OUTERBRIDGE v. OBERLANDER

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

ELLIOT OUTERBRIDGE            :  CIVIL ACTION                            
                              :                                          
              v.              :  NO.  20-2783                            
                              :                                          
DEREK OBERLANDER, et al.      :                                          

                        MEMORANDUM                                       
KEARNEY, J.                                             July 30, 2021     
    A Philadelphia jury convicted Elliot Outerbridge as a sixteen-year-old of murdering 
twenty-year  old  Bryon  Wilkins.  The  sentencing  judge  followed  the  Pennsylvania  General 
Assembly’s mandate of a minimum sentence of thirty-five years to life in prison. Mr. Outerbridge, 
through counsel, appealed in the Pennsylvania state courts. After losing his appeals, he petitioned 
the state courts for post-conviction act relief. He raised limited issues. He now seeks habeas relief 
after the Pennsylvania courts denied his post-conviction relief. He raises a variety of evidentiary 
and sufficiency of evidence issues as well as a challenge to his sentence of thirty-five years to life. 
Judge Lloret issued a comprehensive Report and Recommendation analyzing the issues raised in 
Mr. Outerbridge’s habeas Petition.  Judge Lloret recommended we deny it.  Mr. Outerbridge now 
objects  to  Judge  Lloret’s  recommendations.  Following  careful review  of  Mr.  Outerbridge’s 
objections and the analysis of the entire record, we overrule Mr. Outerbridge’s objections, deny 
his Petition for habeas relief, and find no basis to issue a certificate of appealability. 
I.   Facts adduced from trial and public record.                          
    Twenty-year-old Bryon Wilkins, known as “B-Nas,” chatted with his friends Ishmael 
Hardeman, Shakir Bradley, and Jamal Marshall at the intersection of 27th and Berks Streets outside 
the Johnson Homes in Philadelphia on the morning of August 4, 2010.1 Elliot Outerbridge, then 
sixteen-years-old  and  known  as  “Quill,”  approached  the  group,  pulled  out  a  handgun,  and 
attempted to shoot Mr. Wilkins.2 The gun jammed, and Mr. Wilkins fled the area on his bicycle.  
    Mr. Wilkins returned fifteen minutes later to the intersection and continued to talk with his 
friends Hardeman, Bradley, and Marshall. Mr. Outerbridge returned to the intersection at around 

11:00 a.m., pulled out a 9 mm handgun and fired at least nine times, hitting Mr. Wilkins five times 
in the back, thigh, knee, and ankle.3 Mr. Outerbridge fled, and Messrs. Bradley and Hardeman 
drove Mr. Wilkins to Temple University Hospital.                          
    Philadelphia Police Officer Stacey Wilkins responded to a radio call of a shooting at the 
intersection of 27th and Berks Streets around the same time.4 A group of approximately twenty 
people gathered at the shooting told officers a black SUV fled with the shooting victim. Officer 
Wilkins left 27th and Berks Streets and arrived at the Emergency Room at Temple University 
Hospital in less than five minutes. Officer Wilkins saw a black SUV on the street outside the 
entrance to Temple’s Emergency Room with Mr. Bradley, the driver, who said his friend, later 
identified as Mr. Wilkins, had been shot. Officer Wilkins saw a man lying in the backseat of the 

car with Mr. Hardeman.5                                                   
    Police Officer Patrick Saba arrived at Temple University Hospital to provide back-up to 
Officer Wilkins. Officer Saba saw a black SUV described as having transported the shooting 
victim to the hospital and saw three men inside: the driver, Mr. Bradley; a passenger in the 
backseat, Mr. Hardeman; and the victim, Mr. Wilkins, lying in the back seat with multiple gunshot 
wounds.6 Temple University Emergency Room staff rushed Mr. Wilkins into the hospital assisted 
by Officer Wilkins. Offer Saba secured the SUV and put Mr. Bradley and Mr. Hardeman in his 
police car for questioning.                                               
    An Emergency Room doctor pronounced Mr. Wilkins dead at 11:36 a.m. An autopsy 
conducted the next day determined the cause of death to be a gunshot wound to the torso from a 
bullet  hitting  internal  organs,  including  the  heart,  and  determined  the  manner  of  death  as 
homicide.7                                                                

                Witnesses’ statements to Philadelphia Police.            
    Mr. Hardeman gave a statement to police on August 4, 2010.8 He described the shooting, 
including he heard gunshots and “saw a guy at 27th Street shooting B-Nas.”9 Mr. Hardeman 
described the shooter as “about 17 or 19. He was taller than me. I’m 5’7. He’s a little chubby,” and 
described the shooter as wearing a white t-shirt and a black or blue baseball cap.10 On February 8, 
2011, Mr. Hardeman identified Mr. Outerbridge from a photo array.11       
    Mr. Bradley spoke to police but did not testify at trial. The record does not reflect the 
content of Mr. Bradley’s statement to police.                             
    On August 28, 2010, Mr. Marshall, also known as “Rusty” or “Russ,” gave a statement to 
police.12 Mr. Marshall told police he was with Mr. Hardeman and Mr. Wilkins (B-Nas) at the time 

of the shooting and told police he saw “B-Nas … riding on his bike and then, I seen a chubby boy 
in a blue hat from around the corner. He just started shooting B-Nas.”13 Police asked Mr. Marshall 
if he knew the identity of the “chubby boy with the blue hat,” and he responded, “Yeah, I call him 
Quill.”14                                                                 
    On October 19, 2010, Kalesha Briggs, a resident of the Johnson Homes, gave a statement 
to police.15 Ms. Briggs identified Mr. Outerbridge, who she knew as “Quill,” from a photo array 
and told police she saw Quill shoot Mr. Wilkins.16 Ms. Briggs told police she saw Mr. Outerbridge 
in the area of 27th and Berks Streets approximately ten to twenty minutes before the shooting.17 
She told police she heard six to seven gunshots and saw Quill shooting.18 
         Philadelphia Police issue an arrest warrant for Mr. Outerbridge. 
    On  February  9,  2011,  the  Commonwealth  filed  a  criminal  complaint  against  Mr. 
Outerbridge charging him with the murder of Mr. Wilkins, violations of Pennsylvania’s Uniform 
Firearms Act, and possession of an instrument of crime. Police arrested Mr. Outerbridge on 

February 10, 2011.                                                        
    A state court jury convicts Mr. Outerbridge and the trial court imposes sentence. 
    Mr. Marshall and Ms. Briggs testified at trial. Ms. Briggs testified she witnessed the 
shooting from her vantage point outside the Johnson Homes. Mr. Marshall denied knowing Mr. 
Wilkins and denied being present at the time of Mr. Wilkins’ shooting. He denied giving a 
statement to police despite conceding the signature at the bottom of his police statement was his 
signature.19                                                              
    Mr. Outerbridge retained a private investigator, Irving Samuel, to investigate the scene of 
the shooting including to take photographs. Private Investigator Samuel testified regarding the 
ability to see the intersection of 27th and Berks Streets from certain points at the Johnson Homes, 

introduced to rebut the testimony of Ms. Briggs.                          
    After six days of trial, a jury in the Philadelphia County Court of Common Pleas convicted 
Mr. Outerbridge on March 18, 2013 of one count of first-degree murder, one count of violating 
the Uniform Firearms Act, and one count of possession of an instrument of crime.  
    The court sentenced Mr. Outerbridge on May 8, 2013 to a sentence of thirty-five years to 
a maximum of life imprisonment with the possibility of parole for the first-degree murder 
conviction.20 The court sentenced Mr. Outerbridge under 18 Pa. Cons. Stat. Ann. § 1102.1, 
providing for sentencing of “[a] person who has been convicted after June 24, 2012, of a murder 
of the first degree . . . and who was under the age of 18 at the time of the commission of the offense 
….”21 If the person at the time of the commission of the offense is over fifteen-years-old, he “shall 
be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the 
minimum of which shall be at least 35 years to life.”22                   
                 Mr. Outerbridge’s post-sentence motion.                 

    On May 13, 2013, Mr. Outerbridge’s trial counsel, Sandjai Weaver, filed a post-sentence 
motion for reconsideration of the court’s sentence. Attorney Weaver raised four issues: “(1) 
whether the evidence was sufficient to support the guilty verdicts? (2) whether the verdicts were 
against the weight of the evidence? (3) whether the prosecutor’s actions constitute misconduct 
where he advised the jury in his closing that the statement by [Mr.] Hardeman could be used as 
substantive evidence against [Mr. Outerbridge] (4) whether the trial court erred in failing to 
provide a Kloiber23 charge?”                                              
    The trial judge did not resolve the motion for 120 days resulting in denial of the post-
sentence motion as a matter of law under Pennsylvania Rule of Criminal Procedure 720(B)(3).24 
The court advised Mr. Outerbridge of his appeal rights.                   

