Kevin F. Johnson v. Superintendent, Mahanoy Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2531
_______________
KEVIN F. JOHNSON,
Appellant
v.
SUPERINTENDENT, MAHANOY SCI;
DISTRICT ATTORNEY OF PHILADELPHIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:13-cv-03197)
District Judge: Hon. Eduardo C. Robreno (Ret.)
_______________
Argued: December 11, 2024
Before: BIBAS, CHUNG, and ROTH, Circuit Judges
(Filed: July 14, 2025)
Claudia B. Flores
FEDERAL COMMUNITY DEFENDER OFFICE
EASTERN DISTRICT OF PENNSYLVANIA
601 Walnut Street, The Curtis Center, Suite 540 West

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Philadelphia, PA 19106
David Rudovsky [ARGUED]
KAIRYS, RUDOVSKY, MESSING, FEINBERG & LIN
718 Arch Street, Suite 501 South
Philadelphia, PA 19106
Nilam A. Sanghvi
PENNSYLVANIA INNOCENCE PROJECT
1515 Market Street, 3rd Floor
Philadelphia, PA 19102
Counsel for Appellant
Sara M. Cohbra [ARGUED]
Katherine E. Ernst
Samuel H. Ritterman
PHILADELPHIA COUNTY DISTRICT ATTORNEY’S OFFICE
3 S. Penn Square
Philadelphia, PA 19107
Counsel for Appellees
Ronald Eisenberg [ARGUED]
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE
1600 Arch Street, Suite 300
Philadelphia, PA 19103
Susan E. Affronti
PENNSYLVANIA ATTORNEY GENERAL’S OFFICE
1000 Madison Avenue
Norristown, PA 19403
Counsel for Amicus Pennsylvania Attorney General’s Office

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_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Comity is the backbone of federal habeas review. When
states prosecute and convict people, state courts play the pri-
mary role in enforcing federal law and correcting their own
mistakes. So federal habeas petitioners must overcome legal
hurdles that ensure that state courts take the first crack at resolv-
ing their claims.
Kevin Johnson tried to dodge some of these hurdles through
a “Settlement Agreement” for habeas relief. And the Philadel-
phia District Attorney’s Office tried to help Johnson do that by
waiving its non-jurisdictional defenses to his claims. These
maneuvers undercut Pennsylvania state courts’ duty to review
habeas relief independently, and the state Attorney General as
amicus opposed the waivers. In these exceptional circum-
stances, the District Court rightly chose to reject one of the
waivers. We likewise reject Johnson and the DA’s effort to
agree to a federal evidentiary hearing for facts that Johnson
should have developed in state court. And on the merits, the
District Court rightly rejected Johnson’s remaining claims. So
we will affirm its denial of his habeas petition.
I. THE MURDER CASE
A. A jury convicts Johnson of murdering Cowboy
This case stretches back almost four decades. In 1986, two
men shot and killed Lyndon “Cowboy” Morris, a drug dealer,

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while he was selling drugs out of a southwest Philadelphia
rowhouse. Four people witnessed the crime. The first was
James Smith, who opened the door for the gunmen and brought
them upstairs to Cowboy’s room when they demanded to see
him. The others were Opal Nickson, Elisha Bennett, and Angelo
Smith. They were getting high in the next room over. They saw
one of the gunmen when he entered the doorway to that room,
pointed his pistol at them, and ordered them to get down on the
floor. Then they saw him run back out and shoot Cowboy.
Within twenty-four hours, all four witnesses had identified
Kevin Johnson. They picked his photo out of an array, identi-
fying him as the shooter with the pistol. James Smith, Nickson,
and Bennett had all seen Johnson before; all three positively
identified him. Only Angelo Smith, who said he did not think
he had ever seen the shooter before, expressed doubts. When
shown the photo array, he pointed to Johnson’s photo and said
it “looks like him[;] I am not positive.” JA 196.
The state charged Johnson with first-degree murder. At
trial, every eyewitness but Angelo Smith testified. Each posi-
tively identified Johnson in the courtroom as the shooter.
James Smith testified that he saw Johnson’s face twice: once
when he opened the front door and led Johnson upstairs, and
later when Johnson “came straight past” him on his way to
shoot Cowboy. JA 738. Elisha Bennett confirmed that he saw
Johnson’s face when Johnson stepped into the doorway of the
room he was in and pointed his gun at the group inside. Nick-
son testified that she also saw his face then. She emphasized
that she “remembered his face real good” because she “knew
him from [around] the neighborhood” where she grew up. JA

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849. On the day of the shooting, she had even seen him driving
on her street.
For his part, Johnson claimed mistaken identity. He said
that night, he was selling clothing around Philadelphia with a
friend. Johnson’s lawyer tried but failed to find that friend.
Still, Johnson put on three other alibi witnesses. They all testi-
fied that they had seen him at some point that night. But no one
could place him far from the crime scene when the shooting
occurred. And when Johnson took the stand, he contradicted
his own alibi witnesses. The jury convicted him of first-degree
murder, the judge sentenced him to life in prison, and the Su-
perior Court affirmed his conviction and sentence.
B. Johnson collaterally attacks his conviction
Next, Johnson sought relief under the Post Conviction Re-
lief Act (PCRA), Pennsylvania’s statutory substitute for habeas
corpus. He claimed ineffective assistance of counsel. He also
claimed to have new evidence from James Smith, who in 2001
had recanted his identification and said police had forced him
to identify Johnson as the shooter. The PCRA court denied his
petition, but the Superior Court reversed and remanded for an
evidentiary hearing on ineffective assistance. After that hear-
ing, the state courts dismissed his petition and then affirmed
that dismissal. Then Johnson filed his first federal habeas peti-
tion, claiming ineffective assistance.
In 2014, more than a quarter century after the murder and
while the federal petition was pending, a defense investigator
interviewed all four eyewitnesses. In affidavits, three recanted.
James Smith reiterated a claim that he had made in 2001 that
police had coerced him to identify Johnson. Bennett and

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Nickson accused police of doing the same to them. Nickson
added that she had told police “that Kevin [Johnson] looked a
little like the guy with the pistol but Kevin’s skin was much
lighter” and that she had told the prosecutor before testifying
“that the guy with the pistol had darker skin than Kevin.” JA
217. Angelo Smith, who did not testify at trial, did not claim
police coercion. Instead, he said he had shown up to Johnson’s
trial but was sent home when he told “either the DA or the po-
lice” that he could not identify Johnson. JA 221.
Based on this new evidence, Johnson amended his federal
petition to add Brady claims. He also filed a second PCRA
petition. But the state PCRA court dismissed that petition as
time barred, and the appellate court affirmed.
So Johnson returned to federal court, picking up his
amended federal habeas petition where he had left off. In 2019,
during discovery, the District Attorney found and turned over
Johnson’s arrest photos. The photos showed Johnson with a
thin mustache. By contrast, James and Angelo Smith had
described the shooter as “clean shave[n],” with “no mustache
or facial hair.” JA 192, 195. One photo also listed Johnson’s
height as 5’6”, though James Smith had described the shooter
as 6’1”. Based on these photos, Johnson filed a third PCRA
petition, as he could not pursue this claim on federal habeas
until a state court had first considered it. 28 U.S.C.
§ 2254(b)(1)(A).
C. Johnson and the DA try to “settle” for habeas relief
A month later, Johnson and the DA asked the federal Dis-
trict Court to approve a “Compromise and Settlement Agree-
ment for Habeas Relief.” JA 316. In that agreement, the DA

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agreed not to oppose habeas relief and Johnson agreed to with-
draw the third PCRA petition based on the arrest photo. But the
parties knew that Johnson’s path to federal habeas relief was
blocked by his failure to exhaust state remedies and by his pro-
cedural defaults. If someone convicted in state court has not
exhausted his state-law remedies, then ordinarily, federal
courts cannot consider his habeas petition. 28 U.S.C.
§ 2254(b)(1)(A); Lines v. Larkins, 208 F.3d 153, 159–60 (3d
Cir. 2000). And if a state court decides that a petitioner’s path
through state court is blocked by a procedural bar (like a statute
of limitations), his claim is deemed procedurally defaulted.
Lines, 208 F.3d at 160. Federal courts cannot hear procedurally
defaulted claims “unless the petitioner establishes cause and
prejudice or a fundamental miscarriage of justice to excuse
[his] default.” Id. (internal quotation marks omitted).
These hurdles stood in Johnson’s way. Two of his Brady
claims (based on Angelo Smith’s inability to identify Johnson
in the courtroom and on Nickson’s recantation) are barred by
Pennsylvania’s statute of limitations and so were procedurally
defaulted in state court. (Johnson did not and does not press
Brady claims based on the other two recantations.) And the
third claim, based on the arrest photos, was never exhausted;
Johnson withdrew his third PCRA petition before the state
court could consider it. But failure to exhaust and procedural
default are merely defenses that the state may raise, not juris-
dictional bars. Granberry v. Greer, 481 U.S. 129, 131–32
(1987); Trent v. Cain, 522 U.S. 87, 89 (1997). So under the
“Settlement Agreement,” Johnson and the DA tried to bank-
shot Johnson’s habeas petition from state court to federal by

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waiving all non-jurisdictional defenses, including procedural
default and exhaustion.
The District Court declined to automatically grant the ha-
beas petition per the Settlement Agreement. It concluded that
it “d[id] not possess unfettered discretion to order a state pris-
oner released without assuring itself that the petitioner’s claims
have merit.” JA 10–11. So it asked the parties to brief the effect
of the state’s waivers and whether Johnson was entitled to ha-
beas on the merits. And because “the proceeding was no longer
adversarial,” it invited the state Attorney General to express
her views as amicus curiae. JA 9.
The Attorney General objected that the waivers
“amount[ed] to forum-shopping”—an effort to force the fed-
eral court to address claims that should have been resolved in
state court in a bid to lower a sentence that a new DA disliked.
JA 390. She thus argued that the federal District Court had dis-
cretion to reject those waivers. And she contended that on the
merits, Johnson did not deserve habeas relief.
Agreeing that it had discretion to decline the waivers, the
District Court rejected the procedural-default waiver, though it
accepted the exhaustion one. And it concluded that neither of
the narrow exceptions to procedural default applied, so it did
not reach the merits of the Angelo Smith and Nickson Brady
claims. But, for the arrest-photos Brady claim, the court looked
past the failure to exhaust. Still, it rejected that claim on the
merits, holding that the photo would not have been material to
the verdict. The court also rejected Johnson’s ineffective-assis-
tance claims. It thus denied his petition.
Today, we resolve two questions:

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1) Did the District Court have discretion to reject the pro-
cedural-default waivers? We answer yes.
2) Even if it did, did it properly deny habeas relief? Again,
we answer yes.
II. THE DISTRICT COURT PROPERLY REJECTED
THE DA’S PROCEDURAL-DEFAULT WAIVER
Johnson argues that the District Court had no discretion to
reject the DA’s knowing and intentional waiver of the procedural-
default bar. We see the force of that argument. The Supreme
Court has instructed that a court is “not at liberty … to bypass,
override, or excuse a State’s deliberate waiver of a [statute of]
limitations defense.” Wood v. Milyard, 566 U.S. 463, 466
(2012). So as a rule, courts may not “override” intentional waiv-
ers. Id. at 473–74 (internal quotation marks omitted); see also
United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023)
(“[W]e cannot reach waived arguments … .”). Three of our
sister circuits have held that, under Wood, courts must accept
procedural-default waivers. Maslonka v. Hoffner, 900 F.3d
269, 276–77 (6th Cir. 2018); Williams v. United States, 879 F.3d
244, 248 (7th Cir. 2018); McCormick v. Parker, 821 F.3d 1240,
1245 (10th Cir. 2016). That makes sense. “[P]rocedural default
… is not a jurisdictional matter” but an affirmative defense.
Trest, 522 U.S. at 89; see also Wood, 566 U.S. at 472. And we
typically expect parties to preserve these defenses if they want
to rely on them.
But we need not decide whether Wood extends to all ordi-
nary procedural-default waivers. Even if it does, the waivers
here were anything but ordinary. Indeed, Wood did not consider,
and had no occasion to consider, the type of waiver here.

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Though Wood’s rule seems categorical, context tells us that it
has limits. This case shows us those limits.
In Wood, the state chose to waive its statute-of-limitations
defense because it thought it was “unclear” under existing law
whether the petition was timely. JA at 70a, Wood, 566 U.S. 463
(No. 10-9995). So it reasonably decided to “steer[ ] the District
Court away from” that tricky legal question and “towards the
merits of Wood’s petition,” where the parties and court would
better spend their efforts. Wood, 566 U.S. at 474. In other words,
the state made a garden-variety, case-specific, tactical waiver of
one argument to focus the litigation on its stronger claims.
The waiver here is far different. The DA waived procedural
default as part of a strategic agreement with Johnson. The strat-
egy was to: (1) circumvent state law, which would have blocked
Johnson’s bid for relief; and (2) gain access to what they hoped
would be a more favorable forum with a more favorable stand-
ard of review.
In essence, Johnson and the DA wanted a fast track to habeas
relief—one that would have granted Johnson habeas without
any substantive review of the merits of his claims. They tried to
do that through a private “Compromise and Settlement Agree-
ment” for habeas relief that they wanted a court to sign. But the
state court could not have gone along with such an agreement.
Under Pennsylvania law, state PCRA courts cannot rubber-
stamp settlement agreements for habeas relief. Commonwealth
v. Brown, 196 A.3d 130, 146 (Pa. 2018) (“A confession of error
by the Commonwealth … is insufficient for any grant of relief
under the PCRA.”). The PCRA mandates “judicial merits re-
view favorable to the petitioner before any relief may be

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granted.” Id. So the state court would have rejected the agree-
ment unless it was backed by a favorable claim on the merits.
But Johnson’s underlying state claim was thin and had no good
chance at relief. The state court had already ruled that he was
blocked from presenting two of his Brady claims because they
were untimely. So he was left to bid for relief in state court
with only the third Brady claim, based on his arrest photos.
That would have been a risky gambit. If the state court consid-
ered and rejected it on the merits, any future federal habeas
court would have been required to review that decision very
deferentially under AEDPA.
Johnson tried to wriggle out of that bind. He removed the
third Brady claim from state court and then tried to slip all his
Brady claims in through a more favorable entrance—a back-
door to habeas relief. To do that, the DA and Johnson strategi-
cally packaged the procedural-default and exhaustion waivers
together with the settlement agreement. Here is how they built
that package: To ensure “that Johnson’s claims [we]re properly
before [the] Court,” “[a]s part of th[e] Agreement, Johnson …
withdr[ew] [his third PCRA] petition and … [the DA] waiv[ed]
the exhaustion defense” and the procedural-default defenses. JA
317 n.1, 320 ¶ 23. They then asked the District Court to go
along, granting the petition based on this private settlement
without any briefing on the merits of the habeas claims. See
App. 331 (terms of the proposed court order: “This Court shall
conditionally grant Petitioner’s Petition for Writ of Habeas Cor-
pus based upon the Parties’ agreement that the interests of jus-
tice so require.”). Though the strategy did not work perfectly, it
was still effective. Even though the District Court rejected the
waiver, it arguably still reviewed Johnson’s petition in a more

