Kevin Johnson v. Superintendent Mahanoy SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-2531

_______________

KEVIN F. JOHNSON,

Appellant

v.

SUPERINTENDENT, MAHANOY SCI;

DISTRICT ATTORNEY OF PHILADELPHIA

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:13-cv-03197)

District Judge: Hon. Eduardo C. Robreno (Ret.)

_______________

Argued: December 11, 2024

Before: BIBAS, CHUNG, and ROTH, Circuit Judges

(Filed: July 14, 2025)

Claudia B. Flores

FEDERAL COMMUNITY DEFENDER OFFICE

EASTERN DISTRICT OF PENNSYLVANIA

601 Walnut Street, The Curtis Center, Suite 540 West

Philadelphia, PA 19106

David Rudovsky [ARGUED]

KAIRYS, RUDOVSKY, MESSING, FEINBERG & LIN

718 Arch Street, Suite 501 South

Philadelphia, PA 19106

Nilam A. Sanghvi

PENNSYLVANIA INNOCENCE PROJECT

1515 Market Street, 3rd Floor

Philadelphia, PA 19102

Counsel for Appellant

Sara M. Cohbra [ARGUED]

Katherine E. Ernst

Samuel H. Ritterman

PHILADELPHIA COUNTY DISTRICT ATTORNEY’S OFFICE

3 S. Penn Square

Philadelphia, PA 19107

Counsel for Appellees

Ronald Eisenberg [ARGUED]

PENNSYLVANIA ATTORNEY GENERAL’S OFFICE

1600 Arch Street, Suite 300

Philadelphia, PA 19103

Susan E. Affronti

PENNSYLVANIA ATTORNEY GENERAL’S OFFICE

1000 Madison Avenue

Norristown, PA 19403

Counsel for Amicus Pennsylvania Attorney General’s Office

2

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

Comity is the backbone of federal habeas review. When

states prosecute and convict people, state courts play the pri-

mary role in enforcing federal law and correcting their own

mistakes. So federal habeas petitioners must overcome legal

hurdles that ensure that state courts take the first crack at resolv-

ing their claims.

Kevin Johnson tried to dodge some of these hurdles through

a “Settlement Agreement” for habeas relief. And the Philadel-

phia District Attorney’s Office tried to help Johnson do that by

waiving its non-jurisdictional defenses to his claims. These

maneuvers undercut Pennsylvania state courts’ duty to review

habeas relief independently, and the state Attorney General as

amicus opposed the waivers. In these exceptional circum-

stances, the District Court rightly chose to reject one of the

waivers. We likewise reject Johnson and the DA’s effort to

agree to a federal evidentiary hearing for facts that Johnson

should have developed in state court. And on the merits, the

District Court rightly rejected Johnson’s remaining claims. So

we will affirm its denial of his habeas petition.

I. THE MURDER CASE

A. A jury convicts Johnson of murdering Cowboy

This case stretches back almost four decades. In 1986, two

men shot and killed Lyndon “Cowboy” Morris, a drug dealer,

3

while he was selling drugs out of a southwest Philadelphia

rowhouse. Four people witnessed the crime. The first was

James Smith, who opened the door for the gunmen and brought

them upstairs to Cowboy’s room when they demanded to see

him. The others were Opal Nickson, Elisha Bennett, and Angelo

Smith. They were getting high in the next room over. They saw

one of the gunmen when he entered the doorway to that room,

pointed his pistol at them, and ordered them to get down on the

floor. Then they saw him run back out and shoot Cowboy.

Within twenty-four hours, all four witnesses had identified

Kevin Johnson. They picked his photo out of an array, identi-

fying him as the shooter with the pistol. James Smith, Nickson,

and Bennett had all seen Johnson before; all three positively

identified him. Only Angelo Smith, who said he did not think

he had ever seen the shooter before, expressed doubts. When

shown the photo array, he pointed to Johnson’s photo and said

it “looks like him[;] I am not positive.” JA 196.

The state charged Johnson with first-degree murder. At

trial, every eyewitness but Angelo Smith testified. Each posi-

tively identified Johnson in the courtroom as the shooter.

James Smith testified that he saw Johnson’s face twice: once

when he opened the front door and led Johnson upstairs, and

later when Johnson “came straight past” him on his way to

shoot Cowboy. JA 738. Elisha Bennett confirmed that he saw

Johnson’s face when Johnson stepped into the doorway of the

room he was in and pointed his gun at the group inside. Nick-

son testified that she also saw his face then. She emphasized

that she “remembered his face real good” because she “knew

him from [around] the neighborhood” where she grew up. JA

4

849. On the day of the shooting, she had even seen him driving

on her street.

For his part, Johnson claimed mistaken identity. He said

that night, he was selling clothing around Philadelphia with a

friend. Johnson’s lawyer tried but failed to find that friend.

Still, Johnson put on three other alibi witnesses. They all testi-

fied that they had seen him at some point that night. But no one

could place him far from the crime scene when the shooting

occurred. And when Johnson took the stand, he contradicted

his own alibi witnesses. The jury convicted him of first-degree

murder, the judge sentenced him to life in prison, and the Su-

perior Court affirmed his conviction and sentence.

B. Johnson collaterally attacks his conviction

Next, Johnson sought relief under the Post Conviction Re-

lief Act (PCRA), Pennsylvania’s statutory substitute for habeas

corpus. He claimed ineffective assistance of counsel. He also

claimed to have new evidence from James Smith, who in 2001

had recanted his identification and said police had forced him

to identify Johnson as the shooter. The PCRA court denied his

petition, but the Superior Court reversed and remanded for an

evidentiary hearing on ineffective assistance. After that hear-

ing, the state courts dismissed his petition and then affirmed

that dismissal. Then Johnson filed his first federal habeas peti-

tion, claiming ineffective assistance.

In 2014, more than a quarter century after the murder and

while the federal petition was pending, a defense investigator

interviewed all four eyewitnesses. In affidavits, three recanted.

James Smith reiterated a claim that he had made in 2001 that

police had coerced him to identify Johnson. Bennett and

5

Nickson accused police of doing the same to them. Nickson

added that she had told police “that Kevin [Johnson] looked a

little like the guy with the pistol but Kevin’s skin was much

lighter” and that she had told the prosecutor before testifying

“that the guy with the pistol had darker skin than Kevin.” JA

217. Angelo Smith, who did not testify at trial, did not claim

police coercion. Instead, he said he had shown up to Johnson’s

trial but was sent home when he told “either the DA or the po-

lice” that he could not identify Johnson. JA 221.

Based on this new evidence, Johnson amended his federal

petition to add Brady claims. He also filed a second PCRA

petition. But the state PCRA court dismissed that petition as

time barred, and the appellate court affirmed.

So Johnson returned to federal court, picking up his

amended federal habeas petition where he had left off. In 2019,

during discovery, the District Attorney found and turned over

Johnson’s arrest photos. The photos showed Johnson with a

thin mustache. By contrast, James and Angelo Smith had

described the shooter as “clean shave[n],” with “no mustache

or facial hair.” JA 192, 195. One photo also listed Johnson’s

height as 5’6”, though James Smith had described the shooter

as 6’1”. Based on these photos, Johnson filed a third PCRA

petition, as he could not pursue this claim on federal habeas

until a state court had first considered it. 28 U.S.C.

§ 2254(b)(1)(A).

C. Johnson and the DA try to “settle” for habeas relief

A month later, Johnson and the DA asked the federal Dis-

trict Court to approve a “Compromise and Settlement Agree-

ment for Habeas Relief.” JA 316. In that agreement, the DA

6

agreed not to oppose habeas relief and Johnson agreed to with-

draw the third PCRA petition based on the arrest photo. But the

parties knew that Johnson’s path to federal habeas relief was

blocked by his failure to exhaust state remedies and by his pro-

cedural defaults. If someone convicted in state court has not

exhausted his state-law remedies, then ordinarily, federal

courts cannot consider his habeas petition. 28 U.S.C.

§ 2254(b)(1)(A); Lines v. Larkins, 208 F.3d 153, 159–60 (3d

Cir. 2000). And if a state court decides that a petitioner’s path

through state court is blocked by a procedural bar (like a statute

of limitations), his claim is deemed procedurally defaulted.

Lines, 208 F.3d at 160. Federal courts cannot hear procedurally

defaulted claims “unless the petitioner establishes cause and

prejudice or a fundamental miscarriage of justice to excuse

[his] default.” Id. (internal quotation marks omitted).

These hurdles stood in Johnson’s way. Two of his Brady

claims (based on Angelo Smith’s inability to identify Johnson

in the courtroom and on Nickson’s recantation) are barred by

Pennsylvania’s statute of limitations and so were procedurally

defaulted in state court. (Johnson did not and does not press

Brady claims based on the other two recantations.) And the

third claim, based on the arrest photos, was never exhausted;

Johnson withdrew his third PCRA petition before the state

court could consider it. But failure to exhaust and procedural

default are merely defenses that the state may raise, not juris-

dictional bars. Granberry v. Greer, 481 U.S. 129, 131–32

(1987); Trent v. Cain, 522 U.S. 87, 89 (1997). So under the

“Settlement Agreement,” Johnson and the DA tried to bank-

shot Johnson’s habeas petition from state court to federal by

7

waiving all non-jurisdictional defenses, including procedural

default and exhaustion.

The District Court declined to automatically grant the ha-

beas petition per the Settlement Agreement. It concluded that

it “d[id] not possess unfettered discretion to order a state pris-

oner released without assuring itself that the petitioner’s claims

have merit.” JA 10–11. So it asked the parties to brief the effect

of the state’s waivers and whether Johnson was entitled to ha-

beas on the merits. And because “the proceeding was no longer

adversarial,” it invited the state Attorney General to express

her views as amicus curiae. JA 9.

The Attorney General objected that the waivers

“amount[ed] to forum-shopping”—an effort to force the fed-

eral court to address claims that should have been resolved in

state court in a bid to lower a sentence that a new DA disliked.

JA 390. She thus argued that the federal District Court had dis-

cretion to reject those waivers. And she contended that on the

merits, Johnson did not deserve habeas relief.

Agreeing that it had discretion to decline the waivers, the

District Court rejected the procedural-default waiver, though it

accepted the exhaustion one. And it concluded that neither of

the narrow exceptions to procedural default applied, so it did

not reach the merits of the Angelo Smith and Nickson Brady

claims. But, for the arrest-photos Brady claim, the court looked

past the failure to exhaust. Still, it rejected that claim on the

merits, holding that the photo would not have been material to

the verdict. The court also rejected Johnson’s ineffective-assis-

tance claims. It thus denied his petition.

Today, we resolve two questions:

8

1) Did the District Court have discretion to reject the pro-

cedural-default waivers? We answer yes.

2) Even if it did, did it properly deny habeas relief? Again,

we answer yes.

II. THE DISTRICT COURT PROPERLY REJECTED

THE DA’S PROCEDURAL-DEFAULT WAIVER

Johnson argues that the District Court had no discretion to

reject the DA’s knowing and intentional waiver of the procedural-

default bar. We see the force of that argument. The Supreme

Court has instructed that a court is “not at liberty … to bypass,

override, or excuse a State’s deliberate waiver of a [statute of]

limitations defense.” Wood v. Milyard, 566 U.S. 463, 466

(2012). So as a rule, courts may not “override” intentional waiv-

ers. Id. at 473–74 (internal quotation marks omitted); see also

United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023)

(“[W]e cannot reach waived arguments … .”). Three of our

sister circuits have held that, under Wood, courts must accept

procedural-default waivers. Maslonka v. Hoffner, 900 F.3d

269, 276–77 (6th Cir. 2018); Williams v. United States, 879 F.3d

244, 248 (7th Cir. 2018); McCormick v. Parker, 821 F.3d 1240,

1245 (10th Cir. 2016). That makes sense. “[P]rocedural default

… is not a jurisdictional matter” but an affirmative defense.

Trest, 522 U.S. at 89; see also Wood, 566 U.S. at 472. And we

typically expect parties to preserve these defenses if they want

to rely on them.

But we need not decide whether Wood extends to all ordi-

nary procedural-default waivers. Even if it does, the waivers

here were anything but ordinary. Indeed, Wood did not consider,

and had no occasion to consider, the type of waiver here.

9

Though Wood’s rule seems categorical, context tells us that it

has limits. This case shows us those limits.

In Wood, the state chose to waive its statute-of-limitations

defense because it thought it was “unclear” under existing law

whether the petition was timely. JA at 70a, Wood, 566 U.S. 463

(No. 10-9995). So it reasonably decided to “steer[ ] the District

Court away from” that tricky legal question and “towards the

merits of Wood’s petition,” where the parties and court would

better spend their efforts. Wood, 566 U.S. at 474. In other words,

the state made a garden-variety, case-specific, tactical waiver of

one argument to focus the litigation on its stronger claims.

The waiver here is far different. The DA waived procedural

default as part of a strategic agreement with Johnson. The strat-

egy was to: (1) circumvent state law, which would have blocked

Johnson’s bid for relief; and (2) gain access to what they hoped

would be a more favorable forum with a more favorable stand-

ard of review.

In essence, Johnson and the DA wanted a fast track to habeas

relief—one that would have granted Johnson habeas without

any substantive review of the merits of his claims. They tried to

do that through a private “Compromise and Settlement Agree-

ment” for habeas relief that they wanted a court to sign. But the

state court could not have gone along with such an agreement.

Under Pennsylvania law, state PCRA courts cannot rubber-

stamp settlement agreements for habeas relief. Commonwealth

v. Brown, 196 A.3d 130, 146 (Pa. 2018) (“A confession of error

by the Commonwealth … is insufficient for any grant of relief

under the PCRA.”). The PCRA mandates “judicial merits re-

view favorable to the petitioner before any relief may be

10

granted.” Id. So the state court would have rejected the agree-

ment unless it was backed by a favorable claim on the merits.

But Johnson’s underlying state claim was thin and had no good

chance at relief. The state court had already ruled that he was

blocked from presenting two of his Brady claims because they

were untimely. So he was left to bid for relief in state court

with only the third Brady claim, based on his arrest photos.

That would have been a risky gambit. If the state court consid-

ered and rejected it on the merits, any future federal habeas

court would have been required to review that decision very

deferentially under AEDPA.

Johnson tried to wriggle out of that bind. He removed the

third Brady claim from state court and then tried to slip all his

Brady claims in through a more favorable entrance—a back-

door to habeas relief. To do that, the DA and Johnson strategi-

cally packaged the procedural-default and exhaustion waivers

together with the settlement agreement. Here is how they built

that package: To ensure “that Johnson’s claims [we]re properly

before [the] Court,” “[a]s part of th[e] Agreement, Johnson …

withdr[ew] [his third PCRA] petition and … [the DA] waiv[ed]

the exhaustion defense” and the procedural-default defenses. JA

317 n.1, 320 ¶ 23. They then asked the District Court to go

along, granting the petition based on this private settlement

without any briefing on the merits of the habeas claims. See

App. 331 (terms of the proposed court order: “This Court shall

conditionally grant Petitioner’s Petition for Writ of Habeas Cor-

pus based upon the Parties’ agreement that the interests of jus-

tice so require.”). Though the strategy did not work perfectly, it

was still effective. Even though the District Court rejected the

waiver, it arguably still reviewed Johnson’s petition in a more

11

favorable posture than it would have absent the Settlement

Agreement: It reviewed the claims for cause and prejudice and

had no state findings to defer to.

