and finds they

are supported by the record. And since Rivera’s claim is “impaled” on the prejudice prong, the

Court begins and ends its analysis there. Wells v. Petsock, 941 F.2d 253, 260 (3d Cir. 1991);

Strickland, 466 U.S. at 697.

First, Judge Lloret found that Rivera has not presented any non-conclusory argument as

to the effect additional investigation or an expert would have had on his trial. (Doc. No. 40 at

18–19.) The Court agrees. In his amended memorandum, reply brief, and objections, Rivera

repeatedly states in conclusory fashion that trial counsel’s failure to investigate the videotape and

hire an expert “corrupted the entire trial process and caused substantial prejudice” and that it was

“impossible for the jury to understand [the video] unless defense counsel hired a defense expert

in the creation and interpretation of composite videotapes and had the software required to

understand the composite videotapes.” (Doc. No. 38 at 8–9, 12; Doc. No. 42 at 12, 17; Doc. No.

45 at 5). But at no point has Rivera articulated to what this purported expert would testify, who

this purported expert would be, how the absence of an expert corrupted Rivera’s trial, or why this

video was indecipherable for the jury without the help of a defense expert.

In his objections to the R&R, Rivera claims for the first time that “[w]ith the testimony of

a true expert, the defense had a viable argument that Dunlap manipulated the evidence” and that

“the composite videotape was not properly authenticated.” (Doc. No. 45 at 11.) Even setting

aside that these arguments were not presented to Judge Lloret and are therefore waived, see

Kightlinger v. Pennsylvania, No. 11-936, 2013 WL 4504382, at *2 (W.D. Pa. Aug. 22, 2013)

(“Issues raised for the first time in objections to the magistrate judge’s recommendation are

deemed waived.” (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)), Rivera has

not explained how Dunlap manipulated the video,8 what testimony an expert would provide to

support such a conclusion, or how this video was not properly authenticated.9 These types of

“vague and conclusory allegations” are insufficient to satisfy Strickland. See Zettlemoyer v.

8 To the extent that Rivera is asserting that Dunlap manipulated the video to Rivera’s detriment by simply

adjusting the time stamp to account for the camera’s loss of power, the Court finds that argument to be

without merit. As Judge Lloret found, the “issue of the timestamps is irrelevant” and a “defense expert

testifying that the timestamps were incorrect would have no impact on the jury’s decision.” (Doc. No. 44

at 20.)

9 Rivera’s newfound arguments are also belied by the record. As to the authentication argument, the

record reflects that Dunlap testified extensively about how he obtained the videos, updated the time

stamps, and combined these videos into a single compilation. (N.T. Mar. 12, 2014, at 111–19.) This

testimony was certainly sufficient to meet the “low burden of proof” for authentication under

Pennsylvania law. See Commonwealth v. Miller, No. 1106 WDA 2018, 2019 WL 2406700, at *3 (Pa.

Super. Ct. June 7, 2019) (“To satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the item is what the proponent

claims it is. Testimony of a witness with knowledge will satisfy that requirement. (citations and

quotation marks omitted)). And contrary to Rivera’s assertion that Dunlap manipulated the videos in

some meaningful way, Dunlap testified that because the video removed from the scene is maintained in a

proprietary form, he “can’t go in and alter the video without it becoming extremely apparent.” (N.T. Mar.

12, 2014, at 122.)

Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (finding that the petitioner could not meet the

Strickland standard “based on vague and conclusory allegations that some unspecified and

speculative testimony might have established his defense” and must instead “set forth facts to

support his contention”); McDaniel v. Sorber, No. CV 21-738, 2022 WL 4988167, at *10 (E.D.

Pa. Aug. 22, 2022) (“McDaniel fails to identify any specific witness or expert that his trial

counsel failed to call or what such a witness could establish. Under the circumstances, defense

counsel cannot be considered ineffective.”); Foster v. United States, No. CR 15-21-RGA, 2022

WL 2291199, at *6 (D. Del. June 24, 2022) (“To the extent Movant blames counsel’s failure to

retain a Taser expert on expense or counsel’s failure to investigate, his vague unsupported

assertions are insufficient to satisfy either prong of the Strickland standard.”); United States v.

