# Rivera v. Houser

> District Court, M.D. Pennsylvania · July 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10667602

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

:
Emanuel Rivera,
:
Petitioner CIVIL ACTION NO. 3:21-cv-1887
:
v. (JUDGE MANNION)
:
Morris L. Houser,
Superintendent SCI-Benner :
Township,
:
Respondent,
:

MEMORANDUM

Emanuel Rivera is confined at the State Correctional Institution at
Benner Township, Pennsylvania. (Doc. 1 at 1). He petitions for a writ of
habeas corpus under 28 U.S.C. §2254, claiming that he is in the
Commonwealth’s custody in violation of the United States Constitution. (Doc.
1). Petitioner is serving a life sentence imposed for his convictions of first
degree murder, robbery, and criminal conspiracy in the York County Court
of Common Pleas. (Id.).
I. BACKGROUND
A. Procedural Background

Following a joint trial with his co-defendant Eric Camacho-Rodriguez,
a jury found Petitioner guilty of murder of the first degree, robbery, conspiracy
to commit robbery, and conspiracy to commit burglary. (Docket Nos. CP-67-

CR-0006999-2012 and CP-67-CR-0007000-2012). He was sentenced on
July 31, 2013. (Id.).
Petitioner appealed the judgment of his sentence, challenging the
sufficiency and weight of the evidence, but the Superior Court remanded the

case because Petitioner had not filed a statement of the errors complained
of on appeal as required by Pa. R. App. P. 1925(b). Commonwealth v.
Rivera, 2014 WL 10919634, at *1 (Pa. Super. Ct. 2014). Following remand,

the Superior Court affirmed Petitioner’s judgment of sentence. 116 A.3d 676
(Table) (Pa. Super. Ct. 2014). The Pennsylvania Supreme Court denied
allowance of appeal. 141 A.3d 480 (Table) (Pa. 2016).
Petitioner filed a petition for post-conviction relief under Pennsylvania’s

Post Conviction Relief Act, 42 Pa. Cons. Stat. §§9541–46 (PCRA), in the
Court of Common Pleas. (Doc. 1-2). His petition was denied, (Doc. 1-6), and
he appealed from this denial to the Superior Court. (Doc. 1-7). The Superior

Court affirmed the trial court’s order, 249 A.3d 1154 (Table), 2021 WL
614058 (Pa. Super. Ct. 2021), and the Pennsylvania Supreme Court denied
allowance of appeal on September 8, 2021. 262 A.3d 1258 (Table) (Pa.

2021). Petitioner filed the instant petition on November 5, 2021. (Doc. 1).
B. Factual Background
The charges against Petitioner and his codefendant stemmed from a

May 28, 2012 shooting and a May 31, 2012 incident. This petition relates
only to Petitioner’s murder conviction for the May 28th shooting, so only the
portions of the trial pertaining to that charge will be discussed.
The Superior Court provided the following summary:

Relevant to this petition, a person sitting on a porch across
from where the murder occurred, Nick Drayden, testified at trial,
and described two individuals he saw that night. [(Doc. 11-1] at
177-82). He testified that the shooting occurred at nighttime,
between 9:00 p.m. and 10:00 p.m., near a park. (Id. at 178). He
said he saw two males, who looked to be 16 or 17 years of age,
walking across the park. (Id. at 179-80). One had a T-shirt on his
head like a turban and both wore jeans and “wife beaters.” (Id. at
180). Drayden testified that one was a little shorter than Drayden,
who was 5’9”, and the same individual had a lighter skin tone
than Drayden. (Id. at 180-81). He said, however, that he did not
get a good look at either individual's face. (Id. at 182). Drayden
did not make an in-court identification of Rivera or Camacho-
Rodriguez as one of the assailants.
At trial, Detective Andy Baez testified about his interview of
co-defendant Eric Camacho-Rodriguez. During the testimony,
Baez changed references to Rivera contained in Camacho-
Rodriguez's statement to the “other person”:

Q. Okay. Now, I know you started off by indicating that he had --
you asked him about the backpack and the incident in Bantz
Park. What about—did you ask him anything about what
occurred by Girard Park?

A. He said that he was not there with the other person and there
were people that could tell the police that he was on George
Street.

Q. Okay. Just so we're all clear, the incident by Girard Park, that
was what occurred on May 28th, 2012 involving Felipe Bernabe,
correct?

...

Q. Did he indicate if -- any further information?

A. He said that he was not with the other person.

Q. Okay. What happened next?

A. Why would the other person say you were there?

...

A. He and the other person were together before the incident
happened and he continued to maintain that he was not there at
the time of the shooting.

Q. What happened next?

A. He was told that a person we spoke with said that there was
a person in the park that matched his general description that
includes the little afro pony puff.

Q. Okay. Then what happened?

A. He was then told that a person we spoke with indicated that
he was behind the shooter at the time of the shooting, and he
said I was not there.

...
A. He was asked if the other person that said he was there was
a liar. He indicated that the person is not a liar; however, he
denied being there.

Q. Okay. If you can continue, detective.

A. He was asked why the other person would say that. He didn't
know, but that he was not there in that moment when the other
person shot him and the other person was telling the truth about
the rest. What part was the other being truthful about? The –

...

