BRASWELL v. THOMPSON et al

Filing 21

ORDERED THAT: 1.PETITIONERS OBJECTIONS ARE OVERRULED. 2. THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WELLS IS APPROVED AND ADOPTED. 3. THE PETITION FOR WRIT OF HABEAS CORPUS FILED PURSUANT TO 28 U.S.C. § 2254 IS DENIED. 4. AS PETITION ER HAS NOT MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT OR DEMONSTRATED THAT A REASONABLE JURIST WOULD DEBATE THE CORRECTNESS OF THIS RULING, THE COURT DECLINES TO ISSUE A CERTIFICATE OF APPEALABILITY PURSUANT TO 28 U.S.C. § 2253(C)(2). SIGNED BY DISTRICT JUDGE JOHN R. PADOVA ON 3/10/2025. 3/11/2025 ENTERED AND COPIES E-MAILED.(sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
XAVIER BRASWELL
v.
SUPERINTENDENT, SCI ALBION, et al.

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CIVIL ACTION

NO. 24-279

ORDER
AND NOW, this 10th day of March, 2025, upon careful and independent consideration of
Petitioner Xavier Braswell’s counseled Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254 (Docket No. 1), and all documents filed in connection therewith, and after review
of United States Magistrate Judge Carol Sandra Moore Wells’s Report and Recommendation
(Docket No. 18), and consideration of Petitioner’s Objections to the Report and Recommendation
(Docket No. 19), IT IS HEREBY ORDERED that:
1.

1

Petitioner’s Objections are OVERRULED. 1

In July of 2016, a gunman fired multiple shots into an SUV, killing Shelton Merritt, who
was trapped inside. The shooting occurred near the corner of Christopher Columbus Boulevard
and Callowhill Street, about two blocks from the River Deck Club in Philadelphia. Petitioner
Xavier Braswell was charged as the gunman, and a jury in the Philadelphia Court of Common
Pleas found him guilty of first-degree murder, carrying a firearm on a public street, and possessing
an instrument of a crime. He was sentenced to life in prison. After the conviction was affirmed
on direct appeal, Braswell filed a petition pursuant to Pennsylvania’s Post-Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-9546. Braswell asserted in his PCRA petition that
he was not the shooter, and he argued that his trial counsel was ineffective for failing to, inter alia,
(1) call two alibi witnesses, Demetrius Tilley and Kyle Lloyd; (2) move to suppress certain trial
testimony; and (3) object to factual misrepresentations in the prosecutor’s closing argument.
Braswell also asserted that the Commonwealth withheld exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). The PCRA court denied the petition after an evidentiary
hearing; the Superior Court affirmed; and the Pennsylvania Supreme Court denied allocatur.
In his pending habeas petition and later-filed supplemental memorandum, Braswell
reasserts the above-referenced ineffectiveness and Brady claims, and also asserts a claim of
prosecutorial misconduct. Magistrate Judge Wells recommends that we (1) deny the
ineffectiveness claim concerning alibi witnesses as reasonably rejected by the state court, (2)
dismiss the prosecutorial misconduct claim as unexhausted and procedurally defaulted, and (3)
dismiss the three remaining claims as untimely because they were first asserted in the supplemental

2.

The Report and Recommendation of Magistrate Judge Wells is APPROVED and
ADOPTED.

