James Dennis v. Secretary PA Department of Cor, et al

Filing

PRECEDENTIAL OPINION Coram: SMITH, FISHER and CHAGARES, Circuit Judges. Total Pages: 33. Judge: FISHER Authoring.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-9003
______
JAMES A. DENNIS
v.
SECRETARY, PENNSYLVANIA DEPARTMENT OF
CORRECTIONS;
SUPERINTENDENT, STATE CORRECTIONAL
INSTITUTION AT GREENE;
SUPERINTENDENT, STATE CORRECTIONAL
INSTITUTION AT ROCKVIEW;
DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,
Appellants
______
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-11-cv-01660)
District Judge: Honorable Anita B. Brody

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______
Argued November 5, 2014
Before: SMITH, FISHER and CHAGARES, Circuit Judges.
(Filed: February 9, 2015)
Thomas W. Dolgenos, Esq. (ARGUED)
Ryan Dunlavey, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellant
James W. Cooper, Esq.
Rebecca L.D. Gordon, Esq.
Ryan D. Guilds, Esq.
Meghan Martin, Esq.
Amy L. Rohe, Esq.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, DC 20004
Counsel for Appellee
Melanie Gavisk, Esq.
Office of the Federal Public Defender
411 East Bonnevile Road
Suite 250

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Las Vegas, NV 89101
Counsel for Appellee
Stuart B. Lev, Esq. (ARGUED)
Federal Community Defender Office for the Eastern District
of Pennsylvania
Capital Habeas Unit
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106
Counsel for Appellee

______
OPINION OF THE COURT
______

FISHER, Circuit Judge.
In 1991, Chedell Williams was shot and killed in
Philadelphia. James Dennis was convicted of her murder and
was sentenced to death. In a series of decisions over thirteen
years, the Pennsylvania Supreme Court affirmed Dennis’s
conviction and sentence and denied his application for postconviction relief. Dennis filed an application under 28 U.S.C.

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§ 2254 in the United States District Court for the Eastern
District of Pennsylvania in which he claimed that a variety of
federal constitutional violations justified a writ of habeas
corpus. The District Court held that the Pennsylvania
Supreme Court unreasonably applied Brady v. Maryland, 373
U.S. 83 (1963), and its progeny in rejecting Dennis’s claims
that the prosecution had withheld three pieces of exculpatory
and material information. Concluding that the prosecution
had in fact breached its obligations under Brady, the District
Court granted a conditional writ of habeas corpus and
directed the Commonwealth to retry Dennis or release him.
For the reasons that follow, we will vacate the District
Court’s order and remand the case for consideration of
Dennis’s remaining claims.
I.
A.
On October 22, 1991, at around 1:50 p.m., Chedell
Williams and her friend, Zahra Howard, began to climb the
stairs to the Fern Rock SEPTA Station in Philadelphia. Two
men approached them and demanded their earrings. Both girls
fled, but one of the men caught Williams. He pulled her
earrings off and shot her in the neck with a silver handgun.
The shooter then ran by a construction worker, Thomas
Bertha, who stepped towards the shooter. When the shooter
raised his gun in Bertha’s direction, Bertha briefly stopped
but followed the shooter after he ran past Bertha. Bertha was
three or four feet from the shooter when the shooter passed
him. The two assailants entered a waiting car and drove off.
Williams died of her injuries.
Howard and other bystanders described the shooter as
an African-American male; between 5’7” and 5’10”; between
130 and 160 pounds; between 15 and 20 years old; and

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wearing a red sweat suit, a black jacket, a baseball cap, and
white sneakers. After the police heard rumors that James
Dennis had committed the murder, officers showed Howard
and other bystanders a photo line-up including Dennis’s
picture. Howard identified Dennis, saying, “This one looks
like the guy, but I can’t be sure.” (J.A. 1509.) A SEPTA
employee, James Cameron, also identified Dennis and said
that he looked similar to the shooter, especially from the side,
but that he could not be sure. Two construction workers,
Bertha and Anthony Overstreet, also agreed that Dennis
looked like the shooter. But four witnesses did not identify
Dennis from the array. Dennis was 21 years old, AfricanAmerican, 5’5”, and between 125 and 132 pounds.
In early November 1991, the police interviewed a
member of Dennis’s singing group, Charles Thompson, who
said that he saw Dennis with a silver handgun at their practice
the night of Williams’s murder.
On November 22, 1991, the police arrested Dennis. He
signed a statement in which he said that on the day of the
murder, he had stayed at his father’s house until about 1:30
p.m., when his father drove him to the bus stop. He said that
he then rode the bus for 30 minutes to the intersection of
Henry and Midvale Avenues, that he saw a woman he knew
named Latanya Cason, and that “[w]hen we got off the bus I
waved to her.” (J.A. 1676.) He said he then walked about a
half of a mile to Abbottsford Homes, a public housing
complex, and spent the rest of the day with his friends there.
Dennis’s father also said that Dennis had spent the morning at
his father’s house and that his father had driven Dennis to the
bus stop at 1:53 p.m. The police searched Dennis’s father’s
house; the lead detective signed a report stating that officers
discovered two black jackets, a pair of red pants, and a pair of

