PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 13-9003

______

JAMES A. DENNIS

v.

SECRETARY, PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; 

SUPERINTENDENT, STATE CORRECTIONAL 

INSTITUTION AT GREENE; 

SUPERINTENDENT, STATE CORRECTIONAL 

INSTITUTION AT ROCKVIEW;

DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,

 

Appellants

______

On Appeal from United States District Court 

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-11-cv-01660)

District Judge: Honorable Anita B. Brody
2

______

Argued November 5, 2014

Before: SMITH, FISHER and CHAGARES, Circuit Judges.

(Filed: February 9, 2015)

Thomas W. Dolgenos, Esq. (ARGUED)

Ryan Dunlavey, Esq.

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellant

James W. Cooper, Esq.

Rebecca L.D. Gordon, Esq.

Ryan D. Guilds, Esq.

Meghan Martin, Esq.

Amy L. Rohe, Esq.

Arnold & Porter

555 Twelfth Street, N.W.

Washington, DC 20004

Counsel for Appellee

Melanie Gavisk, Esq.

Office of the Federal Public Defender

411 East Bonnevile Road

Suite 250
3

Las Vegas, NV 89101

Counsel for Appellee

Stuart B. Lev, Esq. (ARGUED)

Federal Community Defender Office for the Eastern District 

of Pennsylvania

Capital Habeas Unit

601 Walnut Street

The Curtis Center, Suite 545 West

Philadelphia, PA 19106

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

In 1991, Chedell Williams was shot and killed in 

Philadelphia. James Dennis was convicted of her murder and 

was sentenced to death. In a series of decisions over thirteen 

years, the Pennsylvania Supreme Court affirmed Dennis’s 

conviction and sentence and denied his application for postconviction relief. Dennis filed an application under 28 U.S.C. 
4

§ 2254 in the United States District Court for the Eastern 

District of Pennsylvania in which he claimed that a variety of 

federal constitutional violations justified a writ of habeas 

corpus. The District Court held that the Pennsylvania 

Supreme Court unreasonably applied Brady v. Maryland, 373 

U.S. 83 (1963), and its progeny in rejecting Dennis’s claims

that the prosecution had withheld three pieces of exculpatory 

and material information. Concluding that the prosecution 

had in fact breached its obligations under Brady, the District 

Court granted a conditional writ of habeas corpus and 

directed the Commonwealth to retry Dennis or release him. 

For the reasons that follow, we will vacate the District 

Court’s order and remand the case for consideration of 

Dennis’s remaining claims.

I.

A.

On October 22, 1991, at around 1:50 p.m., Chedell 

Williams and her friend, Zahra Howard, began to climb the 

stairs to the Fern Rock SEPTA Station in Philadelphia. Two 

men approached them and demanded their earrings. Both girls 

fled, but one of the men caught Williams. He pulled her 

earrings off and shot her in the neck with a silver handgun. 

The shooter then ran by a construction worker, Thomas 

Bertha, who stepped towards the shooter. When the shooter 

raised his gun in Bertha’s direction, Bertha briefly stopped 

but followed the shooter after he ran past Bertha. Bertha was

three or four feet from the shooter when the shooter passed 

him. The two assailants entered a waiting car and drove off. 

Williams died of her injuries.

Howard and other bystanders described the shooter as 

an African-American male; between 5’7” and 5’10”; between 

130 and 160 pounds; between 15 and 20 years old; and 
5

wearing a red sweat suit, a black jacket, a baseball cap, and 

white sneakers. After the police heard rumors that James 

Dennis had committed the murder, officers showed Howard 

and other bystanders a photo line-up including Dennis’s 

picture. Howard identified Dennis, saying, “This one looks 

like the guy, but I can’t be sure.” (J.A. 1509.) A SEPTA 

employee, James Cameron, also identified Dennis and said 

that he looked similar to the shooter, especially from the side, 

but that he could not be sure. Two construction workers, 

Bertha and Anthony Overstreet, also agreed that Dennis 

looked like the shooter. But four witnesses did not identify 

Dennis from the array. Dennis was 21 years old, AfricanAmerican, 5’5”, and between 125 and 132 pounds.

In early November 1991, the police interviewed a 

member of Dennis’s singing group, Charles Thompson, who 

said that he saw Dennis with a silver handgun at their practice 

the night of Williams’s murder.

On November 22, 1991, the police arrested Dennis. He 

signed a statement in which he said that on the day of the 

murder, he had stayed at his father’s house until about 1:30 

p.m., when his father drove him to the bus stop. He said that 

he then rode the bus for 30 minutes to the intersection of 

Henry and Midvale Avenues, that he saw a woman he knew

named Latanya Cason, and that “[w]hen we got off the bus I 

waved to her.” (J.A. 1676.) He said he then walked about a 

half of a mile to Abbottsford Homes, a public housing 

complex, and spent the rest of the day with his friends there. 

Dennis’s father also said that Dennis had spent the morning at 

his father’s house and that his father had driven Dennis to the 

bus stop at 1:53 p.m. The police searched Dennis’s father’s 

house; the lead detective signed a report stating that officers 

discovered two black jackets, a pair of red pants, and a pair of 
6

white sneakers. However, the police lost these items before 

trial.

On December 19, 1991, the police conducted an inperson line-up involving Dennis and five other individuals 

Dennis selected. Howard, Cameron, Bertha, and Overstreet 

participated. Howard identified Dennis, saying, “I think it was 

[him].” (J.A. 229.) Cameron and Bertha identified Dennis 

without reservation. But Overstreet identified a different 

member of the line-up. 

In January 1992, officers interviewed Latanya Cason, 

the woman Dennis said he saw the day of the murder when 

getting off the bus between 2:00 and 2:30 p.m. Cason said 

that she had seen Dennis that day, but at a different time. She 

said that she got off work at 2:00 p.m., collected her publicassistance funds, and ran a few errands before taking the bus 

to the Henry and Midvale Avenues intersection. Therefore, 

she estimated that she saw Dennis that day between 4:00 and 

4:30 p.m.

Not all of the information the police received indicated 

that Dennis was the perpetrator. On October 24, 2011, 

officers interviewed Chedell Williams’s aunt, Diane Pugh. 

