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

JALIK PEAY, : CIVIL ACTION v. : KATHY BRITTAIN, et al., : No. 19-5178

ORDER AND NOW this 6th day of October, 2020, upon careful and independent consideration of Jalik Peay’s Petition for Writ of Habeas Corpus (Doc. No. 1), the

Commonwealth’s response in opposition (Doc. No. 13), the Report and Recommendation of U.S. Magistrate Judge Richard A. Lloret, and the Petitioner’s Objections to said Report and Recommendation (ECF 16) it is ORDERED that: 1. The Report and Recommendation of Magistrate Judge Richard A. Lloret is APPROVED and ADOPTED except as set forth in footnote below;1

1 In setting forth the standard for establishing a Brady violation, the Magistrate Judge cited to Commonwealth v. Peay,

at *1 (Pa. Super. Sept. 25, 2018) in which the Pennsylvania Superior Court noted that “there is no Brady violation when [the defendant] knew or, with reasonable diligence, could have uncovered the evidence in question.” R & R p. 12-13. In doing so Peay cited to a 2015 opinion of the Pennsylvania Supreme Court, Commonwealth v. Treiber,

, 460- 61 (Pa. 2015). However, in 2016, the Third Circuit in Dennis v. Sec’y,

(3d Cir. 2016), moved away from any previous suggestion that defense counsel had an obligation to exercise due diligence to excuse the government’s non- disclosure of material exculpatory evidence definitively “rejecting that concept as an unwarranted dilution of Brady’s clear mandate.”

. Hence, the magistrate’s citation to that concept is rejected. However, given that the Petitioner’s Brady argument is premised on the Commonwealth’s failure to produce exculpatory evidence and not on whether his counsel exercised due diligence in uncovering that evidence, Dennis’s holding has no implication here. 2. Peay’s Petition for Writ of Habeas Corpus is DENIED and DISMISSED with prejudice by separate Judgment, filed contemporaneously with this Order. See Federal Rule of Civil Procedure 58(a); Rules Governing Section 2254 Cases in the United States District Courts, Rule 12;

3. No certificate of appealability shall issue under

(c)(1)(A) because “the applicant has [not] made a substantial showing of the denial of a constitutional right[,]” under

(c)(2), since he has not demonstrated that “reasonable jurists” would find my “assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

(2000); see United States v. Cepero,

(3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler,

(2012); and,

4. The Clerk of Court shall mark this file closed.

BY THE COURT: /s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J.