1

“Kelly” refers to the petitioner. Williamina Kelly will always be designated by her first

and last name.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN LAMONT KELLY : CIVIL ACTION

:

v. :

:

EDWARD J. KLEM, THE DISTRICT :

ATTORNEY OF THE COUNTY OF :

DELAWARE, and THE ATTORNEY :

GENERAL OF THE STATE OF :

PENNSYLVANIA : NO. 05-3843

MEMORANDUM & ORDER

NORMA L. SHAPIRO, S.J. AUGUST 21, 2008

Petitioner, Kevin Lamont Kelly (“Kelly”), a prisoner at the Frackville State Correctional

Institution, filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254. Kelly’s

petition alleged five claims: (1) ineffective assistance of trial counsel for failing to call two alibi

witnesses, Ernest Carter and Williamina Kelly1; (2) imposition of an unlawful sentence; (3)

ineffective assistance of trial counsel for failing to challenge the introduction into evidence of an

allegedly improper photo array; (4) ineffective assistance of trial counsel for failing to call alibi

witness James “Ratboy” Fowlkes; and (5) ineffective assistance of trial counsel for failing to

investigate or call witness Williamina Kelly, who may have provided exculpatory testimony.

The court approved Magistrate Judge Peter B. Scuderi’s Report and Recommendation that claims

1, 3 and 5 were without merit. With respect to claims 2 and 4, the court ordered counsel

appointed and the petition remanded for an evidentiary hearing to determine: (1) the factual basis

underlying Claims 2 and 4; and (2) whether Kelly makes a sufficient showing of actual innocence

so claims 2 and 4 may be considered on the merits although they are procedurally defaulted. After

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 1 of 15
2The co-defendants’ charges were severed prior to Kelly’s trial.

2

an evidentiary hearing, Magistrate Judge Scuderi filed a Supplemental Report and

Recommendation (“Supplemental R&R”) that Kelly had not made a sufficient showing of actual

innocence allowing him to argue the merits of claims 2 and 4. Kelly filed objections. For the

following reasons, the court will approve and adopt the Supplemental R&R. Claims 2 and 4 of

Kelly’s habeas petition will be denied as procedurally defaulted, and the objections will be

overruled.

I. BACKGROUND AND PROCEDURAL HISTORY

The procedural history is described at length in Magistrate Judge Scuderi’s original R&R

filed January 24, 2006, and in this court’s memorandum and order dated October 6, 2006; the

court recites only those facts relevant to deciding Kelly’s gateway claim of actual innocence. In

considering a petition for a writ of habeas corpus under 28 U.S.C. § 2254, the court presumes

state court factual determinations to be correct unless rebutted by clear and convincing evidence. 

28 U.S.C. § 2254(e)(1). 

Kelly was charged with murder in the first degree, robbery, and related offenses for the

shooting death of Sam London and the wounding of Robert Keatley. The trial court described the

evidence at trial as follows:

The evidence presented at trial established that Sam London and Robert Keatley

were living together in an apartment in the City of Chester. On April 28, 1996, codefendant2

 Clifford Harris came to the apartment and knocked on the door. Robert

Keatley testified that when he asked the identity of the knocker he heard and

recognized the voice of Clifford Harris. He had known Clifford Harris for some

time and knew that he had visited the apartment on several prior occasions. Upon

opening the door, Clifford Harris along with his co-defendants, Kevin Kelly and

Tyrone Harris, rushed into the apartment. A struggle ensued between the intruders

and the occupants resulting in Kevin Kelly producing a gun and firing it several

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 2 of 15
3

times. Sam London received a fatal gunshot to his head and Robert Keatley was

wounded in his arm. The surviving victim identified Kevin Kelly as the person

who held the gun and fired the shots killing Sam London and wounding himself. 