The officers’ report states that Pugh told them that Zahra 

Howard—Williams’s friend and an eyewitness—recognized 

the suspects from the high school she and Williams attended. 

Dennis did not attend the same school as Howard and 

Williams. The report indicates that the officers intended to 

follow up with Howard about this comment, but they never 

did.

Additionally, on October 31, 1991, an inmate at the 

Montgomery County Correctional Facility, William Frazier, 

called the Montgomery County Detective Bureau and told 

them he had information about Williams’s murder. The 
7

Montgomery County Detective Bureau passed the tip on to 

the Philadelphia police, who then interviewed Frazier. Frazier 

told them that his aunt had initiated a three-way call with his 

friend, Tony Brown. Frazier said that Brown admitted to 

killing Williams and that the gun went off accidentally. 

Frazier also said that Brown implicated two men—Ricky 

Walker, Frazier’s cousin, and Skeet—and that they were 

hiding out in Frazier’s previous apartment. Frazier told the 

officers that Brown had a history of committing armed 

robberies. Frazier then went on a ride-along with the officers 

and identified a pawn shop where he believed Brown, 

Walker, and Skeet would have sold the earrings; Brown’s 

home; Brown’s girlfriend’s home; Walker’s home; and 

Skeet’s home.

The police then interviewed Walker. Walker said he 

knew Williams from high school, but he denied having 

anything to do with Williams’s murder and denied knowing 

Brown or Skeet. He said that his mother could verify that he 

was sleeping when Williams was murdered and that Frazier 

had previously burglarized Walker’s home and charged 

$1,000 in calls to Walker’s family. The officers also 

interviewed the owner of Frazier’s previous apartment, who 

said that no one had entered the apartment to his knowledge. 

Finally, the police went to an address they thought was the 

address Frazier gave them for Skeet and found no one who 

knew of him; however, they went to the wrong address. They 

did not confirm Walker’s alibi, investigate the pawn shop 

Frazier identified, locate Tony Brown, or contact Frazier’s 

aunt.

The prosecution did not give Dennis the police report 

of Diane Pugh’s interview or any of the reports and other 

documents relating to Frazier’s tip.
8

Dennis’s trial began on October 2, 1992. The 

prosecution called three eyewitnesses who identified Dennis 

as the shooter: Howard, Cameron, and Bertha. The 

prosecution also called Charles Thompson, from Dennis’s 

singing group, who testified that he saw Dennis with a gun 

the night of the murder. A police detective testified that 

officers recovered clothing from Dennis’s father’s house that 

was similar to what eyewitnesses described the shooter wore. 

And the prosecution called Latanya Cason, who testified that 

she saw Dennis at the Henry and Midvale Avenues 

intersection between 4:00 and 4:30 p.m. on the day of the 

shooting. The gun and Williams’s earrings were never found 

and so were not presented at trial.

Dennis presented witnesses who corroborated his alibi 

that he had been with his father before the shooting and took 

the bus to Abbottsford in the afternoon. Three members of his 

singing group testified that Charles Thompson was jealous of 

Dennis. Other witnesses testified to Dennis’s good character. 

Dennis also testified.

A jury found him guilty of first-degree murder, 

robbery, conspiracy, carrying a weapon without a license, and 

possessing the instruments of a crime. During the penalty 

phase, the jury found one aggravating circumstance, that the 

killing was committed in the course of a felony, and one 

mitigating circumstance, that Dennis had no significant 

criminal history. The jury sentenced Dennis to death.

Dennis appealed. During his appeal, in 1997, his new 

appellate counsel went to the regional Department of Public 

Welfare (“DPW”) office and found Cason’s receipt from

when she picked up her public-assistance funds on the day of 

the murder. The receipt indicated that Cason had picked up 

the funds at 13:03, or 1:03 p.m., earlier than she had testified 
9

at Dennis’s trial. Counsel interviewed Cason, and she stated 

that when the police interviewed her for the first time before 

trial, the officers already had a copy of the receipt. She stated 

that she then found her copy of the receipt and that the 

officers took her copy as well. She also stated that she 

reviewed the receipt during the interview and likely had been 

confused by the receipt’s use of military time. She thought

that because of that confusion, she told the officers the wrong 

time she saw Dennis on the day of the murder. But based on 

the correct time from the receipt, she now believed she likely 

had seen Dennis between 2:00 and 2:30 p.m., as Dennis had 

told the police during the investigation and testified at trial.

B.

In his direct appeal to the Pennsylvania Supreme 

Court, Dennis argued, among other things, that he had 

received ineffective assistance of counsel due to trial 

counsel’s failure to investigate Cason and that the prosecution 

violated his due process rights when it did not produce the 

public-assistance receipt before the trial. See Brady v. 

Maryland, 373 U.S. 83 (1963).

The Pennsylvania Supreme Court unanimously 

rejected both claims.1 Commonwealth v. Dennis (Dennis I), 

715 A.2d 404, 408 (Pa. 1998). The court concluded that 

Dennis could not succeed on his ineffective assistance of 

counsel claim because “[Cason’s] testimony would not 

support [Dennis’s] alibi, because the murder occurred . . . 

forty minutes earlier than Cason’s earliest estimate” and 

because her testimony “would have been cumulative” of other 

 

1 Three justices dissented on a different issue, 

prosecutorial misconduct. Dennis I, 715 A.2d at 416 

(Zappala, J., dissenting).
10

testimony that Dennis arrived at Abbottsford Homes between 

2:15 and 2:30 p.m. Id. With respect to Dennis’s Brady claim, 

the court stated, “Finally, it is clear that there clearly was no 

Brady violation. The [public-assistance] receipt was not 

exculpatory, because it had no bearing on Appellant’s alibi, 

and there is no evidence that the Commonwealth withheld the 

receipt from the defense.” Id. The court rejected Dennis’s 

other claims and affirmed his conviction and death sentence. 

Id. at 416.