Q. You can continue.

A. That the other person shot him. How do you --

...

A. So that day he was scared and he told the other person that
he did not want to do it and the other person said that he was
going with his friends by himself.

...

A. He was asked who his friends were. He said, his statement
was, he said that there was a skinny tall black boy, a white skinny
boy, and one with long hair. Those were the boys that left with
him.

Q. And if you can --

A. He was asked if he knew their names and he said no.

Q. What happened next?

A. He said that the other person told him at the time of the
shooting he didn't want to do it.
Q. Okay.

A. He also said that the black boy told him if you don't do it, I will
do it, so they tried to make the other person look like a pussy so
the other person did it. So in one moment, the other person got
in a panic and the other person shot him.

Q. Did he indicate what the other person was trying to do?

A. He said that the other person was trying to get some money
so we could eat.

Q. Did he indicate whether the person gave up the money?

A. He shook his head no.

Q. Okay. What happened next?

A. He indicated that the other person shot him. He was asked,
why him? He said that he didn't know and he said again that he
was not there.

Q. Did you further inquire as to why that particular person was
chosen?

A. We asked him, why was the victim chosen? Did you know
him? I don't know. They went and did it. The other person told
me that he or she was scared at first and then he or she was
running. The other person hid for like two days. Then the other
person was hiding with me in an abandoned house where he,
Eric Camacho, used to live. He then indicated that he and the
other person stayed there for a couple nights and tried to survive
until Friday.

Q. Okay.

A. After then, the other person was going to New York and
Camacho was going to go somewhere with his mother and
family. ...
Q. Okay. What happened next?

A. With reference to today, which would be the 31st, he said that
the other person told him that something was going to go so that
they could have money and they could eat.

Q. Okay.

A. He said that the other person didn't explain everything. He or
she just said it's money. He then indicated that he needed money
to eat so he went with the other person and he said that he was
carrying the book bag the whole way. He said that he knew the
police saw him with the book bag. He said that they were in the
park and they were waiting for some of the other person's friends.
He said that they were the ones that did the Girard Park incident
with the other person. He said that he knew that the guy was
dead.

Q. And let me just stop you. The guy as in Felipe Bernabe?

A. That is correct.

Q. Okay.

A. He said that the other person was thinking about it and he or
she was thinking that he or she killed him. He was asked if he
read the newspaper. He shook his head negative. He said that
the other person thought they killed him because the other
person hit him with the gun and was like, I think I killed him. He
indicated that the other person told him that.

Q. Okay. Now, did you or Detective Spence ask how Mr.
Camacho-Rodriguez ended up with the book bag?

A. We did.

Q. How did he respond?

A. The other person left it with a friend of ours and he or she was
holding a bag with the bullets and the gun. He indicated that he
knew the bullets and gun were inside the bag. He was asked how
he got the bag. He indicated that friend brought it to him on 409
South George Street at around 6 p.m. ...

(Doc. 11-1 at 544–57).

The trial court gave the following limiting instruction to the jury:

There's another rule that restricts the use by you the jury of
evidence offered to show that the defendants, Emanuel
Rivera and Eric Camacho-Rodriguez, made a statement
concerning the crime charged. A statement made before
trial may be considered as evidence only against the
defendant who made that statement. Thus, you may
consider the statement as evidence against the defendant
speaking if you believe he made the statement voluntarily.
You must not, however, consider that statement as
evidence against the other defendant. You must not use
the statement by one defendant in any way against the
other defendant.

(Id. at 694-95).

During jury instructions, the court did not give a Kloiber1 charge,
and Rivera's counsel did not ask for one. The jury found Rivera
guilty as above, and the court sentenced Rivera to life
imprisonment for the murder conviction and a consecutive four
to eight year term of imprisonment for the conspiracy to commit
robbery conviction. The court found the conviction for conspiracy
to commit burglary merged and imposed no further penalty for
the robbery and second conspiracy to commit robbery
conviction.

2021 WL 614058, at *1–3.

1 Commonwealth v. Kloiber, 106 A.2d 820, 826–27 (Pa. 1954).
Before the interview of co-defendant Camecho-Rodriguez was
recounted, an interview between Detective Jeffrey Spence and Petitioner,

which had been recorded and transcribed, was read into the record. (Doc.
11-1 at 500–532). All references to Camecho-Rodriguez were similarly
replaced with “the other person.” (Id. at 482–83).

In the interview, Petitioner was asked about the day of the killing. He
said that a “Mexican guy” had entered his house and stole a radio that his
father had given him, and he “got furious.” (Id. at 509). He followed the man,
the man tried to fight him, and Petitioner “responded” with the gun later found

by the police. (Id. at 510, 517). He also told police that the “other person”
was behind him at the time of the shooting. (Id. at 517). When asked what
he did after he shot him, Petitioner responded, “I left.” (Id. at 518).

Testimony was also given by Linda Perez, who was sitting on the porch
with Mr. Drayden that night. (Doc. 11-1 at 160–62). She testified that she
“noticed two gentlemen walking in the park,” she heard them speaking
Spanish, and though it was dark out, she could tell that they were not Black.