Our dissenting colleague says we must defer to the parties’

wishes and approve their stratagem. But nothing in Wood com-

pels us to go so far. The Settlement Agreement is a narrow and

extraordinary circumstance that gives us two reasons to depart

from the usual waiver rule.

The first reason is comity. This stratagem would have under-

mined state law by overturning a conviction without giving the

state court the first crack simply because the current DA saw it

as unjust. But it would have done more too. It would also have

undermined the state court’s insistence that the executive branch

lacks the authority to unilaterally “reverse a jury’s verdict with-

out any judicial review.” Brown, 196 A.3d at 146 (emphasis re-

moved). Federal courts must scrutinize these moves; comity and

the state’s separation of powers demand it.

True, the DA is the litigating party here, not the Attorney

General. Though the Attorney General is the “chief law enforce-

ment officer of the Commonwealth,” local DAs have the author-

ity to enforce state law locally and typically do so as a matter of

practice. Pa. Const. art. IV, § 4.1; see 16 Pa. Cons. Stat. Ann.

§ 14302; Commonwealth v. Schab, 383 A.2d 819, 824 (Pa.

1978). Respect for comity usually means not “intru[ding] into

the state’s internal allocation of governmental authority.” Barrera

v. Young, 794 F.2d 1264, 1269 (7th Cir. 1986) (Easterbrook, J.).

But comity also means respecting state courts. This respect

is especially important on federal habeas review because state

courts play the leading role in protecting federal rights when

12

prosecuting and convicting people. See Coleman v. Thompson,

501 U.S. 722, 731 (1991). That is why we have doctrines like

procedural default and exhaustion in the first place. They ensure

that federal habeas courts rarely “upset a state court conviction

without an opportunity [for] the state courts to correct a consti-

tutional violation.” Rose v. Lundy, 455 U.S. 509, 518 (1982) (in-

ternal quotation marks omitted).

The Attorney General intervened as amicus and opposed the

procedural-default waiver on precisely these grounds. She did

so not because she disagreed with the DA’s litigating tactics, but

because he was using the waiver to get his settlement agreement

in front of a favorable forum with a more favorable standard of

review, making an “end run around the limits of [a federal]

[c]ourt’s jurisdiction.” Coleman, 501 U.S. at 730. Plus, she rea-

sonably worried that one voice in the plural state executive

branch was trying to use a federal court to bypass the state judi-

ciary’s limits on prosecutorial authority.

The District Court did not abuse its discretion by weighing

the views of the Attorney General, as amicus, against the DA’s.

When a DA asks a federal court to bless an extraordinary agree-

ment that the state judiciary would reject and that the state’s top

law-enforcement officer opposes, comity cuts the other way.

Comity does not require federal courts to accept the novel strat-

agem of a lone official, leaving federal courts powerless to re-

spect state rules and the limits of their own jurisdiction.

The second reason not to bless the waiver is the adversarial

process. Unlike the waiver in Wood, this one reflects a break-

down in the adversarial process, not an example of it. To be sure,

prosecutors must ensure that “justice shall be done,” which

13

sometimes means confessing error. Berger v. United States, 295

U.S. 78, 88 (1935); see also Model R. Pro. Conduct 3.8 (ABA

1983). So of course, prosecutors may properly confess error.

Still, courts cannot accept a prosecutor’s confession of error

at face value without “examin[ing] [it] independently.” Young

v. United States, 315 U.S. 257, 258–59 (1942). After all, our

criminal justice system is built on the notion that “[t]ruth … is

best discovered by powerful statements on both sides of the

question.” United States v. Cronic, 466 U.S. 648, 655 (1984)

(internal quotation marks omitted). Courts must determine the

truth and decide whether the facts and law demand relief.

This case does not involve a normal confession of error. The

DA’s office did not just confess error, making its office an

adversary to Johnson in name only. It also sought to evade ju-

dicial review of its own confession by waiving its defenses. In

other words, rather than set Johnson’s petition up for meaningful

review, it tried to clear his pathway to habeas relief through the

Settlement Agreement. Johnson’s case is one in a striking pat-

tern of state-court murder convictions that have been overturned

in recent years using similar stratagems. Since 2018, more than

100 convictions have been overturned via untested post-convic-

tion concessions from the Philadelphia DA. Attorney General’s

Amicus Brief in Support of Petitioners 14–30, Commonwealth v.

Brown, No. 32 EM 2023 (Pa. August 15, 2024) (collecting cases).

When prosecutors couple a confession of error with waiver

stratagems like this one, in the face of opposition from an ami-

cus that also represents the state’s interests (the Attorney Gen-

eral), courts have discretion to consider whether accepting the

DA’s tactics would undermine their core reviewing function.

14

To be sure, the District Court had to give “the parties fair

notice and an opportunity to present their positions” before reject-

ing the waiver. Day v. McDonough, 547 U.S. 198, 210 (2006).

But that happened here. In its amicus brief, the Attorney General

asked the District Court to reject the waivers. Both Johnson and

the DA then filed reply briefs arguing that the District Court should

accept them. So the parties had enough of a chance to advocate for

their positions before the District Court made its decision.

*****

Federal courts weighing split comity interests in this non-

adversarial context must prudently reason through these tricky

issues. And a district court has plenty of discretion to reject the

waiver when a DA uses it to skirt unfavorable state law, despite

the state Attorney General’s view that an adversarial posture is

appropriate. To be sure, we expect that Wood’s default rule will

almost always control. But Wood does not stretch far enough to

cover extraordinary facts like these.

III. ON THE EXISTING RECORD, JOHNSON CANNOT

OTHERWISE OVERCOME THE DEFAULT

OF HIS TWO BRADY CLAIMS

Without the procedural-default waivers, Johnson had only

two narrow paths to get the District Court to hear his defaulted

Brady claims. First, he could show “cause and prejudice” (that

is, that he had good cause for the procedural default and had

suffered prejudice from the alleged violation of federal law).

Coleman, 501 U.S. at 750. Or second, he could show that barring

his petition would create a “fundamental miscarriage of justice.”

Id. As the District Court found, Johnson has shown neither.

15

A. Johnson does not have enough to show cause and

prejudice through Brady

First, Johnson seeks to prove cause and prejudice through

his claims under Brady v. Maryland, 373 U.S. 83, 87 (1963).

To succeed on a Brady claim, he must show that the prosecu-

tion (1) failed to disclose evidence that it had in its files that

was (2) material and (3) favorable to him. Johnson v. Folino,

705 F.3d 117, 128 (3d Cir. 2013). When a petitioner proves

those first two elements (suppression and materiality), he has

shown cause and prejudice, and the procedural default will not

bar review of his claims. Banks v. Dretke, 540 U.S. 668, 691

(2004). (If Johnson could not timely challenge his conviction

because the state was suppressing evidence, that amounts to

cause. Id. And if that evidence was material, the violation prej-

udiced him. Id.) When the District Court evaluated Johnson’s

two Brady claims, it found neither one material and so con-

cluded that, on the existing record, Johnson could not prove

prejudice to overcome the default.

Because the District Court did not hold an evidentiary hear-

ing, we review de novo, viewing all facts in the light most

favorable to Johnson. Mathias v. Superintendent Frackville

SCI, 876 F.3d 462, 475 (3d Cir. 2017); Roman v. DiGuglielmo,

675 F.3d 204, 208 (3d Cir. 2012). If Johnson has stated “a cog-

nizable claim for habeas relief,” we must “then determine

whether an evidentiary hearing is necessary to develop the

facts before us.” Roman, 675 F.3d at 208.

We agree with the District Court that Johnson does not have

enough on the existing record to show cause and prejudice

through Brady. But we rest on Brady’s suppression

16

requirement. The District Court assumed that Johnson had

proven suppression “if [Nickson and Smith’s statements] are

to be believed.” App. 26, 29. Our dissenting colleague likewise

assumes that Johnson has proven suppression without citation

or explanation. Dissent at 34. But to succeed on a Brady claim,

a defendant has the burden of showing that the evidence in

question meets Brady’s three elements, including that the state

had the evidence yet failed to turn it over. Dennis v. Sec’y, Pa.

Dep’t of Corr., 834 F.3d 263, 284 (3d Cir. 2016) (en banc); see

also United States v. Walter, 870 F.3d 622, 629 (7th Cir. 2017)

(placing the burden on defendants to prove all three elements);

Gillard v. Mitchell, 445 F.3d 883, 894 (6th Cir. 2006) (same).

We have yet to clarify how a defendant carries this burden

where, like here, the parties dispute whether the prosecution

even had the evidence and the record is unclear. See Slutzker v.

Johnson, 393 F.3d 373, 386 n.13 (3d Cir. 2004).

Today, we hold that the habeas petitioner bears the burden

of producing credible evidence that raises a reasonable infer-

ence that the prosecution possessed the alleged Brady material

yet failed to turn it over. It is the petitioner’s burden to prove

that the prosecution violated his due-process rights, entitling

him to a new trial. And he should not be able to make an end-

run around that obligation by claiming, without enough proof,

that the prosecution had relevant evidence and failed to dis-

close it. This is especially so here, where the state would have

to prove a negative: that it satisfied its duty to turn over evidence

that the Attorney General argues never existed in the first place.

With this principle in mind, we conclude that Johnson does

not have enough on the existing record to carry his burden of

producing credible evidence that the DA had both Angelo

17

Smith’s and Nickson’s statements yet failed to turn them over.

True, he presents affidavits in which Smith and Nickson

claimed that they had told the prosecution key details about the

shooter’s appearance that the prosecution never turned over to

Johnson. Yet a witness must do more than just accuse the pros-

ecution of having this evidence. Cf. Clay v. Bowersox, 367 F.3d

993, 1002 (8th Cir. 2004) (finding no suppression when three

witnesses claimed that they had told a police officer something,

but there was no record that they had done so or other evidence

supporting their claims).

The District Court rightly discounted these affidavits as rid-

dled with credibility and reliability problems. “Courts have his-

torically viewed recantation testimony with great suspicion.”

Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988). And for

good reason. That testimony “upsets society’s interest in the

finality of convictions, is very often unreliable and given for

suspect motives, and most often serves merely to impeach cu-

mulative evidence rather than to undermine confidence in the

accuracy of the conviction.” Dobbert v. Wainwright, 468 U.S.

1231, 1233–34 (1984) (Brennan, J., dissenting from denial of

stay). Witnesses may be pressured by the defendant’s friends

and family into recanting; years after the crime, it is hard to

know. Even so, we do not and should not reject recantation

evidence as categorically unreliable. See Howell v. Superinten-

dent Albion SCI, 978 F.3d 54, 60 (3d Cir. 2020). These con-

cerns mean only that we must evaluate it with a careful eye.

And here, the recantations are belated, inconsistent, and con-

fused. So they are not enough to carry Johnson’s burden of

proof on suppression.

18

1. Angelo Smith’s affidavits are not sufficiently credible ev-

idence that he actually told police that he could not identify

Johnson. Start with Angelo Smith’s two affidavits claiming

that prosecutors told him not to testify at trial because he did

not recognize Johnson. He later said, “I did not read [the first

affidavit], I just signed it” because “I was tired and didn’t want

to read it, I just wanted the [defense investigator] out of there.”

JA 357. Worse still, he said that he did not even see the second

affidavit. The investigator asked him to “sign a blank piece of

paper and I did. I just wanted them to leave.” Id.

To be sure, we must draw reasonable inferences in favor of

Johnson. And it matters that in a 2016 interview with homicide

detectives, Angelo Smith affirmed the affidavits’ core story.

Still, that statement was unsworn and not subjected to adver-

sarial testing—“[t]he commonly accepted method to determine

whether a witness is telling the truth.” Clark v. Warden, 934

F.3d 483, 493 (6th Cir. 2019).

Johnson claims that other evidence corroborates Angelo

Smith’s statements, but it does not. The state paid Smith for

two unspecified days to attend proceedings as a witness in

Johnson’s trial itself. But the record shows only that he showed

up to one day of proceedings, the suppression hearing. Johnson

reads this evidence as proof that Smith showed up to the first

day of trial and left, suggesting that the government sent him

home early because he could not identify Johnson. Yet the sec-

ond day’s payment may have been for the preliminary hearing;

Smith may have attended it and confused it with the trial. Noth-

ing in the record tells us which version is right. What is more,

other evidence casts doubt on Smith’s testimony. When he did

not show up to trial, the prosecution asked for a bench warrant

19

to compel his testimony—a strange move if the prosecution

had sent him home.

Thus, there is not enough credible evidence in the record to

raise a reasonable inference that the prosecution had Angelo

Smith’s alleged statement (made right before testifying) that he

could not identify Johnson. To supplement this record, Johnson

would have to subject Smith’s claim to adversarial testing at an

evidentiary hearing. See Howell, 978 F.3d at 58, 60, 62 (grant-

ing an evidentiary hearing to confirm witnesses’ affidavits re-

canting their trial testimony). But as we explain below, John-

son does not qualify for an evidentiary hearing.

2. Nickson’s affidavit is not sufficiently credible evidence

that she told police that Johnson was not the shooter. Nick-

son’s affidavit, also from 2014, is even shakier. She said she

told police in her first interview that Johnson’s skin was too

light to be the shooter and that she had “identified Kevin John-

son as the guy who pointed the pistol at us, though I knew it

wasn’t him.” JA 217. But her 2014 recantation directly contra-

dicts her later statement to homicide investigators: When asked

in 2016 if she was “absolutely sure” that it was Johnson who

had held her at gunpoint, she said, “Yes.” JA 305. And at a

2019 deposition, she could not explain these inconsistencies.

She said that she did not remember her 2016 statement to police.

Plus, she said that she did not remember either signing the 2014

affidavit or claiming that she had falsely testified at Johnson’s

trial; she only remembered that the defense investigator who

secured the affidavit was harassing her.

True, at that 2019 deposition, Nickson did repeat her 2014

claim that Johnson’s skin color was lighter than the shooter’s.

20

Yet even viewing this evidence in the light most favorable to

Johnson, it is hard to overlook the inconsistency of these state-

ments. Nickson stressed that she “can’t remember things

clearly” (perhaps because of the stroke that she had previously

suffered). JA 235. And her own statements bore that out. For

instance, she said she had told prosecutors before Johnson’s

trial that his skin was too light. But a little later, she said she

had realized that Johnson was not the shooter because of his

skin color only after she saw him in person and testified,

though she never told anyone about this realization. Given

these inconsistencies and unreliability, Johnson has not put

enough credible proof into the record that Nickson in fact told

the police about Johnson’s complexion.