Dennis filed a timely petition pursuant to 

Pennsylvania’s Post Conviction Relief Act (“PCRA”), 

received new counsel, and also received discovery. In 

discovery, Dennis received the police report of Diane Pugh’s 

interview, which indicated that Zahra Howard told Pugh that 

Howard recognized the shooter from her high school. He also 

received William Frazier’s initial statement to the 

Montgomery County Detective Bureau, his statement to the 

Philadelphia police, a search consent form Frazier signed, a 

police report of officers’ interview with Ricky Walker, Ricky 

Walker’s statement, and a police report of officers’ interview 

with Frazier’s previous landlord (collectively the “Frazier 

lead documents”). Dennis then amended his petition to 

include claims that the prosecution violated Brady by not 

disclosing the report of Pugh’s interview and the Frazier lead 

documents. After evidentiary hearings, the PCRA court 

denied the petition.

Dennis appealed to the Pennsylvania Supreme Court 

again. The court affirmed the judgment in part, vacated the 

judgment in part, and remanded for further proceedings. 

Commonwealth v. Dennis (Dennis III), 950 A.2d 945, 979 
11

(Pa. 2008).2 With respect to the Frazier lead documents, the 

court restated its recent precedent interpreting Brady, which 

held that the prosecution did not have to disclose “‘every 

fruitless lead’” and that “‘inadmissible evidence cannot be the 

basis for a Brady violation.’” Id. at 968 (quoting 

Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005)). 

Before Lambert, the Pennsylvania Supreme Court had held 

that Brady applied to withheld information that “might have 

had” an effect on “the preparation of the defense” as well as 

“the presentation of the defense at trial.” Commonwealth v. 

Green, 640 A.2d 1242, 1245 (Pa. 1994). Noting this 

disagreement in Dennis III, the Pennsylvania Supreme Court 

stated, “Lambert indicates that evidence sought under Brady

must be material and admissible. In the absence of any 

argument regarding the gravamen of Lambert and its effect on 

the continuing precedential value of Green, [Dennis] has 

failed to establish a basis for relief with regard to this 

evidence.” 950 A.2d at 968.

However, with respect to the police report of Pugh’s 

interview, the court found that there was insufficient evidence 

in the record and insufficient explanation for the court to 

affirm the denial of Dennis’s Brady claim. Id. at 969. 

Accordingly, the court vacated that portion of the PCRA 

court’s order and remanded for further proceedings. Id. After 

 

2 The prosecution had filed an interlocutory appeal 

challenging the PCRA court’s grant of discovery on the 

prosecution’s voir dire notes, and the Pennsylvania Supreme 

Court reversed. Commonwealth v. Dennis (Dennis II), 859 

A.2d 1270, 1280 (Pa. 2004). Although the Pennsylvania 

Supreme Court’s 2004 decision is not relevant to this appeal, 

we refer the court’s 2008 decision as Dennis III for the sake 

of completeness.
12

hearing testimony from Pugh and Howard, the PCRA court 

again denied Dennis’s PCRA petition.

The Pennsylvania Supreme Court affirmed on appeal. 

Commonwealth v. Dennis (Dennis IV), 17 A.3d 297, 309-10 

(Pa. 2011). The court concluded that the police report was not 

material because “Howard was extensively cross-examined . . 

. includ[ing] Howard’s identification of the shooter” and 

because “there were two eyewitnesses other than Howard 

who observed the shooting at close range . . . [and who] 

positively identified [Dennis] as the shooter in a photo array, 

in a line up, and at trial.” Id. at 309. Therefore, the court 

found that a different result was not reasonably probable. Id.

Dennis then filed an application under 28 U.S.C. § 

2254 in the United States District Court for the Eastern 

District of Pennsylvania that raised approximately twenty

claims. After full briefing, the District Court granted Dennis a 

conditional writ of habeas corpus. Dennis v. Wetzel (Dennis 

V), 966 F. Supp. 2d 489, 518 (E.D. Pa. 2013). The District 

Court concluded that Dennis was entitled to relief on his 

Brady claims with respect to the Frazier lead documents, 

Cason’s public-assistance receipt, and the police report of 

Pugh’s interview. Id. With respect to the Frazier lead 

documents, the District Court concluded that the 

Pennsylvania Supreme Court’s requirement that evidence be 

admissible to trigger Brady and its determination that the 

Frazier lead was “fruitless” were unreasonable applications of 

clearly-established federal law. Id. at 503-06. With respect to 

Cason’s public-assistance receipt, the District Court 

concluded that the Pennsylvania Supreme Court’s statement

that the receipt was not withheld was an unreasonable 

determination of the facts and its conclusion that the receipt 

was not material was an unreasonable application of clearlyestablished federal law. Id. at 508-12. Finally, with respect to 
13

the police report of Pugh’s interview, the District Court 

concluded that the Pennsylvania Supreme Court’s 

determination that Howard’s cross-examination rendered the 

report immaterial and its determination that the report would 

not have affected the other eyewitnesses’ testimony were 

unreasonable applications of clearly-established federal law. 

Id. at 514-17. The District Court also concluded that the 

Pennsylvania Supreme Court failed to undertake a cumulative 

materiality analysis as required by United States Supreme 

Court precedent. Id. at 517-18. The District Court withheld 

ruling on many of Dennis’s remaining claims. Id. at 491, 501 

n.19, & 510 n.27. The Commonwealth filed a timely notice of 

appeal.

II.

The District Court had jurisdiction over Dennis’s 

habeas corpus petition under 28 U.S.C. §§ 2241 and 2254. 

We have appellate jurisdiction under 28 U.S.C. § 1291. 

Because the District Court did not hold an evidentiary hearing 

and relied on the state court record, we exercise plenary 

review and apply the same standard the District Court 

applied. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).

Under the Antiterrorism and Effective Death Penalty 

Act (“AEDPA”), federal courts reviewing a state prisoner’s 

application for a writ of habeas corpus may not grant relief 

“with respect to any claim that was adjudicated on the merits 

in State court proceedings” unless the claim (1) “resulted in a 

decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined 

by the Supreme Court of the United States” or (2) “resulted in 

a decision that was based on an unreasonable determination 

of the facts in light of the evidence presented in the State 

court proceeding.” 28 U.S.C. § 2254(d). “This is a difficult to 
14

meet and highly deferential standard for evaluating state-court 

rulings, which demands that state-court decisions be given the 

benefit of the doubt.” Cullen v. Pinholster, ___ U.S. ____, 

____, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks 

and citation omitted). Dennis carries the burden of proving 

his entitlement to the writ. Id.