(Id. at 162–65). According to Perez, the men walked toward a pickup truck
which had pulled up the street. (Id. at 165). She observed that “at first, it
looked like they were talking to him and then all of a sudden they started
fighting.” (Id. at 166). She then turned around to look at Drayden and heard
gunshots. (Id.). After that, Ms. Perez “watched two guys run away.” (Id.).

Following Mr. Drayden and Ms. Perez, York Police Department
Patrolman John Buchkoski testified about the night of the killing. (Doc. 11-1
at 199). Officer Buchnowski recalled that he was dispatched for a shots fired

call around 10:30pm. (Id. at 200). He was the first officer on the scene and
observed that two people were standing on the sidewalk near where a man
was down on the road. (Id. at 201). The man had a “large lump” on his right
side above his belt line and there was blood around him. (Id. at 201–02).

Officer Buchkowski took out two forms of identification that were in the man’s
wallet, and noted that it did not appear that anyone else had gone through
the man’s pockets. (Id. at 202, 204).

Karen Ferguson, who was at an adjacent park the evening of the killing
and was a neighbor to the deceased, also testified. (Id. at 206–08). She saw
a man at the park who she said was about 5’9’’ or 5’10’’, with light complexion
and hair in a “bun or afro puff,” and wearing a white t-shirt and jeans. (Id. at

210–11). And as she saw him do every evening, the deceased pulled his
truck out from his driveway near the park, and parked it again. (Id. at 209–
11). Ms. Ferguson went home before the deceased was shot. (Id. at 212–

14).
The Commonwealth next called Officer Jeremy Mayer, who had
investigated the shooting. (Id. at 219–20). Officers collected blood swabs,

swabs of the truck, and photographs of the scene. (Id. at 224–27). Mayer
testified that the deceased’s vehicle was situated directly below a street light,
and that there were other lights in and around the park that shone at night.

(Id. at 230). He further testified that no firearm was recovered at the scene,
but a bullet was. (Id. at 232–33).
Jaycott Rivera-Rodriguez also testified for the Commonwealth. (Id. at
240). He knew Petitioner socially, and identified him in court. (Id. at 240–41).

Mr. Rivera-Rodriguez testified that, three days after the killing, Camacho-
Rodriguez called him and asked to talk in person. (Id. at 244–45). Camacho-
Rodriguez and Petitioner then arrived at his house and asked him if he heard

about the murder. (Id. at 246–47). He said no, and Camacho-Rodriguez
“pointed at [Petitioner] and said he was the one that pulled the trigger” while
both were laughing. (Id. at 247). After Camacho-Rodriguez said that, Mr.
Rivera-Rodriguez testified, Petitioner then confirmed that he had shot the

victim. (Id.). According to Rivera-Rodriguez, Petitioner told him “exactly what
he did”: “[H]e went to go get a car, went behind the guy, [the guy] wouldn’t
give up the keys so he shot him.” (Id.). The two also told the story to Mr.

Rivera-Rodriguez’s father. (Id. at 247–48).
The Commonwealth offered Pennsylvania State Trooper Todd
Neumeyer as an expert in firearms and tool mark examinations. (Doc. 11-1

at 388–393). Trooper Neumeyer had analyzed a bullet recovered from the
scene and a caliber .22 rifle that police later recovered. (Id. at 395–97). He
opined that certain characteristics of the bullet matched the rifle, but due to

the bullet’s mutilation he could not determine whether the rifle was the only
one that could have shot it. (Id. at 410).
Dr. Samuel Land, who performed an autopsy on the victim, was offered
as an expert in forensic pathology. (Id. at 330–336). Dr. Land testified that

the victim died as a result of a gunshot wound to his back. (Id. at 338). His
observations indicated to him that “the gun was pressed up against the skin
when the trigger was pulled.” (Id. at 341–42). Dr. Land’s opinion was that the

manner of death was homicide. (Id. at 345).
Dr. Katherine Cross gave testimony as an expert in forensic biology.
(Doc. 11-1 at 441–44). Dr. Cross analyzed swabs from the exterior of the
victim’s vehicle, the victim himself, and the gun recovered by police and

reference DNA from Petitioner and Camacho-Rodriguez. (Id. at 446). In her
opinion, the DNA obtained from the gun could not have come from either of
the codefendants, but it did match the reference from the victim, though the

reference was incomplete—so the victim could not “be excluded as being the
source.” (Id. at 460). Nor did any of the other tested items exhibit a match
with the codefendants. (Id. at 453–56).

