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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHNSON, : CIVIL ACTION

: NO. 04-2835

Petitioner, :

:

v. :

:

:

FOLINO, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. NOVEMBER 23, 2009

Before the Court is petitioner Roderick Johnson’s

(“Petitioner”) motion to depose Berks County Sheriff Eric

Weaknecht (“Sheriff Weaknecht”) concerning Petitioner’s claim for

an alleged violation of Brady v. Maryland. The subtext of this

motion implicates whether Petitioner’s alleged Brady claim has

been procedurally defaulted in state court. 

Petitioner’s alleged Brady violation pertains to

undisclosed impeachment evidence related to certain government

witnesses who testified unfavorably at Petitioner’s trial. 

Petitioner proposes to depose Sheriff Weaknecht regarding the

administrative policies and procedures of the Berks County

Sheriff’s Office concerning the issuance of gun permits in

general and how the policy was applied to Commonwealth witness
The Commonwealth also presented the testimony of Pearl 1

Torres and Shannon Sanders at Petitioner’s trial. Ms. Torres

observed one male chasing and then shooting another male, but was

unable to identify Petitioner as the shooter. (Id. at ¶ 16.) 

Ms. Sanders testified that a man ran past her near the scene of

the shooting and stated that someone was dead and that the

speaker was responsible for the shooting. (Id.) Ms. Sanders

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George Robles. This request relates to Petitioner’s claim that a

witness against him unlawfully possessed a gun permit with the

assistance of the Berks County Sheriff’s Office. 

For the reasons that follow, the Court finds that

Petitioner’s alleged Brady violation is unavailable for review

due to procedural default in the state court, and therefore,

Petitioner’s motion to depose Sheriff Weaknecht will be denied as

moot. 

I. BACKGROUND

On July 14, 1998, Petitioner, was convicted of firstdegree murder and related charges in the Berks County Court of

Common Pleas with respect to the November 1, 1996 shooting death

of Jose Martinez (“Martinez”). (Petition for Writ of Habeas

Corpus ¶ 4.) On July 15, 1998, Petitioner was sentenced to life

imprisonment without parole. (Id.) The Commonwealth’s case

relied heavily on testimony of three witnesses: George Robles

(“Robles”), Luz Cintron (“Cintron,” Robles’ girlfriend) and Mylta

Velazquez (“Velazquez,” Petitioner’s estranged girlfriend). (Id.

at ¶¶ 17-21.) 

1
also was unable to identify Petitioner as the shooter despite

that fact that she knew the Petitioner independently. (Id.) 

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Velazquez testified that Petitioner told her that he

shot Martinez and was a “hit man.” (Id. at ¶ 17.) Cintron, who

knew Petitioner through Robles, testified that she overheard a

conversation in November 1996 in which Petitioner admitted

responsibility for shooting Martinez while driving with his codefendant Richard Morales (“Morales”). (Id. at ¶ 18.) Robles,

who was an acquaintance of Petitioner, likewise testified that

Petitioner made incriminating statements directly to him

regarding Martinez’s homicide. (Id. at ¶¶ 21, 27.)

A. Petitioner’s Alleged Brady Evidence

Petitioner’s Brady claim is founded mainly on the

theory that Robles maintained a corrupt relationship with police

officers for the City of Reading, and that Petitioner was denied

access to evidence which establishes this corrupt relationship

and impeaches the testimony of Robles. Petitioner further

maintains that the Commonwealth withheld impeachment evidence

concerning Cintron, Velazquez, and Morales in violation of Brady. 

The relevant Brady material relied upon by Petitioner with

respect to each witness is as follows:

Cintron:(1) affidavits by several investigators

produced post-trial recounting a statement by Cintron that she

was coerced into testifying by the investigating police officers
Due to the multitude of allegations relating to Robles 2

and in the interest of efficiency, the Court recounts here only

the most relevant material cited by Petitioner.

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and Robles; (2) a Reading Police Report dated July 7, 1998, two

days before Cintron testified at Petitioner’s trial, in which she

is listed as a suspect in an assault case; and (3) an

inconsistent statement in a police report investigating Robles’

involvement in a February 27, 1996 shooting incident concerning a

contradiction in Robles’ whereabouts during the incident. 

Velazquez: affidavits by defense investigators produced

post-trial containing statements from Velazquez that she

testified against Petitioner only after being threatened by the

investigating officers with criminal conspiracy charges. 

Morales: a police report by Reading Police Detective

Vega stating that he saw Morales near the scene of the homicide

after it occurred and that Detective Vega had seen Morales at the

courthouse prior to the homicide.