Prior to coming to the London and Keatley apartment, co-defendants Kevin Kelly,

Clifford Harris and Tyrone Harris were together in the City of Chester. They had

been drinking and decided that they wanted to obtain some cocaine. Prior to

driving to the apartment, Tyrone Harris and Kevin Kelly were passing a revolver

between them and Tyrone Harris put some shells in the gun. The evidence

established that Tyrone Harris and Kevin Kelly discussed in the presence of

Clifford Harris that they were going to the London apartment in an effort to rob

him.

The evidence presented by the Commonwealth at trial came from the testimony of

Robert Keatley and Kevin Kelly’s co-defendants, Tyrone Harris and Clifford

Harris. Trial counsel for the defendant attempted to establish that the testimony of

both of the Harrises was biased and they identified Kevin Kelly as the shooter in

order to obtain more lenient sentences for themselves. Counsel also attempted to

impeach these witnesses through inconsistencies between their statements to the

police and their trial testimony. Counsel for the defendant presented a single

defense witness, the detective of the Delaware County Criminal Investigation

division who conducted a lineup at the Delaware County Prison. At this lineup

Robert Keatley failed to identify Kevin Kelly and picked out someone other than

Kevin Kelly as the shooter. Trial counsel called no other witnesses on behalf of

the defendant.

Commonwealth of Pennsylvania v. Kelly, No. 95-5187, slip op. at 2-3 (Pa. C.C.P. Del.Co., June

30, 1998). Robert Keatley testified that Kelly and the Harrises arrived at London’s apartment at

approximately 1:45 a.m. See Br. For Appellee, 1999 WL 33840662 at *3 (Pa. Super.Ct., Jan. 8,

1999) (citing Notes of Testimony 8/6/97, pages 67-68). 

On August 8, 1997, the jury convicted Kelly of second degree murder, robbery, and

aggravated assault. New counsel was appointed for sentencing. Kelly was sentenced to life

imprisonment for his second degree murder conviction with ten to twenty years consecutive for

the aggravated assault conviction. The robbery conviction merged for sentencing. Kelly filed

post-sentence motions, a direct appeal, and multiple petitions for collateral relief under

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 3 of 15
4

Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Con. Stat. § 9541, et seq.. 

Kelly’s post-sentence motions alleged, in relevant part, ineffective assistance of counsel

for failing to call Ernest Carter and Williamina Kelly at trial. In an interview prior to trial, Carter

had described observing “the taller thin guy drove the car. The heavier older guy got in the front

seat passenger and the third black skinny guy I didn’t see before he got in the back seat of the

Neon.” Commonwealth of Pennsylvania v. Kelly, No. 95-5187, slip op. at 4 (Pa. C.C.P. Del.Co.,

June 30, 1998) (citing Notes of Testimony 2/6/98, pages 13 to 14). The Harrises had testified that

Kelly was the driver of the Dodge Neon automobile used on the night of the murder, but Kelly is

approximately 5'9" tall and weighs approximately 145 lbs. Id. at 3-4. Clifford and Tyrone Harris

have a brother, a tall, thin black male who drove a Dodge Neon automobile. Id. at 4. Carter also

stated he saw the same three black males and a white male in the alleyway behind the apartment

where London was killed. Id. Tyrone Harris, Clifford Harris, and Robert Keatley never

acknowledged meeting outside the apartment prior to the robbery and murder. Id. 

As established at a February 6, 1998, post conviction hearing, Carter also recited in his

statement that one of the black males involved in the incident was approximately 220 lbs., 5'8" to

5'11" tall and wearing a dark jogging suit. Id. at 5. The Commonwealth presented evidence that

the police seized a blue jogging suit from the home of Kelly’s girlfriend. Id. 

Williamina Kelly testified at a hearing before the trial court on February 12, 1998. Id. at 7. 

She testified that on the night of the shooting, she witnessed Tyrone Harris, Clifford Harris and

Kevin Kelly arrive in a Dodge Neon automobile near her apartment in the City of Chester; Kelly

was the driver. Id. Tyrone Harris and Clifford Harris went to the apartment of Juanita Harris, the

mother of Tyrone Harris. Id. Williamina Kelly learned at a later time that Tyrone Harris had

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 4 of 15
5

delivered a gun to Juanita Harris with instructions to dispose of the weapon. Id. Within twentyfour hours, Williamina Kelly saw Juanita Harris walking toward the Delaware River. Id. 

