EBO v. TICE et al

1

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MATTHEW EBO, )
)
Petitioner, ) Civil Action No. 2:22-cv-930
)
v. )
) Magistrate Judge Patricia L. Dodge
DISTRICT ATTORNEY OF )
ALLEGHENY COUNTY, et al., )
)
Respondents. )

MEMORANDUM

Before the Court
1
is the counseled Petition for a Writ of Habeas Corpus (ECF 1) filed by
state prisoner Matthew Ebo under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). For the reasons below, the Court will deny the Petition and
deny a certificate of appealability.
I. Relevant Background
On May 16, 2011, Todd Mattox was shot to death in the parking lot of the Leechburg
Garden apartments, located in Penn Hills. Mattox’s assailants shot him three times—once in the
head, once in the upper back, and once in the left buttock. From the statements given by witnesses,
the police learned that two black males were involved in the shooting. One or both assailants were
also seen rifling through Mattox’s pockets. They then fled the scene in Mattox’s car, which was
found the next day on Hill Street in Penn Hills. It had been set on fire.
None of the witnesses interviewed by either Penn Hills police officers or Allegheny County
detectives initially identified Mattox’s assailants. The trial court described how Ebo and his co-

1
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to have a United States
Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

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defendant, Thaddeus Crumbley, came to be charged with robbing and killing Mattox, stealing his
vehicle, and related crimes:
[Ebo and Crumbley] became suspects in the Todd Mattox murder following a string
of events occurring over the course of the several months following the slaying. On
June 2, 2011, Defendant Crumbley was involved in a shooting in Swissvale, in
which he was shot several times. (T.R. 8/20/12, pp. 855-858). Two types of shell
casings were recovered from the scene, including the same type of shell casings
that were found at the Todd Mattox murder scene, those being from a .40 caliber
Smith and Wesson Springfield Armory pistol. (T.R. 8/20/12, pp. 885-886). A friend
of Defendant Crumbley’s, Asa Thompkins, was present at the scene of the shooting.
(T.R. 8/20/12, pp. 847, 852). One week later, on June 9, 2011, Asa Thompkins was
pulled over for a traffic stop in South Park. (T.R. 8/3/12, p. 20; T.R. 8/20/12,
p. 1009). A Springfield Armory pistol was found under the front passenger seat of
the car, and Mr. Thompkins said that the gun was his. (T.R. 8/20/12, pp. 1010-
1011).
On September 6, 2011, Thomas Julian Brown wrote a letter from the
Allegheny County jail to Detective Garlicki, of the Allegheny County police,
asking that he be put in touch with the detective who was handling the Todd Mattox
homicide. (T.R. 8/20/12, p. 697). He indicated that he was willing to provide
information on that case. (T.R. 8/20/12, pp. 697-698). Mr. Brown further indicated
that he had heard, several months earlier, Defendant Crumbley saying that he had
“smoked” Todd Mattox. (T.R. 8/20/12, pp. 698-699). Mr. Brown’s cousin was Asa
Thompkins, and Mr. Brown’s son, Leron Brown, was a friend of Defendant
Crumbley. (T.R. 8/20/12, pp. 695-696). Leron Brown was found shot dead in
January or February 2012, inside a car with Roman Herring, a cousin of Defendant
Crumbley’s, who was also found dead in that same car. (T.R. 8/20/12, pp. 948,
991). Roman Herring was allegedly involved in the burning of a vehicle on Hill
Street in Penn Hills. (T.R. 8/20/12, p. 945).
Defendant Crumbley became a suspect in the Todd Mattox murder in
September 2011, after Detective Anthony Perry received a report connecting the
handguns used in the Todd Mattox homicide with the weapons used in the
Swissvale shooting on June 2, 2011, and after witness Thomas Brown came
forward with information about the homicide. (T.R. 8/20/11, pp. 1017, 1020, 1021,
1025). Defendant Ebo also became a suspect at that time. (T.R. 8/20/11, p. 1017).
(ECF 10-37 at 7 -8.)
Saday Robinson lived in the Leechburg Garden apartments in May 2011 and witnessed
Mattox’s murder. She was around 20 years old at the time. When she was first interviewed shortly
after the murder, she told investigators she saw two men shoot Mattox and speed off in a white
car. (Trial Tr. Vol. I at 526, 536.) She described one of the assailants as being light-skinned with
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a medium build. (Id. at 72.) The other assailant she described as dark-skinned and wearing a hoody.
(Id. at 72, 571-72.) She also said that she could pick out the light-skinned assailant but not the
dark-skinned one. (Id. at 575.) At the end of the interview, however, Robinson stated she could
identify both individuals if she saw them again. (Id. at 594.)
In September 2011, Robinson was shown a photo array containing Crumbley’s picture, and
in November 2011 she was shown arrays containing Crumbley’s and Ebo’s pictures. On neither
date did she select either of them from the arrays. (Id. at 356-57, 548-49.)
In early December 2011, investigators showed Richard Carpenter, then an inmate in state
custody who claimed to have knowledge of the shooting, arrays that included Ebo’s and
Crumbley’s photographs. (Id. at 339.) Carpenter identified Ebo and Crumbley as Mattox’s
shooters. (Id. at 365.)
Thereafter, warrants were issued for Crumbley’s and Ebo’s arrests. (Id. at 366-67.) Their
joint trial was scheduled to begin in August 2012. Attorney Randall McKinney (“trial counsel”)
represented Ebo. Attorney Wendy Williams represented Crumbley.
In July 2012, and after Robinson understood that Ebo and Crumbley were in custody,
