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090126
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________________
GREGORY GIDDINGS, :
Petitioner, :
:
v. : No. 2:22-cv-2388
:
BOBBIE JO SALAMON, Superintendent of SCI :
Rockview; PHILADELPHIA DISTRICT :
ATTORNEY; and THE ATTORNEY :
GENERAL OF THE STATE OF :
PENNSYLVANIA; :
Respondents. :
______________________________________________
O P I N I O N
Report and Recommendation, ECF No. 21—Adopted Joseph F. Leeson, Jr. September 1, 2026 United States District Judge
I. INTRODUCTION
Petitioner Gregory Giddings filed a counseled Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus, the thrust of which is based on his trial counsel's alleged ineffectiveness. Magistrate Judge Pamela A. Carlos issued a Report and Recommendation ("R&R"), in which she recommends that the Petition be denied in part and dismissed in part. After review of the habeas petition, the Brief in Support of the habeas petition, Respondents' Response to the petition, the R&R, Giddings's objections, and for the reasons below, the Court overrules the objections, adopts the R&R, and denies and dismisses Giddings's Petition.
II. BACKGROUND
A. Factual Background and Habeas Petition
In the R&R, Magistrate Judge Carlos gave a thorough overview of the factual and procedural history of the case, see R&R, ECF No. 21, to which Giddings does not object, see
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Objections to Report & Recommendations ("Obj."), ECF No. 24. The Court accordingly adopts the factual and procedural history as summarized in the R&R, which are incorporated herein. See R&R. The R&R summarizes Giddings's underlying convictions and sentence as follows: "a jury found Mr. Giddings guilty of second-degree murder, burglary, robbery, conspiracy to commit burglary and robbery, and firearm violations[.] Mr. Giddings was sentenced to a mandatory term of life imprisonment without the possibility of parole for second-degree murder, and no additional penalty for the other convictions." See id. at 6.
In his original habeas petition, Giddings stated five grounds for relief, see Pet., ECF No. 1,1which he then boiled down to two prevailing grounds in his brief in support of the habeas petition, see Pet'r Br., ECF No. 8.2Those grounds are: (1) that his trial counsel was ineffective for failing to request, and/or failing to object to the omission of, the Pennsylvania Standard Jury Instruction governing felony-murder cases in which the defendant was not the direct killer— namely, that for such offense the jury would have to find that the co-felon killer "perform[ed] the murder in furtherance of the felony,"3see id. at 28; and (2) that his trial counsel was ineffective
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for failing to request or argue for the inclusion of a self-defense instruction or a defense-of- property instruction.4See id. at 25-31, 36-42.
B. The Report and Recommendation and Objections
The R&R, dated May 6, 2026, recommends that this Court deny Giddings's first argument, regarding the "in furtherance of" instruction for felony murder in cases involving co- The defendant has been charged with second-degree murder, that is, felony murder. To find the defendant guilty of this offense, you must find that the following four elements have been proven beyond a reasonable doubt:
First, that [name of defendant] killed [name of victim];
Second, that [name of defendant] did so while he and the defendant were partners in committing or attempting to commit a robbery;
Third, that [name of defendant] did the act that killed [name of victim] in furtherance of the robbery or attempted robbery; and
Fourth, that the defendant was acting with malice. You may find that the defendant was acting with malice if you are satisfied beyond a reasonable doubt that he and [name of partner] were partners in committing or attempting to commit the robbery. Because robbery is a crime inherently dangerous to human life, there does not have to be any other proof of malice.
See PA. SSJI (CRIM) § 15.2502B (cleaned up).
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felons, because Giddings failed to show that he was prejudiced by his counsel's allegedly deficient performance, as required under the standard for ineffectiveness of counsel claims articulated in Strickland v. Washington, 466 U.S. 668 (1984).5See R&R at 15. In doing so, Magistrate Judge Carlos explains that the "in-furtherance" element of the felony murder instruction would only apply if Giddings's case was one in which a co-felon (not the defendant on trial) was presumed to have killed the victim, see id. at 17, but at Giddings's trial there was no evidence that any of his co-felons shot the victim, or that they even had a gun on the night in question, see id. at 21. Where the trial evidence included multiple contradictory versions of events and created "confusion as to who fired the fatal shot," there was no more evidence in support of a "reasonable probability" that one of Giddings's co-felons shot the victim, than there was in support of a probability that "an unknown shooter shot and killed the victim" and did so for a reason independent of the robbery. See id. at 12, 21-22. The R&R reasoned that, without such "reasonable probability," omitting the "in-furtherance" instruction would not be prejudicial to Giddings. See id.
