The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ZAIEE TALBERT,
,
Case No. 2:19-cv-05857-JDW
v.
MS. DELBALSO, et al.,
MEMORANDUM
Zaiee Talbert objects to Magistrate Judge Elizabeth T. Hey’s Report and
Recommendation that I deny Mr. Talbert’s petition for a writ of habeas corpus and his
motion to stay. I will adopt Judge Hey’s R&R because, after review, I conclude that it
identifies the issues Mr. Talbert raised in his petition, cites the correct standard of review,
and applies that standard to the facts. I address Mr. Talbert’s objections below.
I. BACKGROUND
On December 12, 2019, Mr. Talbert filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 2014 state court convictions for first-degree
murder and conspiracy. He amended the petition, through counsel, to include nine claims:
(A) the trial court erred in admitting a rap video, which was overly prejudicial; (B) the
Commonwealth did not prove that Mr. Talbert was one of the shooters based on the jury’s
determination that he was not guilty of possessing an instrument of crime (PIC); (C) the
verdict was against the weight of the evidence; (D) the evidence was insufficient to
support the verdict; (E) ineffective assistance of counsel for neglecting to conduct pretrial
investigation by failing to interview material eyewitnesses; (F) ineffective assistance of
counsel for failing to object to the prosecutor’s closing argument; (G) ineffective
assistance of counsel for failing to object to the trial court’s confusing instructions on
criminal conspiracy and conspirator liability; (H) police misconduct that affected the
testimony of three witnesses at trial violated Mr. Talbert’s due process rights; and (I) the
prosecution violated by withholding and failing to divulge information concerning
the pattern of police misconduct by detectives active in Mr. Talbert’s case.
The Respondents responded to the petition on March 11, 2024. Mr. Talbert filed
several motions to extend the deadline to file a reply brief. On January 29, 2025, his
counsel moved to withdraw. Judge Hey granted that motion. On March 28, 2025, Mr.
Talbert also filed a motion to stay consideration of his petition. Then, on April 4, 2025, Mr.
Talbert filed a “Traverse,” which is effectively a reply brief. Judge Hey issued her
R&R on April 25, 2025, recommending that I deny the petition and the motion to stay.
Mr. Talbert filed objections on June 16, 2025. Respondents filed a response to the
objections on September 5, 2025.1
1 Under the Local Rules, the response was due on June 30, 2025. Because Respondents
did not file a response, I began work on a decision. When Respondents filed their
response, they explained that the assigned counsel had been out on parental leave. I don’t
hold any lawyer responsible for taking parental leave, but the office in which she works
II. LEGAL STANDARD
The federal habeas statute, 28 U.S.C. § 2254, limits a district court’s review to
whether a state court’s adjudication was the product of an unreasonable application of
clearly established federal law or based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)-
(2). A federal court must presume that a state court correctly resolved factual issues, but
a petitioner can rebut that presumption with clear and convincing evidence.
, 228 F. 3d 178, 196 (3d Cir. 2000).
III. DISCUSSION2
A. Admission Of Rap Lyrics
A federal habeas court cannot determine whether a state court properly admitted
evidence under state rules of evidence. , 251 F.3d 408, 416 n.2 (3d Cir.
2001). Federal habeas courts can only decide whether the admission of evidence was a
due process violation. Mr. Talbert challenged the admission of rap lyrics as an
evidentiary issue, and Judge Hey properly rejected it. He claims that he raised a due
needs to improve its internal procedures to monitor cases for lawyers who are out on
leave. In any event, I have considered Respondents’ response, which did not alter my
analysis.
2 The R&R sets forth the relevant facts, as the state trial court determined them in
recommending affirmance on Mr. Talbert’s direct appeal. Although Mr. Talbert challenges
those facts, I have no basis to believe they are erroneous. Therefore, I adopt the facts as
set forth in the R&R and need not repeat them here.
process argument in his Traverse, which Judge Hey didn’t consider. But Judge Hey didn’t
err because Mr. Talbert couldn’t amend his claim in a reply brief.