Both Camacho-Rodriguez and Petitioner elected not to testify. (Id. at
604).
In closing, Petitioner’s counsel emphasized the judge’s instruction that

nothing Camacho-Rodriguez said in his statement could be used against
Petitioner. (Id. at 614–15). He acknowledged Petitioner’s statement about
the victim stealing his radio and Petitioner shooting him, but suggested that
the entire statement should be disbelieved. (Id. at 615). For one thing,

counsel said, the Commonwealth was “going to argue that” the statement
was a lie except for Petitioner’s admission to the shooting. (Id.). For another,
the statement lacked detail. (Id. at 616). And observing that Petitioner was

“a fairly large individual” and had lost weight since the shooting, counsel
argued that he did not match the descriptions given by eyewitnesses of “thin”
or “regular build” individuals. (Id. at 615–16). Counsel also attempted to
discredit Jaycott and highlighted the inconclusive results of Dr. Cross’s DNA

report. (Id. at 620–22).
The Commonwealth argued that Drayden’s and Perez’s descriptions
of the assailants matched the defendants. (Id. at 668–69). It further argued

that their narratives and Dr. Land’s testimony corroborated the story Jaycott
said Petitioner had told her. (Id. at 669). The prosecutor also discussed the
defendants’ statements. (Id. at 673). He highlighted Petitioner’s admission in

his own statement, but did not reference Camacho-Rodriguez’s implication
of Petitioner. (Id. at 674–75).
With regard to the May 28th murder charges, the jury found Petitioner

guilty of first-degree murder and Camacho-Rodriguez guilty of second-
degree murder. (Id. at 765–67).

II. LEGAL STANDARD

“[A] district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution

or laws or treaties of the United States.” 28 U.S.C. §2254(a).
A. Exhaustion
“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 unless

it appears that—
(A) the applicant has exhausted all the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective processes;
or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. §2254(b).
Exhaustion requires that the petitioner “give the state courts an
opportunity to act on his claims before he presents those claims to a federal

court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
This means that he must “invoke[e] one complete round of the State’s
established appellate review process.” Id. “In Pennsylvania, a defendant

exhausts his state remedies for a federal claim either by raising the claim on
direct appeal or in a petition for collateral relief under the PCRA.” Bennet v.
Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018). PCRA
petitioners “need not seek review from the Pennsylvania Supreme Court in

order to give the Pennsylvania courts a ‘full opportunity to resolve any
constitutional claims.’” Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir.
2004).

To exhaust a claim, the petitioner must “fairly present[]” that claim to
the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971).
That is, the petitioner must have presented a federal claim’s
factual and legal substance to the state courts in a manner that
put the state courts on notice that a federal claim was being
asserted. If a petitioner’s federal claim was not “fairly presented”
and further state-court review is no longer available under state
law, the claim is procedurally defaulted and may be entertained
in a federal habeas petition only if there is a basis for excusing
the procedural default.
Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 228 (3d Cir.
2017) (internal quotations, citations, omissions, and alterations omitted).

“[W]hen a claim has not been fairly presented to the state courts (i.e.,
is unexhausted) and there are no additional state remedies to pursue” or
when it “is properly asserted in the state system but not addressed on the

merits because of an independent and adequate state procedural rule,” that
claim is procedurally defaulted. Rolan v. Coleman, 680 F.3d 311, 317 (3d
Cir. 2012). Federal courts will not review the merits of procedurally defaulted
claims. Martinez v. Ryan, 566 U.S. 1, 9 (2012).

B. Review of state court decisions
For claims raised in a habeas petition that were decided on the merits
by the state courts, federal courts review the state-court adjudication to

determine whether it:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. §2254(d)(1).

Regarding this standard of review, the Third Circuit has explained
that:
A state court decision is “contrary to” clearly established federal
law “if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the state
court decides a case differently than the Supreme Court has on a
set of materially indistinguishable facts. A decision involves an
“unreasonable application” of federal law if no fairminded jurist
could agree with the state court’s decision.

Wilkerson, 871 F.3d at 228 (internal citations and quotation marks).
“For purposes of §2254(d)(1), an unreasonable application of federal
law is different form an incorrect application of federal law.” Harrington v.
Richter, 562 U.S. 86, 101 (2011). Reviewing the state court’s decision, “a
habeas court must determine what arguments or theories supported or …
could have supported” it, and then “ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision” of the United States Supreme Court. Id. at
102. “If that standard is difficult to meet, that is because it was meant to be.”
Id. It requires a petitioner to “show that that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103.
C. Ineffective Assistance of Counsel
“It has long been recognized that the right to counsel” guaranteed by

the Sixth Amendment “is the right to effective assistance of counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Ineffective
assistance of counsel claims are governed by the standard established in

Strickland v. Washington, 466 U.S. 668 (1984). Harrington, 562 U.S. at 92.
Under Strickland, one asserting ineffective assistance of counsel must
show (1) “that counsel’s performance was deficient” and (2) “that the

deficient performance prejudiced the defense.” 466 U.S. at 687. The first
prong requires a showing that “counsel’s representation fell below an
objective level of reasonableness.” Harrington, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 688). To establish the second, “a challenger must

demonstrate ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Id. (quoting
Strickland, 466 U.S. at 694).

D. Due Process
The Fourteenth Amendment commands that a State “shall” not
“deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV §1. The Due Process Clause “protects the accused

against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). The reasonable-doubt standard
“provides concrete substance for” the “axiomatic and elementary principle”
that the accused are presumed innocent. Id. at 363.

Relatedly, due process guarantees criminal defendants a fair trial, and
the Constitution “defines the basic elements of a fair trial largely through the
several provisions of the Sixth Amendment.” Strickland, 466 U.S. at 684–85.

The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.