On February 3, 1998, during the pendency of Kelly’s post-sentence motions, Lennon

Investigations interviewed James Fowlkes. The notes of the interview with Fowlkes are as

follows:

Subject was interviewed by telephone on February 3, 1998. He seemed to be of

average intelligence and expressed himself adequately.

He stated that on April 28, 1996, he was employed as a janitor at the Madison

Grill, 12th and Madison Streets, Chester, Pennsylvania. On that date, he observed

Kevin Kelly drinking in the Madison Grill all evening until 12:30 or 1:00 AM. At

that time, Mr. Kelly departed the bar with a male who stopped by the bar and a

female the witness identifies as Mr. Kelly’s sister-in-law. The witness said that

they took a ride. At approximately 1:30 to 1:45 AM, the witness observed Kevin

Kelly return to the Madison Grill. At that time, the witness was in the second floor

apartment where he lives above the bar. Mr. Kelly yelled up for the witness but the

witness did not respond to his calls. Mr. Kelly was now in the company of his

sister-in-law. Mr. Kelly departed the area in his vehicle, make and model

unknown. Mr. Fowlkes believes the car was that of Mr. Kelly’s girlfriend. Mr.

Kelly left the Madison Grill at approximately 1:30 to 1:45 AM. He drove towards

the Howard Johnson’s which the witness says is in the direction of Mr. Kelly’s

house. The witness did not see Mr. Kelly again that evening. During this night,

the witness did not observe any guns in the possession of Mr. Kelly. 

(Pet’r’s Response and Objection to R&R, Ex. 1(A).) Lennon’s report was submitted to

attorney Leach on February 17, 1998. (Pet’r’s Response and Objection to R&R, Ex. 1(A)

at 3.) The evidentiary hearings on Kelly’s post-sentence motions had already been held on

February 6 and 12, 1998, so the court could not have considered the significance of

Fowlkes’ testimony in deciding the post-sentence motions. 

The trial court denied Kelly’s post-sentence motions. It found, inter alia, that trial

counsel was not ineffective for failing to call Ernest Carter and Williamina Kelly as

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 5 of 15
6

witnesses at trial.

Kelly, alleging, inter alia, ineffective assistance of counsel for failing to call Carter

and Williamina Kelly as witnesses, filed a direct appeal. The Superior Court affirmed the

judgment of sentence and the Pennsylvania Supreme Court denied allocatur.

Kelly, alleging ineffective assistance of counsel, filed a pro se PCRA petition. While

appointment of counsel was pending, Kelly filed an amended pro se PCRA petition with similar

claims, but added he had told trial counsel Fowlkes was a potential witness, and explained the

relevance of Fowlkes’ potential testimony as an alibi witness. PCRA counsel was appointed and

filed a supplemental PCRA petition that included trial counsel’s failure to locate and subpoena

Fowlkes. 

On February 4, 2002, while Kelly’s amended PCRA petition was pending, a second

private investigator, McNeil Investigations, submitted a report of an interview with Fowlkes. The

notes of the investigator’s interview with Fowlkes on December 18, 2001, are as follows:

I met with (Rat Boy) James Fowlkes of 435 Bickley Place, Chester, Pa. We met in

the 200 block of Sunnyside, Chester, Pa where he was working on a house. Mr.

Fowlkes stated that he and Kevin Kelly were together that night drinking and went

on to say that they were at the bar at 12th and Madison and went upstairs to drink

some more. He stated that they were together until 2:00 a.m. He also stated that

he would got o [sic] court and tell his story. He went on to say that a lady by the

name of Connie Lovelace was with them also. I asked him where I could find this

Connie, and he stated that she hangs around 3rd and Flower Streets, at the Keystone

Bar. I thanked him for his time and left.