investigators showed her arrays containing their pictures. Robinson identified them as the men she
saw shoot Mattox. (Id. at 183-84, 338.)
Ebo and Crumbley filed a pre-trial motion to suppress Robinson’s identification in which
the argued that it was inherently unreliable and tainted under the circumstances. Robinson,
Detective Anthony Perry, and Detective Steve Hitchings testified at the suppression hearing, which
was held on August 21 and 22, 2012. (Trial Tr. Vol. I at 28-217.) At the conclusion of the hearing
the trial court denied the suppression motions. (Id. at 215.)
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When the trial started the trial court had not yet ruled on the admissibility of Robinson’s
identifications and, therefore, precluded the parties from referencing her in their opening
statements. (Trial Tr. Vol. I at 96.) During opening arguments the prosecutor referenced
Carpenter’s statements to the detective about his eyewitness accounts of the shooting as well as
his positive identifications of the defendants. (Id. at 131-32.)
When Robinson testified at the trial, she made in-court identifications of both Ebo and
Crumbley as Mattox’s shooter. (Id. at 527.) The Commonwealth also introduced evidence of her
July 2012 identifications of them from the photo arrays. She was cross-examined extensively as to
the credibility of her identifications. (Id. at 561-635, 641-47.)
The trial court summarized Robinson’s trial testimony as follows:
Robinson was shown photo arrays containing photographs of the Defendants on
September 16, 2011 (Defendant Crumbley only) and November 4, 2011 (both
Defendants). (T.R. 8/20/12, pp. 356-357). However, on neither date did she select
either of the Defendants from the arrays, although she testified that she was aware
at the time of viewing the arrays that the Defendants were present in them. (T.R.
8/20/12, pp. 548-549). She indicated that she did not make the identifications on
these dates because she was afraid, and her family and friends were telling her not
to get involved. (T.R. 8/20/12, p. 548). Ms. Robinson also indicated in her
testimony that she identified someone as “looking like” Defendant Ebo during one
of the times when she was presented with photo arrays. (T.R. 8/20/12, p. 548). She
indicated she did this deliberately. (T.R. 8/20/12, p. 549). However no detective
involved with presenting her with photo arrays ever indicated that there had been
an identification of anyone on either September 16, 2011 or November 4, 2011.
(T.R. 8/20/12, pp. 349-356, 337-344). Ms. Robinson moved out of Leechburg
Gardens in July 2011. She left the Allegheny County area and moved across the
country in October 2011. (T.R. 8/20/12, p. 546). She returned to this area to testify
upon the request of the police, who informed her that they had suspects in custody.
(T.R. 8/20/12, p. 546). She was shown photo arrays on July 24, 2012, at which time
she identified Defendant Crumbley after an approximately fifteen (15) second
pause, and she identified Defendant Ebo immediately. (T.R. 8/20/12, pp. 540-543).
(ECF 10-37 at 8-9.)
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The Commonwealth subpoenaed Carpenter to testify at the trial but he did not appear.
According to Ebo, several law enforcement witnesses testified to Carpenter’s account of the
shooting and his identification of the defendants. (ECF 1, ¶ 45.)
The trial concluded on September 4, 2012. The jury found Ebo and Crumbley each guilty
of first-degree murder, robbery (serious bodily injury), robbery (motor vehicle), conspiracy to
commit murder, conspiracy to commit robbery, and carrying a firearm without a license. (Trial Tr.
Vol. II at 1508-09.) The trial court, in a bench trial, also convicted each of them of possession of
a firearm prohibited. (Id. at 1512-13.)
The trial court sentenced Ebo and Crumbley to the mandatory term of life imprisonment
on their respective first-degree murder convictions. It also sentenced each of them to aggregate,
consecutive terms of imprisonment on their remaining convictions. Specifically, the trial court
sentenced Ebo to life without the possibility of parole to be followed by a term of 46 to 92 years
of incarceration. Commonwealth v. Ebo, 2017 WL 2684563, at *1 (Pa. Super. Ct. June 21, 2017).
Thereafter, Crumbley file a post-trial motion in which he claimed, among other things, that
he was entitled to a new trial based on after-discovered evidence that Robinson recanted her trial
testimony. (ECF 10-21.) Ebo, through new counsel (Attorney Victoria H. Vidt), joined this motion.
The trial court held a hearing on Crumbley’s and Ebo’s motion on October 25, 2015.
Robinson, Barry Fox (a defense investigator) and Detective Perry testified. Robinson withdrew
the recantation of her trial testimony, stated the testimony she gave at trial was truthful, and
explained that she had been threatened by associates of Crumbley and Ebo to provide them with
favorable post-trial evidence. Robinson also stated that she had been offered $25,000 to recant her
trial testimony. In its subsequent memorandum order denying Ebo and Crumbley’s motion for a
new trial, the trial court held that “a new trial is not warranted because Ms. Robinson credibly
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recanted her unsworn recantation statements, and the court finds that her explanation for why she
originally made the statements and why she recanted them to be credible, believable and
trustworthy.” (ECF 10-44 at 3-6.)
Ebo, through Attorney Vidt, filed a direct appeal in which he raised the following claims:
I. The trial court abused its discretion when it failed to award [Ebo] a new trial based
upon the recantation of the sole witness connecting him to the crime, Saday
Robinson.