Robles: (1) Robles was a member of a group identified 2

as the Nyte Life Clique (NLC) through which Robles engaged in

criminal activities and otherwise “ran the streets;” (2) Robles’

statement that he smoked marijuana in the presence of Reading

Police Detectives Angel Cabrera (“Cabrera”) and Bruce Dietrich

(“Dietrich”), and was told by Cabrera that his “potpourri and

marijuana did not mix too well,” but that Robles was not arrested

for this conduct; (3) a statement by Robles that Detectives
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Cabrera, Dietrich, and Vega would question him regarding certain

criminal activities and that Robles was complimented by Cabrera

and Dietrich about his intelligence in the way Robles “ran

things;” (4) a statement by former Berks County Detective Joseph

Stajkowski that Cabrera and Dietrich were involved in illegal

narcotics trafficking; (5) a letter from Robles to Cabrera

stating “I’ll do anything” to be released from custody; (6) an

investigation involving an April 25, 1996 shooting incident at

644 Bingham Street in which Robles’ latent fingerprint was found

on a cigar box, which contained 103 bags of crack cocaine and

cash, and was recovered from the shooting suspect; (7) that

Cabrera and Dietrich returned a safe containing a gun and a cell

phone recovered during the investigation of the April 25, 1996

incident to Robles; (8) that Robles was a suspect in the

investigation of a February 27, 1996 incident in which an

individual (allegedly Robles) assaulted Angel Alvarez and Alberta

Collins by threatening them with a firearm; (9) during the

investigation of an August 1, 1997 shooting incident in Reading,

Pennsylvania, Robles was identified at the scene of the alleged

incident (in addition to several other individuals), questioned

by police, found to be in possession of a handgun which used

similar casings to those fired, and had this weapon confiscated

by police but returned to him at a later date; (10) that Robles

was questioned as a suspect in the investigation of a September
The Court granted Petitioner’s request for (1) 3

disposition sheets relating to the drugs seized during the

incident at 644 Bingham Street; (2) the Reading Police report on

the shooting of McCarthy Hernandez, Reading Police Assignment No.

55610-95; and (3) information related to the March 1998 contact

between Reading Police and Cintron. The Court denied

Petitioner’s request for discovery on (1) three warrants against

Rafael Melendez; and (2) resolution of certain criminal charges

against Cintron. 

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18, 1997 shooting in Reading for which Robles was never charged;

(11) that a gun belonging to Robles was involved in a November 7,

1997 shooting incident at 545 Cedar Street in Reading and Robles

was not prosecuted; and (12) numerous affidavits and statements

indicating that Robles was heavily involved in narcotics

activity. 

B. Discovery Obtained in These Proceedings

Discovery has been ongoing in this matter since January

4, 2007, when the Court granted Petitioner’s motion for

discovery. (doc. nos. 53, 59.) Initially, the Court set a

discovery deadline of March 21, 2007. Every deadline was met by

yet another discovery request by Petitioner. Ultimately, the

Court required the parties to show cause why discovery should not

be closed. (doc. no. 113.) In response, Petitioner filed

another motion for further discovery seeking (1) discovery

already ordered by the Court but not yet produced; and (2) leave

to take depositions. (doc. no. 115.) The Court granted the

motion in part and denied the motion in part. (doc. no. 120.) 

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At this time, the Court concludes that Petitioner has
The following is a summary of discovery that has been 4

provided, will be provided, or is unobtainable after Respondents

expended considerable effort to comply with the Court’s discovery

orders:

! A copy of the tapes of the telephone conversations

between Petitioner and Velazquez that occurred on

January 19, 2004, February 5, 2004, and February

14, 2004 (doc. no. 58);

! Any and all documents in possession of the Berks

County District Attorney's Office, the Reading

Police Department, or any other agency involved in

the prosecution of Petitioner in the instant case

(the Prosecutorial Agencies) which concerns,

relates, or evidences a relationship, if any,

between the Prosecutorial Agencies and any of its

agents or employees, including but not limited to

Dietrich, Cabrera, and Gerardo Vega, and Robles,

including any documents relevant to Robles being a

paid or unpaid informant or a cooperating witness

for the Prosecutorial Agencies (doc. no. 59).

Respondents proffer, and Petitioner does not

contest, that Petitioner has every Reading Police

report containing the name “George Robles.” In

addition, the Commonwealth provided a sworn

statement that Robles was not a paid informant for

the Reading police. (Ex. 8, Pet’r Resp.

Protective Order, doc. no. 110);

! The Reading Police Department personnel files, and

any police internal investigation files, regarding

Detectives Dietrich and Cabrera (except for any

medical information contained therein) (doc. no.

59);

! Any and all documents, concerning any and all

contact by law enforcement officers and members of

the Berks County District Attorney’s Office with

Cintron and/or Velazquez (doc. nos. 59, 76);

! All documents, including notes, supplemental

police reports, reports, correspondence or any

other information concerning the investigation

into other suspects, including but not limited to

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been accorded ample opportunity to engage in a comprehensive

discovery process to develop a full and accurate record with

respect to the alleged Brady claims.4
Samuel De La Cruz, Edwin Vargas Ruiz, Frankie, a

person identified in supplemental police report

dated November 7, 1996, named Mark with a Spider

tattoo on his arm who is alleged to have killed

the victim over a drug deal on Pearl Street (doc.

no. 59);

! Clear, clean copies of the photos attached as

Exhibit 23 to Petitioner’s Motion for Discovery

from which one can discern the likenesses of the

individuals in the photos (doc. nos. 59, 76);

! Copies, transcripts, and computer codings, if they

exist, of 911 tapes and all audiotapes and or

videotapes concerning this case including, but not

limited to, an audiotape identifying someone named

Roddy as responsible for shooting Martinez (doc.

nos. 59, 76);

! Documents related to the shooting incidents at 644

Bingaman St. on April 25, 1996, and at Robles’

house on November 7, 2007, including but not

limited to the reports generated in Assignment

Nos. 19948-96 and 20295-96 (doc. no. 76);

! An affidavit containing an explanation of the

extent and nature of Respondents’ searches for: 

(a) a letter that Robles purportedly sent to

Baldwin; and (b)information on whether Robles was

an informant, paid or otherwise (doc. no. 76);

! Any and all reports and documents concerning or

related to Reading Bureau of Police Assignment No.