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favorable posture than it would have absent the Settlement
Agreement: It reviewed the claims for cause and prejudice and
had no state findings to defer to.
Our dissenting colleague says we must defer to the parties’
wishes and approve their stratagem. But nothing in Wood com-
pels us to go so far. The Settlement Agreement is a narrow and
extraordinary circumstance that gives us two reasons to depart
from the usual waiver rule.
The first reason is comity. This stratagem would have under-
mined state law by overturning a conviction without giving the
state court the first crack simply because the current DA saw it
as unjust. But it would have done more too. It would also have
undermined the state court’s insistence that the executive branch
lacks the authority to unilaterally “reverse a jury’s verdict with-
out any judicial review.” Brown, 196 A.3d at 146 (emphasis re-
moved). Federal courts must scrutinize these moves; comity and
the state’s separation of powers demand it.
True, the DA is the litigating party here, not the Attorney
General. Though the Attorney General is the “chief law enforce-
ment officer of the Commonwealth,” local DAs have the author-
ity to enforce state law locally and typically do so as a matter of
practice. Pa. Const. art. IV, § 4.1; see 16 Pa. Cons. Stat. Ann.
§ 14302; Commonwealth v. Schab, 383 A.2d 819, 824 (Pa.
1978). Respect for comity usually means not “intru[ding] into
the state’s internal allocation of governmental authority.” Barrera
v. Young, 794 F.2d 1264, 1269 (7th Cir. 1986) (Easterbrook, J.).
But comity also means respecting state courts. This respect
is especially important on federal habeas review because state
courts play the leading role in protecting federal rights when

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prosecuting and convicting people. See Coleman v. Thompson,
501 U.S. 722, 731 (1991). That is why we have doctrines like
procedural default and exhaustion in the first place. They ensure
that federal habeas courts rarely “upset a state court conviction
without an opportunity [for] the state courts to correct a consti-
tutional violation.” Rose v. Lundy, 455 U.S. 509, 518 (1982) (in-
ternal quotation marks omitted).
The Attorney General intervened as amicus and opposed the
procedural-default waiver on precisely these grounds. She did
so not because she disagreed with the DA’s litigating tactics, but
because he was using the waiver to get his settlement agreement
in front of a favorable forum with a more favorable standard of
review, making an “end run around the limits of [a federal]
[c]ourt’s jurisdiction.” Coleman, 501 U.S. at 730. Plus, she rea-
sonably worried that one voice in the plural state executive
branch was trying to use a federal court to bypass the state judi-
ciary’s limits on prosecutorial authority.
The District Court did not abuse its discretion by weighing
the views of the Attorney General, as amicus, against the DA’s.
When a DA asks a federal court to bless an extraordinary agree-
ment that the state judiciary would reject and that the state’s top
law-enforcement officer opposes, comity cuts the other way.
Comity does not require federal courts to accept the novel strat-
agem of a lone official, leaving federal courts powerless to re-
spect state rules and the limits of their own jurisdiction.
The second reason not to bless the waiver is the adversarial
process. Unlike the waiver in Wood, this one reflects a break-
down in the adversarial process, not an example of it. To be sure,
prosecutors must ensure that “justice shall be done,” which

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sometimes means confessing error. Berger v. United States, 295
U.S. 78, 88 (1935); see also Model R. Pro. Conduct 3.8 (ABA
1983). So of course, prosecutors may properly confess error.
Still, courts cannot accept a prosecutor’s confession of error
at face value without “examin[ing] [it] independently.” Young
v. United States, 315 U.S. 257, 258–59 (1942). After all, our
criminal justice system is built on the notion that “[t]ruth … is
best discovered by powerful statements on both sides of the
question.” United States v. Cronic, 466 U.S. 648, 655 (1984)
(internal quotation marks omitted). Courts must determine the
truth and decide whether the facts and law demand relief.
This case does not involve a normal confession of error. The
DA’s office did not just confess error, making its office an
adversary to Johnson in name only. It also sought to evade ju-
dicial review of its own confession by waiving its defenses. In
other words, rather than set Johnson’s petition up for meaningful
review, it tried to clear his pathway to habeas relief through the
Settlement Agreement. Johnson’s case is one in a striking pat-
tern of state-court murder convictions that have been overturned
in recent years using similar stratagems. Since 2018, more than
100 convictions have been overturned via untested post-convic-
tion concessions from the Philadelphia DA. Attorney General’s
Amicus Brief in Support of Petitioners 14–30, Commonwealth v.
Brown, No. 32 EM 2023 (Pa. August 15, 2024) (collecting cases).
When prosecutors couple a confession of error with waiver
stratagems like this one, in the face of opposition from an ami-
cus that also represents the state’s interests (the Attorney Gen-
eral), courts have discretion to consider whether accepting the
DA’s tactics would undermine their core reviewing function.

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To be sure, the District Court had to give “the parties fair
notice and an opportunity to present their positions” before reject-
ing the waiver. Day v. McDonough, 547 U.S. 198, 210 (2006).
But that happened here. In its amicus brief, the Attorney General
asked the District Court to reject the waivers. Both Johnson and
the DA then filed reply briefs arguing that the District Court should
accept them. So the parties had enough of a chance to advocate for
their positions before the District Court made its decision.
*****
Federal courts weighing split comity interests in this non-
adversarial context must prudently reason through these tricky
issues. And a district court has plenty of discretion to reject the
waiver when a DA uses it to skirt unfavorable state law, despite
the state Attorney General’s view that an adversarial posture is
appropriate. To be sure, we expect that Wood’s default rule will
almost always control. But Wood does not stretch far enough to
cover extraordinary facts like these.
III. ON THE EXISTING RECORD, JOHNSON CANNOT
OTHERWISE OVERCOME THE DEFAULT
OF HIS TWO BRADY CLAIMS
Without the procedural-default waivers, Johnson had only
two narrow paths to get the District Court to hear his defaulted
Brady claims. First, he could show “cause and prejudice” (that
is, that he had good cause for the procedural default and had
suffered prejudice from the alleged violation of federal law).
Coleman, 501 U.S. at 750. Or second, he could show that barring
his petition would create a “fundamental miscarriage of justice.”
Id. As the District Court found, Johnson has shown neither.

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A. Johnson does not have enough to show cause and
prejudice through Brady
First, Johnson seeks to prove cause and prejudice through
his claims under Brady v. Maryland, 373 U.S. 83, 87 (1963).
To succeed on a Brady claim, he must show that the prosecu-
tion (1) failed to disclose evidence that it had in its files that
was (2) material and (3) favorable to him. Johnson v. Folino,
705 F.3d 117, 128 (3d Cir. 2013). When a petitioner proves
those first two elements (suppression and materiality), he has
shown cause and prejudice, and the procedural default will not
bar review of his claims. Banks v. Dretke, 540 U.S. 668, 691
(2004). (If Johnson could not timely challenge his conviction
because the state was suppressing evidence, that amounts to
cause. Id. And if that evidence was material, the violation prej-
udiced him. Id.) When the District Court evaluated Johnson’s
two Brady claims, it found neither one material and so con-
cluded that, on the existing record, Johnson could not prove
prejudice to overcome the default.
Because the District Court did not hold an evidentiary hear-
ing, we review de novo, viewing all facts in the light most
favorable to Johnson. Mathias v. Superintendent Frackville
SCI, 876 F.3d 462, 475 (3d Cir. 2017); Roman v. DiGuglielmo,
675 F.3d 204, 208 (3d Cir. 2012). If Johnson has stated “a cog-
nizable claim for habeas relief,” we must “then determine
whether an evidentiary hearing is necessary to develop the
facts before us.” Roman, 675 F.3d at 208.
We agree with the District Court that Johnson does not have
enough on the existing record to show cause and prejudice
through Brady. But we rest on Brady’s suppression

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requirement. The District Court assumed that Johnson had
proven suppression “if [Nickson and Smith’s statements] are
to be believed.” App. 26, 29. Our dissenting colleague likewise
assumes that Johnson has proven suppression without citation
or explanation. Dissent at 34. But to succeed on a Brady claim,
a defendant has the burden of showing that the evidence in
question meets Brady’s three elements, including that the state
had the evidence yet failed to turn it over. Dennis v. Sec’y, Pa.
Dep’t of Corr., 834 F.3d 263, 284 (3d Cir. 2016) (en banc); see
also United States v. Walter, 870 F.3d 622, 629 (7th Cir. 2017)
(placing the burden on defendants to prove all three elements);
Gillard v. Mitchell, 445 F.3d 883, 894 (6th Cir. 2006) (same).
We have yet to clarify how a defendant carries this burden
where, like here, the parties dispute whether the prosecution
even had the evidence and the record is unclear. See Slutzker v.
Johnson, 393 F.3d 373, 386 n.13 (3d Cir. 2004).
Today, we hold that the habeas petitioner bears the burden
of producing credible evidence that raises a reasonable infer-
ence that the prosecution possessed the alleged Brady material
yet failed to turn it over. It is the petitioner’s burden to prove
that the prosecution violated his due-process rights, entitling
him to a new trial. And he should not be able to make an end-
run around that obligation by claiming, without enough proof,
that the prosecution had relevant evidence and failed to dis-
close it. This is especially so here, where the state would have
to prove a negative: that it satisfied its duty to turn over evidence
that the Attorney General argues never existed in the first place.
With this principle in mind, we conclude that Johnson does
not have enough on the existing record to carry his burden of
producing credible evidence that the DA had both Angelo

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Smith’s and Nickson’s statements yet failed to turn them over.
True, he presents affidavits in which Smith and Nickson
claimed that they had told the prosecution key details about the
shooter’s appearance that the prosecution never turned over to
Johnson. Yet a witness must do more than just accuse the pros-
ecution of having this evidence. Cf. Clay v. Bowersox, 367 F.3d
993, 1002 (8th Cir. 2004) (finding no suppression when three
witnesses claimed that they had told a police officer something,
but there was no record that they had done so or other evidence
supporting their claims).
The District Court rightly discounted these affidavits as rid-
dled with credibility and reliability problems. “Courts have his-
torically viewed recantation testimony with great suspicion.”
Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988). And for
good reason. That testimony “upsets society’s interest in the
finality of convictions, is very often unreliable and given for
suspect motives, and most often serves merely to impeach cu-
mulative evidence rather than to undermine confidence in the
accuracy of the conviction.” Dobbert v. Wainwright, 468 U.S.
1231, 1233–34 (1984) (Brennan, J., dissenting from denial of
stay). Witnesses may be pressured by the defendant’s friends
and family into recanting; years after the crime, it is hard to
know. Even so, we do not and should not reject recantation
evidence as categorically unreliable. See Howell v. Superinten-
dent Albion SCI, 978 F.3d 54, 60 (3d Cir. 2020). These con-
cerns mean only that we must evaluate it with a careful eye.
And here, the recantations are belated, inconsistent, and con-
fused. So they are not enough to carry Johnson’s burden of
proof on suppression.

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1. Angelo Smith’s affidavits are not sufficiently credible ev-
idence that he actually told police that he could not identify
Johnson. Start with Angelo Smith’s two affidavits claiming
that prosecutors told him not to testify at trial because he did
not recognize Johnson. He later said, “I did not read [the first
affidavit], I just signed it” because “I was tired and didn’t want
to read it, I just wanted the [defense investigator] out of there.”
JA 357. Worse still, he said that he did not even see the second
affidavit. The investigator asked him to “sign a blank piece of
paper and I did. I just wanted them to leave.” Id.
To be sure, we must draw reasonable inferences in favor of
Johnson. And it matters that in a 2016 interview with homicide
detectives, Angelo Smith affirmed the affidavits’ core story.
Still, that statement was unsworn and not subjected to adver-
sarial testing—“[t]he commonly accepted method to determine
whether a witness is telling the truth.” Clark v. Warden, 934
F.3d 483, 493 (6th Cir. 2019).
Johnson claims that other evidence corroborates Angelo
Smith’s statements, but it does not. The state paid Smith for
two unspecified days to attend proceedings as a witness in
Johnson’s trial itself. But the record shows only that he showed
up to one day of proceedings, the suppression hearing. Johnson
reads this evidence as proof that Smith showed up to the first
day of trial and left, suggesting that the government sent him
home early because he could not identify Johnson. Yet the sec-
ond day’s payment may have been for the preliminary hearing;
Smith may have attended it and confused it with the trial. Noth-
ing in the record tells us which version is right. What is more,
other evidence casts doubt on Smith’s testimony. When he did
not show up to trial, the prosecution asked for a bench warrant

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20
to compel his testimony—a strange move if the prosecution
had sent him home.
Thus, there is not enough credible evidence in the record to
raise a reasonable inference that the prosecution had Angelo
Smith’s alleged statement (made right before testifying) that he
could not identify Johnson. To supplement this record, Johnson
would have to subject Smith’s claim to adversarial testing at an
evidentiary hearing. See Howell, 978 F.3d at 58, 60, 62 (grant-
ing an evidentiary hearing to confirm witnesses’ affidavits re-
canting their trial testimony). But as we explain below, John-
son does not qualify for an evidentiary hearing.
2. Nickson’s affidavit is not sufficiently credible evidence
that she told police that Johnson was not the shooter. Nick-
son’s affidavit, also from 2014, is even shakier. She said she
told police in her first interview that Johnson’s skin was too
light to be the shooter and that she had “identified Kevin John-
son as the guy who pointed the pistol at us, though I knew it
wasn’t him.” JA 217. But her 2014 recantation directly contra-
dicts her later statement to homicide investigators: When asked
in 2016 if she was “absolutely sure” that it was Johnson who
had held her at gunpoint, she said, “Yes.” JA 305. And at a
2019 deposition, she could not explain these inconsistencies.
She said that she did not remember her 2016 statement to police.
Plus, she said that she did not remember either signing the 2014
affidavit or claiming that she had falsely testified at Johnson’s
trial; she only remembered that the defense investigator who
secured the affidavit was harassing her.
True, at that 2019 deposition, Nickson did repeat her 2014
claim that Johnson’s skin color was lighter than the shooter’s.