II. The evidence that [Crumbley] was involved in gun violence two weeks after the
homicide was inadmissible evidence of other bad acts against [Ebo]. Also, the
irrelevant evidence had no connection to [Ebo] and it should not have been
presented as evidence that [Ebo] was somehow involved in the homicide.

III. The highly suggestive pretrial identification procedure tainted [Robinson’s]
identification of [Ebo] and any information about [her] photo array identification
and her subsequent in-court identification should have been suppressed.

IV. The trial court’s imposition of the mandatory minimum sentence under 42 Pa.C.S.
§ 9712, an unconstitutional statute, was illegal since the factfinder never found the
required facts beyond a reasonable doubt for the imposition of the mandatory as
required by the United States Supreme Court in Alleyne v. United States, 570 U.S.
99 (2013).

(ECF 10-39 at 2-3.)
In 2017, the Superior Court issued a decision in which it affirmed Ebo’s convictions.
Commonwealth v. Ebo, 2017 WL 2684563, at *1-7 (Pa. Super. Ct. June 21, 2017). The Superior
Court held that Ebo’s sentencing-phase Alleyne claim had merit, however. It therefore remanded
the case to the trial court for Ebo to be resentenced at counts three (robbery of a motor vehicle)
and six (conspiracy to commit robbery). Id., at *7-8. The Pennsylvania Supreme Court denied
Ebo’s petition for allowance of appeal. (ECF 10-55 at 1.)
In February 2018, the trial court resentenced Ebo in accordance with the Superior Court’s
directive. His aggregate sentenced remained the same (life in prison without the possibility of
parole followed by a consecutive term of 46 to 92 years of incarceration). (ECF 10-58 at 1-2.)
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Ebo, through new counsel (Attorney Diana Stavroulakis) then pursued relief under the
Pennsylvania’s Post Conviction Relief Act (“PCRA”). (ECF 10-66 at 1-17; ECF 10-68.) He
contended that his convictions must be vacated because evidence supplied by an alleged newly
discovered witness, Robert Raglin, established that he is actually innocent. (Id. at 10-12.)
Crumbley raised the same claim in his PCRA proceeding.
Under Pennsylvania law a state prisoner typically must litigate all claims of trial counsel’s
ineffective assistance in a PCRA proceeding. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)
(abrogated in part on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). Ebo
did not assert in his PCRA proceeding that his trial counsel (Attorney McKinney) was ineffective,
however.
The trial court (now the PCRA court) held a joint hearing on Ebo’s and Crumbley’s PCRA
petitions on May 10, 2019. Raglin testified at this hearing. Following it, the PCRA court issued a
memorandum order denying both Ebo’s and Crumbley’s requests for PCRA relief. (ECF 10-70 at
1- 17.) Ebo, through counsel, appealed to the Superior Court and raised the following three grounds
for relief:
I. The PCRA court erred in denying relief where Ebo established his after-
discovered evidence claim through Raglin’s exculpatory eyewitness
testimony.

