NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 17-2026

__________

RICHARD ALLEN RATUSHNY,

 Appellant

v.

SUPERINTENDENT HUNTINGDON SCI;

ATTORNEY GENERAL PENNSYLVANIA; 

DISTRICT ATTORNEY NORTHAMPTON COUNTY

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court Civil No. 5-14-cv-01324)

District Judge: Honorable Cynthia M. Rufe

Submitted Under Third Circuit L.A.R. 34.1(a)

May 25, 2018

BEFORE: MCKEE, SHWARTZ, and NYGAARD, Circuit Judges

(Filed June 26, 2018)

__________

OPINION*

__________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

NYGAARD, Circuit Judge.

I.

Before proceeding to the merits of this habeas appeal, we first must determine the 

scope of the District Court’s certificate of appealability (COA).

1

 Petitioner Richard 

Ratushny argues for an expansive reading of the certificate to encompass all of the issues 

he now raises on appeal. The Commonwealth, on the other hand, argues that the District 

Court limited its grant to a single issue: the Petitioner’s Brady claim.2 We may not 

consider issues on appeal that are not within the scope of the COA.

3

 However, we may, 

in our discretion, expand the scope of the certificate beyond that announced by the 

District Court.

4

The District Court’s order denying habeas relief contains a general statement that 

“the Court issues a certificate of appealability.” The Petitioner points to this sentence as 

evidence that the COA is expansive, encompassing all the claims he raised in the District 

 

1 See 28 U.S.C. § 2253(c)(2). We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 

and 2253. We will dispense with the usual recitation of the factual background and 

procedural history of this matter, as both are well-known to the parties and 

comprehensively set forth in the District Court’s memorandum and the U.S. Magistrate 

Judge’s Report and Recommendation. For this same reason, we will also dispense with 

citations to the record. We need only relate that a Pennsylvania jury convicted the 

Petitioner of aggravated indecent assault, indecent assault, endangering the welfare of 

children, corruption of minors, and unlawful contact with a minor, crimes which 

stemmed from his sexual abuse of his girlfriend’s daughters. He was sentenced to six to 

nineteen years in prison.

2 Brady v. Maryland, 373 U.S. 83 (1963). 

3 28 U.S.C. § 2253(c)(3); Third Circuit Local Appellate Rule 22.1(b); Miller v. 

Dragovich, 311 F.3d 574, 577 (3d Cir. 2002).

4 See 3d Cir. LAR 22.1(b).
3

Court. But, the District Court’s memorandum opinion explains otherwise. The Petitioner 

raised these habeas claims in the District Court: an ineffective assistance of counsel claim 

arising from trial counsel’s alleged conflict of interest, an ineffective assistance of 

counsel claim stemming from trial counsel’s failure to uncover a prior criminal 

conviction of his victim’s mother, and a Brady violation claim. Ratushny’s petition was 

referred to a U.S. Magistrate Judge, who recommended that relief be denied on all claims.

 We read the COA as limited solely to the Brady violation. The structure of the 

District Court’s opinion adopting the Magistrate Judge’s Report and Recommendation is 

obvious, using Roman numerals and capital letters to demarcate its discussion and 

analysis. Relevant here, the District Court’s opinion deals with the Petitioner’s claims in 

separate, delineated sections: Part III, section “A.” dealt with the Petitioner’s 

ineffectiveness claims while Part III, section “B.” dealt with the purported Brady

violations. In Section A., the District Court specifically held that Ratushny was “not 

entitled to relief” on the ineffectiveness claims.5 Compare this with section B, wherein 

the District Court specifically noted that “although the Court will deny relief, a certificate 

of appealability will issue.” Because the sections of the District Court’s opinion are 

clearly delineated with headings and subheadings, and because its grant of a COA is 

 

5 The Magistrate Judge’s Report and Recommendation rolled both ineffective assistance 

of counsel claims into one discussion and analysis. The District Court did not identify 

the ineffectiveness claim focusing on the victim’s mother’s prior conviction for specific 

discussion, adopting the Magistrate Judge’s recommendation without analysis. No COA 

was, therefore, given by the District Court on this claim, and despite the District Court’s 

lack of specific discussion of this issue, the Petitioner has not sought one on appeal. 
4

found only in Part III, Section B., it is just as clearly limited to the Brady claim. We, 

therefore, lack jurisdiction to review the ineffective assistance of counsel claim.6 

II.

We turn now to the claim on which the Petitioner was granted a COA, the alleged 

Brady violation.7 Brady teaches that a state bears an “affirmative duty to disclose 

[material] evidence favorable to a defendant.”8 “Material” evidence is that in which there 

is “a reasonable probability that, had the evidence been disclosed to the defense, the 

result of the proceeding would have been different.”9 The Supreme Court clarified that 

“[t]here are three components of a true Brady violation: The evidence at issue must be 

favorable to the accused, either because it is exculpatory, or because it is impeaching; that 

 

6 While we have the authority to expand the scope of the certificate of appealability sua 

sponte, we decline to do so here because reasonable jurists could not debate the District 

Court's conclusion that state court’s application of the Strickland standard was 

unreasonable. See Strickland v. Washington, 466 U.S. 668, 694 (1984); 28 U.S.C. 

