# ADDISON v. BOOHER

> District Court, W.D. Pennsylvania · June 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11082232

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** June 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
RAYMEL ADDISON, )
)
) Civil Action No. 2:18-cv-01649
Petitioner, )
)
vs. ) Christopher B. Brown
) United States Magistrate Judge
SUPERINTENDENT BRADLEY )
BOOHER, ATTORNEY GENERAL OF )
)
PENNSYLVANIA, and DISTRICT
)
ATTORNEY OF ALLEGHENY )
COUNTY, )
)
Respondents. )

MEMORANDUM OPINION RE:
RESPONDENTS’ MOTION TO DISMISS, ECF NO. 471

Christopher B. Brown, United States Magistrate Judge

Petitioner Raymel Addison (“Addison”), a Pennsylvania state prisoner, has
filed a counseled Amended Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254. ECF No. 33. He is challenging the judgment of sentence imposed on him on
January 9, 2006 by the Court of Common Pleas of Allegheny County at numbers
CP-02-CR-0011423-2003 (third degree murder) and CP-02-CR-0013549-2003
(firearms violation).
On November 12, 2024, Respondents filed the instant motion to dismiss on
the grounds the original habeas petition was untimely filed. ECF No. 47. Addison,
through counsel, filed a response to the motion on December 4, 2024. ECF No. 52.

1 All parties have consented to full jurisdiction before a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). See ECF Nos. 41 and 43.
Addison does not dispute the petition is time-barred under the applicable one-year
statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) codified at 28 U.S.C. § 2254(d)(1). But he argues he is entitled to

tolling under the fundamental miscarriage of justice exception announced in
McQuiggin v. Perkins, 569 U.S. 383 (2013), because he is actually innocent of Third-
Degree Murder.
The motion is fully briefed and ripe for consideration. For the reasons below,
the motion to dismiss will be granted, the Petition will be dismissed with prejudice
as untimely, and a certificate of appealability will be denied.

I. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute
applicable to prisoners in custody pursuant to a state court judgment. It permits a
federal court to grant a state prisoner a writ of habeas corpus “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).
II. Timeliness of the Original Petition

Respondents argue because Addison’s original Petition was not filed within
AEDPA’s one-year limitations period, the original Petition and the Amended
Petition are time barred and the case should be dismissed with prejudice. Addison
does not dispute that the original Petition was untimely filed but responds he is
entitled to tolling under the fundamental miscarriage of justice exception
announced in McQuiggin.
A. AEDPA’s One-Year Statute of Limitations
AEDPA imposes a one-year statute of limitations “to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a State Court.”

28 U.S.C. § 2244(d)(1). Addison was sentenced on January 9, 2006, and his
conviction was affirmed by the Pennsylvania Superior Court on May 30, 2007.
Com. v. Addison, No. 344 WDA 2006, Memorandum (Pa. Super. Ct. May 30, 2007).
No further appeals were taken. Thus, Addison’s conviction became final on June
29, 2007, when the time to seek review expired. See 42 Pa.C.S. § 9545(b)(3).
Addison would have had one year after June 29, 2007, the date his conviction

became final, in which to file his federal habeas petition. See 28 U.S.C. § 2244(d)(1).
Giving Addison the benefit of the prisoner mailbox rule,2 the original federal
petition was filed on December 4, 2018. Addison, concedes, as he must, that his
petition was untimely filed. Accordingly, absent any tolling period, Addison’s
petition for federal habeas relief is time-barred.
B. Statutory Tolling
The habeas limitations period is subject to statutory tolling for the time

during which a “properly filed” PCRA petition is pending in state court. 28 U.S.C. §
2244(d)(2). Addison, through counsel, filed a timely PCRA petition on June 16,
2008, raising claims of ineffective assistance of counsel. ECF No. 47 at 2, ¶5. The
PCRA court dismissed the petition in August 2008 and the Superior Court affirmed

2 The “prisoner mailbox rule” dictates that filings of pro se prisoners are deemed filed on the
date the document was deposited in the prison mailing system or given to prison authorities for
mailing. Houston v. Lack, 487 U.S. 266, 270-72 (1988).
the dismissal on August 19, 2009. Id., ¶6. Id. As no further appeals were filed,
Addison is entitled to statutory tolling from June 16, 2008, until September 18,
2009, when the time to seek further review expired. See 42 Pa.C.S. § 9545(b)(3).

None of Addison’s four subsequent PCRA petitions toll AEDPA’s statute of
limitations as all four were denied as time-barred by the state courts. See ECF No.
47-1,3 47-2 at 24, 47-2 at 37, and 2024 WL 5135730 (Pa. Super. Ct. Dec. 17, 2024)
(dismissal of fifth PCRA petition).4 Whether a state petition is untimely is a
question of state law. “When a postconviction petition is untimely under state law,
‘that [is] the end of the matter’ for purposes of § 2244(d(2).” Pace v. DiGuglielmo,

544 U.S. 408, 414 (2005)); Merritt v. Blaine, 326 F.3d 157, 165 (3d Cir. 2003)
(holding that because petitioner’s second PCRA petition was untimely under state
law, it was not “properly filed” for purposes of AEDPA).
Addison concedes his Petition is untimely. ECF No. 33. He argues, though,
that had the state courts “correctly” adjudicated his May 1, 2016, pro se supplement
to his third PCRA petition,5 he would be entitled to statutory tolling until August

3 The Superior Court memorandum attached to the motion to dismiss is not a complete copy.
ECF No. 47-1 at 51. But the complete memorandum is contained in the original state court record
provided to the Court by Respondents. ECF No. 50.

4 In July 2024, the Court requested counsel for Addison to provide it with a copy of the
Superior Court’s December 17, 2024, memorandum affirming the denial of Addison’s fifth PCRA
petition. ECF No. 37. Counsel responded he did not have copy of the memorandum. ECF No. 40.
The Court, however, obtained an electronic copy through Westlaw.

5 The issue of the written plea agreement between Michael Brown and the U.S. Attorney’s
office was raised in Addison’s Supplemental Third PCRA Petition. ECF No. 9-2. Both the PCRA
court and the Superior Court denied the petition as untimely. The Superior Court determined
“[b]ecause Addison failed to plead and prove the application of the PCRA’s ‘new facts’ exception to
the time-bar, the PCRA court was without jurisdiction to consider Appellant’s Petition. We are,
26, 2018. ECF No. 33 at 83. Under this scenario, Addison states his Petition is
untimely by 102 days,6 rather than being untimely by 8 years.
The Court finds Addison’s argument to be of no moment. Under either

scenario, be it 102 days or 8 years, the Petition was untimely filed. Although
Addison is entitled to receive some amount of statutory tolling, the Petition remains
time barred. Having failed to meet AEDPA’s one-year statute of limitations, the
Petition can be saved only by the application of equitable tolling or the Supreme
Court’s recognized fundamental miscarriage of justice exception. See Holland v.
Fla., 560 U.S. 631 (2010) (statute of limitations may be equitably tolled with

showing of diligence and extraordinary circumstances); see also McQuiggin, 569
U.S. 383 (2013) (equitable exception to statute of limitations for actual innocence
claim on an otherwise untimely petition).
C. Equitable Tolling
The limitations period for Section 2254 petitions is subject to equitable tolling
in appropriate circumstances. Holland, 560 U.S. at 645-49. A habeas petitioner
may receive equitable tolling only if the petitioner shows “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Id. at 649 (citing Pace, 544 U.S. at 418).
Both elements must be met. Id. A petitioner seeking application of the doctrine

likewise, without jurisdiction.” Accordingly, the Superior Court affirmed the dismissal of the third
PCRA petition as time-barred. ECF No. 47-2 at 30.