II. The PCRA court erred in denying relief by incorrectly concluding that
Raglin’s testimony was offered solely to impeach Robinson’s
testimony, when in fact it was being offered as substantive, exculpatory
evidence establishing Ebo’s innocence.

III. The PCRA court erred in denying relief because Raglin’s testimony is
likely to compel a different verdict at a new trial.

(ECF 10-74 at 2.)
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In 2021, the Superior Court issued Commonwealth v. Ebo, 2021 WL 652992 (Pa. Super. Ct.
Feb. 19, 2021) affirming the PCRA court’s decision. The Pennsylvania Supreme Court denied his
subsequent petition for allowance of appeal. (ECF 10-78.)
Ebo then filed in this Court, through new counsel, the Petition for a Writ of Habeas Corpus
(ECF 1) under 28 U.S.C. § 2254 in which he raises the following two grounds for relief.
Ground 1 “[T]rial counsel was ineffective for failing to object to any reference
to Carpenter’s alleged identification of [Ebo] or request a mistrial
after Carpenter failed to appear;” and,

Ground 2 “Trial counsel was ineffective for failing to ensure that a proper
Kloiber instruction was given to the jury.”
2

(ECF 1 at 11; id. at 13-24.)
Respondents have filed the Answer (ECF 10) and the state court record and Ebo has filed
his Reply (ECF 16).
II. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to
prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state
prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the
Constitution...of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable.
Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
It is Ebo’s burden to prove that he is entitled to the writ. See, e.g., Vickers v. Sup’t
Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must

2
In Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), the Pennsylvania Supreme Court held that “where the
witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements
as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions...the
court should warn the jury that the testimony as to identity must be received with caution.” 106 A.2d at 826-27 (internal
citations omitted).
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satisfy before he can receive habeas relief on a claim. For example, as explained below, Ebo must
have exhausted his available state court remedies with respect to each of his claims or met the
difficult burden of showing that the Court must excuse his failure to do so. Ultimately, however,
Ebo cannot receive federal habeas relief unless he shows that he is in custody in violation of his
federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. The Prohibition on Evidentiary Development
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) put into place
“even more ‘stringent requirements’” regarding evidentiary development than those that were in
place before its enactment. Shinn v. Ramirez, 596 U.S. 366, 381 (2022) (quoting Williams v.
Taylor, 529 U.S. 420, 433 (2000)). AEDPA, as codified at 28 U.S.C. § 2254(e)(2), provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that–
(A) the claim relies on–

(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.

(Emphasis added).
Importantly, a petitioner cannot avoid § 2254(e)(2)’s requirements by faulting his former
counsel for failing to develop the evidence he now wants to present to support any of his federal
habeas claims. Shinn, 596 U.S. at 382 (“state postconviction counsel’s ineffective assistance in
developing the state-court record is attributed to the prisoner.”). Thus, if a petitioner faults PCRA
counsel for failing to litigate a claim in state court, the federal habeas court is prohibited from
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holding an evidentiary hearing or otherwise expanding the state court record to introduce evidence
to support that claim unless the petitioner has satisfied one of § 2254(e)(2)’s two narrow exceptions
to AEDPA’s general bar on evidentiary hearings. Id. at 382-84. See also Williams v. Sup’t
Mahanoy SCI, 45 F.4th 713, 724 (3d Cir. 2022) (AEDPA’s prohibition is not limited to formal
evidentiary hearings and applies whenever the petitioner wants to expand the record beyond that
developed in state court).
In the rare case in which § 2254(e)(2) does not apply because the petitioner is not at fault
for “fail[ing] to develop the factual basis of a claim in State court proceedings,” it is within the
district court’s discretion whether to hold an evidentiary hearing on a claim under Rule 8 of the
Rules Governing Section 2254 Cases in the United States District Courts. See, e.g., Schriro v.
Landrigan, 550 U.S. 465, 473-75 (2007).
C. Ebo’s Claims
As set forth above, Ebo asserts two claims of ineffective assistance of trial counsel in his
Petition, neither of which he litigated in state court when he had the opportunity to do so in his
PCRA proceeding. Respondents contend that because Ebo did not exhaust his available state court
remedies with respect to his claims he procedurally defaulted them.
The “exhaustion doctrine” requires that a state prisoner raise his federal habeas claims in
state court through the proper procedures before he litigates them in a federal habeas petition.
28 U.S.C. § 2254(b), (c); see, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is
“grounded in principles of comity; in a federal system, the States should have the first opportunity
to address and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson,
501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to
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resolve federal constitutional claims before those claims are presented to the federal courts[.]”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
A petitioner must have “invoke[d] one complete round of the State’s established appellate
review process[,]” to satisfy the exhaustion requirement. Id. In Pennsylvania, this requirement
means that a petitioner in a non-capital case such as this one must have first presented every federal
constitutional claim raised in his federal habeas petition to the Superior Court. See, e.g., Lambert
v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
3

