IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAMONT GIST : CIVIL ACTION

:

v. :

:

DAVID DIGUGLIELMO, et al. : NO. 05-4250

MEMORANDUM

McLaughlin, J. August 25, 2009

Petitioner Lamont Gist filed a petition for habeas

corpus in this Court pursuant to 28 U.S.C. § 2254. The

petitioner, who is currently incarcerated in the State

Correctional Institution at Graterford, Pennsylvania, challenges

his conviction for first degree murder, aggravated assault, and

possessing instruments of a crime. The habeas petition was

referred to the Honorable Magistrate Judge Linda K. Caracappa. 

Judge Caracappa has filed a Report and Recommendation,

recommending that the petition be denied and dismissed and that

there is no basis for the issuance of a certificate of

appealability. The petitioner has filed objections to the Report

and Recommendation, which for the first time have requested an

evidentiary hearing on newly-acquired evidence. For the reasons

below, the Court dismiss the petition and deny the petitioner’s

request for an evidentiary hearing and a certificate of

appealability.

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The Court’s summary of the testimony at trial is not 1

comprehensive and does not discuss witnesses and testimony that

do not directly concern the issues raised in the habeas petition. 

2

I. BACKGROUND

A. The Petitioner’s Trial

At around 10:40 p.m. on August 30, 1996, in a parking

lot off Germantown Avenue in Philadelphia, Ruben Simmons was shot

and killed and Brian Johnston was shot and injured. The

petitioner, Lamont Gist, was arrested and charged with the

shootings. He was tried before a jury for first degree murder,

aggravated assault, and possession of the instruments of a crime

in the Criminal Trial Division of the First Judicial District of

Pennsylvania, Philadelphia, from July 23 to August 1, 1997.

At trial, the prosecution contended that Gist had shot

Ruben Simmons and Brian Johnston as the culmination of an

escalating series of conflicts among Gist, Simmons, Johnston, and

their friends. The prosecution’s key witness was Brian Johnston,

who identified Gist as the man who shot both him and Simmons. 

The defense contended that Gist was not the shooter and that

Simmons and Johnston had been shot by another man, Anthony Grant,

also known as “Roster,” who had also been part of the escalating

hostilities. The defense’s key witness was Abid Stevens who

testified that he had seen Grant shoot Simmons and Johnston.1

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1. The Government’s Case

a. Johnston’s Testimony Concerning the Shooting

Brian Johnston testified at trial that he was with

Ruben Simmons all day on August 30, 1996. That night, as

Johnston and Simmons were driving in Simmons’ car, Simmons

received a page. Johnston and Simmons then drove to the parking

lot off Germantown Avenue and joined a group of four or five

people who were there shooting dice. Johnston recognized one of

the people already there as Abid Stevens. 

Johnston testified that Abid Stevens left the group

and, several minutes later, Lamont Gist walked up, said to Ruben

Simmons, “I heard you were looking for me,” and began shooting. 

Johnston testified that he saw Gist shoot Johnston, and then

everyone scattered and began to run. Johnston ran halfway down

the block and hid, but saw Gist coming towards him on the other

side of the street. Johnston ran back toward the parking lot,

and Gist fired two shots at him, hitting him in the foot. 

Johnston kept running until he was able to get into a car and be

driven to a friend’s house at 330 Vernon Street where the police

were called. Johnston testified that Anthony “Roster” Grant was

not present when he was shot. 7/24/97 N.T. at 11-13, 22-28, 41,

58-59, 65, 69-75, 82.

The government presented testimony from two police

officers who responded to the call from 330 Vernon Street. Both

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Officers James Middleton and Jeffery Hannan testified that they

arrived separately at 330 Vernon and spoke to Johnston who

identified the person who shot him and Ruben Simmons as “Lamont”

or “Mont.” Johnston was taken to the hospital where he repeated

his identification of Lamont as the shooter. After being

discharged, Johnston was taken to the homicide division where he

gave a statement and identified Lamont Gist out of a photo array

as the person who shot him and Ruben Simmons. 7/24/97 N.T. at

91, 96, 100-102; 7/25/97 N.T at 34-38.

b. The Physical Evidence Concerning the Shooting

The government also offered testimony concerning the

physical evidence of the crime from the medical examiner, an

officer of the mobile crime detection unit, and a ballistic

expert. Twelve, fired 40-caliber cartridge casings were

recovered by the police, ten in the parking lot where Ruben

Simmons was shot and two found 300 feet away near where Brian

Johnston was shot. A copper jacket from a bullet was also

recovered in the parking lot. Ballistic evidence indicated all

twelve cartridges were ejected from the same gun, a semiautomatic. No tests could be performed on the copper jacket or

from fragments recovered from Ruben Simmons body. 7/24/97 N.T.

at 142-45, 153-54; 7/25/97 N.T. at 8-9, 13-15.

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The medical examination of Ruben Simmons’ body showed

three gunshot wounds. Simmons had a wound on his right little

finger and palm consistent with a defensive injury caused by his

putting his hands up to protect himself from a gun. He also had

a shallow wound in his chest from a small bullet fragment,

possibly the same bullet that hit his hand. The third wound was

from a bullet that entered the back of Simmons’ head and exited

underneath his left eye, severing his brain from his spinal cord

and causing his death. Simmons’ body also had scrapes and

abrasions consistent with collapsing from a standing position. 

From the lack of stippling on the wounds, the medical examiner

opined that each shot that hit Simmons was fired from a gun that

was at least two or two and a half feet from Simmons’ body. 

7/24/97 N.T. at 122-141.

c. Evidence of Earlier Incidents Between Gist

and Simmons and Between Simmons and Grant

In addition to evidence concerning the events of the

night of August 30, 1996, the government also introduced evidence

of prior altercations between Gist, Simmons, Johnston, and

Anthony “Roster” Grant. 

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(1) August 15, 2009, Shooting Involving

Simmons, Johnston, Gist, Stevens, and

Anthony “Roster” Grant 

 

In his direct examination by the prosecution, Brian

Johnston testified that two weeks before the shooting, in the

evening of August 15, 1996, he had been with Simmons and another

friend, Kadir Greene, when Simmons went to pick up his car at the

house of another friend. They drove to the house in Greene’s

truck. Simmons went inside while Greene and Johnston waited in

the truck. Johnston testified that he saw Gist and Abid Stevens

walking towards them with guns. Gist and Stevens pulled Johnston

from the truck and began punching him and hitting him with their

guns. Johnston then ran from the scene. 7/24/97 N.T. at 36-40.

The government also presented testimony concerning the

August 15, 1996, incident from Kadir Greene, who described

himself as a friend of both Johnston and Simmons and of Gist and

Abid Stevens. Greene testified that earlier on August 15th,

Simmons got into a fist fight with a man named Eric Forbes, whom

Greene described as one of Simmons’ friends. Forbes believed

Simmons had stolen money and drugs from Forbes’ house. Before

the fight, Simmons gave his gun to another friend named Anthony

Middleton to hold. Anthony “Roster” Grant then took the gun from

Middleton. After the fight, Simmons went looking for his gun and

confronted Grant. When Grant denied having the gun, Simmons hit

Grant in the head with a bottle and took the gun back. Grant and

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Simmons then parted ways. A short time later, at around 5:00

that afternoon, Greene saw Grant, Abid Stevens, and Lamont Gist

drive by Simmons in a car and look at him. 7/23/97 N.T. at 127-

134, 162-63, 165-69.

Greene also testified about the incident later that

evening at the Whitehead house. He testified that he, Simmons

and Johnston had gone to the house to pick up Simmons’ car and

that, while Simmons was inside, Gist, Stevens, and Grant walked

up. Stevens and Gist drew guns. Gist’s gun had a laser pointer

that projected a red beam of light on its target. Stevens then

pulled Brian Johnston from Greene’s truck, and Gist and Stevens

began to hit him with their guns. After the beating, Grant,

Stevens, and Gist began to move away, and Greene lost track of

Johnston. Simmons then came out of the house with a gun, and

Greene saw a spot of light from a laser sight come from Gist’s

direction towards Simmons. Simmons jumped off the porch of the

house with his gun drawn, and Greene ducked down in his truck and

heard shots fired. Greene and Simmons got in Greene’s truck and

drove off. Greene testified that, after he dropped Simmons off,

he went back to Gist and Stevens and told them “don’t play with

guns” while he was there. Greene testified that he remained

friendly with Gist, Stevens, and Grant and with Johnston and

Simmons, despite their hostility towards each other. 7/23/97

N.T. at 135-146, 149-51, 183-85.