memorandum, which Braswell filed beyond the one-year limitations period in 28 U.S.C. § 2244(d).
Braswell objects to all of these recommendations. In reviewing the objections, we “make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).
Petitioner first argues that the state court’s rejection of his ineffectiveness claim grounded
on counsel’s failure to call alibi witnesses Tilley and Lloyd was an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984), because it rested on an unreasonable determination
of the facts. See 28 U.S.C. § 2254(d)(2). In order to resolve this ineffectiveness claim, the PCRA
court held an evidentiary hearing and heard testimony from Braswell, his two trial attorneys,
Tilley, and Lloyd. Primary trial counsel testified that Braswell did not tell him prior to trial that
there were any potential alibi witnesses. (N.T. 6/17/2022, Docket No. 14-7, at 148-149, 157.)
Counsel nevertheless interviewed both Tilley and Lloyd based on information that they had been
with Petitioner at some point that evening. (Id. at 169-70.) According to counsel, neither Tilley
nor Lloyd could provide any relevant information about the shooting, much less information that
would support an alibi defense. (Id. at 149-50, 171-72.) Counsel further testified that both
individuals asked what they could say to help Braswell, suggesting their willingness to commit
perjury. (Id. at 172-73.) In contrast, Tilley and Lloyd testified that when the gunshots began,
they were with Braswell outside the River Deck Club, not at the site of the shooting. (Id. at 1416, 54-56.) They further testified that they told these facts to Braswell’s counsel and/or his
associate prior to trial but were never called to testify at trial. (Id. at 19-20, 39, 56-59.)
In weighing the respective credibility of the witnesses, the PCRA court observed that
Tilley’s and Lloyd’s purported alibi testimony was contradicted by four witnesses, all of whom
identified Braswell as the shooter. (PCRA Op., Docket No. 14-3, at 20.) It also observed that
Tilley’s and Lloyd’s testimony that they were with Braswell directly outside of the River Deck
club when the shooting began was not even consistent with Braswell’s own hearing testimony that
he, Tilley, and Lloyd were in a parking lot across the street from the shooting when the first shots
rang out. (Id.) Finding primary trial counsel’s testimony to be credible and declining to credit
Tilley’s and Lloyd’s testimony, the PCRA court concluded that Braswell had failed to present
credible evidence that counsel knew that Tilley and Lloyd were alibi witnesses, and also concluded
that counsel “properly refused to suborn perjury” by calling Tilley and Lloyd as witnesses at trial.
(Id. at 17.) Accordingly, the PCRA court rejected Braswell’s claim that counsel was ineffective
in failing to call Tilley and Lloyd at trial.
In her Report and Recommendation, Magistrate Judge Wells recommends that the PCRA
court reasonably concluded that Braswell could not prevail on this ineffective assistance of counsel
claim because the evidence demonstrated that trial counsel performed reasonably by interviewing
Tilley and Lloyd and then refusing to let them commit perjury. (R&R at 12-13); see Strickland,
466 U.S. at 688 (requiring petitioner seeking to prove ineffective assistance of counsel to show
that counsel’s representation “fell below an objective standard of reasonableness”). In his
Objections, Braswell urges us to reject this recommendation and to conclude instead that the record
as a whole demonstrates that Tilley and Lloyd were credible alibi witnesses who counsel should
have called at trial.
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3.

The Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is
DENIED.

4.

As Petitioner has not made a substantial showing of the denial of a constitutional

When considering whether a state court has unreasonably determined facts, we must
give substantial deference to the state court’s factual determinations, presuming them to be correct,
and requiring petitioner to disprove them with clear and convincing evidence. 28 U.S.C. §
2254(e)(1). Indeed, “a decision adjudicated on the merits in a state court and based on a factual
determination will not be overturned on factual grounds unless [it is] objectively unreasonable in
light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S.
322, 340 (2003) (citations omitted). Here, Braswell essentially argues that it was objectively
unreasonable for the PCRA court to find Tilley’s and Lloyd’s hearing testimony to be incredible
because both individuals had “clean records” whereas other trial witnesses who implicated
Braswell in the shooting did not. (Pet’r’s Objs. at 1.) However, the PCRA court amply explained
its decision not to credit Tilley’s and Lloyd’s testimony, and the mere fact that Tilley and Lloyd
did not have criminal records does not undermine that decision, much less constitute clear and
convincing evidence that the credibility determinations were wrong. We thus reject Braswell’s
contention that the PCRA court rejected his ineffectiveness claim based on an objectively
unreasonable credibility determination, and we overrule his objection to the Magistrate Judge’s
recommendation concerning that claim.
Braswell also objects to the Magistrate Judge’s recommendation that the remaining claims
in his habeas petition are either untimely or unexhausted, arguing that the Magistrate Judge failed
to consider evidence that he is actually innocent of the crimes charged and that he should therefore
be excused from the time limitations and exhaustion requirements. “A petitioner who is asserting
his ‘actual innocence of the underlying crime . . . must show “it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence” presented in his habeas
petition.’” Hubbard v. Pinchak, 378 F.3d 333, 339 (3d Cir. 2004) (alteration in original) (quoting
Calderon v. Thompson, 523 U.S. 538, 559 (1998)). Here, the only “new” evidence in connection
with Petitioner’s habeas petition are affidavits and testimony from Tilley and Lloyd, the content
of which the PCRA court did not credit. Other evidence to which Braswell points, e.g., that (1)
the firearm was never recovered, (2) a witness stated that the shooter wore tan pants and Braswell
was wearing jeans, and (3) Braswell had no gunshot residue on him (see N.T 6/17/2022, at 15657), was presented to the jury at trial and was insufficient to convince the jury to find him not
guilty. Accordingly, Braswell has not met his burden of establishing actual innocence that
relieves him of the timeliness and exhaustion requirements. We therefore overrule his Objection
to the Magistrate Judge’s recommendation that his remaining habeas claims are either untimely or
procedurally defaulted. For all of these reasons, we overrule Braswell’s Objections in their
entirety, and we approve and adopt the R&R.
3

right or demonstrated that a reasonable jurist would debate the correctness of this
ruling, the Court declines to issue a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c)(2).
BY THE COURT:
/s/ John R. Padova, J.
John R. Padova, J.

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