                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 16-1729
                                   _____________

                                 JEROME GIBSON,

                                        Appellant

                                          v.

       SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
                   SUPERINTENDENT GREENE SCI;
                ATTORNEY GENERAL PENNSYLVANIA;
                DISTRICT ATTORNEY BUCKS COUNTY
                           ____________

                On Appeal from the United States District Court for the
                          Eastern District of Pennsylvania
                             (D.C. No. 2:10-cv-00445)
                       District Judge: Hon. Stewart Dalzell

                              Argued: December 12, 2017

           Before: CHAGARES, RESTREPO, and FISHER, Circuit Judges.

                              (Filed: December 22, 2017)


Samuel J.B. Angell (ARGUED)
Arianna J. Freeman
Helen A. Marino
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

      Counsel for Appellant
Karen A. Diaz
Stephen B. Harris (ARGUED)
Matthew D. Weintraub
Bucks County Office of District Attorney
Bucks County Justice Center
100 North Main Street
Doylestown, PA 18901

       Counsel for Appellees
                                       ____________

                                         OPINION
                                       ____________

CHAGARES, Circuit Judge.

       Defendant Jerome Gibson appeals from the District Court’s dismissal of his

petition for a writ of habeas corpus, brought under 28 U.S.C. § 2254, seeking relief from

his conviction after a jury trial in Pennsylvania state court. Gibson raises claims under

Brady v. Maryland, 373 U.S. 83 (1963), asserting that the prosecution withheld

impeachment evidence concerning numerous witnesses; a claim of ineffective assistance

of counsel based on trial counsel’s failure to cross-examine a witness about his inability

to identify Gibson at a pre-trial lineup; and a cumulative error claim asserting that the

combination of all the errors was prejudicial. Because none of these claims have merit,

we will affirm.




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              2
                                             I.

       We write for the parties and so recount only the facts necessary to our decision.

On September 29, 1994, shortly before 3:00 p.m., an assailant robbed and murdered

Robert Berger, the owner of Ascher Health Care Center, located on Mill Street in Bristol

Borough, Bucks County, Pennsylvania. Berger was shot three times — two .32 caliber

projectiles were found in his body — and approximately $1,400 and Berger’s .38 caliber

handgun were stolen. Two witnesses saw the robbery or its aftermath. Michael Segal,

who worked across the street from Ascher Health, saw the assailant struggle with Berger,

heard gunshots, and saw the assailant rifle through the cash register. Although unable to

see the assailant’s face, Segal observed his size and clothing, and testified that Gibson

matched that description. The other eyewitness — Alfonso Colon — lived above Ascher

Health and testified that after hearing gunshots, he went downstairs and saw Gibson

leaving Ascher Health while stuffing what appeared to be a handgun into his pants.

       Three days after the murder, detectives from the Bucks County District Attorney’s

Office interviewed Gibson, who denied that he had been in Bristol Borough on the day of

the murder. The detectives, however, had a surveillance photo showing that Gibson had

been in a bank in Bristol Borough that morning. On October 6, 1994, Gibson was

arrested and charged with the robbery and murder of Berger, a capital offense.

       The Commonwealth’s theory at trial was that Gibson needed money to buy a new

car and so decided to commit a robbery. Various witnesses testified that they saw Gibson

on the day of the murder in Bristol Borough and in the vicinity of Ascher Health with a

gun and wearing the hooded sweatshirt and baggy pants of the assailant; that Gibson had

                                             3
told them that he planned to commit a robbery and would kill the victim if needed; and

that Gibson confessed that he had committed the murder. The jury found Gibson guilty

of first-degree murder, robbery, and possession of instruments of crime.

       Gibson was sentenced to death, but during his first state post-conviction

proceeding under the Pennsylvania Post Conviction Relief Act, (“PCRA”), 42 Pa. Cons.

Stat. Ann. §§ 9541–46, his sentence was modified to life in prison in light of the trial

court’s finding that Gibson was mentally disabled. The remainder of his PCRA petition

was denied. Gibson filed his initial habeas petition on January 29, 2010, which he

supplemented on November 23, 2011 after uncovering new Brady material. The case

was then stayed as Gibson filed a second PCRA petition to exhaust his newly discovered

claims. This second petition was denied as untimely, the case returned to federal court,

and the Magistrate Judge issued a Report and Recommendation recommending dismissal

of the habeas petition. Gibson filed objections, and on February 29, 2016, the District

Court dismissed the petition. The court found that the Brady evidence was not

cumulatively material and that counsel’s assistance was not ineffective. The court also

declined to issue a Certificate of Appealability (“COA”). Gibson timely appealed, and

we granted a COA on fourteen of his Brady claims, an ineffective assistance of counsel

claim, and a cumulative error claim.