6 The Amended Petition states Addison placed his original Petition in the prison mailing
system on December 6, 2018, ECF No. 33 at 90; however, the original Petition states Addison placed
the Petition in the prison mailing system on December 4, 2018. ECF No. 4 at 15.
bears the burden of showing that it should apply to him. Id.; see also Lawrence v.
Fla., 549 U.S. 327, 336 (2007) (to receive equitable tolling, the petitioner must prove
the above two requirements).

Addison does not argue for equitable tolling but argues he should be excused
from AEDPA’s statute of limitations because he is factually innocent of Third-
Degree Murder.
D. Miscarriage of Justice / Actual Innocence Exception
In McQuiggin, the Supreme Court of the United States held that actual
innocence, if proved, serves as a gateway allowing a habeas petitioner to overcome

an impediment due to a procedural bar or expiration of the statute of limitations.
McQuiggin, 569 U.S. at 386. In other words, an untimely petition for federal
habeas corpus relief may be reviewed upon a showing that a “fundamental
miscarriage of justice” has occurred, where “a constitutional violation has probably
resulted in the conviction of one who is actually innocent[.]” Id. at 392 (citing
Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).
In McQuiggin, the Supreme Court stressed how narrow the miscarriage of

justice exception is to AEDPA’s statute of limitations, and consequently how rare a
successful miscarriage of justice exception would occur:
We hold that actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether
the impediment is a procedural bar, as it was in Schlup
and House, or, as in this case, expiration of the statute of
limitations. We caution, however, that tenable actual-
innocence gateway pleas are rare: “[A] petitioner does not
meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Schlup, 513 U.S. at 329, 115
S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064
(emphasizing that the Schlup standard is “demanding”
and seldom met). And in making an assessment of the
kind Schlup envisioned, “the timing of the [petition]” is a
factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U.S., at
332, 115 S.Ct. 851.7

McQuiggin, 569 U.S. at 386-87. “The gateway should open only when a petition
presents ‘evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial.’” Id. at 401 (quoting Schlup, 513 U.S. at 316).
A petitioner must show “he is, in fact, innocent.” Sistrunk v. Rozum, 674 F.3d
181, 191 (3d Cir. 2012). “[A]ctual innocence means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); Sweger v.
Chensey, 294 F.3d 506, 523 (3d Cir. 2022) (“actual innocence requires a showing of
factual innocence, not mere legal insufficiency.”). To meet the actual innocence
standard, the petitioner must “demonstrate (1) new evidence (2) that is reliable and
(3) so probative of innocence that no reasonable juror would have convicted the
petitioner.” Sistrunk, 674 F.3d at 191 (citing Schlup, 513 U.S. at 324). In Schlup,
the Supreme Court emphasized that “[w]ithout any new evidence of innocence, even
the existence of a concededly meritorious constitutional violation is not in itself

7 In Schlup, the Supreme Court distinguished habeas petitions asserting claims of actual
innocence for when no constitutional error is alleged, as in Herrera v. Collins, 506 U.S. 390 (1993),
from petitions in cases, such as the instant case, where a constitutional error allegedly occurred.
Schlup, 513 U.S. at 314-15. The petitioner in the latter scenario does not argue that his innocence
entitles him to habeas relief, but that his innocence entitles him to have a federal court consider the
merits of his constitutional claims despite a procedural bar that would ordinarily preclude such
review. Id. at 315. In such a case, a credible claim of actual innocence only operates as a “gateway”
through which a petitioner may pass and obtain federal review of his claims.
sufficient to establish a miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim.” 513 U.S. at 316.
Addison will only overcome his time-barred petition if he can make a credible

“showing of actual innocence” under McQuiggin.8 This is no simple task. As the
Supreme Court emphasized, “The miscarriage of justice exception, we underscore,
applies to a severely confined category: cases in which new evidence shows ‘it is
more likely than not that no reasonable juror would have convicted [the
petitioner].’” McQuiggin, 569 U.S. at 394-95 (quoting Schlup, 513 U.S. at 329); see
also House v. Bell, 547 U.S. 517, 538 (2006) (emphasizing the Schlup standard is

“demanding” and seldom met); Reeves v. Fayette SCI, 897 F.3d 154, 161 (3d Cir.
2018), as amended (July 25, 2018) (“[t]he gateway actual innocence standard is
‘demanding’ and satisfied only in the ‘rare’ and ‘extraordinary’ case where ‘a
petition presents evidence of innocence so strong that a court cannot have

8 The Court notes Addison’s actual innocence claim is not the “prototypical example of ‘actual
innocence’ in a colloquial sense . . . where the State convicted the wrong person of the crime.”
Sawyer v. Whitley, 505 U.S. 333, 340 (1992). Addison does not contest he committed the physical act
of killing Jamon Miyares. Rather, he argues he is factually innocent of Third-Degree Murder
because the killing was legally justified as an act of self-defense. The Court of Appeals for the Third
Circuit has “never reached the question of whether such [a defense] can, as a matter of law, satisfy
the actual innocence standard because, in all cases to date, the defendants failed to demonstrate
actual innocence on the facts.” Wallace v. Mahanoy, 2 F.4th 133, 152 n. 25 (3d Cir. 2021). See
Sweger v. Chesney, 294 F.3d at 506, 522 (3d Cir. 2022) (“we assume arguendo for purposes of this
opinion that the actual innocence test applies in a non-capital case where ‘there is evidence that
defendant committed the crime but argues that he or she was responsible for a lesser degree of
guilty.’”) (internal citation omitted); In re Minarik, 166 F.3d 591, 607 (3d Cir. 1999) (“We further
assume that “actual innocence” of the crime charged would include the situation where the new
evidence would show the petitioner not guilty of first degree murder, though guilty of some lesser
offense. Even under these assumptions, however, Minarik cannot show “actual innocence” because
he has failed to establish the necessary factual basis); Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir. 1995)
(“The Supreme Court has not decided whether the actual innocence test is applicable in a noncapital
case when there is evidence that defendant committed the crime but argues that he or she was
responsible for a lesser degree of guilt.”). For purposes of this Memorandum Opinion only, the Court
will assume arguendo that the actual innocence standard applies.
confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.”) (quoting McQuiggin, 569 U.S. at 386,
392, 401).

III. The Federal Habeas Proceedings
Addison filed pro se his original Petition on December 4, 2018, raising three
grounds for relief:
● a due process claim contending the “[t]he
Commonwealth withheld evidence of a plea agreement it
had with one of its witnesses. It further failed to correct
the witness’s denial of an offer of an agreement during his
testimony[;]”

● “denial of right of autonomy” contending trial counsel
“conceded Petitioner’s guilt despite and over Petitioner’s
insistence he was innocent[;]” and

● “actual innocence.”

ECF No. 4, ¶ 12. On May 22, 2019, the District Court adopted the Report and
Recommendation and dismissed the Petition as untimely. ECF Nos. 5, 10, 12, and
13. Petitioner filed pro se a timely Notice of Appeal, ECF No. 15, and the Court of
Appeals for the Third Circuit granted a certificate of appealability. ECF No. 20.
Respondents filed a motion to remand in lieu of a brief and the Court of Appeals
then remanded the case back to the District Court on May 30, 2023. ECF No. 20.
The case was reopened on May 31, 2023, and reassigned to Magistrate Judge
Cynthia Reed Eddy.9 ECF No. 22. On November 13, 2023, Addison’s motion for
appointment of counsel was granted. ECF No. 26. On June 22, 2024, counsel filed a

9 When the Petition was filed in 2018, the case was assigned to Magistrate Judge Robert C.
Mitchell, who retired in 2019.
181-page Amended Petition. ECF No. 33. On July 3, 2024, as a result of the
retirement of Judge Eddy, this case was reassigned to the undersigned. In August
2024, the parties consented to full jurisdiction before a United States Magistrate

Judge pursuant to 28 U.S.C. § 636(c). See ECF Nos. 41 and 43.
Addison raises two claims in his Amended Petition, both centered on
Addison’s contention that the prosecutor withheld information that Commonwealth
witness, Michael Brown, had brokered a leniency / plea agreement with the U.S.
Attorney’s Office in exchange for his trial testimony in Addison’s homicide case:
1. Michael Brown, ADA Stephie Kapourales, ADA
Ross Lenhardt, and the [District Attorney’s Office]
violated Raymel Addison’s due process right to a fair trial
by presenting knowingly false evidence, substantially
misleading testimony, and by failing to correct the record
when the falsity of Michael Brown’s testimony and
substantially misleading nature of ADAs Stephie
Kapourales’s and Ross Lenhardt’s testimony was
uncovered.