A decision is “contrary to” federal law if “the state 

court applies a rule that contradicts the governing law set 

forth in [Supreme Court] cases” or “if the state court 

confronts a set of facts that are materially indistinguishable 

from a decision of [the Supreme] Court and nevertheless 

arrives at a result different from [Supreme Court] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision 

is an “unreasonable application” of federal law if the state 

court identified the correct governing legal rule but applied 

the rule to the facts of the case in an objectively unreasonable 

manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision 

is based on an “unreasonable determination of the facts” if the 

state court’s factual findings are objectively unreasonable in 

light of the evidence presented to the state court. Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003).

Our review of a state prisoner’s habeas corpus petition 

follows a “prescribed path”: first, we determine what 

arguments or theories supported or could have supported the 

state court’s decision; second, we ask “‘whether it is possible 

fairminded jurists could disagree that those arguments or 

theories are inconsistent with the holding in a prior decision 

of the Supreme Court’”; and finally, we ask whether the state 

court’s decision “‘was so lacking in justification that there 

was an error well understood and comprehended in existing 

law beyond any possibility for fairminded disagreement.’” 

Eley, 712 F.3d at 846-47 (alterations omitted) (quoting 
15

Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770, 786-

87 (2011)).

Each of the claims at issue in this appeal involves

Brady, 373 U.S. at 83. Brady held that the suppression of 

material evidence favorable to the defense violates due 

process. Id. at 87. To prove a Brady violation, a defendant 

must show (1) the evidence was favorable to him; (2) the 

evidence was “suppressed” by the state; and (3) the evidence 

was material such that the defendant was prejudiced by the 

failure to disclose it. Strickler v. Greene, 527 U.S. 263, 281-

82 (1999). Evidence is material if “there is a reasonable 

probability that the suppressed evidence would have produced 

a different verdict.” Id. at 281.

III.

The District Court held that the Pennsylvania Supreme 

Court unreasonably applied Brady in rejecting Dennis’s 

claims that the prosecution withheld the Frazier lead 

documents, Cason’s public-assistance receipt, and the police 

report of Pugh’s interview. We address whether Dennis is 

entitled to relief based on each of the three items and 

conclude that he is not. The Commonwealth has also asked us 

to remand this case to a different judge. We will not.

A.

The Pennsylvania Supreme Court held that the 

prosecution did not violate its disclosure obligations under 

Brady with respect to the Frazier lead documents because 

Dennis did not show that the documents were admissible and 

material. Dennis III, 950 A.2d at 968. That the documents 

were inadmissible and immaterial were independent and 

alternate grounds to reject this claim. Therefore, either ground 

is capable of defeating Dennis’s claim. We find that the 
16

admissibility issue disposes of this claim and only address 

that issue.

To prevail, Dennis must show that the Pennsylvania

Supreme Court’s requirement that evidence be admissible to 

trigger Brady is contrary to or an unreasonable application of 

United States Supreme Court precedent. 28 U.S.C. § 

2254(d)(1). Dennis has not identified any holding of the 

Supreme Court that specifically states that evidence does not 

need to be admissible in order to trigger Brady or any 

Supreme Court case with materially indistinguishable facts. 

Accordingly, the admissibility requirement is not contrary to 

Supreme Court precedent.

We also conclude that the admissibility requirement is 

not an unreasonable application of Supreme Court precedent. 

The Pennsylvania Supreme Court based its admissibility 

requirement on the United States Supreme Court’s decision in 

Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam). In 

Wood, state prosecutors had not disclosed the results of a 

polygraph test that the polygraph examiner opined may have 

indicated a key witness was not telling the truth. Id. at 4. The 

state courts rejected the defendant’s Brady claim, and the 

Supreme Court held that the state courts did not unreasonably 

apply clearly-established federal law. Id. at 4, 9. Specifically, 

the Court held that Brady governs the disclosure of 

“evidence,” “the polygraph results were inadmissible under 

state law,” and therefore the polygraph results were “not 

‘evidence’ at all.” Id. at 5-6. “Disclosure of the polygraph 

results, then, could have had no direct effect on the outcome 

of trial, because [the defendant] could have made no mention 

of them either during argument or while questioning 

witnesses.” Id. at 6.
17

The Ninth Circuit had held that the polygraph results 

would have given defense counsel “a stronger reason to 

pursue an investigation” of the defendant’s theory and may 

have uncovered evidence that could have been used at trial. 

Id. at 5 (internal quotation marks omitted). The Supreme 

Court found that this “speculation” was improper because the 

defendant’s trial counsel indicated that the polygraph results 

would not have changed his trial preparation. Id. at 6-8. The 

Court concluded, 

In short, it is not “reasonably likely” that 

disclosure of the polygraph results—

inadmissible under state law—would 

have resulted in a different outcome at 

trial. Even without [the witness’s] 

testimony, the case against [the 

defendant] was overwhelming. . . . [In 

light of the evidence against the 

defendant], it should take more than 

supposition on the weak premises 

offered by [the defendant] to undermine 

a court’s confidence in the outcome.

Id. at 8.

The Pennsylvania Supreme Court could reasonably 

read the Wood decision as holding that because the withheld 

document was not admissible under state law, it was not 

“evidence” that triggered Brady. The remainder of the 

opinion discussing the Ninth Circuit’s reasoning can 

reasonably be read as dicta, correcting an improperly loose 

standard in § 2254 cases for when a reasonable probability of 

a different result exists.
18

Two of our sister courts of appeals have also held that 

information must be admissible to trigger Brady, a fact that 

confirms our conclusion that the Pennsylvania Supreme 

Court’s interpretation of Wood is reasonable. The Seventh 

Circuit and the Fourth Circuit both agree that Brady only 

applies to information that will be admissible. See United 

States v. Morales, 746 F.3d 310, 314 (7th Cir. 2014) 

(collecting cases); Hoke v. Netherland, 92 F.3d 1350, 1356 

n.3 (4th Cir. 1996) (citing Wood) (“[T]hese statements may 

well have been inadmissible at trial . . . and therefore, as a 

matter of law, ‘immaterial’ for Brady purposes.”).

