Opinion
Civil Action 21-3015
02-28-2023
TYRE GAMBLE v. KATHY BRITTAIN, et al.
ORDER
Gerald Austin McHugh United States District Judge
This 28th day of February, 2023, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States
Magistrate Judge Scott W. Reid and the Petitioner's objections, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. Petitioner's objections are OVERRULED;
Mr. Gamble principally relies upon my decision in Brooks v. Gilmore, No. 15-5659, 2017 WL 3475475 (E.D. Pa. Aug. 11, 2017), a decision recently endorsed by the Supreme Court of Pennsylvania. Commonwealth v. Drummond, 285 A.3d 625, 643-45 (Pa. 2022). In Brooks, I held that prejudice is to be presumed as to an erroneous instruction on reasonable doubt because the error is structural. I considered Weaver v. Massachusetts, 137 S.Ct. 1899 (2017), and concluded that even if not all structural error can be deemed presumptively prejudicial, the Supreme Court would still presume prejudice where the error involves reasonable doubt. Brooks, 2017 WL 3475475, at *7. But Judge Reid is correct that the Third Circuit later interpreted Weaver differently in Baxter v. Superintendent Coal Township SCI, 998 F.3d 542, 547-48 (3d Cir. 2021). And in endorsing Brooks, the Pennsylvania Supreme Court took no position on whether prejudice should be presumed. Drummond, 285 A.3d at 645 n.54. Although I read Weaver as supporting a continued presumption of prejudice, see 137 S.Ct. at 1908, Baxter is binding in this circuit, with the result that petitioner's failure to show prejudice defeats his claim for relief here.
3. The petition for a writ of habeas corpus is DENIED; and
4. There is no basis for the issuance of a certificate of appealability.
The Clerk of Court is requested to mark this case closed.