2. The [District Attorney’s Office] rendered Raymel
Addison’s trial fundamentally unfair by suppressing
material impeachment evidence regarding Michael
Brown.

ECF No. 33 at 132, 149. The Amended Petition discusses the McQuiggin standard
at length, ECF No. 33 at 93-131, and also provides a detailed factual account based
on the trial testimony of several fact witnesses, including the testimony of Michael
Brown. Id. at 15-31.
Respondents move to dismiss the Amended Petition arguing Addison’s claims
are time-barred and Addison “fails to meet the actual innocence gateway standard
necessary to overcome the time-bar.” ECF No. 47 at 15. Specifically, Respondents
argue Addison’s new evidence – Brown’s plea agreement with the U.S. Attorney’s
office – “constitutes potential impeachment evidence to challenge Brown’s trial
testimony” and “evidence that Brown had a plea agreement for so[me] form of

nonspecified leniency does not constitute actual, factual innocence under
McQuiggin.” ECF No. 47, ¶¶ 78, 79. Further, Respondents argue,
Petitioner fails to prove that no reasonable juror
would have convicted him of Third-Degree Murder had
they been informed of a plea agreement with Michael
Brown offering him leniency at sentencing in exchange for
his testimony. As it was, the jury was already aware that
this was a distinct possibility for Brown. Moreover, they
were aware of Brown’s different versions of events
regarding the homicide.

Id., ¶ 81 (emphasis in original). Addison responds:
had the DAO disclosed the leniency agreement – it’s more
likely than not each juror would’ve concluded Michael
Brown changed his narrative so close to trial not because
his - “Addison fired first” – trial testimony represented
the truth, but because this narrative substantially
assisted ADA Fitzsimmon’s efforts to raise reasonable
doubt regarding Addison’s self-defense claim, and Brown
needed to substantially assist the DAO to trigger the
leniency agreement’s provisions.

ECF No. 52 at 22-23 (emphasis in original).

A. New Evidence – Michael Brown’s Written Plea Agreement10

10 On December 27, 2016, Addison filed in the PCRA court a counseled “Final Amended
Petition” arguing he had “after-discovered evidence” showing the Commonwealth had offered
Michael Brown a plea deal and that Brown “had brokered a plea agreement with the U.S. Attorney’s
Office for the Western District of Pennsylvania . . . before he testified against Addison on October 13,
2005, and his state court testimony against Addison triggered the plea agreement’s leniency
components regarding his potential federal prison sentence[.]” ECF No. 33 at 10. See also Superior
Court Memorandum, 9/11/2017 affirming dismissal of PCRA petition as untimely (“Appellant
exclusively argued the merits of his ‘after-discovered evidence claim’ . . . [and] neglects to establish
that the trial court had jurisdiction to consider his Petition. . . . the PCRA court was without
The first determination the Court must make is whether Addison has
presented new and reliable evidence to support his “actual innocence” claim. To
this end, Addison relies on the written plea agreement between Brown and the U.S.

Attorney’s office, ECF No. 33-1 at 143, and the Government’s Motion Pursuant to
Section 5K1.1 of the Sentencing Guidelines filed in Brown’s federal criminal case.
Id. at 188. Respondents do not dispute Addison’s evidence is new or that the
evidence is not reliable.
Therefore, the Court must turn to the next determination: is this new reliable
evidence sufficiently persuasive under Schlup for a gateway showing of actual

innocence. The overarching question is whether Michael Brown’s plea agreement
supports Addison’s allegation that a jury would not have convicted him of Third-
Degree Murder in light of this “new evidence.” See Schlup, 513 U.S. at 327-28.
B. Consideration of “New Evidence”
Addison argues Brown’s written plea agreement supports his gateway claim
of actual innocence because it shows the Commonwealth knew about the “brokered”
agreement with Brown and knowingly presented false testimony in violation of

Addison’s right to due process. Respondents deny Addison’s claim of a Brady
violation, but argue, “assuming arguendo that there was a Brady violation,

jurisdiction to consider Appellant’s Petition. We are, likewise, without jurisdiction.” ECF No. 47-2,
at 30.
[Addison] has failed to meet the actual innocence gateway standard necessary to
overcome the time-bar.” ECF No. 47 at 15.11
The record contains a written plea agreement letter dated October 20, 2005,

from the U.S. Attorney’s office to Brown’s counsel in his federal criminal case. ECF
No. 33 at 143. Under the terms of the agreement, Brown agreed to:
● plead guilty to illegal possession of a firearm by a
convicted felon;

● “assist law enforcement agencies in investigating
violations of state homicide statutes and related
offenses[;] and

● “testify in grand jury, pretrial, trial, sentencing and
post-conviction proceedings in this district and
elsewhere.”

Id. at ¶¶(B)1, 2, and 7. In exchange, the U.S. Attorney’s office agreed, inter alia, to
file, in its discretion, a motion for sentence reduction and to advise the sentencing
court of Brown’s substantial assistance. Id. at ¶(B) 5. As to possible penalties, the
plea agreement stated the parties agreed the penalty that may be imposed is “[a]
term of imprisonment of not more than ten (10) years.” Id. at ¶C(1). However, if “is
determined that Michael T. Brown has 3 previous convictions for violent felonies or
serious drug offenses or both, the term of imprisonment is not less then 15 years

11 Along with raising a Brady violation, the Amended Petition also raises a Napue / Giglio
claim against the Deputy District Attorney and witnesses Assistant District Attorneys Stephie
Kapourales and Ross Lenhardt. ECF No. 33 at 139-143; 169-172. While Addison’s new evidence
may constitute a meritorious constitutional violation(s), Schlup, 513 U.S. at 316, the Court is not
resolving that issue. Instead, the question this Court is answering is this – has Addison shown it is
more likely than not that no reasonable juror would have convicted him in light of the new evidence.
Schlup, 513 U.S. at 299.
and not more than life . . . .” Id. The plea agreement was signed by Brown on
October 31, 2005. Id. at 6.
At Brown’s change of plea hearing on October 31, 2005, the AUSA

summarized the Government’s obligation to file a sentence reduction motion:
the United States Attorney will consider the cooperation
that you have given in the cases that we have talked
about and if we consider you have given substantial
assistance in the prosecution and investigation of other
people, we can move the Court to file a motion to reduce
your sentence. That’s entirely up to us in good faith. And
it’s up to the Court on whether that motion will be
granted and, if it is granted, how much your sentence will
be reduced.

Transcript, Change of Plea Hearing, 10/31/2004, ECF 47 at 165.

Brown’s counsel explained Brown had completed the assistance portion of the
plea agreement:
For the record, Your Honor, he’s already testified in a
homicide trial in the Court of Common Pleas of Allegheny
County, so he has completed that portion of – he has kept
his end of the bargain. . . . I was there when he testified
and he did testify at the homicide trial.

Id. at 167.

At the sentencing hearing on June 14, 2006, the sentencing court asked the
AUSA to discuss the Government’s 5K1.1 motion. The AUSA responded:
Not much to say, Your Honor. Fair is fair. Mr. Brown
made a bargain with us, so we’re holding up our end. He
assisted Mr. Fitzsimmons in the DAs office with getting a
third-degree murder conviction. Apparently, his
testimony helped blunt the self-defense issue, which
might have otherwise resulted in an acquittal . . . .[.]
[W]e’re asking the Court to grant the motion and award a
departure to recognize Mr. Brown’s cooperation in the
homicide matter[.]