It is irrelevant that the Supreme Court has never 

expressly limited Brady to admissible evidence. And it is 

irrelevant that we and other courts have held that Brady

applies to inadmissible information if it is otherwise material. 

See Johnson v. Folino, 705 F.3d 117, 129-30 (3d Cir. 2013). 

These are not the tests; the test is whether the state court’s 

decision is an unreasonable application of clearly-established 
19

federal law as determined by the Supreme Court of the United 

States. 28 U.S.C. § 2254(d)(1).3

Our decisions in Munchinski v. Wilson, 694 F.3d 308 

(3d Cir. 2012), and in Johnson are not to the contrary. In 

Munchinski, the Pennsylvania Superior Court rejected the 

defendant’s claims under a heightened materiality standard—

that the evidence would change the outcome—and the fact 

that the withheld information was not admissible was only 

one factor in that approach. Munchinski v. Wilson, 807 F. 

Supp. 2d 242, 279 (W.D. Pa. 2011). Although we affirmed 

the district court’s grant of habeas corpus relief because the 

state courts unreasonably applied Brady, the final state postconviction decision did not reject the defendant’s Brady claim 

only because the information was inadmissible. Moreover, we 

did not address whether a state court’s requirement that 

information be admissible under Brady would be a reasonable 

 

3 The District Court’s analysis of this claim 

specifically noted that “most circuit courts,” including this 

Court, have rejected the premise that inadmissible evidence 

cannot be a basis for a Brady claim. Dennis V, 966 F. Supp. 

2d at 503 (emphasis added). This circuit majority is irrelevant 

in a habeas corpus action because the Supreme Court has 

instructed that “circuit precedent does not constitute ‘clearly 

established Federal law, as determined by the Supreme 

Court.’” Parker v. Matthews, ___ U.S. ____, ____, 132 S. Ct. 

2148, 2155 (2012) (per curiam) (quoting 28 U.S.C. § 

2254(d)(1)). Furthermore, the “diverging approaches [of the 

courts of appeals] illustrate the possibility of fairminded 

disagreement,” demonstrating that the Pennsylvania Supreme 

Court’s reliance on the inadmissibility of the evidence was 

not unreasonable. White v. Woodall, ___ U.S. ____, ____, 

134 S. Ct. 1697, 1703 n.3 (2014).
20

application of federal law. And in Johnson, the state courts 

had not addressed the defendant’s Brady claim on the merits, 

so we reviewed it in the first instance to determine whether to

excuse his default. 705 F.3d at 127-30. Accordingly, we did 

not hold that an admissibility requirement is an unreasonable 

application of clearly-established federal law.4

We have concluded that the state courts could 

reasonably require Dennis to show that the Frazier lead 

documents would be admissible in order to trigger Brady’s 

 

4 Dennis has also drawn our attention to Gumm v. 

Mitchell, ___ F.3d ____, 2014 WL 7247393 (6th Cir. Dec. 

22, 2014). We find this case to be inapplicable for similar 

reasons. First, the State did not attempt to justify denying the 

defendant’s Brady claim on the basis that the withheld 

evidence was inadmissible; the State argued that the evidence 

was inadmissible and was unlikely to lead to admissible 

evidence. Id. at *17 (“The state’s primary argument against 

the materiality of the undisclosed evidence in this case is that 

much of it is inadmissible hearsay and could not have led to 

the discovery of admissible evidence.” (emphasis added)). 

Accordingly, this case does not address the question of 

whether an admissibility requirement is a reasonable 

application of Supreme Court precedent. And second, the 

court adjudicated the Brady claim in the first instance because 

the state courts had found they lacked jurisdiction over the 

claim. Id. at *11. Therefore, the court was not even reviewing 

a state-court decision. Although the court addressed the claim 

as though § 2254(d) deference applied, it did so only in dicta. 

Id. at *23-24. Because the court was not reviewing a statecourt decision and was not considering the same question 

presented to this Court, Gumm does not alter or impact our 

analysis. 
21

disclosure requirement. So if the court concluded that the 

Frazier lead documents were inadmissible as a matter of state 

law, then the court could reasonably reject this claim, and we 

would be unable to grant Dennis relief.

The Pennsylvania Supreme Court found that Dennis 

did not show that the Frazier lead documents would be 

admissible. Dennis provides many reasons why the 

Pennsylvania Supreme Court’s decision on admissibility is 

wrong. However, “a state court’s interpretation of state law . . 

. binds a federal court sitting in habeas corpus.” Bradshaw v. 

Richey, 546 U.S. 74, 76 (2005) (per curiam). We cannot 

reverse the Pennsylvania Supreme Court’s decision on a 

state-law matter. Dennis suggests that this evidence would 

have been admissible under Kyles v. Whitley, 514 U.S. 419, 

441-54 (1995). However, in Kyles, the Court was predicting 

how the state courts would rule on the admissibility of prior 

statements by eyewitnesses. It did not overrule a state court’s 

evidentiary ruling. Dennis also argues that the documents are 

admissible under Chambers v. Mississippi, 410 U.S. 284 

(1973). Dennis raises this argument for the first time on 

appeal, and so he has waived it. See Del. Nation v. 

Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006) (finding such 

arguments waived). Even considering this argument on the 

merits, it fails. Chambers was a “highly case-specific error 

correction,” Montana v. Egelhoff, 518 U.S. 37, 52 (1996) 

(plurality opinion) (Scalia, J.), when “mechanistic[ ]” 

application of hearsay rules that did not include a statement 

against penal interest exception resulted in the exclusion of 

exculpatory evidence, Chambers, 410 U.S. at 302. Dennis 

does not challenge the substance of the Pennsylvania hearsay 

rules or argue that they were applied mechanistically to defeat 

the ends of justice. Instead, he argues that the Pennsylvania 

Supreme Court applied the Commonwealth’s evidentiary 
22

rules incorrectly. That application is a state-court 

determination of state law by which we are bound.