              Mr. Outerbridge’s direct appeal from the sentence.         
    Mr. Outerbridge, through Attorney Weaver, filed a timely notice of appeal. He raised three 
issues in his direct appeal: (1) “whether evidence was insufficient to convict [Mr. Outerbridge] of 
Murder; [violating the Uniform Firearms Act] (§ 6108), and Possessing an Instrument of Crime 
where the only evidence presented at trial came from one witness who could not see the incident 
and the other witnesses who claims that [Mr. Outerbridge] did not commit the offense?”; (2) 
“whether the verdicts were against the weight of the evidence presented at trial where the evidence 
presented by the Commonwealth included testimony from one witness who could not see the 
incident and other who claimed [Mr. Outerbridge] did not commit the offense when the verdicts 
shock ones [sic] sense of justice?”; and, (3) “whether the trial court abused its discretion by 
admitting prejudicial testimony from Tobi Downing regarding the Attorney General’s Witness 
Relocation Program where the evidence could only establish [Ms.] Briggs had been threatened, 
was in fear for her life, and/or possessed knowledge regarding [Mr. Outerbridge] that in effect 

substantiated her basis for being afraid of [Mr. Outerbridge] and placed undue emphasis on her 
fear?”25                                                                  
    On the first issue, the trial court found the evidence, viewed in the light most favorable to 
the Commonwealth, sufficient to support a finding Mr. Outerbridge shot and killed Mr. Wilkins.26 
The trial court found the Commonwealth presented sufficient evidence to find Mr. Outerbridge 
guilty on all charges, citing the trial testimony and police statements read into the record of Ms. 
Briggs, Mr. Marshall, Mr. Hardeman, the responding officers, and the testimony of a forensic 
pathologist regarding Mr. Wilkins’s gunshot wounds.27 The trial court explained the jury, as fact 
finder, has the sole discretion to assess witness credibility at trial and is “free to believe the 
testimony  of  the  witnesses  presented  that  [Mr.  Outerbridge]  was  carrying  a  firearm  on  a 

Philadelphia street and committed the shooting that resulted in [Mr.] Wilkins’ death.”28 The trial 
court rejected Mr. Outerbridge’s second and third issues challenging the weight of the evidence 
and the admission of the Commonwealth’s relocation witness, Tobi Downing.   
    The Pennsylvania Superior Court affirmed the trial court.29 On appeal, Mr. Outerbridge 
argued only Ms. Briggs’s credibility issues and the inconsistencies between the statement Mr. 
Marshall gave to police and his trial testimony. The Pennsylvania Superior Court rejected Mr. 
Outerbridge’s arguments, finding Pennsylvania law specifically recognizes an inconsistent out-of-
court statement made by a witness who recants at trial is sufficient evidence to support a criminal 
conviction if the fact finder could, under the evidentiary circumstances of the case, reasonably 
credit those statements over the trial recantations.30 The Pennsylvania Superior Court rejected Mr. 
Outerbridge’s credibility arguments as challenges to the weight of the evidence, not the sufficiency 
of the evidence; found the evidence presented at trial, if believed, sufficiently established Mr. 
Outerbridge as the gunman who shot Mr. Wilkins; and rejected Mr. Outerbridge’s challenge to 
Ms. Downing’s testimony.31                                                

    Mr. Outerbridge petitioned for allowance of appeal to the Pennsylvania Supreme Court. 
The Pennsylvania Supreme Court denied his petition.                       
             Mr. Outerbridge seeks post-conviction collateral relief.    
    On February 24, 2016, Mr. Outerbridge pro se petitioned for post-conviction relief under 
Pennsylvania’s Post-Conviction Relief Act (“PCRA”). Mr. Outerbridge sought a new trial; an 
arrest of judgment and dismissal with prejudice; or re-sentencing based on Miller v. Alabama.32 
He raised eight grounds, some with subparts, for relief:                  
 1.  ineffective assistance of trial counsel, Attorney Weaver, for failing to request a Kloiber 
    jury instruction regarding the Commonwealth’s identification witnesses;  

 2.  ineffective assistance of Attorney Weaver for failing to hire an expert witness to testify 
    regarding the flaws in eyewitness identification;                    

 3.  ineffective assistance of Attorney Weaver for failing to request an instruction to the jury it 
    should take Ms. Briggs’s testimony with caution because she received “favorable treatment 
    when she was relocated at the cost of $1,671.00”;                    

 4.  denial of due process “when every element of the crime was not submitted to the jury” and 
    his age at the time of the crime is a “‘fact’ element triggering the mandatory minimum 
    sentence, and age as an element was not submitted to the jury before the Judge imposed 
    the mandatory minimum sentence of 35 years to life”;                 

 5.  the sentence under Pennsylvania statute 18 Pa. Cons. Stat. Ann. § 1102.1 violates the equal 
    protection clause because it treats juveniles convicted of first-or second-degree murder 
    under the age of fourteen differently than those fifteen-years-old and older for identical 
    crimes, and the sentence imposed by the trial court violates the equal protection clause 
    because it separates two classes of offenders;                       
 6.  the sentence under Pennsylvania statute § 1102.1 is an unconstitutionally cruel and unusual 
    punishment;                                                          

 7.  the sentence under Pennsylvania statute § 1102.1 requiring the imposition of a mandatory 
    minimum sentence of thirty-five years for those fifteen years of age or older violates Miller 
    v. Alabama; and                                                      

 8.  ineffective assistance of Attorney Weaver for failing to introduce exculpatory forensic 
    evidence, specifically blood evidence, collected from the crime scene which did not match 
    Mr. Outerbridge.                                                     


    Mr. Outerbridge argued if  the PCRA court found he waived grounds four, five, six, and 
seven, it is a basis for an ineffective assistance of counsel claim against Attorney Weaver for failing 
to raise them on direct appeal.                                           
    Mr. Outerbridge filed three pro se amended PCRA petitions raising additional claims:  
 1.   his  sentence  under  Pennsylvania’s  sentencing  statute  §  1102.1  violates  due  process 
    because it requires a defendant to serve a mandatory sentence of thirty-five years to life 
    imprisonment and fails to comply with Miller and Songster v. Beard33and because it 
    requires a mandatory minimum sentence in violation of the Eighth Amendment and due 
    process clause;34                                                    

 2.  identical to the first amended petition;35 and,                     
 3.  ineffective assistance of trial counsel Attorney Weaver for failing to impeach Ms. Briggs 
    with her preliminary hearing testimony.36                            


    On January 6, 2017, the PCRA court appointed attorney David Rudenstein to represent Mr. 
Outerbridge in the PCRA proceeding. It is unclear whether Attorney Rudenstein filed an amended 
PCRA petition on behalf of Mr. Outerbridge: the PCRA court’s opinion noted Attorney Rudenstein 
filed an amended PCRA petition in which he alleged the sentencing court “failed to consider all 
the necessary facts as established by case law.”37 We cannot find an amended PCRA petition filed 
by Attorney Rudenstein in the record. Mr. Outerbridge asserts Attorney Rudenstein never filed an 
amended PCRA petition on his behalf.38                                    
    On January 16, 2018, the PCRA court provided Mr. Outerbridge and Attorney Rudenstein 
with a notice of its intent to dismiss the PCRA petition as without merit under Pennsylvania Rule 
of Criminal Procedure 907.39 Mr. Outerbridge did not respond to the PCRA court’s notice. 
    On April 3, 2018, the PCRA court dismissed the petition. Mr. Outerbridge, through 

Attorney Rudenstein, appealed the dismissal of his PCRA petition. The PCRA court issued an 
opinion under Rule of Appellate Procedure 1925(a) supporting the reasons for its dismissal of the 
petition.40                                                               
    The PCRA court identified two issues “worthy of comment”: (1) trial counsel (Attorney 
Weaver’s)  alleged  ineffectiveness  for  failing  to  request  a  Kloiber  charge;  and  (2)  the 
constitutionality of 18 Pa. Cons. Stat. Ann. § 1102.1.41 The PCRA court found  no basis to request 
a Kloiber charge in light of Ms. Briggs’s testimony and found no ineffective assistance of trial 
counsel for failing to request such a charge.                             
    The PCRA court rejected Mr. Outerbridge’s constitutional challenge to Pennsylvania 
sentencing statute § 1102.1. It noted the sentencing court did not impose a sentence of life without 

parole. The sentencing court instead reviewed the presentence report, mental health evaluation, 
and prior record score, considered the testimony of Mr. Outerbridge’s mother and a counselor who 
visited Mr. Outerbridge twice a week since his incarceration, considered ten of Mr. Outerbridge’s 
supporters introduced to the court, and four letters of support.42 Based on this evidence, the 
sentencing court imposed the minimum sentence permitted by statute—thirty-five years. The 
sentencing court chose not to impose an additional three-and-a-half to seven years for violations 
of the Uniform Firearms Act and possession of an instrument of crime. The PCRA also found 
Pennsylvania’s appellate courts hold the challenged sentencing statute, § 1102.1, constitutional.43 
The PCRA court dismissed Mr. Outerbridge’s petition and amended petitions. 
   Mr. Outerbridge appeals the dismissal of his PCRA petition to the Superior Court. 
    Mr. Outerbridge, through Attorney Rudenstein, timely appealed the denial of his PCRA 
petition but failed to timely file a concise statement of issues for review under Pennsylvania Rule 
of Appellate Procedure 1925(b). The PCRA court issued a Rule 1925(a) opinion despite Mr. 
Outerbridge’s untimely concise statement of issues for review.44          

    Mr. Outerbridge identified one issue for appellate review from the decision of the PCRA 
court: “Did the Honorable PCRA [c]ourt err when it dismissed the [a]mended [p]etition without 
granting a hearing?”45                                                    
    The Pennsylvania Superior Court noted Mr. Outerbridge’s appellate brief consisted of one 
argument:                                                                 
    [Appellant] was sentenced to a term of thirty-five (35) years to [l]ife. Counsel did not object 
    to  the  sentencing  proceedings.  While  [Appellant]  may  have  received  a  sentence  as 
    authorized by 18 Pa.C.S. § 1102.1, the proceedings still needed to have been challenged as 
    they did not necessarily comply with the edict of Miller [v. Alabama, 132 S.Ct. 2455 
    (2012),] and they did not comply with the program set up by the Philadelphia Court of 
    Common Pleas to deal with Juvenile Life issues.                      