Transcript, Sentencing Hearing, June 14, 2006 (ECF No. 47 at 225-26).

Against this backdrop, the Court turns its attention to the factual
background and procedural history of Addison’s state court criminal proceedings as
well as to the newly supplemented record. In doing so, the Court is aware the
central issue before the Court is whether Addison has made a sufficient showing of
actual innocence to be entitled to relief based on the Supreme Court’s decision in
McQuiggin. The Court’s task in reviewing an actual innocence claim is not to
exercise its own judgment as to whether a reasonable doubt existed, but to make “a
probabilistic determination about what reasonable, properly instructed jurors would
do.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329). Any evaluation of
the new evidence must be considered in light of what was presented to the jury and
factored into the verdict. The Court must presume that the jurors would fairly
consider all the evidence presented and conscientiously adhere to the requirement
that guilt be proven beyond a reasonable doubt. Id. (citing Schlup, 513 U.S. at 329).
IV. The State Court Criminal Trial

Addison was tried by jury in the Court of Common Pleas of Allegheny County
between October 11, 2005 and October 17, 2005, before the Honorable Kathleen A.
Durkin. The jury convicted him of Murder of the Third Degree and Carrying a
Firearm Without a License. ECF No. 47-2 at 37; TT at 733-34. On January 9, 2006,
the trial court sentenced him to a term of incarceration of 20 to 40 years on the
Third-Degree Murder conviction, to run consecutive to a federal sentence which had
been imposed in July 2005,12 and 14 months to 7 years on the firearm conviction to
be served consecutive to both the federal sentence and the sentence imposed for the

Third-Degree Murder conviction. ECF No. 47-2 at 37. Addison was represented at
trial by Attorney Patrick J. Thomassey; the Commonwealth was represented by
Deputy District Attorney Daniel Fitzsimmons. The Superior Court described the
evidence presented at trial as follows:
On the night of July 22, 2003, [Addison] received a phone
call from his girlfriend, Tennille Tomlin.13 Tomlin told
[Addison] to come to a bar called the Uptown Cafe to
“handle” the victim, Jamon Miyares, who had been acting
in a disrespectful manner toward her. Tomlin was
arguing there with the victim, Miyares, over his use of
derogatory terms. Following that call, [Addison] and his
friend Michael Brown went to the bar looking for the
victim Miyares. Tomlin and Miyares had a confrontation
outside the bar and Tomlin hit the victim over the head
with a bottle. [Addison] and Miyares each pulled out a
gun. Miyares shot [Addison] once in the leg and [Addison]
fired back three times and fatally wounded the victim.
Miyares was hit in the head, abdomen, and leg, and
collapsed on the sidewalk next to [Addison’s] still running
vehicle.

12 On February 17, 2004, a federal grand jury sitting in the United States District Court for the
Western District of Pennsylvania returned a two-count indictment against Addison charging him
with possession with intent to distribute five grams or more of cocaine base and possession of a
firearm by a convicted felon. See United States v. Addison, Criminal Case No. 04-cr-0023. He was
sentenced on July 15, 2005, to 188 months of imprisonment, to be followed by 4 years of supervised
release. Criminal Case No. 04-cr-0023, ECF No. 28.

13 Tennile Tomlin did not testify at Addison’s trial.
Com. v. Addison, No. 1144 WDA 2012, 2013 WL 11259339, at *1 (Pa. Super. Ct.
July 1, 2013) (quoting PCRA Court Opinion, 12/13/2012 at 1-2). ECF No. 33-1, at
291.14

A. Opening Statements
During his opening statement, the Deputy District Attorney informed the
jury that Michael Brown’s testimony would be “central to the prosecution’s
presentation[.]” TT at 40. He asked the jury to “observe [Michael Brown] and listen
to him and see what he has to say and whether you think and believe and rely upon
what he has to say.” Id. at 40-41.

Counsel for Addison also addressed the jury in an opening statement. He told
the jury in deciding the case, it would “have to deal with . . . the concept of what is
called justification. The law permits under certain circumstances, even something
as terrible as this, that the taking of another human life is justified under the
circumstances.” Id. at 48; see also id. at 54 (“[w]hen somebody says I was justified
in protecting myself in shooting somebody, the burden is on the district attorney’s
office to prove not only that somebody committed the shooting but they also must

prove beyond a reasonable doubt that it was not justified. That is the law.”).
Defense counsel also discussed Michael Brown’s anticipated trial testimony
noting Brown had made several statements to the police about the shooting
incident, but only in his last statement did he state Addison “shot first and as a
reward the district attorney’s office dismisses the criminal indictment with attempt

14 The correct spelling of Mr. Miyares’s first name is “Jamon.” In the trial transcript, his name
was often transcribed as “Jamone.”
(sic) murder of the police.” Id. at 53. Defense counsel informed the jury it “will
have to decide whether or not [Michael Brown] is believable or whether or not
Donald Richards15 is believable or whether or not [Addison] did anything that

night.” Id. at 53.
B. Witness Testimony
The Commonwealth called 17 witnesses during its case-in-chief and
Defendant called 2 witnesses in his case-in-chief. Addison did not testify on his own
behalf. Below is a summary of the salient trial testimony.
i. The Commonwealth’s Case-in-Chief

James Stallworth testified he knew both the victim, Jamon Miyares, and
Raymel Addison. TT at 175-76. Stallworth came to the Uptown Cafe around 8:00
PM or 9:00 PM on the night of July 22, 2003. Id. at 175. He agreed Miyares was
“picking with” everyone in the bar, and Miyares was arguing with the girl he was
with, Tanisha Harris, and with Tomlin. Miyares continued to argue with Tomlin
after Harris left.16 Id. at 178-180. At one point, Stallworth stepped outside the bar
and saw five people standing there, including Addison. Miyares was standing with

his back against the wall, with the others facing him. Id. at 187. Miyares “pulled
his gun out and waving it a little bit and put it back in his pants, the back of his

15 Donald Richards was called by the defense as a witness in its case-in-chief. His testimony is
discussed below.

16 Tanisha Harris testified she and Miyares had been arguing at the Uptown Bar. TT at 247.
She eventually left the bar and was not in the area when the shots were fired. Id. at 248-49.
pants.” Id.17 Before putting the gun back in his pants, Miyares was pointing the
gun up in the air. Id. at 190. After watching Miyares return the gun to his
waistband, Stallworth stepped back inside the bar and about 2-3 minutes later he

heard about four or five gun shots. Id. at 193-94. He testified, for his own safety,
he waited about 30 seconds before going outside, and when he did, he saw Miyares
on the ground. Id. at 194. He and Tosha Lindsey18 stayed with Miyares until the
paramedics arrived.
On cross-examination, Stallworth testified he saw a gun fall out of Miyares
pants while they were in the bar. Id. at 203. He stated, however, he did not see

Miyares racking the slide of his gun. Id. When he saw Miyares outside the bar, he
saw Miyares waving the gun, but he did not see him fire it. Id. at 205.
City of Pittsburgh Police Officer Bryan Sellers testified he arrived at
the scene but then was dispatched to Presbyterian Hospital around 12:50 a.m. with
a report there was a victim there who had been shot in the same location as Miyares
and had been brought into the hospital by three individuals. TT at 327. Upon
arrival at the hospital, Sellers spoke to these individuals who identified themselves

as Deon Williams, Tennille Tomlin, and Nate Coleman. Id. at 328-29. Only Deon
Williams’s identification was confirmed through a driver’s license. Id. at 329.

17 Stallworth later clarified that he did not see Miyares put the gun back into his pants, but he
saw Miyares appearing to make the motion to put it back. Stallworth stepped back inside the bar at
that point. TT at 191.