The Pennsylvania Supreme Court reasonably applied 

federal law to hold that Brady’s disclosure requirement does 

not apply to inadmissible evidence. And the court found as a 

matter of state law that the Frazier lead documents were 

inadmissible. Therefore, Dennis is not entitled to relief on this 

claim.5

B.

We next turn to Latanya Cason’s public-assistance 

receipt. The Pennsylvania Supreme Court held that the 

prosecution did not breach its obligations under Brady

because the receipt was not “withheld” and because it was not 

material. Dennis I, 715 A.2d at 408. Again, these are 

independent reasons why Dennis’s claim failed, and if we 

find that either is a valid basis to reject the claim, Dennis is 

not entitled to relief. We find that the “withheld” issue 

resolves this claim.

The record is unclear as to whether the prosecution 

received Cason’s public-assistance receipt. Cason’s affidavit 

says that she gave her copy of the receipt to the police (J.A. 

1735), but the police report of their interview with Cason 

makes no mention of this receipt (J.A. 1529). Even the 

Pennsylvania Supreme Court’s decision is ambiguous. The 

court stated, “During their investigation, however, the police 

 

5 As we explained initially, the inadmissibility of the 

Frazier lead documents renders any analysis of the materiality 

prong of Brady unnecessary. Nonetheless, it is worth noting 

that despite the passage of twenty-plus years, no one has ever 

located the subject of Frazier’s lead, the elusive “Tony 

Brown.”
23

came into possession of a [DPW] receipt showing that Cason 

cashed her check at 1:03 p.m.” Dennis I, 715 A.2d at 408. But 

the court then immediately characterized its previous 

statement as “evidence” and ultimately concluded that the 

receipt was not “withheld.” Id. Accordingly, it is unclear 

whether the Pennsylvania Supreme Court found that the 

prosecution possessed the receipt, and the record is 

ambiguous as well. Nevertheless, we must give the state 

court’s decision the benefit of the doubt. Cullen v. Pinholster, 

___ U.S. ____, ____, 131 S. Ct. 1388, 1398 (2011). 

Accordingly, we ask what arguments could have supported 

the state court’s decision and decide whether those arguments 

are reasonable. Eley, 712 F.3d at 846-47. We find that a valid 

basis exists in the record to conclude that the receipt was not 

suppressed in violation of Brady.

Brady prohibits the “suppression” of exculpatory, 

material evidence. 373 U.S. at 87. The Pennsylvania Supreme 

Court and this Court have both interpreted Brady to mean that 

the prosecution does not have to turn over evidence that is 

also available to the defense with reasonable diligence. 

United States v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991) 

(“Evidence is not considered to be suppressed if the defendant 

either knew or should have known of the essential facts 

permitting him to take advantage of any exculpatory 

evidence.”); Commonwealth v. Paddy, 800 A.2d 294, 305 

(Pa. 2002) (“[N]o Brady violation occurs if the evidence in 

question is available to the defense from non-governmental 

sources or if the defendant knew, or with reasonable diligence 

could have known, of such evidence.” (citations omitted)). 

Recently, we also concluded that it was reasonable for the 

Pennsylvania Superior Court to reject a Brady claim on a 

diligence basis. Grant v. Lockett, 709 F.3d 224, 231 (3d Cir. 

2013). In Grant, the prosecution did not disclose that a 
24

witness in the defendant’s case had three prior convictions 

and was on parole. Id. at 230. The defendant’s PCRA counsel 

discovered these facts during the post-conviction proceedings. 

Id. at 231. We concluded that the state courts reasonably 

rejected the Brady claim because the fact that the PCRA 

counsel discovered the witness’s criminal history by 

searching public records showed that the trial counsel could 

have discovered the witness’s criminal history with 

reasonable diligence at the time of trial. Id.

Here, Dennis’s appellate counsel argued that the

receipt was available with “[a] minimal investigation.” (J.A. 

1800.) Indeed, all indications are that Dennis’s appellate 

counsel, in the process of investigating Cason’s statements for 

purposes of the appeal, went to the DPW and received the 

receipt without any difficulty. The Pennsylvania Supreme 

Court could reasonably determine that the receipt was 

available with reasonable diligence and, therefore, hold that it 

was not suppressed or withheld in violation of Brady.

Dennis argues that the United States Supreme Court’s 

decision in Banks v. Dretke, 540 U.S. 668 (2004), rejects a 

reasonable diligence requirement for Brady claims. We 

disagree. In Banks, the prosecution told the defendant that it 

would produce all exculpatory or favorable evidence in its 

possession but failed to disclose that one witness was a police 

informant and that the prosecution had coached another 

witness on what to say at trial. Id. at 675. The prosecution 

later argued that the defendant had procedurally defaulted her 

Brady claim based on the undisclosed evidence by failing to 

present it to the state courts and that her procedural default

could not be excused because the defendant did not exercise 

due diligence by interviewing the witnesses in question. Id. at 

690-91, 695-98. The Supreme Court—noting that the cause 

and prejudice inquiry to excuse the procedural default merged 
25

with the elements of the Brady claim—held that the defendant 

did not need to exercise diligence in the way the state argued 

to preserve her claim. Id. at 698. Accordingly, the defendant 

showed that the prosecution had suppressed the evidence, 

giving cause for the default, and the evidence was material, 

showing prejudice for the default. Id.

Even assuming that Banks applies—although it was 

issued after the Pennsylvania Supreme Court decided this 

claim in Dennis I—Banks is distinguishable. In Banks, the 

evidence withheld was something that only existed in the 

possession of the prosecution. The evidence that one witness 

was a police informant and that another witness had been 

coached was only available in the prosecution’s files. But 

here, the evidence that Cason received her public assistance at 

1:03 p.m. was publicly available from the DPW. And as 

Dennis himself argued to the Pennsylvania Supreme Court, 

even a minimal investigation would have uncovered it. In 

contrast, a minimal investigation in Banks would not have 

uncovered the favorable evidence because the prosecution 

actively misrepresented what evidence it possessed. See id. at 

693. We conclude that Banks does not render a reasonable 

diligence requirement for publicly-available information an 

unreasonable application of clearly-established federal law. 