                                              4
                                           II.1

       We first address Gibson’s Brady claims, which relate to eight of the

Commonwealth’s witnesses: Eddie Jones, Glenn Pollard, Cyril Thomas, Paulinda

Moore, Kevin Jones, Eddie Gilbert, Sean Hess, and Herman Carrol.2 The District Court

did not conduct an evidentiary hearing, so our review of its Order denying habeas relief is

plenary as to both questions of law and fact. Slutzker v. Johnson, 393 F.3d 373, 378 (3d

Cir. 2004).3 To establish a Brady claim entitling him to relief, Gibson must show that (1)

the “evidence at issue [was] favorable” to him (that is, was exculpatory or impeaching),

(2) the “evidence [was] suppressed by the State, either willfully or inadvertently,” and (3)

he was prejudiced because the suppressed evidence was “material.” Strickler v. Greene,

527 U.S. 263, 281–82 (1999); Kyles v. Whitley, 514 U.S. 419, 432–34 (1995).

       Under Brady, the prosecution bears an affirmative duty to “to learn of any

favorable evidence known to the others acting on the government’s behalf in the case,


       1
         The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have
appellate jurisdiction to review the certified issues under 28 U.S.C. § 2253.
       2
         Gibson discusses a Brady violation concerning a ninth witness — Bernard
McLean — which the District Court rejected and which was not included in the COA.
Gibson asks us to consider it anyway, but has offered no reasoning beyond what he
argued when seeking a COA for why we were wrong to exclude McLean, and we find
none in the record. Cf. Gattis v. Snyder, 278 F.3d 222, 225 (3d Cir. 2002).
       3
         Normally, when we review a District Court’s resolution of a habeas petition that
followed a state post-conviction relief process, our de novo review of the petition is
constrained by the standards established under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) for review of state court merits decisions. However, the
District Court did not apply AEDPA to the Brady claims and neither party asserts that the
District Court erred in failing to do so. Although parties cannot waive the application of
AEDPA deference, see, e.g., Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009)
(collecting cases), we need not undertake the AEDPA analysis in the first instance,
because we agree that Gibson’s claims fail even under the more exacting de novo review.
                                             5
including the police,” and to provide it to the defense. Kyles, 514 U.S. at 437. Brady and

its progeny do not, however, impose a duty upon the prosecutor to uncover and disclose

“information possessed by other government agencies that have no involvement in the

investigation or prosecution at issue.” United States v. Pelullo, 399 F.3d 197, 216 (3d

Cir. 2005) (quoting United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003)). The

question of materiality is assessed in two parts. First, a court must “evaluate the tendency

and force of the undisclosed evidence item by item” in order to determine whether it

should be considered as part of the materiality analysis. Kyles, 514 U.S. at 436 n.10.

Second, it must consider the cumulative effect of all the suppressed evidence to

determine whether it together is material. Id. Evidence is material “if there is a

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

the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682

(1985). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in

the outcome.” Id. The materiality inquiry is not a sufficiency of the evidence test and the

fact that enough evidence remains to convict after excluding the tainted evidence is not a

reason to deny relief. Kyles, 514 U.S. at 434–35.

       The District Court found that the evidence concerning Cyril Thomas and Kevin

Jones was not favorable to Gibson and, although concluding that the Commonwealth had

suppressed evidence concerning the other six witnesses, determined that those violations

were not cumulatively material. Gibson challenges the District Court’s determinations

regarding Cyril Thomas and Kevin Jones, as well as its cumulative analysis

determination. Thus, even though the Commonwealth contests the District Court’s

                                             6
determinations regarding the other six witnesses, we need not decide whether the District

Court correctly assessed the evidence pertaining to them because — with the exception of

the Gilbert material, which we address separately along with the Cyril Thomas and Kevin

Jones evidence — we agree that the evidence was not cumulatively material.

                                               A.

                                               1.

       Thomas testified at trial that he received a .38 caliber revolver from Gilbert, who

in turn had received it from Gibson. Gibson argues that the prosecution withheld (1) a

note in Thomas’ juvenile probation file indicating that Bucks County Detective John

Mullin told the probation officer that if Thomas did not cooperate, then Mullin would

charge Thomas with possession of the weapon and (2) evidence that when Thomas was

arrested, police found 80 packets of cocaine on him. Gibson says that he could have used

this evidence to impeach Thomas’ motivations for testifying and to show that the

Commonwealth used threats of prosecution to gain cooperation.

