NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                   ______

                                      No. 11-1646
                                        ______

                                  CHARLES DIGGS,
                                            Appellant

                                           v.

DAVID DIGUGLIELMO, Superintendent SCI Graterford; ATTORNEY GENERAL OF
   THE STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF DAUPHIN
                              COUNTY
                               ______

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (Civil No. 4:07-cv-01505)
                      District Judge: Honorable John E. Jones III
                                         ______

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 16, 2011
                                      ______

                   Before: FUENTES, CHAGARES, Circuit Judges,
                               and RESTANI,* Judge

                              (Filed: December 13, 2011)
                                        ______

                              OPINION OF THE COURT
                                      ______



      *
        Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
RESTANI, Judge.

       Petitioner Charles Diggs appeals the denial of his petition for a writ of habeas

corpus, filed on the basis that defense counsel failed to disclose material evidence. For

the following reasons, we will affirm the District Court’s judgment.

       Because we write for the parties, we recount only the essential facts and procedural

history. Petitioner was arrested for and charged with the kidnaping and first degree

murder of Nancy White. Jack Singer was the prosecution’s key witness, connecting

Diggs to the crime. While incarcerated as a parole violator, Jack Singer wrote four letters

to the police and district attorney in Harrisburg, Pennsylvania offering information

concerning Diggs’s case. In those letters, Singer asked the district attorney to arrange for

him to return to parole status and to help him avoid prison, but stated that his testimony

and help were not contingent upon these requests. At the time of his trial testimony,

Singer was not incarcerated, no charges were pending against him, and no deal for his

testimony was in place. In April 1977, petitioner was convicted.

       After petitioner exhausted his right of direct appeal, he filed a habeas corpus

petition and a state court petition under Pennsylvania’s Post Conviction Relief Act

(“PCRA”), which were denied. See 42 Pa. Cons. Stat. Ann. §§ 9541–46. In November

2000, petitioner filed a second PCRA petition, claiming, inter alia, that evidence

impeaching Singer had been withheld and the failure to disclose this evidence constituted

a violation under Brady v. Maryland, 

(1963). The PCRA court found no



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Brady violation and denied relief. Diggs exhausted his state court appeals. In August

2007, petitioner filed his second habeas corpus petition, which the District Court for the

Middle District of Pennsylvania denied. Petitioner now appeals.

       This court has jurisdiction under 28 U.S.C. § 1291 and § 2253.

       [W]here a habeas petitioner’s claim was “adjudicated on the merits” in state
       court, the petition may not be granted unless the state court decision “was
       contrary to, or involved an unreasonable application of, clearly established
       Federal law, as determined by the Supreme Court of the United States” or “was
       based on an unreasonable determination of the facts in light of the evidence
       presented in the State court proceeding.”

Simmons v. Beard, 

, 231 (3d Cir. 2009) (quoting 28 U.S.C. § 2254(d)). Our

review of the District Court’s legal conclusions is plenary. See Coombs v. Diguglielmo,

, 260 (3d Cir. 2010).

       A Brady violation occurs when evidence, 1) is favorable to the accused, 2) was

suppressed by the prosecution, and 3) is prejudicial or material to petitioner’s guilt. See

Strickler v. Greene, 

, 281–82 (1999); United States v. Agurs, 

,

112–13 (1976). The District Court adopted the Magistrate Judge’s recommendation to

uphold Pennsylvania Superior Court’s affirmance of the PCRA court’s decision. The

Superior Court agreed with the PCRA court that the prosecutor did not suppress the

letters Singer wrote while incarcerated because no evidence of a deal existed and the

State had filed an “Application Concerning Material Witness” regarding Singer seven

months before petitioner’s trial. The Application stated that Singer had been incarcerated

but was released and that the charges against him had been dropped. It also stated that

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Singer was previously motivated to testify out of a fear that he might be imprisoned again

and he felt endangered in prison. Even though this Application was docketed but not

personally served on petitioner’s counsel, the Application was served on the Public

Defender’s Office and was a matter of public record. Therefore, petitioner was on notice

that documentary evidence regarding Singer’s testimony might exist. Accordingly, the

District Court did not err in agreeing with the state court that the letters were not

suppressed.

       Second, even if the letters were suppressed, they were not material. Evidence is

material “‘if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’” 

(quoting United States v. Bagley, 

, 677–81 (1985) (noting a stricter

standard for materiality where defendant fails to make a specific request for the evidence

in question)). Here, the District Court adopted the Magistrate Judge’s recommendation

and Superior Court’s conclusion that the letters did not create a reasonable doubt as to

petitioner’s guilt, and therefore the four letters were not material. The District Court did

not err because, at the time of the trial, Singer was not facing criminal charges or

incarcerated, so his testimony was not motivated by fear or any agreement with the State.

Moreover, Singer initially offered to testify at the trial even if the charges against him

were not dropped. Thus, the letters were not material.

       Accordingly, we will affirm the District Court’s judgment.



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