U.S. Const. amend. VI.
“Thus, a fair trial is one in which evidence subject to adversarial testing
is presented to an impartial tribunal for resolution of issues defined in
advance of the proceeding.” Strickland, 466 U.S. at 685.
But “[o]nce a defendant has been afforded a fair trial and convicted of
the offense for which he was charged, the presumption of innocence
disappears.” Herrera v. Collins, 506 U.S. 390, 399 (1993). The due process
protections thereafter afforded him differ from those afforded the accused.
See District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, 68–69 (2009). Although state-created rights and those essential to their
realization can trigger due process protection, Connecticut Bd. of Pardons v.
Dumschat, 452 U.S. 458, 463 (1981), the states have “more flexibility in

deciding what procedures are needed in the context of postconviction relief”
than in ordinary criminal procedure. Osborne, 557 U.S. at 69. In assessing
the constitutional sufficiency of state postconviction procedures, “the

question is whether consideration of [a petitioner’s] claim within the
framework of the State’s procedures … offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked
fundamental, or transgresses any recognized principle of fundamental

fairness in operation.” Id. at 69. So “[f]ederal courts may upset a State’s
postconviction relief procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided.” Id.

III. DISCUSSION
Petitioner advances four grounds for relief. (Doc. 1).
A. Ground One: Ineffective assistance of counsel – failure to

request a Kloiber instruction
At trial, Nick Drayden testified that he witnessed the shooting at issue
in this case from the porch across the street. (Doc. 11-1 at 177–78).

According to Drayden, the shooting occurred between nine and ten o’clock
at night, so it was dark out, which affected his ability to see the assailants.
(Id. at 178). He described their appearance, but testified that he “didn’t get a

real good look at their faces.” (Id. at 182).
Petitioner argues that his trial counsel should have requested a Kloiber
jury instruction regarding Drayden’s testimony. (Doc. 1 at 29–32).

In Commonwealth v. Kloiber, 106 A.2d 820, 826–27 (Pa. 1954), the
Pennsylvania Supreme Court considered a challenge to a trial court’s refusal
to instruct a criminal jury to view certain eyewitness identification testimony
“with great caution.” The court explained that the necessity of such a charge

depends on the circumstances surrounding the identification:
Where the opportunity for positive identification is good and
the witness is positive in his identification and his identification is
not weakened by prior failure to testify, but remains, even after
cross-examination, positive and unqualified, the testimony as to
identification need not be received with caution ….
On the other hand, where the witness is not in a position to
clearly observe the assailant, or he is not positive as to identify,
or his positive statements as to identify are weakened by
qualification or by failure to identify defendant on one or more
occasions, the accuracy of the identification is so doubtful that
the Court should warn the jury that the testimony as to identity
must be received with caution.

106 A.2d at 826–27.

The type of instruction described in the latter charge has become
known as a “Kloiber charge.” See Commonwealth v. Brown, 196 A.3d 130,
163 (Pa. 2018).
Petitioner contends that “[a]lthough … Drayden technically did not
identify Petitioner, he was there to potentially identify Petitioner, and the jury

would have accepted the Commonwealth witness’s testimony as identifying
… Petitioner.” (Doc. 1 at 30). Therefore, he asserts, “it was incumbent upon
counsel to request that the jury be instructed to view the identification with

caution.” (Id.).
The Commonwealth counters that “[s]uch an instruction was
unnecessary because Witness-Drayden did not even attempt to identify
[Petitioner] as one of the assailants, buy only gave a brief description of his

general appearance, clothing, and skin color.” (Doc. 11 at 28).
The Pennsylvania Supreme Court has recently instructed that:
A Kloiber charge is appropriate when the accuracy of the
testimony of an eyewitness’ identification is so doubtful that the
Court should warn the jury that the testimony as to identity must
be received with caution. A trial judge must provide the
instruction where the eyewitness: (1) did not have an opportunity
to clearly view the defendant; (2) equivocated on the
identification of the defendant; or (3) had a problem making an
identification in the past. A Kloiber charge is not mandatory
where an eyewitness has had protracted and unobstructed views
of the defendant and consistently identified the defendant
throughout the investigation and at trial.

Brown, 196 A.3d at 163 (internal quotations and citations omitted).
The Superior Court here affirmed the PCRA court’s conclusion that no
Kloiber instruction was required because Drayden did not identify Petitioner.

2021 WL 614058, at *7.
Petitioner acknowledges that Drayden “technically did not identify” him,
but posits that the jury nonetheless would have accepted Drayden’s

testimony as an identification. (Doc. 1 at 30).
The court is unconvinced by this argument. Mr. Drayden described the
assailants’ physical characteristics—including their gender, age, height, and
skin tone—and clothing. (Doc. 11-1 at 179–81). But he also testified that, as

it was nighttime, the lighting affected his ability to see them and that he “didn’t
get a real good look at their faces.” (Doc. 11-1 at 182). At no point did
Drayden positively identify Petitioner as one of the assailants he saw. And

his testimony that he “didn’t get a real good look at their faces” seems to
disclaim an ability to positively identify Petitioner.
Petitioner’s expansive concept of identification testimony would
include descriptions consistent with a defendant’s appearance. But Kloiber

was not concerned with circumstantial evidence of that kind.
Kloiber instead spoke of “positive identification,” 106 A.2d at 826–27,
that is, a witness’s testimony that the person he saw commit a crime is the

defendant present in court. Testimony of this type is especially powerful. See
Commonwealth v. Walker, 92 A.3d 766, 779 (Pa. 2014) (“[Eyewitness
identification] is arguably the most powerful form of evidence. As Justice