    Counsel  is  not  challenging  the  discretionary  aspects  of  the  sentencing  but  the 
    constitutionality  and  fundamental  fairness  of  the  proceedings  as  a  whole.  Counsel 
    respectfully requests that [Appellant's case] be remanded to the [s]entencing [c]ourt for a 
    new sentencing hearing that meets all constitutional requirements.46 

    The Superior Court found Mr. Outerbridge’s argument “clearly inadequate to permit our 
meaningful review, as it consists of only bald assertions that are not supported with any developed 
discussion.”47 The Superior Court also noted the sentencing court imposed the minimum sentence 
permitted by Pennsylvania’s statute. The Superior Court affirmed the PCRA court, and “given the 
meager argument presented by [Mr. Outerbridge] on appeal,” found no error in the denial of the 
PCRA petition.                                                            
    Mr. Outerbridge filed a petition for allowance of appeal to the Pennsylvania Supreme 
Court. The Pennsylvania Supreme Court denied the petition on November 19, 2019. 
              Mr. Outerbridge seeks habeas relief in this Court.         
    Mr. Outerbridge pro se petitioned for habeas relief under 28 U.S.C. § 2254 in this Court.48 

He raises seven claims: one challenging the sufficiency of the evidence to convict him of murder 
and six asserting ineffective assistance of counsel.49                    
 The six ineffective assistance of counsel claims are:                   
 1.  ineffective assistance of Attorney Weaver and Attorney Rudenstein for failing to challenge 
    the constitutionality of his sentence under Miller v. Alabama;       

 2.  ineffective assistance of Attorney Rudenstein for failing to raise Attorney Weaver’s 
    ineffectiveness for failing to request a Kloiber jury instruction;   

 3.  ineffective assistance of Attorney Rudenstein for failing to raise Attorney Weaver’s 
    ineffectiveness  in  failing  to  obtain  expert  testimony  regarding  flaws  in  eyewitness 
    identification testimony;                                            

 4.  ineffective assistance of Attorney Rudenstein for failing to raise Attorney Weaver’s failure 
    to challenge the sentence imposed under Pennsylvania statute as a violation of the equal 
    protection clause because it treats juveniles convicted of first- or second-degree murder 
    differently based on age;                                            

 5.  ineffective assistance of Attorney Rudenstein for failing to raise in an amended PCRA 
    petition prosecutorial misconduct in the Commonwealth’s closing argument suggesting the 
    statement to police by Mr. Hardeman could be used as evidence; and   

 6.  ineffective assistance of Attorney Rudenstein for failing to raise Attorney Weaver’s failure 
    to request a jury instruction Ms. Briggs’s testimony “may be taken with caution” because 
    she “received favorable treatment” when the Commonwealth relocated her under its 
    witness protection program.50                                        

     We referred Mr. Outerbridge’s petition to the Honorable Richard A. Lloret for a Report 
and Recommendation. After considering the briefing, Judge Lloret issued a detailed Report and 
Recommendation recommending we deny the habeas petition and decline to issue a  certificate of 
appealability.51                                                          
  Judge Lloret finds Mr. Outerbridge’s claims lack merit and are procedurally defaulted. 
    Judge Lloret found the state courts reasonably denied Mr. Outerbridge’s claims regarding 
the  sufficiency  of  the  evidence  raised  in  his  PCRA  appeal.  Judge  Lloret  first  found  the 
Pennsylvania Superior Court reasonably resolved the sufficiency of the evidence claim. Judge 

Lloret found Mr. Outerbridge’s arguments rehashed his unsuccessful arguments from his state 
court  appeal,  including  challenges  to  eyewitness  testimony  and  out-of-court  inconsistent 
statements as insufficient to prove every element of murder. Judge Lloret cited the Pennsylvania 
Superior Court’s decision reviewing the evidence presented by the Commonwealth, which the jury 
was free to evaluate and believe and its ultimate finding of guilt is supported by the evidence. 
Judge Lloret noted  Mr. Outerbridge’s challenges to the weight of the evidence are not cognizable 
on habeas review.                                                         
    Judge Lloret found the six ineffective assistance of counsel claims procedurally defaulted. 
We agree with Judge Lloret’s reasoning, and we deny and dismiss Mr. Outerbridge’s habeas 
petition.                                                                 

II.  Analysis                                                             
    Mr. Outerbridge objects to Judge Lloret’s Report and Recommendation. It is difficult to 
determine the basis of Mr. Outerbridge’s objections; his fourteen-page memorandum largely 
rehashes his theories of relief in his habeas petition. He again challenges the weight of the 
evidence, arguing the credibility of Ms. Briggs’s trial testimony, Mr. Hardeman’s inconsistent 
testimony, and challenges the credibility of other witnesses.52           
    As best we can determine, Mr. Outerbridge objects to the Report and Recommendation for 
these reasons:                                                            
   1.  A general objection to the entire Report and Recommendation as mischaracterizing “the 
     true-factual-bases of [his] properly filed” habeas petition and failing to address the 
     petition’s “well pleaded facts and supported case law [sic]”;       

   2.  A general objection to Judge Lloret’s finding the habeas claims are meritless and 
     procedurally defaulted not excused under Martinez v. Ryan;53 and    

   3.  Judge Lloret’s finding of procedural default on the ineffective assistance of trial counsel 
     claim regarding the Kloiber instruction is erroneous.               


    A.   Standard applied to review of objections to a report and recommendation 
         addressing habeas petitions.                                    

    On review of a report and recommendation, we review de novo “those portions of the report or 
specified proposed findings or recommendations to which objection is made,” and “may accept, reject, 
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”54  
         1.   Exhaustion of state remedies and procedural default.       
    A federal court may not grant a habeas petition to “a person in custody pursuant to the 
judgment of a State court . . . unless . . . the applicant has exhausted the remedies available in the 
courts of the State . . . .”55 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),  
“state prisoners must give the state courts one full opportunity to resolve any constitutional issues 
by invoking one complete round of the State’s established appellate review process.”56 “In 
Pennsylvania, petitioners afford the state courts that opportunity by fairly presenting their claims 
to the Superior Court, either on direct review or on appeal of a petition under Pennsylvania’s 
[PCRA].”57 “To fairly present a claim, a petitioner must introduce both the legal theory and its 
underlying factual support.”58 Where a petitioner fails to exhaust his claims in state court, the 
claims are procedurally defaulted and we may not review them.59           
    In some cases, a petitioner presents his claim to the state court but the state court concludes 
its review is barred by noncompliance with state procedural rules. In those cases, the doctrine of 
procedural default bars federal habeas review.60 We may not review a question of federal law 
decided by a state court if the decision of the state court rests on a state law “independent of the 
federal question and adequate to support the judgment.”61 A state procedural rule “is adequate only 
if it is firmly established, readily ascertainable, and regularly followed.”62 

    We may review procedurally defaulted claims through a habeas petition if the petitioner 
can show (1) “‘cause’ to excuse his failure to comply with the state procedural rule and ‘actual 
prejudice  resulting  from  the  alleged  constitutional  violation’”;63  or  (2)  the  “‘fundamental 
miscarriage of justice exception’ . . . restricted ‘to a severely confined category[ ] of cases in which 
new evidence shows ‘it is more likely than not that no reasonably juror would have convicted the 
petitioner.’”64                                                           
    To establish “cause,” the petitioner must “show that some objective factor external to the 
defense impeded counsel’s efforts to comply with the State’s procedural rule.”65 “A factor is 
external to the defense if it ‘cannot fairly be attributed to’” the petitioner.66 To show “actual 
prejudice,” the petitioner “must show ‘not merely that the errors at . . . trial created a possibility of 

prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial 
with error of constitutional dimensions.’”67 To establish a “fundamental miscarriage of justice,” 
petitioner must show actual innocence.68                                  
    Mr. Outerbridge does not claim the fundamental miscarriage of justice exception. He 
instead claims “cause” to excuse his procedurally defaulted claims under Martinez v. Ryan. 69 In 
Martinez, the Supreme Court “recognize[d] a narrow exception to the doctrine of procedural 
default: ‘[i]nadequate assistance of counsel at initial-review collateral proceedings may establish 
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.’”70 A claim of 
ineffectiveness of counsel may be excused under Martinez “[w]here, under state law, claims of 
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a 
procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective 
assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in 
that proceeding was ineffective.”71 A prisoner sentenced in Pennsylvania72 may establish “cause” 