7443-96 (doc. no. 110);

! Any and all reports concerning or related to the

investigation of the Ricky Cintron murder[,]”

(doc. no. 110) only to the extent that any of

those documents refer to Robles or another witness

at Petitioner’s trial (doc. no. 110);

! Concerning the punishment or lack of punishment

received by Cintron related to Criminal

Investigation Report No. 39080-98, Respondents

shall either (a) produce any and all information

about Cintron’s punishment or lack of punishment

from the District Attorney’s file in the case, or

(b) permit Petitioner’s counsel to review the full

District Attorney’s file in the case (doc. no.

110);

! Relating to the April 25, 1996, Bingaman St.

shooting incident, Respondents shall (a) produce

three warrants for Rafael Melendez; (b) produce

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any and all police reports in Assignment No.

22604-96, and (c) permit Petitioner’s counsel to

review the evidence seized and disposition sheets

for each item seized, as reported in Reading

Police reports and documents for Assignment No.

19948-96 (doc. no. 110);

! Respondents shall produce any and all documents

and reports related to the January 13, 1999,

search warrant involving 211 Mulberry St.,

Reading, PA, including but not limited to the

reports in Assignment No. 2306-99 (doc. no. 110);

! Respondents shall produce any and all documents

and reports concerning or related to Reading

Police contacts with Robles up to and including

2004 for any contacts that concern or relate to

Petitioner, his case, a related case or

investigation, or a case or investigation

concerning co-defendants Shawnfatee Bridges or

Richard Morales (doc. no. 110);

! Reading Police Assignment No. 55610-95, the report

on the shooting of McCarthy Hernandez (doc. no.

120); and

! March 1998 contact between Reading Police and

Cintron (doc. no. 120).

The Court’s recitation of the complex and extensive 5

procedural history of Petitioner’s case is based upon the

comprehensive February 25, 2008 memorandum opinion written by

Judge Ludgate of the Court of Common Pleas of Berks County. 

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II. PROCEDURAL HISTORY5

Petitioner filed a direct appeal of his sentence on

August 14, 1998. The Superior Court affirmed the decision on

July 15, 1999, and the Pennsylvania Supreme Court denied

Petitioner’s allowance of appeal on December 30, 1999. 

On December 21, 2000, Petitioner filed his first
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Petition for Post-Conviction Relief pursuant to 42 Pa. C.S.A. §

9543 (“PCRA”) and was denied relief on November 29, 2001. This

denial was affirmed by the Superior Court on January 8, 2003, and

the Pennsylvania Supreme Court denied Petitioner’s further

request for relief on March 22, 2004. During the pendency of

appeal from his first PCRA petition, Petitioner filed a second

PCRA petition on September 12, 2003, which was later refiled on

April 13, 2004. Petitioner sought to supplement this second PCRA

petition with alleged Brady material, but the Court of Common

Pleas refused to grant this request and denied Petitioner’s

second PCRA petition on September 22, 2004. The Court of Common

Pleas held that Petitioner’s newly asserted Brady claim was

untimely under the PCRA statute and none of the statutory

exceptions were applicable. The Superior Court affirmed the

denial of this second PCRA petition on September 22, 2005.

During the interim in which Petitioner’s first and

second PCRA petitions were under review by the Pennsylvania state

courts, Petitioner filed the instant habeas petition. Petitioner

filed the petition in this matter on June 25, 2004, and the Court

has accommodated Petitioner in several instances in staying

certain aspects of these proceedings in order to facilitate

exhaustion of Petitioner’s state court petitions.

On June 19, 2007, August 2, 2007, and November 16,

2007, Petitioner filed his third, fourth, and fifth “protective”
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PCRA petitions, respectively. These petitions were dismissed by

the Court of Common Pleas on December 6, 2007, again based upon

the untimeliness of the petitions. The Superior Court affirmed

this decision on January 22, 2009. 

 During a telephone conference held in this matter on

July 23, 2009, this Court instructed the parties to submit

briefing on the exhaustion issue with respect to Petitioner’s

Brady claim only in order to determine whether additional

discovery on this issue was necessary and whether the Brady claim

is ripe for review by this Court. The parties having complied

with the Court’s direction, the issue is ready for adjudication 

III. ANALYSIS

A. Brady Violations

Under Brady v. Maryland, the prosecution must produce

to the defendant evidence that is material to either guilt or

punishment, irrespective of good or bad faith. 373 U.S. 83, 87

(1963); see also United States v. Bagley, 473 U.S. 667, 676

(1985) (extending Brady to impeachment and exculpatory evidence);

Giglio v. United States, 405 U.S. 150, 154 (1972). A wellestablished three-part test is to be applied by the Court in

determining whether a Brady violation has occurred: (1) the

evidence at issue must be favorable to the defendant, either

because it is exculpatory or impeaching in nature; (2) the
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evidence must have been either willfully or inadvertently

suppressed by the government; and (3) prejudice must result from

this suppression. See Banks v. Dretke, 540 U.S. 668, 691 (2004)

(citing Strickler v. Green, 527 U.S. 263, 281-82 (1999)); Lewis

v. Horn, 581 F.3d 92, 108 (3d Cir. 2009).