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21
Yet even viewing this evidence in the light most favorable to
Johnson, it is hard to overlook the inconsistency of these state-
ments. Nickson stressed that she “can’t remember things
clearly” (perhaps because of the stroke that she had previously
suffered). JA 235. And her own statements bore that out. For
instance, she said she had told prosecutors before Johnson’s
trial that his skin was too light. But a little later, she said she
had realized that Johnson was not the shooter because of his
skin color only after she saw him in person and testified,
though she never told anyone about this realization. Given
these inconsistencies and unreliability, Johnson has not put
enough credible proof into the record that Nickson in fact told
the police about Johnson’s complexion.
Because Johnson does not currently have credible evidence
supporting a reasonable inference that the prosecution pos-
sessed either Angelo Smith’s or Nickson’s statement yet failed
to turn it over, he cannot show cause to overcome his proce-
dural default of these two claims. To be clear, we do not sug-
gest that these claims would not warrant relief if they were
proven credible through adversarial testing. We pass no judg-
ment on their underlying merit. Rather, we hold that on the
existing record, Johnson does not have enough credible evi-
dence to raise the reasonable inference that the state violated
Brady by suppressing these statements.
B. Johnson cannot show cause and prejudice through
ineffective assistance
Johnson says he can still prove cause and prejudice because
his state PCRA lawyer was ineffective. But he cannot. Ineffec-
tive assistance of state habeas counsel can count as cause to

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22
excuse a procedural default of a claim that trial counsel was
ineffective. Martinez v. Ryan, 566 U.S. 1, 9 (2012). Yet this
equitable exception to procedural defaults is narrow, and the
Supreme Court has never extended it beyond ineffectiveness
of trial counsel. Id. at 10; Davila v. Davis, 582 U.S. 521, 525
(2017) (rejecting extension to ineffectiveness of appellate
counsel). We join the Ninth Circuit in declining to extend Mar-
tinez’s exception to reach post-conviction counsel’s failure to
preserve Brady claims. Hunton v. Sinclair, 732 F.3d 1124,
1126 (9th Cir. 2013).
C. Johnson has not shown a miscarriage of justice
Finally, Johnson says he can still overcome the default
because his Brady claims, taken together, show that he is actu-
ally innocent. Johnson points to his alibi evidence, Nickson’s
and Angelo Smith’s recantations, the arrest photos showing
him with a mustache and standing 5’6”, and the lack of physi-
cal evidence connecting him to the crime.
Actual innocence brings a petitioner within the narrow set
of cases that show a “miscarriage of justice.” Schlup v. Delo,
513 U.S. 298, 324 (1995). But the bar is high. An actual-
innocence claim can be a key to the procedural-default gate
only if a petitioner can (1) present “new reliable evidence” that
(2) persuades a court that “more likely than not … no reasona-
ble juror would have convicted” him. Schlup, 513 U.S. at 324;
McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013) (quoting
Schlup, 513 U.S. at 329). Multiple credible recantations may
be enough to show actual innocence—but only if they are
“trustworthy.” Schlup, 513 U.S. at 324; Howell, 978 F.3d at 60–

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23
61. But these eyewitness accounts do not clear that bar. They are
inconsistent and, as discussed above, their credibility is dubious.
After subtracting Nickson’s and Angelo Smith’s affidavits,
the District Court found that the arrest photos alone did not
show that it was “more likely than not that no reasonable juror
would have convicted” Johnson. McQuiggin, 569 U.S. at 395
(quoting Schlup, 513 U.S. at 329). We agree. As we explain
below, the photos on their own do not undermine our confi-
dence in the verdict. So there is no miscarriage of justice that
would warrant unlocking and lifting the procedural-default gate.
IV. JOHNSON DOES NOT GET AN EVIDENTIARY HEARING
As a fallback, Johnson and the DA argue that he should at
least get an evidentiary hearing to develop his Brady claims
based on Nickson’s and Angelo Smith’s recantations. That
argument fails too.
A. 28 U.S.C. § 2254(e)(2) bars an evidentiary hearing
A state prisoner is supposed to develop the facts in state
court before seeking federal habeas. So a federal court usually
cannot hold an evidentiary hearing if the petitioner did not first
diligently “develop the factual basis of [his] claim in State
court proceedings.” 28 U.S.C. § 2254(e)(2) (opening clause);
Michael Williams v. Taylor, 529 U.S. 420, 432 (2000). That
means a federal habeas petitioner must first show that he “made
a reasonable attempt, in light of the information available at the
time, to investigate and pursue [the] claims in state court.”
Michael Williams, 529 U.S. at 435.
Whether a petitioner was diligent in this way turns on the
facts and on the federal legal standard for diligence. Boyle v.

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24
McKune, 544 F.3d 1132, 1136 (10th Cir. 2008); Wilson v.
Beard, 426 F.3d 653, 660 (3d Cir. 2005). The District Court
made no factual finding on diligence. Ordinarily, we might
remand to let it do so. But we have the same factual record that
it did, and this case has already gone on for decades, so we will
analyze whether Johnson was diligent ourselves. See Shinn v.
Ramirez, 596 U.S. 366, 390 (2022) (“[A] federal habeas court
may never needlessly prolong a habeas case.” (internal quota-
tion marks omitted)).
On this record, Johnson is at fault. He did not diligently
develop the recantation Brady claims in state court. True, he
asked for an evidentiary hearing on these claims in his 2016
counseled PCRA petition. Sometimes, that can be enough. See
Michael Williams, 529 U.S. at 437. But “diligence is context
specific.” Wilson, 426 F.3d at 661. In this context, Johnson’s
requests came much too late.
The key facts were reasonably available to Johnson for
more than a decade before he tried to develop them. The PCRA
court found that Johnson had learned in 2001 that James Smith
had recanted his statement and alleged that police had coerced
him to identify Johnson. We presume that finding was correct.
§ 2254(e)(1). This knowledge should have alerted Johnson in
2001 that the other three eyewitnesses might have information
relevant to a Brady claim. And in a different context, Johnson
argued just that when he said his PCRA counsel had been in-
effective. Yet he made no effort to investigate these potential
claims until thirteen years later, when a defense investigator
interviewed the other eyewitnesses.

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25
Still, Johnson says habeas petitioners raising Brady claims
need not show diligence. But that response conflates a pris-
oner’s obligation to be diligent at trial with his obligation on
habeas. At trial, Brady obligates prosecutors to disclose Brady
material that they possess. See United States v. Bagley, 473
U.S. 667, 682 (1985). So defendants need not seek out Brady
material diligently; they may assume that prosecutors fulfilled
their duties. Dennis, 834 F.3d at 290.
Once a prisoner collaterally attacks his conviction, new
requirements kick in. He must pursue his claims diligently,
lest § 2254(e)(2) hold him at fault for failing to develop a suf-
ficient habeas record in state court. Of course, he need not go
hunting for Brady material if he “has no reasonable basis in
fact to be aware of” it. Bracey v. Superintendent Rockview SCI,
986 F.3d 274, 294 (3d Cir. 2021) (internal quotation marks
omitted). He may presume, “absent evidence to the contrary,
… that there is no Brady violation to be discovered.” Id. at 291
(explaining Dennis). Yet once he has a “reasonable basis … to
believe” that Brady material may be out there, he “must inves-
tigate.” Id. at 294. Otherwise, his lack of diligence will bar his
federal habeas petition. Id. That bar applies here. Johnson was
on notice yet waited thirteen years to investigate these Brady
claims. Because he “failed to develop the factual basis of [this]
claim” within the meaning of § 2254(e)(2), he cannot get a fed-
eral evidentiary hearing.
To be sure, § 2254(e)(2) has its exceptions. Even if a peti-
tioner failed to diligently develop the record in state court, he
can still get a hearing if he can show that his claim relies on a
“factual predicate that could not have been previously discov-
ered through the exercise of due diligence.”

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26
§ 2254(e)(2)(A)(ii). But Johnson has not shown that the predi-
cate of his claim was inherently undiscoverable while he was
litigating his claims in state habeas court. He makes no credible
argument that he could not have interviewed Nickson and An-
gelo Smith once he learned of James Smith’s recantation in
2001. So § 2254(e)(2)(a)(ii)’s exception does not apply here.
Our dissenting colleague, for her part, protests that we raise
§ 2254(e)(2)’s bar sua sponte. Dissent at 30. Not so. In briefing
before us, the DA acknowledged that Johnson would need to
clear § 2254(e)(2)’s bar to get an evidentiary hearing.
Because Johnson cannot meet that bar or its exceptions, we
must therefore limit our review of Johnson’s claims to the state
court record. But as we concluded above, Johnson does not
have enough evidence on the existing record to prove suppres-
sion, as he must to give him relief on these claims.
B. Though § 2254(e)(2)’s requirements are waivable, we
reject the DA’s waiver
To get around this bar, Johnson argues that it is waivable.
The DA forfeited the § 2254(e)(2) argument by never mention-
ing it below. Now he tries to affirmatively waive that bar on
appeal. But we reject that waiver.
True enough, § 2254(e)(2)’s requirements are not jurisdic-
tional. See Stokes v. Stirling, 64 F.4th 131, 139–40 (4th Cir.
2023); see also Shinn, 596 U.S. at 375 n.1 (exercising discre-
tion to forgive the state’s forfeiture of § 2254(e)(2) without sug-
gesting that its bar is jurisdictional). Ordinarily, the state may
forfeit or waive this non-jurisdictional defense like any other.

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27
All the same, we reject the DA’s attempt to waive
§ 2254(e)(2) here for the exact same reasons that we rejected
the procedural-default waiver. As with the procedural-default
waiver, the same comity and adversarial-process concerns are
at stake. Like the procedural-default doctrine, § 2254(e)(2)’s
bar on letting non-diligent petitioners use federal habeas to
develop new evidence promotes comity and finality and pro-
tects federalism. Shinn, 596 U.S. at 382. It ensures that federal
courts do not displace state courts as the primary fora for adju-
dicating state claims. Plus, it prevents petitioners from manip-
ulating the federal habeas process by trying to build a factual
record in federal court after failing to do so in the proper forum:
state court. So as with the procedural-default waiver, we con-
clude that we may reject the waiver given the exceptional facts
of this case, and we exercise that discretion here. For the same
reasons, we choose to exercise our discretion to overlook the
DA’s initial forfeiture of § 2254(e)(2)’s bar in the District
Court. See Shinn, 596 U.S. at 375 n.1.
To be sure, federalism will often favor deferring to the
state’s choice not to enforce § 2254(e)(2)’s requirements—but
not here, where the DA has tried to thwart the state’s proce-
dural bars to give Johnson a preferred sentence outside the or-
dinary collateral-review process. We cannot sit as “an alterna-
tive forum for trying facts and issues which a prisoner made
insufficient effort to pursue in state proceedings” just because
he and the DA tried to settle their way into federal court. Michael
Williams, 529 U.S. at 437.
What is more, applying § 2254(e)(2)’s bar is just. Johnson
makes no credible claim of innocence. His and his alibi wit-
nesses’ stories conflicted so badly that they were unbelievable.

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28
As the District Court found, Angelo Smith’s and Nickson’s
recantations are unreliable too. Nickson is now dead, so there
is no way to probe her belated recantation at a hearing. And the
DA does not even claim that Johnson is innocent. So for the
same reasons that the District Court properly rejected the pro-
cedural-default waiver, we reject the parties’ attempt to waive
§ 2254(e)(2)’s bar. Johnson should have started pursuing those
claims twenty-four years ago. It is too late now.
V. JOHNSON’S OTHER BRADY CLAIM FAILS
Without the Angelo Smith and Nickson claims, Johnson
has only one Brady claim left: the arrest photos. But rather than
exhaust it, Johnson withdrew his third PCRA petition before
the state court could consider it.
Ordinarily, Johnson’s failure to exhaust this claim would
bar it. § 2254(b)(1)(A). But under § 2254(b)(3), a state can
waive exhaustion through counsel. Orie v. Sec’y Pa. Dep’t of
Corr., 940 F.3d 845, 854 (3d Cir. 2019). These statutory roots
give the exhaustion waiver a firmer footing than the procedural-
default one. So the District Court properly accepted the exhaus-
tion waiver, and we decide this claim on the merits.
Still, this claim fails. The arrest photos are immaterial because
we see no “reasonable probability” that they would have led to
an acquittal or lower sentence. Bagley, 473 U.S. at 682. In
analyzing the potential prejudice caused by non-disclosure of
the photos, we must consider the effect of all “wrongfully with-
held evidence,” “whether or not that evidence is before the
Court in the form of an independent claim for relief.” Wearry
v. Cain, 577 U.S. 385, 394 (2016); Glossip v. Oklahoma, 145
S. Ct. 612, 629 (2025). This is because, for Brady materiality,

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29
we must add up all the evidence that the government possessed
yet failed to turn over. Folino, 705 F.3d at 129. But as we already
concluded, Johnson failed to prove that the state did not dis-
close Nickson and Angelo Smith’s alleged recantations. So we
look only to the effect that non-disclosure of the photos had on
Johnson’s trial. We see no prejudice.
True, the photos show Johnson with a thin mustache two
days after the shooting, even though James and Angelo Smith
described the shooter as clean-shaven. They also show that
Johnson was 5’6”, while James Smith described the shooter as
6’1”. Johnson could have used this evidence at trial to impeach
James Smith’s identification. Yet the supposedly impeaching
arrest photos look just like the two photos of Johnson in the
photo arrays—the one that all four eyewitnesses identified as
the shooter. In both sets of photos, Johnson’s mustache is visi-
ble head-on but hard to see from the side. See for yourself:
Photo-Array Photos Arrest Photos
That may explain how James and Angelo Smith missed it—
particularly since Angelo saw only the side of Johnson’s face
as he stood halfway in the bedroom doorway, at an angle, and

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30
just briefly before the lights went out. Indeed, the photos cor-
roborate that right after the crime, Johnson looked just like the
photos that the eyewitnesses picked out of the photo array.
James and Angelo Smith’s failure to mention a thin, easy-to-
miss mustache carries little weight. What matters is that, even
with the mustache, both identified him as the shooter.
The photo’s mention of Johnson’s height also carries little
weight—which is perhaps why Johnson barely mentions it on
appeal. Defense counsel pressed the height point at trial by ask-
ing Johnson about his height when he took the stand. So the
arrest photos would have only been “cumulative of other evi-
dence” proving Johnson’s height at the time of the murder.
Folino, 705 F.3d at 129.
Plus, “[t]he materiality of Brady material depends almost
entirely on the value of the evidence relative to the other evi-
dence mustered by the state.” Folino, 705 F.3d at 129 (internal
quotation marks omitted). Angelo Smith did not testify, so
there was no need to impeach him by emphasizing the disparity
between his description and the photos. And as the only wit-
ness who was unfamiliar with Johnson, his weaker recollection
matters less. As for James Smith, Nickson “strongly corrobo-
rated” his identification. Id. She testified that she knew it was
Johnson because she “remembered his face real good” from the
neighborhood and had seen him earlier that day. JA 849. Ben-
nett, who had also seen Johnson before, corroborated Nickson
and James Smith’s identifications too. In other words, the pho-
tos would have mildly impeached only one of the three eyewit-
nesses at trial, and all three positively identified Johnson both
right after the crime and at trial. What is more, when testifying,
Johnson contradicted his own alibi witnesses; they could not

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31
agree on where he was shortly after the shooting. Thus, the ar-
rest photos do not by themselves undermine our confidence in
the verdict. The failure to disclose them did not violate Brady.
VI. JOHNSON’S REMAINING CLAIMS ALSO FALL SHORT
A. Johnson’s ineffective-assistance claims fail
In addition, Johnson brings two ineffective-assistance-of-
counsel claims. Neither succeeds.
1. Johnson’s meaningful-consultation argument fails. First,
he says his trial lawyer failed to consult him meaningfully
before trial. Because the PCRA court already considered and
rejected this claim on the merits, we review very deferentially.
Commonwealth v. Johnson, 51 A.3d 237, 243–44 (Pa. Super.
Ct. 2012) (en banc). Johnson does not contest any of the state
court’s factual findings. So we presume that they are right and
can grant review only if that court’s decision “was contrary to,
or involved an unreasonable application of, clearly established
Federal law.” § 2254(d)(1), (e)(1).
The state court applied the right federal law and did so rea-
sonably. It found that Johnson’s lawyer did not fail to consult
him: The lawyer saw Johnson twice in person and spoke with
him once by phone. Johnson, 51 A.3d at 245. And it concluded
that these meetings were enough because the lawyer learned
enough from them to put on a defense: He learned of five wit-
nesses whom he was able to put on the stand at trial and of a
sixth whom he tried to track down. Id. at 243–44. That holding
applied Strickland accurately and reasonably. See id. at 243–44
(applying Pennsylvania’s formulation of Strickland v. Wash-
ington, 466 U.S. 668, 687–91 (1984)); see also Williams v.