for defaulting on a claim in two circumstances: (1) “where the state courts did not appoint counsel 
in the initial-review collateral proceeding for a claim of ineffective assistance at trial”; and (2) 
“where appointed counsel in the initial-review collateral proceeding, where the claim should have 
been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 
(1984).”73                                                                
    Under Martinez, the procedural default of an ineffective assistance of counsel claim may 
be excused for “cause” where a petitioner can show: “1) his procedurally defaulted ineffective 
assistance of trial counsel claim has “some merit”; and that 2) his state-post conviction counsel 
was “ineffective under the standards of Strickland v. Washington.’”74     
    For a claim to be “substantial” it must have “some merit” akin to the standard for issuing a 

certificate of appealability.75 “To demonstrate that his claim has some merit, a petitioner must 
‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition 
should have been resolved in a different manner or that the issues presented were adequate to 
deserve encouragement to proceed further.’”76 The “some merit” standard is less stringent than the 
“exacting standards” of Strickland v. Washington.77 If we find Martinez excuses the procedural 
default, we may “consider the merits of a claim that otherwise would have been procedurally 
defaulted.”78                                                             
         2.   Ineffective assistance of counsel claims.                  
    Claims of ineffective assistance of counsel are evaluated under the two-prong test of 
Strickland v. Washington.79 “To succeed on such a claim, the petitioner must demonstrate (1) that 
counsel’s performance was deficient, in that it fell below an objective standard of reasonableness, 
and (2) that the petitioner suffered prejudice as a result of the deficiency.”80 

    “To establish prejudice the petitioner ‘must show that there is a reasonable probability that, 
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A 
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”81 This 
is a difficult standard for a petitioner to meet: “[t]he standards created by Strickland and § 2254(d) 
are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland 
standard is a general one, so the range of reasonable applications is substantial. Federal habeas 
courts  must  guard  against  the  danger  of  equating  unreasonableness  under  Strickland  with 
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s 
actions were reasonable. The question is whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.”82                           
    B.   We overrule Mr. Outerbridge’s objections.                       
    We  construe  Mr.  Outerbridge’s  objection  the  Report  and  Recommendation 
mischaracterizes “the true-factual-bases of [his] properly filed” habeas petition and failing to 
address the petition’s “well pleaded facts and supported case law [sic]” as disagreeing with Judge 
Lloret’s finding on the sufficiency of the evidence claim.  We construe Mr. Outerbridge’s second 
and third objections as a challenge to Judge Lloret’s finding the ineffective assistance of counsel 
claims are procedurally defaulted and not exhausted under Martinez v. Ryan.  
         1.   We overrule the objections relating to the weight and sufficiency of 
              evidence claim.                                            

    Mr. Outerbridge objects to the entire Report and Recommendation as mischaracterizing 
the “true-factual-bases” of his habeas petition and fails to address his “well pleaded facts,” again 
arguing what he believes is the “inconsistent testimony” of Ms. Briggs, Mr. Hardeman, and Mr. 
Marshall, the credibility their testimony as compared to his trial witness, Private Investigator 
Samuel, and perceived deficiencies in the Commonwealth’s evidence.        
    We apply the standard provided by Congress.83, “[a]n application for a writ of habeas 
corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be 
granted with respect to any claim that was adjudicated on the merits in State court proceedings 
unless the adjudication of 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.”84 “On 
federal habeas review, [Congress] ‘imposes a highly deferential standard for evaluating state-court 
rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’”85  
    Mr. Outerbridge claims he is entitled to habeas relief by challenging the sufficiency of the 
evidence  supporting  his  state  court  murder  conviction.  The  clearly  established  federal  law 
governing the insufficient evidence claim is the standard set out by the Supreme Court in Jackson 
v. Virginia.86 Under Jackson, “‘the relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found the essential 
elements of the crime beyond a reasonable doubt.’”87 “This reasonable doubt standard of proof 
requires the finder of fact ‘to reach a subjective state of near certitude of the guilt of the 
accused.’”88 “A conviction that fails to satisfy the Jackson standard violates due process, . . . and 
thus a convicted habeas petitioner is entitled to relief if the state court’s adjudication denying the 
insufficient evidence claim was objectively unreasonable . . .”89         
    Mr. Outerbridge challenges the sufficiency of the evidence to support his state court murder 
conviction as well as the weight of the evidence. He challenges the weight of the evidence, 

specifically to the credibility of Ms. Briggs’s testimony generally and in contrast to the testimony 
of Private Investigator Samuel, the testimony of Mr. Hardeman, and the recanted testimony of Mr. 
Marshall. This challenge is not a basis for habeas review.90 As a federal habeas court, we may not 
“redetermine credibility of witnesses whose demeanor has been observed by the state trial court 
….”91 Mr. Outerbridge’s objection to the Report and Recommendation’s “mischaracterization” of 
the “true-factual-bases” of his habeas petition boils down to a disagreement with Judge Lloret’s 
review of the state courts’ decision reviewing the sufficiency of the evidence. We overrule Mr. 
Outerbridge’s objections to the extent he objects to the weight of the evidence.  
    We turn next to the sufficiency of the evidence challenge. Applying the standard under 
Jackson v. Virginia, we view the evidence in the light most favorable to the prosecution to 

determine whether any rational trier of fact could have found the essential elements of the crime 
beyond a reasonable doubt. The Pennsylvania Superior Court applied the proper standard by 
“review[ing] the evidence in the light most favorable to the verdict winner to determine whether 
there is sufficient evidence to allow the jury to find every element of a crime beyond a reasonable 
doubt.”92 The Superior Court summarized the testimony at trial: Ms. Briggs’s statement to police 
and testimony at trial identifying Mr. Outerbridge by his nickname, Quill, she saw Mr. Outerbridge 
in the area around ten to twenty minutes before the shooting, she heard gunshots while outside 
hanging clothes, she heard six to seven gunshots and saw Mr. Outerbridge shooting;93 and Mr. 
Marshall’s statement to police read into the record, which he later recanted at trial, as being  with 
Mr. Wilkins and Mr. Hardeman at the time of the shooting, and he told homicide detectives he saw 
“a chubby boy in a blue hat from around the corner and he just started shootin[g] [Mr. Wilkins],” 
identifying Mr. Outerbridge as Quill, and identifying him in a photo array.94 
    The Superior Court rejected Mr. Outerbridge’s argument Mr. Marshall recanted at trial the 

statement he gave to police on August 4 and identification of Mr. Outerbridge from a photo array 
on August 28. The Superior Court explained Pennsylvania law recognizes an inconsistent out-of-
court statement made by a witness who recants while testifying at trial is “sufficient evidence upon 
which a criminal conviction may properly rest if the finder-of-fact could, under the evidentiary 
circumstances  of  the  case,  reasonably  credit  those  statements  over  the  witness’s  in-court 
recantations.”95 The Superior Court explained Mr. Outerbridge’s  challenges to the credibility and 
believability of the testimony go to the weight and not the sufficiency of the evidence.  
    The Superior Court, applying the correct standard, concluded the evidence is sufficient to 
support a conviction when, viewed in the light most favorable to the Commonwealth, the evidence 
provides a basis for the jury to find every element of a crime beyond a reasonable doubt.96 We 

overrule Mr. Outerbridge’s objection to the sufficiency of the evidence or, as he puts it, the “true-
factual bases” and “well pleaded facts” of his habeas petition.           
         2.   We overrule objections based on a finding of procedural default of the 
              ineffective assistance of counsel claims.                  

    Mr. Outerbridge objects generally to Judge Lloret’s finding all six ineffective assistance of 
counsel claims are procedurally defaulted and not excused under Martinez. Mr. Outerbridge 
specifically objects to the procedural default of his ineffective assistance of trial counsel claim 
regarding a Kloiber instruction.                                          
          The constitutionality of the sentence is procedurally defaulted  
                     and not excused by Martinez.                        
    Mr. Outerbridge contends the sentencing court failed to impose the individualized sentence 
required by Miller v. Alabama and claims ineffective assistance of trial counsel (Attorney Weaver) 
for failing to object at sentencing. He alternatively argues ineffective assistance of PCRA counsel 
Attorney Rudenstein for failing to raise this issue in an amended PCRA petition.  
    In Miller, the Supreme Court held unconstitutional mandatory life sentences without parole 
for juvenile offenders.97 Before sentencing a juvenile to life imprisonment without the possibility 
of  parole,  a  court  must  consider  the  juvenile  offender’s  chronological  age,  immaturity, 

impetuosity, and failure to appreciate risks and consequences, family and home environment, the 
circumstances of the homicide offense, the extent of the juvenile’s participation in the conduct and 
the way familial and peer pressures may have affected him, his ability to deal with police and 
prosecutors, incapacity to assist his own attorneys, and possibility of rehabilitation.98 
    Mr. Outerbridge styled his objection to the constitutionality of his sentence as one of 
ineffective assistance of trial and PCRA counsel. Judge Lloret found this claim procedurally 
defaulted. Judge Lloret explained the Superior Court denied Mr. Outerbridge’s appeal from the 
PCRA court’s decision after finding his briefing of the issue is “clearly inadequate to permit our 
meaningful review, as it consists of only bald assertions that are not supported with any developed 
discussion.”99 Pennsylvania Rules of Appellate Procedure require Mr. Outerbridge to support his 
argument “with pertinent discussion and citation to authority.”100 Undeveloped claims “are waived 