Because Johnson does not currently have credible evidence

supporting a reasonable inference that the prosecution pos-

sessed either Angelo Smith’s or Nickson’s statement yet failed

to turn it over, he cannot show cause to overcome his proce-

dural default of these two claims. To be clear, we do not sug-

gest that these claims would not warrant relief if they were

proven credible through adversarial testing. We pass no judg-

ment on their underlying merit. Rather, we hold that on the

existing record, Johnson does not have enough credible evi-

dence to raise the reasonable inference that the state violated

Brady by suppressing these statements.

B. Johnson cannot show cause and prejudice through

ineffective assistance

Johnson says he can still prove cause and prejudice because

his state PCRA lawyer was ineffective. But he cannot. Ineffec-

tive assistance of state habeas counsel can count as cause to

21

excuse a procedural default of a claim that trial counsel was

ineffective. Martinez v. Ryan, 566 U.S. 1, 9 (2012). Yet this

equitable exception to procedural defaults is narrow, and the

Supreme Court has never extended it beyond ineffectiveness

of trial counsel. Id. at 10; Davila v. Davis, 582 U.S. 521, 525

(2017) (rejecting extension to ineffectiveness of appellate

counsel). We join the Ninth Circuit in declining to extend Mar-

tinez’s exception to reach post-conviction counsel’s failure to

preserve Brady claims. Hunton v. Sinclair, 732 F.3d 1124,

1126 (9th Cir. 2013).

C. Johnson has not shown a miscarriage of justice

Finally, Johnson says he can still overcome the default

because his Brady claims, taken together, show that he is actu-

ally innocent. Johnson points to his alibi evidence, Nickson’s

and Angelo Smith’s recantations, the arrest photos showing

him with a mustache and standing 5’6”, and the lack of physi-

cal evidence connecting him to the crime.

Actual innocence brings a petitioner within the narrow set

of cases that show a “miscarriage of justice.” Schlup v. Delo,

513 U.S. 298, 324 (1995). But the bar is high. An actual-

innocence claim can be a key to the procedural-default gate

only if a petitioner can (1) present “new reliable evidence” that

(2) persuades a court that “more likely than not … no reasona-

ble juror would have convicted” him. Schlup, 513 U.S. at 324;

McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013) (quoting

Schlup, 513 U.S. at 329). Multiple credible recantations may

be enough to show actual innocence—but only if they are

“trustworthy.” Schlup, 513 U.S. at 324; Howell, 978 F.3d at 60–

22

61. But these eyewitness accounts do not clear that bar. They are

inconsistent and, as discussed above, their credibility is dubious.

After subtracting Nickson’s and Angelo Smith’s affidavits,

the District Court found that the arrest photos alone did not

show that it was “more likely than not that no reasonable juror

would have convicted” Johnson. McQuiggin, 569 U.S. at 395

(quoting Schlup, 513 U.S. at 329). We agree. As we explain

below, the photos on their own do not undermine our confi-

dence in the verdict. So there is no miscarriage of justice that

would warrant unlocking and lifting the procedural-default gate.

IV. JOHNSON DOES NOT GET AN EVIDENTIARY HEARING

As a fallback, Johnson and the DA argue that he should at

least get an evidentiary hearing to develop his Brady claims

based on Nickson’s and Angelo Smith’s recantations. That

argument fails too.

A. 28 U.S.C. § 2254(e)(2) bars an evidentiary hearing

A state prisoner is supposed to develop the facts in state

court before seeking federal habeas. So a federal court usually

cannot hold an evidentiary hearing if the petitioner did not first

diligently “develop the factual basis of [his] claim in State

court proceedings.” 28 U.S.C. § 2254(e)(2) (opening clause);

Michael Williams v. Taylor, 529 U.S. 420, 432 (2000). That

means a federal habeas petitioner must first show that he “made

a reasonable attempt, in light of the information available at the

time, to investigate and pursue [the] claims in state court.”

Michael Williams, 529 U.S. at 435.

Whether a petitioner was diligent in this way turns on the

facts and on the federal legal standard for diligence. Boyle v.

23

McKune, 544 F.3d 1132, 1136 (10th Cir. 2008); Wilson v.

Beard, 426 F.3d 653, 660 (3d Cir. 2005). The District Court

made no factual finding on diligence. Ordinarily, we might

remand to let it do so. But we have the same factual record that

it did, and this case has already gone on for decades, so we will

analyze whether Johnson was diligent ourselves. See Shinn v.

Ramirez, 596 U.S. 366, 390 (2022) (“[A] federal habeas court

may never needlessly prolong a habeas case.” (internal quota-

tion marks omitted)).

On this record, Johnson is at fault. He did not diligently

develop the recantation Brady claims in state court. True, he

asked for an evidentiary hearing on these claims in his 2016

counseled PCRA petition. Sometimes, that can be enough. See

Michael Williams, 529 U.S. at 437. But “diligence is context

specific.” Wilson, 426 F.3d at 661. In this context, Johnson’s

requests came much too late.

The key facts were reasonably available to Johnson for

more than a decade before he tried to develop them. The PCRA

court found that Johnson had learned in 2001 that James Smith

had recanted his statement and alleged that police had coerced

him to identify Johnson. We presume that finding was correct.

§ 2254(e)(1). This knowledge should have alerted Johnson in

2001 that the other three eyewitnesses might have information

relevant to a Brady claim. And in a different context, Johnson

argued just that when he said his PCRA counsel had been in-

effective. Yet he made no effort to investigate these potential

claims until thirteen years later, when a defense investigator

interviewed the other eyewitnesses.

24

Still, Johnson says habeas petitioners raising Brady claims

need not show diligence. But that response conflates a pris-

oner’s obligation to be diligent at trial with his obligation on

habeas. At trial, Brady obligates prosecutors to disclose Brady

material that they possess. See United States v. Bagley, 473

U.S. 667, 682 (1985). So defendants need not seek out Brady

material diligently; they may assume that prosecutors fulfilled

their duties. Dennis, 834 F.3d at 290.

Once a prisoner collaterally attacks his conviction, new

requirements kick in. He must pursue his claims diligently,

lest § 2254(e)(2) hold him at fault for failing to develop a suf-

ficient habeas record in state court. Of course, he need not go

hunting for Brady material if he “has no reasonable basis in

fact to be aware of” it. Bracey v. Superintendent Rockview SCI,

986 F.3d 274, 294 (3d Cir. 2021) (internal quotation marks

omitted). He may presume, “absent evidence to the contrary,

… that there is no Brady violation to be discovered.” Id. at 291

(explaining Dennis). Yet once he has a “reasonable basis … to

believe” that Brady material may be out there, he “must inves-

tigate.” Id. at 294. Otherwise, his lack of diligence will bar his

federal habeas petition. Id. That bar applies here. Johnson was

on notice yet waited thirteen years to investigate these Brady

claims. Because he “failed to develop the factual basis of [this]

claim” within the meaning of § 2254(e)(2), he cannot get a fed-

eral evidentiary hearing.

To be sure, § 2254(e)(2) has its exceptions. Even if a peti-

tioner failed to diligently develop the record in state court, he

can still get a hearing if he can show that his claim relies on a

“factual predicate that could not have been previously discov-

ered through the exercise of due diligence.”

25

§ 2254(e)(2)(A)(ii). But Johnson has not shown that the predi-

cate of his claim was inherently undiscoverable while he was

litigating his claims in state habeas court. He makes no credible

argument that he could not have interviewed Nickson and An-

gelo Smith once he learned of James Smith’s recantation in

2001. So § 2254(e)(2)(a)(ii)’s exception does not apply here.

Our dissenting colleague, for her part, protests that we raise

§ 2254(e)(2)’s bar sua sponte. Dissent at 30. Not so. In briefing

before us, the DA acknowledged that Johnson would need to

clear § 2254(e)(2)’s bar to get an evidentiary hearing.

Because Johnson cannot meet that bar or its exceptions, we

must therefore limit our review of Johnson’s claims to the state

court record. But as we concluded above, Johnson does not

have enough evidence on the existing record to prove suppres-

sion, as he must to give him relief on these claims.

B. Though § 2254(e)(2)’s requirements are waivable, we

reject the DA’s waiver

To get around this bar, Johnson argues that it is waivable.

The DA forfeited the § 2254(e)(2) argument by never mention-

ing it below. Now he tries to affirmatively waive that bar on

appeal. But we reject that waiver.

True enough, § 2254(e)(2)’s requirements are not jurisdic-

tional. See Stokes v. Stirling, 64 F.4th 131, 139–40 (4th Cir.

2023); see also Shinn, 596 U.S. at 375 n.1 (exercising discre-

tion to forgive the state’s forfeiture of § 2254(e)(2) without sug-

gesting that its bar is jurisdictional). Ordinarily, the state may

forfeit or waive this non-jurisdictional defense like any other.

26

All the same, we reject the DA’s attempt to waive

§ 2254(e)(2) here for the exact same reasons that we rejected

the procedural-default waiver. As with the procedural-default

waiver, the same comity and adversarial-process concerns are

at stake. Like the procedural-default doctrine, § 2254(e)(2)’s

bar on letting non-diligent petitioners use federal habeas to

develop new evidence promotes comity and finality and pro-

tects federalism. Shinn, 596 U.S. at 382. It ensures that federal

courts do not displace state courts as the primary fora for adju-

dicating state claims. Plus, it prevents petitioners from manip-

ulating the federal habeas process by trying to build a factual

record in federal court after failing to do so in the proper forum:

state court. So as with the procedural-default waiver, we con-

clude that we may reject the waiver given the exceptional facts

of this case, and we exercise that discretion here. For the same

reasons, we choose to exercise our discretion to overlook the

DA’s initial forfeiture of § 2254(e)(2)’s bar in the District

Court. See Shinn, 596 U.S. at 375 n.1.

To be sure, federalism will often favor deferring to the

state’s choice not to enforce § 2254(e)(2)’s requirements—but

not here, where the DA has tried to thwart the state’s proce-

dural bars to give Johnson a preferred sentence outside the or-

dinary collateral-review process. We cannot sit as “an alterna-

tive forum for trying facts and issues which a prisoner made

insufficient effort to pursue in state proceedings” just because

he and the DA tried to settle their way into federal court. Michael

Williams, 529 U.S. at 437.

What is more, applying § 2254(e)(2)’s bar is just. Johnson

makes no credible claim of innocence. His and his alibi wit-

nesses’ stories conflicted so badly that they were unbelievable.

27

As the District Court found, Angelo Smith’s and Nickson’s

recantations are unreliable too. Nickson is now dead, so there

is no way to probe her belated recantation at a hearing. And the

DA does not even claim that Johnson is innocent. So for the

same reasons that the District Court properly rejected the pro-

cedural-default waiver, we reject the parties’ attempt to waive

§ 2254(e)(2)’s bar. Johnson should have started pursuing those

claims twenty-four years ago. It is too late now.

V. JOHNSON’S OTHER BRADY CLAIM FAILS

Without the Angelo Smith and Nickson claims, Johnson

has only one Brady claim left: the arrest photos. But rather than

exhaust it, Johnson withdrew his third PCRA petition before

the state court could consider it.

Ordinarily, Johnson’s failure to exhaust this claim would

bar it. § 2254(b)(1)(A). But under § 2254(b)(3), a state can

waive exhaustion through counsel. Orie v. Sec’y Pa. Dep’t of

Corr., 940 F.3d 845, 854 (3d Cir. 2019). These statutory roots

give the exhaustion waiver a firmer footing than the procedural-

default one. So the District Court properly accepted the exhaus-

tion waiver, and we decide this claim on the merits.

Still, this claim fails. The arrest photos are immaterial because

we see no “reasonable probability” that they would have led to

an acquittal or lower sentence. Bagley, 473 U.S. at 682. In

analyzing the potential prejudice caused by non-disclosure of

the photos, we must consider the effect of all “wrongfully with-

held evidence,” “whether or not that evidence is before the

Court in the form of an independent claim for relief.” Wearry

v. Cain, 577 U.S. 385, 394 (2016); Glossip v. Oklahoma, 145

S. Ct. 612, 629 (2025). This is because, for Brady materiality,

28

we must add up all the evidence that the government possessed

yet failed to turn over. Folino, 705 F.3d at 129. But as we already

concluded, Johnson failed to prove that the state did not dis-

close Nickson and Angelo Smith’s alleged recantations. So we

look only to the effect that non-disclosure of the photos had on

Johnson’s trial. We see no prejudice.

True, the photos show Johnson with a thin mustache two

days after the shooting, even though James and Angelo Smith

described the shooter as clean-shaven. They also show that

Johnson was 5’6”, while James Smith described the shooter as

6’1”. Johnson could have used this evidence at trial to impeach

James Smith’s identification. Yet the supposedly impeaching

arrest photos look just like the two photos of Johnson in the

photo arrays—the one that all four eyewitnesses identified as

the shooter. In both sets of photos, Johnson’s mustache is visi-

ble head-on but hard to see from the side. See for yourself:

Photo-Array Photos Arrest Photos

That may explain how James and Angelo Smith missed it—

particularly since Angelo saw only the side of Johnson’s face

as he stood halfway in the bedroom doorway, at an angle, and

29

just briefly before the lights went out. Indeed, the photos cor-

roborate that right after the crime, Johnson looked just like the

photos that the eyewitnesses picked out of the photo array.

James and Angelo Smith’s failure to mention a thin, easy-to-

miss mustache carries little weight. What matters is that, even

with the mustache, both identified him as the shooter.

The photo’s mention of Johnson’s height also carries little

weight—which is perhaps why Johnson barely mentions it on

appeal. Defense counsel pressed the height point at trial by ask-

ing Johnson about his height when he took the stand. So the

arrest photos would have only been “cumulative of other evi-

dence” proving Johnson’s height at the time of the murder.

Folino, 705 F.3d at 129.

Plus, “[t]he materiality of Brady material depends almost

entirely on the value of the evidence relative to the other evi-

dence mustered by the state.” Folino, 705 F.3d at 129 (internal

quotation marks omitted). Angelo Smith did not testify, so

there was no need to impeach him by emphasizing the disparity

between his description and the photos. And as the only wit-

ness who was unfamiliar with Johnson, his weaker recollection

matters less. As for James Smith, Nickson “strongly corrobo-

rated” his identification. Id. She testified that she knew it was

Johnson because she “remembered his face real good” from the

neighborhood and had seen him earlier that day. JA 849. Ben-

nett, who had also seen Johnson before, corroborated Nickson

and James Smith’s identifications too. In other words, the pho-

tos would have mildly impeached only one of the three eyewit-

nesses at trial, and all three positively identified Johnson both

right after the crime and at trial. What is more, when testifying,

Johnson contradicted his own alibi witnesses; they could not

30

agree on where he was shortly after the shooting. Thus, the ar-

rest photos do not by themselves undermine our confidence in

the verdict. The failure to disclose them did not violate Brady.