The Sixth Circuit also rejected a similar argument in 

Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc). In that 

case, the prosecution did not disclose publicly-available 

sentencing records that arguably could have demonstrated a 

witness’s bias. Id. at 229-31. The court held that state courts 

could reasonably conclude that the sentencing records were 

not subject to disclosure under Brady because they were 

publicly available and rejected an argument that Banks

mandated a different result. Id. at 235-36.
26

Dennis also argues that our own precedent does not 

impose a strict reasonable diligence requirement, but our 

precedent instead identifies factors that must be considered. 

Our own precedent cannot constitute clearly-established 

federal law under § 2254. Renico, 559 U.S. at 779. Even if we 

consider our precedent on this issue to reflect clearlyestablished Supreme Court precedent, the Pennsylvania 

Supreme Court’s adjudication of this claim is still reasonable. 

Generally, we have considered the knowledge of the parties, 

access to the information, and the prosecution’s 

representations in determining whether information was 

available with reasonable diligence to the defendant. See 

United States v. Pelullo, 399 F.3d 197, 216 (3d Cir. 2005). 

The Pennsylvania Supreme Court could reasonably determine 

that those factors suggested that the receipt was available with 

reasonable diligence here: counsel readily secured the receipt 

on appeal and Cason’s importance as a witness to Dennis’s 

alibi was apparent.6

Accordingly, we conclude that the Pennsylvania 

Supreme Court could reasonably exclude from the 

prosecution’s Brady obligations evidence that was available 

to Dennis with reasonable diligence. And the Pennsylvania 

Supreme Court could also reasonably determine that Cason’s 

public-assistance receipt was publicly available with 

reasonable diligence. Therefore, we find that Dennis is not 

entitled to relief on his Brady claim based on Cason’s publicassistance receipt.

 

6

In fact, it is worth highlighting that the prosecution 

actually learned of Cason from Dennis. Thus, it was 

reasonable for the prosecution to have believed the defense 

knew of the evidence.
27

Dennis alternatively asks us to adjudicate his 

companion claim: that his trial counsel was constitutionally 

ineffective in failing to investigate Cason’s story, that counsel 

would have discovered the receipt had he performed the 

investigation, and that the receipt could have affected the 

outcome of the proceedings. The District Court specifically 

reserved judgment on this claim. Dennis V, 966 F. Supp. 2d at 

510 n.27. We decline to address this claim in the first instance 

and will allow the District Court to consider this claim on 

remand. Because we find it unnecessary to address whether 

Cason’s public-assistance receipt was material to Dennis’s 

defense under Brady, and in light of the similarity between 

Brady materiality and Strickland prejudice—see Kyles, 514 

U.S. at 436—we will vacate the District Court’s 

determination that the Pennsylvania Supreme Court 

unreasonably determined that the receipt was not material 

under Brady. The District Court can and should consider 

Dennis’s ineffective assistance claim based on the receipt 

from a clean slate.

C.

Dennis’s final Brady claim concerns a police report of 

an interview with the victim’s aunt, Diane Pugh. The 

Pennsylvania Supreme Court held that the report was not 

material because although the report may have been used to 

impeach Zahra Howard’s identification of Dennis as the 

shooter, no reasonable probability of a different result existed 

because Dennis cross-examined Howard about her 

identification of the shooter and two other eyewitnesses 

identified Dennis as the shooter. Dennis IV, 17 A.3d at 463-

64. We find that this conclusion is a reasonable application of 

Supreme Court precedent.
28

It is true that state courts act unreasonably when 

holding that merely because a witness “is impeached in one 

manner, any other impeachment becomes immaterial.” 

Lambert v. Beard, 633 F.3d 126, 134 (3d Cir. 2011), vacated 

on other grounds sub nom. Wetzel v. Lambert, ___ U.S. ____, 

132 S. Ct. 1195 (2012) (per curiam). However, we have 

recognized that “impeachment evidence, if cumulative of 

similar impeachment evidence used at trial . . . is superfluous 

and therefore has little, if any, probative value.” United States 

v. Walker, 657 F.3d 160, 186 (3d Cir. 2011) (alteration in 

original) (internal quotation marks omitted).

Here, using the police report of Pugh’s interview 

arguably would have been cumulative of similar 

impeachment of Howard’s identification of Dennis. On crossexamination, Howard was asked extensively about her 

identification of Dennis in the photo array and her ability to 

view and remember the shooting. Of principal relevance, 

counsel asked her specifically whether she had ever before 

seen the men who accosted her and Williams. Through it all, 

Howard maintained that Dennis was the shooter. We 

conclude that it was reasonable for the Pennsylvania Supreme 

Court to find that attempting to impeach Howard with the 

report—essentially what the police said Pugh said Howard 

said—would have been cumulative of similar impeachment 

that was actually used at trial, namely challenging Howard’s

identification of Dennis as opposed to someone she already 

knew.

Lambert v. Beard does not compel a contrary result. In 

Lambert v. Beard, the Commonwealth failed to produce a 

police report in which a key participant-turned-witness 

identified three other participants in the crime instead of the 

two he named at trial. 633 F.3d at 135. The defense had 

argued that other aspects of the witness’s story had changed 
29

but had not questioned the witness about the number of 

participants, and the prosecution emphasized that the witness 

consistently identified only two participants in its closing. Id.

We concluded that it was unreasonable for the state courts to 

reject the defendant’s Brady claim merely because other 

cross-examination on different topics took place. Id.

This case is unlike Lambert v. Beard. Dennis directly 

asked Howard whether she had ever seen the shooter before, 

and she said no. Her answer to that question, the inherent 

weakness of a multiple-level hearsay document as 

impeachment evidence, and her insistence on naming Dennis 

as the shooter render the Pennsylvania Supreme Court’s 

rationale reasonable.

We also find the Pennsylvania Supreme Court’s 

second rationale reasonable. The Supreme Court has 

“observed that evidence impeaching an eyewitness may not 

be material if the State’s other evidence is strong enough to 

sustain confidence in the verdict.” Smith v. Cain, ___ U.S. 