and unreviewable on appeal.”101 Judge Lloret found the Superior Court applied an independent 
and adequate state procedural rule barring Mr. Outerbridge’s ineffective assistance of counsel 
claim on the constitutionality of his sentence and is procedurally defaulted.  
    Mr. Outerbridge objects to Judge Lloret’s finding the procedural default is not excused 
under Martinez. A procedural default may be excused for cause if Mr. Outerbridge can show his 
procedurally defaulted ineffective assistance of trial counsel claim has “some merit” and his PCRA 
counsel was ineffective under Strickland v. Washington. Judge Lloret found Martinez does not 

apply because Mr. Outerbridge raised ineffective assistance of counsel claims regarding the 
constitutionality of his sentence under Miller in his February 2016 PCRA petition. The PCRA 
court found this claim meritless because the sentencing court did not impose a life sentence without 
parole and thus not required to make the findings required by Pennsylvania statute § 1102.1(d) and 
Miller.102 Judge Lloret explained the procedural default occurred when Mr. Outerbridge failed to 
adequately present this claim to the Pennsylvania Superior Court.         
    We agree with Judge Lloret. There is no merit to Mr. Outerbridge’s petition on the 
constitutionality of his sentence under Miller. Miller does not apply here. The sentencing court did 
not impose a mandatory life sentence without parole; it imposed a minimum term of thirty-five 
years to life with the possibility of parole. Mr. Outerbridge’s claim is procedurally defaulted and 

not excused by Martinez.                                                  
          Ineffective assistance of counsel as to a Kloiber instruction is 
              procedurally defaulted and not excused by Martinez.        
    Mr. Outerbridge next argues ineffective assistance of counsel claims in failing to request a 
Kloiber instruction and ineffective assistance of PCRA counsel for failing to raise the issue in the 
PCRA action relating to the testimony of Ms. Briggs, Mr. Hardeman, and Mr. Marshall. Mr. 
Outerbridge objects to Judge Lloret’s finding the claims procedurally defaulted and not excused 
by Martinez.                                                              
    Under the Pennsylvania Supreme Court’s decision in Commonwealth v. Kloiber, a jury 
must be instructed “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 occasions, the accuracy of the identification is 
so doubtful that the Court should warn the jury that the testimony as to identity must be received 
with caution.”103 “A Kloiber charge is appropriate when the accuracy of the testimony of an 

eyewitness’ identification is ‘so doubtful that the Court should warn the jury that the testimony as 
to identity must be received with caution.’”104 A trial court must give a Kloiber instruction where 
an eyewitness: “(1) did not have an opportunity to clearly view the defendant; (2) equivocated on 
the identification of the defendant; or (3) had a problem making an identification in the past.”105 
“A Kloiber charge is not mandatory ‘[w]here an eyewitness has had ‘protracted and unobstructed 
views’ of the defendant and consistently identified the defendant ‘throughout the investigation and 
at trial.’”106 A Kloiber charge does not apply where a witness earlier positively identifies a 
defendant but later refuses to provide an in-court identification.107     
    Examining the testimony of each witness, Judge Lloret first found the Kloiber claim with 
regard to Ms. Briggs’s testimony procedurally defaulted and not excused by Martinez. In his 

February 2016 PCRA petition, Mr. Outerbridge raised an ineffective assistance of trial counsel 
claim for failing to request a Kloiber charge as to Ms. Briggs’s testimony. The PCRA court 
considered this claim and concluded there is no basis to request a Kloiber charge.108 Ms. Briggs 
testified on the day of the shooting, she knew Mr. Outerbridge from the neighborhood; knew him 
as Quill; saw Mr. Outerbridge, and no one else, shooting; saw Mr. Outerbridge running with a gun 
about ten to fifteen minutes before the shooting; heard six or seven gunshots; saw Mr. Wilkins 
running behind Mr. Outerbridge; and witnessed the shooting from about forty feet away during 
daylight.109 The PRCA court found trial counsel was not ineffective for failing to request a Kloiber 
charge.                                                                   
    Mr. Outerbridge then failed to raise this claim to the Superior Court in his PCRA appeal. 
Judge Lloret concluded the claim is procedurally defaulted. Because the procedural default 
occurred on PCRA appeal and not at the initial PCRA proceeding, Martinez does not apply. In 
other words, the procedural default was not caused by the ineffective assistance or absence of 

counsel at the initial PCRA proceeding which Martinez would remedy. We agree with Judge Lloret 
and overrule Mr. Outerbridge’s objection with regard to an ineffective assistance of counsel for 
failing to request a Kloiber charge on Ms. Briggs’s testimony.            
    Mr. Outerbridge similarly claims ineffective assistance of trial counsel for failing to request 
a Kloiber charge for the testimony of Mr. Hardeman and Mr. Marshall. Judge Lloret found Mr. 
Outerbridge did not raise these claims in his PCRA action and consequently, not presented to the 
Superior Court on appeal. Judge Lloret found these claims procedurally defaulted and because the 
claims do not have “some merit” under the first step of Martinez, the default is not excused. 
    In his PCRA action, Mr. Outerbridge alleged ineffective assistance of trial counsel for 
failing to request a Kloiber instruction for the Commonwealth’s identification witnesses.110 His 

brief focuses only the Kloiber instruction regarding Ms. Briggs.111 Even if Mr. Outerbridge raised 
this claim as to Mr. Hardeman’s and Mr. Marshall’s testimony in the PCRA action, they are 
procedurally defaulted because he did not present it to the Superior Court in the PCRA appeal and 
are not excused under Martinez.                                           
    Mr. Hardeman testified at trial he was near the scene of the shooting but did not see the 
person who shot Mr. Wilkins. The Commonwealth introduced Mr. Hardeman’s statement made to 
police describing his presence at the scene of the shooting, hearing gunshots, seeing someone 
shooting Mr. Wilkins described as about seventeen or eighteen years old, taller than five feet, seven 
inches, “a little chubby,” and wearing a white t-shirt with a black or blue baseball cap.112 A few 
weeks later, Mr. Hardeman identified Mr. Outerbridge from a police photo array.  
    Mr. Marshall gave a statement to police identifying Mr. Outerbridge as the shooter, 
including a description of a “chubby boy in a blue hat from around the corner.” Mr. Marshall 

identified Mr. Outerbridge as the shooter in a photo array and told police he knew Mr. Outerbridge 
as his friend’s brother and who he had seen over the summer.113  At trial, he recanted his statement, 
denied being present at the scene of the shooting, asserted the police statement contained lies, he 
gave the statement after police beat him up, and was high at the time he gave the statement.114 
    Mr. Outerbridge today argues Mr. Hardeman’s testimony and an alleged obstruction of his 
sight line by bushes in the full bloom of summer required a Kloiber instruction, making his trial 
counsel ineffective for failing to request such a charge. Mr. Outerbridge argues Mr. Marshall’s 
inconsistent statements required a Kloiber instruction.                   
    Judge Lloret found Mr. Outerbridge’s claims do not have “some merit” under the first 
prong of Martinez.115 Judge Lloret explained Mr. Hardeman’s statement to police demonstrated 

he observed the shooting from his vantage point and there is no citation to record evidence to 
support Mr. Outerbridge’s assertion Mr. Hardeman’s view would have been blocked by bushes.  
Judge Lloret correctly cited case law a Kloiber instruction is not warranted where circumstances 
indicated the trustworthiness of Mr. Hardeman’s earlier identification when he declined to identify 
Mr.  Outerbridge  at  trial.  For  the  same  reasons,  Judge  Lloret  found  Mr.  Marshall’s  prior 
inconsistent statement does not require a Kloiber instruction, citing case law Kloiber instructions 
are not required when a witness gives a previous positive identification but refuses to provide 
identification at trial.116                                               
    Judge Lloret correctly determined Mr. Outerbridge’s Kloiber claims are procedurally 
defaulted and not excused by Martinez. We overrule Mr. Outerbridge’s objections. 
      Ineffective assistance of counsel claim regarding potential expert testimony  
                       is procedurally defaulted.                        
    Mr. Outerbridge next claims ineffective assistance of trial counsel for failing to call an 
expert witness regarding the inherent flaws of eyewitness testimony and ineffective assistance of 
PCRA counsel for failing to raise the claim in an amended PCRA petition.  
    A review of Mr. Outerbridge’s February 2016 pro se PCRA petition reveals he raised this 
claim in his PCRA petition.117 The PCRA court did not address this claim.118 Mr. Outerbridge did 