The R&R also recommends that this Court dismiss Giddings's second argument, regarding a self-defense or defense-of-property instruction, because it was procedurally defaulted. See id. at 23. Magistrate Judge Carlos explains that this claim was not raised in the state courts, and despite Giddings's argument to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012), such excusal is not warranted here. See id. Under Martinez, to overcome a
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procedural default a petitioner must demonstrate (1) "that the underlying ineffective-assistance- of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit," and (2) that his appointed counsel in the initial-review collateral proceeding was ineffective for failing to raise the claim, under the standards of Strickland v. Washington, 466 U.S. 668 (1984). See Martinez, 566 U.S. at 14. The R&R explains that Giddings second claim fails under the first Martinez requirement, because the evidence at trial demonstrated that Giddings was the initial aggressor, and thus any shots fired from his gun could not have been in self-defense or in defense of property. See R&R at 23-24. The R&R determined Giddings's second claim to be without merit, rendering the procedural default inexcusable. Giddings presents two grounds for objections to the R&R. First, he objects to the finding that he failed to show that he was prejudiced by his trial counsel's ineffectiveness. See Obj. at 2-
10. In his view, the ballistics evidence at trial demonstrated that he was not the fatal shooter, but that one of his co-felons may have been. See id. at 4-6. Thus, he says, the "in-furtherance"
instruction for felony murder involving a co-felon killer would have been appropriate. See id. Second, he objects to the finding that a justification defense was not available at trial because he was determined to be the initial aggressor leading up to the fatal shooting. See id. at 10-11. He asserts that too much weight was given to the testimony of Kashim Bailey (which suggested that Giddings held the victim at gunpoint), and that more weight should have been afforded to Giddings's own testimony, which was silent as to when he brandished his gun, but suggested that he only fired the gun after a car sped toward him. See id. The Court has reviewed all arguments, the R&R, and objections thereto, and is now prepared to decide the habeas petition.
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III. LEGAL STANDARDS
A. Report and Recommendation - Review of Applicable Law
When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989), abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 842 (1994); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984) ("providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process"). "District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b)." Hill v. Barnacle, 655 F. App'x 142, 148 (3d Cir. 2016). The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations" contained in the report. 28 U.S.C. § 636(b)(1)(C).
B. Certificate of Appealability - Review of Applicable Law
A certificate of appealability ("COA") should only be issued "if the petitioner 'has made a substantial showing of the denial of a constitutional right.'" Tomlin v. Britton, 448 F. App'x 224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)). "Where a district court has rejected the constitutional claims on the merits . . . the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack
v. McDaniel, 529 U.S. 473, 484 (2000). When a district court "denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim," a COA
"should issue when the prisoner shows, at least, that jurists of reason would find it debatable
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whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
IV. ANALYSIS
This Court has conducted a de novo review, and agrees with the recommendations in the R&R that Giddings's first claim should be denied and his second claim should be dismissed as procedurally defaulted. The Court will address each claim in turn, along with the R&R's recommendations and Giddings's objections thereto.
A. Giddings's claim of ineffective assistance of counsel, related to the felony- murder jury instruction on killing "in furtherance of" the robbery, is denied.6
Giddings objects to the R&R's finding that he failed to show that he was prejudiced by his trial counsel's ineffectiveness with respect to the "in furtherance" instruction. See Obj. at 2-
10. He argues that he has shown that he was prejudiced by his trial counsel's failure to argue for, or object to the omission of, the "in furtherance of" instruction for felony-murder where there are co-felons, one of whom was likely the killer. See id. at 5. Giddings credits the R&R with accurately recounting the ballistics evidence—namely, that the bullet recovered from the
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victim's body was a thirty-eight caliber bullet, which a ballistics expert explained can be shot from a nine-millimeter weapon, like the one Giddings had on the night in question. See id. Yet Giddings also points to the testimony of the Commonwealth's ballistics expert—which explained that the fatal bullet's "lands and groves" were "different" from those on another bullet found at the scene—as support for his contention that the fatal bullet was not fired from his gun. See id. Importantly, however, the expert testimony he cites from trial did not compare the fatal bullet found in the victim's body with another bullet undeniably shot from Giddings's gun. See id.; R&R at 19 n.13. Rather, it compared the bullet found in the victim's body to a bullet found on the ramp of the warehouse on the night in question, see id., leading the trial court to acknowledge the "possibility" that there was more than one shooter, see Obj. at 5. This does not present "near certainty" (as Giddings contends it does) that he did not fire the fatal shot on the night in question and that one of his co-felons did. It merely demonstrates that there was likely more than one person firing a gun at the scene of the crime, and that there was "confusion" as to who fired the fatal shot, specifically. If there was a suggestion that the shooter was someone other than Giddings, there was no more evidence that said shooter was a co-felon than there was evidence that the shooter was an independent third-party unrelated to the underlying robbery. See R&R at
12.
The application of an "in furtherance" instruction is dependent on a co-felon having fired the fatal shot, see PA. SSJI (CRIM) § 15.2502B; see also id. at Subcommittee Note, and so this
"confusion" as to who fired the fatal shot falls short of demonstrating prejudice absent the instruction. The evidence at trial demonstrated that Giddings's co-felons were unlikely to have shot the victim; both co-felons denied having a gun on the night in question. See R&R at 21.
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That being the case, the "in furtherance" instruction for a felony-murder (where the killing was done by a co-felon) would not have been necessary.