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32
Superintendent Greene SCI, 112 F.4th 155, 167 n.7 (3d Cir.
2024) (recognizing that Pennsylvania’s formulation is not con-
trary to Strickland). Under Strickland, courts’ “scrutiny of
counsel’s performance must be highly deferential.” 466 U.S. at
689. Strickland sets no constitutional floor on how long a law-
yer must spend with his client. And the record shows that John-
son’s lawyer met with him enough to put on a competent defense
based on the information that Johnson gave him.
The state court also rejected Johnson’s claim that he was
effectively denied counsel altogether. Johnson, 51 A.3d at 245
(applying Cronic, 466 U.S. at 659–61). That holding was rea-
sonable. As the court explained, Johnson’s lawyer met with
him enough to put on a defense, vigorously defended him at
trial, and defeated the death penalty. His lawyer moved to sup-
press the eyewitnesses’ initial identifications to the police, put
on witnesses, cross-examined the prosecution’s witnesses, and
moved for a mistrial. Those actions amounted to meaningful
adversarial testing, not a complete denial of counsel. Id. So this
ineffective-assistance claim fails as well.
2. Johnson’s ineffective-pretrial-investigation argument
also fails. Next, he argues that his trial lawyer should have
interviewed Angelo Smith and gotten Johnson’s arrest photos.
Johnson never presented this claim to the state court. But the
DA waived its exhaustion defense. Orie, 940 F.3d at 854. So
we consider it on the merits, reviewing it de novo. Wilson v.
Beard, 589 F.3d 651, 658 (3d Cir. 2009).
Even so, this claim fails as well because there was no prej-
udice. Strickland borrowed its prejudice standard from Brady’s
materiality standard. 466 U.S. at 694 (“[T]he appropriate test

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33
for prejudice finds its roots in the test for materiality of excul-
patory information not disclosed to the defense by the prose-
cution ….”). Under Strickland, we ask whether the lawyer’s
deficient performance is “sufficient to undermine confidence
in the outcome,” “consider[ing] the totality of the evidence be-
fore the … jury,” including the exculpatory and impeaching
evidence. Id. at 694–95; see also United States v. Gray, 878
F.2d 702, 713 (3d Cir. 1989). It is not. Even if Johnson’s law-
yer had gotten Angelo Smith’s statement and the arrest photos,
that would not have “put the whole case in such a different light
as to undermine confidence in the verdict,” given “the strength
of the evidence against” Johnson. Kyles, 514 U.S. at 435; Buehl
v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999).
Angelo Smith’s failure to identify Johnson would not have
mattered. Three eyewitnesses identified Johnson at trial as the
shooter: Nickson, Bennett, and James Smith. Unlike those
three, Angelo Smith had never seen Johnson before. Plus, Angelo
Smith’s testimony would not have been that exculpatory. It is
not as if he would have said that the shooter was someone else.
And he never testified at trial, so there was nothing to impeach.
Nor would the arrest photos have moved the needle. As ex-
plained above, the three eyewitness identifications were
strong: Nickson, Bennett, and James Smith strongly corrobo-
rated one another, and James Smith’s initial identification from
the photo array (containing the mustache) corroborated his
identification at trial. The mustache was thin and not obvious
from an angle. The photo’s evidence of Johnson’s height was
merely cumulative. And Johnson’s alibi contradicted those of
his own alibi witnesses. We see no reasonable probability that

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34
interviewing Angelo Smith and getting the arrest photos would
have made a difference.
B. Johnson’s cumulative-prejudice claim fails too
Finally, Johnson brings a cumulative-error claim. He asks
us to add up the two recantation claims, the arrest-photo claim,
and the ineffective-assistance-of-counsel claims. That is a
“standalone constitutional claim subject to exhaustion.” Col-
lins v. Sec’y, Pa. Dep’t of Corr., 742 F.3d 528, 541 (3d Cir.
2014). Though Johnson never exhausted this claim, we can
consider it because we accept the state’s waiver of exhaustion.
Sometimes, “errors that individually do not warrant habeas
relief may do so when combined,” but they do not here. Al-
brecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007). We add up
errors, not claims. See id. As noted, Johnson failed to prove
that the state possessed Nickson’s and Angelo Smith’s recan-
tations or that his lawyer failed to consult him enough. Those
were not shown to be errors. So at most, we would add up the
arrest-photos Brady claim and the failure-to-investigate
Strickland claim (assuming that the lawyer’s performance was
deficient). Yet as just explained, putting Angelo Smith on the
witness stand and showing the jury Johnson’s arrest photos
would not have mattered. Even taken together, these two
claims are not enough.
*****
Johnson and the Philadelphia DA tried to short-circuit
state-court review by asking the federal District Court to bless
a “Settlement Agreement” based on underdeveloped and un-
proven claims. The District Court wisely rejected that

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35
stratagem and reasonably rejected the DA’s procedural-default
waiver. And it rightly held that Johnson’s non-defaulted Brady
and ineffective-assistance-of-counsel claims did not stand up
to scrutiny. So we will affirm the denial of his habeas petition.

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1
ROTH, Circuit Judge, dissenting.
This habeas appeal deals with the gatekeeping function
of federal courts when a state official has waived
nonjurisdictional threshold barriers to relief. After spending
decades challenging his first-degree murder conviction, which
rests solely on since-recanted eyewitness identifications, Kevin
Johnson brought several constitutional claims before the
District Court. The Philadelphia District Attorney deliberately
waived all nonjurisdictional threshold bars to habeas relief so
that Johnson could have a full and fair opportunity to be heard
on his two most compelling claims—his cumulative-Brady
claim and his cumulative-error claim. The District Court
accepted some of the District Attorney’s waivers but overrode
the procedural-default waivers on federal-state comity
grounds. However, comity requires that federal courts respect
the state’s processes and not interfere with its internal
allocation of governmental power. In this regard, Pennsylvania
authorizes local district attorneys to represent the
Commonwealth in federal habeas actions.
The Supreme Court has held that federal courts have no
discretion to reject a state’s deliberate valid waiver of
nonjurisdictional threshold barriers to habeas relief. For this
reason, the District Court had no power to override the District
Attorney’s valid waivers. Thus, I believe that we should
reverse the denial of Johnson’s habeas petition. Moreover,
since the Commonwealth has forfeited 28 U.S.C. §
2254(e)(2)’s bar, I would remand this case to the District Court
to hold an evidentiary hearing on the surviving claims.

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2
I.
On October 8, 1996, at around 10:19 p.m., Lyndon
“Cowboy” Morris, a known cocaine-dealer, was robbed and
shot to death inside a Southwest Philadelphia rowhome owned
by Opal Nickson. Morris used runners to take money from his
customers at the front door, bring the money upstairs, pass it to
him through a small hole in his bedroom door, and then bring
cocaine downstairs to the customers. One of those runners,
James Smith (James), was present at the time of the shooting.
Nickson and two of her friends, Angelo Smith (Angelo) and
Elisha Bennett, were also present,1 smoking crack cocaine and
marijuana with James in the rear bedroom on the second floor
across from Morris’s room.2
Shortly before the shooting occurred, there was a knock
at the front door. The knocker said it was “Keith,” Opal
Nickson’s brother, so James opened the door.3 Instead, he was
confronted by two men, one armed with a sawed-off double-
barrel shotgun and the other with a pistol. They directed him,
at gunpoint, to take them upstairs to Morris’s room.
Once they got up there, the man with the pistol went to
the rear bedroom where Angelo, Bennett, and Nickson were
getting high and eating Chinese food. The lights in the upstairs
1 The Smiths, James and Angelo, are not related. Bennett’s
first name is often misspelled as “Elijah” throughout the
record.
2 A police sketch shows that the two bedrooms were
approximately twenty-four (24) feet apart.
3 Joint Appendix (J.A.) 697, J. Smith Trial Test. (Jan. 27,
1988).

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3
hallway were off, and the rear bedroom was lit with only one
lamp. The man remained “half hidden in the doorway.”4
Angelo and Bennett were sitting side by side on the bed,
with Angelo closer to the doorway, when the man pointed the
gun at them. He did not see Nickson initially, because she was
standing behind a dresser that was taller than her and
positioned between her and the doorway. Angelo and Bennett
stared at the gun, thinking the man was playing around. When
he told them he was not, Nickson peeked around the dresser
and caught a glimpse of him before “looking at that gun.”5
Angelo, meanwhile, turned over and lay face down on the bed,
and Bennett “immediately” got underneath it.6 As they did
that, the man pointed the gun “straight” at Nickson’s face and
told her to lie down.7 Staring at the gun, she immediately got
down on the floor, and in the process, accidentally unplugged
the only lamp when her foot got caught in the extension cord—
causing the room to go “pitch black” and turning off the lights
on the entire second floor of the house.8 “Seconds” later they
heard someone kicking on Morris’s door, followed by
gunshots.9
While the man with the pistol was checking the
backroom, the other man had kept his shotgun pointed at
James’s back and told him to get Morris to open the door.
James knocked on it, and then the man kicked it. Morris
4 J.A. 206, Bennett Police Interview Statement (Oct. 9, 1986).
5 J.A. 209, Nickson Police Interview Statement (Oct. 9, 1986).
6 J.A. 1140, Bennett Trial Test. (Jan. 29, 1988).
7 J.A. 839, 841, 848, Nickson Trial Test. (Jan. 28, 1988).
8 Id. at 908.
9 Id. at 908–10.

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4
unlatched it, and the shotgun-armed man kicked it open and
immediately shot one round into Morris’s pelvic area.10 Scared
for his life, James jumped the stairwell railing, and as he ran
downstairs, he heard pistol shots and someone say to get the
loot. James fled through the front door.
Angelo, Bennett, and Nickson heard the men leave the
house, waited for some time, and then fled themselves. Police
entered the house at around 10:30 p.m.11 Less than a half hour
later, Angelo and Bennett saw each other at a local bar and
discussed what had happened. Bennett asked if Angelo knew
the man with the pistol, and Angelo said no.
Police later obtained statements from James, Angelo,
Bennett, and Nickson.12 In his first statement, given at 11:30
p.m. on the night of the murder, James provided a detailed
account of the crime but denied knowing Morris and did not
mention any illegal drugs. He described one robber as a “black
male, 5’7, husky build, dark complexion,” with a “double
barreled shotgun,” who “had a full beard with a mustache that
came together, but it wasn’t really heavy, he was wearing all
black, and a black leather flat cap.”13 He described the other
as a “black male, 6’1, brown skin, thin build about 20-21, both
10 J.A. 544, Med. Exam’r Test. (Feb. 1, 1988).
11 Police initially arrived at around 10:20 p.m. but left after no
one answered the front door, which was closed. Police
returned ten minutes later after James flagged down a patrol
unit that had just been at the house. When police returned, the
front door was open.
12 James had reported the incident to police.
13 J.A. 192, J. Smith Police Interview Statement (Oct. 8, 1986)
(cleaned up).

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5
men were about the same age, he was clean shaven, he was
wearing all black leather, too.”14 James said he would “see
both of these guys all the time on the streets around 54th &
Warrington Ave,” and that they were part of a neighborhood
gang and Keith’s “friends.”15 James also told police that, after
he fled from the house, he saw Keith nearby “standing on the
corner,” and that “Keith was shocked to see me come out of
the house.”16
Police picked up Angelo and brought him to the police
station for an interview the next day around 4:30 a.m. He told
Detective Michael Bittenbender that he was sitting in the rear
bedroom with Nickson and Bennett when a “black fellow stuck
his head through the door and pointed a gun” at them.17 Angelo
said that when the man told them to get down on the floor,
Nickson kicked a plug, causing all the lights to go out. He
described the man as “a black male, dark complexion, close cut
hair, no mustache or facial hair,” with a “revolver . . . as big as
a 38 caliber snub nose.”18 He also told police: “After I saw
the gun, that is what I was looking at.”19 Police then asked him
to review a mugshot book containing “several hundred
photographs which he viewed for about half an hour.”20 He
picked out Johnson’s photo—but he cautioned police that he
14 Id. (cleaned up).
15 Id. at 191–92.
16 Id. at 189, 191.
17 J.A. 194, A. Smith Police Interview Statement (Oct. 9,
1986).
18 Id. at 195.
19 Id.
20 J.A. 1373–74, K. Johnson Trial Test. (Feb. 2, 1988).

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6
was “not positive.”21 However, he also said that if he saw the
man again, he “w[ould] identify him” because the man had
“threatened [Angelo’s] life.”22 Based on Angelo’s uncertain
identification, Johnson became the main suspect. Police put
his photo in an eight-person photo array.
About a half hour after questioning Angelo, police
questioned James again. By this time, he had been at the police
station all night and had failed a polygraph, so police knew he
had been untruthful in his first statement. In a second
statement, James admitted knowing Morris. He also told
police that Keith had been carrying a bag, and that James could
“hear pieces of metal hitting together” inside the bag and that
“it sounded like it was a shotgun broken down.”23 James also
told police that when he saw Keith outside the house, Keith
was no longer holding the bag.24 Police showed him “a mug
book,”25 and Johnson’s photo was selected. During his
interview, James feared police would charge him with drug
offenses (or even murder).
Early that same morning, after police came looking for
him, Bennett gave a statement to Detective Bittenbender.
Bennett did not describe the man with the pistol, but he was
shown the photo array, and Johnson’s photo was selected a
third time. Bennett told police that he did not know Johnson
but had seen him before.
21 J.A. 196, A. Smith Police Interview Statement (Oct. 9,
1986).
22 Id. at 197.
23 J.A. 199, J. Smith Police Interview Statement (Oct. 9, 1986).
24 Id. at 201.
25 J.A. 753, J. Smith Trial Test. (Jan. 27, 1988).