       The District Court found no evidence suggesting that Thomas was threatened with

a weapons charge, and thus rejected Gibson’s assertion that the withheld evidence could

have impeached Thomas. It further concluded that Gibson’s claim based on the cocaine

report was untimely under AEDPA because Gibson knew about it in 2001 but failed to

raise it in his initial habeas petition, and it did not relate back to the initial petition. We

conclude that the District Court did not err in refusing to consider the evidence.

       Given no evidence that Thomas himself was threatened with prosecution for

possession of a weapon, there is no reason to believe that he was coerced to testify based

                                                7
on that uncommunicated threat, and so it would not be relevant information for

impeachment purposes. Moreover, it is unlikely that such evidence would be admissible

at trial, given that it relates to uncharged conduct. See Pa. R. Evid. 608(b). Although

inadmissible evidence can still be Brady material where it could lead to admissible

evidence, Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 309–10 (3d Cir. 2016) (en

banc), Gibson has failed to make such a connection. Mere speculation that the

suppressed evidence might have led to admissible evidence is insufficient to render

otherwise inadmissible evidence into Brady material. See United States v. Agurs, 427

U.S. 97, 109 (1976); United States v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (“We think it

unwise to infer the existence of Brady material based upon speculation alone.”).

       With regard to the evidence concerning the cocaine, we agree that its suppression

did not violate Brady, but for a reason other than that relied upon by the District Court.

See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (“We . . . may affirm the

District Court’s judgment on any basis supported by the record.”). Whether or not the

claim relates back to Gibson’s initial petition, the evidence is cumulative and thus

immaterial under Brady. Gibson argues that the evidence could have been used to

impeach Thomas and show that he testified in order to avoid facing charges. At trial, the

prosecution elicited testimony that Thomas had pending charges of aggravated assault

and attempted homicide stemming from the arrest during which the cocaine was found,

and Gibson’s counsel cross-examined Thomas regarding his cooperation with police

while in custody on those charges to “help [himself] out of a bad situation.” Appendix

(“App.”) 704–06. Thomas’ substantial motive to cooperate in the face of these serious

                                             8
charges was apparent; that he also might have faced drug charges would not have given

him a meaningfully greater incentive to cooperate. Such cumulative impeachment

evidence is “superfluous and therefore has little, if any, probative value” and is not to be

accorded any weight in our materiality analysis. Lambert v. Beard, 633 F.3d 126, 133

(3d Cir. 2011) (quoting Conley v. United States, 415 F.3d 183, 189 (1st Cir. 2005)),

vacated on other grounds, Wetzel v. Lambert, 565 U.S. 520 (2012).

                                             2.

       Kevin Jones testified at trial that in the Spring of 1994, Gibson told him that he

planned to commit a robbery in Bristol Borough and was prepared to kill the victim. He

added that he saw Gibson in Bristol Borough on the day of the murder and that, while in

prison a month before Gibson’s trial, Gibson confessed to the crime. Gibson claims that

the prosecution withheld a report authored by Bucks County Detective Robert Gergal

concerning his interview of Eric Jones (Kevin’s brother), which notes that Eric spoke to

police at Kevin’s behest and that Eric sought assistance with robbery charges in exchange

for his cooperation on the Gibson case. Gergal refused to offer a deal but noted that if

Eric’s information was helpful, the prosecutor could write to the sentencing judge.

Gibson says that this report could have been used to impeach Kevin (Eric did not testify)

because the fact that Kevin sent Eric to seek a deal suggests that Kevin had one, too.

       The District Court rejected the claim, finding no evidence that Eric reached any

deal and thus that the information would not have been useful in cross-examining Kevin.

We agree. The report is not relevant to whether Kevin got a deal; if anything, it suggests

that the prosecution was hesitant to strike deals in exchange for information. Gibson’s
                                              9
speculation about the implications of the document does not make this otherwise

irrelevant document “favorable” under Brady. See Ramos, 27 F.3d at 71.

                                            3.

      Gilbert testified that on the day of the murder, he saw Gibson with a substantial

amount of money and that Gibson explained that “he had to make a move, he needed

money.” App. 681. A few days later, Gibson told him that he had robbed “an old white

guy” in Bristol Borough, killed him after the man saw his face, and had used the money

to buy a car. App. 683–84, 686. Gilbert added that Gibson gave him two guns — one of

which was Gibson’s, and the other was Berger’s. Gibson claims that the prosecution

withheld evidence that Detective R.J. Mills of the Bristol Township Police and the DEA

were investigating Gilbert for drug sales and that weeks before the murder, Gilbert twice

sold crack cocaine to a confidential informant. Gibson argues that this could have been

used to impeach Gilbert because it showed an incentive to cooperate with the prosecutors.