Lynn, No. CR 09-279, 2014 WL 7408698, at *5 (W.D. Pa. Dec. 30, 2014) (“Petitioner’s vague

averments that expert witnesses could have put various documents ‘in their proper context,’ or

that expert witnesses could have testified that he was not involved in a true ‘Ponzi scheme,’ are

simply insufficient to show prejudice in this case.”). Thus, the Court agrees with Judge Lloret’s

conclusion that Rivera has failed to satisfy the Strickland standard.

Second, after an extensive review of the record, Judge Lloret found that the weight of the

evidence independent of the video was so strong that any of counsel’s shortcomings as to

investigating the video did not prejudice Rivera. (Doc. No. 44 at 11–18.) Put another way,

Judge Lloret concluded that “the composite videotape was corroborative of witness testimony,

not the key to the Commonwealth’s case, as argued by Petitioner.” (Id. at 18.) Rivera objects to

this finding and asserts that Judge Lloret failed to properly consider the totality of the evidence,

ignored significant evidence that was in his favor, and incorrectly concluded that the evidence

against Rivera was “overwhelming.” (Doc. No. 45 at 2, 9, 13 (objections III, IV, VI, VII, XI).)

In particular, Rivera appears to argue that Judge Lloret failed to properly consider the five

following deficiencies in the Commonwealth’s evidence:

(1) Christopher Thompson, the only witness to the first robbery

assault, had several convictions for selling heroin, he

testified that he saw a Puerto Rican man firing a gun, but did

not see what direction he was firing the gun. He did not see

Rivera shoot Kareem. He did not identify Petitioner from

photos the first time.

(2) Ashley Maldonado testified that independent observers who

saw the shooting of Kareem, stated that a black man wearing

a white shirt shot Kareem.

(3) Yahaira Polanco, disavowed her statement identifying

Rivera as the shooter.

(4) When Rivera signed out of the half-way house at 9:45 a.m.,

he was wearing a yellow shirt and jeans.

(5) According to the testimony of witnesses and P.O Hilbert,

Rivera was standing 69 yards from the point where the 7

shell casings were found. If both facts are true, then the

distance between Rivera and Kareem is circumstantial

evidence that someone else was the shooter because a

handgun is not capable of firing a bullet 69 yards.

(Doc. No. 38 at 7–8; Doc. No. 42 at 11–12; Doc. No. 45 at 4–5, 7.)

Based on the Court’s careful and independent review of the record, we find that Judge

Lloret’s summation of the evidence against Rivera was accurate, that he appropriately weighed

that evidence, and that his conclusion that the evidence outside of the video prevents a finding of

prejudice is well founded. While the Court will not retrace all of Judge Lloret’s detailed

analysis, at a high-level and as is detailed above, see supra at __, the compelling evidence

against Rivera consisted of two eyewitnesses identifying Rivera shortly after the incidents (N.T.

Mar. 11, 2014, at 122–172; 239–44), testimony from Thompson that earlier in the day, Rivera hit

him over the head with a glock-style pistol (id. at 126–27), ballistics evidence suggesting that the

seven fired cartridge cases found at the scene were all fired from the same gun, as were the two

bullets found at the scene (N.T. Mar. 12, 2014 at 13–14, 55–56), and evidence of Rivera’s

attempts to flee and cover up his distinctive “Who Wants Gunplay” neck tattoo between the

shooting and his arrest (id. at 82–85, 162–66). The Court thus finds, as Judge Lloret did, that the

evidence against Rivera outside of the video compilation was sufficiently strong such that any

failure of counsel to adequately investigate the video or retain an expert was harmless.