18 Detective Weismantle testified a subpoena had been issued for Tosha Lindsey to testify at
trial, but he had been unable to locate her. “We checked our database and other agencies. Her most
current address was in Braddock . . . She left that approximately a month ago with no forwarding
information.” TT at 542.
Officer Sellers later learned that the individual who had identified himself as “Nate
Coleman” was in fact Michael Brown and in addition to giving a false name, Brown
had provided police with an incorrect birth date, address, and phone number. Id. at

329, 330, 336-37, 343.
Officer Sellers also spoke with Addison while he was being treated in the
emergency room. Id. at 331. Sellers testified Addison told him,
he was headed down to the Uptown Bar to pick up his
girlfriend, Ms. Tomlin, and he said when he pulled up, he
got out to go around to let her in the car and that’s when
he heard gunshots. He didn’t see anything. He didn’t see
who was shooting. He just realized he had been shot . . . .

Id. at 334.

City of Pittsburgh Detective Steven Hitchings testified after being
notified that Addison had signed himself out of the hospital, he went to Addison’s
apartment and asked him to come to the police station to be interviewed. Addison
voluntarily agreed to be interviewed and gave this account of the incident:
He told us that he was at home in his apartment, 2031
Fifth Avenue, and at sometime around 1:00 or 2:00 in the
morning his girlfriend, Ms. Tomlin, requested that he
come pick her up at a bar down the street from their
house. He said he got dressed, drove down the street, and
parked a couple of doors away from the bar. When he got
to the bar, he heard gunshots and was shot in the leg.
. . .

He said when he exited his car he heard the shots, looked,
and he observed the man he said was killed shooting
towards Downtown Pittsburgh and he said someone was
shooting back at him who would have been down the
street away from Downtown Pittsburgh and stated he was
shot in the leg.
TT at 347-49.

Detective Hitchins testified that after speaking with Addison, he obtained a
warrant for his arrest and a search warrant for firearms in his residence. Id. at
350. The warrants were served on July 27, 2003, and Addison was arrested without
incident at his apartment. Id. at 351-52.
Michael Brown testified he knew both Addison and Miyares. TT at 372,
428. On the night of the incident, he met Addison at his apartment around 11:00
PM and bought “weed” from him. Id. at 379-380, 383. They were on the sidewalk
outside the apartment smoking, when Addison got a call from his girlfriend. Brown

overheard Addison tell her he was on his way, to calm down. Id. at 386-87. Brown
drove with Addison to the bar; Brown went inside, but Addison did not. Id. at 393.
As Brown entered the bar, he saw Deon Williams and Miyares outside, and
Tomlin was coming out. Id. at 396. Minutes later, Brown went outside. Id. at 400.
He saw and heard Tomlin arguing with Miyares. Id. at 401-402. Miyares said, “get
that bitch out of my face,” and Tomlin then hit him on the side of the head with a
bottle. Id. at 402. Miyares repeated, “get that bitch away from me,” backed up, and

pulled a gun from his waistband. Id. at 403. Addison also pulled out a gun and
fired “a warning shot.” Miyares then pointed his gun knee-level at Tomlin and
Addison, but the gun jammed. Id. at 407, 410. According to Brown, Addison then
fired three shots at Miyares. Id. at 411.
At that point, Brown ran from the scene and testified he saw Deon Williams
in his truck. Id. at 414. Brown got into the truck and suggested they leave.
Williams refused stating he was waiting for Addison. Addison and Tomlin then ran
to the truck and the four of them drove to Presbyterian Hospital. On the way to the
hospital, they discussed what they would tell the police, and Addison suggested they

say he was shot in an attempted robbery. Id. at 421. Brown acknowledged that
while at the hospital with Addison, he had given the police a false name, address,
and phone number and had lied about what had happened. Id. at 424-27. He
testified he did this because at the time he was on federal probation and he did not
want to get in trouble with the “federal probation people” and he stuck with the
plan the four of them had discussed while driving to the hospital. Id. at 425, 427.

Sometime later, Brown was arrested on unrelated state charges and was
being held in Allegheny County Jail (“ACJ”). On December 7, 2004, homicide
detectives took Brown out of ACJ and took him to the homicide office where he
spoke with homicide detectives and Deputy District Attorney Fitzsimmons. Id. at
431. During this time, Brown had both state and federal criminal charges pending
against him. Id. at 432.
Brown testified he was hesitant to talk about the incident because he “was

cool with both of them, the defendant and the people that died. . . . I really didn’t
want to have nothing to do with the case.” Id. at 435. During the first interview,
Brown told the detectives he talked with Addison while both were confined at ACJ
and Addison told him “things looked good for him” because the police could not
locate “Donald” and so Addison could fight the charges with self-defense. Id. at 436-
38. Brown expressed concern to the police detectives about his safety during the
interview and, as a result, after the interview he was moved to a different jail. Id.
at 436.
About a week later, Brown again spoke with the police. The attorney

representing him on his federal criminal charges was present during this interview.
This time, Brown expanded on the details of the shooting incident. Brown had since
been moved back to Allegheny County Jail. And because of being mistreated by
other inmates, Brown testified at trial he changed some of the details in his
previous statement. Id. at 448-49. He “got in a fight and stuff,” he had been
threatened, and references were made to his testifying in the Addison trial. Id. at

449-50.
At the time of his testimony in the Addison trial, Brown had several pending
state criminal cases and a pending federal case on a gun possession charge. The
federal charge was related to a state charge involving shooting at police. Id. at 441-
45. He testified he was told this state charge had been dismissed after he was
indicted in federal court. Id. at 445. The following exchange then occurred:
Q: Have you asked the police or any prosecutor to dismiss
any of your cases as a reward to you for testifying here?

A: No, sir.

Q: Now, do you hope or expect that the fact that you did
tell the police about the incident when they came and took
you out of jail and because you testified in this case today
and perhaps tomorrow or whatever, do you hope and
expect that that will be taken into consideration if you are
found guilty of the crimes that you are charged with and
you go to sentencing in front of a judge?

A: I hope. I don’t know that. I believe that. I hope.
. . .

Q: Okay. Well, has anybody promised you that you will
get a certain sentence in federal court or on your state
court charges that are pending against you?

A: No, nobody tells me nothing like that.

Q: Do you know how much time you are facing down in
federal court?

A: About seven years, I think.

Q: Seven years?

A: That is it.

Q: Do you know what the most time you could get is?

A: About five or seven, I think.

Q: Is that what you’ve been told?

A: Yes. I’m really not sure. My lawyer really didn’t tell
me yet. I really don’t know yet.

Q: Has anyone told you that you might get 15 years to life
for that crime down there, sir?

A: No, sir. I aint’ really – no.

Q: So from what you’ve said, you’ve been told or you
expect currently that you might get somewhere around
seven years; isn’t that right?

A: I think so. I think. He really didn’t tell me yet. He
didn’t tell me nothing yet.

. . .

Q: Sir, after you’re done testifying, you are still facing all
these charges; am I right?

A: Yes, sir.
Id. at 446- 450 (emphasis added).19 Brown testified in addition to his pending
federal criminal charges, he had pending state charges related to tampering with
evidence and possession of drugs from June 2003. Id. at 451.
On cross-examination, Brown was questioned about the inconsistencies in his
prior statements and his direct trial testimony. Id. at 451-463. He acknowledged
he had only recently remembered Addison had fired a “warning shot.” Id. at 455.

When asked on cross-examination to explain what happened that night, Brown
testified Miyares took out his gun and pointed it down at Addison’s knees; Addison
then fired a warning shot. Id. at 459.