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(2) Simmons and Johnston’s Kidnapping of

Anthony “Roster” Grant Sometime between

August 15 and August 30, 1996 

On cross-examination, Brian Johnston testified that,

one day, sometime between August 15 and August 30, 1996, he and

Simmons took Anthony “Roster” Grant from the house where Grant

was staying and brought him to Johnston and Simmons’ house, where

they tied him to a chair in the basement and hit him. They then

left him alone in the basement and, when they returned half an

hour later, Grant was gone. Johnston testified that he and

Simmons took Grant and beat him up in retaliation because “Lamont

[Gist] was going around shooting our friends.” 7/24/97 N.T. at

47-55.

(3) The August 30, 1996 “Peace Meeting”

Brian Johnston testified that, in the afternoon of

August 30, 1996, the day of the shooting, a “peace meeting” was

held at a playground on Chew Avenue. The people attending were

Johnston, Simmons, Abid Stevens, Grant, and Gary Payne Smith. 

Lamont Gist did not attend. Johnston testified that the purpose

of the meeting was to settle or “squash” the hostilities that had

begun since the “truck incident” on August 15th. At the end of

the meeting, all those attending shook hands, and Johnston

testified that he believed the parties’ differences had been

worked out. 7/24/97 N.T. at 41-45.

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d. The Search of Gist’s Apartment and the

Recovery of Two Guns 

The government presented testimony from Detective

Charles Permit concerning his arrest of Lamont Gist and his

subsequent search of the house where Gist was found. A warrant

for Gist’s arrest was issued August 31, 1996. Detective Permit

testified that, acting on a tip he received from an unnamed

confidential informant, he arrested Gist on September 11, 1996,

at the apartment of Joanne McDowell. He obtained McDowell’s

consent to search the apartment. In the search, Detective Permit

found two loaded nine millimeter handguns in the bedroom of the

apartment in a laundry bag placed inside a box on the floor of

the bedroom closet. 7/24/97 N.T. at 162-63, 170-71, 196-97.

The government’s ballistic expert testified on direct

examination that he had examined the two guns recovered from the

apartment where Gist was arrested. He testified that the serial

number of one of the guns had been removed by abrasion, but he

had been able to restore it. He also testified both on direct

examination and on cross that neither of the two guns was a match

to the cartridge casings fired at the scene of Simmons and

Johnston’s shooting. 7/25/97 N.T. at 7, 16, 31-32.

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e. Abid Steven’s Statement that Anthony “Roster”

Grant was the Shooter and Abid Steven’s

Identification as a Prime Suspect in Anthony

“Roster” Grant’s Murder 

The government presented testimony from Detective

Eugene Wyatt, the assigned detective on the case, concerning his

interviews with Brian Johnston the night of the shooting and his

subsequent preparation of an arrest warrant for Lamont Gist on

August 31, 1996. On cross-examination, Wyatt was asked about an

interview he had with Abid Stevens on September 7, 1996. Wyatt

testified that Stevens told him that Anthony “Roster” Grant had

shot Ruben Simmons and Brian Johnston. On redirect, Detective

Wyatt testified that Abid Stevens was in police custody on

September 7, 1996, on an unrelated charge, when he told officers

he had information on the Simmons-Johnston shooting. Detective

Wyatt also testified that he subsequently learned that Grant had

been shot and killed on September 6, 1996, the day before Abid

Stevens identified Grant as the shooter. On recross, Detective

Wyatt was asked whether the police had investigated Grant’s death

and responded that Abid Stevens was the prime suspect in Grant’s

death:

Q: By the way, has your office conducted an

investigation into the shooting death of

Anthony [“Roster”] Grant?

A: Yes.

Q. And with any success?

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A: Yes, Abid Stevens is the prime suspect.

7/25/97 N.T. at 34-35, 38-39, 41-42, 45-47.

2. The Defendant’s Case

a. Testimony of the Defense’s Alibi Witness

The defense presented testimony from Joanne McDowell,

Lamont Gist’s girlfriend, and the owner of the apartment where

Gist was arrested. McDowell testified that Gist moved in with

her on August 12, 1996, and stayed with her until his arrest on

September 11, 1996. McDowell left every weekday from 5:00 a.m.

to 3:30 p.m. to go to work and Gist would watch her two children. 

She testified that every day, Gist was at her apartment when she

came home from work and that they never left the house during the

time that she was home. On the day of the shooting, August 30,

1996, McDowell testified that she was off work and that she and

Gist remained in the apartment the entire day and night, looking

after her kids, watching TV, and then going to bed. 7/28/97 N.T.

at 17-23.

On cross-examination, the prosecutor brought out

inconsistencies between McDowell’s testimony and what she had

told the police at the time of Gist’s arrest. In her formal

statement to the police after Gist’s arrest, McDowell did not say

that she and McDowell had been together the night of the

shooting. McDowell explained this by saying she had not been

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asked whether they had been together at that time. McDowell

admitted that she had told the police when Gist was arrested that

he did not live with her. McDowell explained the inconsistency

by saying that Gist was staying with her, but did not live with

her. When asked the day of the arrest whether Gist used the

front or back door when visiting her, McDowell said he used the

back door. McDowell explained that this answer was consistent

with her trial testimony that Gist had never left her apartment,

because she had been referring to how Gist entered her apartment

when he arrived a month earlier on August 12, 1996. McDowell had

been asked the day of the arrest what kind of car Gist drove and

she had responded that he drove a green Volvo. At trial McDowell

testified that Gist had bought the green Volvo two days before

his arrest from a friend who had parked it near her house, but

Gist had never driven it. McDowell also testified that, although

she knew that Gist had been with her the night of the shooting,

she still asked Gist whether he had shot Simmons and Johnston. 

7/28/97 N.T. at 43-51, 56-61, 67-70, 79-85.

b. Testimony Concerning Hostility Between

Simmons and Anthony “Roster” Grant 

The defense called Gary Payne Smith, one of the

participants in what Brian Johnston described as a “peace

meeting” held in the afternoon of the day of the shooting, August

30, 1996. He testified that the persons attending the meeting

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were Smith, Abid Stevens, Anthony “Roster” Grant, Ruben Simmons,

and Brian Johnston. Lamont Gist did not attend. Smith testified

that he organized the meeting to discuss and settle the animosity

between Simmons and Grant. He testified that Grant was seeking

money from Simmons because Simmons had shot Grant in the leg and

that Grant wanted the money in return for not saying anything

about the shooting if he were questioned in court. Grant and

Simmons also discussed Grant’s being kidnapped by Simmons and

Brian Johnston. Smith testified that the meeting ended without

an agreement and that Grant told Simmons that he would see him in

court. Smith said that he observed that Grant feared Simmons. 

7/28/97 N.T. at 92-99.

c. Testimony from Eyewitnesses to the Shooting

Who Could Not Identify the Shooter 

The defense presented testimony from three men who were

at the Germantown Avenue parking lot when Simmons and Johnston

were shot: Tariq Fowler, Michael Brown, and Robert Daniels. 

These three men each testified that they were at the dice game

the night of August 30, 1996 with Abid Stevens and that Simmons

and Johnston arrived at the game sometime later. All three

testified that someone walked up and began shooting but that none

of them saw the shooter. They each testified that they knew both

Lamont Gist and Anthony “Roster” Grant and that none of the three

saw either Gist or Grant at the parking lot the night of the

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shooting. 7/28/97 N.T. at 110-111, 114-120, 134-36, 137-47, 161,

166-70, 175, 178-79.

d. Abid Stevens’ Testimony Identifying Grant As

the Shooter 

Abid Stevens was called as a witness for the defense. 

At the time of his testimony, he was seventeen and incarcerated

in a state juvenile facility for weapon and drug offenses. 

Stevens testified that he had been arrested on September 7, 1996,

and at that time gave a statement to Detective Wyatt about the

shooting of Simmons and Johnston. Stevens told Detective Wyatt

that the shooter was Anthony “Roster” Grant, whom Stevens

described as a good friend. Although Grant had been killed the

day before, Stevens said that he did not know that Grant was dead

at the time he gave his statement. 7/29/97 N.T. at 37-41, 44.

Stevens also said that Detective Wyatt had visited him

in the juvenile facility approximately two and a half weeks

before his testimony at Gist’s trial and had questioned him about

Grant’s murder. Stevens said Wyatt told him that Gist had been

involved in four homicides and a number of shootings and that

Wyatt had heard that Stevens had been present at some of them. 