The Supreme Court has explained:
State prisoners...often fail to raise their federal claims in compliance with
state procedures, or even raise those claims in state court at all. If a state court would
dismiss these claims for their procedural failures, such claims are technically
exhausted because, in the habeas context, “state-court remedies are. . . ‘exhausted’
when they are no longer available, regardless of the reason for their unavailability.”
Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S. Ct. 2378, 165 L. Ed.2d 368 (2006).
But to allow a state prisoner simply to ignore state procedure on the way to federal
court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S.
at 732, 111 S. Ct. 2546. Thus, federal habeas courts must apply “an important
‘corollary’ to the exhaustion requirement”: the doctrine of procedural default.
[Davila v. Davis, 582 U.S. 521, 527 (2017)]. Under that doctrine, federal courts
generally decline to hear any federal claim that was not presented to the state courts
“consistent with [the State’s] own procedural rules.” Edwards v. Carpenter, 529
U.S. 446, 453, 120 S. Ct. 1587, 146 L. Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity.
Exhaustion affords States “an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3, 102
S. Ct. 18, 70 L. Ed.2d 1 (1981) (per curiam), and procedural default protects against
“the significant harm to the States that results from the failure of federal courts to
respect” state procedural rules, Coleman, 501 U.S. at 750, 111 S. Ct. 2546.
Ultimately, “it would be unseemly in our dual system of government for a federal
district court to upset a state court conviction without [giving] an opportunity to the

3
In 2000, the Pennsylvania Supreme Court issued In re: Exhaustion of State Remedies in Criminal and Post
Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (“Order 218”). It provides that state prisoners
on direct appeal of a criminal case or in a PCRA proceeding need not petition for allowance of review with the
Pennsylvania Supreme Court after the Superior Court denies a claim in order to exhaust a claim for the purposes of
subsequent federal habeas review. In Lambert, the Court of Appeals held that Order 218 was sufficient to render
discretionary review before the Pennsylvania Supreme Court “unavailable” to state prisoners on direct appeal and in
a PCRA appeal. Therefore, Pennsylvania state prisoners challenging their judgments of sentence in a federal habeas
case need only show that they presented their federal habeas claims to the Superior Court. Lambert, 387 F.3d at 231-
34.

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state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200,
204, 70 S. Ct. 587, 94 L .Ed. 761 (1950), and to do so consistent with their own
procedures, see Edwards, 529 U.S. at 452-453, 120 S. Ct. 1587.
Shinn, 596 U.S. at 378-79.
Thus, the doctrine of procedural default, like the doctrine of exhaustion, is “grounded in
concerns of comity and federalism.”
4
Coleman, 501 U.S. at 730. For a Pennsylvania prisoner in a
non-capital case, it provides that an individual defaults a federal habeas claim if he: (1) failed to
present it to the Superior Court and cannot do so now because the state courts would decline to
address the claim on the merits as state procedural rules (such as the state’s waiver rules or the
PCRA’s one-year statute of limitations) bar such consideration; or (2) failed to comply with a state
procedural rule when he presented the claim to the state court, and for that reason the Superior
Court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529
U.S. 446, 451 (2000); O’Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting)
(describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72
(1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
The first scenario is what has occurred here. As Respondents correctly point out, Ebo did
not exhaust either of his claims because he did not raise them in state court under procedures that
were available during his PCRA proceeding. He cannot return to state court and litigate them now
because they would be barred by state waiver rules and by the PCRA’s one-year statute of
limitations. Accordingly, Ebo has procedurally defaulted each of these claims.