The evidence Rivera claims Judge Lloret failed to consider does not compel a different

result. As initial matter, the Court finds that the purported deficiencies in the testimony of

Christopher Thompson—the victim of the robbery and eyewitness to the shooting—that Rivera

relies on are largely unsupported by the record. First, contrary to Rivera’s assertion that

Thompson “did the not see what direction he was firing gun,” (Doc. No. 45 at 4, 7), Thompson

in fact testified that he saw Rivera aiming “[u]p toward Ormes [Street]” (N.T. Mar. 11, 2014, at

151). Although Thompson was not able to provide more specific testimony as to where Rivera

aimed, such as whether he was aiming across or down the street, Thompson’s testimony

sufficiently indicated that Rivera fired his second round of shots in the direction of the victim.

(Id. at 137–38, 154; see also id. at 93, 106 (Maldonado testifying that she ran toward Ormes

street where she found Tomlin’s body).) Second, Rivera asserts that Thompson “did not identify

[Rivera] from photos the first time.” (Doc. No. 45 at 4, 7.) But as the testimony of the officer

who interviewed Thompson made clear, Rivera’s photo was not included in the set of images

Thompson first reviewed. (N.T. March 12, 2014, at 174–75.) Thus, if anything, Thompson’s

failure to identify the shooter when reviewing this first set of photographs provides additional

weight to his eventual identification. And finally, Rivera claims that Judge Lloret failed to

consider that Thompson had several convictions for selling heroin. (Doc. No. 45 at 4, 7.) But

Rivera does not explain the significance of this fact and the Court notes that Thompson made

clear that he was not receiving any deals or promises from the Commonwealth in exchange for

his testimony. (N.T. Mar. 11, 2014, at 154, 160–61.)

Rivera is certainly correct that there is some evidence in the record pointing in his favor.

This includes Maldonado’s testimony that she heard some unknown individuals claim that the

Tomlin’s shooter was a black man (id. at 97, 108), that Polanco recanted her identification of

Rivera at trial (id. at 202, 204–07, 218), that Rivera was seen on camera earlier in the day

wearing a yellow shirt whereas the shooter was seen wearing a white shirt (N.T. Mar. 12, 2014,

at 71–78), and that the shell casings were found 69 yards away from Tomlin’s body10 (N.T. Mar.

12, 2014, at 26). But this evidence was successfully limited by the Commonwealth at trial.

First, Maldonado testified that she did not see who shot the gun and that she “may or may not

have heard” what the group of individuals said because she “wasn’t paying attention” to their

comments and was instead trying to assist Tomlin. (Id. at 96, 98–99.) Second, regarding

Polanco’s recanting of her identification, the Commonwealth elicited testimony that Polanco was

afraid to testify in a murder trial because she lived in the neighborhood where the shooting

occurred.11 (Id. at 208–09.) The Commonwealth also successfully introduced as substantive

evidence Polanco’s police interview, in which she identified Rivera as the shooter. (Id. at 208–

09, 239–44.) Third, although Rivera may have been seen wearing a yellow shirt while at

10 The Court notes that Rivera incorrectly asserts that the shell casings were found 69 yards from Rivera

(Doc. No. 45 at 4), but they were in fact found 69 yards from Tomlin’s body (N.T. Mar. 12, 2014, at 26).

The Court assumes this was a typographical error. However, this error is particularly troubling given that

Judge Lloret pointed out this same exact error in his R&R after Rivera included the same language in his

amended memorandum. (Doc. No. 44 at 26–27.) Counsel should endeavor to be more diligent in the

future.

11 Rivera objects that the “prosecutor’s explanation for Ms. Polanco’s failure to identify petitioner should

be disregarded.” (Doc. No. 45 at 9–10 (Objection VII).) But Rivera provides no explanation as to why

the evidence elicited by the prosecution should not be considered. The Court finds no merit to this bald

and conclusory argument. Thus, this objection is overruled.

Coleman Hall, the probative value of this evidence is limited given that Rivera could have

simply removed his yellow shirt after leaving the facility. (N.T. Mar. 12, 2014, at 71–78.) And

finally, as to the distance of the shell casings from Tomlin’s body, there is no evidence in the

record to support Rivera’s bald assertion that a handgun is incapable for firing 69 yards.