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white sneakers. However, the police lost these items before
trial.
On December 19, 1991, the police conducted an inperson line-up involving Dennis and five other individuals
Dennis selected. Howard, Cameron, Bertha, and Overstreet
participated. Howard identified Dennis, saying, “I think it was
[him].” (J.A. 229.) Cameron and Bertha identified Dennis
without reservation. But Overstreet identified a different
member of the line-up.
In January 1992, officers interviewed Latanya Cason,
the woman Dennis said he saw the day of the murder when
getting off the bus between 2:00 and 2:30 p.m. Cason said
that she had seen Dennis that day, but at a different time. She
said that she got off work at 2:00 p.m., collected her publicassistance funds, and ran a few errands before taking the bus
to the Henry and Midvale Avenues intersection. Therefore,
she estimated that she saw Dennis that day between 4:00 and
4:30 p.m.
Not all of the information the police received indicated
that Dennis was the perpetrator. On October 24, 2011,
officers interviewed Chedell Williams’s aunt, Diane Pugh.
The officers’ report states that Pugh told them that Zahra
Howard—Williams’s friend and an eyewitness—recognized
the suspects from the high school she and Williams attended.
Dennis did not attend the same school as Howard and
Williams. The report indicates that the officers intended to
follow up with Howard about this comment, but they never
did.
Additionally, on October 31, 1991, an inmate at the
Montgomery County Correctional Facility, William Frazier,
called the Montgomery County Detective Bureau and told
them he had information about Williams’s murder. The

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Montgomery County Detective Bureau passed the tip on to
the Philadelphia police, who then interviewed Frazier. Frazier
told them that his aunt had initiated a three-way call with his
friend, Tony Brown. Frazier said that Brown admitted to
killing Williams and that the gun went off accidentally.
Frazier also said that Brown implicated two men—Ricky
Walker, Frazier’s cousin, and Skeet—and that they were
hiding out in Frazier’s previous apartment. Frazier told the
officers that Brown had a history of committing armed
robberies. Frazier then went on a ride-along with the officers
and identified a pawn shop where he believed Brown,
Walker, and Skeet would have sold the earrings; Brown’s
home; Brown’s girlfriend’s home; Walker’s home; and
Skeet’s home.
The police then interviewed Walker. Walker said he
knew Williams from high school, but he denied having
anything to do with Williams’s murder and denied knowing
Brown or Skeet. He said that his mother could verify that he
was sleeping when Williams was murdered and that Frazier
had previously burglarized Walker’s home and charged
$1,000 in calls to Walker’s family. The officers also
interviewed the owner of Frazier’s previous apartment, who
said that no one had entered the apartment to his knowledge.
Finally, the police went to an address they thought was the
address Frazier gave them for Skeet and found no one who
knew of him; however, they went to the wrong address. They
did not confirm Walker’s alibi, investigate the pawn shop
Frazier identified, locate Tony Brown, or contact Frazier’s
aunt.
The prosecution did not give Dennis the police report
of Diane Pugh’s interview or any of the reports and other
documents relating to Frazier’s tip.

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Dennis’s trial began on October 2, 1992. The
prosecution called three eyewitnesses who identified Dennis
as the shooter: Howard, Cameron, and Bertha. The
prosecution also called Charles Thompson, from Dennis’s
singing group, who testified that he saw Dennis with a gun
the night of the murder. A police detective testified that
officers recovered clothing from Dennis’s father’s house that
was similar to what eyewitnesses described the shooter wore.
And the prosecution called Latanya Cason, who testified that
she saw Dennis at the Henry and Midvale Avenues
intersection between 4:00 and 4:30 p.m. on the day of the
shooting. The gun and Williams’s earrings were never found
and so were not presented at trial.
Dennis presented witnesses who corroborated his alibi
that he had been with his father before the shooting and took
the bus to Abbottsford in the afternoon. Three members of his
singing group testified that Charles Thompson was jealous of
Dennis. Other witnesses testified to Dennis’s good character.
Dennis also testified.
A jury found him guilty of first-degree murder,
robbery, conspiracy, carrying a weapon without a license, and
possessing the instruments of a crime. During the penalty
phase, the jury found one aggravating circumstance, that the
killing was committed in the course of a felony, and one
mitigating circumstance, that Dennis had no significant
criminal history. The jury sentenced Dennis to death.
Dennis appealed. During his appeal, in 1997, his new
appellate counsel went to the regional Department of Public
Welfare (“DPW”) office and found Cason’s receipt from
when she picked up her public-assistance funds on the day of
the murder. The receipt indicated that Cason had picked up
the funds at 13:03, or 1:03 p.m., earlier than she had testified

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at Dennis’s trial. Counsel interviewed Cason, and she stated
that when the police interviewed her for the first time before
trial, the officers already had a copy of the receipt. She stated
that she then found her copy of the receipt and that the
officers took her copy as well. She also stated that she
reviewed the receipt during the interview and likely had been
confused by the receipt’s use of military time. She thought
that because of that confusion, she told the officers the wrong
time she saw Dennis on the day of the murder. But based on
the correct time from the receipt, she now believed she likely
had seen Dennis between 2:00 and 2:30 p.m., as Dennis had
told the police during the investigation and testified at trial.
B.
In his direct appeal to the Pennsylvania Supreme
Court, Dennis argued, among other things, that he had
received ineffective assistance of counsel due to trial
counsel’s failure to investigate Cason and that the prosecution
violated his due process rights when it did not produce the
public-assistance receipt before the trial. See Brady v.
Maryland, 373 U.S. 83 (1963).
The Pennsylvania Supreme Court unanimously
rejected both claims.1 Commonwealth v. Dennis (Dennis I),
715 A.2d 404, 408 (Pa. 1998). The court concluded that
Dennis could not succeed on his ineffective assistance of
counsel claim because “[Cason’s] testimony would not
support [Dennis’s] alibi, because the murder occurred . . .
forty minutes earlier than Cason’s earliest estimate” and
because her testimony “would have been cumulative” of other
1

Three justices dissented on a different issue,
prosecutorial misconduct. Dennis I, 715 A.2d at 416
(Zappala, J., dissenting).