4
The procedural default doctrine became all the more important after the enactment of AEDPA, which put into place
the highly deferential standards of review that a federal court must apply to a state court’s adjudication of a petitioner’s
federal constitutional claims and to its findings of fact. 28 U.S.C. § 2254(d), (e). As explained below, Ebo asserts that
he can avoid the default of his claims because his PCRA counsel was allegedly ineffective for not litigating them
during his PCRA proceeding. A petitioner cannot avoid the default of his claims by simply making broad, nonspecific
allegations that his PCRA counsel was ineffective and then receive de novo review of his claims in federal court,
however.
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Ebo admits that he defaulted his claims but argues that under the rule of Martinez v. Ryan,
566 U.S. 1 (2012), the Court should excuse the default and review them de novo. By relying on
Martinez, Ebo faults PCRA counsel (Attorney Stavroulakis) for not raising his defaulted claims of
trial counsel’s ineffectiveness during his initial review proceeding (that is, before the PCRA
court).
5
(ECF 1 at 11-13.)
A petitioner may avoid the default of a claim by demonstrating “cause for the default and
actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750.
“‘Cause’ under the cause and prejudice test must be something external to the petitioner, something
that cannot fairly be attributed to him.” Id. at 753 (emphasis in original). The general rule is that,
because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner
cannot rely on PCRA counsel’s ineffectiveness to establish the “cause” necessary to overcome the
default of a federal habeas claim. Coleman, 501 U.S. at 753; Davila v. Davis, 582 U.S. 521 (2017).
In 2012 in Martinez, the Supreme Court announced a narrow exception to this rule. It held
that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial
counsel typically be raised for the first time in a collateral proceeding, a petitioner may overcome
the default of a claim of trial counsel’s ineffectiveness
6
if the petitioner demonstrates: (1) the
defaulted claim of trial counsel’s ineffectiveness is “substantial”
7
and (2) PCRA counsel was

5
PCRA counsel’s alleged ineffectiveness is relevant only to the extent that it is one of the factors that must be
established in order to avoid a default under Martinez. A habeas petitioner cannot receive habeas relief on a stand-
alone claim that any of the attorneys who represented him during the PCRA proceedings were ineffective, a fact
codified by statute at 28 U.S.C. § 2254(i), which provides that “[t]he ineffectiveness of counsel during Federal or State
collateral post-conviction proceedings shall not be ground for relief in a proceeding arising under section 2254.

6
The rule of Martinez applies only to defaulted claims asserting that trial counsel was ineffective and not any other
type of defaulted claim. Davila v. Davis, 582 U.S. 521, 524-38 (2017).

7
The Court of Appeals has explained that for the purposes of determining whether a petitioner can overcome the
default of a claim under Martinez, he must show that the claim that trial counsel was ineffective is “substantial” by
showing it has “some merit.” Workman v. Supt Albion SCI, 915 F.3d 928, 938 (3d Cir. 2019). This requires that a
petitioner “‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should be
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ineffective under Strickland v. Washington, 466 U.S. 668 (1984)
8
for (3) failing to raise that claim
in the “initial review collateral proceeding” (meaning to the PCRA court). Martinez, 566 U.S. at
17. If the petitioner satisfies these three factors he is then entitled to de novo review of the merits
of the defaulted claim. Id.
Here, Ebo makes only boilerplate allegations of PCRA counsel’s ineffectiveness in an
attempt to overcome the default of his claims under Martinez. In any event, for the reasons that
follow, this Court “need not dwell” on whether Ebo can overcome the default of his claims under
Martinez. See Williams v. Sup’t Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022).
Before the Supreme Court’s 2022 decision in Shinn v. Ramirez, 596 U.S. 366 (2022), the
rule in the Third Circuit (and in many other circuits) was that the § 2254(e)(2)’s prohibition on
evidentiary hearings did not apply to whether a petitioner could overcome the default of a claim.
Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002).
9
Rather, the decision to hold a hearing on
that issue was a discretionary one. If the federal habeas court held a hearing on whether the
petitioner could overcome the default of a claim under Martinez (or any other rule that might allow

resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed
further.’” Id. (quoting Martinez, 566 U.S. at 14, which cited Miller-El v. Cockrell, 537 U.S. 322 (2003)).