Wyatt told Stevens that, if Stevens and Gist had been involved in

shooting Grant, then Stevens should tell the truth, but that, if

Stevens was involved and lied to him, then Wyatt would make sure

that Stevens did more time than Gist. Stevens testified that

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Wyatt also questioned Stevens again about who had shot Simmons,

and Stevens again told him that Grant was the shooter. 7/29/97

N.T. at 42-44.

Stevens testified that, on the night of August 30,

1996, he was at the parking lot off Germantown Avenue, with a

group of men playing dice. About a half an hour after Stevens

arrived, Ruben Simmons and Brian Johnston drove by, parked their

car nearby, and walked up to the game. Simmons participated in

the betting, but Johnston just watched. Stevens testified that,

after a couple of minutes, Simmons asked Johnston to go to their

car and get a beer. Johnston went to get the beer, and Stevens

testified that he did not see Johnston again that night. Stevens

testified that, a minute or two after Johnston left, a man walked

up and shot Simmons. 7/29/97 N.T. at 44-51, 54.

Stevens testified that, while both he and Simmons were

leaning over the game, someone walked up and said, “You looking

for me, pussy.” Stevens testified that he was not paying

attention to the man who approached, but recognized him as Grant

by his accent. He then saw the man point a gun at Simmons’

chest. Simmons grabbed for the gun and both men struggled for

it. Stevens testified that, as they each pulled for the gun,

Simmons tripped and the gun went off and hit him in the hand. 

Stevens said that, as Simmons turned to run, one or two shots

were fired, and Simmons fell to the ground. Stevens said that he

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then ran away to a friend’s house. He testified that he then

went to his house to retrieve a firearm and take it to another

friend’s house, so that the police would not find it if they came

to question him. 7/29/97 N.T. at 51-55.

Stevens testified that he did not see Lamont Gist on

the night of the shooting on August 30, 1996 and that he had not

seen Gist since July and did not see him again until after he was

arrested on September 7, 1996. Stevens also testified that he

told a friend named Brian Randle about the shooting, telling him

that Grant shot Simmons. 7/29/97 N.T. at 50, 58-60.

On cross-examination, Stevens admitted that he never

got a good look at the face of the person who shot Simmons, and

that he recognized the shooter as Grant only because of his

voice. Stevens conceded that he could not say for sure that Gist

was not present the night of the shooting and that he could not

say for sure that Gist wasn’t the shooter. Stevens reiterated

that the shooter’s gun went off while Simmons and the shooter

were struggling for the gun and while the two were two or three

feet apart. Stevens denied telling Brian Randle that Gist shot

Simmons. Stevens also denied being present on August 15, 1999,

when Gist was alleged to have been involved in a shooting with

Simmons, Johnston, and Kadir Greene. 7/29/97 N.T. at 64-65, 65-

67, 69, 74-77, 79-83.

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On redirect examination, Stevens clarified that he saw

the side of the shooter’s face, but that the shooter was wearing

glasses and a hat. 7/29/97 N.T. at 85-86. On recross, Stevens

clarified that he did not see the face of the shooter clearly but

that he could say it “possibly was Roster” because Stevens

recognized his voice. 7/29/97 N.T. at 91-92.

3. Jury Deliberations

After closing arguments by the prosecution and the

defense, the jury began deliberating on July 30, 1997. On August

1, 1997, the jury asked to have the testimony of Brian Johnston

and Abid Smith read back to it. The trial court told the jury

that the testimony of those witnesses would be read back in the

order that they testified. At the conclusion of reading the

entirety of Johnston’s testimony, the court ordered a brief

recess for the jury’s comfort, instructing the jury not to

discuss the case. 

During that recess, the jury sent the court a note,

signed by the foreperson, saying “please be advised that we have

all decided that we no longer need to hear Abid Stevens’

testimony” and apologizing for any inconvenience. The defense

counsel requested that the court nonetheless require the jury to

listen to Stevens’ testimony. The trial court declined, stating

on the record that the complete testimony of Johnston had been

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read back and there was no requirement that the jury re-hear

Stevens’ testimony, now that they no longer wanted it. The jury

continued deliberating for less than two hours and returned with

a verdict that the petitioner was guilty on all charges. 8/1/03

N.T. at 1-9.

B. Procedural History of Post-Trial Proceedings

On August 1, 1997, the petitioner was convicted of

first degree murder, aggravated assault, and possession of the

instruments of crime. The government sought the death penalty,

but after a sentencing hearing, the jury found no aggravating

circumstances justifying that penalty. The petitioner was

sentenced to life imprisonment for the murder, ten to twenty

years for the aggravated assault, and two and half to five years

for the possession of instruments of a crime, all sentences to

run concurrently. After his conviction, the petitioner, with the

assistance of counsel, filed a timely appeal to the Pennsylvania

Superior Court. The Pennsylvania Superior Court affirmed the

conviction and sentence on May 4, 1999, and the Pennsylvania

Supreme Court denied allocatur on August 11, 1999.

On January 28, 2000, the petitioner filed a timely prose petition pursuant to the Pennsylvania Post-Conviction Relief

Act (“PCRA”), 42 Pa. C.S. § 9541 et seq. Petitioner subsequently

obtained counsel through whom he filed an amended petition. The

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PCRA court dismissed the petition on May 13, 2002. Although the

PCRA court’s order stated that the petitioner’s counsel was to

remain court-appointed counsel for the purpose of pursuing any

appeal of the order, and although the petitioner wrote his

counsel on May 20 and June 6, 2002, requesting that he file a

notice of appeal, petitioner’s counsel did not file an appeal and

did not respond to the petitioner’s letters until after the 30-

day period for filing an appeal of the dismissal of the PCRA

petition had passed. 

After learning that no PCRA appeal had been filed, the

petitioner filed a second PCRA petition on July 29, 2002, seeking

nunc pro tunc reinstatement of his rights to appeal. On January

8, 2003, the PCRA court reinstated the petitioner’s appellate

rights. The Pennsylvania Superior Court quashed the appeal on

September 9, 2004, finding the petitioner’s second PCRA petition

untimely. The petitioner requested reargument before the

Pennsylvania Superior Court, which was denied November 9, 2004,

and allocatur from the Pennsylvania Supreme Court, which was

denied March 28, 2005. 

On August 10, 2005, the petitioner filed this petition

for habeas corpus, which was referred to Magistrate Judge Linda

K. Caracappa. On January 31, 2006, Judge Caracappa issued a

Report and Recommendation that the petition be denied as timebarred. Judge Caracappa found that, because the petitioner’s

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second PCRA petition was found not to be timely filed by the

Pennsylvania Superior Court, the habeas statute of limitations

was not tolled while it was pending, and the petitioner’s claims

were therefore time-barred and should be dismissed. The

petitioner filed timely objections to the Report and

Recommendation, arguing, in part, that the statute of limitations

should be equitably tolled.

On consideration of the Report and Recommendation, the

then-presiding judge, the Honorable Bruce W. Kauffman, sustained

the petitioner’s objections on the basis of equitable tolling. 

Judge Kaufmann found that petitioner only needed to file a second

PCRA petition because of his counsel’s professionally

unreasonable failure to file an appeal of the denial of his first

PCRA petition, which “not only deprived Petitioner of the

opportunity to file a timely appeal of the denial of his PCRA

petition, but also rendered all subsequently filed petitions –

including the instant habeas Petition – untimely.” Finding that

the petitioner had otherwise exercised reasonable diligence in

prosecuting his appeal, Judge Kaufman found sufficiently

extraordinary circumstances to justify equitable tolling of the

habeas statute of limitations.

After remand and subsequent briefing, Magistrate Judge

Caracappa issued a second Report and Recommendation on November

30, 2007, addressing the merits of the petitioner’s claims. This

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Report and Recommendation is now before this Court. The

petitioner has filed objections to the report, to which the

government has responded.