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testimony that Dennis arrived at Abbottsford Homes between
2:15 and 2:30 p.m. Id. With respect to Dennis’s Brady claim,
the court stated, “Finally, it is clear that there clearly was no
Brady violation. The [public-assistance] receipt was not
exculpatory, because it had no bearing on Appellant’s alibi,
and there is no evidence that the Commonwealth withheld the
receipt from the defense.” Id. The court rejected Dennis’s
other claims and affirmed his conviction and death sentence.
Id. at 416.
Dennis filed a timely petition pursuant to
Pennsylvania’s Post Conviction Relief Act (“PCRA”),
received new counsel, and also received discovery. In
discovery, Dennis received the police report of Diane Pugh’s
interview, which indicated that Zahra Howard told Pugh that
Howard recognized the shooter from her high school. He also
received William Frazier’s initial statement to the
Montgomery County Detective Bureau, his statement to the
Philadelphia police, a search consent form Frazier signed, a
police report of officers’ interview with Ricky Walker, Ricky
Walker’s statement, and a police report of officers’ interview
with Frazier’s previous landlord (collectively the “Frazier
lead documents”). Dennis then amended his petition to
include claims that the prosecution violated Brady by not
disclosing the report of Pugh’s interview and the Frazier lead
documents. After evidentiary hearings, the PCRA court
denied the petition.
Dennis appealed to the Pennsylvania Supreme Court
again. The court affirmed the judgment in part, vacated the
judgment in part, and remanded for further proceedings.
Commonwealth v. Dennis (Dennis III), 950 A.2d 945, 979

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(Pa. 2008).2 With respect to the Frazier lead documents, the
court restated its recent precedent interpreting Brady, which
held that the prosecution did not have to disclose “‘every
fruitless lead’” and that “‘inadmissible evidence cannot be the
basis for a Brady violation.’” Id. at 968 (quoting
Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005)).
Before Lambert, the Pennsylvania Supreme Court had held
that Brady applied to withheld information that “might have
had” an effect on “the preparation of the defense” as well as
“the presentation of the defense at trial.” Commonwealth v.
Green, 640 A.2d 1242, 1245 (Pa. 1994). Noting this
disagreement in Dennis III, the Pennsylvania Supreme Court
stated, “Lambert indicates that evidence sought under Brady
must be material and admissible. In the absence of any
argument regarding the gravamen of Lambert and its effect on
the continuing precedential value of Green, [Dennis] has
failed to establish a basis for relief with regard to this
evidence.” 950 A.2d at 968.
However, with respect to the police report of Pugh’s
interview, the court found that there was insufficient evidence
in the record and insufficient explanation for the court to
affirm the denial of Dennis’s Brady claim. Id. at 969.
Accordingly, the court vacated that portion of the PCRA
court’s order and remanded for further proceedings. Id. After
2

The prosecution had filed an interlocutory appeal
challenging the PCRA court’s grant of discovery on the
prosecution’s voir dire notes, and the Pennsylvania Supreme
Court reversed. Commonwealth v. Dennis (Dennis II), 859
A.2d 1270, 1280 (Pa. 2004). Although the Pennsylvania
Supreme Court’s 2004 decision is not relevant to this appeal,
we refer the court’s 2008 decision as Dennis III for the sake
of completeness.

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hearing testimony from Pugh and Howard, the PCRA court
again denied Dennis’s PCRA petition.
The Pennsylvania Supreme Court affirmed on appeal.
Commonwealth v. Dennis (Dennis IV), 17 A.3d 297, 309-10
(Pa. 2011). The court concluded that the police report was not
material because “Howard was extensively cross-examined . .
. includ[ing] Howard’s identification of the shooter” and
because “there were two eyewitnesses other than Howard
who observed the shooting at close range . . . [and who]
positively identified [Dennis] as the shooter in a photo array,
in a line up, and at trial.” Id. at 309. Therefore, the court
found that a different result was not reasonably probable. Id.
Dennis then filed an application under 28 U.S.C. §
2254 in the United States District Court for the Eastern
District of Pennsylvania that raised approximately twenty
claims. After full briefing, the District Court granted Dennis a
conditional writ of habeas corpus. Dennis v. Wetzel (Dennis
V), 966 F. Supp. 2d 489, 518 (E.D. Pa. 2013). The District
Court concluded that Dennis was entitled to relief on his
Brady claims with respect to the Frazier lead documents,
Cason’s public-assistance receipt, and the police report of
Pugh’s interview. Id. With respect to the Frazier lead
documents, the District Court concluded that the
Pennsylvania Supreme Court’s requirement that evidence be
admissible to trigger Brady and its determination that the
Frazier lead was “fruitless” were unreasonable applications of
clearly-established federal law. Id. at 503-06. With respect to
Cason’s public-assistance receipt, the District Court
concluded that the Pennsylvania Supreme Court’s statement
that the receipt was not withheld was an unreasonable
determination of the facts and its conclusion that the receipt
was not material was an unreasonable application of clearlyestablished federal law. Id. at 508-12. Finally, with respect to

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the police report of Pugh’s interview, the District Court
concluded that the Pennsylvania Supreme Court’s
determination that Howard’s cross-examination rendered the
report immaterial and its determination that the report would
not have affected the other eyewitnesses’ testimony were
unreasonable applications of clearly-established federal law.
Id. at 514-17. The District Court also concluded that the
Pennsylvania Supreme Court failed to undertake a cumulative
materiality analysis as required by United States Supreme
Court precedent. Id. at 517-18. The District Court withheld
ruling on many of Dennis’s remaining claims. Id. at 491, 501
n.19, & 510 n.27. The Commonwealth filed a timely notice of
appeal.
II.
The District Court had jurisdiction over Dennis’s
habeas corpus petition under 28 U.S.C. §§ 2241 and 2254.
We have appellate jurisdiction under 28 U.S.C. § 1291.
Because the District Court did not hold an evidentiary hearing
and relied on the state court record, we exercise plenary
review and apply the same standard the District Court
applied. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).
Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), federal courts reviewing a state prisoner’s
application for a writ of habeas corpus may not grant relief
“with respect to any claim that was adjudicated on the merits
in State court proceedings” unless the claim (1) “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or (2) “resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). “This is a difficult to