8
Under Strickland, it is the petitioner’s burden to establish that his “counsel’s representation fell below an objective
standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. Counsel cannot be deemed
ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup’t Graterford SCI, 902 F.3d 365, 379 (3d Cir.
2018). Strickland also requires that the petitioner demonstrate that he was prejudiced by counsel’s alleged deficient
performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

9
In Cristin, the Court of Appeals concluded “that the plaining meaning of § 2254(e)(2)’s introductory language does
not preclude federal hearings on excuses for procedural default at the state level.” 281 F.3d at 413. The Court of
Appeals’ conclusion was based on two reasons. First, that a hearing used to support an excuse for procedural default
is not a hearing on “a claim” under AEDPA because it is not a claim for relief on the merits. Id. at 417-18. Second,
that a state prisoner “cannot be faulted...for not having previously presented the facts underlying arguments that would
have been, on the whole, irrelevant or premature before state courts.” Id. at 417. As explained below, Shinn “suggests
that [t]here is good reasons to doubt’ [the Court of Appeals’]
reading of the word ‘claim’ in Cristin, [but] it [did] not
abrogate [Cristin’s] holding that, generally, AEDPA’s text does not forbid federal courts from developing the facts
needed to excuse a procedural default.” Williams, 45 F.4th at 723. However, Shinn set significant limits on Cristin’s
reach, which are discussed below.
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the avoidance of default), and if the petitioner successfully showed that he could avoid his default,
the court could then consider the evidence introduced at the hearing when it issued a de novo ruling
on the merits of the underlying habeas claim. See, e.g., Shinn, 596 U.S. at 373-75.
Shinn clarified that a federal habeas court cannot proceed that way. The Supreme Court
held in Shinn that if a federal habeas court holds a hearing on whether a petitioner can overcome
the default of a claim, it may not also consider evidence introduced at that hearing in evaluating
the merits of the underlying habeas claim unless the petitioner has satisfied one of § 2254(e)(2)’s
narrow exceptions to AEDPA’s general bar on evidentiary hearings. 596 U.S. at 381-90; id. at
369 (“when a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise
admits or reviews new evidence for any purpose, it may not consider that evidence on the merits”
when evaluating the default habeas claim “unless the exceptions in § 2254(e)(2) are satisfied.”)
(emphasis added). Accordingly, after Shinn, federal habeas court can no longer “‘end-run’ AEDPA
by holding hearings on an excuse for procedural default, and then use the expanded federal record
to decide the merits of a habeas claim.” Williams, 45 F.4th at 723 (quoting Shinn, 596 U.S. at 389).
In light of Shinn, the Court of Appeals in Williams v. Superintendent Mahanoy SCI, 45
F.4th 713 (3d Cir. 2022) has instructed that now, before considering whether a petitioner can
overcome a default of a claim, a federal habeas court must first decide whether the underlying
defaulted habeas claim “succeeds considering only the state court record.” Id. at 724 (emphasis
added). If the court concludes that the underlying claim is not supported by the state court record,
it “should deny relief without more.” Id. That is, if the state court record alone does not allow the
petitioner to succeed on the habeas claim, the court must skip a hearing on whether the petitioner
can overcome the default “altogether and deny habeas relief” on the underlying habeas claim. Id.
at 723-24; see also id. at 720 (explaining that the court “need not dwell” on whether the petitioner
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can overcome his default if the petitioner cannot show that his trial counsel was ineffective when
considering only the facts developed in state court.)
10

Here, this Court cannot conclude, when considering only the state record, that Ebo is
entitled to relief on either of his defaulted claims of trial counsel’s ineffectiveness. Ebo has not
directed the Court to any testimony or other evidence from trial counsel explaining why counsel
did, or failed to do, the things Ebo faults him for. Because Ebo did not raise his claims during his
PCRA proceeding, he did not utilize the procedures available to him during that proceeding to
develop and introduce such evidence in a hearing before the PCRA court. Thus, on the state court
record, which Ebo failed to develop, he cannot overcome the presumption that trial counsel
rendered constitutionally adequate assistance. Burt v. Titlow, 571 U.S. 12, 23 (2013). (“[i]t should
go without saying that the absence of evidence cannot overcome the ‘strong presumption that
counsel’s conduct [fell] within the wide range of reasonable professional assistance.’”) (quoting
Strickland, 466 U.S. at 689); Williams, 45 F.4th at 726 (“we have no specific evidence of
negligence [on the part of trial counsel] in the state court record, and the absence of evidence
cannot overcome the strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. We have no trial counsel testimony on the relevant issue. The
best evidence we have is that...trial counsel requested a voluntary manslaughter instruction before