VI. JOHNSON’S REMAINING CLAIMS ALSO FALL SHORT

A. Johnson’s ineffective-assistance claims fail

In addition, Johnson brings two ineffective-assistance-of-

counsel claims. Neither succeeds.

1. Johnson’s meaningful-consultation argument fails. First,

he says his trial lawyer failed to consult him meaningfully

before trial. Because the PCRA court already considered and

rejected this claim on the merits, we review very deferentially.

Commonwealth v. Johnson, 51 A.3d 237, 243–44 (Pa. Super.

Ct. 2012) (en banc). Johnson does not contest any of the state

court’s factual findings. So we presume that they are right and

can grant review only if that court’s decision “was contrary to,

or involved an unreasonable application of, clearly established

Federal law.” § 2254(d)(1), (e)(1).

The state court applied the right federal law and did so rea-

sonably. It found that Johnson’s lawyer did not fail to consult

him: The lawyer saw Johnson twice in person and spoke with

him once by phone. Johnson, 51 A.3d at 245. And it concluded

that these meetings were enough because the lawyer learned

enough from them to put on a defense: He learned of five wit-

nesses whom he was able to put on the stand at trial and of a

sixth whom he tried to track down. Id. at 243–44. That holding

applied Strickland accurately and reasonably. See id. at 243–44

(applying Pennsylvania’s formulation of Strickland v. Wash-

ington, 466 U.S. 668, 687–91 (1984)); see also Williams v.

31

Superintendent Greene SCI, 112 F.4th 155, 167 n.7 (3d Cir.

2024) (recognizing that Pennsylvania’s formulation is not con-

trary to Strickland). Under Strickland, courts’ “scrutiny of

counsel’s performance must be highly deferential.” 466 U.S. at

689. Strickland sets no constitutional floor on how long a law-

yer must spend with his client. And the record shows that John-

son’s lawyer met with him enough to put on a competent defense

based on the information that Johnson gave him.

The state court also rejected Johnson’s claim that he was

effectively denied counsel altogether. Johnson, 51 A.3d at 245

(applying Cronic, 466 U.S. at 659–61). That holding was rea-

sonable. As the court explained, Johnson’s lawyer met with

him enough to put on a defense, vigorously defended him at

trial, and defeated the death penalty. His lawyer moved to sup-

press the eyewitnesses’ initial identifications to the police, put

on witnesses, cross-examined the prosecution’s witnesses, and

moved for a mistrial. Those actions amounted to meaningful

adversarial testing, not a complete denial of counsel. Id. So this

ineffective-assistance claim fails as well.

2. Johnson’s ineffective-pretrial-investigation argument

also fails. Next, he argues that his trial lawyer should have

interviewed Angelo Smith and gotten Johnson’s arrest photos.

Johnson never presented this claim to the state court. But the

DA waived its exhaustion defense. Orie, 940 F.3d at 854. So

we consider it on the merits, reviewing it de novo. Wilson v.

Beard, 589 F.3d 651, 658 (3d Cir. 2009).

Even so, this claim fails as well because there was no prej-

udice. Strickland borrowed its prejudice standard from Brady’s

materiality standard. 466 U.S. at 694 (“[T]he appropriate test

32

for prejudice finds its roots in the test for materiality of excul-

patory information not disclosed to the defense by the prose-

cution ….”). Under Strickland, we ask whether the lawyer’s

deficient performance is “sufficient to undermine confidence

in the outcome,” “consider[ing] the totality of the evidence be-

fore the … jury,” including the exculpatory and impeaching

evidence. Id. at 694–95; see also United States v. Gray, 878

F.2d 702, 713 (3d Cir. 1989). It is not. Even if Johnson’s law-

yer had gotten Angelo Smith’s statement and the arrest photos,

that would not have “put the whole case in such a different light

as to undermine confidence in the verdict,” given “the strength

of the evidence against” Johnson. Kyles, 514 U.S. at 435; Buehl

v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999).

Angelo Smith’s failure to identify Johnson would not have

mattered. Three eyewitnesses identified Johnson at trial as the

shooter: Nickson, Bennett, and James Smith. Unlike those

three, Angelo Smith had never seen Johnson before. Plus, Angelo

Smith’s testimony would not have been that exculpatory. It is

not as if he would have said that the shooter was someone else.

And he never testified at trial, so there was nothing to impeach.

Nor would the arrest photos have moved the needle. As ex-

plained above, the three eyewitness identifications were

strong: Nickson, Bennett, and James Smith strongly corrobo-

rated one another, and James Smith’s initial identification from

the photo array (containing the mustache) corroborated his

identification at trial. The mustache was thin and not obvious

from an angle. The photo’s evidence of Johnson’s height was

merely cumulative. And Johnson’s alibi contradicted those of

his own alibi witnesses. We see no reasonable probability that

33

interviewing Angelo Smith and getting the arrest photos would

have made a difference.

B. Johnson’s cumulative-prejudice claim fails too

Finally, Johnson brings a cumulative-error claim. He asks

us to add up the two recantation claims, the arrest-photo claim,

and the ineffective-assistance-of-counsel claims. That is a

“standalone constitutional claim subject to exhaustion.” Col-

lins v. Sec’y, Pa. Dep’t of Corr., 742 F.3d 528, 541 (3d Cir.

2014). Though Johnson never exhausted this claim, we can

consider it because we accept the state’s waiver of exhaustion.

Sometimes, “errors that individually do not warrant habeas

relief may do so when combined,” but they do not here. Al-

brecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007). We add up

errors, not claims. See id. As noted, Johnson failed to prove

that the state possessed Nickson’s and Angelo Smith’s recan-

tations or that his lawyer failed to consult him enough. Those

were not shown to be errors. So at most, we would add up the

arrest-photos Brady claim and the failure-to-investigate

Strickland claim (assuming that the lawyer’s performance was

deficient). Yet as just explained, putting Angelo Smith on the

witness stand and showing the jury Johnson’s arrest photos

would not have mattered. Even taken together, these two

claims are not enough.

*****

Johnson and the Philadelphia DA tried to short-circuit

state-court review by asking the federal District Court to bless

a “Settlement Agreement” based on underdeveloped and un-

proven claims. The District Court wisely rejected that

34

stratagem and reasonably rejected the DA’s procedural-default

waiver. And it rightly held that Johnson’s non-defaulted Brady

and ineffective-assistance-of-counsel claims did not stand up

to scrutiny. So we will affirm the denial of his habeas petition.

35

ROTH, Circuit Judge, dissenting.

This habeas appeal deals with the gatekeeping function

of federal courts when a state official has waived

nonjurisdictional threshold barriers to relief. After spending

decades challenging his first-degree murder conviction, which

rests solely on since-recanted eyewitness identifications, Kevin

Johnson brought several constitutional claims before the

District Court. The Philadelphia District Attorney deliberately

waived all nonjurisdictional threshold bars to habeas relief so

that Johnson could have a full and fair opportunity to be heard

on his two most compelling claims—his cumulative-Brady

claim and his cumulative-error claim. The District Court

accepted some of the District Attorney’s waivers but overrode

the procedural-default waivers on federal-state comity

grounds. However, comity requires that federal courts respect

the state’s processes and not interfere with its internal

allocation of governmental power. In this regard, Pennsylvania

authorizes local district attorneys to represent the

Commonwealth in federal habeas actions.

The Supreme Court has held that federal courts have no

discretion to reject a state’s deliberate valid waiver of

nonjurisdictional threshold barriers to habeas relief. For this

reason, the District Court had no power to override the District

Attorney’s valid waivers. Thus, I believe that we should

reverse the denial of Johnson’s habeas petition. Moreover,

since the Commonwealth has forfeited 28 U.S.C. §

2254(e)(2)’s bar, I would remand this case to the District Court

to hold an evidentiary hearing on the surviving claims.

1

I.

On October 8, 1996, at around 10:19 p.m., Lyndon

“Cowboy” Morris, a known cocaine-dealer, was robbed and

shot to death inside a Southwest Philadelphia rowhome owned

by Opal Nickson. Morris used runners to take money from his

customers at the front door, bring the money upstairs, pass it to

him through a small hole in his bedroom door, and then bring

cocaine downstairs to the customers. One of those runners,

James Smith (James), was present at the time of the shooting.

Nickson and two of her friends, Angelo Smith (Angelo) and

Elisha Bennett, were also present,1 smoking crack cocaine and

marijuana with James in the rear bedroom on the second floor

across from Morris’s room.2

Shortly before the shooting occurred, there was a knock

at the front door. The knocker said it was “Keith,” Opal

Nickson’s brother, so James opened the door.3 Instead, he was

confronted by two men, one armed with a sawed-off double-

barrel shotgun and the other with a pistol. They directed him,

at gunpoint, to take them upstairs to Morris’s room.

Once they got up there, the man with the pistol went to

the rear bedroom where Angelo, Bennett, and Nickson were

getting high and eating Chinese food. The lights in the upstairs

1

The Smiths, James and Angelo, are not related. Bennett’s

first name is often misspelled as “Elijah” throughout the

record.

2

A police sketch shows that the two bedrooms were

approximately twenty-four (24) feet apart.

3

Joint Appendix (J.A.) 697, J. Smith Trial Test. (Jan. 27,

1988).

2

hallway were off, and the rear bedroom was lit with only one

lamp. The man remained “half hidden in the doorway.”4

Angelo and Bennett were sitting side by side on the bed,

with Angelo closer to the doorway, when the man pointed the

gun at them. He did not see Nickson initially, because she was

standing behind a dresser that was taller than her and

positioned between her and the doorway. Angelo and Bennett

stared at the gun, thinking the man was playing around. When

he told them he was not, Nickson peeked around the dresser

and caught a glimpse of him before “looking at that gun.”5

Angelo, meanwhile, turned over and lay face down on the bed,

and Bennett “immediately” got underneath it.6 As they did

that, the man pointed the gun “straight” at Nickson’s face and

told her to lie down.7 Staring at the gun, she immediately got

down on the floor, and in the process, accidentally unplugged

the only lamp when her foot got caught in the extension cord—

causing the room to go “pitch black” and turning off the lights

on the entire second floor of the house.8 “Seconds” later they

heard someone kicking on Morris’s door, followed by

gunshots.9

While the man with the pistol was checking the

backroom, the other man had kept his shotgun pointed at

James’s back and told him to get Morris to open the door.

James knocked on it, and then the man kicked it. Morris

4

J.A. 206, Bennett Police Interview Statement (Oct. 9, 1986).

5

J.A. 209, Nickson Police Interview Statement (Oct. 9, 1986).

6

J.A. 1140, Bennett Trial Test. (Jan. 29, 1988).

7

J.A. 839, 841, 848, Nickson Trial Test. (Jan. 28, 1988).

8

Id. at 908.

9

Id. at 908–10.

3

unlatched it, and the shotgun-armed man kicked it open and

immediately shot one round into Morris’s pelvic area.10 Scared

for his life, James jumped the stairwell railing, and as he ran

downstairs, he heard pistol shots and someone say to get the

loot. James fled through the front door.

Angelo, Bennett, and Nickson heard the men leave the

house, waited for some time, and then fled themselves. Police

entered the house at around 10:30 p.m.11 Less than a half hour

later, Angelo and Bennett saw each other at a local bar and

discussed what had happened. Bennett asked if Angelo knew

the man with the pistol, and Angelo said no.

Police later obtained statements from James, Angelo,

Bennett, and Nickson.12 In his first statement, given at 11:30

p.m. on the night of the murder, James provided a detailed

account of the crime but denied knowing Morris and did not

mention any illegal drugs. He described one robber as a “black

male, 5’7, husky build, dark complexion,” with a “double

barreled shotgun,” who “had a full beard with a mustache that

came together, but it wasn’t really heavy, he was wearing all

black, and a black leather flat cap.”13 He described the other

as a “black male, 6’1, brown skin, thin build about 20-21, both

10

J.A. 544, Med. Exam’r Test. (Feb. 1, 1988).

11

Police initially arrived at around 10:20 p.m. but left after no

one answered the front door, which was closed. Police

returned ten minutes later after James flagged down a patrol

unit that had just been at the house. When police returned, the

front door was open.

12

James had reported the incident to police.

13

J.A. 192, J. Smith Police Interview Statement (Oct. 8, 1986)

(cleaned up).

4

men were about the same age, he was clean shaven, he was

wearing all black leather, too.”14 James said he would “see

both of these guys all the time on the streets around 54th &

Warrington Ave,” and that they were part of a neighborhood

gang and Keith’s “friends.”15 James also told police that, after

he fled from the house, he saw Keith nearby “standing on the

corner,” and that “Keith was shocked to see me come out of

the house.”16

Police picked up Angelo and brought him to the police

station for an interview the next day around 4:30 a.m. He told

Detective Michael Bittenbender that he was sitting in the rear

bedroom with Nickson and Bennett when a “black fellow stuck

his head through the door and pointed a gun” at them.17 Angelo

said that when the man told them to get down on the floor,

Nickson kicked a plug, causing all the lights to go out. He

described the man as “a black male, dark complexion, close cut

hair, no mustache or facial hair,” with a “revolver . . . as big as

a 38 caliber snub nose.”18 He also told police: “After I saw

the gun, that is what I was looking at.”19 Police then asked him

to review a mugshot book containing “several hundred

photographs which he viewed for about half an hour.”20 He

picked out Johnson’s photo—but he cautioned police that he

14

Id. (cleaned up).

15

Id. at 191–92.

16

Id. at 189, 191.

17

J.A. 194, A. Smith Police Interview Statement (Oct. 9,

1986).

18

Id. at 195.

19

Id.

20

J.A. 1373–74, K. Johnson Trial Test. (Feb. 2, 1988).

5

was “not positive.”21 However, he also said that if he saw the

man again, he “w[ould] identify him” because the man had

“threatened [Angelo’s] life.”22 Based on Angelo’s uncertain

identification, Johnson became the main suspect. Police put

his photo in an eight-person photo array.

About a half hour after questioning Angelo, police

questioned James again. By this time, he had been at the police

station all night and had failed a polygraph, so police knew he

had been untruthful in his first statement. In a second

statement, James admitted knowing Morris. He also told

police that Keith had been carrying a bag, and that James could

“hear pieces of metal hitting together” inside the bag and that

“it sounded like it was a shotgun broken down.”23 James also

told police that when he saw Keith outside the house, Keith

was no longer holding the bag.24 Police showed him “a mug

book,”25 and Johnson’s photo was selected. During his

interview, James feared police would charge him with drug

offenses (or even murder).

Early that same morning, after police came looking for

him, Bennett gave a statement to Detective Bittenbender.

Bennett did not describe the man with the pistol, but he was

shown the photo array, and Johnson’s photo was selected a

third time. Bennett told police that he did not know Johnson

but had seen him before.

21

J.A. 196, A. Smith Police Interview Statement (Oct. 9,

1986).

22

Id. at 197.

23

J.A. 199, J. Smith Police Interview Statement (Oct. 9, 1986).

24

Id. at 201.