19 Addison argues “[b]ased on what we know about Michael Brown’s leniency agreement and
his ultimate prison sentence – Brown may’ve accidentally let the cat out of the bag here because his
5-7 year prison sentence statement is eerily close to the 8-year prison sentence he ultimately
received.” ECF No. 52 n.19. In the Amended Petition, Addison states, “Brown’s actual federal prison
sentence, however was only 8 years – making ADAs Lenhardt’s and Kapourales’s testimony
significantly misleading – if not outright false.” ECF No. 33 at 150. (The testimony of Lenhardt and
Kapourales is discussed below). This argument is, at best, disingenuous. The record reflects the
sentencing court determined Brown was an armed career criminal under the Armed Career Criminal
Act, which subjected him to a term of imprisonment of 15 years to life. ECF No. 33 at 58. This range
is consistent with the testimony of both ADA Lenhardt and ADA Kapourales. At the sentencing
hearing on June 14, 2006, the Court determined that the applicable Guidelines range was 180-210
months (15 years – 17.5 years) imprisonment, irrespective of the Government’s motion for downward
departure pursuant to 5K1.1. ECF 33-1 at 226. This too tracks with ADA Lenhardt’s testimony that
the only way Brown could “get under” the mandatory sentence would be if a 5K1.1 motion was
granted. The Court then granted the Government’s 5K1.1 motion, which resulted in Brown being
sentenced below the 15 year mandatory minimum, albeit to a term of 156 months, or 13 years. Id. at
231. Three years later on February 26, 2009, because of the Supreme Court’s decision in Chambers v.
United States, 555 U.S. 122 (2009), the Court of Appeals for the Third Circuit vacated Brown’s
sentence and remanded for resentencing. Id. at 59. Brown was originally determined to be an
Armed Career Criminal based on then-qualifying three prior convictions including one for “walk
away escape.” The Chambers decision determined that such convictions do not qualify as a predicate
under the Armed Career Criminal Act. Given this, Brown was resentenced on June 3, 2009. Id. As
a result, he was no longer subject to the mandatory minimum 15-years to life sentence and his
original offense level of 31 under the federal sentencing Guidelines was reduced to 25, and he was
resentenced to a term of imprisonment of 100 months, or 8.33 years. Id. See also public docket Case
No. 03-cr-288, United States v. Brown (WDPA), of which this Court takes judicial notice.
Assistant District Attorney Stephie Kapourales testified she took over
the Michael Brown 2003 attempted criminal homicide case from another assistant
district attorney in her office. TT at 497-99. She testified she nolle prossed the

prosecution because the U.S. Attorney’s Office had adopted the prosecution of the
case. Id. at 500. She was asked during her direct testimony whether she
discontinued the case “because Michael Brown was a potential witness in the
prosecution of Raymel Addison.” Id. at 504. She responded, “No. I discontinued it
because Michael Brown was looking at more time in federal court than state court.”
Id.

During cross-examination, she was asked about the potential sentence Brown
faced for a conviction on his two state criminal attempt homicide charges versus the
possible sentence he faced on his federal criminal firearms charge. Id. at 505–09.
She responded she did not know if there was a mandatory sentence with Brown’s
federal sentence, but it was her understanding Brown “was looking at a larger
amount of time in federal court than he would be [in state court] even it was a gun
case.” Id. at 508, 511. After she spoke with the Assistant U.S. Attorney handling

Brown’s federal case, she “called the cops and they chose to go to federal rather than
state.” Id. at 511.
On redirect this exchange occurred:
Q: Did I ask you to discontinue that case, ma’am?

A: No sir.
Q: You were asked about three strikes and so forth. Are
you aware that, in fact, Michael Brown already has three
strikes in federal court?

A: I was under the impression that he did and that is
why he was going fed.

Q: Are you aware that he could possibly go to jail for life?

A: Sir, I did this because I was told 15 years to life.

Q: One other thing. It is sometimes the case that people
perceive a benefit if they testify. You are familiar with
that?

A: Yes, sir.

Q: Is it your practice to confer that benefit upon them say
by getting rid of a case before they even perform their
part of the agreement, before they testify or something
like that in a court case?

A: The few times that I've had one individual who has
pending charges testify against another individual I
would never withdraw the charges before the case that
was at issue. For example, the Michael Brown case never
would have been withdrawn before he testified here this
week. I would have waited until after to make sure that
he did what he was supposed to do. That is practice. It is
common sense. If I withdraw this case before, you know,
he could have done anything so I would not have
withdrawn this case before if it was in exchange for his
testimony. The issue was that he was looking at more
time down the street.

TT at 512-13.

Next called to testify was Deputy District Attorney Ross Lenhardt. He
testified he was familiar with both federal sentencing guidelines and state
sentencing statutes. He testified he had reviewed Michael Brown’s criminal history
and “it would appear” Brown’s federal sentencing guideline range was between 262
months and 327 months of incarceration. Id. at 525. He also testified substantial
cooperation could decrease a person’s penalty, but the federal government has to
ask for it, the defendant has no right to ask for such a departure. Id. at 525-27.

On cross-examination, Deputy District Attorney Lenhardt stated Brown had
three prior violent felonies, which appeared to make Brown an armed career
criminal under the Armed Career Criminal Act (“ACCA”), making his sentence a
mandatory minimum 15 years to life. Id. at 530-31. He testified the only way
Brown could “get out from underneath 15 years minimum” was if the federal
government filed a 5K1.1 motion. Id. at 530. Lenhardt also testified on cross-

examination that he did not know why Brown had not pled at that time to his
federal charge. Id. at 534.
The final witness called in the Commonwealth’s case in chief was City of
Pittsburgh homicide detective Brian Weismantle. He and his partner,
Detective Patrick Moffatt, interviewed Michael Brown on December 7, 2004. Id. at
544. Brown told the detectives he observed both Miyares and Addison displaying
hand guns, but he did not see the fired shots because, “when the guns were pulled . .

. he left, he ran.” Id. at 545.
About eight days later, on December 15, 2004, Detective Weismantle met
again with Michael Brown, who was accompanied by his attorney in the federal
case. This time, according to Detective Weismantle, Brown said,
he was present for the shooting and he just did not want
to talk about it the week prior. He said – basically gave
the same story except up until the point where the
shooting occurred. At that time he said Tennille hit the
victim, Jamone Miyares, with a bottle. He pulls out a gun
and as he’s waving it on the ground, there is some words
going between the defendant and Jamone. At that time
the defendant pulls his gun and shoots Jamone hitting
him. He further states that the victim, Jamone, shoots
and he is backing way and as he is backing away, he is
able to fire his gun, he believes, striking the . . .
defendant.

Id. at 548-49.

Detective Weismantle had no contact with Brown again until October 7,
2004, when Brown was brought to the courthouse to talk with Weismantle and
Deputy District Attorney Fitzsimmons about his expected trial testimony. Brown’s
federal defense attorney was present again for that interview. Id. at 549-550.
Brown this time said that after Miyares pulled out his gun and was waving it, the
gun discharged, and that was when Addison fired. Id. at 550-51.
Weismantle also testified Brown stated that on the drive to the hospital, the
four people in the car had concocted a story that if asked by the police what
happened, they would say Addison “was being robbed and that was how he was
shot.” Id. at 551. Weismantle acknowledged he had failed to include this
information in his report of the October 7, 2004 interview. Id.; see also id. at 556.
On cross-examination, Weismantle summarized the statements made by
Brown during his three interviews. He acknowledged in all three interviews Brown
consistently said Miyares took out his gun first. In the first interview, Brown said
he did not see any shooting but ran down the street and heard shots; in the second,
Brown said Miyares got out his gun and Addison fired in retaliation; and in the
third, Brown said Miyares waved his gun towards the ground and fired, and then
Addison fired. Id. at 554-55. Weismantle agreed Brown had testified at trial that
Miyares had his gun pointed at knee level and he agreed Brown had never
previously stated that anyone had fired a “warning shot.” Id. at 556.