(Petr’s. Response and Objection to R&R, Ex. 1(B).) 

PCRA counsel withdrew, and new counsel was appointed. Appointed counsel for

Kelly filed another amended PCRA petition and stated Kelly’s claim for ineffectiveness of

counsel for failure to investigate and subpoena Fowlkes and others had been previously

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 6 of 15
7

litigated and lacked merit. Counsel’s belief was incorrect; the issue had only been litigated

with respect to Carter and Williamina Kelly. The PCRA petition was denied after an

evidentiary hearing. 

Counsel for Kelly filed an appeal to Superior Court. After receiving counsel’s

Superior Court brief, Kelly filed a pro se petition alleging ineffective assistance of PCRA

counsel. PCRA counsel filed a petition for remand. 

The Superior Court remanded the action to the Commonwealth PCRA court,

ordered new counsel appointed for Kelly, and instructed the parties to file new briefs with

the Superior Court. The trial court appointed new PCRA counsel. The counseled brief in

Superior Court did not argue trial counsel was ineffective for failing to investigate or call

Fowlkes as an alibi witness at trial. The Superior Court affirmed the denial of PCRA

relief. 

Kelly filed a habeas petition and claimed: (1) trial counsel was ineffective for failing to

investigate and call two defense witnesses (presumably Williamina Kelly and Ernest Carter) to

rebut the Commonwealth’s witnesses; (2) the trial court erred in using facts outside the trial

proceedings to enhance Kelly’s sentence; (3) trial counsel was ineffective for failing to move to

suppress an allegedly improper photo array; (4) trial counsel was ineffective for failing to call

James “Ratboy” Faulks [Fowlkes] as an alibi witness; and (5) trial counsel was ineffective for

failing to call Williamina Kelly “who would have testified to the involvement of the codefendants in the incident and exculpated petitioner.” (Pet. for Habeas Corpus at 9, 10.)

This habeas petition was referred to Magistrate Judge Peter B. Scuderi for a Report and

Recommendation. Magistrate Judge Scuderi recommended that the habeas petition be denied

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 7 of 15
8

because claims 1, 3 and 5 lacked merit, and claims 2 and 4 were procedurally defaulted. Kelly

objected and contended that he did raise his counsel’s ineffectiveness in failing to call James

Fowlkes, both on direct appeal and in the PCRA proceedings. Kelly also maintained he is

“actually innocent” of the crimes for which he was convicted and that his innocence would have

been established by the testimony of alibi witnesses who would have placed him “on the other

side of town” at the time the crime occurred. Kelly objected to the Magistrate Judge’s findings on

all five claims. 

This court reviewed Kelly’s objections and approved and adopted Magistrate Judge

Scuderi’s recommendation that claims 1, 3, and 5 lacked merit. The court agreed with the

Magistrate Judge that trial counsel was not ineffective for failing to call Ernest Carter as an alibi

witness, because Carter refused to accept the trial subpoena. Carter had also described a man

similar to Kelly’s size and weight in the vicinity of the crime, and described a blue jogging suit

similar to the one police found at the home of Kelly’s girlfriend. The court also agreed with the

Magistrate Judge that trial counsel was not ineffective for failing to call Williamina Kelly as a

witness, because most of her testimony was based on hearsay and would not have been

particularly helpful. 

The court agreed that claims 2 and 4 were procedurally defaulted and Kelly had not shown

cause for the default. Because Kelly asserted actual innocence, the court did not approve

Magistrate Judge Scuderi’s recommendation to deny claims 2 and 4, but ordered counsel

appointed and remanded the petition for an evidentiary hearing to determine: (1) the factual basis

underlying Claims 2 and 4; and (2) whether Kelly makes a sufficient showing of actual innocence

so claims 2 and 4 may be considered on the merits although they are procedurally defaulted. 