not raise this claim in his appeal from the PCRA court to the Superior Court and it is not exhausted.  
    Even if exhausted, we agree with Judge Lloret this claim is procedurally defaulted and not 
excused by Martinez because the claim does not have “some merit.” Under Pennsylvania law, Mr. 
Outerbridge “must articulate what evidence was available and identify the witness who was willing 
to offer such evidence” when challenging trial counsel’s failure to secure expert testimony.119 He 
“must also show … prejudice by the absence of testimony by demonstrating how the uncalled 
expert would have been helpful to his defense under the circumstances of the case.”120 
    Mr. Outerbridge does not identify the available evidence, the expert willing to offer such 
evidence, and prejudice by the absence of testimony. He argues a hypothetical expert could have 
“provide[d] guidance to the jury concerning the flaws in eyewitness testimony” and it is reasonably 

probable “at least one jury [sic] would have paused or hesitated and thus would have had a 
reasonable doubt as to [his] guilt.” He does not provide support to this bald assertion; he does not 
name the expert that should have been called or describe proposed testimony.121 
    Even if Mr. Outerbridge met his burden to identify an expert and describe proposed 
testimony, Pennsylvania law at the time of his trial prohibited expert testimony on the reliability 
of eyewitness identification. At the time of trial in 2013, the Pennsylvania Supreme Court 
precluded eyewitness testimony on the reliability of eyewitness identification because “[s]uch 
testimony would [give] and unwarranted appearance of authority as the subject of credibility, a 
subject which an ordinary juror can assess.”122 In 2014, the Pennsylvania Supreme Court rejected 

the  per  se  exclusionary  rule  to  the  admission  of  expert  testimony  regarding  eyewitness 
identification.123 The Pennsylvania Supreme Court’s 2014 decision in Walker announced a new 
rule  allowing  the  admission  of  expert  testimony  on  relevant  factors  regarding  eyewitness 
identification at the discretion of the trial court.124                   
    Neither trial counsel nor PCRA counsel can be ineffective on the eyewitness identification 
expert issue if such an expert could not have been called under Pennsylvania law at the time of 
Mr. Outerbridge’s 2013 trial. There is no merit to Mr. Outerbridge’s claim. He fails to meet the 
first step of Martinez. We overrule Mr. Outerbridge’s objection as to this claim. 
             The Equal Protection claim is procedurally defaulted.       
    Mr. Outerbridge claims ineffective assistance of counsel for failing to object to his sentence 

under the Equal Protection Clause and ineffective assistance of PCRA counsel for failing to raise 
the claim in an amended PCRA petition. Mr. Outerbridge raised this claim in his February 2016 
PCRA  petition.125  The  PCRA  court  did  not  address  the  Equal  Protection  argument.126  Mr. 
Outerbridge did not raise this issue in his PCRA appeal.                  
    Mr. Outerbridge again challenges the constitutionality of Pennsylvania’s sentencing statute 
for juvenile offenders convicted of first-degree murder, 18 Pa. Cons. Stat. Ann. § 1102.1, this time 
under the Equal Protection Clause. The Pennsylvania General Assembly mandates under section 
1102.1 enacted after the Supreme Court’s decision in Miller v. Alabama, a person who is fifteen 
years of age or older at the time of the commission of the offense “shall be sentenced to a term of 
life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at 
least 35 years to life.” A person who is under the age of fifteen at the time of the commission of 
the offense “shall be sentenced to a term of life imprisonment without parole, or a term of 
imprisonment, the minimum of which shall be at least 25 years to life.”127 

    Mr. Outerbridge, sixteen-years-old at the time of the 2010 shooting, received a minimum 
sentence of thirty-five years to life for those over the age of fifteen. He argues section 1102.1 treats 
similarly situated juvenile offenders under age fifteen differently because the minimum sentence 
for those younger offenders is twenty-five years and thus violates the Equal Protection Clause of 
the Fourteenth Amendment. He argues Miller v. Alabama treats all juvenile offenders under the 
age of eighteen equally, and Pennsylvania’s statute violates his equal protection rights. He argues 
sentencing counsel (Attorney Weaver) failed to raise this objection at sentencing and Attorney 
Rudenstein failed to raise this claim in an amended PCRA petition. He makes this argument despite 
the fact he raised an equal protection challenge to the Pennsylvania statute in his February 2016 
pro se PCRA petition. Mr. Outerbridge did not raise an equal protection claim in his PCRA appeal 

to the Superior Court, failed to exhaust the claim, and is procedurally defaulted. 
    Even if not procedurally defaulted, the claim is not excused by Martinez because it has no 
merit. To prevail on an equal protection claim, Mr. Outerbridge must show the “Government has 
treated [him] differently from a similarly situated party and that the Government’s explanation for 
the differing treatment does not satisfy the relevant level of scrutiny.”128 Classifications based on 
“fundamental personal rights” or “suspect distinctions such as race, religion, or alienage” are 
subject to heightened scrutiny while classifications involving neither fundamental rights nor 
“proceeding along suspect lines” are subject to the more deferential rational-basis review.129  
    Rational-basis review is “extremely low” and asks “whether there is ‘a rational relationship 
between the disparity of treatment and some legitimate governmental purpose.’”130 Rational-basis 
review “confers a presumption of validity on legislation” which the challenger must rebut and 
“negate every conceivable justification for the classification in order to prove that the classification 
is wholly irrational.”131                                                 

    Age is not a suspect classification under the Equal Protection Clause.132 We apply a 
rational-basis review to Pennsylvania’s statute which is presumptively valid. Although Mr. Miller 
relies on Miller v. Alabama as making “no distinction” between juvenile offenders under the age 
of eighteen, Miller does not support his argument. Miller precludes mandatory life without parole 
for juvenile offenders without considering chronological age and “its hallmark features.” We agree 
with Judge Lloret’s conclusion Mr. Outerbridge’s equal protection claim is meritless because he 
failed to meet his burden of showing Pennsylvania’s sentencing statute, section 1102.1, does not 
pass rational-basis scrutiny. His claim fails to meet the first step of Martinez and we overrule this 
objection.                                                                

          The prosecutorial misconduct claim is procedurally defaulted.  
    Mr.  Outerbridge  claims  ineffective  assistance  of  PCRA  counsel  for  failing  to  raise 
prosecutorial misconduct in an amended PCRA petition. Mr. Outerbridge attributes misconduct to 
the Assistant District Attorney when he told the jury in his closing Mr. Hardeman’s testimony 
could be used as “substantive evidence,” depriving Mr. Outerbridge of due process.  
    We agree with Judge Lloret this claim is procedurally defaulted and not excused under 
Martinez. In its closing argument, the Commonwealth referred to the inconsistent testimony of 
both Mr. Marshall and Mr. Hardeman.133 The Commonwealth told the jury it can consider prior 
inconsistent statements and “you can accept what they said in the earlier statement as evidence, as 
evidence  of  actually  what  really  happened.”  Mr.  Outerbridge  claims  this  is  prosecutorial 
misconduct.                                                               
    There is no merit to this claim. As Judge Lloret explained, Pennsylvania law allows prior 
inconsistent statements to be used as substantive evidence if a witness is available for cross 
examination at trial134 and the United States Supreme Court considers the admission of prior 

inconsistent statements a matter of evidentiary law, not constitutional law.135 Mr. Hardeman and 
Mr. Marshall made statements to police inconsistent with their trial testimony where they were 
cross-examined. Trial counsel is not ineffective for failing to object to the Commonwealth’s 
reference to their prior inconsistent statements in its closing. We overrule Mr. Outerbridge’s 
objection.                                                                
         The claim regarding a jury instruction about Ms. Briggs’s alleged  
               “favorable treatment” is procedurally defaulted.          
    Mr. Outerbridge’s last claim asserts ineffectiveness of trial counsel for failing to request a 
jury instruction regarding the Commonwealth’s “favorable treatment” with regard to Ms. Briggs. 
He claims ineffectiveness of PCRA counsel for failing to raise this claim in an amended PCRA 
petition.                                                                 
    Mr.  Outerbridge  contends  the  Commonwealth  provided  Ms.  Briggs  with  $1,671  in 
relocation expenses after she feared retaliation for her cooperation with police in this case. He 
argues this relocation expense constitutes “favorable treatment” by the Commonwealth and trial 

counsel should have demanded a jury instruction on Ms. Briggs’s possible bias.  
    Mr. Outerbridge did not raise this claim in his pro se PCRA petitions making it unexhausted 
and procedurally defaulted. He argues this claim is excused under Martinez. We agree with Judge 
Lloret the claim is without merit and fails to meet the first step of Martinez. 
    Mr. Outerbridge did not cite, and Judge Lloret could not find, authority supporting the 
argument a relocation expense amounts to favorable treatment entitling a defendant to a corrupt-
source jury instruction. Under Pennsylvania law, a “corrupt-source” instruction is appropriate 
where a witness is an accomplice with the defendant. In that case, if an accomplice implicates the 

defendant, the trial court should instruct the jury the accomplice is a corrupt and polluted source 
whose testimony should be considered with caution. We agree with Judge Lloret there is no basis 
for a corrupt-source instruction.                                         
    We agree with Judge Lloret’s finding Ms. Downing, from the District Attorney’s Witness 
Relocation Program, testified at trial as to Ms. Briggs’s relocation and the Commonwealth 
introduced into evidence documents reviewing the assistance Ms. Briggs received before trial. 
Judge Lloret found the jury knew of the Commonwealth’s efforts to relocate Ms. Briggs and the 
assistance she received and was free to consider this evidence in assessing Ms. Briggs’s credibility. 
The trial court’s charge to the jury included an instruction regarding a witness’s bias or prejudice 
which may color his or her testimony.136                                  

    We agree with Judge Lloret’s conclusion this claim lacks merit and fails to meet the first 
step of Martinez. We overrule Mr. Outerbridge’s objection.                
    C.   We deny a certificate of appealability.                         
    “[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 
district court's denial of his petition.”137 Section 2253 provides the standard for a certificate of 
appealability required for appellate review of a district court’s judgment denying habeas relief: 
    (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district 
      judge, the final order shall be subject to review, on appeal, by the court of appeals for 
      the circuit in which the proceeding is held.                       