II. ANALYSIS

A. Overview of the Petitioner’s Claims

In his habeas petition, the petitioner raises nine

claims for relief. These claims were reordered and renumbered in

the Report and Recommendation of Magistrate Judge Caracappa, and

the Court will use this renumbering in referring to the claims in

this Memorandum. The nine claims raised by the petitioner are:

1) Trial counsel was ineffective for failing to

object to the improper introduction of evidence and testimony

concerning two firearms found in the bedroom the petitioner

shared with his girlfriend (Petitioner’s No. 1);

2) Trial counsel was ineffective for eliciting

testimony at trial of the unrelated murder of Anthony “Roster”

Grant (Petitioner’s No. 2);

3) The petitioner’s due process rights were violated

when the trial court improperly allowed evidence of the

petitioner’s prior bad acts, and the petitioner’s trial counsel

was ineffective for failing to object to the introduction of such

evidence (Petitioner’s No. 5);

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4) The government engaged in prosecutorial misconduct

by not correcting allegedly perjured testimony that the defense’s

key witness, Abid Stevens, was a prime suspect in the murder of

Anthony “Roster” Grant (Petitioner’s No. 3);

5) The government engaged in prosecutorial misconduct

by withholding evidence that one of the prosecution’s key

witnesses, Brian Randle, was a suspect under investigation in the

murder of Anthony “Roster” Grant (Petitioner’s No. 4);

6) The trial court gave inadequate cautionary

instructions concerning the testimony of the government’s

firearms expert (Petitioner’s No. 6);

7) Petitioner’s constitutional rights were violated

when the PCRA court denied the petitioner an evidentiary hearing

in light of after-discovered evidence, including an affidavit by

the government’s key witness, Brian Johnston, recanting his trial

testimony (Petitioner’s No. 7);

8) The trial court improperly read back to the jury

testimony of the prosecution’s key witness, Brian Johnston, but

refused to read back testimony of the petitioner’s key witness,

Abid Stevens (Petitioner’s No. 8); and

9) A miscarriage of justice occurred because the

petitioner is actually innocent (Petitioner’s No. 9).

Case 2:05-cv-04250-MAM Document 54 Filed 08/25/09 Page 22 of 57
In its response to the petitioner’s objections to the 2

Report and Recommendation, the government renews its argument

that all claims in the habeas petition are time-barred. This

argument was considered and rejected by the prior decision of

Judge Kauffman finding equitable tolling. This Court will not

revisit that ruling.

23

B. Petitioner’s Claims Six and Eight and a Subsection of

Claim Three Are Procedurally Defaulted 

 

The Report and Recommendation concludes that the

petitioner failed to fairly present his claims Six, Eight, and a

portion of Claim Three in state court and that these claims are

therefore procedurally defaulted. The Court, after independent

review, agrees that these claims are procedurally defaulted and

that this default is not excused.2

1. The Petitioner Did Not Exhaust Claim Six

Claim Six, that the trial court gave inadequate

cautionary instructions to the jury concerning the testimony of

the government’s firearms expert, was not raised in the

petitioner’s direct appeal from his conviction or in his PCRA

petition, but was raised in his PCRA appeal. To preserve a claim

for habeas review, a petitioner must have presented that claim to

each level of the state courts. O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). By failing to present Claim Six in his PCRA

petition, the petitioner did not fairly present the issue for

state court review and the claim was not properly exhausted.

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24

2. The Petitioner Did Not Exhaust Claim Eight

Claim Eight, that the trial court improperly read back

to the jury only the testimony of the prosecution’s key witness

but not that of the defendant’s key witness, was raised in the

petitioner’s direct appeal, but not in his PCRA proceedings. 

Raising an issue only in a direct appeal but not in collateral

PCRA review is sufficient to exhaust it for habeas review. See

O’Sullivan, 526 U.S. at 845 (exhaustion requires “invoking one

complete round of the State's established appellate review

process”). To properly exhaust a claim, however, a petitioner

must present to the state court the same “factual and legal

substance” that the petitioner seeks to raise in his habeas

proceedings. McCandless v. Vaughn, 172 F.3d 255. 261 (3d Cir.

1999).

As set out in the Report and Recommendation, the

petitioner did not fairly present to the state court the same

factual and legal substance raised in Claim Eight. On direct

appeal, the petitioner challenged the trial court’s decision not

to require the jury to re-hear Abid Stevens’ testimony only on

state law grounds. Although the petitioner’s direct appeal brief

refers to this decision in various places as “egregious,”

“unfair” and “prejudicial,” it does not refer to the decision as

unconstitutional or violative of due process. Instead, the brief

cites only state court cases concerning the discretionary

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25

authority of the trial judge and argues that the trial court’s

decision was an abuse of that discretion. In upholding the trial

court, the Pennsylvania Superior Court also relied only on state

court grounds, finding no abuse of discretion.

Because the petitioner did not challenge the failure to

read back Abid Steven’s testimony on constitutional grounds in

his direct appeal, the petitioner has failed to exhaust that

claim. To exhaust a claim, it is not sufficient to raise a

“somewhat similar state law claim” in state court. McCandless,

172 F.3d at 261 (internal quotation omitted). Although a

petitioner need not expressly refer to the constitution or

federal law, he must have communicated to the state courts that

he was asserting a claim predicated on federal law. Id. With

respect to Claim Eight, the petitioner failed to do so.

3. The Petitioner Did Not Exhaust the Due Process

Portion of Claim Three 

Claim Three is in two parts. It contends that the

petitioner’s due process rights were violated when the trial

court introduced evidence of his “prior bad acts,” particularly

the earlier shooting on August 15, 1996. It also contends that

the petitioner’s counsel was ineffective for failing to object to

the introduction of this evidence. 

The petitioner included as one of the “questions

involved” in his direct appeal whether the trial court erred in

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26

allowing prosecution witnesses to testify concerning these prior

bad acts, but did not discuss this issue in the argument section

his appeal brief. The Pennsylvania Superior Court subsequently

held that the petitioner’s failure to develop the argument waived

the issue for appeal. In the petitioner’s PCRA proceedings,

neither the petitioner’s initial or amended PCRA petition clearly

challenged the introduction of “prior bad act” evidence on

constitutional grounds. In its opinion, the PCRA court addressed

only whether this evidence should have been introduced as a

matter of state law. In his PCRA appeal brief, the petitioner

did attempt to raise a constitutional challenge to the

introduction of this evidence, but his appeal was quashed as

untimely.

The Report and Recommendation concludes that the

petitioner has not exhausted that portion of Claim Three alleging

that the introduction of evidence of “prior bad acts” violated

the petitioner’s due process rights, but has exhausted that

portion of Claim Three alleging ineffective assistance from his

counsel’s failure to object to the introduction of that evidence. 

The Court agrees. To the extent the petitioner’s filings in his

direct appeal and PCRA petition challenged the trial court’s

allowing “prior bad act” evidence, they did so only on state law

grounds. Although the petitioner did raise a constitutional

challenge to the introduction of this evidence in his PCRA

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27

appeal, by not doing so in his PCRA petition, he failed to fairly

present his federal claim at all levels of the state court and

that claim is therefore not exhausted. See O’Sullivan, 526 U.S.

at 845; McCandless, 172 F.3d at 261. The second portion of Claim

Three, the petitioner’s ineffective assistance claim concerning

his counsel’s failure to object to the introduction of this

evidence, was fairly presented in his PCRA petition and ruled

upon by the PCRA trial court and therefore is exhausted.

4. Claims Six, Eight and the Due Process Portion of

Claim Three are Procedurally Defaulted and this

Default is Not Excused 

The petitioner has failed to exhaust Claims Six, Eight

and the due process portion of Claim Three. The petitioner can

no longer cure this failure to exhaust because the one-year

limitations period for bringing a claim under the PCRA has

elapsed. The petitioner’s claims are therefore procedurally

defaulted and this default is based on a state procedural law

that is independent of the federal question and adequate to

support the judgment. See Coleman v. Thompson, 501 U.S. 722, 732

(1991). Unless excused, the procedural default of these claims

prevents habeas review. Id. at 749-50. 

Procedural default can be excused where a petitioner

shows cause for the default and actual prejudice or demonstrates

that failure to consider the claims would result in a fundamental

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28

miscarriage of justice. Coleman at 750. The petitioner has not

attempted to make a showing of cause and prejudice with respect

to these claims. The petitioner does make a separate claim of

miscarriage of justice in Claim Nine of his petition, but, as

discussed in the section of this Memorandum discussing Claim

Nine, the petitioner has failed to establish a miscarriage of

justice that would excuse the procedural default of his claims. 

C. Petitioner’s Remaining Claims Will Be Denied on the

Merits 

Under the provisions of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, a federal

court’s habeas review of the merits of a state court’s decision

is greatly circumscribed. The statute provides that a habeas

petition shall not be granted “with respect to any claim that was

adjudicated on the merits in State court” unless the adjudication

of the claim either: 

(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). 