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 8 of 15
9

Magistrate Judge Scuderi held an evidentiary hearing at which Fowlkes testified. Fowlkes

testified he knew Kelly because he had a close relationship with Kelly’s mother. (Hr’g Tr. 8:13-

8:17, July 26, 2007.) He testified that on the night of April 27, 1996, between 6:00 p.m. and 6:30

a.m. the next morning, Fowlkes, Kelly, and Connie Lovelace were drinking in a room above the

bar at Madison Grille, where Fowlkes worked. (Hr’g Tr. 9:5-10:16, 11:13-11:14.) Fowlkes fell

asleep at 2:00 a.m. on the morning of April 28, 1996. (Hr’g Tr. 26:2-26:3.) According to

Fowlkes, Kelly and Connie Lovelace could not have left the room because the door was locked

and Fowlkes kept the keys in his pocket and locked to his belt. (Hr’g Tr. 10:13-10:21, 21:21-

21:24.) Fowlkes did not let Kelly out of the locked room until 6:30 a.m. on April 28, 1996. (Hr’g

Tr. 11:13-11:14.) Testimony by Agent Thomas F. Mincavage revealed it was approximately an

eight to ten minute drive from the Madison Grille to the scene of the crime. (Hr’g Tr. 52:7-54:3.) 

Fowlkes’ testimony contradicted Robert Keatley’s trial testimony that Kelly arrived at London’s

apartment at approximately 1:45 a.m. on April 28, 1996. 

On cross-examination, counsel for the Attorney General asked Fowlkes if he told an

investigator in February 1998 that Kelly left the Madison Grille at 1:45 a.m. on April 28, 1996,

and that Fowlkes never saw Kelly again. (Hr’g Tr. 18:14-18:16.) Fowlkes testified he may have

given the investigator this information because he was drunk; at the time, he regularly had been

drinking heavily. (Hr’g Tr. 18:17-18:19.) Fowlkes stated he had been in rehabilitation since

1998, and after rehabilitation, he “started picturing things back together.” (Hr’g Tr. 18:22-18:23,

24:5-24:8.) 

Respondents also introduced an investigation report by Sergeant Joseph Patrick O’Berg at

the evidentiary hearing before Magistrate Judge Scuderi. Sergeant O’Berg testified he

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 9 of 15
3The court assumes when Kelly refers to the “Madison Bar” in the investigation report, he

actually is referring to the “Madison Grille” where Fowlkes worked.

10

interviewed Kelly during his investigation of the April 28, 1996, shooting. (Hr’g Tr. 40:2-40:24.) 

According to the investigation report, dated May 8, 1996, Kelly stated he drove with Clifford

Harris and his cousin to Delaware to obtain a gallon of Thunderbird at approximately 11:45 on

April 27, 1996. (Hr’g Tr., July 26, 2007, Respondents’ Ex. B.) He stated he was with the

Harrises for approximately half an hour before they bought the wine, and approximately fifteen

minutes after they bought the wine. Id. 

According to the investigation report, after buying the wine, Kelly drove the Harrises to

Clifford Harris’s mother’s house on 2nd Street so Clifford Harris could “try to get a couple of

dollars.” Id. Kelly saw Greg Holland standing outside Rico’s Bar and talking to his sister Linda

on the telephone. Id. Kelly spoke with Linda. Id. Clifford Harris did not receive any money

from his mother’s house, so Kelly and the Harrises drove to the area of 3rd and Highland Street to

drink the wine. Id. After they finished the wine, Kelly dropped off the Harrises. Id. Kelly stated

he then went to the Madison Bar,3 where he saw Derrick Nicholson. Id. Kelly stated he stayed at

the Madison Bar for approximately fifteen minutes, then went to his house to go to the bathroom. 

Id. Kelly stated he was alone in his apartment for approximately half an hour, then he drove

towards the West End and down Clover Lane at approximately 3:00 a.m. on April 28, 1996. Id. 

Kelly stated he then drove toward Westchester to pick up his mother, but his car broke down. Id. 