“Such evidence is material ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different[.]’” 

Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (quoting

Strickler, 527 U.S. at 280). However, a “showing of materiality

does not require demonstration by a preponderance that disclosure

of the suppressed evidence would have resulted ultimately in the

defendant’s acquittal[.]” Id. (quoting Kyles v. Whitley, 514

U.S. 419, 434 (1995)). A conviction would only be reversed if

there is a “showing that the favorable evidence could reasonably

be taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Youngblood, 547 U.S. at

570 (quoting Kyles, 514 U.S. at 435).

Based upon these principles, courts are required to

conduct two independent inquiries in order to determine whether a

Brady violation has occurred. Smith v. Holtz, 210 F.3d 186, 196

(3d Cir. 2000). The first inquiry is “whether the prosecution

must disclose the evidence, i.e., whether the evidence is Brady

material.” Id. The second, and independent inquiry, is “whether
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suppression of that evidence undermines confidence in the outcome

of a criminal trial, i.e., whether the evidentiary suppression

constitutes a Brady violation. Id.; see also Strickler, 527 U.S.

at 281-82 (distinguishing between Brady material and a Brady

violation on the ground that nondisclosure of Brady material only

evolves into a Brady violation where the nondisclosure is “so

serious that there is a reasonable probability that the

suppressed evidence would have produced a different verdict”). A

cognizable Brady claim exists only where both of these elements

are present. 

B. Applicable Law on Exhaustion and Procedural Default 

Under the exhaustion doctrine, a federal court is

precluded from considering the merits of a habeas petition where

the petitioner has failed to exhaust state remedies. See 28

U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). The exhaustion doctrine requires that a state prisoner

allow the “the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the

State's established appellate review process." Id. at 845; see

also Woodford v. Ngo, 548 U.S. 81, 92 (2006). 

In order to exhaust a claim, it must be “fairly

presented” to the state courts, meaning that the petitioner has

raised “the same factual and legal basis for the claim to the

state courts.” Nara v. Frank, 468 F.3d 187, 197-98 (3d Cir.
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2007) (citing Duncan v. Henry, 513 U.S. 364, 366 (1995) (per

curiam)). Exhaustion can only be established when the petitioner

“presents” to the state court substantially the same claim for

which he seeks review before the federal court. See Johnson v.

Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). The petitioner

retains the burden to prove all facts relevant to the exhaustion

requirement. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1998) (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.

1993)). 

The doctrine of exhaustion is inapplicable where the

unexhausted claim would not be considered by the state courts

because it is procedurally barred. See Doctor v. Walters, 96

F.3d 675, 681 (3d Cir. 1996). Exhaustion is only excused when

the state law “clearly foreclose[s] state court review of [the]

unexhausted claims.” Id. (quoting Toulson, 987 F.2d at 987).

“Whereas the exhaustion inquiry asks whether a claim was

‘presented to the state courts,’ the procedural default analysis

considers whether the claim was ‘presented in the manner that

state law requires.’” Boyd v. Waymart, 579 F.3d 330, 368

(3d Cir. 2009) (Hardiman, J., dissenting) (quoting Edwards v.

Carpenter, 529 U.S. 446, 452 (2000) (emphasis added)); see also

id. (“[T]he Supreme Court has made clear that a procedural

default ‘forecloses relief even when the petitioner has exhausted

his remedies.’” (quoting O’Sullivan, 526 U.S. at 850 (Stevens,
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J., dissenting)).

A federal court is precluded from reviewing

procedurally defaulted claims unless the prisoner can demonstrate

either: (1) cause for the default and prejudice resulting from

the violation; or (2) that failure to review the alleged claims

will result in a “fundamental miscarriage of justice.” Coleman

v. Thompson, 501 U.S. 722, 750 (1991). In order to satisfy the

cause and prejudice requirements, “a petitioner must demonstrate

some objective factor external to the defense that prevented

compliance with the state's procedural requirements.” Cristin v.

Brennan, 281 F.3d 404, 412 (3d Cir. 2002). To show a fundamental

miscarriage of justice will result absent review, the petitioner

is required to present new evidence that “he is actually innocent

of the crime . . . by presenting new evidence of innocence.” Id.

(internal quotation omitted).

Establishing “cause and prejudice” in the context of

procedural default of an alleged Brady claim, “parallel[s] two of

the three components of the alleged Brady violation itself.” 