    (b) There shall be no right of appeal from a final order in a proceeding to test the validity 
      of a warrant to remove to another district or place for commitment or trial a person 
      charged with a criminal offense against the United States, or to test the validity of such 
      person’s detention pending removal proceedings.                    

    (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may 
    not be taken to the court of appeals from—                           

         (A) the final order in a habeas corpus proceeding in which the detention complained 
           of arises out of process issued by a State court; or          

         (B) the final order in a proceeding under section 2255.         

      (2) A certificate of appealability may issue under paragraph (1) only if the applicant has 
        made a substantial showing of the denial of a constitutional right. 

      (3) The certificate of appealability under paragraph (1) shall indicate which specific 
        issue or issues satisfy the showing required by paragraph (2).138 

    A certificate of appealability “will issue only if the requirements of § 2253 have been 
satisfied.”139  A habeas petitioner seeking a certificate of appealability “need only demonstrate ‘a 
substantial showing of the denial of a constitutional right.’”140 A petitioner “satisfies this standard 
by demonstrating that jurists of reason could disagree with the district court’s resolution of his 
constitutional claims or that jurists could conclude the issues presented are adequate to deserve 
encouragement to proceed further.”141                                     
    Federal Rule of Appellate Procedure 22 contemplates a district court issuing a certificate 
of appealability in the first instance: “(b) Certificate of Appealability. (1) In a habeas corpus 
proceeding in which the detention complained of arises from process issued by a state court, or in 
a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a 
circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an 
applicant files a notice of appeal, the district clerk must send to the court of appeals the certificate 
(if any) and the statement described in Rule 11(a) of the Rules Governing Proceedings Under 28 
U.S.C. § 2254 or § 2255 (if any), along with the notice of appeal and the file of the district-court 
proceedings. If the district judge has denied the certificate, the applicant may request a circuit 
judge to issue it.”142                                                    
    Given the standard we apply today to habeas challenges to state trial court evidentiary 
rulings and ineffectiveness of counsel, we cannot find jurists of reason could disagree with our 

reasoning in denying the petition.                                        
III.  Conclusion                                                          

    We overrule Mr. Outerbridge’s objections and find his claims for habeas relief lack merit. 
We adopt Judge Lloret’s Report and Recommendation. We deny and dismiss Mr. Outerbridge’s 
Petition for a writ of habeas corpus. We deny a certificate of appealability.  

1 Commonwealth v. Outerbridge, No. CP-51-CR-00065882011, 2014 WL 8104237, at *1 (Phila. 
Ct. Common Pleas May 23, 2014) (“Outerbridge I”).                         

2 Id.                                                                     

3 Id.                                                                     

4 Id. at * 2.                                                             

5 Id.                                                                     

6 Id.                                                                     

7 Id.                                                                     

8 Notes of Testimony (“N.T.”), March 13, 2013 at 22–41.                   

9 N.T. March 13, 2013 at 30.                                              

10 N.T. March 13, 2013 at 34–35.                                          

11 N.T. March 13, 2013 at 64, 72–73.                                      

12 N.T. March 13, 2013 at 136–153.                                        

13 N.T. March 13, 2013 at 140.                                            
14 N.T. March 13, 2013 at 141.                                            

15 N.T. March 12, 2013 at 117–123. The Philadelphia District Attorney’s Office assisted in 
relocating Ms. Briggs before she made a statement to police as part of the Attorney General’s 
Witness Relocation Program. Tobi Downing, a Victim/Witness Coordinator in the Victim Services 
Unit testified at trial as to Ms. Briggs’s involvement in the program. Ms. Downing testified 
regarding the relocation process and the amount of financial assistance provided to Ms. Briggs as 
part of the relocation program. N.T. March 14, 2013 at 5–9.               

16 N.T. March 12, 2013 at 121–122.                                        

17 N.T. March 12, 2013 at 104.                                            

18 N.T. March 12, 2013 at 106–112.                                        

19 N.T. March 13, 2013 at 149–151.                                        

20 The court did not impose a sentence on the other convictions.          

21 On June 25, 2012, the United States Supreme Court held mandatory life sentences without parole 
for  juvenile  offenses  is  unconstitutional.  Miller  v.  Alabama,  567  U.S.  460  (2012).  The 
Pennsylvania General Assembly passed 18 Pa. Cons. Stat. Ann. § 1102.1. The court sentenced Mr. 
Outerbridge on May 8, 2013.                                               

22 18 Pa. Cons. Stat. Ann. § 1102.1(a)(1).                                

23 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). As further described in our analysis, the 
Pennsylvania Supreme Court in Kloiber held a jury must be instructed “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 occasions, the accuracy of the identification is so doubtful … the testimony as to identity 
must be received with caution.” Id. at 826–27.                            

24 Under Pa. R. Crim. P. 720(B)(3)(a), a post-sentence motion is deemed denied by operation of 
law if a judge fails to decide a post-sentence motion within 120 days.    

25 Outerbridge I, 2014 WL 8104237 at *1. Outerbridge I is the trial court’s opinion under 
Pennsylvania Rule of Appellate Procedure 1925(a).                         

26 Id. at * 2.                                                            

27 Id. at *3-*4.                                                          

28 Id. at *4.                                                             
29 Commonwealth v. Outerbridge, No. 3170 EDA 2013, 2015 WL 6180886 (Pa. Super. Ct. Feb. 
24, 2015) (“Outerbridge II”).                                             

30 Id. at *2.                                                             

31 Id. at *2-*3.                                                          

32 567 U.S. 460 (2012).                                                   

33 201 F. Supp. 3d 639 (E.D. Pa. 2016).                                   

34 ECF Doc. No. 23 at 31–36 (using the pagination assigned by the CM/ECF docketing system).  

35 Compare ECF Doc. No. 23 at 31–36 with ECF Doc. No. 23 at 38–43.        

36 ECF Doc. No. 23 at 47–51.                                              

37 Commonwealth v. Outerbridge, CP 51-CR-0006588-2011 at 2 (Phila. Ct. Common Pleas June 
11, 2018) (“Outerbridge III”).                                            

38 ECF Doc. No. 23 at 6.                                                  

39 Rule 907(a) provides a PCRA judge “shall promptly review the petition, any answer by the 
attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). 
If the judge is satisfied from this review that there are no genuine issues concerning any material 
fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would 
be served by any further proceedings, the judge shall give notice to the parties of the intention to 
dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may 
respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter 
shall order the petition dismissed, grant leave to file an amended petition, or direct that the 
proceedings continue.”                                                    

40 Outerbridge III.                                                       

41 Outerbridge III at 2.                                                  

42 Id. at 4.                                                              

43 Id. at 7 (citing Commonwealth v. Lawrence, 99 A.3d 116 (Pa. Super. Ct. 2014), appeal den., 114 
A.3d 416 (Pa. 2015).                                                      

44 See Outerbridge III.                                                   

45 Commonwealth v. Outerbridge, No. 1274 EDA 2018, 2019 WL 145 50388 (Pa. Super. Ct. April 
1, 2019) (“Outerbridge IV”).                                              
46 Id. at *2.                                                             

47 Id.                                                                    

48 ECF Doc. No. 1. One ground for relief is listed twice—Grounds Four and Five are identical. 

49 ECF Doc. No. 4.                                                        

50 ECF Doc. No. 4.                                                        

51 ECF Doc. No. 19.                                                       

52 See ECF Doc. No. 23 at 6–15 (using the pagination assigned by the CM/ECF docketing system). 

53 566 U.S. 1 (2012).                                                     

54 28 U.S.C. § 636(b)(1)(B).                                              

55 28 U.S.C. § 2254(b)(1)(A).                                             

56 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).                      

57 Rodland v. Superintendent of SCI Houtzdale, No. 18-1892, 2020 WL 7385089, at *2 (3d Cir. 
Dec. 16, 2020) (citing Lambert v. Blackwell, 387 F.3d 210, 232–34 (3d Cir. 2004)). 

58 Id. (citing McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)); see also Nara v. Frank, 
488 F.3d 187, 197–98 (3d Cir. 2007) (citing Duncan v. Henry, 513 U.S. 364, 366 (1995) (per 
curiam)) (“A petitioner has fairly presented his claim if he presented the same factual and legal 
basis for the claim to the state courts.”).                               