Additionally, all seven fired cartridge cases found at the scene were fired from the same gun,

suggesting that whoever shot from 69 yards was in fact Tomlin’s killer. And as Judge Lloret

noted, this evidence is corroborative of the theory that Rivera was firing at random and hit an

unfortunate victim, a theory that is sufficient to convict him of third-degree murder as the jury

did here. (Doc. No. 44 at 27 n.9.)

In sum, the Court finds that Judge Lloret appropriately considered and weighed the

evidence against Rivera in finding that he had failed to meet the prejudice component of

Strickland. The purported deficiencies relied on by Rivera are insufficient, either on their own or

in aggregate to overcome the non-video evidence against him. Thus, the Court will overrule

Rivera’s objections as to this claim.

* * *

The Court finds that any purported error by Rivera’s counsel in failing to properly

investigate the video or retain an expert was not prejudicial. And since the Court finds that

Rivera’s claim fails at the prejudice portion of Strickland, the Court need no reach Rivera’s

objections as to the deficient performance portion of the test. Therefore, the Court overrules

objections related to his ineffective assistance claim, which includes objections I, III, IV, VI, VII,

VIII, IX, XI, and XII, and dismisses this claim with prejudice and without an evidentiary

hearing.12

12 As noted above, in addition to the objections explicitly attacking Judge Lloret’s conclusion as to the

prejudice component of Strickland, Rivera makes numerous evidentiary objections. This includes

B. Brady Violation

Rivera also argues that he is entitled to a new trial because the Commonwealth has failed

to retain a copy of the composite videotape played at his trial. (Doc. No. 38 at 9–11.) This, he

argues, violates his due process rights under Brady. (Id.) Judge Lloret recommended that the

Court dismiss Rivera’s Brady claim because (1) the compositive videotape was not exculpatory,

(2) the Commonwealth gave Rivera’s counsel a copy of the videotape months before his trial,

and (3) Rivera was not prejudiced (since his counsel had the videotape). (Doc. No. 44 at 24–25.)

Rivera objects to Judge Lloret’s conclusions. (Doc. No. 45 at 11, 15 (Objections X, XIII).)

Because the Court agrees with Judge Lloret’s recommendation, it overrules Rivera’s objections

and dismisses his Brady claim with prejudice.

Under Brady, prosecutors cannot suppress information favorable to the defendant if that

information is “material either to guilt or to punishment.” Brady, 373 U.S. at 87. Thus, to

succeed on his Brady claim, Rivera must show the following: (1) that the composite videotape

was favorable to his case, (2) that the Commonwealth suppressed it, and (3) that Rivera was

prejudiced by the video’s suppression. See Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263,

284–85 (3d Cir. 2016) (citations omitted). As under the Strickland standard, the prejudice prong

asks whether “the government’s evidentiary suppression undermines confidence in the outcome

of the trial.” Id. at 285 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995) (cleaned up)).

Rivera first argues that the Court should not consider the composite videotape “unless

and until the Commonwealth produces it.” (Doc. No. 45 at 11.) But the Commonwealth has

“object[ing] to the Andrea Harris testimony which supposedly authenticated footage from the missing

composite videotape,” “object[ing] to the Dunlap testimony which supposedly authenticated footage from

the missing composite videotape” (Doc. No. 45 at 10 (Objection VIII)), and objecting to Dunlap being

qualified as an expert because “there was no evidence that Dunlap was an expert in anything” (id. at 11

(Objection IX)). The Court finds these objections confused, conclusory, and meritless. They are

therefore overruled.

produced the videotape on multiple occasions. The Commonwealth first gave Rivera’s counsel a

copy of the videotape several months before his trial. (N.T. Mar. 11, 2014, at 2–4.) And the day

before Rivera’s trial, after Rivera’s counsel told the state court that his copy of videotape did not

work, the Court required Rivera and his counsel to watch the video in the courtroom on the

prosecution’s laptop and the Commonwealth subsequently gave Rivera a new copy. (N.T. Mar.