Banks, 540 U.S. at 691 (quoting Strickler, 527 U.S. at 282). The

concept of “cause” coincides with the second Brady component

(showing that evidence was suppressed by the government), whereas

a showing of “prejudice” is equivalent to establishing that

evidence was “material” for Brady purposes. Id. (internal

citation omitted). Therefore, a determination of whether a
While Petitioner must also satisfy the first Brady 6

component (relevant evidence is favorable as either impeachment

or exculpatory evidence) to succeed on his Brady claim, there is

no dispute that the evidence which Petitioner alleges was

withheld would qualify as favorable impeachment evidence subject

to disclosure under Brady. See Bagley, 473 U.S. at 676 (finding

that impeachment evidence is covered by Brady) 

Although futility clearly establishes that exhaustion 7

is excused in this circumstance, the Court could alternatively

find that because the claims were presented before the

Pennsylvania state courts, although not ruled upon on the merits,

they were “fairly presented” in a manner that satisfies the

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showing of “cause and prejudice” has been made mirrors an

analysis of the merits of the suppression and materiality prongs

of the Brady analysis. Id. In other words, if the government 6

wrongfully suppresses evidence, then an external factor prevented

a petitioner’s compliance with state procedure, and if the

withheld evidence was material to a petitioner’s trial, then

barring a petition on procedural grounds would create prejudice.

C. Discussion

It is undisputed that Petitioner’s Brady claim can no

longer be presented to the Pennsylvania state courts for review

because it is untimely. Under these circumstances, the

exhaustion requirement is excused on the basis of futility. See

Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004). 

Exhaustion will be excused as “futile” if “the state court would

refuse on procedural grounds to hear the merits of the claims.” 

Doctor, 96 F.3d at 681; Szuchon v. Lehman, 273 F.3d 299, 323-24

n.14 (3d Cir. 2001). Although Petitioner is able to clear the 7
exhaustion requirement. See Johnson, 392 F.3d at 556 (finding

that the exhaustion requirement was satisfied even though the

merits of the claim were not considered because the petition was

untimely); Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984)

(concluding that a finding of exhaustion was not precluded where

the state court chose not to address the merits of petitioner’s

claims after a finding of waiver); Barnhart v. Kyler, 318 F.

Supp. 2d 250, 256 (M.D. Pa. 2004) (“Late or untimely filings,

even if insufficient under state procedural rules, satisfy the

exhaustion doctrine.”) (internal citations omitted). 

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barrier of exhaustion, the habeas doctrine of procedural default

applies and bars this Court from considering the Brady issue.

As an initial matter in the procedural default

analysis, the Court finds that the refusal by the Pennsylvania

state court to review the Brady claim on the basis of timeliness

is an adequate and independent state grounds. See Slutzker, 393

F.3d at 381 (noting that the “raison d'être for the [procedural

default] doctrine lies in the fact that a state judgment based on

procedural default rests on independent and adequate state

grounds.”) (citing Coleman, 501 U.S. at 730). In Slutzker, the

Third Circuit instructed that the failure to raise a Brady

violation within the statute of limitations pursuant to the PCRA

qualifies as an independent and adequate state grounds to

constitute a procedurally defaulted claim. Id. 

Therefore, in order to overcome this procedural default

barrier, Petitioner must establish “cause and prejudice” or a

“fundamental miscarriage of justice.” Id. The Court will

address these alternative grounds ad seriatim. 
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1. Cause and Prejudice 

As explained above, the Court’s analysis of “cause and

prejudice” mirrors the second and third prongs required under

Brady. First, suppression of evidence by the government

constitutes an external factor that qualifies as sufficient

“cause” to overcome procedural default of a Brady claim. See

Strickler, 527 U.S. at 282 (finding that the suppression of

exculpatory documents “constitutes one of the causes for the

failure to assert a Brady claim in the state courts”). Second,

Petitioner can only establish “prejudice” by demonstrating that

the withheld evidence was material under Brady. If the Brady

claim lacks merit, then Petitioner cannot establish prejudice. 

See Slutzker, 393 F.3d at 385 (noting that the determination of

whether the prejudice prong has been satisfied for the procedural

default of a Brady claim “is identical to the analysis of

materiality under Brady itself.” (citing Strickler, 527 U.S. at

282); Albrecht v. Horn, 485 F.3d 103, 132 (3d Cir. 2007). 

Here, Petitioner cannot establish both cause (i.e.,

wrongful suppression by the Commonwealth) and prejudice (i.e.,

materiality under Brady) with respect to the evidence regarding

Robles, Cintron, Velazquez and Morales. Therefore, the

procedural default rule precludes review of these claims by the

Court. 

(a) Robles 
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Petitioner cannot establish prejudice with respect to

any of the allegedly withheld evidence regarding Robles because

it does not satisfy the materiality standard under Brady.

Petitioner relies upon a litany of evidence demonstrating Robles

was at least tangentially involved in criminal investigations in

order to assert that a corrupt relationship existed between

Robles and the Reading Police Department. It is true that

information regarding a witness’ arrangement with the prosecution

regarding criminal charges can affect the credibility of the

witness and may satisfy Brady. See Simmons v. Beard, 581 F.3d

158, 170 (3d Cir. 2009) (citing Giglio, 405 U.S. at 153-54). 

Petitioner, however, cannot point to any express or implied

agreement between Robles and Commonwealth prosecutors which

resulted in the dismissal of any charges against Robles. 