William Brennan noted, ‘There is almost nothing more convincing than a live
human being who takes the stand, points a finger at the defendant, and says
‘That’s the one!’” (quoting Watkins v. Sowders, 449 U.S. 341, 352 (1981)

(Brennan, J. dissenting))). As Kloiber recognized, though, such testimony
may contain indicia of uncertainty, sometimes enough that the “accuracy of
the identification is so doubtful that the Court should warn the jury that the
testimony as to identity must be received with caution.” 106 A.2d at 827; see

also Walker, 92 A.3d at 779 (“Because eyewitnesses can offer inaccurate,
but honestly held, recollections in their attempt to identify the perpetrator of
a crime, eyewitness identifications are widely considered to be one of the

least reliable forms of evidence.”).
A cautionary instruction of the nature contemplated by Kloiber simply
does not apply where the witness has not identified the defendant. Testimony
regarding the assailant’s appearance is merely circumstantial evidence from

which the jury may infer a defendant’s involvement in the crime. Positive
identification testimony goes a step further by making that connection for the
jurors (who remain free to reject it).
Where, as here, no identification has been made, the extra caution due
such evidence is not warranted. The limitations of Mr. Drayden’s testimony

were made known to the jurors by his testimony that the nighttime lighting
affected his ability to see the assailants and that he did not get a good look
at their faces. (Doc. 11-1 at 181–82). Disclosure of these circumstances

sufficiently equipped them to assess the credibility of Drayden’s
observations. More importantly, there was no need for the jury to determine
whether an identification was accurate, for there was no identification. At
best, to have instructed the jury “to view the identification with caution,” as

Petitioner now proposes, (Doc. 1 at 30), would have served to confuse: by
referencing an identification that did not occur, such an instruction may have
been understood as suggesting that Mr. Drayden had identified Petitioner.

Precedent also would have reasonably dissuaded counsel from
requesting a Kloiber charge. “[W]hen a witness does not identify the
defendant in court or declines to identify the defendant in court, a Kloiber
instruction is not required.” Commonwealth v. Colon, 230 A.3d 368, 376 (Pa.

Super. Ct. 2020) (citing Commonwealth v. Sanders, 42 A.3d 325, 335 (Pa.
Super. Ct. 2012)). Colon concluded that the appellant’s trial counsel could
not have been ineffective for failing to object to the trial court’s refusal to give

a Kloiber charge for witnesses who did not identify him at trial. 230 A.3d at
376. And Sanders, in which the witnesses at issue had previously identified
the appellant in statements to the police but declined to identify him at trial,

held that the trial court had not erred in failing to give a Kloiber charge
regarding those witnesses.2
In sum, trial counsel’s decision not to request a Kloiber charge was

reasonable. The circumstances of this case did not warrant such a request,
the charge could have served only to confuse the jury, and Superior Court
precedent weighed against it. So counsel was not thereby ineffective.
Accordingly, this court cannot conclude that the Superior Court’s decision to

reject this ground was contrary to, or involved an unreasonable application
of, clearly established Federal law.
B. Ground Two: Ineffective assistance of counsel – failure

to object to admission of co-defendant’s statement
Petitioner next challenges his trial counsel’s failure to object to the
admission of Detective Baez’s testimony recounting his interview of co-
defendant Eric Camacho-Rodriguez. (Doc. 1 at 7).3 He contends that

2 The trial court in Sanders had instructed the jury, regarding the
previous identifications, to consider whether they were qualified by hedging
or inconsistencies and to consider all other circumstances under which they
occurred. 42 A.3d at 335.
3 Petitioner also now objects for the same reason to Jacyott Rivera-
Rodriguez’s testimony that Camacho-Rodriguez told him that Petitioner had
(footnote continued on next page)
admission of this statement violated his Sixth Amendment right to “be
confronted with the witnesses against him.” U.S. Const. amend. VI.4 (Doc. 1

at 32–36).
As noted supra, Petitioner was tried jointly with Camacho-Rodriguez.
Mr. Camacho-Rodriguez elected not to testify. (Doc. 11-1 at 604). But

Detective Baez testified about an interview he conducted of Camacho-
Rodriguez. (Id. at 541–57). In that interview, Camacho-Rodriguez had said
that Petitioner was the shooter. (Id. at 552). Due to the joint nature of the
trial, any references to Petitioner in Baez’s testimony about the interview

were replaced with “the other person.” (Id. at 482–83).
After all the evidence was presented, the trial court gave the following
instruction:

A statement made before trial may be considered as evidence
only against the defendant who made that statement. Thus, you
may consider the statement as evidence against the defendant
speaking if you believe he made the statement voluntarily. You
must not, however, consider that statement as evidence against
the other defendant. You must not use the statement by one
defendant in any way against the other defendant.