In the Supplemental R&R, Magistrate Judge Scuderi noted the inconsistencies among

Fowlkes’ statements to the investigators and his testimony at the evidentiary hearing. The

Magistrate Judge found reasonable jurors would not have found Fowlkes’ alibi testimony credible,

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 10 of 15
11

partly because of Fowlkes’ longstanding alcohol problem and the appearance of bias due to

Fowlkes’ close relationship with Kelly’s mother. Magistrate Judge Scuderi also noted the

contradictions between Fowlkes’ testimony and Kelly’s statements to the police. Considering the

totality of the evidence, Magistrate Judge Scuderi recommended finding Kelly had not met the

actual innocence standard, and was not entitled to argue the merits of claims 2 and 4. 

Kelly, arguing trial counsel deprived him of a fair trial, filed objections. Kelly claims a

jury must weigh Fowlkes’ testimony before Kelly is condemned to life in prison. Kelly

emphasizes that despite his numerous collateral attacks and appeals, Fowlkes was not called to

testify for ten years. He argues it is not appropriate for him to bear the burden of demonstrating

actual innocence before the court considers his habeas claims. 

II. DISCUSSION

A district court reviews de novo those portions of a magistrate judge’s report and

recommendation to which objection is made. See 28 U.S.C. § 636(b)(1)(C).

Claims 2 and 4 of Kelly’s habeas petition are procedurally defaulted. In the memorandum

and order dated October 6, 2006, this court determined that Kelly did not establish “cause and

prejudice” to excuse the procedural default, so Kelly must establish a “fundamental miscarriage of

justice,” i.e. actual innocence, in order to proceed with his habeas claims. See Schlup v. Delo,

513 U.S. 298, 314-15, 321 (1995). A claim of innocence is a gateway through which a habeas

petitioner must pass to have an otherwise barred constitutional claim considered on the merits. Id.

at 315. 

A petitioner asserting a claim of actual innocence must “support his allegations of

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 11 of 15
12

constitutional error with new reliable evidence – whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.” 

Id. at 324. The petitioner must show a constitutional violation “has probably resulted in the

conviction of one who is actually innocent.” Id. at 327; Murray v. Carrier, 477 U.S. 478, 496

(1986). To satisfy the gateway standard for actual innocence, a petitioner must show that in light

of new evidence, “it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. In other words, the petitioner must

show, in light of the new evidence, it is “more likely than not any reasonable juror would have

reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006). The district court must make a

probabilistic determination about what reasonable, properly instructed jurors would do. Schlup,

513 U.S. at 329. The court’s function is not to make an independent factual determination about

what likely occurred, but to assess the likely impact of the evidence on reasonable jurors. House,

547 U.S. at 538. 

In assessing a claim of actual innocence, the district court is not bound by the rules of

admissibility that would govern at trial. Schlup, 513 U.S. at 327. The habeas court must make its

determination in light of all the evidence, and must consider evidence claimed to have been

wrongly excluded or unavailable at trial. Id. at 327-28. The court must assess how reasonable

jurors would react to the overall newly supplemented record. House, 548 U.S. at 538. 

Despite Kelly’s objection that it is unfair for him to assume the burden of demonstrating

actual innocence, the court must apply the Schlup standard in determining whether Kelly can

proceed with his procedurally defaulted claims. In light of all the evidence in the record, Kelly

has not met the Schlup standard of actual innocence by showing that no reasonable juror would

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 12 of 15
13

have found him guilty beyond a reasonable doubt even if Fowlkes had testified. Robert Keatley

testified at trial that Kelly fired the shots which killed London and wounded Keatley. Clifford

Harris and Tyrone Harris testified that Kelly and Tyrone Harris passed a revolver between them

and discussed robbing London. They also identified Kelly as the shooter. The only evidence

presented in Kelly’s defense at trial consisted of a detective’s testimony that Keatley failed to

identify Kelly in a Delaware County Prison lineup as the shooter. 

