Johnson v. Kerestes

683 F.Supp.3d 452

Kevin F. JOHNSON, Petitioner, v. John W. KERESTES, et al., Respondents.

CIVIL ACTION NO. 13-03197

United States District Court, E.D. Pennsylvania

Filed July 24, 2023

Arianna Julia Freeman, Claudia Flores, Federal Community Defenders Office, Philadelphia, PA, David Rudovsky, Kairys Rudovsky Messing Feinberg & Lin, LLP, Philadelphia, PA, Nilam A. Sanghvi, Beasley School of Law, Philadelphia, PA, for Petitioner.

Banafsheh Amirzadeh, Michael Garmisa, Patricia Cummings, Thomas W. Dolgenos, Philadelphia District Attorney's Office, Philadelphia, PA, Samuel H. Ritterman, Ahmad Zaffarese LLC, Philadelphia, PA, for Respondents John W. Kerestes, District Attorney of Philadelphia.

Banafsheh Amirzadeh, Michael Garmisa, Patricia Cummings, Ronald Eisenberg, Thomas W. Dolgenos, Philadelphia District Attorney's Office, Philadelphia, PA, Samuel H. Ritterman, Ahmad Zaffarese LLC, Philadelphia, PA, for Respondent The Attorney General of the State of Pennsylvania.

MEMORANDUM

EDUARDO C. ROBRENO

CONTENTS

Prologue . . . 459

I. Introduction . . . 459

II. Background . . . 462

III. Legal Standard . . . 462

IV. Discussion . . . 464

A. Procedural Default and Waiver . . . 464

B. Brady Claims . . . 465

1. Legal Standard Under Brady . . . 466

2. Effect of Procedural Default . . . 467

3. The Arrest Photo . . . 472

C. Ineffective Assistance of Counsel Claims . . . 475

1. Legal Standard . . . 475

2. Discussion . . . 476

D. Prosecutorial Misconduct . . . 482

E. Cumulative Prejudice . . . 483

1. Legal Standard . . . 483

2. Discussion . . . 484

F. Actual Innocence . . . 485

1. Legal Standard . . . 485

2. Discussion . . . 486

V. Conclusion . . . 487

PROLOGUE

This is a § 2254 petition seeking habeas corpus relief. Kevin Johnson ("Petitioner") was convicted of first-degree murder in the Philadelphia Court of Common Pleas in 1988. Before the Court is a stipulation and settlement agreement entered into by Petitioner, John W. Kerestes, and the District Attorney of the County of Philadelphia ("Respondents"), which, if approved, would vacate the state court conviction and allow Petitioner to plead no contest to charges of third-degree murder, criminal conspiracy, and possession of an instrument of crime, and be resentenced to a cumulative sentence of no greater than 10 to 20 years imprisonment including credit for time served.

For the reasons that follow, the stipulation and settlement agreement will not be approved and the request for habeas relief will be denied.

I. INTRODUCTION

On the evening of October 8, 1986, Lyndon "Cowboy" Morris, a known drug dealer, was shot to death by two people inside the home of Opal Nickson. Aside from the two shooters, at least four other people were in the house at the time: Opal Nickson, Angelo Smith, James Smith, and Elijah Bennett.¹ Those four people--Nickson, Angelo Smith, James Smith, and Bennett, were all under the influence of alcohol, cocaine, and or marijuana at the time of the shooting. In the hours shortly after the shooting, each of these four witnesses identified Petitioner as one of the shooters, based on an array of photographs. No other person was identified as the other shooter. Petitioner was arrested on October 10, 1986, charged with capital murder on October 29, 1986, and ultimately proceeded to trial in late 1987. On February 4, 1988, in the Philadelphia County Court of Common Pleas, Petitioner was convicted by a jury of first-degree murder, possession of an instrument of crime, and criminal conspiracy.

Since then, Petitioner has repeatedly challenged his conviction. After unsuccessfully appealing his conviction, he filed his first PCRA petition in 1996 raising several issues, including ineffective assistance of counsel. The PCRA court denied the petition in 2003, but the Superior Court reversed on appeal in 2005 and remanded for an evidentiary hearing, addressing only the ineffective assistance of counsel claim contained within the PCRA petition.² After a hearing, in 2009, the PCRA court denied the claim. In 2011, on appeal, the Superior Court granted Petitioner a new trial on the basis of his ineffectiveness of counsel claim. However, following rehearing en banc in 2012, the Superior Court vacated its decision and affirmed the PCRA court's prior denial of relief. Petitioner then filed a federal habeas petition in 2013.