____. ____, 132 S. Ct. 627, 630 (2012); see also Strickler, 

527 U.S. at 293-94 (observing that “there was considerable 

forensic and other physical evidence linking petitioner to the 

crime” and that “other eyewitnesses” saw the defendant at the 

crime scene and concluding that impeachment evidence for 

one eyewitness was not material). The Pennsylvania Supreme 

Court could reasonably conclude that this was the case here: 

two other eyewitnesses testified that Dennis was the shooter, 

decreasing the probability that impeaching Howard’s 

identification would affect the outcome.

This conclusion is not contrary to or an unreasonable 

application of Kyles. In Kyles, withheld police reports 

suggested that two of four eyewitnesses to the crime had 

changed their story over time. 514 U.S. at 441-45. Kyles is
30

arguably distinguishable in three key ways and, therefore, 

does not render the state court’s decision unreasonable or 

contrary to clearly-established federal law. First, in Kyles, the 

police reports were based on interviews of the eyewitnesses 

themselves. Here, the withheld police report was based on 

what someone else said the eyewitness told her. This distance 

decreases the impeachment value of the report. Second, in 

Kyles, the remaining eyewitnesses “had their best views of 

the gunman only as he fled the scene with his body partly 

concealed in [a] car.” Id. at 445. Here, Bertha, the 

construction worker, stepped toward the shooter after 

Williams was shot, and the shooter raised the gun in Bertha’s 

direction. (J.A. 540-41.) Bertha was “three or four feet” from 

the shooter. (J.A. 541; J.A. 542.) And finally, in Kyles, the 

police reports about the eyewitnesses’ statements were a few 

documents among a wide variety of evidence withheld. The 

Court determined that all of these materials together 

undermined its confidence in the verdict. 514 U.S. at 454. 

Here, this police report of Pugh’s interview is the only 

evidence whose materiality required consideration, given the 

Pennsylvania Supreme Court’s reasonable adjudication of the 

other Brady claims. 7 Accordingly, we conclude that Kyles

does not make the Pennsylvania Supreme Court’s decision on 

this withheld evidence an unreasonable application of or 

contrary to clearly-established federal law.

Dennis also argues that the Pennsylvania Supreme 

Court misstated the facts in its opinion by implying that 

Dennis attended the same high school as Williams and 

 

7

In light of the Pennsylvania Supreme Court’s 

reasonable disposition of the previous two Brady claims, we 

conclude that the court did not need to inquire into the 

cumulative materiality of the three pieces of evidence.
31

Howard and did not consider two of Dennis’s arguments. We 

first find that the court did not get the facts wrong. The court 

noted that the police report suggested Howard recognized the 

shooter from her high school. Dennis IV, 17 A.3d at 306. 

Later, while summarizing the PCRA court’s findings, the 

court stated that Howard denied knowing Dennis or telling 

anyone that she knew Dennis. Id. at 309. At the PCRA 

hearing, Howard testified not only that she did not know 

Dennis but also that she did not know the assailants and never 

told anyone that she did know them. (J.A. 1467.) The 

Pennsylvania Supreme Court’s decision to equate Dennis 

with the shooter, as all proceedings up to that point had 

confirmed, did not mean that the court decided the claim on 

incorrect facts. Moreover, the court’s decision makes clear 

that it understood Dennis was arguing that the shooter was 

someone other than Dennis whom Howard recognized and 

that the court rejected that argument.

Second, the court did consider all of Dennis’s 

arguments. The court noted that Dennis argued that the report 

“could have led to new investigative avenues” and also 

“could have led counsel to alter his investigative strategy.” 

Dennis IV, 17 A.3d at 307. Thus, the court understood Dennis 

was claiming that the report could impeach the police’s 

investigation of the murder and that the report could have 

assisted counsel’s trial preparation but nonetheless rejected 

the claim. Considering what arguments might have supported 

this rejection, see Eley, 712 F.3d at 846-47, we conclude that 

the rejection was reasonable. That the police heard of this 

alternate identification through a third party and that Howard 

identified Dennis more than once even though she did not 

know him would allow the police to reasonably conclude that 

either Pugh was mistaken in a time of grief or that the officers 

simply transcribed Pugh’s statement incorrectly. And given 
32

that counsel already focused on whether Howard was sure 

that Dennis was the shooter at trial, the Pennsylvania 

Supreme Court could reasonably conclude that the report 

would have minimal impact on Dennis’s trial preparation.

For these reasons, the Pennsylvania Supreme Court 

reasonably rejected Dennis’s final Brady claim.

D.

Before we conclude, we must address one final matter. 

The Commonwealth has asked us to remand this case to a 

different judge. The Commonwealth complains that the 

District Court made comments about Dennis’s possible 

innocence and about the investigation into Williams’s murder 

that demonstrate the appearance of impropriety. We will deny 

the Commonwealth’s request.

In our en banc decision in Boyd v. Waymart, 579 F.3d 

330, 333 (3d Cir. 2009) (en banc), we remanded a case to a 

different judge to avoid the appearance of impropriety. We 

did so because we remanded an issue that the district court 

had already decided for a new decision, and we wished to 

avoid the appearance of impropriety that might result should 

the district court again reach the same conclusion on the same 

issue. Id. at 339 n.10 (Scirica, C.J., concurring). This is, 

however, “an extraordinary remedy that should seldom be 

employed.” United States v. Bergrin, 682 F.3d 261, 282 (3d 

Cir. 2012).

Here, we do not believe reassignment is necessary. We 

have finally resolved all of the claims the District Court 

decided, and our remand will not require the District Court to 

decide the same issues or claims it previously decided.

Rather, it will decide the remaining claims that it has not yet 

considered. We are confident that the District Judge—an 
33

experienced, learned, and fair jurist—will be able to apply the 

proper legal standards to the remaining claims.

IV.

For the reasons set forth above, we will vacate the 

District Court’s order granting Dennis a conditional writ of 

habeas corpus and remand the case for consideration of 

Dennis’s remaining claims in a manner consistent with this 

opinion.