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7
Police took a statement from Nickson at noon, after
taking her into custody and bringing her to the station for an
interview. Her legs were shackled during the entire interview.
In her statement, she described the man with the pistol as a
black male in his late 20s, between 5’6 and 5’7, with a small
build (160 lbs.), who was wearing a black leather cap, a black
waist-length jacket, and a dark colored shirt. Nickson was also
then shown the photo array, and Johnson’s photo was selected
a fourth time.
On October 10, 1986, Johnson was arrested and charged
with capital murder. The warrant was based on a probable-
cause affidavit stating that Angelo and James had identified
him as the man with the pistol. Johnson immediately denied
involvement and told police that, at the time of the murder, he
had been selling clothes in West and Southwest Philadelphia
with his friend, Ronald Crawford. Police searched Johnson’s
family home and did not recover any weapons or drugs. Police
never found any other evidence implicating Johnson in
Morris’s murder. The murder weapons were never recovered,
and no second gunman was ever identified or charged. The
only evidence was the four eyewitness identifications. Johnson
was the only person arrested and charged; there is no evidence
that police pursued any alternative suspects. Johnson has
maintained his innocence throughout this case, nearly thirty-
nine years.
Johnson’s preliminary hearing was held on October 29,
1986, in Philadelphia Municipal Court. Attorney Stephen
Gallagher had been appointed to represent him.26 Only two
26 Attorney Gallagher represented Johnson for his preliminary

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8
witnesses showed up for the hearing.27 One was Nickson, who
identified Johnson as the culprit and said that she had
previously seen him around the neighborhood she had grown
up in; however, she acknowledged that he was “a stranger” and
that she did not really “know” him.28 The other witness (either
Angelo or Bennett) did not testify.29 After Johnson’s case was
held for court and forwarded to the Court of Common Pleas,
his counsel received from the prosecution copies of the
eyewitness interview statements and other items in discovery.
Counsel later moved unsuccessfully to suppress the
identifications.30 He also spent limited time consulting with
Johnson in preparation for trial.31
hearing, formal arraignment, trial, sentencing, and direct
appeal.
27 All four eyewitnesses were subpoenaed to testify, but only
Bennett, James, and Nickson personally signed for their
subpoenas; Angelo did not.
28 J.A. 628–29, Nickson Prelim. Hr’g Test. (Oct. 29, 1986).
29 The other witness was either Bennett or Angelo. It was not
James Smith; he failed to appear for the hearing, so the
municipal court issued a bench warrant for his arrest. There is
no record that the court issued a bench warrant for Bennett or
Angelo.
30 The transcript of the suppression hearing is unavailable, so
we do not know what was said there. However, there is no
dispute that Angelo testified at the hearing.
31 See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa. Super.
2012) (en banc) (finding that trial counsel “conducted a face-
to-face meeting at [Johnson’s] preliminary hearing, conducted
another face-to-face meeting at the prison with [Johnson] prior
to trial, and performed at least one telephone consultation”).
The prison visit “occurred the night before jury selection

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9
At trial in January and February 1988, the prosecution
relied solely on Nickson, James, and Bennett to connect
Johnson to the murder and identify him as the man with the
pistol.32 Although James’s testimony was largely consistent
began.” Id. at 250 (Wecht, J., concurring).
32 Angelo did not testify at trial, but the record strongly
suggests that Angelo appeared in the courtroom on Friday,
January 29, 1988. The trial prosecutor confirmed that Angelo
was subpoenaed to appear on that date, and although the trial
prosecutor claimed that Angelo never showed up, there is a
witness fee certificate dated February 23, 1988, payable to
Angelo, for his two appearances in the Philadelphia Court of
Common Pleas in the same courtroom (No. 436) where
Johnson’s trial and suppression hearing were held.
Pennsylvania law required that Angelo be paid for attending
trial even though he did not testify. See 42 Pa.C.S. § 5903(g).
Although the trial court issued a bench warrant for Angelo, that
was for his failure to appear on February 1, 1988. The trial
court later found that the trial prosecutor had “intentionally
deceived” the court and defense counsel at sidebar before
asking an improper question on cross-examination of Johnson,
J.A. 1418, Trial Tr. (Feb. 3, 1988), and the prosecutor’s
conduct “demonstrate[d] a chronic inability to abide by
professional standards in the prosecution of criminal cases,”
J.A. 1629, Trial Ct. Op. (Nov. 15, 1988), Indeed, this was not
the first time this prosecutor was admonished for unethical
conduct. See, e.g., Commonwealth v. Perillo, 376 A.2d 635
(Pa. Super. 1977) (holding that prosecutorial misconduct that
required reversal of first-degree murder conviction, where this
prosecutor asked improper questions implying that a witness
had been bribed to perjure himself); see also In re

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10
with his second police statement, key parts of his story
changed. He had initially told police that he had “jumped the
banister” and fled the house after the man with the shotgun shot
Morris.33 That version is also reflected in the probable-cause
affidavit for Johnson’s arrest and a January 20, 1988 internal
memorandum in which the trial prosecutor stated that “[w]hen
the shooting started, [James] Smith ran and vaulted over the
banister.”34 James nevertheless told the jury that he did not
immediately flee and that he had caught a glimpse of the man
with the pistol’s face as the man ran past him and shot Morris
several times. James further testified that he had seen part of
the man’s face by glancing “sideways” as they walked up the
stairs,35 but he never told police that. Nickson and Bennett also
Campolongo, 435 A.2d 581, 583–84 (Pa. 1981) (reversing
summary criminal contempt-of-court citation issued to this
prosecutor because “much of [his] conduct deemed by the trial
court to be sufficiently reprehensible to require the declaration
of a mistrial occurred after the contempt citation,” and
therefore the citation “was not based on the pattern of
intentional prosecutorial misconduct which cumulatively
resulted in the mistrial”); Commonwealth v. Bronzeill, 3 Phila.
Co. Rptr. 554, 557 (Pa. C.P. Ct. 1980) (barring retrial of
defendant after granting mistrial on the grounds that this
prosecutor had “intentionally and deliberately engaged in a
course of conduct from his opening speech to the declaration
of the mistrial, calculated to inflame the passion and prejudice
of the jury”).
33 J.A. 200–01, J. Smith Police Interview Statement (Oct. 9,
1986).
34 J.A. 543, Phila. Dist. Att’y Off. Internal Memo. (Jan. 20,
1988).
35 J.A. 705, 790–91, J. Smith Trial Test. (Jan. 27, 1988).

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11
identified Johnson as the man with the pistol, and the jury was
informed of their prior photo identifications. However,
Nickson and Bennett admitted that they had seen only half the
man’s face.
In defense, Johnson claimed mistaken identity and
offered an alibi. Consistent with his initial police statement,
his defense was that on the night of the murder, he was selling
clothing around Philadelphia with Crawford. In support,
Johnson put on three alibi witnesses, but his counsel could not
locate Crawford. Although no one could place him very far
from the crime scene around the time when the shooting
occurred, each alibi witness testified that they had seen
Johnson at various times and locations that night selling clothes
from a car. He also took the stand and testified in his own
defense.
Based solely on the three eyewitness identifications, the
jury convicted Johnson of first-degree murder, conspiracy, and
possession of an instrument of a crime. He was later sentenced
to life imprisonment. In 1992, the Pennsylvania Superior
Court affirmed his convictions, and the Pennsylvania Supreme
Court later denied further review.
II.
After his convictions were affirmed on direct appeal,
Johnson pursued relief in state court under Pennsylvania’s
Post-Conviction Relief Act (PCRA).36 He filed his first
petition in 1996 and raised several issues, including ineffective
assistance of trial counsel. The PCRA court denied the petition
36 42 Pa. C.S. §§ 9541 et seq.

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12
in 2003, but the Superior Court reversed on appeal in 2005 and
remanded for an evidentiary hearing on Johnson’s
ineffectiveness claim. The PCRA court denied the petition
again in 2010, but on appeal in 2011, the Superior Court
reversed that decision and granted Johnson a new trial based
on his ineffectiveness claim. However, after a rehearing en
banc in 2012, the Superior Court vacated its decision and
affirmed the PCRA court’s denial of relief. The Pennsylvania
Supreme Court denied Johnson’s request for further review.
In 2013, Johnson filed a timely pro se federal habeas
petition and, after being appointed counsel, filed an amended
petition. In 2014, his federal counsel’s investigator discovered
new evidence, including affidavits by Angelo, Bennett, and
Nickson—with the three eyewitnesses recanting their
identifications of Johnson as the man with the pistol. Johnson
also submitted a second recanting affidavit by James, who had
originally recanted in 2001.37 Their recantations are
summarized below:
James Smith. In his 2001 affidavit, James swore that
he identified Johnson’s photo only because police told him
that, if he did not, he would go to jail for drug offenses and
murder. He “really could not recognize [Johnson] as being the
person who had the pistol,” but he identified Johnson anyway,
partly because by the time of trial Morris’s “brother had
threatened [James’s] life.”38 James also stated that police
pointed to Johnson’s photo and falsely told him that Angelo,
37 I agree with the District Court that “James Smith’s
statements are relatively consistent from 2001 to 2014.”
Johnson v. Kerestes, 683 F. Supp. 3d 452, 486 (E.D. Pa. 2023).
38 Suppl. App. 63, J. Aff. (Aug. 7, 2001).

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13
Bennett, and Nickson had already picked it. In his 2014
affidavit, James reaffirmed his prior affidavit and further stated
that his October 9, 1986 statement contained details that he had
not witnessed. He also made specific allegations of
prosecutorial misconduct. He stated that, during their pretrial
witness preparation, he told the prosecutor that he was not
confident that Johnson was the man with the pistol. The
prosecutor threatened James with criminal charges if he
recanted his identification, and told him that “it would be
helpful if [he] testified that [he] saw the guy with the pistol fire
some shots.”39 Afraid to anger the prosecutor and risk criminal
charges, James complied.
Angelo Smith. In a June 2014 affidavit, Angelo stated
that when he showed up to testify at trial pursuant to a
subpoena, police asked if he saw the man with the pistol in the
courtroom. He replied that he did not recognize anyone in the
courtroom and that he “really did not get a good look at the
guy’s face because I was high on crack and was just starring
[sic] at the gun in the guy’s hand.”40 Angelo had told police
the same thing (minus the crack use) during his interview hours
after the murder. He alleged that, because he could not make
an identification, police told him that his testimony was not
needed. In an August 2014 affidavit, Angelo reaffirmed his
prior affidavit.41
39 J.A. 220, J. Smith Aff. (Aug. 6, 2014).
40 J.A. 215-16, A. Smith Aff. (June 10, 2014).
41 The only notable difference between Angelo’s affidavits is
that, in the second one, he clarified he could not remember
whether he spoken to police or the prosecutor in the courtroom
at trial.

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14
Opal Nickson. In a 2014 affidavit, Nickson swore that
when she selected Johnson’s photo in 1986 and testified
against him at his preliminary hearing and trial, she knew he
was not the man with the pistol. She stated that, although
Johnson “looked a little like the guy with the pistol,” the
perpetrator had darker skin.42 She also said police threatened
her with losing her children and home if she did not pick a
photo, and that, when she tried to tell the prosecutor, before
trial, that she “thought that the guy with the pistol had darker
skin than Kevin,” the prosecutor threatened her with criminal
charges.43 She admitted that after the murder she stayed up all
night smoking crack.
Elisha Bennett. In a 2014 affidavit, Bennett swore that
during his 1986 interview, police kept pointing to one picture
and told him that his friends had all identified that same
person.44 He said that police threatened him with murder and
drug charges if he did not pick a photo. Bennett also admitted
42 J.A. 217, Nickson Aff. (July 14, 2014).
43 Id.
44 Detective Bittenbender, who took Bennett’s statement, has
previously been found to have engaged in misconduct during
police interviews. See, e.g., Ferber v. City of Philadelphia, 661
A.2d 470 (Pa. Cmwlth. 1995) (discussing a civil rights lawsuit
after exoneration of man convicted for first-degree murder and
sentenced to death, and finding that the evidence showed
Bittenbender and other police officers “manipulat[ed]
witnesses to produce a sketch that was almost identical to [the
suspect’s] mugshot”); Commonwealth v. Purvis, 326 A.2d 369
(Pa. 1974) (reversing first-degree murder conviction on the
grounds that Bittenbender and others had coerced suspect’s
confession).

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15
that he had been smoking crack all night and that he had been
high when he witnessed the murder and during his police
interview.45
In 2016, after Johnson’s federal case was stayed and
placed in abeyance while he litigated a second PCRA petition
raising Brady claims concerning Angelo’s failed identification
and Nickson’s undisclosed statements and an ineffectiveness
claim concerning counsel’s failure to interview Angelo, police
reinterviewed Angelo and Nickson. During his interview,
Angelo said that he had signed the August 2014 affidavit
without reading it, but he reaffirmed that he did not testify at
trial after he “told the cops [he] didn’t recognize the guy in the
courtroom.”46 As for Nickson, who by then had suffered at
least one stroke, she said she was certain that Johnson was the
man with the pistol. However, in a court-approved deposition
in 2019, Nickson, though suffering from memory issues, was
adamant that Johnson was not the man with the pistol because
his skin complexion was lighter skin than the true culprit.47
45 It was also revealed that, since age sixteen, Bennett had
suffered from epilepsy because he had been hit in the head with
a baseball bat. That incident happened before the murder, and
he had suffered from memory problems as a result of his
“medication, seizures and street drugs and alcohol that [he had]
used.” Bennett admitted that his memory loss is probably why
he “ha[s] no memory of testifying in court.” J.A. 222–23,
Bennett Aff. (Sept. 10, 2014).
46 J.A. 356–58, A. Smith Police Interview Statement (Oct. 5,
2016).
47 She also provided additional details about her interview that
cast further doubt on the reliability of her identification.
Specifically, she testified that when she returned home the

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16
After the federal habeas action resumed,48 in May 2019,
the Philadelphia District Attorney’s Office disclosed two arrest
photographs of Johnson that were found buried in the
Philadelphia police file on Morris’s murder.49 Those photos,
which were taken by police on October 10, 1986, around thirty-
six hours after the murder, show Johnson had a mustache
(contrary to James’s and Angelo’s descriptions). The photos
also include a date stamp and confirm his height (5’6”) around
the time of the murder. Johnson then amended and
supplemented his habeas petition to include the arrest photos,
and the District Court granted his motion to stay the federal
proceedings so that he could file a third PCRA petition based
on the newly discovered arrest photos. Johnson withdrew his
PCRA petition in September 2021 before the PCRA court
could address the merits.
In October 2021, Johnson and the Commonwealth,
through the Philadelphia District Attorney’s Office, submitted
a settlement agreement for the District Court’s judicial review.
The agreement described Johnson’s constitutional and actual
innocence claims as well as the Commonwealth’s concession
that, if the factual allegations underlying the Brady claims are
true, then he will have made out a meritorious claim for habeas
morning after the murder, police considered her a suspect,
handcuffed her, and took her to the police station, where her
legs remained shackled the entire time.
48 In 2017, Johnson’s second PCRA petition was dismissed as
untimely on state procedural grounds. The Superior Court later
affirmed the dismissal.
49 The District Court’s opinion refers to “photo” (singular) and
“photos” (plural). There are two photos—a profile view and a
front view.