§2254(d)(1). The state court held a post-conviction relief hearing and determined that 

counsel had not violated the Commonwealth’s conflict of interest prescriptions. Further, 

the state court concluded that Ratushny’s interests did not diverge from those of the 

subject of the conflict of interest, a witness. The Pennsylvania Superior Court affirmed 

with a comprehensive discussion of this issue, holding that the situation was not likely to 

be a conflict of interest. Given the wide deference afforded to the state court’s 

determinations, we agree with the District Court that Ratushny should not be accorded 

relief on this claim and that reasonable jurists would not disagree.

7 The Petitioner raises the second claim of ineffective assistance of counsel on appeal, but 

given our holding that the District Court’s COA is limited to the Brady violation, we lack 

jurisdiction to review this claim as well and decline to use our discretionary authority to 

review it. 

8 Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. 83). 

9 United States v. Bagley, 473 U.S. 667, 682 (1985). 
5

evidence must have been suppressed by the State, either willfully or inadvertently; and 

prejudice must have ensued.”10 

The Petitioner asserts the Commonwealth violated Brady by failing to divulge the 

fact that the victim’s mother—his former girlfriend and a witness for the prosecution—

had a fraud conviction on her resume that could have been used for impeachment 

purposes. The Pennsylvania PCRA court determined that while this evidence fell under 

Brady’s purview, there was no violation because there was no support on the record for a 

finding that the Commonwealth “possessed or controlled that information” and then 

either intentionally or inadvertently failed to disclose it to the defense. The state court 

based its conclusion on the fact that public record of the conviction was available to the 

defense and because there was no evidence that the prosecution had a record of this 

conviction and withheld it from the defense. We agree with the District Court that the 

criminal record was suppressed under Brady, as we have specifically explained.11 The 

state courts reliance on the fact that the criminal records were publicly accessible is of no 

moment since public availability does not absolve a prosecutor from the responsibility to 

provide such records to the defense.12 Nor is the prosecution relieved of its 

responsibilities under Brady where defense counsel fails to ask for such records. A 

 

10 Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

11 See Wilson v. Beard, 589 F.3d 651, 663 (3d Cir. 2009) (citing United States v. 

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

12 Id. at 663-664.
6

prosecutor’s duties are clear under Brady and an analysis of whether defense counsel 

could have or should have discovered the records is “beside the point.”13

But, the fact Brady material was suppressed does not necessarily mean the state 

court unreasonably applied federal law. To reiterate, the failure to disclose Brady

evidence only mandates a new trial if such evidence is “material,” that is, if there is a 

reasonable probability that, had the evidence been disclosed to the defense, the result of 

the proceeding would have been different.”14 Here, the state courts made the 

determination that the reliability and credibility of the victim’s mother were not “critical 

or essential” to the conviction. Several other witnesses, including another sister of the 

victim, testified to the fact that she had misrepresented herself on numerous occasions. 

Furthermore, various friends had testified that the victim confided in them about the 

abuse. Based on this, the state court determined that the Brady material was not 

favorable enough to overcome other evidence and affect the verdict, and, therefore, “did 

not undermine the fairness of the proceeding.” This conclusion is consistent with our 

standard for determining whether Brady evidence was material. Hence, we agree with 

the District Court that the state courts did not unreasonably apply federal law in 

concluding that the Brady evidence was not material, especially given the corroborating 

testimony of the victim and others. The victim’s mother was thoroughly cross-examined, 

during which Petitioner’s counsel elicited from her information about her long history of 

drug use (including her use of illegal drugs with her minor daughter), her difficult 

 

13 Dennis v. Sec’y, Pa. Dept. Corrections, 834 F.3d 263, 291 (3d Cir. 2016).

14 Bagley, 473 U.S. at 682.
7

relationship with her daughter, and her belief that she was competing with her daughter 

for Petitioner’s attention and affections. Cross-examination also revealed her two-year 

delay in reporting the sexual abuse, as well as her prior threats to report the Petitioner to 

the police, and her repeated threats to report him to the authorities in order to exact some 

revenge on him for leaving her. Defense counsel’s closing argument specifically focused 

on the victim’s mother’s lack of credibility and veracity. 

Given this, the fact that the victim’s mother had been convicted of a fraud offense 

was not significant. We have stated that “[t]he materiality of Brady material depends 

almost entirely on the value of the evidence relative to the other evidence mustered by the 

state.”15 The Brady evidence that she had been convicted of fraud does nothing to “put 

the whole case in a different light as to undermine [] confidence in the verdict.”16

Therefore, this Brady evidence was not material, and, for the foregoing reasons, 

we will affirm. 

 

15 Johnson v. Folino, 705 F.3d 117, 129 (3d Cir. 2013) (citing Rocha v. Thaler, 619 F.3d 

387, 396 (5th Cir. 2010)).

16 Hollman v. Wilson, 158 F.3d 177, 182 (3d Cir. 1998).