59 O’Sullivan, 526 U.S. at 848. See Greene v. Superintendent Smithfield SCI, 882 F.3d 443, 449 
(3d Cir. 2018) (“[A] federal court may not review federal claims that were procedurally defaulted 
in state court . . .” (alterations in original) (quoting Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)). 

60 Coleman v. Thompson, 501 U.S. 722, 729–30 (1991).                      

61 Id. at 729.                                                            

62 Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001) (citing Ford v. Georgia, 498 U.S. 411, 
423–24 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989)).                 

63 Greene, 882 F.3d at 449 (quoting Davila, 137 S. Ct. at 2064–65).       

64 Id. at 449 n.8 (second alteration in original) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 
(2013)).                                                                  
65 Davila, 137 S. Ct. at 2065 (internal quotation marks omitted) (quoting Murray v. Carrier, 477 
U.S. 478, 488 (1986)).                                                    

66 Id. (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).           

67 Murray, 477 U.S. at 494 (alteration in original) (quoting United States v. Frady, 456 U.S. 152, 
170 (1982)).                                                              

68 Schlup v. Delo, 513 U.S. 298, 324 (1995).                              

69 566 U.S. 1 (2012).                                                     

70 Workman v. Superintendent Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019) (quoting Martinez, 
566 U.S. at 9).                                                           

71 Martinez, 566 U.S. at 17.                                              

72 “[M]artinez applies if state law, ‘either expressly or as a matter of practicality,’ bars prisoners 
from raising [ineffective assistance of trial counsel] claims on direct appeal. . … Pennsylvania 
state law requires prisoners to raise [ineffective assistance of trial counsel] claims on PCRA 
review, rather than on direct review.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 
376 n.12 (3d Cir. 2018) (quoting Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014)).  

73 Martinez, 566 U.S. at 14.                                              

74 Workman, 915 F.3d at 937 (citing Martinez, 566 U.S. at 14).            

75 Workman, 915 F.3d at 937–38.                                           

76 Id. at 938 (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).  

77 Id.                                                                    

78 Id. (quoting Martinez, 566 U.S. at 17).                                

79 466 U.S. 668 (1984).                                                   

80 Blystone v. Horn, 664 F.3d 397, 418 (3d Cir. 2011) (citing Strickland, 466 U.S. at 687).  

81 Id. (quoting Strickland, 466 U.S. at 694).                             

82 Id. at 419 (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).   

83 See 28 U.S.C. §§ 2241–2254.                                            

84 28 U.S.C. § 2254(d).                                                   
85 Felkner v. Jackson, 562 U.S. 594, 598 (2011) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). 

86 443 U.S. 307 (1979).                                                   

87 Travillion v. Superintendent Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020) (citation omitted) 
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).                  

88 Id. (quoting Jackson, 443 U.S. at 315).                                

89 Id. (citations omitted) (first citing Jackson, 443 U.S. at 319; then citing Parker v. Matthews, 567 
U.S. 37, 43 (2012)).                                                      

90 Benson v. Overmyer, No. 18-4135, 2020 WL 5017356, at *2 (E.D.Pa. Aug. 25, 2020) (citing 
Tibbs v. Florida, 457 U.S. 31, 37–38 (1982)).                             

91 Marshall v. Lonberger, 459 U.S. 422, 434 (U.S. 1983).                  

92 Outerbridge II, 2015 WL 6180886, at * 1 (citing Commonwealth v. Tejada, 107 A.2d 788, 792 
(Pa. Super. Ct. 2015)).                                                   

93 N.T. March 12, 2013 at 100–112.                                        

94 N.T. March 13, 2012 at 122-144.                                        

95 Outerbridge II, 2015 WL 6180886, at * 2 (quoting Commonwealth v. Brown, 52 A.3d 1139, 
1168 (Pa. 2012)).                                                         

96 Id. at *3.                                                             

97 Miller, 567 U.S. at 479.                                               

98 Id. at 477–78.                                                         

99 Outerbridge IV, 2019 WL 1450388 at *2.                                 

100 Commonwealth v. Wholaver, 177 A.3d 136, 160 (Pa. 2018) (citing Pa. R. App. P. 2119(a)).  

101 Commonwealth v. Clayton, 816 A.2d 217, 402–03 (Pa. 2002) (citing Commonwealth v. 
Williams, 782 A.2d 517, 532 (Pa. 2001)).                                  

102 See Outerbridge III at 4.                                             
103 Commonwealth v. Kloiber, 106 A.2d 820, 826–27 (Pa. 1954).             

104 Commonwealth v. Brown, 196 A.3d 130, 163 (Pa. 2018) (quoting Kloiber, 106 A.2d at 826-
27).                                                                      
105 Id. (quoting Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010)).       

106 Id. (quoting Commonwealth v. Dennis, 715 A.2d 404, 411 (Pa. 1998)).   

107 Holden v. Delbase, No. 18-68, 2019 WL 251854, at *6 (E.D. Pa. Jan. 16, 2019) (citing 
Commonwealth v. Sanders, 42 A.3d 325, 334–35 (Pa. Super. Ct. 2012)).      

108 Outerbridge III at 6.                                                 

109 Id. (citing N.T. March 12, 2013 at 102–11).                           

110 See ECF Doc. No. 23 at 17, ¶ 10.a (using the pagination supplied by the CM/ECF docketing 
system).                                                                  

111 ECF Doc. No. 23 at 65 (using the pagination supplied by the CM/ECF docketing system). 

112 N.T. March 13, 2013 at 17–35.                                         

113 N.T. March 13, 2013 at 130–141.                                       

114 N.T. March 13, 2013 at 123–154.                                       

115 Mr. Outerbridge argues Judge Lloret erred in finding Martinez does not excuse his procedurally 
defaulted ineffective assistance of counsel claim on the Kloiber instruction, citing Mack v. 
Superintendent Mahanoy SCI, 714 F. App’x 151 (3d Cir. 2017). Mack is inapplicable here. In 
Mack, our Court of Appeals vacated the District Court’s order dismissing Mr. Mack’s habeas 
petition and remanded it with instructions to conduct a Martinez analysis because neither the 
Magistrate Judge nor the District Court did so. Judge Lloret properly applied Martinez to each of 
Mr. Outerbridge’s ineffective assistance claims.                          

116 See Holden, 2019 WL 251854 at *5–*6.                                  

117 ECF Doc. No. 23 at 18, ¶ 10.b (using the pagination supplied by the CM/ECF docketing 
system).                                                                  

118 See Outerbridge III.                                                  

119 Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. Ct. 2013) (quoting Commonwealth 
v. Bryant, 855 A.2d 726, 745 (Pa. 2004)).                                 

120 Commonwealth v. Cuenas, No. 1500 EDA 2020, 2021 WL 2287501, at *5 (Pa. Super. Ct. May 
28, 2021) (citing Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016)).  

121 See Williams v. Wenerowics, No. 13-3908, 2015 WL 456705, at *7–*8 (E.D. Pa. Feb. 2, 2015).  

122 Commonwealth v. Simmons, 662 A.2d 621, 630–31 (Pa. 1995).             
123 Commonwealth v. Walker, 92 A.3d 766, 783–84 (Pa. 2014).               

124 Id. at 486.                                                           

125 ECF Doc. No. 23 at 18–19, ¶ 10.e (using the pagination assigned by the CM/ECF docketing 
system).                                                                  

126 See Outerbridge III.                                                  

127 18 Pa. Cons. Stat. Ann. § 1102.1(a)(1), (2).                          

128 Cabrera v. Attorney Gen. of the United States, 921 F.3d 401, 404 (3d Cir. 2019) (Real Alts., 
Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 348 (3d Cir. 2017) (emphasis in 
original)).                                                               

129 Id. (quoting City of New Orleans v. Duke, 427 U.S. 297, 303 (1976) then Heller v. Doe by Doe, 
509 U.S. 312, 319 (1993)).                                                

130 Id. (quoting United States v. Pollard, 326 F.3d 397, 408 (3d Cir. 2003) then Real Alts., 867 
F.3d at 348)).                                                            

131 Id. (quoting Brian B. ex rel. Lois B. v. Pa. Dep’t of Educ., 230 F.3d 582, 586 (3d Cir. 2000)).  

132 Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000).              

133 N.T. March 15, 2013 at 170–77.                                        

134 Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012).                       

135 California v. Green, 399 U.S. 149, 164 (1970); Ford v. Superintendent, SCI-Frackville, No. 
12-1278, 2013 WL 5457801, at *6 (E.D. Pa. Sept. 19, 2013).                

136 N.T. March 15, 2013 at 203–04. The trial court instructed the jury: “[Y]ou may consider 
whether the witness has any friendship toward or animosity toward any other persons concerned 
in the case. You may consider the behavior of the witness on the witness stand and his or her 
demeanor, his or her manner of testifying, and whether he or she shows any bias or prejudice that 
might color his or her testimony.”                                        

137 Miller-El, 537 U.S. at 335–37 (citing 28 U.S.C. § 2253).              

138 28 U.S.C. § 2253.                                                     

139 Miller-El, 537 U.S. at 336.                                           

140 Id. at 327 (citing 28 U.S.C. § 2253(c)(2)).                           
141 Id. at 323 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).      

142 Fed. R. App. P. 22(b)(1).