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29

A state court decision will fall within the first part

of § 2254(d) if it reaches a conclusion opposite to that reached

by the United States Supreme Court on a question of law or when

confronted with facts that are materially distinguishable from a

relevant Supreme Court precedent. Williams v. Taylor, 529 U.S.

362 (2000). A state court decision will fall within the second

part of § 2254(d) “if the state court identifies the correct

governing legal rule from the [Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state

prisoner’s case” or “if the state court either unreasonably

extends a legal principle from our precedent to a new context

where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Id. at 407-

08. In making this determination, a district court must find

that a state court acted not just incorrectly, but unreasonably.

AEDPA also requires that a federal court considering a

habeas petition by a state prisoner give deference to the state

court’s factual findings. A federal court must presume that a

state court’s determination of a factual issue is correct, and a

petitioner has the burden of rebutting this presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1).

Applying this AEDPA standard of review to the remaining

claims of the petition, the Court finds that these claims should

be denied.

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30

1. Petitioner’s Ineffective Assistance Claims One,

Two and Three Will Be Dismissed 

a. Claim One 

Claim One asserts that trial counsel was ineffective

for failing to object to the prosecution’s introduction of

evidence concerning the two loaded guns seized from the bedroom

where the petitioner was arrested. The prosecution’s ballistic

evidence showed that neither gun was used in the shooting with

which the petitioner was charged. 

The PCRA court reviewed this claim and found that the

evidence was admissible under state law because it was relevant

to showing that the petitioner had access to weapons similar to

those used in the shooting. The PCRA court also found that the

petitioner’s counsel had a reasonable basis for not objecting to

the introduction of the gun evidence because the guns were not

used in the crime at issue and because the fact that the seized

guns differed from those allegedly used by the petitioner in the

earlier August 15, 1996, shooting incident tended to impeach the

credibility of the prosecution’s witnesses who testified about

that incident, which the defense denied had occurred. The Report

and Recommendation agreed that trial counsel’s failure to object

to this evidence was not ineffective assistance because trial

counsel emphasized to the jury that neither of the guns was used

in the shooting.

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31

The Court agrees with the conclusion of the Report and

Recommendation that this ineffective assistance claim fails, but

does so on different grounds. To establish a claim for

ineffective assistance of counsel, a petitioner must show both

that his counsel’s performance fell below an objective standard

of reasonableness and that his counsel’s performance prejudiced

his defense such that there is a reasonable probability that, but

for counsel’s unprofessional error, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A

reviewing court need not address whether trial counsel’s conduct

was deficient, if it can more easily determine that no prejudice

resulted from the conduct and thereby resolve the claim. Id. at

697.

Here, the Court finds that, putting aside the objective

reasonableness of trial counsel’s failure to object to the

introduction of evidence concerning the two guns, there is not a

reasonable probability that, but for the introduction of that

evidence, the outcome of the trial would be different. The fact

that the prosecution’s ballistic expert testified that the two

guns were not used in the murder of Ruben Simmons and the

shooting of Brian Johnston, and trial counsel’s emphasis of this

fact in his closing, limited the amount of prejudice caused by

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32

the introduction of the gun evidence. At most, the introduction

of the evidence of the two loaded guns improperly suggested to

the jury that the petitioner was a violent person with ready

access to firearms. This prejudicial effect is not sufficient,

in the face of the other evidence at trial, particularly the

eyewitness testimony of Brian Johnston identifying the petitioner

as the shooter, to undermine confidence in the trial’s outcome.

b. Claim Two 

In Claim Two, the petitioner argues that his trial

counsel was ineffective for asking prosecution witness Detective

Wyatt about the status of the investigation into the unrelated

murder of Anthony “Roster” Grant, the person the defense

contended did the shooting. The prosecution called Detective

Wyatt to testify about his interviews with Brian Johnston the

night of the shooting and his subsequent preparation of an arrest

warrant for the petitioner. On cross-examination, defense

counsel asked Detective Wyatt about his interview with defense

witness Abid Stevens, who said he had seen Grant, not the

petitioner, shoot Simmons and Johnston. On redirect, Wyatt

testified that Grant had been shot and killed the day before Abid

Stevens made his statement. On re-cross, defense counsel asked

about the status of the investigation into Grant’s death, and

Detective Wyatt said that Stevens was the “prime suspect” in

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33

Grant’s murder. The petitioner contends that by eliciting this

statement, his trial counsel fatally undermined the testimony of

the key witness in his defense. Both the PRCA court and the

Report and Recommendation concluded that this claim failed

because the Detective Wyatt’s statement did not cause sufficient

prejudice to establish ineffective assistance.

The Court agrees that the petitioner has failed to show

sufficient prejudice resulting from this error to support an

ineffective assistance claim. Detective Wyatt’s statement that

Stevens was a prime suspect in Grant’s murder prejudiced the

petitioner’s defense by undermining Stevens’ credibility. In

addition to suggesting that the defense’s key witness was a

murderer, the testimony suggested that Stevens was hostile to

Grant and had a motive to falsely accuse him of the murder. It

also suggested that the only witness who identified Grant as the

shooter was responsible for Grant’s murder. In the face of the

other evidence of the petitioner’s guilt and the equivocal nature

of Stevens’ testimony, however, this prejudice is not sufficient

to create a reasonable probability that the outcome of the trial

would be different had the evidence been excluded. 

Brian Johnston identified the petitioner at trial as

the person who shot him and Ruben Simmons. He also testified

that he had identified the petitioner as the shooter out of a

photo array the night of the shooting. Abid Stevens’ testimony

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34

that Anthony “Roster” Grant was the shooter was less certain,

with Stevens testifying that he did not see the shooter and

identified Grant only by voice and, on cross, testifying that he

could not say for sure that the petitioner was not present at the

shooting or that the petitioner did not shoot Johnston or

Simmons. Stevens’ testimony that Simmons was shot while

struggling with the shooter was also inconsistent with the

prosecution’s forensic evidence that the lack of stippling on

Simmons’ wounds indicated that he was shot from a distance of at

least two and half or three feet away. Given this other evidence

of the petitioner’s guilt, his trial counsel’s questioning of

Detective Wyatt, prompting his identification of Stevens as a

prime suspect in Anthony “Roster” Grant’s murder, does not

undermine confidence in the verdict or create a reasonable

probability that, had this testimony not been elicited, the

outcome of the trial would have been different.

c. Claim Three

Petitioner’s Claim Three asserts that his counsel was

ineffective for failing to object to the government’s

introduction of evidence and testimony concerning the

petitioner’s “prior bad acts,” including his involvement in the

alleged shooting incident on August 15, 1996, involving the

petitioner, Abid Stevens, Ruben Simmons, Brian Johnston, and

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35

Kadir Greene. The petitioner also asserts his appellate counsel

was ineffective for failing to raise this claim in his direct

appeal. 

The PCRA court considered and rejected this argument,

finding that the petitioner’s trial counsel was not ineffective

because he had objected to this evidence in a motion in limine

prior to trial. The trial court denied the limine motion in part

and granted it in part, allowing evidence about the prior August

15, 1996, altercation between the petitioner and the shooting

victims, Simmons and Johnston, but excluding evidence concerning

alleged violent acts involving the petitioner and others. The

PCRA court found that this evidence was admissible as evidence of

“bad blood” between the petitioner and the two men shot and that

the trial court had properly given a cautionary instruction that

this evidence was to be considered only for the limited purpose

of showing that the petitioner harbored ill will towards the

victims and that the jury was not to consider it as evidence that

the defendant was a person of bad character or criminal

tendencies.

The Report and Recommendation properly concludes that

Claim Three is without merit. To be ineffective assistance, a

counsel’s conduct must be objectively unreasonable. Strickland,

466 U.S. at 688. Here, trial counsel acted reasonably by filing

a motion to exclude the challenged evidence. Trial counsel

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36

renewed his objection prior to testimony by government witness

Kadir Greene about the August 15, 1996, incident and was

overruled. 7/23/97 N.T. at 125-26. These actions do not amount

to ineffective assistance. 