25

J.A. 753, J. Smith Trial Test. (Jan. 27, 1988).

6

Police took a statement from Nickson at noon, after

taking her into custody and bringing her to the station for an

interview. Her legs were shackled during the entire interview.

In her statement, she described the man with the pistol as a

black male in his late 20s, between 5’6 and 5’7, with a small

build (160 lbs.), who was wearing a black leather cap, a black

waist-length jacket, and a dark colored shirt. Nickson was also

then shown the photo array, and Johnson’s photo was selected

a fourth time.

On October 10, 1986, Johnson was arrested and charged

with capital murder. The warrant was based on a probable-

cause affidavit stating that Angelo and James had identified

him as the man with the pistol. Johnson immediately denied

involvement and told police that, at the time of the murder, he

had been selling clothes in West and Southwest Philadelphia

with his friend, Ronald Crawford. Police searched Johnson’s

family home and did not recover any weapons or drugs. Police

never found any other evidence implicating Johnson in

Morris’s murder. The murder weapons were never recovered,

and no second gunman was ever identified or charged. The

only evidence was the four eyewitness identifications. Johnson

was the only person arrested and charged; there is no evidence

that police pursued any alternative suspects. Johnson has

maintained his innocence throughout this case, nearly thirty-

nine years.

Johnson’s preliminary hearing was held on October 29,

1986, in Philadelphia Municipal Court. Attorney Stephen

Gallagher had been appointed to represent him.26 Only two

26

Attorney Gallagher represented Johnson for his preliminary

7

witnesses showed up for the hearing.27 One was Nickson, who

identified Johnson as the culprit and said that she had

previously seen him around the neighborhood she had grown

up in; however, she acknowledged that he was “a stranger” and

that she did not really “know” him.28 The other witness (either

Angelo or Bennett) did not testify.29 After Johnson’s case was

held for court and forwarded to the Court of Common Pleas,

his counsel received from the prosecution copies of the

eyewitness interview statements and other items in discovery.

Counsel later moved unsuccessfully to suppress the

identifications.30 He also spent limited time consulting with

Johnson in preparation for trial.31

hearing, formal arraignment, trial, sentencing, and direct

appeal.

27

All four eyewitnesses were subpoenaed to testify, but only

Bennett, James, and Nickson personally signed for their

subpoenas; Angelo did not.

28

J.A. 628–29, Nickson Prelim. Hr’g Test. (Oct. 29, 1986).

29

The other witness was either Bennett or Angelo. It was not

James Smith; he failed to appear for the hearing, so the

municipal court issued a bench warrant for his arrest. There is

no record that the court issued a bench warrant for Bennett or

Angelo.

30

The transcript of the suppression hearing is unavailable, so

we do not know what was said there. However, there is no

dispute that Angelo testified at the hearing.

31

See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa. Super.

2012) (en banc) (finding that trial counsel “conducted a face-

to-face meeting at [Johnson’s] preliminary hearing, conducted

another face-to-face meeting at the prison with [Johnson] prior

to trial, and performed at least one telephone consultation”).

The prison visit “occurred the night before jury selection

8

At trial in January and February 1988, the prosecution

relied solely on Nickson, James, and Bennett to connect

Johnson to the murder and identify him as the man with the

pistol.32 Although James’s testimony was largely consistent

began.” Id. at 250 (Wecht, J., concurring).

32

Angelo did not testify at trial, but the record strongly

suggests that Angelo appeared in the courtroom on Friday,

January 29, 1988. The trial prosecutor confirmed that Angelo

was subpoenaed to appear on that date, and although the trial

prosecutor claimed that Angelo never showed up, there is a

witness fee certificate dated February 23, 1988, payable to

Angelo, for his two appearances in the Philadelphia Court of

Common Pleas in the same courtroom (No. 436) where

Johnson’s trial and suppression hearing were held.

Pennsylvania law required that Angelo be paid for attending

trial even though he did not testify. See 42 Pa.C.S. § 5903(g).

Although the trial court issued a bench warrant for Angelo, that

was for his failure to appear on February 1, 1988. The trial

court later found that the trial prosecutor had “intentionally

deceived” the court and defense counsel at sidebar before

asking an improper question on cross-examination of Johnson,

J.A. 1418, Trial Tr. (Feb. 3, 1988), and the prosecutor’s

conduct “demonstrate[d] a chronic inability to abide by

professional standards in the prosecution of criminal cases,”

J.A. 1629, Trial Ct. Op. (Nov. 15, 1988), Indeed, this was not

the first time this prosecutor was admonished for unethical

conduct. See, e.g., Commonwealth v. Perillo, 376 A.2d 635

(Pa. Super. 1977) (holding that prosecutorial misconduct that

required reversal of first-degree murder conviction, where this

prosecutor asked improper questions implying that a witness

had been bribed to perjure himself); see also In re

9

with his second police statement, key parts of his story

changed. He had initially told police that he had “jumped the

banister” and fled the house after the man with the shotgun shot

Morris.33 That version is also reflected in the probable-cause

affidavit for Johnson’s arrest and a January 20, 1988 internal

memorandum in which the trial prosecutor stated that “[w]hen

the shooting started, [James] Smith ran and vaulted over the

banister.”34 James nevertheless told the jury that he did not

immediately flee and that he had caught a glimpse of the man

with the pistol’s face as the man ran past him and shot Morris

several times. James further testified that he had seen part of

the man’s face by glancing “sideways” as they walked up the

stairs,35 but he never told police that. Nickson and Bennett also

Campolongo, 435 A.2d 581, 583–84 (Pa. 1981) (reversing

summary criminal contempt-of-court citation issued to this

prosecutor because “much of [his] conduct deemed by the trial

court to be sufficiently reprehensible to require the declaration

of a mistrial occurred after the contempt citation,” and

therefore the citation “was not based on the pattern of

intentional prosecutorial misconduct which cumulatively

resulted in the mistrial”); Commonwealth v. Bronzeill, 3 Phila.

Co. Rptr. 554, 557 (Pa. C.P. Ct. 1980) (barring retrial of

defendant after granting mistrial on the grounds that this

prosecutor had “intentionally and deliberately engaged in a

course of conduct from his opening speech to the declaration

of the mistrial, calculated to inflame the passion and prejudice

of the jury”).

33

J.A. 200–01, J. Smith Police Interview Statement (Oct. 9,

1986).

34

J.A. 543, Phila. Dist. Att’y Off. Internal Memo. (Jan. 20,

1988).

35

J.A. 705, 790–91, J. Smith Trial Test. (Jan. 27, 1988).

10

identified Johnson as the man with the pistol, and the jury was

informed of their prior photo identifications. However,

Nickson and Bennett admitted that they had seen only half the

man’s face.

In defense, Johnson claimed mistaken identity and

offered an alibi. Consistent with his initial police statement,

his defense was that on the night of the murder, he was selling

clothing around Philadelphia with Crawford. In support,

Johnson put on three alibi witnesses, but his counsel could not

locate Crawford. Although no one could place him very far

from the crime scene around the time when the shooting

occurred, each alibi witness testified that they had seen

Johnson at various times and locations that night selling clothes

from a car. He also took the stand and testified in his own

defense.

Based solely on the three eyewitness identifications, the

jury convicted Johnson of first-degree murder, conspiracy, and

possession of an instrument of a crime. He was later sentenced

to life imprisonment. In 1992, the Pennsylvania Superior

Court affirmed his convictions, and the Pennsylvania Supreme

Court later denied further review.

II.

After his convictions were affirmed on direct appeal,

Johnson pursued relief in state court under Pennsylvania’s

Post-Conviction Relief Act (PCRA).36 He filed his first

petition in 1996 and raised several issues, including ineffective

assistance of trial counsel. The PCRA court denied the petition

36

42 Pa. C.S. §§ 9541 et seq.

11

in 2003, but the Superior Court reversed on appeal in 2005 and

remanded for an evidentiary hearing on Johnson’s

ineffectiveness claim. The PCRA court denied the petition

again in 2010, but on appeal in 2011, the Superior Court

reversed that decision and granted Johnson a new trial based

on his ineffectiveness claim. However, after a rehearing en

banc in 2012, the Superior Court vacated its decision and

affirmed the PCRA court’s denial of relief. The Pennsylvania

Supreme Court denied Johnson’s request for further review.

In 2013, Johnson filed a timely pro se federal habeas

petition and, after being appointed counsel, filed an amended

petition. In 2014, his federal counsel’s investigator discovered

new evidence, including affidavits by Angelo, Bennett, and

Nickson—with the three eyewitnesses recanting their

identifications of Johnson as the man with the pistol. Johnson

also submitted a second recanting affidavit by James, who had

originally recanted in 2001.37 Their recantations are

summarized below:

James Smith. In his 2001 affidavit, James swore that

he identified Johnson’s photo only because police told him

that, if he did not, he would go to jail for drug offenses and

murder. He “really could not recognize [Johnson] as being the

person who had the pistol,” but he identified Johnson anyway,

partly because by the time of trial Morris’s “brother had

threatened [James’s] life.”38 James also stated that police

pointed to Johnson’s photo and falsely told him that Angelo,

37

I agree with the District Court that “James Smith’s

statements are relatively consistent from 2001 to 2014.”

Johnson v. Kerestes, 683 F. Supp. 3d 452, 486 (E.D. Pa. 2023).

38

Suppl. App. 63, J. Aff. (Aug. 7, 2001).

12

Bennett, and Nickson had already picked it. In his 2014

affidavit, James reaffirmed his prior affidavit and further stated

that his October 9, 1986 statement contained details that he had

not witnessed. He also made specific allegations of

prosecutorial misconduct. He stated that, during their pretrial

witness preparation, he told the prosecutor that he was not

confident that Johnson was the man with the pistol. The

prosecutor threatened James with criminal charges if he

recanted his identification, and told him that “it would be

helpful if [he] testified that [he] saw the guy with the pistol fire

some shots.”39 Afraid to anger the prosecutor and risk criminal

charges, James complied.

Angelo Smith. In a June 2014 affidavit, Angelo stated

that when he showed up to testify at trial pursuant to a

subpoena, police asked if he saw the man with the pistol in the

courtroom. He replied that he did not recognize anyone in the

courtroom and that he “really did not get a good look at the

guy’s face because I was high on crack and was just starring

[sic] at the gun in the guy’s hand.”40 Angelo had told police

the same thing (minus the crack use) during his interview hours

after the murder. He alleged that, because he could not make

an identification, police told him that his testimony was not

needed. In an August 2014 affidavit, Angelo reaffirmed his

prior affidavit.41

39

J.A. 220, J. Smith Aff. (Aug. 6, 2014).

40

J.A. 215-16, A. Smith Aff. (June 10, 2014).

41

The only notable difference between Angelo’s affidavits is

that, in the second one, he clarified he could not remember

whether he spoken to police or the prosecutor in the courtroom

at trial.

13

Opal Nickson. In a 2014 affidavit, Nickson swore that

when she selected Johnson’s photo in 1986 and testified

against him at his preliminary hearing and trial, she knew he

was not the man with the pistol. She stated that, although

Johnson “looked a little like the guy with the pistol,” the

perpetrator had darker skin.42 She also said police threatened

her with losing her children and home if she did not pick a

photo, and that, when she tried to tell the prosecutor, before

trial, that she “thought that the guy with the pistol had darker

skin than Kevin,” the prosecutor threatened her with criminal

charges.43 She admitted that after the murder she stayed up all

night smoking crack.

Elisha Bennett. In a 2014 affidavit, Bennett swore that

during his 1986 interview, police kept pointing to one picture

and told him that his friends had all identified that same

person.44 He said that police threatened him with murder and

drug charges if he did not pick a photo. Bennett also admitted

42

J.A. 217, Nickson Aff. (July 14, 2014).

43

Id.

44

Detective Bittenbender, who took Bennett’s statement, has

previously been found to have engaged in misconduct during

police interviews. See, e.g., Ferber v. City of Philadelphia, 661

A.2d 470 (Pa. Cmwlth. 1995) (discussing a civil rights lawsuit

after exoneration of man convicted for first-degree murder and

sentenced to death, and finding that the evidence showed

Bittenbender and other police officers “manipulat[ed]

witnesses to produce a sketch that was almost identical to [the

suspect’s] mugshot”); Commonwealth v. Purvis, 326 A.2d 369

(Pa. 1974) (reversing first-degree murder conviction on the

grounds that Bittenbender and others had coerced suspect’s

confession).

14

that he had been smoking crack all night and that he had been

high when he witnessed the murder and during his police

interview.45

In 2016, after Johnson’s federal case was stayed and

placed in abeyance while he litigated a second PCRA petition

raising Brady claims concerning Angelo’s failed identification

and Nickson’s undisclosed statements and an ineffectiveness

claim concerning counsel’s failure to interview Angelo, police

reinterviewed Angelo and Nickson. During his interview,

Angelo said that he had signed the August 2014 affidavit

without reading it, but he reaffirmed that he did not testify at

trial after he “told the cops [he] didn’t recognize the guy in the

courtroom.”46 As for Nickson, who by then had suffered at

least one stroke, she said she was certain that Johnson was the

man with the pistol. However, in a court-approved deposition

in 2019, Nickson, though suffering from memory issues, was

adamant that Johnson was not the man with the pistol because

his skin complexion was lighter skin than the true culprit.47

45

It was also revealed that, since age sixteen, Bennett had

suffered from epilepsy because he had been hit in the head with

a baseball bat. That incident happened before the murder, and

he had suffered from memory problems as a result of his

“medication, seizures and street drugs and alcohol that [he had]

used.” Bennett admitted that his memory loss is probably why

he “ha[s] no memory of testifying in court.” J.A. 222–23,

Bennett Aff. (Sept. 10, 2014).

46

J.A. 356–58, A. Smith Police Interview Statement (Oct. 5,

2016).

47

She also provided additional details about her interview that

cast further doubt on the reliability of her identification.

Specifically, she testified that when she returned home the

15

After the federal habeas action resumed,48 in May 2019,

the Philadelphia District Attorney’s Office disclosed two arrest

photographs of Johnson that were found buried in the

Philadelphia police file on Morris’s murder.49 Those photos,

which were taken by police on October 10, 1986, around thirty-

six hours after the murder, show Johnson had a mustache

(contrary to James’s and Angelo’s descriptions). The photos

also include a date stamp and confirm his height (5’6”) around

the time of the murder. Johnson then amended and

supplemented his habeas petition to include the arrest photos,

and the District Court granted his motion to stay the federal

proceedings so that he could file a third PCRA petition based

on the newly discovered arrest photos. Johnson withdrew his

PCRA petition in September 2021 before the PCRA court

could address the merits.

In October 2021, Johnson and the Commonwealth,

through the Philadelphia District Attorney’s Office, submitted

a settlement agreement for the District Court’s judicial review.

The agreement described Johnson’s constitutional and actual

innocence claims as well as the Commonwealth’s concession

that, if the factual allegations underlying the Brady claims are

true, then he will have made out a meritorious claim for habeas

morning after the murder, police considered her a suspect,

handcuffed her, and took her to the police station, where her

legs remained shackled the entire time.