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meet and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the
benefit of the doubt.” Cullen v. Pinholster, ___ U.S. ____,
____, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks
and citation omitted). Dennis carries the burden of proving
his entitlement to the writ. Id.
A decision is “contrary to” federal law if “the state
court applies a rule that contradicts the governing law set
forth in [Supreme Court] cases” or “if the state court
confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [Supreme Court] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision
is an “unreasonable application” of federal law if the state
court identified the correct governing legal rule but applied
the rule to the facts of the case in an objectively unreasonable
manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision
is based on an “unreasonable determination of the facts” if the
state court’s factual findings are objectively unreasonable in
light of the evidence presented to the state court. Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Our review of a state prisoner’s habeas corpus petition
follows a “prescribed path”: first, we determine what
arguments or theories supported or could have supported the
state court’s decision; second, we ask “‘whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of the Supreme Court’”; and finally, we ask whether the state
court’s decision “‘was so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’”
Eley, 712 F.3d at 846-47 (alterations omitted) (quoting

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Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770, 78687 (2011)).
Each of the claims at issue in this appeal involves
Brady, 373 U.S. at 83. Brady held that the suppression of
material evidence favorable to the defense violates due
process. Id. at 87. To prove a Brady violation, a defendant
must show (1) the evidence was favorable to him; (2) the
evidence was “suppressed” by the state; and (3) the evidence
was material such that the defendant was prejudiced by the
failure to disclose it. Strickler v. Greene, 527 U.S. 263, 28182 (1999). Evidence is material if “there is a reasonable
probability that the suppressed evidence would have produced
a different verdict.” Id. at 281.
III.
The District Court held that the Pennsylvania Supreme
Court unreasonably applied Brady in rejecting Dennis’s
claims that the prosecution withheld the Frazier lead
documents, Cason’s public-assistance receipt, and the police
report of Pugh’s interview. We address whether Dennis is
entitled to relief based on each of the three items and
conclude that he is not. The Commonwealth has also asked us
to remand this case to a different judge. We will not.
A.
The Pennsylvania Supreme Court held that the
prosecution did not violate its disclosure obligations under
Brady with respect to the Frazier lead documents because
Dennis did not show that the documents were admissible and
material. Dennis III, 950 A.2d at 968. That the documents
were inadmissible and immaterial were independent and
alternate grounds to reject this claim. Therefore, either ground
is capable of defeating Dennis’s claim. We find that the

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admissibility issue disposes of this claim and only address
that issue.
To prevail, Dennis must show that the Pennsylvania
Supreme Court’s requirement that evidence be admissible to
trigger Brady is contrary to or an unreasonable application of
United States Supreme Court precedent. 28 U.S.C. §
2254(d)(1). Dennis has not identified any holding of the
Supreme Court that specifically states that evidence does not
need to be admissible in order to trigger Brady or any
Supreme Court case with materially indistinguishable facts.
Accordingly, the admissibility requirement is not contrary to
Supreme Court precedent.
We also conclude that the admissibility requirement is
not an unreasonable application of Supreme Court precedent.
The Pennsylvania Supreme Court based its admissibility
requirement on the United States Supreme Court’s decision in
Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam). In
Wood, state prosecutors had not disclosed the results of a
polygraph test that the polygraph examiner opined may have
indicated a key witness was not telling the truth. Id. at 4. The
state courts rejected the defendant’s Brady claim, and the
Supreme Court held that the state courts did not unreasonably
apply clearly-established federal law. Id. at 4, 9. Specifically,
the Court held that Brady governs the disclosure of
“evidence,” “the polygraph results were inadmissible under
state law,” and therefore the polygraph results were “not
‘evidence’ at all.” Id. at 5-6. “Disclosure of the polygraph
results, then, could have had no direct effect on the outcome
of trial, because [the defendant] could have made no mention
of them either during argument or while questioning
witnesses.” Id. at 6.

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The Ninth Circuit had held that the polygraph results
would have given defense counsel “a stronger reason to
pursue an investigation” of the defendant’s theory and may
have uncovered evidence that could have been used at trial.
Id. at 5 (internal quotation marks omitted). The Supreme
Court found that this “speculation” was improper because the
defendant’s trial counsel indicated that the polygraph results
would not have changed his trial preparation. Id. at 6-8. The
Court concluded,
In short, it is not “reasonably likely” that
disclosure of the polygraph results—
inadmissible under state law—would
have resulted in a different outcome at
trial. Even without [the witness’s]
testimony, the case against [the
defendant] was overwhelming. . . . [In
light of the evidence against the
defendant], it should take more than
supposition on the weak premises
offered by [the defendant] to undermine
a court’s confidence in the outcome.
Id. at 8.
The Pennsylvania Supreme Court could reasonably
read the Wood decision as holding that because the withheld
document was not admissible under state law, it was not
“evidence” that triggered Brady. The remainder of the
opinion discussing the Ninth Circuit’s reasoning can
reasonably be read as dicta, correcting an improperly loose
standard in § 2254 cases for when a reasonable probability of
a different result exists.