(Doc. 11-1 at 694–95).

committed the murder. (Doc. 1 at 34). But he did not raise this issue to the
Superior Court. (See Doc. 1-8 at 13).
4 The Confrontation Clause is applied to the States through the
Fourteenth Amendment’s Due Process Clause. Pointer v. Texas, 380 U.S.
400, 406 (1965).
The Confrontation Clause “forbids the introduction of out-of-court
‘testimonial’ statements unless the witness is unavailable and the defendant

has had the chance to cross-examine the witness previously.” Samia v.
United States, 599 U.S. 635, 644 (2023) (citing Crawford v. Washington, 541
U.S. 36, 53–54 (2004)). “[A] defendant’s Sixth Amendment confrontation

right is violated when a non-testifying co-defendant’s extrajudicial statement
inculpating the defendant is introduced at a joint trial, even if a jury is
instructed that the confession may be considered as evidence only against
the declarant.” Eley v. Erickson, 712 F.3d 837, 856 (3d Cir. 2013) (citing

Bruton v. United States, 391 U.S. 123 (1968)). By contrast, a confession that
is “redacted to eliminate not only the defendant’s name, but any reference to
his or her existence,” and accompanied by a proper limiting instruction does

not violate the Confrontation Clause. Richardson v. Marsh, 481 U.S. 200,
211 (1987). But “redactions that replace a proper name with an obvious
blank, the word ‘delete,’ a symbol, or similarly notify the jury that a name has
been deleted are similar enough to Bruton’s unredacted confessions as to

warrant the same legal results.” Gray v. Maryland, 523 U.S. 185, 195 (1998).
In reviewing Petitioner’s ineffective assistance of counsel claim, the
first task is to determine whether the admission of Camacho-Rodriguez’s

redacted statement worked a Bruton violation. See Riggns v. McGinley, 18-
4429, 2022 WL 943739, at *6 (E.D. Pa. Jan. 4, 2022), report and
recommendation adopted by 2022 WL 911142 (E.D. Pa. Mar. 29, 2022); See

Fogg v. Phelps, 414 Fed App’x 420, 427 (3d Cir. 2011) (non-precedential)
(“The ineffective assistance claim is parasitic on the substantive Sixth
Amendment claim; to prevail under Strickland, [the petitioner] must

necessarily prove the Bruton error was substantial and injurious.”).
After this petition was filed and the Commonwealth responded to it, the
Supreme Court considered Bruton’s application to a similarly redacted
confession. The defendant in Samia, 599 U.S. at 640, was tried jointly with

one Stillwell for murder-for-hire and conspiracy to commit murder-for-hire.
Stillwell had confessed prior to trial that he drove the van involved in the
murder, but had told law enforcement that Samia shot the victim. Id. Because

Stillwell would not testify, his confession was presented at trial through a
DEA agent, who referred to Samia throughout as the “other person,”
including in recounting Stillwell’s statement implicating Samia:
Q. Did [Stillwell] say where [the victim] was when she was killed?
A. Yes. He described a time when the other person he was with
pulled the trigger on that woman in a van that he and Mr. Stillwell
was driving.

Id. at 641–42 (alterations in original). The trial judge instructed the jury
that Stillwell’s testimony should not be considered as to Samia. Id. at 642.
The Court reviewed Bruton, Richardson, and Gray, and explained that
“[v]iewed together,” these “precedents distinguish between confessions that

directly implicate a defendant” to which Bruton’s rule applies, “and those that
do so indirectly,” to which it does not. Id. at 648–53. It concluded that the
“admission of Stillwell’s confession, accompanied by a limiting instruction,

did not run afoul of this Court’s precedents.” Id. at 653.
Stillwell’s confession was redacted to avoid naming Samia,
satisfying Bruton’s rule. And, it was not obviously redacted in a
manner resembling the confession in Gray; the neutral
references to some “other person” were not akin to an obvious
blank or the word “deleted.”

Id.
Samia resolves Petitioner’s Confrontation Clause argument. Like the
confession there, Camacho-Rodriguez’s confession was redacted so that
references to Petitioner were replaced with “the other person.” This court
cannot say that these “neutral references to some ‘other person’” resembled
the confession in Gray any more than those in Samia. And this confession
was also accompanied by a limiting instruction to the jury that it could not
consider that confession as evidence against Petitioner. So, according to
Samia, Petitioner’s Confrontation Clause right was not violated by the
admission of Camacho-Rodriguez’s redacted confession with a limiting

instruction. Petitioner is therefore not entitled to habeas relief on this ground.
C. Ground Three: Ineffective assistance of counsel – failure
to request jury instruction regarding Petitioner’s

statement to police
Third, Petitioner asserts that his trial counsel was ineffective “for failing
to request [a] jury instruction to disregard Petitioner’s inculpatory statement

to the police if they determined it was involuntary.” (Doc. 1 at 9).
But Petitioner did not present this claim to the Superior Court. See
2021 WL 614058, at *4. It is therefore procedurally defaulted. Rolan, 680
F.3d at 317.

Still, “a prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law.”
Martinez, 566 U.S. at 10. As relevant here:

When a State requires a prisoner to raise an ineffective-
assistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffective-
assistance claim in two circumstances. The first is where the
state courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The
second is where appointed counsel in the initial-review collateral
review proceeding, where the claim should have been raised,
was ineffective under the standards of Strickland. To overcome
the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit.