      Based in part on its conclusion that the Bristol Township police were part of the

prosecution team because Detective Mills had brought witness Eddie Jones to the

attention of the prosecutors and had personally accompanied Jones to the interview, the

District Court found that police reports were suppressed and that the evidence was

favorable to Gibson because he could have used it to impeach Gilbert. We disagree.

      Even assuming that Detective Mills’ assistance in securing Eddie Jones’ testimony

renders the Bristol Township Police part of the Gibson prosecution team for all other

witnesses, these documents do not constitute Brady material because they could not have

been used to impeach Gilbert. For Gibson’s theory to succeed, Gilbert would have had to
                                           10
know that he was under investigation or that he had been caught selling drugs; otherwise,

he would have had no incentive to cooperate to avoid punishment on a crime he thought

he had perpetrated without detection. But nothing in the record indicates that Gilbert had

such knowledge. It is thus implausible that Gilbert was cooperating with the prosecution

to avoid criminal charges that he did not know he was facing, and he could not be

impeached on that basis. Gibson cites various cases that he says establish that failure to

disclose information about a pending investigation would violate Brady. However, none

of those cases involved a situation where the witness was unaware of the investigation.

                                            B.

       Gibson was not prejudiced by the suppressed evidence. To begin with, none of the

five impacted witnesses were particularly central to the prosecution’s case. For instance,

Eddie Jones, Moore, and Hess testified that Gibson told them that he planned to commit a

robbery, but so did untainted witness Kevin Jones. Similarly, Eddie Jones, Pollard, Hess,

and Carrol testified that Gibson admitted to them that he had committed the murder, but

so did untainted witnesses Kevin Jones, Gilbert, Bernard McLean, and Kenneth Johnson.

       Moreover, although the Court does not minimize the gravity of suppressing

evidence — especially evidence of a highly probative nature such as that concerning

Moore’s mental health and Pollard’s status as a serial informant who had reached a deal

to testify — both Moore and Pollard’s testimonies were already so thoroughly impeached

that the jury was in any event unlikely to have credited them. Pollard’s testimony was

that he overheard Gibson confessing to the murder to David Margerum and that he

“wanted to help [himself] out” by reporting it to authorities. App. 793. However,

                                            11
Margerum — who had no apparent bias — testified that this conversation never took

place. Moore’s testimony revealed a history of unremitting drug and alcohol abuse, that

she had given police inconsistent statements about her conversation with Gibson, and that

she had an incentive to testify in order “to get out of jail” after she was arrested on a

robbery charge. App. 653–55. It is simply not conceivable that whatever modicum of

credibility they retained was what the jury relied upon in finding Gibson guilty. See, e.g.,

Landano v. Rafferty, 856 F.2d 569, 574 (3d Cir. 1988) (considering impeachment

evidence immaterial under Brady where the “marginal effect in diminishing [the

witness’s] perceived credibility would have been negligible”).

       The suppressed evidence relating to Herman Carrol, concerning the possibility that

he had arranged a deal in exchange for his testimony, was not so different in kind than the

testimony actually elicited at trial which raised a serious implication that such a deal had

been arranged. Cf. Dennis, 834 F.3d at 300 (“[W]e have granted habeas relief on the

basis of a ‘significant difference’ between the suppressed impeachment and other types of

impeachment evidence used at trial.” (quoting Slutzker, 393 F.3d at 387)). The final

pieces of evidence — that Eddie Jones was a paid police informant and that police

forcibly kicked in Hess’s mother’s door when they arrested Hess — suggest that Jones

and Hess had reason to testify in favor of the prosecution. But the Hess evidence was not

particularly powerful, in that it required a number of inferential leaps to get from the




                                              12
manner in which the police entered his mother’s house to the conclusion that Hess only

testified because of police coercion.4

       Finally, aside from the limited impact that the suppressed impeachment evidence

would have had on the relevant witness’s credibility, the Commonwealth adduced

substantial independent evidence establishing Gibson’s guilt. Pamela Harrison —

Gibson’s cousin — testified that Gibson arrived at her house just after the murder

occurred wearing a hooded sweatshirt and sweating heavily. Harrison said that Gibson

asked to use her bathroom to wash up, took off his sweatshirt to wash it, and was carrying

a gun. She added that he left the sweatshirt with her and returned later that night to pick

it up. 5 Added to this, Gibson lied to police about being in Bristol Borough on that day,

and two untainted witnesses placed Gibson on Ascher Health’s block at the time of the

murder. Lastly, Segal testified that he saw Berger struggling with an assailant in a dark

hooded sweatshirt who matched Gibson’s size, build, and complexion, and Colon

testified that after he heard the gunshots, he saw Gibson leave the murder scene.