ii. Addison’s Case-in-Case
Addison began his case-in-chief by calling Pittsburgh Police Detective
Christine Williams. Detective Williams testified that when she interviewed
James Stallworth he said that Miyares had “racked the slide” of his gun several
times while in the bar. On cross-examination, Detective Williams testified that
Stallworth did not describe any live round flying out of the gun when Miyares was

racking it and, in fact, the magazine was not even in the gun at that time. Id. at
584.
Addison’s second and final witness was Donald Richards.20 He testified he
had been at the Uptown Cafe and was walking home and “pretty much watched the
shooting from a considerable distance.” Id. at 590. Richards had gone to the bar to
buy cigarettes and as he entered the bar he could see Miyares was visibly angry.
Id. at 592-93. At one point, he saw Miyares drop a gun in the bar. Id. at 592. He

saw Miyares exit the bar and Richards left soon after and began walking home. He
testified he saw Addison in his car coming down the street and saw Addison get out
of the car “not too far from the entrance of the bar” and appeared to have words
with Miyares. Id. at 595-96. He testified he saw “sparks hit the ground. I seen Mr.
Addison buckle, . . . and I seen Jamone buckle and by that time I was gone.” Id. at

20 In the Amended Petition, Donald Richards is mistakenly referred to as “Donald Richardson.”
See ECF No. 33 at 53.
596. When asked who shot first, Richards responded, “It could have been Jamone,
it could have been Mr. Addison like I said so I don’t know sir.” Id. at 596.
Richards acknowledged during his direct testimony he had testified during

the coroner’s inquest that Miyares had fired first. Id. at 599-600. When asked
again on direct examination, “who shot first?,” Richards responded,
Once again sir, I seen [Miyares] shoot. I can’t say who
shot first. I mean, I made that statement and I sat and
thought about it over the last few years and I can’t say if
he necessarily shot first with definite conclusions. I seen
[Addison] walk to the left. I seen [Miyares] as if he was
getting punched in the stomach and buckle off to the side
and by that time I was gone, sir.

Id. at 606. Richards explained he testified at the coroner’s inquest that Miyares
shot first because “that is the individual who was facing me, sir, that’s what I seen
first.” Id. at 607. He also testified,
I do believe [Miyares] shot first but at the same time, like
I just said, sir, . . . Addison, his back was facing from me.
I seen him buckle simultaneously. I seen [Miyares], seen
the muzzle spark from [Miyares’s] gun, yes. In my mind I
thought [Miyares] shot first.

Id.
The following exchange then occurred between defense counsel and Richards:
Q: What have you received from the district attorney’s
office monetarily to testify?

A: Monetarily?

Q: Yes.

. . .

A. I just answered his question. The district attorney
gave me no monetary to testify.
Q: They put you up in the hotel for the coroner’s
inquest?

A: Because I feared for my life. Can I answer you, sir?

Q: Did they put [you] up in a hotel?

A: Yes, sir.

Q: And since that time what have they done for you?

A: They have helped me get some food to eat, things of
this nature. They have helped me but not given me – to
answer the question is they have not given me monetarily
to testify, sir, no.

. . .

Q: Are they paying your rent?

A: Yes, but that is not getting me to testify. That is
because I asked for help and they helped me, sir. They
didn’t pay me to testify, no sir.

Q: They are paying your rent and food?

A: Yes, sir, but they didn’t pay me to testify, no sir. I
asked for help. That’s what they gave me, help.

Q: Is that why are you hedging in your testimony?

A: No, sir.

TT at 607-611.

On cross-examination, Richards testified Addison and Miyares “both buckled
simultaneously” and then Miyares fell facedown to the ground. Id. at 626.
He testified he saw Addison a few days after the incident. He had spoken
with Addison on the phone and then went to Addison’s apartment. “Addison opened
the door with his girlfriend in front of him pointing a gun at [Richards].” Id. at 629.
Addison asked Richards if could sell some coke for him. Richards took the coke and
left. Id. Later that night, around 3:00 AM, two unknown individuals knocked on

the door of Richards’ sister’s house, where he was staying. Id. at 630. Richards did
not open the door as he did not know who the individuals were. He testified he was
“scared” and went to the police because of his safety concerns. Id. Richards
testified that after the police agreed to help him, he went to Massachusetts and
then went missing for a while. Id. at 632-33. “Nobody knew where I was. That’s
the way I really intended it.” Id. at 634. He did not want to be involved anymore as

he had “ties to the defendant and the victim. I felt conflicted. I still do.” Id.
Richards acknowledged that he was more than 240 feet from the area where
he said the shooting occurred and the area was dimly lit. Id. at 619. He also agreed
he could not see Addison’s gun during the incident because Addison’s back was to
him, but stated he heard two distinct shots, and saw bullets hitting the ground. Id.
at 635.
On redirect, Richards testified he did not think Addison had threatened him.

After Richards was let into Addison’s apartment, he sat on the couch and Addison
told him, “I got shot, dog. You should help me. I’m fucked up.” Id. at 639. 21

21 On March 22, 2010, Richards signed an Affidavit recanting his trial testimony:

The testimony that I gave during Mr. Addison’s Trial was not true. I
also lied about some guy’s coming to my house at night. When I said
in open court that, “I seen three guy’s in black, this was a lie, it never
happened.” . . . I also lied when I said, “I seen [Addison] with a gun
and shooting the victim, Jamon Miyares.” The truth is I seen Mr.
Miyares shoot Mr. Addison while Mr. Addison . . . had his hands up in
C. Closing Arguments
In his closing argument, Addison’s counsel argued Addison acted in self-
defense: Addison was shot at first and “he did what the law permits him to do. That

is, fire back. It is that simple.” TT at 654.
The Deputy District Attorney explained it was the Commonwealth’s position
“not that this is third degree murder, not that this is voluntary manslaughter, but
this is first degree murder, this is the premeditated, deliberate, malicious taking of
life of another human being.” Id. at 663.
D. Jury Instructions and Verdict
At the end of closing arguments, the trial court gave its final charge to the

jury. TT at 687-725. The jury was instructed there were four possible verdicts: “not

the air. I never saw Mr. Addison with a gun. The detectives and
District Attorney of the case said, “They would help me with my
current criminal charges if I lied on Mr. Addison. The District
Attorney stated, “I had choices, take the stand and lie on Mr. Addison
or if I did not take the stand, I would be put in jail for a very long
time. . . .

I, Donald Richards, lied on the stand about the District Attorney not
giving me anything to testify against Mr. Addison. The truth is they
paid me with things such as paying rent, and gave me food, to testify
on Mr. Addison. . . . The District Attorney also told me he was not
going to call me but he was going to let Mr. Raymel Addison’s
Attorney call me that way it would be a open and closed case. These
statements were lies I told in court to help myself.

ECF No. 33 at 61 (quoted verbatim); see also original second PCRA Petition contained in state court
file, No. 49, with attached affidavit of Richards.

Addison filed a second PCRA Petition on June 16, 2010. The PCRA court dismissed the petition as
untimely and the Superior Court affirmed finding that Addison had offered “no information about
his exercise of due diligence in ascertaining the facts or the information about the circumstances
surrounding the revelation.” Consequently, the Superior Court concluded Addison had failed to
properly plead an exception to the one-year filing requirement relative to the proffered affidavit and,
and the petition's dismissal for lack of jurisdiction was affirmed. Commonwealth v. Addison, No.
1848 WDA 2010, Memorandum (Pa. Super. Ct. July 27, 2011).
guilty or guilty of one of the following crimes: murder of the first degree, murder of
the third degree, or voluntary manslaughter” and instructed on the elements of
each. Id. at 696-703.

The jury was also given detailed instructions on self-defense or justification:
The defendant claims that he shot the victim in self-
defense. Self-defense is a justifiable complete defense to
the Commonwealth. The Commonwealth has the burden
of proving beyond a reasonable doubt that the defendant
did not act in justifiable self-defense. The basic rule for
self-defense is that a defendant is justified in using force
against another if he reasonably believes he is in
imminent danger of unlawful force from that person and
reasonably believes it is necessary then and there to use
the force which he does use to protect himself. Note that
a defendant’s right of self-defense depends on what he
reasonably believes. Thus, the right of self-defense may
be available not only to a person who is in actual danger
of unlawful attack but also [ ] to one who mistakenly
believes that he is. . . . .