10
The Court of Appeals explained:
While Shinn suggests that “[t]here are good reasons to doubt” our reading of the word “claim” in
Cristin, it does not abrogate our holding that, generally, AEDPA’s text does not forbid federal courts
from developing the facts needed to excuse a procedural default. Id. at 1738. But Shinn does set
limits on Cristin’s reach. Shinn makes clear that, when a prisoner is at fault for failing to develop
the record needed to support a constitutional claim on the merits in state court and cannot satisfy
section 2254(e)(2)’s exceptions, federal courts may not consider evidence first gathered during an
excuse hearing allowed by Cristin to decide the constitutional claim on the merits. Id. at 1738. To
avoid prolonging federal habeas proceedings, Shinn also instructs that in these cases, federal courts
must skip hearings altogether and deny habeas relief unless the prisoner prevails on the merits
considering only the state court record. Id. at 1739.
Williams, 45 F.4th at 723-24 (emphasis added).
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closing arguments, without supporting that instruction request with Rochon’s testimony.... While
that isolated request lends some circumstantial support to [the petitioner’s] ineffective-assistance
claim, it cannot overcome the strong presumption of reasonableness.”) (emphasis added) (internal
citation and quotations omitted).
Ebo’s inability to add evidence to the record in this case because § 2254(e)(2) prohibits it
is especially detrimental to his first claim for relief, in which he asserts that trial counsel was
ineffective for failing to: object to the alleged hearsay evidence related to Richard Carpenter’s
identifications; assert that Ebo’s rights under the Confrontation Clause had been violated; and
move for a mistrial when Carpenter failed to appear at trial to testify. To satisfy his burden with
respect to this claim, Ebo first would need to develop evidence, through testimony provided by his
trial counsel, Crumbley’s trial counsel, the prosecutor, investigators and other relevant witnesses
to explain the context upon which this claim is based and why counsel did not object to the
testimony at issue or request a mistrial. Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”) (internal quotations and citations omitted).
Just as importantly, the Court would not be able to grant Ebo relief on this claim without
first providing Respondents with the opportunity to challenge Ebo’s evidence and introduce
counter evidence of their own. It is never the burden of Respondents or the Court to locate a
reasonably strategic basis for trial counsel’s challenged conduct in the record, let alone on an
undeveloped record. The burden to show counsel was ineffective is Ebo’s and it always remains
so. That is why evidentiary development is typically necessary to adjudicate a claim of counsel’s
ineffectiveness.
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As for Ebo’s second claim, which relates to trial counsel’s alleged failure to ensure an
adequate Kloiber instruction was given at trial (thereby allegedly depriving Ebo of his right to due
process), Respondents have established that the instruction given by the trial court was appropriate
under the circumstances. (ECF 10 at 52-59; see also Trial Tr. Vol. II at 1314-16 (where the trial
court and defense counsel discuss the appropriate instruction to be given regarding Robinson’s
identification); id. at 1464-66 (where the trial court instructed, among other things, that when
evaluating Robinson’s testimony “[i]dentification testimony must be received with caution if the
witness’ positive testimony as to identity is weakened by her not identifying the defendants or
identifying someone else as the criminals when shown photo arrays at various times before trial.”)
Considering the instructions given by the trial court as a whole, Ebo has not shown that there is a
reasonable likelihood that the instructions given violated his due process rights. Since trial counsel
cannot be found ineffective for failing to raise a meritless objection to the instructions given, Ebo
cannot establish that trial counsel’s “representation fell below an objective standard of
reasonableness” for failing to object to the instruction or request a different one, or that he was
prejudiced. Strickland, 466 U.S. at 688.
In conclusion, both of Ebo’s grounds for relief are denied because they are procedurally
defaulted. They also lack evidentiary support when evaluated under the closed, undeveloped state
court record and therefore also fail on the merits on that record.
III. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. It provides that “[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from...the final order in a habeas corpus proceeding in which the detention complained
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of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that
“[a] certificate of appealability may issue...only if the applicant has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason
would not find it debatable whether each of Ebo’s claims should be denied for the reasons given
herein. Accordingly, the Court will not issue a certificate of appealability on either of Ebo’s
grounds for relief.
IV. Conclusion
Based on the above, the Court will deny the Petition and will deny a certificate of
appealability with respect to each claim.
An appropriate Order follows.

Date: August 14, 2026 /s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge

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