48

In 2017, Johnson’s second PCRA petition was dismissed as

untimely on state procedural grounds. The Superior Court later

affirmed the dismissal.

49

The District Court’s opinion refers to “photo” (singular) and

“photos” (plural). There are two photos—a profile view and a

front view.

16

relief based on the cumulative materiality of the suppressed

evidence.50 Pursuant to the agreement, the Commonwealth

50

State prosecutors do not violate their professional or ethical

obligations by confessing error, and a confession of error does

not require certainty of actual innocence. See, e.g., Glossip v.

Oklahoma, 145 S. Ct. 612, 618, 623 (2025) (reversing and

remanding for new trial on petition from state court

postconviction proceedings where “the attorney general did not

endorse [the prisoner’s] actual innocence claim” but did

confess error); Young v. United States, 315 U.S. 257, 258–59

(1942) (“The public trust reposed in the law enforcement

officers of the Government requires that they be quick to

confess error when, in their opinion, a miscarriage of justice

may result from their remaining silent.”); see also

Commonwealth v. Brown, 196 A.3d 130, 194 (Pa. 2018)

(Dougherty, J., concurring) (“As the Attorney General

cogently explains, a ‘prosecutor is of course privileged to take

a position on that claim; indeed, duty requires that he or she do

so, in accordance with her good faith understanding of the

applicable law.’” (citation omitted))).

That said, the District Attorney has never conceded, nor

stipulated to, the truth of Johnson’s factual allegations. His

office has consistently maintained “that the recantations are not

without issue.” J.A. 320, Settlement Agreement for Habeas

Relief (Oct. 14, 2021). His office had attempted to resolve

Johnson’s allegations through its own investigation, but those

efforts were “stymied by the fact that trial counsel was

deceased, then by the fact that the novel coronavirus pandemic

killed one of the eyewitnesses [Nickson], and later by the

inability to interview the two other eyewitnesses [James and

Angelo] and the death[s] of the fourth eyewitness [Bennett]

17

expressly “waiv[ed] all non-jurisdictional bars to relief,

including exhaustion, in this habeas proceeding” and

“concede[d] that Johnson’s claims are properly before this

Court.”51 The waivers were made so that Johnson’s case,

“which ha[d] been in near continuous litigation for over three

decades” could “reach a resolution or, if needed, be adjudicated

on the merits in a forum where all of [his] claims could be fully

and fairly considered, and without further delay.”52 The

and the trial prosecutor.” Appellees Reply to Amicus Br. 12.

51

J.A. 320, Settlement Agreement for Habeas Relief (Oct. 14,

2021).

52

J.A. 521, Resp’t Reply to Amicus Curiae Br. (Mar. 9, 2023)

(emphasis in original). Before Johnson filed his third PCRA

petition asserting the arrest-photos claim, the Pennsylvania

Supreme Court held that, when reviewing Brady claims, courts

must exclude from the cumulative-materiality analysis any

evidence that was not presented in a timely pled Brady claim.

See Commonwealth v. Natividad, 200 A.3d 11, 39 (Pa. 2019).

A federal court later decided that this state procedural rule is at

odds with U.S. Supreme Court precedent. See Natividad v.

Beard, Civ. A. No. 08-449, 2021 WL 3737201, at *12–13

(E.D. Pa. Aug. 24, 2021) (Rufe, J.); see also Kyles v. Whitley,

514 U.S. 419, 421 (1995) (“On habeas review, we follow the

established rule that the state’s obligation under Brady v.

Maryland to disclose evidence favorable to the defense, turns

on the cumulative effect of all such evidence suppressed by the

government, . . . .” (citing 373 U.S. 83 (1963))). Nevertheless,

the PCRA court’s materiality analysis in Johnson’s case still

would have excluded the evidence underlying the two Brady

claims that were previously dismissed as untimely. See

Natividad, 200 A.3d at 36 n.18 (noting that the state court is

not bound by Third Circuit precedent). As a result, the parties

18

agreement, if approved, would vacate Johnson’s conviction

and permit him in state court to plead no contest to third-degree

murder and other offenses, and be resentenced to a cumulative

sentence of no more than ten to twenty years’ imprisonment

with credit for time served.53 In September 2022, the District

Court held a status hearing, after which the court requested

supplemental briefing from Johnson and Respondents and

invited the Pennsylvania Attorney General to provide input as

amicus curiae. Johnson subsequently amended and

supplemented his habeas petition to include an ineffectiveness

claim concerning trial counsel’s failure to obtain the arrest

photos and use them at trial.

In July 2023, the District Court, without holding an

evidentiary hearing, declined to adopt the settlement

agreement.54 The court accepted the waivers of the

agreed there is only one forum where Johnson could be fairly

heard on his Brady claims—federal court.

53

J.A. 328, Settlement Agreement for Habeas Relief (Oct. 14,

2021).

54

I express no opinion on the legality of so-called habeas

settlements. See Anup Malani, Habeas Settlements, 92 Va. L.

Rev. 1, 24 (2006) (“The legal status of habeas settlements is

very much up in the air.”). Compare Johnson, 683 F. Supp. 3d

at 461–62, with Washington v. Sobina, 471 F. Supp. 2d 511,

518 (E.D. Pa. 2007) (Brody, J.) (opining on “the possible value

of promoting settlement negotiations in habeas corpus

actions”). However, I emphasize that “our judicial obligations

compel us to examine independently the errors confessed.”

Young, 315 U.S. at 258–59. To be clear, a “habeas settlement”

refers to settlement of the merits of the habeas claim, not the

waiver of non-jurisdictional bars to habeas relief.

19

nonexhaustion and timeliness defenses as to Johnson’s Brady

arrest-photos claim and Strickland claims concerning trial

counsel’s failure to obtain those photos and to interview

Angelo, but the court overrode the procedural-default waivers

as to the Brady claims regarding Angelo and Nickson. The

court concluded that Johnson failed to overcome the

procedural defaults, and ultimately denied his habeas petition

in its entirety. In doing so, the District Court appears to have

conflated a waiver of a non-jurisdictional bar to habeas relief

with consideration of the merits of the habeas claim.

III.

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) governs habeas review.55 “Because the

District Court did not hold an evidentiary hearing and relied on

the state court record, we exercise plenary review.”56 Our

plenary review extends to rulings on procedural default.57 If

the petitioner overcomes the default, the habeas court must

exercise de novo review and consider the defaulted claim’s

merits.58

55

See 28 U.S.C. § 2254.

56

Robinson v. Beard, 762 F.3d 316, 323 (3d Cir. 2014).

57

Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008).

58

See Bey v. Superintendent Greene SCI, 856 F.3d 230, 236

(3d Cir. 2017). A rebuttable presumption of correctness

attaches to the state court’s factual findings: “They are

‘presumed to be correct’ unless the habeas petitioner rebuts the

presumption ‘by clear and convincing evidence.’” Laird v.

Sec’y, Pa. Dep’t of Corr., 129 F.4th 227, 240–41 (3d Cir. 2025)

(quoting 28 U.S.C. § 2254(e)(2)). “The standard is demanding

but not insatiable[,]” Miller-El v. Dretke, 545 U.S. 231, 240

20

IV.

Before I consider the merits of Johnson’s constitutional

claims, I first address two threshold habeas barriers—

procedural default and § 2254(e)(2)—that affect the scope of

review. Johnson and the Commonwealth, through the

Philadelphia District Attorney, agree that the District Court

committed reversible error in overriding the Commonwealth’s

deliberate waivers of the procedural-default defenses to

Johnson’s two otherwise-defaulted Brady claims. They also

agree that § 2254(e)(2) does not bar a federal evidentiary

hearing on Johnson’s meritorious claims. The Attorney

General disagrees with both points.

This dispute is resolved by the relevant case law. It is

clear that a federal habeas court may not override a state’s

deliberate waiver of nonjurisdictional threshold bars. Thus, the

District Court abused its discretion in rejecting the

Commonwealth’s procedural-default waivers.

A.

The procedural-default rule is a nonjurisdictional

“threshold bar” to federal habeas relief.59 It is waivable and

(2005), and “[t]he presumption of correctness that attaches to

factual findings is stronger in some cases than in others,” Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500

(1984).

59

See Stokes v. Stirling, 64 F.4th 131, 139–42 (4th Cir. 2023)

(concluding that § 2254(e)(2) is “a non-jurisdictional

provision”), cert. denied, Stirling v. Stokes, 144 S. Ct. 377

(2023); Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir.

21

forfeitable.60 For instance, “procedural default is normally a

‘defense’ that the State is ‘obligated to raise’ and ‘preserv[e]’

if it is not to ‘lose the right to assert the defense thereafter.’”61

In “extraordinary circumstances,” federal courts retain

“the authority to resurrect only forfeited defenses.”62 Even so,

2001) (recognizing that the procedural-default rule is

nonjurisdictional).

60

See Wood v. Milyard, 566 U.S. 463, 466, 470 n.4, 472–73

(2012); Smith v. Horn, 120 F.3d 400, 408–09 (3d Cir. 1997)

(recognizing that procedural default is forfeitable).

“A waived claim or defense is one that a party has knowingly

and intelligently relinquished; a forfeited plea is one that a

party has merely failed to preserve.” Wood, 566 U.S. at 470

n.4.

61

Trest v. Cain, 522 U.S. 87, 89 (1997) (alteration in original)

(quoting Gray v. Netherland, 518 U.S. 152, 166 (1996)). This

is consistent with the Rules Governing Section 2254 Cases in

the United States District Courts (the Habeas Corpus Rules)

and the Federal Rules of Civil Procedure, which “apply in the

context of habeas suits to the extent that they are not

inconsistent with the Habeas Corpus Rules” and AEDPA.

Woodford v. Garceau, 538 U.S. 202, 208 (2003); Fed. R. Civ.

P. 81(a)(4); Habeas Corpus Rule 12. An answer to a habeas

petition “must state whether any claim in the petition is barred

by a failure to exhaust state remedies, a procedural bar, non-

retroactivity, or a statute of limitations,” Habeas Corpus Rule

5(b), and the relevant civil procedural rules generally require

that affirmative defenses be “raised in a defendant’s answer or

amendment thereto,” Day v. McDonough, 547 U.S. 198, 202

(2006) (citing Fed. R. Civ. P. 8(c), 12(b), and 15(a)).

62

Wood, 566 U.S. at 471 & n.5 (citing Day, 547 U.S. at 198,

22

our precedent cautions that a court may not resurrect a forfeited

procedural bar unless “the values of comity, federalism,

judicial efficiency, and the ‘ends of justice’” weigh in favor of

doing so.63 This is particularly true when we are the ones who

spot the issue, because “[w]hile considerations of federalism

and comity sometimes weigh in favor of raising such issues sua

sponte, consideration of that other great pillar of our judicial

system—restraint—cuts sharply in the other direction.”64

In the context of waiver, we lack even that limited

discretion. A federal habeas court has no power “to bypass,

override, or excuse a State’s deliberate waiver.”65 In Wood v.

201).

63

See Szuchon, 273 F.3d at 321 n.13; cf. In re Rosado, 7 F.4th

152, 157 (3d Cir. 2021) (recognizing that an appellate court’s

excusing forfeiture of a habeas affirmative defense is the

exception, not the norm).

64

Smith, 120 F.3d at 409.

65

Wood, 566 U.S. at 466 (quoting Day, 547 U.S. at 202); see

also, e.g., Núñez-Pérez v. Escobar-Pabón, 133 F.4th 33, 42

(1st Cir. 2025) (Barron, C.J.) (holding that “a district court has

no ‘discretion to take up [a] timeliness [defense]’ sua sponte

‘when [the government] is aware of [the] limitations defense

and intelligently chooses not to rely on it,’ or when the defense

is ‘strategically withh[e]ld” (alterations in original) (quoting

Wood, 566 U.S. at 466, 472)); Stokes, 64 F.4th at 136 n.3

(“Unlike a forfeited issue, a court does not have discretion to

reach an issue that a party has waived.” (citing Wood, 566 U.S.

at 471–74 & n.4)); Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th

Cir. 2016) (explaining that courts have “no discretion” under

the Wood rule).

23

Milyard,66 the Supreme Court held that failure to abide by this

limitation, even when otherwise-extraordinary circumstances

are present, is an abuse of discretion.67 It follows that a federal

court commits reversible error if it overrides a state’s deliberate

waiver of a nonjurisdictional threshold bar to habeas relief.68

This rule should extend to procedural-default.69

A federal court’s resurrection of a nonjurisdictional

threshold bar, “despite the [s]tate’s waiver, serve[s] no

important federal interest” because in any given habeas case,

“the state is in the best position to know whether, in the interest

of justice, its rule needs—indeed, deserves—federal court

vindication.”70 Unless the habeas court has reason to believe

the state’s waiver was invalid (e.g., made by someone who

lacked authority to make it), it is not the court’s place to

66

566 U.S. 463 (2012).

67

Wood, 566 U.S. at 472–73.

68

See Maslonka v. Hoffner, 900 F.3d 269, 276–77 & n.1 (6th

Cir. 2018) (“We will not override the state’s waiver [of

procedural default], because to do so would be an abuse of

discretion.” (citing Wood, 566 U.S. at 472–73)); cf. Williams v.

United States, 879 F.3d 244, 248 (7th Cir. 2018) (stating, in a

§ 2255 case, that “procedural default is an affirmative defense

and can itself be waived,” and citing Wood for the proposition

that “courts must respect the government’s formal waivers of

procedural defects in collateral cases”).

69

See Maslonka, 900 F.3d at 276–77 & n.1 (applying the Wood

rule to state’s procedural-default waiver); McCormick v.

Parker, 821 F.3d 1240, 1245–45 (10th Cir. 2016) (same).

70

Esslinger v. Davis, 44 F.3d 1515, 1525, 1527 (11th Cir.

1995).

24

question the reason for the state’s deliberate waiver.71 Rather

than undermine comity, such deference furthers comity by

respecting the state’s “primary authority for defining and

enforcing the criminal law.”72

i.

I begin with the procedural-default waivers related to

Johnson’s two defaulted Brady claims. The District Court

accepted the Commonwealth’s nonexhaustion waivers but

overrode the procedural-default waivers on federal-state

comity grounds. However, AEDPA’s exhaustion requirement

furthers comity also. Neither we nor the Supreme Court has

ever distinguished procedural-default waivers from exhaustion

waivers; they both reflect “the same concerns” and “must be

treated the same.”73

71

See United States v. James, 955 F.3d 336, 344–45 (3d Cir.

2020) (“[L]itigants, not the courts, choose the facts and

arguments to present. Thus, when a party clearly chooses a

particular path, it will be respected and generally not further

reviewed.”).

72

Kennedy v. Superintendent Dallas SCI, 50 F.4th 377, 382 (3d

Cir. 2022) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)).