Even if I consider Mr. Talbert’s due process claim, though, he would still not be
entitled to relief because he did not include a due process claim in his state evidentiary
challenge on direct appeal. Because Mr. Talbert has no way to present this claim to state
courts, it is unexhausted and procedurally defaulted. 42 Pa. C.S.A. §§ 9544(b) (waiver),
9545(b)(1) (statute of limitations). A federal court may only review procedurally defaulted
claims if the petitioner demonstrates cause for the procedural default and actual prejudice
that results or if a failure to consider the claim will result in a fundamental miscarriage of
justice. , 228 F.3d 178, 192 (3d Cir. 2000). Mr. Talbert offers no reason
for his failure to present this claim as a due process violation in his direct appeal and has
not supplemented his petition with a showing of innocence to excuse the default, so this
claim is not available for habeas review. I will therefore overrule Mr. Talbert’s objection to
the R&R.
B. Inconsistent Verdicts
Mr. Talbert objects to Judge Hey’s rejection of his claim that the Commonwealth
failed to prove his guilt beyond a reasonable doubt because the jury acquitted him of
possessing an instrument of crime. A “criminal defendant convicted by a jury on one count
[cannot] attack that conviction because it was inconsistent with the jury’s verdict of
acquittal on another count.” , 469 U.S. 57, 58 (1984) (citing
, 284 U.S. 390 (1932)) (alteration of original). Although Mr. Talbert objects to
Judge Hey’s conclusion regarding this claim, his objection is a mere recitation of his
original habeas claim. Judge Hey did not err, so I will overrule the objection.
C. Weight Of The Evidence
Mr. Talbert objects to Judge Hey’s rejection of his claim that the verdict was against
the weight of the evidence. “28 U.S.C. § 2254(d) gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been observed by the state trial
court, but not by them.” , 459 U.S. 422, 434 (1983). Mr. Talbert’s
arguments about inconsistent testimony from Commonwealth witnesses Joseph Johnson,
Raheim Aimes, and Curtis Stokes raise arguments about those witnesses’ credibility.
Although Mr. Talbert objects to Judge Hey’s conclusion on this claim, he makes no
argument to suggest that I can address the issue. Judge Hey is right that I can’t, so I will
overrule Mr. Talbert’s objection.
D. Sufficiency Of The Evidence
Federal courts cannot undertake a review of the evidence presented at a
state court trial. When reviewing the sufficiency of the evidence in a habeas claim, the
standard is deferential to the state court’s conclusions. “[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
, 443 U.S. 307, 318–19 (1979) (citation omitted).
Judge Hey’s R&R applies this standard and concludes that the Superior Court’s
determination that there was sufficient evidence to support the murder convictions was
reasonable. Mr. Talbert objects to this determination of reasonableness, but in doing so,
questions the credibility of the witness testimony. Like the previous objection, this is not
cognizable on habeas review. In his objection to the R&R, Mr. Talbert fails to show that
the state courts’ resolution of his claim was a result of an unreasonable application of
clearly established federal law or an unreasonable determination of the facts. I will
therefore overrule Mr. Talbert’s sufficiency-of-the-evidence objection.