       In light of the weight of the testimony showing that Gibson was at the scene of the

crime; had a motive; had said he planned to commit a robbery; had lied to police about



       4
         As to Jones, the Commonwealth asserts that they had disclosed prior to trial that
Jones was an informant, but not that he was a paid informant. Gibson counters that the
Commonwealth fails to cite to record evidence supporting this disclosure, but does not
expressly deny that such information was provided.
       5
         Gibson attempted to undercut Harrison’s testimony by implying that the police
coerced her by threatening to investigate her brother’s involvement in the murder or by
prosecuting her and her mother for accepting proceeds from the robbery. However, no
evidence supports these allegations aside from Gibson’s own testimony and Harrison
denies them.
                                             13
his whereabouts; was seen just after the murder carrying a gun, sweating, and trying to

get rid of the clothing that the suspect was wearing; had admitted to numerous individuals

that he committed the murder; and was identified in possession of a gun matching the

murder weapon as well as Berger’s weapon, there is no reasonable probability that the

jury would have come to a different verdict based on the further impeachment of two

already incredible witnesses and the minor impeachment of three others, whose testimony

was amply corroborated by other untainted accounts. Because the evidence does not “put

the whole case in such a different light as to undermine confidence in the verdict,” we

agree that there was no Brady violation.6 Kyles, 514 U.S. at 435

                                              III.

       Gibson next argues that counsel’s assistance was ineffective because he failed to

cross-examine Segal on his inability to identify Gibson in a pre-trial lineup. We disagree.

       We review ineffective assistance of counsel claims based on the test set forth in

Strickland v. Washington, 466 U.S. 668 (1984), which has two requirements: that

“counsel’s representation fell below an objective standard of reasonableness,” id. at 688,

and that but for the deficient representation, it was reasonably probable that “the result of




       6
          Although we find that in this case the multiple items of suppressed evidence
were not cumulatively material, we emphasize that “[t]he prudent prosecutor will resolve
doubtful questions in favor of disclosure,” Kyles, 514 U.S. at 439 (quoting Agurs, 427
U.S. at 108), and “[s]uch disclosure will serve to justify trust in the prosecutor as ‘the
representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not
that it shall win a case, but that justice shall be done,’” id. (quoting Berger v. United
States, 295 U.S. 78, 88 (1935)).
                                               14
the proceeding would have been different,” id. at 694. We may decide a Strickland claim

based on either prong of the analysis. See id. at 697.

       Segal never claimed to have been able to identify the assailant positively; on direct

examination, he forthrightly said that he could not make a facial identification. Indeed,

when delivering his jury instructions, the judge reiterated that:

       Now, with respect to Mr. Segal, of course, he didn’t really make an identification.
       As you will recall, here in court he was unable to identify the defendant as the
       person he says he saw engaged in the robbery in the store, and the person he saw
       leaving. . . . All he did was give a description, the police a description, and maybe
       he gave a couple different descriptions.

App. 1008–09. The jury was thus well aware that Segal could not identify Gibson and

that his descriptions of the assailant had shifted. Gibson bears the burden of establishing

prejudice, Strickland, 466 U.S. at 696, and, having failed to do so, his claim fails.

                                            IV.

       Gibson finally argues that all of these alleged errors cumulatively prejudiced him.

“The cumulative error doctrine allows a petitioner to present a standalone claim asserting

the cumulative effect of errors at trial that so undermined the verdict as to constitute a

denial of his constitutional right to due process.” Collins v. Sec’y of Pa. Dep’t of Corr.,

742 F.3d 528, 542 (3d Cir. 2014). Neither Gibson’s Brady nor Strickland claims resulted

in any prejudice, and they no more do so when considered together. Each witness who

was impacted by a Brady violation was either already incredible or else unnecessary to

the jury’s determination. The addition of counsel’s failure to cross-examine Segal does

not move the needle because it did not plausibly have any effect on the jury’s decision,

let alone a significant one. There is no likelihood that the cumulative impact of the errors

                                             15
“had a substantial and injurious effect or influence” on the jury’s verdict, id., and so

Gibson’s claim fails.

                                             V.

       For the foregoing reasons, we will affirm the District Court’s order.




                                             16