Evidence added to the record after Kelly’s trial consists of statements from Ernest Carter,

Williamina Kelly, and James Fowlkes. Carter’s testimony tended to corroborate the

Commonwealth’s case, as he had reported observing a black male wearing a dark jogging suit,

similar to the one found in the home of Kelly’s girlfriend, at the scene of the crime. Inconsistency

between Carter’s description of the person driving the Dodge Neon automobile on the night of the

shooting, and the Harrises’ testimony that Kelly was the driver, would not be likely to create a

reasonable doubt regarding Kelly’s guilt in the mind of a reasonable juror. Williamina Kelly’s

testimony that Tyrone Harris gave his mother the murder weapon, with instructions to dispose of

it, is not particularly credible because it was not based on firsthand observation but on hearsay. 

Fowlkes testified at the evidentiary hearing before Magistrate Judge Scuderi that Kelly

was locked in Fowlkes’ room above the Madison Grille from 6:00 p.m. on April 27, 1996, to 6:30

a.m. on April 28, 1996. This testimony is inconsistent with his statement to the McNeil

investigator that Fowlkes was with Kelly until 2:00 a.m. on April 28, 1996, and his statement to

the Lennon investigator that Kelly was at the Madison Grille until 12:30 a.m. or 1:00 a.m., and

returned to and departed from the Madison Grille sometime between 1:30 a.m. and 1:45 a.m.. 

Kelly’s statement to Sergeant O’Berg fails to corroborate Fowlkes’ testimony, as Kelly did not

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 13 of 15
14

mention Fowlkes, and stated he was in the Madison Grille for only fifteen minutes. 

Moreover, a reasonable juror is not likely to find Fowlkes credible because of his close

relationship with Kelly’s mother and his alcohol problems at the time Fowlkes gave his statements

to the investigators. Although Fowlkes testified his alcohol problems have been resolved since he

began rehabilitation, his most recent testimony before Magistrate Judge Scuderi in July, 2007, is

not credible because of the passage of time since the shooting in April, 1996.

Considering the testimony from Keatley and the Harrises identifying Kelly as the shooter,

and testimony from Carter describing a man similar to Kelly at the scene of the crime, it is not

more likely than not that any reasonable juror would have a reasonable doubt regarding Kelly’s

guilt because of evidence from Fowlkes, Carter, and Williamina Kelly. In light of the entire

record, it is more likely than not that a reasonable juror would have found Kelly guilty beyond a

reasonable doubt. Kelly has failed to satisfy the gateway standard of actual innocence under

Schlup. He is not entitled to argue the merits of his procedurally defaulted claims. 

III. CONCLUSION

Magistrate Judge Scuderi’s Supplemental R&R will be approved and adopted. Kelly’s

objections will be overruled. Kelly’s petition for writ of habeas corpus under 28 U.S.C. § 2254

will be denied. There is no basis for the issuance of a certificate of appealability.

An appropriate order follows. 

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 14 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN LAMONT KELLY : CIVIL ACTION

:

v. :

:

EDWARD J. KLEM, THE DISTRICT :

ATTORNEY OF THE COUNTY OF :

DELAWARE, and THE ATTORNEY :

GENERAL OF THE STATE OF :

PENNSYLVANIA : NO. 05-3843

ORDER

AND NOW, this 21st day of August, 2008, upon consideration of Magistrate Judge 

Scuderi’s Supplemental Report and Recommendation, petitioner’s objections, and all other

relevant papers, for the reasons included in the accompanying memorandum, it is ORDERED:

1. The Supplemental Report and Recommendation (paper no. 49) is APPROVED

and ADOPTED.

2. Petitioner’s objections to the Supplemental Report and Recommendation (paper 

no. 56) are OVERRULED.

3. The petition for a writ of habeas corpus (paper no. 1) under 28 U.S.C. § 2254 is

DENIED.

4. There is no probable cause for the issuance of a certificate of appealability.

 /s/ Norma L. Shapiro 

S.J.

Case 2:05-cv-03843-NS Document 57 Filed 08/22/08 Page 15 of 15