During the pendency of Petitioner's federal habeas petition, Petitioner obtained several pieces of new evidence, including the 2014 affidavits of Opal Nickson, Angelo Smith, James Smith, and Elijah Bennett. In these new affidavits, all four eyewitnesses stated that they were coerced into identifying Petitioner as the man with the pistol. After requesting and being granted a stay of the federal habeas proceedings, Petitioner filed another PCRA petition on the basis of newly discovered evidence. The PCRA court rejected this claim, finding that (1) Petitioner did not act with the requisite diligence in uncovering this new evidence to trigger equitable tolling of the statute of limitations, (2) the government interference exception did not apply, and (3) Pennsylvania does not recognize an "actual innocence" equitable exception to the PCRA statute of limitations. The Superior Court affirmed denial of the PCRA petition in 2018.

At this point, the parties resumed litigating the federal habeas claims, engaging in limited discovery. In May 2019, Respondents produced the arrest photos taken of Petitioner on October 10, 1986. Petitioner then requested and was granted another stay to present this newly discovered evidence to the state courts in a third PCRA petition.³

In 2021, Petitioner and Respondents submitted a settlement agreement for the Court's review, describing Petitioner's assertions and Respondents' concessions that there were sufficient constitutional errors at trial to undermine the legitimacy of the jury's verdict. The Court then held a hearing to consider whether to approve the settlement agreement.

At the conclusion of the hearing, the Court requested that the parties supplement their original briefing regarding (1) the Court's power to grant relief in the form of approving a settlement agreement of a writ for habeas corpus and (2) the legal and factual basis supporting the requested relief. Because both parties agreed that Petitioner's claims warrant habeas relief, and therefore the proceeding was no longer adversarial, the Court sought input from the Pennsylvania Attorney General as amicus curiae.⁴

At this point, with the benefit of input from amicus, Petitioner's petition for a writ of habeas corpus (including the numerous amendments and supplements), the settlement agreement, and the briefing in support are ripe for review.⁵

Respondents urge the Court to approve the settlement agreement, arguing that Court possesses the power to "dispose of the habeas petition as law and justice require." Resp'ts' Suppl. Br. at 1, ECF No. 85 (quoting 28 U.S.C. § 2243). The Court certainly possesses "broad discretion in conditioning a judgment granting habeas relief." Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (describing a habeas court's discretion as broad in the context of a stay of relief pending appeal).

But the Court does not possess unfettered discretion to order a state prisoner released without assuring itself that the petitioner's claims have merit. See Wharton v. Vaughn, 371 F. Supp. 3d 195, 198-99 (E.D. Pa. Mar. 4, 2019) (Goldberg, J.); accord Vando v. Clark, No. 21-724, 652 F.Supp.3d 509, 513-14 (E.D. Pa. Jan. 20, 2023) (Robreno, J.) (quoting Wharton, 371 F. Supp. 3d at 199); cf. Commonwealth v. Brown, 649 Pa. 293, 196 A.3d 130, 145 (2018) ("[T]he PCRA requires judicial merits review favorable to the petitioner before any relief may be granted. A confession of error by the Commonwealth does not constitute a judicial ruling in Brown's favor, and thus is insufficient for any grant of relief under the PCRA."). And although this is not a review of a federal conviction, the principle that "federal prisoners seeking postconviction relief via § 2255 cannot resolve their claim outside the courthouse," Brown v. United States, 748 F.3d 1045, 1066 (11th Cir. 2014), is equally applicable to habeas review of a state conviction. The Court finds, therefore, that it must review the merits of Petitioner's claims, not merely rubber stamp them, before determining whether the proposed stipulation and settlement agreement may be approved.

II. BACKGROUND

Petitioner's claims for relief are spread out across a number of supplements and amendments to his original petition. As summarized in the Settlement Agreement, ECF No. 77, Petitioner currently claims that the following constitutional violations undermine the validity of his sentence: (1) Respondents' failure to disclose material, exculpatory evidence; (2) ineffective assistance of trial counsel; and (3) prosecutorial and police misconduct which denied Petitioner due process of law. Petitioner further brings an actual innocence claim, arguing that his conviction and sentence represent a fundamental miscarriage of justice as a result of the Commonwealth's misconduct and ineffective assistance of counsel. He brings the actual innocence claim as a freestanding claim, or, in the alternative, as a gateway claim to review any procedurally barred constitutional claims.

First, Petitioner claims that three Brady violations undermine his conviction. Respondents suppressed the arrest photograph of Petitioner, taken approximately two days after the shooting. Petitioner argues that this photograph would have been favorable and material had it been disclosed at the time of trial, as Petitioner's appearance shortly after the shooting occurred is not consistent with the witnesses' descriptions of the man with the pistol. Petitioner also argues that Respondents wrongfully suppressed eyewitness Angelo Smith's readiness to testify and inability to positively identify Petitioner in person. Petitioner states that, had this...