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Two of our sister courts of appeals have also held that
information must be admissible to trigger Brady, a fact that
confirms our conclusion that the Pennsylvania Supreme
Court’s interpretation of Wood is reasonable. The Seventh
Circuit and the Fourth Circuit both agree that Brady only
applies to information that will be admissible. See United
States v. Morales, 746 F.3d 310, 314 (7th Cir. 2014)
(collecting cases); Hoke v. Netherland, 92 F.3d 1350, 1356
n.3 (4th Cir. 1996) (citing Wood) (“[T]hese statements may
well have been inadmissible at trial . . . and therefore, as a
matter of law, ‘immaterial’ for Brady purposes.”).
It is irrelevant that the Supreme Court has never
expressly limited Brady to admissible evidence. And it is
irrelevant that we and other courts have held that Brady
applies to inadmissible information if it is otherwise material.
See Johnson v. Folino, 705 F.3d 117, 129-30 (3d Cir. 2013).
These are not the tests; the test is whether the state court’s
decision is an unreasonable application of clearly-established

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federal law as determined by the Supreme Court of the United
States. 28 U.S.C. § 2254(d)(1).3
Our decisions in Munchinski v. Wilson, 694 F.3d 308
(3d Cir. 2012), and in Johnson are not to the contrary. In
Munchinski, the Pennsylvania Superior Court rejected the
defendant’s claims under a heightened materiality standard—
that the evidence would change the outcome—and the fact
that the withheld information was not admissible was only
one factor in that approach. Munchinski v. Wilson, 807 F.
Supp. 2d 242, 279 (W.D. Pa. 2011). Although we affirmed
the district court’s grant of habeas corpus relief because the
state courts unreasonably applied Brady, the final state postconviction decision did not reject the defendant’s Brady claim
only because the information was inadmissible. Moreover, we
did not address whether a state court’s requirement that
information be admissible under Brady would be a reasonable
The District Court’s analysis of this claim
specifically noted that “most circuit courts,” including this
Court, have rejected the premise that inadmissible evidence
cannot be a basis for a Brady claim. Dennis V, 966 F. Supp.
2d at 503 (emphasis added). This circuit majority is irrelevant
in a habeas corpus action because the Supreme Court has
instructed that “circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme
Court.’” Parker v. Matthews, ___ U.S. ____, ____, 132 S. Ct.
2148, 2155 (2012) (per curiam) (quoting 28 U.S.C. §
2254(d)(1)). Furthermore, the “diverging approaches [of the
courts of appeals] illustrate the possibility of fairminded
disagreement,” demonstrating that the Pennsylvania Supreme
Court’s reliance on the inadmissibility of the evidence was
not unreasonable. White v. Woodall, ___ U.S. ____, ____,
134 S. Ct. 1697, 1703 n.3 (2014).
3

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application of federal law. And in Johnson, the state courts
had not addressed the defendant’s Brady claim on the merits,
so we reviewed it in the first instance to determine whether to
excuse his default. 705 F.3d at 127-30. Accordingly, we did
not hold that an admissibility requirement is an unreasonable
application of clearly-established federal law.4
We have concluded that the state courts could
reasonably require Dennis to show that the Frazier lead
documents would be admissible in order to trigger Brady’s
4

Dennis has also drawn our attention to Gumm v.
Mitchell, ___ F.3d ____, 2014 WL 7247393 (6th Cir. Dec.
22, 2014). We find this case to be inapplicable for similar
reasons. First, the State did not attempt to justify denying the
defendant’s Brady claim on the basis that the withheld
evidence was inadmissible; the State argued that the evidence
was inadmissible and was unlikely to lead to admissible
evidence. Id. at *17 (“The state’s primary argument against
the materiality of the undisclosed evidence in this case is that
much of it is inadmissible hearsay and could not have led to
the discovery of admissible evidence.” (emphasis added)).
Accordingly, this case does not address the question of
whether an admissibility requirement is a reasonable
application of Supreme Court precedent. And second, the
court adjudicated the Brady claim in the first instance because
the state courts had found they lacked jurisdiction over the
claim. Id. at *11. Therefore, the court was not even reviewing
a state-court decision. Although the court addressed the claim
as though § 2254(d) deference applied, it did so only in dicta.
Id. at *23-24. Because the court was not reviewing a statecourt decision and was not considering the same question
presented to this Court, Gumm does not alter or impact our
analysis.

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disclosure requirement. So if the court concluded that the
Frazier lead documents were inadmissible as a matter of state
law, then the court could reasonably reject this claim, and we
would be unable to grant Dennis relief.
The Pennsylvania Supreme Court found that Dennis
did not show that the Frazier lead documents would be
admissible. Dennis provides many reasons why the
Pennsylvania Supreme Court’s decision on admissibility is
wrong. However, “a state court’s interpretation of state law . .
. binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (per curiam). We cannot
reverse the Pennsylvania Supreme Court’s decision on a
state-law matter. Dennis suggests that this evidence would
have been admissible under Kyles v. Whitley, 514 U.S. 419,
441-54 (1995). However, in Kyles, the Court was predicting
how the state courts would rule on the admissibility of prior
statements by eyewitnesses. It did not overrule a state court’s
evidentiary ruling. Dennis also argues that the documents are
admissible under Chambers v. Mississippi, 410 U.S. 284
(1973). Dennis raises this argument for the first time on
appeal, and so he has waived it. See Del. Nation v.
Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006) (finding such
arguments waived). Even considering this argument on the
merits, it fails. Chambers was a “highly case-specific error
correction,” Montana v. Egelhoff, 518 U.S. 37, 52 (1996)
(plurality opinion) (Scalia, J.), when “mechanistic[ ]”
application of hearsay rules that did not include a statement
against penal interest exception resulted in the exclusion of
exculpatory evidence, Chambers, 410 U.S. at 302. Dennis
does not challenge the substance of the Pennsylvania hearsay
rules or argue that they were applied mechanistically to defeat
the ends of justice. Instead, he argues that the Pennsylvania
Supreme Court applied the Commonwealth’s evidentiary