Instead, Petitioner emphasizes that Robles’ “uncharged criminal

conduct” demonstrates the existence of a corrupt relationship and

constitutes material impeachment evidence under Brady. 

Petitioner fails to recognize, however, that because

this evidence pertaining to “uncharged criminal conduct” is

inadmissable under Pennsylvania law to impeach a witness, it

cannot be considered material for purposes of Brady. United

States v. Oxman, 740 F.2d 1298, 1311 (3d Cir. 1984), vacated on

other grounds, 473 U.S. 922 (1985) (“In order to be material,

evidence suppressed must have been admissible at trial.”); United
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States v. Stewart, 325 F. Supp. 2d 474, 502 (D. Del. 2004); Pagan

v. Brooks, Civ. No. 07-4780, 2008 WL 4838353, at *13-14 (E.D. Pa.

Nov. 5, 2008) (Golden, J.) (finding that no Brady violation

occurred where state court refused to admit prior internal

affairs investigation of police officer which was inadmissible

under state rule precluding presentment of prior bad acts). It

is clear that under Pennsylvania law, uncharged criminal conduct

may not be used to test the veracity of a witness, where such

prior conduct has not led to convictions. Commonwealth v.

Chmiel, 889 A.2d 501, 534 (Pa. 2005) (citing Commonwealth v.

Jackson, 381 A.2d 438, 439 (Pa. 1977)); Pa. R. E. 609(a)). Here,

none of the evidence presented by Petitioner with respect to

Robles’ run-ins with law enforcement resulted in any convictions,

let alone any formal charges being filed. Therefore, the

uncharged criminal conduct asserted by Petitioner cannot be

considered material under Brady and its progeny. 

Furthermore, assuming arguendo that the evidence

alleged by Petitioner with respect to Robles’ interaction with

Reading police would have been available to impeach Robles, it

does not rise to the level of materiality required under Brady. 

Petitioner contends that a reasonable inference could be drawn by

the jury that Robles received favorable treatment from the

Reading Police with respect to his criminal activities in

response to his willingness to assist in Petitioner’s criminal
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prosecution. There are two distinct defects with Petitioner’s

theory. 

First, the decision of whether charges are brought

against an individual is within the sole discretion of the state

prosecutor. Under Pennsylvania law, police officials are not

empowered to make charging decisions. Rather, the charging

decisions here were made by the Berks County District Attorney’s

Office and not the Reading Police. 

Second, Petitioner argues that a trier of fact could

have drawn the inference that the Reading Police documented these

alleged criminal activities in the police incident reports in

order to hold them over Robles’ head in the event he refused to

cooperate in the future. An equally plausible inference that

could be drawn is that Robles was investigated with respect to

several criminal matters, but that insufficient evidence existed

to initiate any formal charges against him. Thus, since this

evidence is subject to equally plausible inferences, it would not

“put the whole case in such a different light as to undermine

confidence in the verdict,” Youngblood, 547 U.S. at 570 (quoting

Kyles, 514 U.S. at 435), and the required showing of materiality

is absent.

Absent a showing of materiality, Petitioner cannot

establish prejudice with respect to this information. 

(b) Cintron 
-22-

 Petitioner relies upon the following impeachment

evidence in support of his Brady claim with respect to Cintron:

(1) affidavits by Petitioner’s investigators written after

Petitioner’s trial recounting a statement by Cintron that the

Reading Police and Robles coerced her into testifying; (2) a

Reading Police Report dated July 7, 1998 (the “July 1998

Report”), in which Cintron was investigated for an assault; and

(3) a Reading Police Report dated February 27, 1996 (the

“February 1996 Report”), which recites a single inconsistent

statement by Cintron to the police during an investigation

regarding Robles’ whereabouts.

(i) Post-trial affidavits 

Petitioner cannot show “cause” with respect to the

post-trial affidavits indicating that Cintron’s testimony was

coerced because Petitioner cannot demonstrate that the

Commonwealth either willfully or inadvertently suppressed any

such evidence. See Banks, 540 U.S. at 691 (establishing that

Brady claim requires a showing that evidence was “suppressed by

the State, either willfully or inadvertently”). The duty to

disclose Brady material is not contingent upon a request by the

accused. United States v. Agurs, 427 U.S. 97, 107 (1976). The

duty of disclosure is not limited solely to evidence that a

“prosecutor is aware of, rather it extends to evidence known only

to police investigators and not to the prosecutor.” Smith, 210
-23-

F.3d at 195 (internal quotation marks and citation omitted). 

Therefore, a prosecutor is charged with the responsibility of

“learn[ing] of any favorable evidence known to the others acting

on the government’s behalf in the case, including the police.” 

Id. (quoting Kyles, 514 U.S. at 437). An important limitation on

this duty, however, is that Brady does not require the prosecutor

to provide information that the defendant can himself obtain with

reasonable diligence. See United States v. Pelullo, 399 F.3d

197, 213 (3d Cir. 2005); Gov't of Virgin Islands v. Martinez, 780

F.2d 302, 318 (3d Cir. 1985); United States v. Starusko, 729 F.2d

256, 262 (3d Cir. 1985). 