Giddings objects to this conclusion by arguing that Magistrate Judge Carlos unfairly placed a "burden" on him to "name the person" who killed the victim, see Obj. at 7—but this misreads the R&R. Magistrate Judge Carlos did not suggest that Giddings held the burden of proving who exactly fired the fatal shot; she only highlighted the fact that neither the evidence at trial nor Giddings's arguments suggested that one of Giddings's co-felons (not an independent third party) was likely to have fired the fatal shot. This Court agrees. Had Giddings's trial counsel objected to the omission of the "in furtherance" instruction, and had that instruction language been given, the totality of the evidence presented at trial still would not provide a reasonable probability that at least one juror would have harbored a reasonable doubt as to his guilt. Where there was some evidence to suggest that Giddings was the fatal shooter, there was little to no evidence to suggest that it was either one of his co-felons or an independent third- party unrelated to the robbery; thus, this Court cannot conclude that the outcome of the proceedings would likely have been different if this instruction were given. With respect to this claim, Giddings's objections to the R&R are overruled, and the R&R is approved and adopted. Giddings's claim as to his trial counsel's ineffectiveness for failure to object to the omission of the "in furtherance" instruction for felony-murder is denied. A certificate of appealability shall issue as to this first claim, only, because jurists of reason could debate the denial. See Slack, 529 U.S. at 484.
B. Giddings's claim of ineffective assistance of counsel, related to the jury instruction on self-defense or defense of property, is dismissed.
Giddings also objects to the R&R's finding that a justification defense was not available at trial (and thus his counsel was not ineffective for failing to advocate for a jury instruction on
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self-defense and defense of property) because Giddings was determined to be the initial aggressor on the night of the shooting. See Obj. at 10-11. The R&R reasoned that Giddings's second claim—that his trial counsel was ineffective for failing to advocate for the inclusion of a defense instruction—was procedurally defaulted because it was not raised in the state courts and that, unlike the former claim, see note 5, infra, this default was not excusable under Martinez because the claim is meritless. This Court agrees.
Under Martinez, to overcome a procedural default a petitioner must demonstrate (1) "that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit," and (2) that his appointed counsel in the initial-review collateral proceeding was ineffective for failing to raise the claim, under the standards articulated in Strickland, 466 U.S. 668. See Martinez, 566 U.S. at 14. The R&R points out that evidence at trial demonstrated, at the very least, that Giddings grabbed his bag, which had a gun inside, and went to the ramp area to confront the other scrappers attempting to leave the warehouse, and that in the moments thereafter, shots were fired. See R&R at 23-24. Magistrate Judge Carlos agreed with the Commonwealth that such actions were enough to suggest that Giddings was the initial aggressor, and thus a self-defense instruction, or a defense-of-property instruction, would have been inappropriate. See id. Giddings concedes to these facts, but nevertheless contends that the lack of evidence surrounding when he brandished his gun leaves open the possibility that he did not do so until after the car lurched toward him. See Obj. at 11. The thrust of Giddings's ineffectiveness claim relating to a failure to procure a defense instruction is based on this lack of concrete evidence that he brandished the gun before the car lurched toward him on the ramp, causing him to fire in the direction of the victim. See id. Giddings told police that he shot his weapon only after he perceived a threat, but Kashim Bailey
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testified at trial that he observed the "shooter" jump onto the ramp and hold the victim "at gunpoint" before the car sped in his direction, which is consistent with Giddings's account of where and how he approached the car. See R&R at 24. Giddings objects mainly to the credibility afforded to Bailey's testimony, and suggests that this is not enough to render his claim meritless. This argument misses the point.
Though Bailey's eyewitness testimony of a gunman leaping to the ramp and holding the car (if not the victim) at gunpoint, is persuasive, it is not the only trial evidence from which one can surmise that Giddings was the initial aggressor. It is undisputed that Giddings was told about the victim and his cohorts "leaving"—and that Giddings immediately grabbed his bag, which held his gun, and ran to confront the car at the ramp to the warehouse in order to stop it from leaving. It is not argued that Giddings stood motionless in a nonaggressive manner when the car lurched in his direction, causing him to react. Rather, Giddings took his weapon to the exact location where the car was, and stood in front of it, hoping to get a reaction. This Court finds that it was not error to forego such a defense instruction, because the suggestion that it was more likely than not that Giddings was not the initial aggressor is without merit. Accordingly, the claim fails to meet the first Martinez requirement and therefore the procedural default cannot be excused. With respect to this claim, Giddings's objections to the R&R are overruled, and the R&R is approved and adopted. Giddings's claim as to his trial counsel's ineffectiveness for failure to argue for a defense instruction is dismissed. No certificate of appealability shall issue on this claim because jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484.
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V. CONCLUSION
After de novo review of Giddings's habeas petition, the response thereto, the state court record, the R&R, Giddings's objections thereto, and for the reasons mentioned above, the R&R is adopted and approved. Giddings's claim as to his trial counsel's ineffectiveness for failure to object to the omission of the "in furtherance" instruction for felony-murder is denied, and a certificate of appealability shall issue on this claim. Giddings's claim as to his trial counsel's ineffectiveness for failure to argue for a self-defense or defense-of-property instruction is dismissed as procedurally defaulted, and no certificate of appealability shall issue on this claim. The habeas petition is denied in part and dismissed in part.
A separate order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.________
JOSEPH F. LEESON, JR.
United States District Judge