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17
relief based on the cumulative materiality of the suppressed
evidence.50 Pursuant to the agreement, the Commonwealth
50 State prosecutors do not violate their professional or ethical
obligations by confessing error, and a confession of error does
not require certainty of actual innocence. See, e.g., Glossip v.
Oklahoma, 145 S. Ct. 612, 618, 623 (2025) (reversing and
remanding for new trial on petition from state court
postconviction proceedings where “the attorney general did not
endorse [the prisoner’s] actual innocence claim” but did
confess error); Young v. United States, 315 U.S. 257, 258–59
(1942) (“The public trust reposed in the law enforcement
officers of the Government requires that they be quick to
confess error when, in their opinion, a miscarriage of justice
may result from their remaining silent.”); see also
Commonwealth v. Brown, 196 A.3d 130, 194 (Pa. 2018)
(Dougherty, J., concurring) (“As the Attorney General
cogently explains, a ‘prosecutor is of course privileged to take
a position on that claim; indeed, duty requires that he or she do
so, in accordance with her good faith understanding of the
applicable law.’” (citation omitted))).
That said, the District Attorney has never conceded, nor
stipulated to, the truth of Johnson’s factual allegations. His
office has consistently maintained “that the recantations are not
without issue.” J.A. 320, Settlement Agreement for Habeas
Relief (Oct. 14, 2021). His office had attempted to resolve
Johnson’s allegations through its own investigation, but those
efforts were “stymied by the fact that trial counsel was
deceased, then by the fact that the novel coronavirus pandemic
killed one of the eyewitnesses [Nickson], and later by the
inability to interview the two other eyewitnesses [James and
Angelo] and the death[s] of the fourth eyewitness [Bennett]

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18
expressly “waiv[ed] all non-jurisdictional bars to relief,
including exhaustion, in this habeas proceeding” and
“concede[d] that Johnson’s claims are properly before this
Court.”51 The waivers were made so that Johnson’s case,
“which ha[d] been in near continuous litigation for over three
decades” could “reach a resolution or, if needed, be adjudicated
on the merits in a forum where all of [his] claims could be fully
and fairly considered, and without further delay.”52 The
and the trial prosecutor.” Appellees Reply to Amicus Br. 12.
51 J.A. 320, Settlement Agreement for Habeas Relief (Oct. 14,
2021).
52 J.A. 521, Resp’t Reply to Amicus Curiae Br. (Mar. 9, 2023)
(emphasis in original). Before Johnson filed his third PCRA
petition asserting the arrest-photos claim, the Pennsylvania
Supreme Court held that, when reviewing Brady claims, courts
must exclude from the cumulative-materiality analysis any
evidence that was not presented in a timely pled Brady claim.
See Commonwealth v. Natividad, 200 A.3d 11, 39 (Pa. 2019).
A federal court later decided that this state procedural rule is at
odds with U.S. Supreme Court precedent. See Natividad v.
Beard, Civ. A. No. 08-449, 2021 WL 3737201, at *12–13
(E.D. Pa. Aug. 24, 2021) (Rufe, J.); see also Kyles v. Whitley,
514 U.S. 419, 421 (1995) (“On habeas review, we follow the
established rule that the state’s obligation under Brady v.
Maryland to disclose evidence favorable to the defense, turns
on the cumulative effect of all such evidence suppressed by the
government, . . . .” (citing 373 U.S. 83 (1963))). Nevertheless,
the PCRA court’s materiality analysis in Johnson’s case still
would have excluded the evidence underlying the two Brady
claims that were previously dismissed as untimely. See
Natividad, 200 A.3d at 36 n.18 (noting that the state court is
not bound by Third Circuit precedent). As a result, the parties

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19
agreement, if approved, would vacate Johnson’s conviction
and permit him in state court to plead no contest to third-degree
murder and other offenses, and be resentenced to a cumulative
sentence of no more than ten to twenty years’ imprisonment
with credit for time served.53 In September 2022, the District
Court held a status hearing, after which the court requested
supplemental briefing from Johnson and Respondents and
invited the Pennsylvania Attorney General to provide input as
amicus curiae. Johnson subsequently amended and
supplemented his habeas petition to include an ineffectiveness
claim concerning trial counsel’s failure to obtain the arrest
photos and use them at trial.
In July 2023, the District Court, without holding an
evidentiary hearing, declined to adopt the settlement
agreement.54 The court accepted the waivers of the
agreed there is only one forum where Johnson could be fairly
heard on his Brady claims—federal court.
53 J.A. 328, Settlement Agreement for Habeas Relief (Oct. 14,
2021).
54 I express no opinion on the legality of so-called habeas
settlements. See Anup Malani, Habeas Settlements, 92 Va. L.
Rev. 1, 24 (2006) (“The legal status of habeas settlements is
very much up in the air.”). Compare Johnson, 683 F. Supp. 3d
at 461–62, with Washington v. Sobina, 471 F. Supp. 2d 511,
518 (E.D. Pa. 2007) (Brody, J.) (opining on “the possible value
of promoting settlement negotiations in habeas corpus
actions”). However, I emphasize that “our judicial obligations
compel us to examine independently the errors confessed.”
Young, 315 U.S. at 258–59. To be clear, a “habeas settlement”
refers to settlement of the merits of the habeas claim, not the
waiver of non-jurisdictional bars to habeas relief.

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20
nonexhaustion and timeliness defenses as to Johnson’s Brady
arrest-photos claim and Strickland claims concerning trial
counsel’s failure to obtain those photos and to interview
Angelo, but the court overrode the procedural-default waivers
as to the Brady claims regarding Angelo and Nickson. The
court concluded that Johnson failed to overcome the
procedural defaults, and ultimately denied his habeas petition
in its entirety. In doing so, the District Court appears to have
conflated a waiver of a non-jurisdictional bar to habeas relief
with consideration of the merits of the habeas claim.
III.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) governs habeas review.55 “Because the
District Court did not hold an evidentiary hearing and relied on
the state court record, we exercise plenary review.”56 Our
plenary review extends to rulings on procedural default.57 If
the petitioner overcomes the default, the habeas court must
exercise de novo review and consider the defaulted claim’s
merits.58
55 See 28 U.S.C. § 2254.
56 Robinson v. Beard, 762 F.3d 316, 323 (3d Cir. 2014).
57 Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008).
58 See Bey v. Superintendent Greene SCI, 856 F.3d 230, 236
(3d Cir. 2017). A rebuttable presumption of correctness
attaches to the state court’s factual findings: “They are
‘presumed to be correct’ unless the habeas petitioner rebuts the
presumption ‘by clear and convincing evidence.’” Laird v.
Sec’y, Pa. Dep’t of Corr., 129 F.4th 227, 240–41 (3d Cir. 2025)
(quoting 28 U.S.C. § 2254(e)(2)). “The standard is demanding
but not insatiable[,]” Miller-El v. Dretke, 545 U.S. 231, 240

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IV.
Before I consider the merits of Johnson’s constitutional
claims, I first address two threshold habeas barriers—
procedural default and § 2254(e)(2)—that affect the scope of
review. Johnson and the Commonwealth, through the
Philadelphia District Attorney, agree that the District Court
committed reversible error in overriding the Commonwealth’s
deliberate waivers of the procedural-default defenses to
Johnson’s two otherwise-defaulted Brady claims. They also
agree that § 2254(e)(2) does not bar a federal evidentiary
hearing on Johnson’s meritorious claims. The Attorney
General disagrees with both points.
This dispute is resolved by the relevant case law. It is
clear that a federal habeas court may not override a state’s
deliberate waiver of nonjurisdictional threshold bars. Thus, the
District Court abused its discretion in rejecting the
Commonwealth’s procedural-default waivers.
A.
The procedural-default rule is a nonjurisdictional
“threshold bar” to federal habeas relief.59 It is waivable and
(2005), and “[t]he presumption of correctness that attaches to
factual findings is stronger in some cases than in others,” Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500
(1984).
59 See Stokes v. Stirling, 64 F.4th 131, 139–42 (4th Cir. 2023)
(concluding that § 2254(e)(2) is “a non-jurisdictional
provision”), cert. denied, Stirling v. Stokes, 144 S. Ct. 377
(2023); Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir.

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forfeitable.60 For instance, “procedural default is normally a
‘defense’ that the State is ‘obligated to raise’ and ‘preserv[e]’
if it is not to ‘lose the right to assert the defense thereafter.’”61
In “extraordinary circumstances,” federal courts retain
“the authority to resurrect only forfeited defenses.”62 Even so,
2001) (recognizing that the procedural-default rule is
nonjurisdictional).
60 See Wood v. Milyard, 566 U.S. 463, 466, 470 n.4, 472–73
(2012); Smith v. Horn, 120 F.3d 400, 408–09 (3d Cir. 1997)
(recognizing that procedural default is forfeitable).
“A waived claim or defense is one that a party has knowingly
and intelligently relinquished; a forfeited plea is one that a
party has merely failed to preserve.” Wood, 566 U.S. at 470
n.4.
61 Trest v. Cain, 522 U.S. 87, 89 (1997) (alteration in original)
(quoting Gray v. Netherland, 518 U.S. 152, 166 (1996)). This
is consistent with the Rules Governing Section 2254 Cases in
the United States District Courts (the Habeas Corpus Rules)
and the Federal Rules of Civil Procedure, which “apply in the
context of habeas suits to the extent that they are not
inconsistent with the Habeas Corpus Rules” and AEDPA.
Woodford v. Garceau, 538 U.S. 202, 208 (2003); Fed. R. Civ.
P. 81(a)(4); Habeas Corpus Rule 12. An answer to a habeas
petition “must state whether any claim in the petition is barred
by a failure to exhaust state remedies, a procedural bar, non-
retroactivity, or a statute of limitations,” Habeas Corpus Rule
5(b), and the relevant civil procedural rules generally require
that affirmative defenses be “raised in a defendant’s answer or
amendment thereto,” Day v. McDonough, 547 U.S. 198, 202
(2006) (citing Fed. R. Civ. P. 8(c), 12(b), and 15(a)).
62 Wood, 566 U.S. at 471 & n.5 (citing Day, 547 U.S. at 198,

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our precedent cautions that a court may not resurrect a forfeited
procedural bar unless “the values of comity, federalism,
judicial efficiency, and the ‘ends of justice’” weigh in favor of
doing so.63 This is particularly true when we are the ones who
spot the issue, because “[w]hile considerations of federalism
and comity sometimes weigh in favor of raising such issues sua
sponte, consideration of that other great pillar of our judicial
system—restraint—cuts sharply in the other direction.”64
In the context of waiver, we lack even that limited
discretion. A federal habeas court has no power “to bypass,
override, or excuse a State’s deliberate waiver.”65 In Wood v.
201).
63 See Szuchon, 273 F.3d at 321 n.13; cf. In re Rosado, 7 F.4th
152, 157 (3d Cir. 2021) (recognizing that an appellate court’s
excusing forfeiture of a habeas affirmative defense is the
exception, not the norm).
64 Smith, 120 F.3d at 409.
65 Wood, 566 U.S. at 466 (quoting Day, 547 U.S. at 202); see
also, e.g., Núñez-Pérez v. Escobar-Pabón, 133 F.4th 33, 42
(1st Cir. 2025) (Barron, C.J.) (holding that “a district court has
no ‘discretion to take up [a] timeliness [defense]’ sua sponte
‘when [the government] is aware of [the] limitations defense
and intelligently chooses not to rely on it,’ or when the defense
is ‘strategically withh[e]ld” (alterations in original) (quoting
Wood, 566 U.S. at 466, 472)); Stokes, 64 F.4th at 136 n.3
(“Unlike a forfeited issue, a court does not have discretion to
reach an issue that a party has waived.” (citing Wood, 566 U.S.
at 471–74 & n.4)); Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th
Cir. 2016) (explaining that courts have “no discretion” under
the Wood rule).

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Milyard,66 the Supreme Court held that failure to abide by this
limitation, even when otherwise-extraordinary circumstances
are present, is an abuse of discretion.67 It follows that a federal
court commits reversible error if it overrides a state’s deliberate
waiver of a nonjurisdictional threshold bar to habeas relief.68
This rule should extend to procedural-default.69
A federal court’s resurrection of a nonjurisdictional
threshold bar, “despite the [s]tate’s waiver, serve[s] no
important federal interest” because in any given habeas case,
“the state is in the best position to know whether, in the interest
of justice, its rule needs—indeed, deserves—federal court
vindication.”70 Unless the habeas court has reason to believe
the state’s waiver was invalid (e.g., made by someone who
lacked authority to make it), it is not the court’s place to
66 566 U.S. 463 (2012).
67 Wood, 566 U.S. at 472–73.
68 See Maslonka v. Hoffner, 900 F.3d 269, 276–77 & n.1 (6th
Cir. 2018) (“We will not override the state’s waiver [of
procedural default], because to do so would be an abuse of
discretion.” (citing Wood, 566 U.S. at 472–73)); cf. Williams v.
United States, 879 F.3d 244, 248 (7th Cir. 2018) (stating, in a
§ 2255 case, that “procedural default is an affirmative defense
and can itself be waived,” and citing Wood for the proposition
that “courts must respect the government’s formal waivers of
procedural defects in collateral cases”).
69 See Maslonka, 900 F.3d at 276–77 & n.1 (applying the Wood
rule to state’s procedural-default waiver); McCormick v.
Parker, 821 F.3d 1240, 1245–45 (10th Cir. 2016) (same).
70 Esslinger v. Davis, 44 F.3d 1515, 1525, 1527 (11th Cir.
1995).