Assuming that information existed that Cintron was

coerced by Robles and the Reading Police, Petitioner cannot show

that this information was suppressed by the Commonwealth. 

Importantly, Petitioner points to no evidence to show that the

prosecutor for the Commonwealth was actually aware of the alleged

coercion by either Robles or the Reading Police. 

Absent any evidence that the Commonwealth prosecutor

was aware of the alleged coercion, his knowledge with respect to

this impeachment evidence could be imputed only where the

information was available to an agent acting on the

Commonwealth’s behalf. See United States v. Risha, 445 F.3d 298,

306 (3d Cir. 2006) (noting that a “Brady violation may be found

despite a prosecutor's ignorance of impeachment evidence . . . 
-24-

when the withheld evidence is under the control of a state

instrumentality closely aligned with the prosecution”) (internal

quotation marks and citation omitted). First, since Robles

clearly does not qualify as an individual acting on behalf of the

Commonwealth, there was no duty on behalf of the Commonwealth to

discover such evidence. If no duty existed for the Commonwealth

to learn of such evidence, then it could not be considered

suppressed, and thus Petitioner cannot establish “cause.” 

Second, with respect to the statements in the posttrial affidavits recounting Cintron’s statement that she was

coerced by the Reading Police, and therefore had a bias or motive

to lie while on the stand, the Commonwealth was not required to

disclose this alleged information on the basis that it was

available to Petitioner through the exercise of reasonable

diligence. Petitioner had sufficient access to Cintron based

upon her status as a trial witness and Petitioner had the

opportunity to cross-examine Cintron with respect to her motives

for testifying. 

Ordinarily, improper motive or bias is tested through

the time-honored method of cross-examination. Therefore, when a

Brady claim is based upon an allegation of a witness’s improper

motive or bias which had not been disclosed by the prosecution

prior to trial, the claimant must show that he did not have a

full and fair opportunity to cross-examine the witness at trial. 
-25-

See Fell v. Patrick, Civ. A. No. 06-4751, 2007 WL 2668879, at *5

(E.D. Pa. Sept. 6, 2007) (DuBois, J.) (concluding that crossexamination of a witness would have allowed a defendant to

discover allegedly suppressed evidence through the exercise of

“reasonable diligence”) (citing Pelullo, 399 F.3d at 213). 

In this case, because the evidence relating to the

alleged coercion by Reading Police could have been obtained by

Petitioner through the exercise of reasonable diligence,

including the opportunity to cross-examine during trial,

Petitioner cannot show that this information was unlawfully

suppressed. Thus, the element of “cause” does not exist and the

procedural default rule precludes review. 

(ii) July 1998 Report 

Petitioner cannot establish that the alleged

nondisclosure of the July 1998 Report satisfies the materiality

standard under Brady, thus no prejudice exists. The July 1998

Report involved an alleged assault by Cintron on July 7, 1998,

which Petitioner concedes was a mere two days before Cintron

testified at Petitioner’s murder trial. 

Assuming that the Commonwealth could have discovered

the July 1998 Report in light of the proximity in time to

Cintron’s testimony, it would have been inadmissible and thus

immaterial under Brady. First, the July 1998 Report does not

indicate that any formal charges were pending at the time Cintron
-26-

testified, and therefore it could not constitute Brady material

based on the reasoning previously discussed with respect to

Robles’ “uncharged criminal conduct.” Second, even assuming that

Cintron had been convicted of simple assault and harassment, as

suggested by the July 1998 Report, these convictions were

inadmissible under Pennsylvania law to impeach because they do

not involve dishonesty or false statement. See Com. v. Hall,

867 A.2d 619, 638-39 (Pa. Super. Ct. 2005) (finding that witness’

prior convictions for simple assault were inadmissible because

they involved crimes of violence rather than falsity and deceit);

Com. v. Penn, 439 A.2d 1154, 1160 (Pa. 1982) (stating that “it is

well settled that a witness may be impeached on the basis of a

prior conviction only if the crime involves dishonesty or false

statement”). Therefore, any alleged withholding of the July 1998

Report did not prejudice Petitioner. 

(iii) February 1996 Report

Petitioner’s reliance on Cintron’s single inconsistent

statement in the February 1996 Report with respect to the

February 27, 1996 shooting incident does not qualify as material

evidence under Brady. The February 1996 Report recounts an

inconsistent statement made by Cintron to Detective Cabrera

during the investigation of the shooting in which Cabrera was

attempting to locate Robles to interview him about the incident. 

Initially, Cintron told Cabrera that Robles had traveled to New
-27-

York earlier in the day, however, she later admitted to Cabrera

that Robles was actually in the Philadelphia area. Petitioner

relies upon a single inconsistent statement in the February 1996

Report concerning a separate and unrelated incident which

occurred two years before Petitioner’s trial. Even assuming that

this statement had been available for Petitioner’s use in

impeaching Cintron, there is no “reasonable probability” that a

different outcome would have resulted in Petitioner’s trial. See

Youngblood, 547 U.S. at 870 (internal quotation marks and

citation omitted). 

