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

TYRE GAMBLE : CIVIL ACTION : v. : : KATHY BRITTAIN, et al. : NO. 21-3015

ORDER

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;1 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.

BY THE COURT:

/s/ Gerald Austin McHugh United States District Judge

1 Mr. Gamble principally relies upon my decision in Brooks v. Gilmore, No. 15-5659,

(E.D. Pa. Aug. 11, 2017), a decision recently endorsed by the Supreme Court of Pennsylvania. Commonwealth v. Drummond,

, 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,

(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,

, at *7. But Judge Reid is correct that the Third Circuit later interpreted Weaver differently in Baxter v. Superintendent Coal Township SCI,

,