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question the reason for the state’s deliberate waiver.71 Rather
than undermine comity, such deference furthers comity by
respecting the state’s “primary authority for defining and
enforcing the criminal law.”72
i.
I begin with the procedural-default waivers related to
Johnson’s two defaulted Brady claims. The District Court
accepted the Commonwealth’s nonexhaustion waivers but
overrode the procedural-default waivers on federal-state
comity grounds. However, AEDPA’s exhaustion requirement
furthers comity also. Neither we nor the Supreme Court has
ever distinguished procedural-default waivers from exhaustion
waivers; they both reflect “the same concerns” and “must be
treated the same.”73
71 See United States v. James, 955 F.3d 336, 344–45 (3d Cir.
2020) (“[L]itigants, not the courts, choose the facts and
arguments to present. Thus, when a party clearly chooses a
particular path, it will be respected and generally not further
reviewed.”).
72 Kennedy v. Superintendent Dallas SCI, 50 F.4th 377, 382 (3d
Cir. 2022) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)).
73 Day, 547 U.S. at 209 (quoting Long v. Wilson, 393 F.3d 390,
404 (3d Cir. 2004)). Indeed, Congress expressed heightened
concern for comity in the exhaustion context by explicitly
barring inadvertent forfeiture of exhaustion defenses. See 28
U.S.C. § 2254(b)(3). No similar provision exists for
procedural default. See Bennett v. Superintendent Graterford
SCI, 886 F.3d 268, 281 n.11 (3d Cir. 2018). “[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is

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Further, there is no dispute over the validity of the
waivers.74 Unlike most states, Pennsylvania vests local district
attorneys with authority and discretion independent of the state
attorney general.75 This Pennsylvanian delegation of authority
dates back to 1850, when the state legislature enacted a law
imposing a duty on local district attorneys to “conduct in court
all criminal prosecutions in the name of the Commonwealth,
or when the State is a party, which arise in the county for which
he is elected, and perform all the duties which now by law are
to be performed by deputy attorney generals.”76 This
generally presumed that Congress acts intentionally.”
Gonzalez v. Thaler, 565 U.S. 134, 143 (2012) (quotation and
alteration omitted).
74 Otherwise, the District Court would have erred in accepting
the exhaustion waivers.
75 See Carter v. City of Phila., 181 F.3d 339, 353 (3d Cir. 1999)
(“[I]n Pennsylvania, unlike many other jurisdictions, the
[attorney general] has no inherent authority to supersede a
district attorney’s decisions generally.”); Commonwealth v.
Khorey, 555 A.2d 100, 106–08 (Pa. 1989); Commonwealth v.
Carsia, 491 A.2d 237, 242–50 (Pa. Super. 1985) (en banc)
(discussing “the historical powers of the Attorney General”
and noting that “Pennsylvania has been a unique jurisdiction in
the nature and scope of authority granted to its Attorney
General”), aff’d, 517 A.2d 956 (Pa. 1986); id. at 250–51
(explaining that the state legislature’s decision to give the
Attorney General limited criminal jurisdiction reflects its intent
that the Attorney General not “imping[e] upon the jurisdiction
and duties of the constitutionally created office of county-
elected district attorney” (quotation omitted)).
76 An Act Providing for the Election of District Attorneys, Pub.

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longstanding tradition establishes that the district attorney is a
“constitutional officer”77 with authorization to represent the
Commonwealth in certain matters,78 which we have
recognized include “habeas actions in federal court.”79 Comity
thus prohibits us from overriding a valid waiver by a
Pennsylvania district attorney.80 Accordingly, I conclude that
L. No. 385, 1850 Pa. Laws 654, 654 (codified as amended at
16 P.S. § 9952). This law “was designed to clothe the district
attorney with an authority independent of that of the attorney
general.” Gilroy v. Commonwealth, 105 Pa. 484, 487 (1884).
77 See Commonwealth v. Schab, 383 A.2d 819, (Pa. 1978) (“In
1874, the district attorney was made a constitutional officer.”
(citing Pa. Const. of 1874, art. XIV, § 1)); see also Pa. Const.
art. IX, § 4 (current version, enacted in 1968).
78 Schab, 383 A.2d at 821–22 (“It would be incongruous to
place a district attorney in the position of being responsible to
the electorate for the performance of his duties while actual
control over his performance was, in effect, in the Attorney
General.”).
79 Harris v. Pernsley, 820 F.2d 592, 598 (3d Cir. 1987) (citing
Commonwealth ex rel. Specter v. Bauer, 261 A.2d 573, 575–
76 (Pa. 1970)); Bauer, 261 A.2d at 575 (recognizing that
district attorneys “have the power—and the duty—to represent
the Commonwealth’s interests in the enforcement of its
criminal laws”). The Pennsylvania Attorney General does not
dispute that a local district attorney has this authority.
80 “Comity means respect for the state’s processes, and a state
may choose to speak through any branch of its government,”
and “if the federal court refused to accept the waiver, explicit
or implicit, by the state through its [authorized representative],
this would be a meddlesome intrusion into the state’s internal
allocation of governmental authority.” See Barrera v. Young,

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28
the District Court abused its discretion in overriding the
Commonwealth’s valid procedural-default waivers and
skipping a merits review of Johnson’s two otherwise defaulted
Brady claims.
ii.
I next consider § 2254(e)(2), which governs the scope
of our evidentiary review. It is also a nonjurisdictional
threshold bar to federal habeas relief.81 Plenary habeas review
may include the entire state-court record if the petitioner raises
credible disputes about the state court’s factual findings,82 but
§ 2254(e)(2) generally prohibits a federal court from holding
an evidentiary hearing or “expand[ing] the state court record
through far-reaching civil discovery.”83 Nevertheless, as
discussed above, this nonjurisdictional threshold bar is as
forfeitable (and waivable) as any other.84
794 F.2d 1264, 1269 (7th Cir. 1986) (Easterbrook, J.).
81 Shinn v. Ramirez, 596 U.S. 366, 375 n.1 (2022) (analyzing
§ 2254(e)(2) under traditional forfeiture principles); Stokes,
64 F.4th at 140–42 (declining to excuse the state’s forfeiture
of the § 2254(e)(2) bar).
82 “It is not significant whether the state court was specifically
directed to the petitioner’s evidence, so long as it was in the
record.” Brian R. Means, Federal Habeas Manual § 3:88 (2024
update) (first citing Miller-El, 545 U.S. at 241 n.2; then citing
id. at 282–83 (Thomas, J., dissenting)).
83 Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 724
(3d Cir. 2022) (citing Holland v. Jackson, 542 U.S. 649, 563
(2004) (per curiam); and Shinn, 596 U.S. at 389).
84 Fairchild v. Workman, 579 F.3d 1134, 1146 (10th Cir. 2009)
(finding that the state forfeited the issue of diligence under §
2254(e)(2) by failing to preserve it for appellate review); see

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I would decline to resurrect § 2254(e)(2)’s bar.
Respondents have the obligation to timely raise threshold
habeas bars in district court,85 and here they did not. The issue
was not raised by either the parties or amicus before the District
Court (where the District Attorney twice asked the District
Court to hold an evidentiary hearing). It was not raised in the
parties’ (or amicus’s) briefs. Indeed, even at oral argument the
§ 2254(e)(2) bar was not raised until we brought it up. Even
then, the District Attorney expressly waived any argument that
it applied.86 This puts us back at square one—but this time,
even if we had discretion to deny the waiver (which we do not),
we still could not forgive the forfeiture without abandoning our
proper judicial role.
I submit that we cannot excuse a state’s failure to timely
assert a habeas procedural bar unless comity, federalism,
judicial economy, and the interests of justice outweigh our
judicial obligation to act as impartial arbiters and exercise
also Stokes, 64 F.4th at 136 n.3, 139–42 (applying the Wood
rule to § 2254(e)(2), but concluding that the bar was forfeited
rather than waived).
85 See Habeas Corpus Rule 5(b); Day, 547 U.S. at 202 (citing
Fed. R. Civ. P. 8(c), 12(b), and 15(a)).
86 After oral argument, we asked the parties and amicus to
submit supplemental briefing on whether Johnson meets §
2254(e)(2)’s requirements, whether § 2254(e)(2) is waivable,
and whether Johnson preserved his arguments concerning his
eligibility for a hearing. The parties and amicus complied with
our request, and the District Attorney expressly waived §
2254(e)(2)’s bar.

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30
restraint.87 “[R]estraint is all the more appropriate when the
appellate court itself spots an issue the parties did not air below,
and therefore would not have anticipated in developing their
arguments on appeal.”88 Indeed, where the state “never raised
the issue at all, in any court,” we “should be even less inclined
to raise it sua sponte than when the state . . . has raised the issue
. . . belatedly.”89 Otherwise, we would “come dangerously
close to acting as advocates for the state rather than as impartial
magistrates.”90 To avoid an accidental violation of federal-
state comity, and given the Attorney General’s limited role as
amicus curiae,91 I defer to the District Attorney. For these
reasons, I do not support the sua sponte invoking of §
2254(e)(2)’s bar against Johnson.92 I conclude that any
87 See Szuchon, 273 F.3d at 321 n.13.
88 Wood, 566 U.S. at 473.
89 See Smith, 120 F.3d at 409.
90 Id.
91 As an amicus curiae, the Attorney General “is not a party to
the litigation.” See Newark Branch, NAACP v. Town of
Harrison, 940 F.2d 792, 808 (3d Cir. 1991) (quotation
omitted). Amicus status is different than intervenor status, see
Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970), and an
amicus does not necessarily have a right to intervene, see
Warren v. Comm’r, 302 F.3d 1012, 1014–15 (9th Cir. 2002).
The Attorney General therefore cannot assume the functions of
a party and “has no standing to request relief not requested by
the parties.” Newark NAACP, 940 F.2d at 808; see also
Knetsch v. United States, 364 U.S. 361, 370 (1960)
(recognizing that courts need not address an amicus curiae’s
argument if it “has never been advanced by [the parties] in th[e]
case”).
92 Further weighing against reviewing this issue for the first

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argument that § 2254(e)(2) bars a federal evidentiary hearing
on Johnson’s constitutional claims, or our review of the
expanded record, has been forfeited.
V.
Thus, I have concluded that we should consider the
expanded record. Before going forward, however, we have to
resolve Johnson’s two ineffective assistance of counsel claims,
based on the existing state court record.93 These claims
concern his trial counsel’s failures to consult with him before
trial and to present more alibi witnesses at trial. They were
reviewed under the Strickland standard, which is “doubly
deferential” when § 2254(d) applies.94 “[T]he question is not
whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel
time on appeal are the mixed questions of law and fact raised
by the two distinct diligence requirements in § 2254(e)(2)’s
opening clause and § 2254(e)(2)(A)(ii); the record is
undeveloped and contains no factual findings on these
questions. See O’Hanlon v. Uber Techs., Inc., 990 F.3d 757,
763 n.3 (3d Cir. 2021) (“[A]s a ‘court of review, not of first
view,’ we will analyze a legal issue without the district court’s
having done so first only in extraordinary circumstances.”
(citation omitted) (quoting Frank v. Gaos, 586 U.S. 485, 493
(2019) (per curiam))).
93 We cannot consider the expanded record when § 2254(d)(1)
deference applies. See Cullen v. Pinholster, 563 U.S. 170,
181–82 (2011); see also Williams, 45 F.4th at 724.
94 Laird, 129 F.4th at 247 (quoting Knowles v. Mirzayance, 566
U.S. 111, 123 (2009)).

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satisfied Strickland’s deferential standard.”95
Johnson concedes that he is not entitled to relief on his
failure-to-consult claim but argues that it should be remanded
for inclusion in the cumulative-error claim. I disagree. The
Superior Court’s decision contains factual findings that compel
me to conclude that no Strickland error occurred because
“counsel’s performance did not objectively fall short of
professional standards.”96 Thus, I would affirm the dismissal
of this claim and not remand it for cumulative-error review.
As for the failure-to-call-more-witnesses claim.
Ineffectiveness claims concerning “uncalled witnesses are not
favored in federal habeas corpus review because allegations of
what a witness would have testified to are largely
speculative.”97 In addition, decisions about which witnesses to
call at trial are usually strategic decisions left to counsel.98
Reviewing the state court’s decision, and limited to the state-
court record, I do not find its application of federal law to be
unreasonable. Therefore, I would not grant habeas relief on
this claim under § 2254(d)’s “highly deferential standard.”99
95 Harrington v. Richter, 562 U.S. 86, 105 (2011). Johnson
concedes he cannot receive relief on his failure-to-consult
claim under United States v. Cronic, 466 U.S. 648 (1984), due
to AEDPA deference. I will therefore limit my review to the
Strickland version of this claim.
96 Laird, 129 F.4th at 247.
97 Id. at 246.
98 See Diggs v. Owens, 833 F.2d 439, 445–46 (3d Cir. 1987).
99 Pinholster, 563 U.S. at 181 (omissions in original) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

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VI.
Turning to the merits of Johnson’s remaining
constitutional claims,100 when § 2254(d)(1) deference is
inapplicable and the district court has denied the petition
without holding an evidentiary hearing, “[w]e review de novo
all questions of law, and consider all factual allegations in the
light most favorable to the petitioner to determine whether he
has stated a cognizable claim for habeas relief. We then
determine whether an evidentiary hearing is necessary to
develop the facts before us.”101 Unless Johnson’s “factual
allegations are ‘contravened by the existing record,’”102 we
should remand for an evidentiary hearing if his “petition
presents a prima facie showing which, if proven, would enable
the petitioner to prevail on the merits of the asserted claim.”103
A.
I begin with Johnson’s three Brady claims: (1) the
suppression of Angelo Smith’s failure to identify Johnson in
the courtroom at trial;104 (2) the suppression of Opal Nickson’s
100 The District Court correctly determined that Johnson’s
Brady claims and Strickland failure-to-investigate claim are
subject to de novo review.
101 Roman v. DiGuglielmo, 675 F.3d 204, 208 (3d Cir. 2012).
102 Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010)
(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).
103 Id. (citations omitted).
104 Johnson does not claim that Angelo’s 2016 statement is
Brady material. The statement alone cannot be Brady material
because a prosecutor has no obligation to disclose exculpatory
evidence that the prosecution obtained for the first time during

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statements that the real perpetrator had darker skin than
Johnson; and (3) the suppression of October 10th photos of
Johnson, which show he did not match the descriptions of the
shooter provided by James and Angelo.
Under Brady and its progeny, a prosecutor has a duty to
disclose all favorable evidence material to the accused’s guilt,
including exculpatory and impeachment evidence.105 The
suppression of evidence favorable to the accused violates due
process, “irrespective of the good faith or bad faith of the
prosecution.”106 To sustain a Brady claim, Johnson must show
the prosecution suppressed favorable, material evidence.107 I
agree with the District Court that the allegations, viewed in the
light most favorable to Johnson under our standard of review,
satisfy Brady’s suppression and favorability prongs.
Therefore, I focus on the third requirement—materiality.
i.
Materiality requires “a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.”108 The test is not
postconviction proceedings. See Dist. Att’y Off. for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 68–69 (2009)
(recognizing that Brady is a “trial right” and not a
“postconviction” right).
105 See Kyles, 514 U.S. at 438.
106 Brady, 373 U.S. at 87.
107 United States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008).
108 Rega v. Sec’y, Pa. Dep’t of Corr., 115 F.4th 235, 241 (3d
Cir. 2024) (omission in original) (quoting Kyles, 514 U.S. at
433–34).