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rules incorrectly. That application is a state-court
determination of state law by which we are bound.
The Pennsylvania Supreme Court reasonably applied
federal law to hold that Brady’s disclosure requirement does
not apply to inadmissible evidence. And the court found as a
matter of state law that the Frazier lead documents were
inadmissible. Therefore, Dennis is not entitled to relief on this
claim.5
B.
We next turn to Latanya Cason’s public-assistance
receipt. The Pennsylvania Supreme Court held that the
prosecution did not breach its obligations under Brady
because the receipt was not “withheld” and because it was not
material. Dennis I, 715 A.2d at 408. Again, these are
independent reasons why Dennis’s claim failed, and if we
find that either is a valid basis to reject the claim, Dennis is
not entitled to relief. We find that the “withheld” issue
resolves this claim.
The record is unclear as to whether the prosecution
received Cason’s public-assistance receipt. Cason’s affidavit
says that she gave her copy of the receipt to the police (J.A.
1735), but the police report of their interview with Cason
makes no mention of this receipt (J.A. 1529). Even the
Pennsylvania Supreme Court’s decision is ambiguous. The
court stated, “During their investigation, however, the police
5

As we explained initially, the inadmissibility of the
Frazier lead documents renders any analysis of the materiality
prong of Brady unnecessary. Nonetheless, it is worth noting
that despite the passage of twenty-plus years, no one has ever
located the subject of Frazier’s lead, the elusive “Tony
Brown.”

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came into possession of a [DPW] receipt showing that Cason
cashed her check at 1:03 p.m.” Dennis I, 715 A.2d at 408. But
the court then immediately characterized its previous
statement as “evidence” and ultimately concluded that the
receipt was not “withheld.” Id. Accordingly, it is unclear
whether the Pennsylvania Supreme Court found that the
prosecution possessed the receipt, and the record is
ambiguous as well. Nevertheless, we must give the state
court’s decision the benefit of the doubt. Cullen v. Pinholster,
___ U.S. ____, ____, 131 S. Ct. 1388, 1398 (2011).
Accordingly, we ask what arguments could have supported
the state court’s decision and decide whether those arguments
are reasonable. Eley, 712 F.3d at 846-47. We find that a valid
basis exists in the record to conclude that the receipt was not
suppressed in violation of Brady.
Brady prohibits the “suppression” of exculpatory,
material evidence. 373 U.S. at 87. The Pennsylvania Supreme
Court and this Court have both interpreted Brady to mean that
the prosecution does not have to turn over evidence that is
also available to the defense with reasonable diligence.
United States v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991)
(“Evidence is not considered to be suppressed if the defendant
either knew or should have known of the essential facts
permitting him to take advantage of any exculpatory
evidence.”); Commonwealth v. Paddy, 800 A.2d 294, 305
(Pa. 2002) (“[N]o Brady violation occurs if the evidence in
question is available to the defense from non-governmental
sources or if the defendant knew, or with reasonable diligence
could have known, of such evidence.” (citations omitted)).
Recently, we also concluded that it was reasonable for the
Pennsylvania Superior Court to reject a Brady claim on a
diligence basis. Grant v. Lockett, 709 F.3d 224, 231 (3d Cir.
2013). In Grant, the prosecution did not disclose that a

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witness in the defendant’s case had three prior convictions
and was on parole. Id. at 230. The defendant’s PCRA counsel
discovered these facts during the post-conviction proceedings.
Id. at 231. We concluded that the state courts reasonably
rejected the Brady claim because the fact that the PCRA
counsel discovered the witness’s criminal history by
searching public records showed that the trial counsel could
have discovered the witness’s criminal history with
reasonable diligence at the time of trial. Id.
Here, Dennis’s appellate counsel argued that the
receipt was available with “[a] minimal investigation.” (J.A.
1800.) Indeed, all indications are that Dennis’s appellate
counsel, in the process of investigating Cason’s statements for
purposes of the appeal, went to the DPW and received the
receipt without any difficulty. The Pennsylvania Supreme
Court could reasonably determine that the receipt was
available with reasonable diligence and, therefore, hold that it
was not suppressed or withheld in violation of Brady.
Dennis argues that the United States Supreme Court’s
decision in Banks v. Dretke, 540 U.S. 668 (2004), rejects a
reasonable diligence requirement for Brady claims. We
disagree. In Banks, the prosecution told the defendant that it
would produce all exculpatory or favorable evidence in its
possession but failed to disclose that one witness was a police
informant and that the prosecution had coached another
witness on what to say at trial. Id. at 675. The prosecution
later argued that the defendant had procedurally defaulted her
Brady claim based on the undisclosed evidence by failing to
present it to the state courts and that her procedural default
could not be excused because the defendant did not exercise
due diligence by interviewing the witnesses in question. Id. at
690-91, 695-98. The Supreme Court—noting that the cause
and prejudice inquiry to excuse the procedural default merged

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with the elements of the Brady claim—held that the defendant
did not need to exercise diligence in the way the state argued
to preserve her claim. Id. at 698. Accordingly, the defendant
showed that the prosecution had suppressed the evidence,
giving cause for the default, and the evidence was material,
showing prejudice for the default. Id.
Even assuming that Banks applies—although it was
issued after the Pennsylvania Supreme Court decided this
claim in Dennis I—Banks is distinguishable. In Banks, the
evidence withheld was something that only existed in the
possession of the prosecution. The evidence that one witness
was a police informant and that another witness had been
coached was only available in the prosecution’s files. But
here, the evidence that Cason received her public assistance at
1:03 p.m. was publicly available from the DPW. And as
Dennis himself argued to the Pennsylvania Supreme Court,
even a minimal investigation would have uncovered it. In
contrast, a minimal investigation in Banks would not have
uncovered the favorable evidence because the prosecution
actively misrepresented what evidence it possessed. See id. at
693. We conclude that Banks does not render a reasonable
diligence requirement for publicly-available information an
unreasonable application of clearly-established federal law.
The Sixth Circuit also rejected a similar argument in
Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc). In that
case, the prosecution did not disclose publicly-available
sentencing records that arguably could have demonstrated a
witness’s bias. Id. at 229-31. The court held that state courts
could reasonably conclude that the sentencing records were
not subject to disclosure under Brady because they were
publicly available and rejected an argument that Banks
mandated a different result. Id. at 235-36.