E. Ineffective Assistance Of Counsel
Mr. Talbert objects to several of Judge Hey’s determinations of his claims of
ineffective assistance of counsel. Under ’s two-part inquiry, Mr. Talbert “must
show that counsel’s performance was deficient” by demonstrating that his “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment” and that the deficient performance prejudiced the
defense by showing that counsel's errors were so serious as to deprive the defendant of
a fair trial. , 466 U.S. 668, 687 (1984)
1. Failure to interview eyewitnesses
As Judge Hey determined, Mr. Talbert’s claim that his trial counsel was ineffective
for failing to interview eyewitnesses who gave statements on the night of the shooting
and witnesses mentioned in Mr. Stokes' police statement is unexhausted and procedurally
defaulted. The PRCA court concluded that it lacked jurisdiction to consider this claim
because the petition was untimely and because Mr. Talbert filed it during the pendency
of another petition. The petition also violated Pennsylvania’s restriction on hybrid
representation. Mr. Talbert’s failure to raise this claim on PCRA appeal renders it
unexhausted and defaulted, as Mr. Talbert has no way of presenting this claim to state
courts. 42 Pa. C.S.A. §§ 9544(b) (waiver), 9545(b)(1) (statute of limitations);
, 228 F.3d at 192. Because this claim has defaulted, I will overrule Mr. Talbert’s
objection.
Mr. Talbert argues that he made reasonable efforts to comply with state procedural
rules, so I should excuse his default. But Mr. Talbert hasn’t established cause and prejudice
or a fundamental miscarriage of justice. I don’t have to decide whether Mr. Talbert has
shown cause because he hasn’t shown prejudice. To establish prejudice, Mr. Talbert must
show that the errors at trial worked to actual and substantially disadvantage, not just a
possibility of prejudice. , 856 F.3d 230, 242 (3d Cir. 2007) (quoting
, 456 U.S. 152, 170 (1982)). But two of the individuals that Mr. Talbert
says his lawyer should have investigated (Rey Aviles and Victor Ramirez) could only have
offered statements that were cumulative of evidence presented at trial, as Judge Hey
pointed out in her R&R. Because the jury heard the substance of any evidence they could
have offered, there was no prejudice. Similarly, the other individuals (Kim Allen, Larry
Trippet, Anthony, and another Larry) are people mentioned in another witness’s statement
to the police. Mr. Talbert does not offer any evidence that these individuals would have
offered exculpatory evidence; he just speculates that they might have done so. That’s not
enough to demonstrate prejudice to excuse procedural default.
As for a miscarriage of justice, the Supreme Court requires a petition to show that
a “constitutional violation has probably resulted in the conviction of one who is actually
innocent.” , 513 U.S. 298, 327 (1995) (quotation omitted). This requires the
petitioner to supplement his claim with a “colorable showing of factual innocence.”
, 499 U.S. 467, 495 (1991) (citation omitted). In other words, a petitioner
must present new, reliable evidence of factual innocence. , 513 U.S. at 324. Mr.
Talbert offers no such evidence. At most, he offers evidence that someone might have
undiscovered evidence that might have contributed to his defense. That’s not enough to
carry the heavy burden that Mr. Talbert bears.
2. Failure to object during closing
In Mr. Talbert’s PCRA proceedings and his original habeas petition, Mr.
Talbert challenged the prosecution’s statements during closing arguments that (a)
witnesses were afraid to testify and (b) compared Mr. Talbert’s vehicle to the getaway
vehicle. He did not challenge whether his counsel was acting as an effective advocate.
Habeas counsel, however, replaced the challenge to the substance of the closing with an
ineffective assistance claim that Mr. Talbert never presented to the state courts. Because
it never went to the state courts, it is procedurally defaulted and unexhausted.
Mr. Talbert cites , 556 U.S. 1 (2012), to excuse this default. Under
that case, a “procedural default will not bar a federal habeas court from hearing a
claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.”
, 566 U.S. 1, 17 (2012) (emphasis added). There are two problems with that
argument, though. First, the exception to default under for claims alleging
ineffective assistance of counsel “is limited to situations in which the underlying
procedural default claim is one of ineffective assistance of counsel.” Civ.
No. 13-2503, 2016 WL 5673913, at * 7 (E.D. Pa. Oct. 3, 2016). That’s not the case here; the
underlying claim was a due process claim. Second, the underlying claim is not substantial
because the prosecutor’s statements during closing were fair comments on the evidence
presented for all the reasons that Judge Hey explains in her R&R. “[C]ounsel cannot be
deemed ineffective for failing to raise a meritless claim.” , 228 F.3d at 203. Therefore,
I will overrule Mr. Talbert’s objection.