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35
whether the petitioner “‘more likely than not’ would have been
acquitted had the new evidence been admitted.”109 Instead,
viewing the “facts through the lens of a jury who was deprived
of this information,”110 is there “a reasonable probability that
at least one juror’ would have decided differently.”111 A
“reasonable probability” exists if “the government’s
evidentiary suppression ‘undermines confidence in the
outcome of the trial.”112 Thus, materiality exists if there is a
reasonable probability that at least one juror would have held
out and voted not to convict.113
Moreover, after “evaluat[ing] the tendency and force of
the undisclosed evidence item by item” we must “evaluate its
cumulative effect for purposes of materiality separately.”114 In
other words, we assess materiality “collectively, not item by
item.”115 As part of our assessment, we also consider what
“competent counsel would have” done had the prosecution not
suppressed the evidence.116
109 Wearry v. Cain, 577 U.S. 385, 392 (2016) (per curiam)
(omissions in original) (quoting Smith v. Cain, 565 U.S. 73, 75
(2012)); see also Kyles, 514 U.S. at 434–35.
110 Holberg v. Guerrero, 130 F.4th 493, 508 (5th Cir. 2025).
111 Id. (quoting Wiggins v. Smith, 539 U.S. 510, 527 (2003));
Wearry, 577 U.S. at 392 n.6 (recognizing that petitioner “can
prevail” on a Brady claim “even if . . . the undisclosed
information may not have affected the jury’s verdict”); Kyles,
514 U.S. at 434–35.
112 Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).
113 See Holberg, 130 F.4th at 508.
114 Kyles, 514 U.S. at 437–38 n.10.
115 Id. at 437.
116 See Wilson v. Beard, 589 F.3d 651, 664–65 (3d Cir. 2013)

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“Evidence can be material even if it ‘goes only to the
credibility of the witness.’”117 Evidence directly impeaching
eyewitness identifications is often material when those
identifications “lack[] strong corroboration.”118 Not “every
unexplored avenue of impeachment is ipso facto material,” but
“there are some instances where specific impeachment
evidence is so important (for issues such as identity of the
culprit) that it is material for Brady purposes even when a
witness has already been effectively impeached on other
issues.”119
ii.
We should begin with the District Court’s failure to
follow Supreme Court precedent, established in Kyles v.
Whitley120 and since reaffirmed in Glossip v. Oklahoma,121 that
the materiality analysis “requires a ‘cumulative evaluation’ of
all the evidence, whether or not that evidence is before the
[c]ourt in the form of an independent claim for relief.”122 The
District Court did not assess cumulative materiality because it
erroneously concluded that “there is only one piece of newly
(emphasis in original) (citations omitted) (quoting Kyles, 514
U.S. at 441).
117 Glossip, 145 S. Ct. at 628 (quoting Napue v. Illinois, 360
U.S. 264, 269 (1959)).
118 See Johnson, 705 F.3d at 129.
119 United States v. Walker, 657 F.3d 160, 188 (3d Cir. 2011)
(italics and citations omitted).
120 514 U.S. 419 (1995).
121 145 S. Ct. 612 (2025).
122 Glossip, 145 S. Ct. at 629 (quoting Kyles, 514 U.S. at 441).

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discovered, suppressed evidence that can be reviewed, i.e., the
arrest photograph.”123 This constitutes reversible error because
although the arrest photo “standing alone . . . is not
material,”124 it is material when considered with the other
Brady evidence.
iii.
At oral argument, the Attorney General rightly pointed
out that our materiality analysis must include not only the
exculpatory evidence, but also the inculpatory evidence
presented at trial. So, before turning to Johnson’s individual
Brady claims, I offer some observations on that inculpatory
evidence—namely, James’s, Bennett’s, and Nickson’s
eyewitness identifications. Our precedent and Pennsylvania
law agree that eyewitness identification evidence “is among
the least reliable forms of evidence.”125 Indeed, we have long
appreciated that “the major cause of wrongful convictions is .
. . the use of eye-witness identifications.”126
123 Johnson, 683 F. Supp. 3d at 474–75.
124 Id. at 474.
125 United States v. Brownlee, 454 F.3d 131, 141 (3d Cir. 2006)
(emphasis and quotation omitted); Commonwealth v. Walker,
92 A.3d 766, 779 (Pa. 2014) (recognizing that eyewitness
identifications are “widely considered to be one of the least
reliable forms of evidence” (citing United States v. Wade, 388
U.S. 218, 228 (1967))).
126 United States ex rel. Mealey v. Delaware, 489 F.2d 993, 996
(3d Cir. 1974) (quotation omitted); Brownlee, 454 F.3d at 141
(“the single most important factor leading to wrongful
conviction in the United States . . . is eyewitness
misidentification” (omission in original) (quoting C. Ronald
Huff et al., Guilty Until Proven Innocent: Wrongful Conviction

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In Johnson’s case, the parties have identified several
factors that undermine the reliability of the eyewitness
identifications. The testimony and police statements describe
poor lighting conditions inside the house at nighttime,127 the
eyewitnesses’ focus on the weapon,128 their feelings of stress
and fear,129 and their minimal opportunity to observe the man
with the pistol.130 Additionally, the recantations, coupled with
Nickson’s trial testimony about the other three eyewitnesses
smoking crack cocaine (and Bennett’s testimony that Nickson
would sometimes smoke crack), establish that they all were
high on crack and marijuana when they viewed the man with
the pistol during the few moments before the lights went out.131
and Public Policy, 32 Crime & Delinq. 518, 524 (1986))).
127 See Third Circuit Task Force, Report on Eyewitness
Identifications, 92 Temp. L. Rev. 1, 21, 89 (2019).
128 See Dennis, 834 F.3d at 299 n.25 (“[T]he presence of a
weapon at a crime scene, ‘has a consistently negative scientific
impact on both feature recall accuracy and identification
accuracy.’” (quoting id. at 331 (McKee, C.J., concurring))). .
129 See Third Circuit Task Force, supra note 127, at 79 (“There
is a general agreement on the damaging effect of stress on
memory. Highly stressful situations have been demonstrated
to interfere with eyewitness memory.” (footnotes and citations
omitted)).
130 See id. at 86 (“There is substantial agreement among
eyewitness researchers that exposure duration—the length of
time that the witness has to view the event and perpetrator—
can impact the accuracy of memory for that event as limited
time of exposure can lead to poorer quality person
descriptions.” (citations and quotation omitted))..
131 See, e.g., Commonwealth v. Drew, 459 A.2d 318, 321 (Pa.

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Further, the record suggests that the police used identification
procedures that studies have shown increase the risk of
eyewitness misidentification.132 If remanded, in assessing
1983) (“We have consistently held that intoxication on the part
of a witness at the time of an occurrence about which he has
testified is a proper matter for the jury’s consideration as
affecting his credibility.”); see also 1 McCormick on Evid. §
44 (7th ed. 2016) (“If the witness was under the influence at
the time of the events which he testifies to or at the time he
testifies, this condition is provable to impeach on cross or by
extrinsic evidence.”).
132 For instance, police asked Angelo to search through a
mugshot book to find a photo of the man with the pistol. See
Third Circuit Task Force, supra note 127, at 67–68 (citing
studies showing that mugshot-book identifications “can
negatively impact the reliability of any purported identification
that results” and “may cause the witness to conflate the
perpetrator with someone seen elsewhere, unduly commit to
the mug-shot identification, and be less reliable at a subsequent
identification procedure even if there is no mug-shot
identification”). The record also suggests that the police used
the same photo array for Bennett and Nickson, without
shuffling the positions of the photos, see Third Circuit Task
Force, supra note 127, at 64 (“If a lineup or photo array is being
shown to multiple witnesses, officers should shuffle the order
of the lineup members or photos to ensure that the suspect is
presented in different positions for the witnesses.”), that police
did not use any blinding techniques when showing Nickson the
photo array, see id. at 27–34 (discussing the importance of
using blinding techniques “to prevent an officer from
providing, even subconsciously, any cues to the
eyewitnesses”), and that the police provided post-identification

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materiality under Brady, the District Court would need to
further consider the reliability of the eyewitness
identifications.
iv.
With the relatively weak incriminating evidence in
mind and viewing the factual allegations in the light most
favorable to Johnson, I conclude that he has made a prima facie
showing of entitlement to relief on his Brady claims. I address
each claim in turn.
Angelo’s failed identification is both exculpatory and
impeaching. The prosecution’s entire case rested on
identifications by three eyewitnesses whose reliability is
questionable due to their drug use, their focus on the gun, the
poor lighting conditions, and their limited opportunity to view
the man with the pistol. Angelo’s failed identification of
Johnson in the courtroom was particularly exculpatory
because, when he tentatively identified Johnson’s photo
shortly after the murder, Angelo told police: “[T]hat photo I
picked out looked like the guy and if it comes down to where I
might see him again, I will identify him.”133 However, when
feedback to Nickson by telling her that the other three
eyewitnesses had selected the same photo, see id. at 53 (citing
studies showing that “positive post-identification feedback can
inflate a witness’s level of confidence and impact the witness’s
memory of the conditions surrounding his or her viewing of the
perpetrator, including how much attention he or she paid to the
perpetrator, and how good a view he or she had of the
perpetrator”).
133 J.A. 197, Angelo Smith Police Interview Statement (Oct. 9,
1986) (emphasis added).

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Angelo arrived to testify at trial, he was unable to identify
Johnson in the courtroom. He was then told that his testimony
was not needed. Had Angelo been called as a defense witness,
competent counsel would have effectively used his failed
identification to argue that Johnson must not be the true culprit,
because if he were, Angelo would have identified him. That
testimony would have directly undercut the reliability of the
other eyewitnesses’ identifications and raised fresh questions
for the jury about their memory and perception. Regardless of
whether Angelo’s failed identification, standing alone, is
material under Brady, the District Court should assess the
credibility of this evidence and consider it cumulatively with
the other withheld evidence.
Like Angelo’s failed identification, Nickson’s
undisclosed statements that the true culprit’s skin complexion
was darker than Johnson’s are exculpatory and impeaching,
especially because they relate directly to “the identity of the
culprit.”134
These eyewitness weaknesses would provide fertile
ground for cross-examination as would Johnson’s Brady claim
concerning the October 10, 1986 arrest photos.135 Unlike
Bennett and Nickson, who had seen only the man’s facial
profile, James told the jurors that he had been face-to-face with
the man when James opened the front door. James had initially
told police that the man with the pistol was 6’1” tall (the same
134 See Walker, 657 F.3d at 188.
135 Unlike Bennett and Nickson, who had seen only the man’s
facial profile, James told the jurors that he had been face-to-
face with the man when James opened the door.

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height as him) and “clean shaven.”136 The photos show that
Johnson was 5’6” tall and had a mustache—directly
contradicting what James had initially told the police. Further,
had the photos been timely disclosed for use at trial to impeach
James’s identification—and had the prosecution responded by
telling the jury that James may have been mistaken because his
“encounter with the man with the pistol occurred in partial
darkness”137—this might have only raised more questions in
each juror’s mind about the reliability of all three eyewitness
identifications.
In terms of impeachment value, competent counsel also
would have used the photos to challenge the thoroughness and
adequacy of the police investigation. “Discrediting the
investigation is a crucial corollary to presenting an
innocence/alibi defense: If the defense could lead the jury to
believe that the Commonwealth conducted a shoddy
investigation, the jury would have been more likely to listen to
and believe [the defendant’s] alibi.”138 In addition, counsel
could have asked police why they never interviewed Nickson’s
brother, or considered any alternative suspects.139 Clearly, the
136 J.A. 192, J. Smith Police Interview Statement (Oct. 8,
1986). He also testified that his initial description was false
and that the man was 5’7” or 5’8”.
137 Johnson, 683 F. Supp. 3d at 474.
138 See Dennis, 834 F.3d at 313 (quotation omitted).
139 See Third Circuit Task Force, supra note 127, at 11
(“Wrongful identification clearly can serve as the first step
along a continuum of actions leading to wrongful arrest,
prosecution, and conviction. A wrongful identification often
leads to the pursuance of a perceived offender, less
consideration given to other possible offenders, and opens the

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photos have exculpatory and impeachment value.
a.
For the above reasons, the District Court’s item-by-item
materiality assessments were flawed. Accordingly, I would
reverse the District Court’s decision on Johnson’s Brady
claims and remand for an evidentiary hearing.
B.
Johnson’s remaining ineffectiveness claims challenging
trial counsel’s failure to investigate by not obtaining his arrest
photos and not interviewing Angelo are enlightened by my
materiality discussion. For the first Strickland prong, the
District Court correctly determined that Johnson had shown
deficient performance by counsel “acted unreasonably in
failing to interview Angelo Smith”140 and “fail[ing] to secure
the arrest photo.”141 However, the court concluded that
Johnson had failed to show prejudice under the second
Strickland prong. The Strickland prejudice and Brady
materiality standards are essentially the same.142 Because I
door for a myriad of missteps to be made.” (quotation
omitted)).
140 Johnson, 683 F. Supp. 3d at 482, 484. I agree with the
District Court that “in a case where eyewitness testimony was
the only form of evidence inculpating a defendant, counsel’s
failure to interview any of the eyewitnesses was unreasonable,
even where counsel ultimately subjected the witnesses to
extensive cross examination at trial.” Id. at 476 (first citing
Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994); then citing
Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990)).
141 Id. at 484.
142 See Bagley, 473 U.S. at 682–83.

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conclude that the District Court erred in its materiality analysis
under Brady, I also conclude that it erred in assessing
Johnson’s failure-to-investigate claim for prejudice under
Strickland.
C.
Finally, I submit that we must reach Johnson’s
cumulative-error claim.143 Our review is de novo.144 We must
exclude from our review any errors that do not rise to the level
of federal constitutional error.145 As a result, we may consider
only the errors relating to Brady and trial counsel’s failure to
143 This is “a standalone claim asserting the cumulative effect
of errors at trial that so undermined the verdict as to constitute
a denial of [Johnson’s] constitutional right to due process.”
Collins v. Sec’y Pa. Dep’t of Corr., 742 F.3d 528, 542 (3d Cir.
2014). If each constitutional error is deemed harmless,
Johnson may still obtain relief on the standalone cumulative-
error claim upon a showing of “actual prejudice.” Id. (quoting
Fahy, 516 F.3d at 205). To prevail, he must show that the
combination of individual constitutional errors was not
harmless. See Fahy, 516 F.3d at 205. A constitutional error is
harmless only if the habeas court concludes “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Mitchell v. Esparza, 540
U.S. 12, 17–18 (2003) (quoting Neder v. United States., 527
U.S. 1, 15 (1999)). The weaker the inculpatory evidence, the
more likely the error was harmful, see Marshall v. Hendricks,
307 F.3d 36, 68–69 (3d Cir. 2002), and “in cases of grave doubt
as to harmlessness the petitioner must win,” O’Neal v.
McAninch, 513 U.S. 432, 437 (1995).
144 See Littlejohn v. Royal, 875 F.3d 548, 568 (10th Cir. 2017).
145 See Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007).

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investigate under Strickland. I conclude that, when viewing
the evidence in the light most favorable to Johnson, the record
does not contravene his prima facie showing of entitlement to
habeas relief on his cumulative-error claim.
VII.
For the above reasons, I respectfully dissent.

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