The petitioner’s appellate counsel included a challenge

to the introduction of evidence concerning the August 15, 1996,

incident in the Statement of the Questions Involved section of

the petitioner’s direct appeal brief, but failed to address that

issue in the argument section of the brief. The Pennsylvania

Superior Court held that the failure to discuss the issue in the

argument section waived it, and declined to address the merits of

the petitioner’s claim. For appellate counsel’s failure to

preserve this issue to amount to ineffective assistance, there

must be a reasonable probability that, had the issue been

preserved, the result of the petitioner’s appeal would have been

different. Strickland, 466 U.S. at 688. Here, as found by the

PCRA court, the “prior bad act” evidence concerning the August

15, 1996, shooting was admissible under state law to show the

“ill will” between the petitioner and victims. See Commonwealth

v. Tedford, 960 A.2d 1, 42 (Pa. 2008) (“Evidence to prove motive,

intent, plan, design, ill will, or malice is always relevant in

criminal cases”) (citing Commonwealth v. Gwaltney, 442 A.2d 236,

241 (Pa. 1982)) (on PCRA review, finding trial court properly

admitted evidence that the murder victim had stabbed a member of

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37

the defendant’s gang and that trial counsel was not ineffective

for failing to object the evidence). Appellate counsel’s failure

to preserve a challenge to the introduction of this evidence on

appeal was not ineffective assistance where that appeal would

have been meritless and could not have changed the outcome.

2. Petitioner’s Prosecutorial Misconduct Claims Four

and Five Will Be Dismissed 

In Claims Four and Five, the petitioner contends that

the government engaged in prosecutorial misconduct. In Claim

Four, the petitioner contends that the government’s witness,

Detective Wyatt, lied when he testified that Abid Stevens was a

prime suspect in the murder of Anthony “Roster” Grant, and that

the prosecution was aware that this testimony was false and

failed to correct it, thereby committing prosecutorial

misconduct. In Claim Five, the petitioner contends that the

government engaged in prosecutorial misconduct by withholding

evidence that one of its “key witnesses,” Brian Randle, was also

a suspect in the murder of Anthony “Roster” Grant.

Both Claim Four and Claim Five are based on a March 9,

1999, affidavit from Brian Randle. In it, Randle states that, in

the middle of October 1996, when he was detained on robbery

charges, he was visited by Detective Wyatt and a Detective

Bamberski and questioned about the murder of Ruben Simmons. 

Randle was told that he was a prime suspect in the murder of

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38

Anthony “Roster” Grant and that, if Randle agreed to testify for

the prosecution in the petitioner’s trial, he would not be

immediately charged for Grant’s murder. Randle says in the

affidavit that he made an agreement with the detectives to

testify against the petitioner, including signing a statement and

making unspecified court appearances, but that “at the actual

trial” of the petitioner, he was told to refrain from mentioning

that he had been investigated for Grant’s murder. Randle was

subsequently convicted of Anthony “Roster” Grant’s murder. He

did not testify at the petitioner’s trial.

As to Claim Four, the PCRA court found that petitioner

had failed to demonstrate that Stevens was not a suspect in

Anthony “Roster” Grant’s murder and that Detective Wyatt’s

statement was false or that the prosecution knew that Wyatt’s

statement was false. The Report and Recommendation agreed with

the PCRA court’s conclusion. This Court also agrees. The fact

that Brian Randle may have been a prime suspect in the murder of

Anthony “Roster” Grant does not establish that Abid Stevens was

not also a prime suspect in that murder. Other than Randle’s

statement, the petitioner has not presented any evidence to

support his allegation that Detective Wyatt’s statement was

false, and this Court will therefore deny Claim Four.

The Report and Recommendation correctly concluded that

Claim Five was meritless. Brian Randle did not testify at the

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39

petitioner’s trial. He was therefore not a “key witness” for the

prosecution as the petitioner contends. There is also no support

for the petitioner’s contention that the government withheld from

the defense the fact that Randle was a suspect in Grant’s murder. 

In its April 3, 2007, response to the habeas petition, the

government provides two witness statements, both of which it

asserts were turned over to the defense, in which witnesses say

that both Abid Stevens and Brian Randle were involved in Grant’s

murder. 

3. Petitioner’s Claim Seven Concerning the PCRA

Court’s Denial of an Evidentiary Hearing Will Be

Dismissed 

In Claim Seven, the petitioner contends he was denied

due process when the PCRA court denied his request for an

evidentiary hearing concerning newly-acquired evidence: the

affidavits of Brian Randle and Brian Johnston. The affidavit of

Brian Randle has already been described in the discussion of the

petitioner’s Claim Four and Five. The affidavit of Brian

Johnston recanted his trial testimony identifying the petitioner

as the shooter, stating that he did not see who shot either Ruben

Simmons or himself. 

The Report and Recommendation concludes that this claim

is not cognizable in federal habeas proceedings because it

concerns an alleged error in a collateral proceeding, not a

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40

proceeding that actually led to the petitioner’s conviction. The

Court agrees. Alleged errors in a collateral PCRA proceedings,

cannot be a proper basis for habeas relief from the original

conviction. Abu-Jamal v. Horn, 520 F.3d 272. 297 (3d Cir. 2008);

Lambert v. Blackwell, 387 F.3d 210, 246 (3d Cir. 2004).

4. Petitioner’s Actual Innocence Claim Will Be

Dismissed 

In Claim Nine, the petitioner argues that “as a result

of the errors, abuse and [c]onstitutional violations by the Trial

court and the prosecutor, and the inadequacies of the

petitioner’s own defense counsel at trial and appeal . . . he is

suffering a fundamental miscarriage of justice as he is actually

innocent.” 

The Report and Recommendation construes this claim as

an assertion that the petitioner is seeking to assert a

substantive claim of actual innocence as defined in Herrera v.

Collins, 506 U.S. 390 (1993). In such a claim, a prisoner

contends that his actual innocence alone, without regard to the

presence or absence of constitutional errors in his trial or

direct appeal, justifies habeas relief. The Report and

Recommendation suggests that such a claim is not cognizable in

habeas. The Report and Recommendation also suggests that, to the

extent that Claim Nine is based on the “cumulative prejudice of

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41

the petitioner’s claims,” it should be denied because each

individual claim lacks merit.

In Herrera, the United States Supreme Court held that a

“freestanding” claim of actual innocence based on newly

discovered evidence does not state a ground for habeas relief,

except possibly in extraordinary circumstances involving a “truly

persuasive” showing of actual innocence in a capital case. 

Herrera, 506 U.S. at 400, 417; see also id. at 419 (O’Connor, J.,

concurring). Even assuming that Herrera permitted the petitioner

to raise a freestanding claim of actual innocence in this noncapital case, such a showing would have to be “extraordinarily

high.” Id. at 417; Albrecht v. Horn, 485 F.3d 103, 122 (3d Cir.

2007). 

In addition to a freestanding substantive actual

innocence claim under Herrera, a habeas petition may also raise a

procedural actual innocence claim of the type considered in

Schlup v. Delo, 513 U.S. 298 (1995). In such a claim a

petitioner contends, not that his actual innocence alone

justifies habeas relief, but rather that his actual innocence

should excuse the procedural default of other constitutional

claims. Id. at 314. In such a claim, actual innocence is “not

itself a constitutional claim, but instead a gateway through

which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” Id. at 315

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42

(citing Herrera, 506 at 404). Here, the Court has found the

petitioner’s Claim Six, Claim Eight and a portion of Claim Three

to be procedurally defaulted, but this default would be excused

if the petitioner can show actual innocence.

To prevail on a procedural claim of actual innocence,

the habeas petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in light of the

new evidence. Schlup, 513 U.S. at 327. This requires showing,

not just that the new evidence creates a reasonable doubt of the

petitioner’s guilt, but that no reasonable juror would have found

the defendant guilty. In assessing the petitioner’s showing, a

district court is not bound by the rules of admissibility that

governed at trial, but may consider evidence that was unavailable

or excluded at trial. Id. at 327-28. In considering a

petitioner’s new evidence, a court may consider how “the timing

of the submission and the likely credibility of the affiants”

bear on its reliability. House v. Bell, 547 U.S. 518, 237 (2006)

(quoting Schlup at 331-32). The reviewing court is not to make

an independent judgment of the facts, but is to assess the likely

impact of the evidence on reasonable jurors.

The Court finds that the petitioner has failed to meet

the showing of actual innocence required for either a procedural

actual innocence claim under Schlup or a substantive claim under

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Herrera. As new evidence, the petitioner proffers the affidavits

of Brian Randle and Brian Johnston. 