There are other requirements for justifiable self-defense
besides those in the basic rules. The additional
requirements are more restrictive if a defendant uses
deadly force to protect himself than if he uses non-deadly
force. If a defendant employs deadly force to protect
himself, his use of the force must meet the following
requirements as well as the basic rule. The defendant
must reasonably believe that he is in immediate danger of
death or serious bodily injury from the other person and
reasonably believes that it is necessary then and there to
use deadly force upon that person to protect himself. The
defendant must have been free from fault in provoking or
continuing the difficulty which lead to his use of deadly
force and the defendant must have violated no duty to
retreat . . . .

Because the Commonwealth has the burden of disproving
the claim of self-defense, you cannot find the defendant
guilty of any crime unless you are satisfied beyond a
reasonable doubt that the defendant did not act in
justifiable self-defense. . . .

Id. at 704-07. The jury was then discharged to begin its deliberations.

After receiving a jury question asking about the definition of the three
homicide charges, the trial court reinstructed the jury on each of the elements of
murder of the first degree, murder of the third degree, and voluntary manslaughter.
Id. at 727-733.
The jury ultimately convicted Addison of Third-Degree Murder and of
carrying a firearm without a license. Id. at 733-34.
V. Analysis
The Supreme Court has emphasized that “tenable actual-innocence gateway
pleas are rare[,]” Schlup, 513 U.S. at 329, and involve “extraordinary”
circumstances. See House, 547 U.S. at 538 (“[I]t bears repeating that the Schlup
standard is demanding and permits review only in the extraordinary case.”)
(citations and internal quotation marks omitted). For instance, in House, “the
Supreme Court held that the petitioner had stated a Schlup gateway claim because
the central forensic proof connecting him to the crime had been called into question,
and he had put forward evidence pointing to a different suspect.” Wright v.
Superintendent Somerset SCI, 601 F. App’x 115, 120 n.16 (3d Cir. 2015). The
Supreme Court found that “although the issue is close, we conclude that this is the

rare case where – had the jury heard all the conflicting testimony– it is more likely
than not that no reasonable juror viewing the record as a whole would lack
reasonable doubt.” House, 569 U.S. at 554.
Addison has presented no new evidence of innocence which makes this case
the rare case involving extraordinary circumstances. The only new evidence is the
actual written plea agreement - which Addison argues supports his actual

innocence claim and casts doubt on Michael Brown’s testimony. The written plea
agreement, however, is not as helpful to Addison as he contends. The Supreme
Court has stated that newly discovered impeachment evidence “is a step removed
from evidence pertaining to the crime itself” and “tends only to impeach the
credibility of the witness.” Calderon v. Thompson, 523 U.S. 538, 563 (1998). As a
result, newly discovered evidence brought forward to impeach a prosecution witness

will seldom, if ever, establish actual innocence. See Sawyer v. Whitley, 505 U.S.
333, 349 (1992); Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir. 2012)
(impeachment evidence generally not is sufficient to satisfy an actual innocence
claim based on newly discovered evidence) (citing Schlup, 513 U.S. at 324));
Hussmann v. Vaughn, 67 F. App’x 667, 668-69 (3d Cir. 2003) (actual innocence not
established where two new affidavits would merely impeach credibility of
Commonwealth witness).

Here, the jury heard testimony about Michael Brown’s extensive criminal
history and that there was an incentive for him to testify against Addison as he was
“hoping” his testimony would lead to a lenient federal prison sentence. TT at 447.
The jury heard Brown likely faced a mandatory minimum 15 years – life in prison
and that a sentence below that would only be authorized if the federal prosecutor
filed a motion requesting a departure. Id. at 455. Further, the jury heard about the
inconsistencies in Brown’s descriptions of the shooting, with the latest version being
Addison “shot first,” given just two days before he testified at Addison’s trial. Id.
But even if the jury had been told Brown had in fact “brokered” a leniency

agreement with the U.S. Attorney’s Office, such evidence would serve only to
impeach Brown’s credibility. Addison’s trial counsel conducted an extensive cross-
examination and impeached Brown on other grounds – namely, the inconsistencies
in his statements made during his interviews with the police and his trial
testimony. Further, the jury heard the possibility of time Brown faced in federal
court as well as his hope for leniency in exchange for his testimony. Finally, both

the prosecutor and defense counsel emphasized in their opening statements and
closing arguments that Brown’s credibility was a key issue for the jury to decide.
The jury also heard testimony that Addison had given inconsistent
statements about the incident. Officer Sellers, who talked to Addison while he was
being treating in the emergency room, testified Addison told him he had gone to the
Uptown Cafe to pick up his girlfriend, he had gotten out of the car to let her in the
passenger side door, and that was when he heard shots and realized he had been

shot. Addison told Officer Sellers he did not see who was shooting. Id. at 334. Yet
when Addison was interviewed by Officer Hitchings a few days later, Addison said
he heard the shots when he exited his car and he observed the man who was killed
shooting towards Downtown and someone was shooting back at him. Id. at 348-49.
There was also testimony adduced of contradictory statements about where
Addison was when he received the phone call from his girlfriend. Officer Hitchings
testified Addison told him he was sleeping when he received her phone call, id. at
347-49; Michael Brown testified he and Addison were on the sidewalk outside of
Addison’s apartment smoking when Addison received the call. Id. at 386-87.

And the jury heard Donald Richards’ testimony he saw “sparks coming off the
ground,” TT at 596, although Richards also testified he was on a dimly lit street
about 240 feet from the shooting, and only Miyares was facing towards him as
Addison was facing away from Richards. Id. at 607, 619, 635. The jury was also
made aware Richards’ testimony at the coroner’s inquest was inconsistent with his
trial testimony. Id. at 607.

There was also witness testimony it was raining hard that night. Id. at 195,
225, 322. Although Brown testified it had not rained but agreed it was a “hot,
steamy, summer night.” Id. at 463.
The jury also knew Addison’s defense was self-defense / justification, id. at
48, 54, 654, that Miyares was armed with a firearm, that Addison had been shot in
the leg, and was instructed on the requirements needed to find justifiable self-
defense. Id. at 704-07. Yet it convicted Addison of Third-Degree Murder.

Following a thorough review of the entire newly supplemented record, the
Court is not persuaded “that, in light of the new evidence, no juror, acting
reasonably, would have voted to find [Addison] guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 329; McQuiggin, 569 U.S. at 386. As a result, Addison has
failed to make a gateway claim of actual innocence to overcome the untimeliness of
his petition. Accordingly, the motion to dismiss will be granted and the petition
dismissed as untimely.
IV. Certificate of Appealability

The only remaining question is whether to grant Addison a certificate of
appealability under 28 U.S.C. § 2253(c)(2). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner's underlying constitutional
claim,” the Supreme Court has said, a certificate of appealability “should issue

when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying
this standard, the Court finds a certificate of appealability should not issue in this
case.
V. Conclusion

For the reasons set forth, the Court cannot conclude that “no juror, acting
reasonably, would have voted to find [Addison] guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 329; McQuiggin, 569 U.S. at 386. Accordingly, based on all the
evidence before the Court, including the newly supplemented record, the Court
finds Addison has failed to sustain his burden of presenting new evidence
demonstrating his actual innocence and, as a result, he cannot rely on the actual
innocence gateway to overcome AEDPA’s statute of limitations. As a result,
Addison’s petition is barred by AEDPA’s one-year statute of limitations and the
Respondents’ motion to dismiss will be granted and the petition will be dismissed
with prejudice as untimely, without issuing a certificate of merit. An accompanying

Order follows.
Dated: June 23, 2025 BY THE COURT:

s/Christopher B. Brown
Christopher B. Brown
United States Magistrate Judge

cc: All Counsel of Record
(via ECF electronic notification)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11082232. Public record. Not legal advice.