(c) Velazquez

As with Cintron, Petitioner relies upon an affidavit

produced post-trial recounting a statement from Velazquez that

she provided a statement inculpating Johnson only after she was

threatened by the Reading Police with criminal conspiracy

charges, and therefore had a bias or motive to lie while on the

stand. Petitioner again provides no evidence showing that the

Commonwealth prosecutor was aware of any threatened charges or

leniency agreement with Velazquez. It is true that “evidence

regarding a witness's arrangements with the prosecution regarding

pending criminal charges may affect the witness's credibility and

thus may be material for Brady purposes.” Simmons, 581 F.3d at

170. Petitioner fails to provide any evidence, however, of an

express or implied agreement between Velazquez and the
-28-

prosecutor. See Todd v. Schomig, 283 F.3d 842, 849 (7th Cir.

2002) (“Without an agreement, no evidence was suppressed, and the

state's conduct, not disclosing something it did not have, cannot

be considered a Brady violation.”).

Therefore, in order to establish “cause” Petitioner

must rely on the affirmative duty of the Commonwealth prosecutor

to learn of the purported deal between Reading Police and

Velazquez concerning the potential criminal conspiracy charges. 

Even assuming the prosecutor’s duty extended to this information,

Petitioner again fails to show that he could not have obtained

the same information through the exercise of reasonable

diligence. As discussed above with respect to Cintron, when a

Brady claim is founded on an allegation of a witness’s improper

motive or bias, the claimant must demonstrate that he did not

have a full and fair opportunity to cross-examine the witness

during trial in order to show that such information was

unlawfully suppressed. 

Petitioner clearly had access to Velazquez as a trial

witness and therefore had a full and fair opportunity to crossexamine her with respect to her motives for testifying and the

existence of any threats regarding criminal conspiracy charges. 

See Sims v. Patrick, No. Civ.A.04-3379, 2005 WL 2476226, at *7

(E.D. Pa. Oct. 5, 2005) (Yohn, J.) (finding that the factual

predicate for a Brady claim that the prosecution withheld
In the affidavit, Morales does not state the exact 8

courthouse or where this courthouse is located in relation to the

scene of Martinez’s murder. 

-29-

evidence of deals it made with a witness could have been

discovered through reasonable diligence because defendant’s

attorney had opportunity to cross-examine the witness on her

motives and any alleged deals made with prosecutors). Therefore,

since Petitioner cannot establish that evidence of an alleged

deal with Velazquez was not available to him through the exercise

of reasonable diligence, Petitioner cannot demonstrate “cause”

with respect to this claim. 

(d) Morales 

Petitioner relies upon an affidavit by Morales and a

November 2, 1996 police report (the “November 1996 Report”) by

Reading Police Detective Vega which allegedly provides an alibi

for Petitioner’s co-defendant Morales. Apparently, Petitioner

believes that since he and Morales were riding in a car together

at the time of the shooting, if Morales has an alibi then the

alibi is equally applicable to him. 

In his affidavit, Morales claims that he was not

present in the area at the time that Martinez was shot because he

was at the “courthouse” to bail out a friend. Morales admits in 8

the affidavit, however, that he saw Detective Vega near the scene

of the homicide after it occurred. The November 1996 Report

corroborates that Detective Vega saw Morales at the courthouse,
-30-

but does not provide a definitive date or time for this

encounter. More importantly, the November 1996 Report states

that Detective Vega saw Morales near the scene of Martinez’s

homicide and questioned him about it. Since the November 1996

Report evidences only that Detective Cabrera had an encounter

with Morales at an earlier undetermined time and that he

questioned Morales about the homicide near the location where it

occurred, it is unclear how this would possibly demonstrate a

cognizable alibi for Morales, let alone Petitioner. Accordingly,

if this police report had been disclosed to the defense, there is

no reasonable probability that the result of Petitioner’s trial

would have been different. See Youngblood, 547 U.S. at 870. 

Therefore, Petitioner cannot establish that this information was

material under Brady, and therefore cannot demonstrate that

prejudice exists to excuse the procedural default. 

2. Fundamental Miscarriage of Justice 

A second avenue for overcoming procedural default is

for Petitioner to show that a “fundamental miscarriage of

justice” has occurred. See Slutzker, 393 F.3d at 381 (internal

citation omitted). In this case, even after extensive discovery,

Petitioner fails to produce evidence that he is actually

innocent. See Schlup v. Delo, 513 U.S. 298, 316 (1995); Keller

v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001). Therefore, a

finding of a “fundamental miscarriage of justice” is not
Respondent filed a motion for leave to file a 9

supplemental response to Petitioner’s supplemental memorandum

(doc. nos. 157, 159). As the Court has determined that no

further briefing is necessary to decide this issue, the motion

for leave to file a supplemental response will be denied. 

-31-

warranted in this case. 

D. Motion to Compel Deposition of Sheriff Weaknecht 

After a full opportunity for discovery, Petitioner has

not established that his alleged Brady claim is meritorious. 

Therefore, the procedural default rule bars review. Under the

circumstances, Petitioner’s motion to depose Sheriff Weaknect is

denied as moot. 

9

IV. CONCLUSION

For these reasons, Petitioner’s motion to depose

Sheriff Weaknecht will be denied as moot. An appropriate order

will issue. 
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