3. Failure to object to jury instructions
In his 2018 PCRA supplement, Mr. Talbert challenged jury instructions regarding
the conspiracy charge. The PCRA Court deemed that supplement improper because it was
untimely and filed during the pendency of another petition. It also violated Pennsylvania’s
restriction against hybrid representation. Mr. Talbert then failed to present this challenge
on direct appeal during PCRA proceedings, resulting in the procedural default of this
claim, as Judge Hey explains in the R&R.
In his habeas petition, Mr. Talbert changes gear and raises the issue as an
ineffective assistance claim for which default may be excused. The amended claim,
however, is untimely because it was filed nearly 3 years after the habeas petition's
limitations period expired. 28 U.S.C. 2244(d)(1)(C). I therefore have no basis to excuse it.
In addition, the underlying claim is not one of ineffective assistance, so I can’t excuse the
default.
F. Violation For Failure To Disclose Tips
Mr. Talbert did not include in his PCRA Petition his argument that the
prosecution failed to disclose tips about individuals other than Mr. Talbert. His PCRA
counsel tried to raise the claim in a reconsideration motion, but the PCRA court didn’t
allow it, so the state courts never heard the claim on the merits. It’s therefore procedurally
defaulted.
There is no basis to excuse the default. Mr. Talbert argues that there was cause for
the default because the information was not available until later in the process. But the
record belies that fact. Respondents have provided information showing that the District
Attorney provided information on January 9, 2014, evidencing production of five tip line
summary sheets with the information at issue.3 Also, because Mr. Talbert was aware of
these other potential suspects, Mr. Talbert cannot demonstrate prejudice.
G. Violation For Concealing Evidence Of Police Misconduct
Mr. Talbert included a claim alleging after-discovered evidence of
misconduct by several Philadelphia Police detectives. Judge McDermott and the Superior
Court found that this claim did not meet the standards to qualify for a newly-discovered
fact or government interference exceptions to the PCRA statute of limitations. As this
claim was made after the PCRA statute of limitations and does not qualify for an exception,
it is procedurally defaulted.
Mr. Talbert’s stay motion seeks an opportunity to exhaust this claim in state court.
To warrant a stay in federal proceedings, Mr. Talbert must show good cause for his failure
to exhaust his claims, that he has not engaged in intentionally dilatory tactics, and that
the unexhausted claims are potentially meritorious. , 544 U.S. 269,
277-78 (2005). Mr. Talbert argues that he would not have been convicted but for Mr.
Butler’s original police statement, which was allegedly given as a result of police coercion.
However, Mr. Talbert has failed to show that this claim is meritorious. Mr. Butler did not
testify at the trial in which Mr. Talbert was convicted, nor was his statement admitted into
evidence. Thus, Mr. Talbert has failed to establish a connection between the allegedly
3 As Judge Hey noted, I can consider this letter, even though it is not in the reproduced
record, because it bears on the cause and prejudice analysis. , 281
F.3d 404, 413 (3d Cir. 2002).
coerced statement and his conviction. In addition, Mr. Talbert offers no evidence or
witnesses to testify to the alleged misconduct in this case.
IV. CONCLUSION
Mr. Talbert disagrees with his conviction, but he has not shown that Judge Hey
erred in her determination that his claims are procedurally defaulted, untimely, and/or
lack merit. I will therefore overrule his objections and dismiss his petition. In addition, I
conclude that reasonable jurists have no basis to disagree with these conclusions, nor has
Mr. Talbert otherwise made a substantial showing of a violation of a constitutional right.
I therefore will not issue a Certificate Of Appealability. An appropriate Order follows.
BY THE COURT:
JOSHUA D. WOLSON, J.
September 12, 2025