73

Day, 547 U.S. at 209 (quoting Long v. Wilson, 393 F.3d 390,

404 (3d Cir. 2004)). Indeed, Congress expressed heightened

concern for comity in the exhaustion context by explicitly

barring inadvertent forfeiture of exhaustion defenses. See 28

U.S.C. § 2254(b)(3). No similar provision exists for

procedural default. See Bennett v. Superintendent Graterford

SCI, 886 F.3d 268, 281 n.11 (3d Cir. 2018). “[W]here

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

25

Further, there is no dispute over the validity of the

waivers.74 Unlike most states, Pennsylvania vests local district

attorneys with authority and discretion independent of the state

attorney general.75 This Pennsylvanian delegation of authority

dates back to 1850, when the state legislature enacted a law

imposing a duty on local district attorneys to “conduct in court

all criminal prosecutions in the name of the Commonwealth,

or when the State is a party, which arise in the county for which

he is elected, and perform all the duties which now by law are

to be performed by deputy attorney generals.”76 This

generally presumed that Congress acts intentionally.”

Gonzalez v. Thaler, 565 U.S. 134, 143 (2012) (quotation and

alteration omitted).

74

Otherwise, the District Court would have erred in accepting

the exhaustion waivers.

75

See Carter v. City of Phila., 181 F.3d 339, 353 (3d Cir. 1999)

(“[I]n Pennsylvania, unlike many other jurisdictions, the

[attorney general] has no inherent authority to supersede a

district attorney’s decisions generally.”); Commonwealth v.

Khorey, 555 A.2d 100, 106–08 (Pa. 1989); Commonwealth v.

Carsia, 491 A.2d 237, 242–50 (Pa. Super. 1985) (en banc)

(discussing “the historical powers of the Attorney General”

and noting that “Pennsylvania has been a unique jurisdiction in

the nature and scope of authority granted to its Attorney

General”), aff’d, 517 A.2d 956 (Pa. 1986); id. at 250–51

(explaining that the state legislature’s decision to give the

Attorney General limited criminal jurisdiction reflects its intent

that the Attorney General not “imping[e] upon the jurisdiction

and duties of the constitutionally created office of county-

elected district attorney” (quotation omitted)).

76

An Act Providing for the Election of District Attorneys, Pub.

26

longstanding tradition establishes that the district attorney is a

“constitutional officer”77 with authorization to represent the

Commonwealth in certain matters,78 which we have

recognized include “habeas actions in federal court.”79 Comity

thus prohibits us from overriding a valid waiver by a

Pennsylvania district attorney.80 Accordingly, I conclude that

L. No. 385, 1850 Pa. Laws 654, 654 (codified as amended at

16 P.S. § 9952). This law “was designed to clothe the district

attorney with an authority independent of that of the attorney

general.” Gilroy v. Commonwealth, 105 Pa. 484, 487 (1884).

77

See Commonwealth v. Schab, 383 A.2d 819, (Pa. 1978) (“In

1874, the district attorney was made a constitutional officer.”

(citing Pa. Const. of 1874, art. XIV, § 1)); see also Pa. Const.

art. IX, § 4 (current version, enacted in 1968).

78

Schab, 383 A.2d at 821–22 (“It would be incongruous to

place a district attorney in the position of being responsible to

the electorate for the performance of his duties while actual

control over his performance was, in effect, in the Attorney

General.”).

79

Harris v. Pernsley, 820 F.2d 592, 598 (3d Cir. 1987) (citing

Commonwealth ex rel. Specter v. Bauer, 261 A.2d 573, 575–

76 (Pa. 1970)); Bauer, 261 A.2d at 575 (recognizing that

district attorneys “have the power—and the duty—to represent

the Commonwealth’s interests in the enforcement of its

criminal laws”). The Pennsylvania Attorney General does not

dispute that a local district attorney has this authority.

80

“Comity means respect for the state’s processes, and a state

may choose to speak through any branch of its government,”

and “if the federal court refused to accept the waiver, explicit

or implicit, by the state through its [authorized representative],

this would be a meddlesome intrusion into the state’s internal

allocation of governmental authority.” See Barrera v. Young,

27

the District Court abused its discretion in overriding the

Commonwealth’s valid procedural-default waivers and

skipping a merits review of Johnson’s two otherwise defaulted

Brady claims.

ii.

I next consider § 2254(e)(2), which governs the scope

of our evidentiary review. It is also a nonjurisdictional

threshold bar to federal habeas relief.81 Plenary habeas review

may include the entire state-court record if the petitioner raises

credible disputes about the state court’s factual findings,82 but

§ 2254(e)(2) generally prohibits a federal court from holding

an evidentiary hearing or “expand[ing] the state court record

through far-reaching civil discovery.”83 Nevertheless, as

discussed above, this nonjurisdictional threshold bar is as

forfeitable (and waivable) as any other.84

794 F.2d 1264, 1269 (7th Cir. 1986) (Easterbrook, J.).

81

Shinn v. Ramirez, 596 U.S. 366, 375 n.1 (2022) (analyzing

§ 2254(e)(2) under traditional forfeiture principles); Stokes,

64 F.4th at 140–42 (declining to excuse the state’s forfeiture

of the § 2254(e)(2) bar).

82

“It is not significant whether the state court was specifically

directed to the petitioner’s evidence, so long as it was in the

record.” Brian R. Means, Federal Habeas Manual § 3:88 (2024

update) (first citing Miller-El, 545 U.S. at 241 n.2; then citing

id. at 282–83 (Thomas, J., dissenting)).

83

Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 724

(3d Cir. 2022) (citing Holland v. Jackson, 542 U.S. 649, 563

(2004) (per curiam); and Shinn, 596 U.S. at 389).

84

Fairchild v. Workman, 579 F.3d 1134, 1146 (10th Cir. 2009)

(finding that the state forfeited the issue of diligence under §

2254(e)(2) by failing to preserve it for appellate review); see

28

I would decline to resurrect § 2254(e)(2)’s bar.

Respondents have the obligation to timely raise threshold

habeas bars in district court,85 and here they did not. The issue

was not raised by either the parties or amicus before the District

Court (where the District Attorney twice asked the District

Court to hold an evidentiary hearing). It was not raised in the

parties’ (or amicus’s) briefs. Indeed, even at oral argument the

§ 2254(e)(2) bar was not raised until we brought it up. Even

then, the District Attorney expressly waived any argument that

it applied.86 This puts us back at square one—but this time,

even if we had discretion to deny the waiver (which we do not),

we still could not forgive the forfeiture without abandoning our

proper judicial role.

I submit that we cannot excuse a state’s failure to timely

assert a habeas procedural bar unless comity, federalism,

judicial economy, and the interests of justice outweigh our

judicial obligation to act as impartial arbiters and exercise

also Stokes, 64 F.4th at 136 n.3, 139–42 (applying the Wood

rule to § 2254(e)(2), but concluding that the bar was forfeited

rather than waived).

85

See Habeas Corpus Rule 5(b); Day, 547 U.S. at 202 (citing

Fed. R. Civ. P. 8(c), 12(b), and 15(a)).

86

After oral argument, we asked the parties and amicus to

submit supplemental briefing on whether Johnson meets §

2254(e)(2)’s requirements, whether § 2254(e)(2) is waivable,

and whether Johnson preserved his arguments concerning his

eligibility for a hearing. The parties and amicus complied with

our request, and the District Attorney expressly waived §

2254(e)(2)’s bar.

29

restraint.87 “[R]estraint is all the more appropriate when the

appellate court itself spots an issue the parties did not air below,

and therefore would not have anticipated in developing their

arguments on appeal.”88 Indeed, where the state “never raised

the issue at all, in any court,” we “should be even less inclined

to raise it sua sponte than when the state . . . has raised the issue

. . . belatedly.”89 Otherwise, we would “come dangerously

close to acting as advocates for the state rather than as impartial

magistrates.”90 To avoid an accidental violation of federal-

state comity, and given the Attorney General’s limited role as

amicus curiae,91 I defer to the District Attorney. For these

reasons, I do not support the sua sponte invoking of §

2254(e)(2)’s bar against Johnson.92 I conclude that any

87

See Szuchon, 273 F.3d at 321 n.13.

88

Wood, 566 U.S. at 473.

89

See Smith, 120 F.3d at 409.

90

Id.

91

As an amicus curiae, the Attorney General “is not a party to

the litigation.” See Newark Branch, NAACP v. Town of

Harrison, 940 F.2d 792, 808 (3d Cir. 1991) (quotation

omitted). Amicus status is different than intervenor status, see

Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970), and an

amicus does not necessarily have a right to intervene, see

Warren v. Comm’r, 302 F.3d 1012, 1014–15 (9th Cir. 2002).

The Attorney General therefore cannot assume the functions of

a party and “has no standing to request relief not requested by

the parties.” Newark NAACP, 940 F.2d at 808; see also

Knetsch v. United States, 364 U.S. 361, 370 (1960)

(recognizing that courts need not address an amicus curiae’s

argument if it “has never been advanced by [the parties] in th[e]

case”).

92

Further weighing against reviewing this issue for the first

30

argument that § 2254(e)(2) bars a federal evidentiary hearing

on Johnson’s constitutional claims, or our review of the

expanded record, has been forfeited.

V.

Thus, I have concluded that we should consider the

expanded record. Before going forward, however, we have to

resolve Johnson’s two ineffective assistance of counsel claims,

based on the existing state court record.93 These claims

concern his trial counsel’s failures to consult with him before

trial and to present more alibi witnesses at trial. They were

reviewed under the Strickland standard, which is “doubly

deferential” when § 2254(d) applies.94 “[T]he question is not

whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel

time on appeal are the mixed questions of law and fact raised

by the two distinct diligence requirements in § 2254(e)(2)’s

opening clause and § 2254(e)(2)(A)(ii); the record is

undeveloped and contains no factual findings on these

questions. See O’Hanlon v. Uber Techs., Inc., 990 F.3d 757,

763 n.3 (3d Cir. 2021) (“[A]s a ‘court of review, not of first

view,’ we will analyze a legal issue without the district court’s

having done so first only in extraordinary circumstances.”

(citation omitted) (quoting Frank v. Gaos, 586 U.S. 485, 493

(2019) (per curiam))).

93

We cannot consider the expanded record when § 2254(d)(1)

deference applies. See Cullen v. Pinholster, 563 U.S. 170,

181–82 (2011); see also Williams, 45 F.4th at 724.

94

Laird, 129 F.4th at 247 (quoting Knowles v. Mirzayance, 566

U.S. 111, 123 (2009)).

31

satisfied Strickland’s deferential standard.”95

Johnson concedes that he is not entitled to relief on his

failure-to-consult claim but argues that it should be remanded

for inclusion in the cumulative-error claim. I disagree. The

Superior Court’s decision contains factual findings that compel

me to conclude that no Strickland error occurred because

“counsel’s performance did not objectively fall short of

professional standards.”96 Thus, I would affirm the dismissal

of this claim and not remand it for cumulative-error review.

As for the failure-to-call-more-witnesses claim.

Ineffectiveness claims concerning “uncalled witnesses are not

favored in federal habeas corpus review because allegations of

what a witness would have testified to are largely

speculative.”97 In addition, decisions about which witnesses to

call at trial are usually strategic decisions left to counsel.98

Reviewing the state court’s decision, and limited to the state-

court record, I do not find its application of federal law to be

unreasonable. Therefore, I would not grant habeas relief on

this claim under § 2254(d)’s “highly deferential standard.”99

95

Harrington v. Richter, 562 U.S. 86, 105 (2011). Johnson

concedes he cannot receive relief on his failure-to-consult

claim under United States v. Cronic, 466 U.S. 648 (1984), due

to AEDPA deference. I will therefore limit my review to the

Strickland version of this claim.

96

Laird, 129 F.4th at 247.

97

Id. at 246.

98

See Diggs v. Owens, 833 F.2d 439, 445–46 (3d Cir. 1987).

99

Pinholster, 563 U.S. at 181 (omissions in original) (quoting

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

32

VI.

Turning to the merits of Johnson’s remaining

constitutional claims,100 when § 2254(d)(1) deference is

inapplicable and the district court has denied the petition

without holding an evidentiary hearing, “[w]e review de novo

all questions of law, and consider all factual allegations in the

light most favorable to the petitioner to determine whether he

has stated a cognizable claim for habeas relief. We then

determine whether an evidentiary hearing is necessary to

develop the facts before us.”101 Unless Johnson’s “factual

allegations are ‘contravened by the existing record,’”102 we

should remand for an evidentiary hearing if his “petition

presents a prima facie showing which, if proven, would enable

the petitioner to prevail on the merits of the asserted claim.”103

A.

I begin with Johnson’s three Brady claims: (1) the

suppression of Angelo Smith’s failure to identify Johnson in

the courtroom at trial;104 (2) the suppression of Opal Nickson’s

100

The District Court correctly determined that Johnson’s

Brady claims and Strickland failure-to-investigate claim are

subject to de novo review.

101

Roman v. DiGuglielmo, 675 F.3d 204, 208 (3d Cir. 2012).

102

Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010)

(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).

103

Id. (citations omitted).

104

Johnson does not claim that Angelo’s 2016 statement is

Brady material. The statement alone cannot be Brady material

because a prosecutor has no obligation to disclose exculpatory

evidence that the prosecution obtained for the first time during

33

statements that the real perpetrator had darker skin than

Johnson; and (3) the suppression of October 10th photos of

Johnson, which show he did not match the descriptions of the

shooter provided by James and Angelo.

Under Brady and its progeny, a prosecutor has a duty to

disclose all favorable evidence material to the accused’s guilt,

including exculpatory and impeachment evidence.105 The

suppression of evidence favorable to the accused violates due

process, “irrespective of the good faith or bad faith of the

prosecution.”106 To sustain a Brady claim, Johnson must show

the prosecution suppressed favorable, material evidence.107 I

agree with the District Court that the allegations, viewed in the

light most favorable to Johnson under our standard of review,

satisfy Brady’s suppression and favorability prongs.

Therefore, I focus on the third requirement—materiality.

i.

Materiality requires “a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.”108 The test is not

postconviction proceedings. See Dist. Att’y Off. for Third

Judicial Dist. v. Osborne, 557 U.S. 52, 68–69 (2009)

(recognizing that Brady is a “trial right” and not a

“postconviction” right).

105

See Kyles, 514 U.S. at 438.

106

Brady, 373 U.S. at 87.

107

United States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008).

108

Rega v. Sec’y, Pa. Dep’t of Corr., 115 F.4th 235, 241 (3d

Cir. 2024) (omission in original) (quoting Kyles, 514 U.S. at

433–34).