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Dennis also argues that our own precedent does not
impose a strict reasonable diligence requirement, but our
precedent instead identifies factors that must be considered.
Our own precedent cannot constitute clearly-established
federal law under § 2254. Renico, 559 U.S. at 779. Even if we
consider our precedent on this issue to reflect clearlyestablished Supreme Court precedent, the Pennsylvania
Supreme Court’s adjudication of this claim is still reasonable.
Generally, we have considered the knowledge of the parties,
access to the information, and the prosecution’s
representations in determining whether information was
available with reasonable diligence to the defendant. See
United States v. Pelullo, 399 F.3d 197, 216 (3d Cir. 2005).
The Pennsylvania Supreme Court could reasonably determine
that those factors suggested that the receipt was available with
reasonable diligence here: counsel readily secured the receipt
on appeal and Cason’s importance as a witness to Dennis’s
alibi was apparent.6
Accordingly, we conclude that the Pennsylvania
Supreme Court could reasonably exclude from the
prosecution’s Brady obligations evidence that was available
to Dennis with reasonable diligence. And the Pennsylvania
Supreme Court could also reasonably determine that Cason’s
public-assistance receipt was publicly available with
reasonable diligence. Therefore, we find that Dennis is not
entitled to relief on his Brady claim based on Cason’s publicassistance receipt.

6

In fact, it is worth highlighting that the prosecution
actually learned of Cason from Dennis. Thus, it was
reasonable for the prosecution to have believed the defense
knew of the evidence.

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Dennis alternatively asks us to adjudicate his
companion claim: that his trial counsel was constitutionally
ineffective in failing to investigate Cason’s story, that counsel
would have discovered the receipt had he performed the
investigation, and that the receipt could have affected the
outcome of the proceedings. The District Court specifically
reserved judgment on this claim. Dennis V, 966 F. Supp. 2d at
510 n.27. We decline to address this claim in the first instance
and will allow the District Court to consider this claim on
remand. Because we find it unnecessary to address whether
Cason’s public-assistance receipt was material to Dennis’s
defense under Brady, and in light of the similarity between
Brady materiality and Strickland prejudice—see Kyles, 514
U.S. at 436—we will vacate the District Court’s
determination that the Pennsylvania Supreme Court
unreasonably determined that the receipt was not material
under Brady. The District Court can and should consider
Dennis’s ineffective assistance claim based on the receipt
from a clean slate.
C.
Dennis’s final Brady claim concerns a police report of
an interview with the victim’s aunt, Diane Pugh. The
Pennsylvania Supreme Court held that the report was not
material because although the report may have been used to
impeach Zahra Howard’s identification of Dennis as the
shooter, no reasonable probability of a different result existed
because Dennis cross-examined Howard about her
identification of the shooter and two other eyewitnesses
identified Dennis as the shooter. Dennis IV, 17 A.3d at 46364. We find that this conclusion is a reasonable application of
Supreme Court precedent.

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It is true that state courts act unreasonably when
holding that merely because a witness “is impeached in one
manner, any other impeachment becomes immaterial.”
Lambert v. Beard, 633 F.3d 126, 134 (3d Cir. 2011), vacated
on other grounds sub nom. Wetzel v. Lambert, ___ U.S. ____,
132 S. Ct. 1195 (2012) (per curiam). However, we have
recognized that “impeachment evidence, if cumulative of
similar impeachment evidence used at trial . . . is superfluous
and therefore has little, if any, probative value.” United States
v. Walker, 657 F.3d 160, 186 (3d Cir. 2011) (alteration in
original) (internal quotation marks omitted).
Here, using the police report of Pugh’s interview
arguably would have been cumulative of similar
impeachment of Howard’s identification of Dennis. On crossexamination, Howard was asked extensively about her
identification of Dennis in the photo array and her ability to
view and remember the shooting. Of principal relevance,
counsel asked her specifically whether she had ever before
seen the men who accosted her and Williams. Through it all,
Howard maintained that Dennis was the shooter. We
conclude that it was reasonable for the Pennsylvania Supreme
Court to find that attempting to impeach Howard with the
report—essentially what the police said Pugh said Howard
said—would have been cumulative of similar impeachment
that was actually used at trial, namely challenging Howard’s
identification of Dennis as opposed to someone she already
knew.
Lambert v. Beard does not compel a contrary result. In
Lambert v. Beard, the Commonwealth failed to produce a
police report in which a key participant-turned-witness
identified three other participants in the crime instead of the
two he named at trial. 633 F.3d at 135. The defense had
argued that other aspects of the witness’s story had changed

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but had not questioned the witness about the number of
participants, and the prosecution emphasized that the witness
consistently identified only two participants in its closing. Id.
We concluded that it was unreasonable for the state courts to
reject the defendant’s Brady claim merely because other
cross-examination on different topics took place. Id.
This case is unlike Lambert v. Beard. Dennis directly
asked Howard whether she had ever seen the shooter before,
and she said no. Her answer to that question, the inherent
weakness of a multiple-level hearsay document as
impeachment evidence, and her insistence on naming Dennis
as the shooter render the Pennsylvania Supreme Court’s
rationale reasonable.
We also find the Pennsylvania Supreme Court’s
second rationale reasonable. The Supreme Court has
“observed that evidence impeaching an eyewitness may not
be material if the State’s other evidence is strong enough to
sustain confidence in the verdict.” Smith v. Cain, ___ U.S.
____. ____, 132 S. Ct. 627, 630 (2012); see also Strickler,
527 U.S. at 293-94 (observing that “there was considerable
forensic and other physical evidence linking petitioner to the
crime” and that “other eyewitnesses” saw the defendant at the
crime scene and concluding that impeachment evidence for
one eyewitness was not material). The Pennsylvania Supreme
Court could reasonably conclude that this was the case here:
two other eyewitnesses testified that Dennis was the shooter,
decreasing the probability that impeaching Howard’s
identification would affect the outcome.
This conclusion is not contrary to or an unreasonable
application of Kyles. In Kyles, withheld police reports
suggested that two of four eyewitnesses to the crime had
changed their story over time. 514 U.S. at 441-45. Kyles is