Randle’s affidavit states that Randle was questioned by

Detectives Wyatt and Bamberski about the murder of Ruben Simmons;

that the detectives told Randle that he was a prime suspect in

the murder of Anthony “Roster” Grant; that the detectives told

Randle that, if he agreed to testify in Simmons’ murder case, he

would not be immediately charged with the Grant murder; and that

Randle made an agreement to testify against the petitioner,

signed a statement, and testified in court. The affidavit also

says “at the actual trial” of the petitioner, Randle was

instructed not to mention that he had been investigated for

Grant’s murder. 

Randle’s affidavit does not bear directly on the

petitioner’s guilt or innocence. If accepted as true, it might

tend to impeach Detective Wyatt’s testimony that Abid Stevens was

the prime suspect in the murder of Anthony “Roster” Grant

(although it does not directly contradict that testimony, since a

murder could have more than one prime suspect). That issue,

however, is entirely collateral to whether the petitioner

committed the crimes for which he was convicted. The credibility

of Randle’s affidavit is also subject to doubt. The affidavit

appears to say that Randle testified at the petitioner’s trial: 

“At the actual trial [of the petitioner], I was told to re[frain]

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44

from any mentioning that I had been investigated for the murder

of Anthony Grant.” Randle did not testify at the petitioner’s

trial, although the government concedes he may have been on its

witness list because he is mentioned in the government’s proposed

voir dire.

In contrast to Randle’s affidavit, Brian Johnston’s

affidavit directly bears on the question of the petitioner’s

guilt. Johnston was the only witness who testified that he saw

the petitioner commit the shooting that killed Ruben Simmons and

wounded Johnston. No other evidence directly linked the

petitioner to the crime. No other witness placed the petitioner

at the scene of the shooting. At trial, Johnston testified that

he was at a dice game at the parking lot on Germantown Avenue

with Ruben Simmons, Abid Stevens, and others, when the petitioner

walked up to Ruben Simmons and said, “I heard you were looking

for me,” and began shooting. Johnston testified that he and the

others began to run. Johnston ran half a block away and tried to

hide and saw the petitioner walking toward him. Johnston ran

back toward the parking lot and was shot in the foot. Johnston

testified that he then went to a friend’s house where the police

were called and he was taken to the hospital. He testified that

later that evening he identified the petitioner as the shooter

out of a photo array. At trial, the government presented

testimony from two police officers who responded to the call from

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45

Johnston’s friends house who both testified that Johnston

identified the petitioner as the shooter, as well as testimony

from the officer who presented Johnston with the photo array

later that night.

Johnston’s affidavit dated December 10, 1999, two and a

half years after the trial, states that “now that [Johnston]

knows what it’s like being in jail,” he wants to “clear his

conscience.” He says that, “at the time of the shooting” he had

gone to Ruben Simmons’ car to get beer and was returning to the

parking lot when he heard shooting and saw people running. He

started to run and later realized he had been shot. The

affidavit says that, after he went to his friend Percy’s house

(where he was when the police arrived and took him to the

hospital), he and Percy talked about the incident. The affidavit

says that “Percy told me that Lamont [the petitioner] had shot

him so I believed that Lamont had shot me and Ruben also, but

truthfully I really didn’t know.” 

Statements by recanting witnesses are “properly viewed

with great suspicion,” among other reasons, because they are

“very often unreliable and given for suspect motives.” Dobbert

v. Wainwright, 468 U.S. 1231, 1238 (1984) (denial of writ of

certiorari) (Brennan, J., dissenting). Here, Johnston’s

recanting affidavit contradicts his detailed testimony at trial

and his prior statements the night of the shooting identifying

Case 2:05-cv-04250-MAM Document 54 Filed 08/25/09 Page 45 of 57
46

the petitioner as the man who shot him and Ruben Simmons. 

Johnston’s testimony at trial, unlike that of the defense’s

eyewitness, was consistent with the forensic and ballistic

evidence presented at trial. 

The ballistic evidence showed that there were bullet

casings both in the parking lot and 300 feet away, near where

Johnston testified at trial that he was shot. This is consistent

with Johnston’s testimony that, after the shooting started, he

ran a half a block away and was shot when he saw the petitioner

walking towards him on the opposite side of the street and tried

to run back to the parking lot. The ballistic evidence is not

consistent with Johnston’s recanting affidavit, which states that

he was shot as he was returning to the parking lot with a can of

beer, as other people were running away. Had Johnston been shot

in the manner described in the affidavit, all of the petitioner’s

shots would have been fired from the parking lot, which is

inconsistent with the two shell casings found 300 feet away. 

The forensic evidence showed no stippling on Ruben

Simmons’ wounds, consistent with his being shot from greater than

two or two and a half feet away, as Johnston testified. It is

not consistent with the testimony of the defense’s eyewitness to

the shooting, Abid Stevens, who testified that the man he

identified as the shooter, Anthony “Roster” Grant, shot Ruben

Simmons from close range, as they were struggling with the gun. 

Case 2:05-cv-04250-MAM Document 54 Filed 08/25/09 Page 46 of 57
47

Abid Stevens testimony was also equivocal as to the

identity of the shooter. Stevens testified that he did not get a

good look at the shooter’s face and could identify him as

“Roster” Grant only by his accent when he spoke. He testified

that he could not be sure whether the petitioner was present at

the scene and could not say for sure that the petitioner did not

fire the shots that killed Ruben Simmons. 

The petitioner’s alibi witness, his girlfriend, Joanne

McDowell, testified that the petitioner had moved in with her on

August 12, 1996, and was with her the entire night of the

shooting. McDowell’s credibility, however, was undercut on

cross-examination. McDowell did not tell the police that the

petitioner was with her the night of the murder in her formal

statement after the petitioner’s arrest. She also told the

police on the day of the petitioner’s arrest that Gist was not

living with her. Although McDowell explained these

discrepancies, a reasonable juror could have disbelieved her

testimony. 

Considering the petitioner’s new evidence, together

with the evidence presented at trial, the Court finds that the

petitioner has not made the showing required for a procedural

claim of actual innocence under Schlup. The Court cannot find

that no reasonable juror weighing this evidence could find the

defendant guilty beyond a reasonable doubt. A reasonable juror

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The petitioner does not appear to have requested an 3

evidentiary hearing prior to the issuance of the instant Report

and Recommendation. The petitioner did not request an

evidentiary hearing in his initial habeas petition or his initial

supporting memorandum of law. After the government argued in its

response that the petitioner’s claims were time-barred because of

his failure to file a timely PCRA appeal, the petitioner

requested an evidentiary hearing in his reply in support of his

petition in order to “develop the facts” concerning his PCRA

counsel’s failure to comply with his request to file an appeal. 

After Magistrate Judge Caracappa issued a Report and

Recommendation without an evidentiary hearing, finding the

petition time-barred, the petitioner renewed his request for a

hearing on his PCRA’s counsel’s alleged dereliction in his

objections. This request was mooted when the petitioner’s

objections were sustained by Judge Kauffman, who found that the

limitations period for the petitioner’s habeas was equitably

tolled. 

After remand to Judge Caracappa for consideration on

48

could disbelieve Brian Johnston’s subsequent recantation of his

trial testimony and instead credit his identification of the

petitioner as the shooter at trial and in statements the night of

the shooting over the contrary evidence of Abid Stevens and

Joanne McDowell. Having found that the petitioner has not met

the showing required for a procedural claim under Schlup, the

Court finds that the petitioner cannot meet the even higher

standard required for a substantive claim under Herrera. Both of

the petitioner’s claims of actual innocence will therefore be

dismissed.

D. The Request for an Evidentiary Hearing Will Be Denied

The petitioner requested an evidentiary hearing in his

objections to the Report and Recommendation. The petitioner 3

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the merits, the government filed a supplemental response to the

petition and the petitioner, proceeding pro se, filed a reply. 

The last sentence of the reply asks that the Magistrate Judge

“grant the petitioner’s Petition for Writ of Habeas Corpus and

Order a New Trial or in the alternative, set a date for a hearing

on all the petitioner’s claims.” It is not clear whether this

sentence is requesting that the hearing be held in federal court

on the petitioner’s habeas claims or requesting that the federal

court order a hearing in state court. Judge Caracappa’s second

Report and Recommendation does not address the issue of an

evidentiary hearing. 

49

filed two sets of objections to the Report and Recommendation, an

initial set filed pro se and a supplemental set filed through

counsel. The last sentence of the pro se objections requests

that the Court “Order that the petitioner be granted an

evidentiary hearing and/or a new trial based on the merits of the

Constitutional violations presented before this Court.” The

second set of objections, filed by counsel, specifically requests

an evidentiary hearing as to both pieces of “newly acquired”

evidence proffered by the petitioner: the affidavit of Brian

Randle and the affidavit of Brian Johnson. 