34

whether the petitioner “‘more likely than not’ would have been

acquitted had the new evidence been admitted.”109 Instead,

viewing the “facts through the lens of a jury who was deprived

of this information,”110 is there “a reasonable probability that

at least one juror’ would have decided differently.” 111 A

“reasonable probability” exists if “the government’s

evidentiary suppression ‘undermines confidence in the

outcome of the trial.”112 Thus, materiality exists if there is a

reasonable probability that at least one juror would have held

out and voted not to convict.113

Moreover, after “evaluat[ing] the tendency and force of

the undisclosed evidence item by item” we must “evaluate its

cumulative effect for purposes of materiality separately.”114 In

other words, we assess materiality “collectively, not item by

item.”115 As part of our assessment, we also consider what

“competent counsel would have” done had the prosecution not

suppressed the evidence.116

109

Wearry v. Cain, 577 U.S. 385, 392 (2016) (per curiam)

(omissions in original) (quoting Smith v. Cain, 565 U.S. 73, 75

(2012)); see also Kyles, 514 U.S. at 434–35.

110

Holberg v. Guerrero, 130 F.4th 493, 508 (5th Cir. 2025).

111

Id. (quoting Wiggins v. Smith, 539 U.S. 510, 527 (2003));

Wearry, 577 U.S. at 392 n.6 (recognizing that petitioner “can

prevail” on a Brady claim “even if . . . the undisclosed

information may not have affected the jury’s verdict”); Kyles,

514 U.S. at 434–35.

112

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).

113

See Holberg, 130 F.4th at 508.

114

Kyles, 514 U.S. at 437–38 n.10.

115

Id. at 437.

116

See Wilson v. Beard, 589 F.3d 651, 664–65 (3d Cir. 2013)

35

“Evidence can be material even if it ‘goes only to the

credibility of the witness.’”117 Evidence directly impeaching

eyewitness identifications is often material when those

identifications “lack[] strong corroboration.”118 Not “every

unexplored avenue of impeachment is ipso facto material,” but

“there are some instances where specific impeachment

evidence is so important (for issues such as identity of the

culprit) that it is material for Brady purposes even when a

witness has already been effectively impeached on other

issues.”119

ii.

We should begin with the District Court’s failure to

follow Supreme Court precedent, established in Kyles v.

Whitley120 and since reaffirmed in Glossip v. Oklahoma,121 that

the materiality analysis “requires a ‘cumulative evaluation’ of

all the evidence, whether or not that evidence is before the

[c]ourt in the form of an independent claim for relief.”122 The

District Court did not assess cumulative materiality because it

erroneously concluded that “there is only one piece of newly

(emphasis in original) (citations omitted) (quoting Kyles, 514

U.S. at 441).

117

Glossip, 145 S. Ct. at 628 (quoting Napue v. Illinois, 360

U.S. 264, 269 (1959)).

118

See Johnson, 705 F.3d at 129.

119

United States v. Walker, 657 F.3d 160, 188 (3d Cir. 2011)

(italics and citations omitted).

120

514 U.S. 419 (1995).

121

145 S. Ct. 612 (2025).

122

Glossip, 145 S. Ct. at 629 (quoting Kyles, 514 U.S. at 441).

36

discovered, suppressed evidence that can be reviewed, i.e., the

arrest photograph.”123 This constitutes reversible error because

although the arrest photo “standing alone . . . is not

material,”124 it is material when considered with the other

Brady evidence.

iii.

At oral argument, the Attorney General rightly pointed

out that our materiality analysis must include not only the

exculpatory evidence, but also the inculpatory evidence

presented at trial. So, before turning to Johnson’s individual

Brady claims, I offer some observations on that inculpatory

evidence—namely, James’s, Bennett’s, and Nickson’s

eyewitness identifications. Our precedent and Pennsylvania

law agree that eyewitness identification evidence “is among

the least reliable forms of evidence.”125 Indeed, we have long

appreciated that “the major cause of wrongful convictions is .

. . the use of eye-witness identifications.”126

123

Johnson, 683 F. Supp. 3d at 474–75.

124

Id. at 474.

125

United States v. Brownlee, 454 F.3d 131, 141 (3d Cir. 2006)

(emphasis and quotation omitted); Commonwealth v. Walker,

92 A.3d 766, 779 (Pa. 2014) (recognizing that eyewitness

identifications are “widely considered to be one of the least

reliable forms of evidence” (citing United States v. Wade, 388

U.S. 218, 228 (1967))).

126

United States ex rel. Mealey v. Delaware, 489 F.2d 993, 996

(3d Cir. 1974) (quotation omitted); Brownlee, 454 F.3d at 141

(“the single most important factor leading to wrongful

conviction in the United States . . . is eyewitness

misidentification” (omission in original) (quoting C. Ronald

Huff et al., Guilty Until Proven Innocent: Wrongful Conviction

37

In Johnson’s case, the parties have identified several

factors that undermine the reliability of the eyewitness

identifications. The testimony and police statements describe

poor lighting conditions inside the house at nighttime,127 the

eyewitnesses’ focus on the weapon,128 their feelings of stress

and fear,129 and their minimal opportunity to observe the man

with the pistol.130 Additionally, the recantations, coupled with

Nickson’s trial testimony about the other three eyewitnesses

smoking crack cocaine (and Bennett’s testimony that Nickson

would sometimes smoke crack), establish that they all were

high on crack and marijuana when they viewed the man with

the pistol during the few moments before the lights went out.131

and Public Policy, 32 Crime & Delinq. 518, 524 (1986))).

127

See Third Circuit Task Force, Report on Eyewitness

Identifications, 92 Temp. L. Rev. 1, 21, 89 (2019).

128

See Dennis, 834 F.3d at 299 n.25 (“[T]he presence of a

weapon at a crime scene, ‘has a consistently negative scientific

impact on both feature recall accuracy and identification

accuracy.’” (quoting id. at 331 (McKee, C.J., concurring))). .

129

See Third Circuit Task Force, supra note 127, at 79 (“There

is a general agreement on the damaging effect of stress on

memory. Highly stressful situations have been demonstrated

to interfere with eyewitness memory.” (footnotes and citations

omitted)).

130

See id. at 86 (“There is substantial agreement among

eyewitness researchers that exposure duration—the length of

time that the witness has to view the event and perpetrator—

can impact the accuracy of memory for that event as limited

time of exposure can lead to poorer quality person

descriptions.” (citations and quotation omitted))..

131

See, e.g., Commonwealth v. Drew, 459 A.2d 318, 321 (Pa.

38

Further, the record suggests that the police used identification

procedures that studies have shown increase the risk of

eyewitness misidentification.132 If remanded, in assessing

1983) (“We have consistently held that intoxication on the part

of a witness at the time of an occurrence about which he has

testified is a proper matter for the jury’s consideration as

affecting his credibility.”); see also 1 McCormick on Evid. §

44 (7th ed. 2016) (“If the witness was under the influence at

the time of the events which he testifies to or at the time he

testifies, this condition is provable to impeach on cross or by

extrinsic evidence.”).

132

For instance, police asked Angelo to search through a

mugshot book to find a photo of the man with the pistol. See

Third Circuit Task Force, supra note 127, at 67–68 (citing

studies showing that mugshot-book identifications “can

negatively impact the reliability of any purported identification

that results” and “may cause the witness to conflate the

perpetrator with someone seen elsewhere, unduly commit to

the mug-shot identification, and be less reliable at a subsequent

identification procedure even if there is no mug-shot

identification”). The record also suggests that the police used

the same photo array for Bennett and Nickson, without

shuffling the positions of the photos, see Third Circuit Task

Force, supra note 127, at 64 (“If a lineup or photo array is being

shown to multiple witnesses, officers should shuffle the order

of the lineup members or photos to ensure that the suspect is

presented in different positions for the witnesses.”), that police

did not use any blinding techniques when showing Nickson the

photo array, see id. at 27–34 (discussing the importance of

using blinding techniques “to prevent an officer from

providing, even subconsciously, any cues to the

eyewitnesses”), and that the police provided post-identification

39

materiality under Brady, the District Court would need to

further consider the reliability of the eyewitness

identifications.

iv.

With the relatively weak incriminating evidence in

mind and viewing the factual allegations in the light most

favorable to Johnson, I conclude that he has made a prima facie

showing of entitlement to relief on his Brady claims. I address

each claim in turn.

Angelo’s failed identification is both exculpatory and

impeaching. The prosecution’s entire case rested on

identifications by three eyewitnesses whose reliability is

questionable due to their drug use, their focus on the gun, the

poor lighting conditions, and their limited opportunity to view

the man with the pistol. Angelo’s failed identification of

Johnson in the courtroom was particularly exculpatory

because, when he tentatively identified Johnson’s photo

shortly after the murder, Angelo told police: “[T]hat photo I

picked out looked like the guy and if it comes down to where I

might see him again, I will identify him.”133 However, when

feedback to Nickson by telling her that the other three

eyewitnesses had selected the same photo, see id. at 53 (citing

studies showing that “positive post-identification feedback can

inflate a witness’s level of confidence and impact the witness’s

memory of the conditions surrounding his or her viewing of the

perpetrator, including how much attention he or she paid to the

perpetrator, and how good a view he or she had of the

perpetrator”).

133

J.A. 197, Angelo Smith Police Interview Statement (Oct. 9,

1986) (emphasis added).

40

Angelo arrived to testify at trial, he was unable to identify

Johnson in the courtroom. He was then told that his testimony

was not needed. Had Angelo been called as a defense witness,

competent counsel would have effectively used his failed

identification to argue that Johnson must not be the true culprit,

because if he were, Angelo would have identified him. That

testimony would have directly undercut the reliability of the

other eyewitnesses’ identifications and raised fresh questions

for the jury about their memory and perception. Regardless of

whether Angelo’s failed identification, standing alone, is

material under Brady, the District Court should assess the

credibility of this evidence and consider it cumulatively with

the other withheld evidence.

Like Angelo’s failed identification, Nickson’s

undisclosed statements that the true culprit’s skin complexion

was darker than Johnson’s are exculpatory and impeaching,

especially because they relate directly to “the identity of the

culprit.”134

These eyewitness weaknesses would provide fertile

ground for cross-examination as would Johnson’s Brady claim

concerning the October 10, 1986 arrest photos.135 Unlike

Bennett and Nickson, who had seen only the man’s facial

profile, James told the jurors that he had been face-to-face with

the man when James opened the front door. James had initially

told police that the man with the pistol was 6’1” tall (the same

134

See Walker, 657 F.3d at 188.

135

Unlike Bennett and Nickson, who had seen only the man’s

facial profile, James told the jurors that he had been face-to-

face with the man when James opened the door.

41

height as him) and “clean shaven.”136 The photos show that

Johnson was 5’6” tall and had a mustache—directly

contradicting what James had initially told the police. Further,

had the photos been timely disclosed for use at trial to impeach

James’s identification—and had the prosecution responded by

telling the jury that James may have been mistaken because his

“encounter with the man with the pistol occurred in partial

darkness”137—this might have only raised more questions in

each juror’s mind about the reliability of all three eyewitness

identifications.

In terms of impeachment value, competent counsel also

would have used the photos to challenge the thoroughness and

adequacy of the police investigation. “Discrediting the

investigation is a crucial corollary to presenting an

innocence/alibi defense: If the defense could lead the jury to

believe that the Commonwealth conducted a shoddy

investigation, the jury would have been more likely to listen to

and believe [the defendant’s] alibi.”138 In addition, counsel

could have asked police why they never interviewed Nickson’s

brother, or considered any alternative suspects.139 Clearly, the

136

J.A. 192, J. Smith Police Interview Statement (Oct. 8,

1986). He also testified that his initial description was false

and that the man was 5’7” or 5’8”.

137

Johnson, 683 F. Supp. 3d at 474.

138

See Dennis, 834 F.3d at 313 (quotation omitted).

139

See Third Circuit Task Force, supra note 127, at 11

(“Wrongful identification clearly can serve as the first step

along a continuum of actions leading to wrongful arrest,

prosecution, and conviction. A wrongful identification often

leads to the pursuance of a perceived offender, less

consideration given to other possible offenders, and opens the

42

photos have exculpatory and impeachment value.

a.

For the above reasons, the District Court’s item-by-item

materiality assessments were flawed. Accordingly, I would

reverse the District Court’s decision on Johnson’s Brady

claims and remand for an evidentiary hearing.

B.

Johnson’s remaining ineffectiveness claims challenging

trial counsel’s failure to investigate by not obtaining his arrest

photos and not interviewing Angelo are enlightened by my

materiality discussion. For the first Strickland prong, the

District Court correctly determined that Johnson had shown

deficient performance by counsel “acted unreasonably in

failing to interview Angelo Smith”140 and “fail[ing] to secure

the arrest photo.”141 However, the court concluded that

Johnson had failed to show prejudice under the second

Strickland prong. The Strickland prejudice and Brady

materiality standards are essentially the same.142 Because I

door for a myriad of missteps to be made.” (quotation

omitted)).

140

Johnson, 683 F. Supp. 3d at 482, 484. I agree with the

District Court that “in a case where eyewitness testimony was

the only form of evidence inculpating a defendant, counsel’s

failure to interview any of the eyewitnesses was unreasonable,

even where counsel ultimately subjected the witnesses to

extensive cross examination at trial.” Id. at 476 (first citing

Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994); then citing

Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990)).

141

Id. at 484.

142

See Bagley, 473 U.S. at 682–83.

43

conclude that the District Court erred in its materiality analysis

under Brady, I also conclude that it erred in assessing

Johnson’s failure-to-investigate claim for prejudice under

Strickland.

C.

Finally, I submit that we must reach Johnson’s

cumulative-error claim.143 Our review is de novo.144 We must

exclude from our review any errors that do not rise to the level

of federal constitutional error.145 As a result, we may consider

only the errors relating to Brady and trial counsel’s failure to

143

This is “a standalone claim asserting the cumulative effect

of errors at trial that so undermined the verdict as to constitute

a denial of [Johnson’s] constitutional right to due process.”

Collins v. Sec’y Pa. Dep’t of Corr., 742 F.3d 528, 542 (3d Cir.

2014). If each constitutional error is deemed harmless,

Johnson may still obtain relief on the standalone cumulative-

error claim upon a showing of “actual prejudice.” Id. (quoting

Fahy, 516 F.3d at 205). To prevail, he must show that the

combination of individual constitutional errors was not

harmless. See Fahy, 516 F.3d at 205. A constitutional error is

harmless only if the habeas court concludes “beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” Mitchell v. Esparza, 540

U.S. 12, 17–18 (2003) (quoting Neder v. United States., 527

U.S. 1, 15 (1999)). The weaker the inculpatory evidence, the

more likely the error was harmful, see Marshall v. Hendricks,

307 F.3d 36, 68–69 (3d Cir. 2002), and “in cases of grave doubt

as to harmlessness the petitioner must win,” O’Neal v.

McAninch, 513 U.S. 432, 437 (1995).

144

See Littlejohn v. Royal, 875 F.3d 548, 568 (10th Cir. 2017).

145

See Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007).

44

investigate under Strickland. I conclude that, when viewing

the evidence in the light most favorable to Johnson, the record

does not contravene his prima facie showing of entitlement to

habeas relief on his cumulative-error claim.

VII.

For the above reasons, I respectfully dissent.

45