Id. at 13–14.
Petitioner avers that he did not exhaust this ground because his “PCRA
counsel did not permit exhaustion.” (Doc. 1 at 9). According to Petitioner,

“[w]hen [he] was granted a hearing on PCRA issues, he was not afforded
counsel in accordance with” the Pennsylvania Rules of Criminal Procedure.
(Id.).

For non–death penalty cases, an unrepresented defendant shall be
appointed counsel for his first PCRA petition when he “satisfies the judge
that [he] is unable to afford or otherwise procure counsel.” Pa. R. Crim. P.
904(C).

Petitioner raised this claim in his original PCRA petition. (Doc. 1-2 at
11–15). The trial court appointed counsel, and counsel filed a no-merit letter
and a motion to withdraw. 2021 WL 614058, at *3.5 The court granted

counsel’s motion to withdraw but did not then rule on the petition. Id.
Petitioner thereafter filed a motion opposing counsel’s no-merit letter and
withdrawal motion. (Doc. 1-5). Regarding this ground, Petitioner wrote:
Your defendant agrees with [trial counsel] in that after
review of the underlying circumstances, there is no avenue for

5 “When counsel concludes that a PCRA petitioner has no viable
issues, counsel is required to submit a letter to the PCRA court explaining
the basis for his no-merit conclusion. This is commonly called a Turner/Finley
letter. If the court agrees, counsel is permitted to withdraw, and the petitioner
may proceed pro se or obtain private counsel.” Commonwealth v. Bradley,
261 A.3d 381, 395 n.14 (Pa. 2021) (citing Commonwealth v. Turner, 544
A.2d 927, 928–29 (1988); Commonwealth v. Finley, 550 A.2d 213 (1988)).
relief on this issue, and your defendant hereby abdicates the
assertion of this issue for the purposes of post conviction relief.

(Id. ¶19). The court held a hearing on the petition, in which it “adopted
the position of PCRA Counsel in the Turner/Finley letter that there is no
arguable merit to [Rivera’s] PCRA [petition],” and dismissed the petition.
2021 WL 614058, at *4.
So Petitioner was appointed counsel for his PCRA petition, and

counsel withdraw according to “the judicially sanctioned Turney/Finley
process.” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 90
(3d Cir. 2013). And Petitioner has not shown that his PCRA counsel was
ineffective for failing to raise this claim before the trial court. Rather, counsel

reviewed this claim and provided an explanation to the court as to why it was
meritless. Petitioner himself agreed with counsel’s assessment and withdrew
the claim. So there is no indication that his PCRA counsel, or his lack of

PCRA counsel following withdrawal, prevented Petitioner from exhausting
this claim.
For these reasons, the court concludes that Petitioner has not
established cause for default. So this ground, which is procedurally defaulted

without cause, will not be reviewed.
D. Ground Four: Due process – state courts’ denial of
application for PCRA counsel

Finally, Petitioner contends that he was deprived of his right to
procedural due process by the PCRA court’s denial of his application for
counsel at the hearing. (Doc. 1 at 10).

As discussed supra Section III.C, Petitioner was appointed PCRA
counsel, but the court granted counsel’s motion to withdraw in accordance
with the Turner/Finley procedure. Before the subsequent hearing on his
petition, the trial court denied Petitioner’s request for new counsel because

his “appointed counsel … found no merit in his position, which the court
affirmed.” 2021 WL 614058, at *3.
As to Petitioner’s initial argument that the trial court’s denial of his

request for counsel was contrary to Pennsylvania law, (Doc. 1 at 41–44), that
is not a ground for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(“[F]ederal habeas corpus relief does not lie for errors of state law.”).
And the court cannot conclude that the trial court’s denial of Petitioner’

request for new counsel deprived him of due process, for “the Due Process
Clause does not require that the state supply a lawyer” for postconviction
relief proceedings. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Nor

can the court conclude that Pennsylvania’s procedure for permitting PCRA
counsel to withdraw is fundamentally inadequate to vindicate the right to
PCRA counsel provided by the Commonwealth. See Osborne, 557 U.S. at

69. That procedure requires an “independent review” of the record by
counsel, a letter detailing the “nature and extent of” that review and
explaining why each issue is meritless, and an independent review of the

record by the PCRA court. Finley, 550 A.2d at 393–94; Turner, 544 A.2d 927,
928–29. This procedure affords petitioners a fair opportunity to receive
careful attorney consideration of all their claims and to have their potentially
meritorious claims presented by counsel.

So this ground does not entitle Petitioner to habeas relief either.
E. Certificate of Appealability
Appeals may not be taken from final orders in habeas proceedings

brought by state prisoners unless a circuit justice or judge issues a
“certificate of appealability.” 28 U.S.C. §2253(c)(1)(A). “A certificate of
appealability may issue … only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. §2253(c)(2). This standard

is satisfied by a demonstration that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

The court concludes that jurists of reason could not disagree with its
resolution of Petitioner’s constitutional claims or conclude that that they are
adequate to deserve encouragement to proceed further. So a certificate of

appealability will not issue.

IV. CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus will be

denied. A certificate of appealability will not issue. An appropriate order
follows.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: July 30, 2024
21-1887-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667602. Public record. Not legal advice.