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arguably distinguishable in three key ways and, therefore,
does not render the state court’s decision unreasonable or
contrary to clearly-established federal law. First, in Kyles, the
police reports were based on interviews of the eyewitnesses
themselves. Here, the withheld police report was based on
what someone else said the eyewitness told her. This distance
decreases the impeachment value of the report. Second, in
Kyles, the remaining eyewitnesses “had their best views of
the gunman only as he fled the scene with his body partly
concealed in [a] car.” Id. at 445. Here, Bertha, the
construction worker, stepped toward the shooter after
Williams was shot, and the shooter raised the gun in Bertha’s
direction. (J.A. 540-41.) Bertha was “three or four feet” from
the shooter. (J.A. 541; J.A. 542.) And finally, in Kyles, the
police reports about the eyewitnesses’ statements were a few
documents among a wide variety of evidence withheld. The
Court determined that all of these materials together
undermined its confidence in the verdict. 514 U.S. at 454.
Here, this police report of Pugh’s interview is the only
evidence whose materiality required consideration, given the
Pennsylvania Supreme Court’s reasonable adjudication of the
other Brady claims. 7 Accordingly, we conclude that Kyles
does not make the Pennsylvania Supreme Court’s decision on
this withheld evidence an unreasonable application of or
contrary to clearly-established federal law.
Dennis also argues that the Pennsylvania Supreme
Court misstated the facts in its opinion by implying that
Dennis attended the same high school as Williams and
In light of the Pennsylvania Supreme Court’s
reasonable disposition of the previous two Brady claims, we
conclude that the court did not need to inquire into the
cumulative materiality of the three pieces of evidence.
7

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Howard and did not consider two of Dennis’s arguments. We
first find that the court did not get the facts wrong. The court
noted that the police report suggested Howard recognized the
shooter from her high school. Dennis IV, 17 A.3d at 306.
Later, while summarizing the PCRA court’s findings, the
court stated that Howard denied knowing Dennis or telling
anyone that she knew Dennis. Id. at 309. At the PCRA
hearing, Howard testified not only that she did not know
Dennis but also that she did not know the assailants and never
told anyone that she did know them. (J.A. 1467.) The
Pennsylvania Supreme Court’s decision to equate Dennis
with the shooter, as all proceedings up to that point had
confirmed, did not mean that the court decided the claim on
incorrect facts. Moreover, the court’s decision makes clear
that it understood Dennis was arguing that the shooter was
someone other than Dennis whom Howard recognized and
that the court rejected that argument.
Second, the court did consider all of Dennis’s
arguments. The court noted that Dennis argued that the report
“could have led to new investigative avenues” and also
“could have led counsel to alter his investigative strategy.”
Dennis IV, 17 A.3d at 307. Thus, the court understood Dennis
was claiming that the report could impeach the police’s
investigation of the murder and that the report could have
assisted counsel’s trial preparation but nonetheless rejected
the claim. Considering what arguments might have supported
this rejection, see Eley, 712 F.3d at 846-47, we conclude that
the rejection was reasonable. That the police heard of this
alternate identification through a third party and that Howard
identified Dennis more than once even though she did not
know him would allow the police to reasonably conclude that
either Pugh was mistaken in a time of grief or that the officers
simply transcribed Pugh’s statement incorrectly. And given

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that counsel already focused on whether Howard was sure
that Dennis was the shooter at trial, the Pennsylvania
Supreme Court could reasonably conclude that the report
would have minimal impact on Dennis’s trial preparation.
For these reasons, the Pennsylvania Supreme Court
reasonably rejected Dennis’s final Brady claim.
D.
Before we conclude, we must address one final matter.
The Commonwealth has asked us to remand this case to a
different judge. The Commonwealth complains that the
District Court made comments about Dennis’s possible
innocence and about the investigation into Williams’s murder
that demonstrate the appearance of impropriety. We will deny
the Commonwealth’s request.
In our en banc decision in Boyd v. Waymart, 579 F.3d
330, 333 (3d Cir. 2009) (en banc), we remanded a case to a
different judge to avoid the appearance of impropriety. We
did so because we remanded an issue that the district court
had already decided for a new decision, and we wished to
avoid the appearance of impropriety that might result should
the district court again reach the same conclusion on the same
issue. Id. at 339 n.10 (Scirica, C.J., concurring). This is,
however, “an extraordinary remedy that should seldom be
employed.” United States v. Bergrin, 682 F.3d 261, 282 (3d
Cir. 2012).
Here, we do not believe reassignment is necessary. We
have finally resolved all of the claims the District Court
decided, and our remand will not require the District Court to
decide the same issues or claims it previously decided.
Rather, it will decide the remaining claims that it has not yet
considered. We are confident that the District Judge—an

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experienced, learned, and fair jurist—will be able to apply the
proper legal standards to the remaining claims.
IV.
For the reasons set forth above, we will vacate the
District Court’s order granting Dennis a conditional writ of
habeas corpus and remand the case for consideration of
Dennis’s remaining claims in a manner consistent with this
opinion.

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