A hearing is requested as to Randle so that he “can

testify, and information from police files can be disclosed to

show that [the] police not only suspected Randle in the Grant

murder but were on the verge of charging him with that murder.” 

Docket No. 49 at 19. A hearing is requested as to Johnston so

that a judge “can see and hear Johnston testify, amplify his

affidavit, and face cross-examination.” Id. at 25. The

government filed separate responses to the petitioner’s

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50

objections, neither of which addresses whether to grant an

evidentiary hearing.

1. The Request for an Evidentiary Hearing Must Be

Denied Under § 2254(e)(2) 

The Court will deny the request for an evidentiary

hearing. The availability of an evidentiary hearing is

restricted by AEDPA. The relevant provision of the statute is

codified at 28 U.S.C. § 2254(e)(2). It provides:

If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by

the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have

been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). 

The threshold issue to determine if the restrictions of

this provision apply is whether the petitioner “failed to develop

the factual basis of a claim in State Court proceedings.” 

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51

Wiliams v. Taylor, 529 U.S. 420, 430 (2000). A failure to

develop is established by lack of diligence or some greater fault

attributable to the prisoner or the prisoner’s counsel. 

Diligence “will require in the usual case that the prisoner, at a

minimum, seek an evidentiary hearing in state court in the manner

prescribed by state law.” Id. at 437. 

The Court finds that the petitioner failed to develop

the factual basis of his claim in his state PCRA proceedings

because he failed to request an evidentiary hearing in that forum

on the Randle and Johnston affidavits. The petitioner attached

both affidavits to his PCRA petition and relied upon them in

advancing his PCRA claims of prosecutorial misconduct and actual

innocence/exculpation, but he did not request that the PCRA court

hold an evidentiary hearing. The petitioner’s initial PCRA

petition, prepared pro se, requested an evidentiary hearing “on

ineffective assistance issues,” but not on the prosecutorial

misconduct or actual innocence issues supported by the

affidavits. The supplemental PCRA petition and memorandum

prepared by counsel does not mention an evidentiary hearing. 

Although the petitioner has challenged the PCRA court’s failure

to hold an evidentiary hearing in this habeas petition, he does

not affirmatively state that he requested such a hearing before

the PCRA. 

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52

As suggested in Williams, the failure to request an

evidentiary hearing in state court on the petitioner’s newly

proffered affidavits demonstrates sufficient lack of diligence to

establish that he “failed to develop” the factual basis of his

claim. The petitioner therefore must satisfy the requirements of

§ 2254(e)(2) to obtain an evidentiary hearing. 

The Court finds that the petitioner has not made the

showing required by § 2254(e)(2) to obtain an evidentiary

hearing. Under § 2254(e)(2), to be entitled to a hearing, the

Randle and Johnston affidavits would have to be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found

the petitioner guilty. § 2254(e)(2)(B). The Court has already

found in its discussion of the petitioner’s claim of actual

innocence that the petitioner cannot make this showing even under

the lower standard of a preponderance of the evidence, as

required to establish a procedural claim of actual innocence

under Schlup. 513 U.S. at 327. Because § 2254(e)(2) is not met,

the petitioner is not entitled to an evidentiary hearing.

2. The Request for an Evidentiary Hearing Would Be

Denied Even if § 2254(e)(2) Did Not Apply 

Even if the Court could find that the petitioner

exercised sufficient diligence in developing his claims

concerning the affidavits to avoid the application of

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53

§ 2254(e)(2), the Court would still find that the petitioner is

not entitled to an evidentiary hearing. If § 2254(e)(2) did not

apply, the decision to grant an evidentiary hearing would rest in

the discretion of the trial court. Schiro v. Landrigan, 550 U.S.

465, 467 (2007). In exercising that discretion, a court must

consider “whether such a hearing could enable an applicant to

prove the petition’s factual allegations, which, if true, would

entitle the applicant to federal habeas relief.” Id. at 474. A

court must take into account the deferential standards of § 2254

in determining whether an evidentiary hearing would be

appropriate. Id. Where the petitioner’s factual allegations are

contradicted by the factual record or where the petitioner has

failed to present sufficient evidence to rebut state court

factual findings, a court is not required to hold an evidentiary

hearing. Id. 

Even if § 2254(e)(2) did not apply here, no evidentiary

hearing would be warranted concerning the Randle affidavit. The

Randle affidavit is a basis for Claim Four (prosecutorial

misconduct from Detective Wyatt’s allegedly perjured statement

that Abid Stevens was a prime suspect in the Grant murder), Claim

Five (prosecutorial misconduct from withholding evidence that

Randle was a suspect in the Grant murder), and Claim Nine (actual

innocence). In dismissing Claim Four and Claim Five, the Court

assumed the allegations of the Randle affidavit were true and

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54

still found no merit to those claims. Although the Court

considered the credibility of the Randle affidavit in dismissing

the petitioner’s actual innocence claims, the Court finds that

even assuming the truth of the affidavit, the petitioner would

still fail to meet the required showing to prevail on those

claims. 

If § 2254(e)(2) did not apply, the issue of whether to

hold an evidentiary hearing on the Johnston affidavit would

present a closer question than the Randle affidavit. If the

statements in the Johnston affidavit are taken as true, then they

recant both Johnston’s sworn testimony at trial and his prior

statements the night of the shooting, identifying the petitioner

as the man who wounded him and killed Ruben Simmons. Because

this identification is the only direct evidence that the

petitioner committed the crime, a credible recantation could

support a colorable claim of actual innocence. In deciding

whether to hold an evidentiary hearing, however, the Court must

consider the restrictions of § 2254. Schiro, 550 U.S. at 474. 

Under § 2254(e)(1), a state court’s factual determination is

presumed to be correct and a petitioner has the burden of

rebutting this presumption by clear and convincing evidence.

Here, the state PCRA court found that the Johnston

affidavit was not credible from the face of the affidavit,

without holding an evidentiary hearing. The fact that no hearing

Case 2:05-cv-04250-MAM Document 54 Filed 08/25/09 Page 54 of 57
55

was held does not automatically prevent the PCRA court’s decision

from being entitled to the presumption of correctness, but it is

a factor in considering whether deference should apply. Fahy v.

Horn, 516 F.3d 169, 183 (3d Cir. 2008). 

Here, Johnston’s affidavit contradicts his trial

testimony and his earlier statements. It also, as discussed

earlier, contradicts the ballistic evidence. The ballistic

evidence showed that the shooter fired his gun both in the

parking lot and 300 feet away. This is consistent with

Johnston’s trial testimony that he was shot after the petitioner

moved a half block away from the parking lot, toward where

Johnston was hiding, and inconsistent with Johnston’s affidavit,

which suggests that he was shot as he returned to the parking

lot. 

Given these facial inconsistencies between the

affidavit and the ballistic evidence, the PCRA court had a

reasonable basis for finding that Johnston’s affidavit was not

credible without holding an evidentiary hearing. The Court

therefore cannot say that the PCRA court’s factual determination

of credibility is not entitled to AEDPA’s presumption of

correctness. Because the PCRA court’s presumption applies, the

petitioner can only rebut it by a showing of clear and convincing

evidence that Johnston’s affidavit is credible. The petitioner

has not made such a showing. Given the petitioner’s failure to

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56

present sufficient evidence to rebut the PCRA court’s factual

findings on Johnston’s credibility, the Court would decline to

order an evidentiary hearing on the Johnston affidavit, even if

§ 2254(e)(2) did not independently bar such a hearing. See 

Schiro, 550 U.S. at 474 (noting that a court need not order an

evidentiary hearing where a petitioner has failed to rebut a

state court’s factual findings).

E. No Certificate of Appealability Will Be Issued

The Court has denied some of the petitioner’s claims on

the merits and found others to be procedurally defaulted. If a

constitutional claim is rejected on the merits, a certificate of

appealability should issue when reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong. If a claim is dismissed on procedural

grounds without reaching the merits, a certificate of

appealability should issue only when the petitioner shows both

that reasonable jurists would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that reasonable jurists would find it debatable whether

the district court was correct in its procedural ruling. Slack

v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court finds that

neither showing has been met here and that there are no grounds

for the issuance of a certificate of appealability.

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An appropriate Order will be issued separately.

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