10, 2014, at 178.) Thus, as Judge Lloret found, the Commonwealth clearly did not suppress the

videotape.13

Rivera also argues that “without the videotape, it is unreasonable to assume that the

videotape was not exculpatory.” (Doc. No. 45 at 15.) But at trial, Dunlap walked the jury

through the video as it was played in sections. (N.T. Mar. 12, 2014, at 124–151.) The video

showed Rivera, wearing acid-washed jeans, assault Thompson. (Id. at 131–137.) It then showed

Rivera, several hours later and in the same jeans, firing two shots before fleeing in a car. (Id. at

137–145.) As the trial record shows, and as Judge Lloret noted, the videotape was “profoundly

inculpatory.” (Doc. No. 44 at 25.) Indeed, Rivera’s suggestion that it was anything short of this

is at odds with his argument that the video was the prosecution’s “main evidence” at trial. (Doc.

No. 45 at 5.) Because the Commonwealth did not suppress the videotape—which in any case

was not exculpatory—the Court overrules objections X and XIII and dismisses Rivera’ Brady

claim with prejudice and without an evidentiary hearing.

13 To the extent Rivera argues that notwithstanding the Commonwealth turning over the evidence at trial,

he is entitled to relief because the Commonwealth did not turn over the video for his habeas petition, the

Court finds his argument misguided. The Supreme Court has made clear that “Brady does not apply in

the post-conviction context.” In re Bolin, 811 F.3d 403, 408–09 (11th Cir. 2016); Dist. Atty.’s Office for

Third Judicial Dist. v. Osborne, 557 U.S. 52, 68–69 (2009) (“[N]othing in our precedents suggest[s] that

[Brady’s] disclosure obligation continue[s] after the defendant [is] convicted and the case [is] closed.”).

C. Actual Innocence

As noted above, Rivera’s amended memorandum also asserted a claim of actual

innocence. (Doc. No. 38 at 11–12.) Judge Lloret recommends that the Court dismiss this claim

because Rivera has not presented new evidence, as is required for an actual innocence claim.

(Doc. No. 44 at 25–27.) Rivera did not object to this conclusion, and therefore we apply only

clear error review. See Marsalis v. Pa. Dep’t of Corr., 37 F.4th 885, 888 (3d Cir. 2022) (citation

omitted) (“[A] losing party may forfeit an argument by not objecting to a magistrate judge’s

recommendation rejecting it.”). Here, the Court finds no clear error and agrees with Judge

Lloret’s analysis: Rivera’s claim fails because he has not presented any new evidence and

instead, has presented his interpretation of the evidence at trial.14 See Hubbard v. Pinchak, 378

F.3d 333, 340 (3d Cir. 2004).

IV. CONCLUSION

For the reasons discussed above, the Court overrules Rivera’s objections and adopts the

R&R. Rivera’s claims are dismissed with prejudice and without an evidentiary hearing.15 An

appropriate order follows.

14 Rivera also objects to Judge Lloret’s discussion of Rivera’s procedural default (Objection II). (Doc.

No. 45 at 6.) Because the Court has already determined that Rivera’s procedural default does not bar

habeas review, we find this objection baseless. (See Doc. No. 27 at 11–15.) Finally, in his initial petition

Rivera argued that his appellate counsel was ineffective for failing to raise the fact that his trial counsel

did not object to several statements made by the prosecutor during opening and closing arguments. (Doc.

No. 1 at 9.) Judge Lloret found that Rivera’s trial counsel had objected to several statements made by the

prosecutor. (Doc. No. 44 at 2 n.2.) In any case, Judge Lloret concluded that Rivera had waived his

ineffective of assistance of appellate counsel claim because Rivera did not “argue this claim in either his

initial brief or his reply to the Commonwealth’s response.” (Id.) The Court agrees with Judge Lloret’s

conclusions and dismisses Rivera’s ineffective assistance of appellate counsel claim.

15 The Court will not issue Rivera a certificate of appealability since Rivera has failed to make a

“substantial showing of the denial of a constitutional right” such that “reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner.” Mathias v. Superintendent

Frackville SCI, 876 F.3d 462, 474 (3d Cir. 2017) (quoting 28 U.S.C. § 2253(c)(2) and Slack v. McDaniel,

529 U.S. 473, 484 (2000)).