Vance Haskell v. Superintendent Greene SCI , 866 F.3d 139 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-3427
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VANCE HASKELL,
Appellant
v.
SUPERINTENDENT GREENE SCI;
ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY ERIE COUNTY
________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-10-cv-00149)
District Judge: Honorable Susan Paradise Baxter
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Argued March 27, 2017
Before: AMBRO, VANASKIE, and
RESTREPO, Circuit Judges
(Opinion filed August 1, 2017)
Lisa B. Freeland, Esquire
Federal Public Defender
Elisa A. Long, Esquire (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Mark W. Richmond, Esquire (Argued)
Erie County Office of District Attorney
140 West 6th Street
Erie, PA 16501
Counsel for Appellee
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OPINION OF THE COURT
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AMBRO, Circuit Judge
A gunman murdered Darrell Cooley in a bar in Erie,
Pennsylvania, in December 1994. Nearly four years later, the
Commonwealth of Pennsylvania indicted and tried Vance
Haskell for Cooley’s murder. The primary issue at the trial was
whether Haskell was the gunman. In addition to circumstantial
evidence linking Haskell to the murder, the Commonwealth
presented four eyewitnesses. But one of these eyewitnesses
recanted his pre-trial testimony implicating Haskell and two
had previously denied that they would be able to identify the
shooter. The fourth eyewitness, Antoinette Blue, did provide
2
consistent testimony claiming she could identify the shooter.
What’s more, she claimed to expect nothing in return from the
Commonwealth in exchange for her testimony. But this last
claim was untrue. Both Blue and the prosecutor knew that she
expected to receive help in her own pending criminal matters
in exchange for her testimony. The prosecutor failed to correct
Blue’s statement; he even went on to rely on it and vouch for
Blue in his closing argument.
Haskell filed a habeas petition challenging his
conviction as tainted by perjured testimony in violation of his
Fourteenth Amendment right to due process. We must decide
whether Haskell is entitled to relief once he has shown a
reasonable likelihood the false testimony could have affected
the judgment of the jury, Giglio v. United States, 405 U.S. 150,
154 (1972) (citing Napue v. Illinois, 360 U.S. 264, 271 (1959)),
or whether he must also show Blue’s perjured testimony
caused him “actual prejudice” under the standard in Brecht v.
Abrahamson, 507 U.S. 619, 637–38 (1993). We hold that
Brecht does not apply when the State has knowingly presented
or failed to correct perjured testimony. In those circumstances
a petitioner carries his burden when he makes the reasonable
likelihood showing required by Giglio and Napue. Because
Haskell has done so here, we grant his petition.
I. BACKGROUND
In the early hours on December 10, 1994, a man entered
a bar called Jethroe’s Steakhouse in Erie, Pennsylvania with a
semiautomatic weapon (described at trial as an “Uzi”) and
opened fire. He shot roughly 14 times, killing Darrell Cooley
and wounding Kevin Twillie. The shooter fled the scene with
another man, Curtis Mathis.
Mathis was convicted in November 1995 for his role in
these crimes (two counts of hindering apprehension of the
3
shooter). He did not identify the shooter and received three to
seven years in prison.
A year into his sentence, Mathis, hoping that his
cooperation would result in parole, communicated with
Detective Sergeant James Skindell to cooperate in the ongoing
investigation to identify the shooter. He provided a videotaped
statement in which he named Vance Haskell (whom Mathis
also called “Hakeem”) as the shooter. Haskell was charged
with Cooley’s murder, aggravated assault of Twillie, unlawful
carrying of a firearm, and several related crimes in November
1997. His trial began ten months later.
As noted, the primary issue at trial was the identity of
the shooter. The Commonwealth’s prosecutor, Matthew R.
Hayes, presented testimony from over 40 witnesses; only
four—Mathis, Roseanna Wayne, Dorothea Roberts, and
Blue—ever claimed to be able to identify Haskell as the
shooter, and all except Blue had denied—either at trial or
before—that they could do so.
A. Trial Testimony
Haskell is from Rochester, New York, but the
Commonwealth presented evidence that he was in Erie,
Pennsylvania around the time of the murder. Felicia Clark
testified that Haskell and Mathis had been staying at her Erie
apartment in Franklin Terrace in the weeks leading up to the
shooting. The two drove from Rochester to Erie with Clark’s
brother, and evidence suggests that he drove Haskell away
from Erie between December 9th and 11th: Clark’s uncle
testified at trial that he had loaned his car to her brother on
December 9, 1994; when he got it back two days later, it had
been driven 586 miles, and police later matched to Haskell
fingerprints on beer bottles left in the car.
4
Nine witnesses testified that the unknown shooter was
wearing a puffy coat; although two of them recalled the coat
being blue or black in color, the other seven described it as
green. Eight witnesses testified that Mathis and an unidentified
shooter were in Jethroe’s together and fled after the shooting.
One man who was in the parking lot during the shooting
testified that he saw Mathis and Haskell running toward the
alley behind Jethroe’s. He noted that Haskell was wearing a
“big fluffy jacket.” Also, three witnesses testified that Mathis
and someone else took a cab to Franklin Terrace. One of them
was the cab driver, although his only recollection was of
picking up two black men from Red’s Tavern, which is not far
from Jethroe’s. A resident of Franklin Terrace picked Haskell
out of a photo line-up and said he had been at her home after
the shooting.
Two witnesses testified they previously saw Haskell
with a gun similar to the firearm recovered in an alley near
Jethroe’s. One said that he had seen Haskell several times at
Felicia Clark’s home with “a nine-millimeter pistol, 380
automatic, an Uzi, like, type machine gun.” J.A. 745. He also
identified the recovered Uzi as the gun he saw Haskell
carrying. The other testified that she had seen Haskell with a
black firearm “slightly bigger than your average handgun” four
days before the shooting and that he was wearing a green down
coat at that time. Id. at 683.
In sum, these witnesses placed Haskell in Erie near
Jethroe’s around the time of the shooting and put two key items
associated with the shooter in his possession: a large gun and a
green, fluffy jacket. But none of them saw Haskell shoot the
victims.
Four individuals presented eyewitness testimony of the
shooting. But each witness’s testimony came with a few
problems for the prosecution.
5
The first, Mathis, who had put the Commonwealth on
Haskell’s trail and had already been convicted of assisting the
shooter’s escape, recanted his previous statements on the stand.
In Mathis’s videotaped statement, he said that he and Haskell
went to Jethroe’s together that night and, while he did not
witness the shooting occur, he saw Haskell immediately after
wearing a green “puffy” coat and holding a smoking gun.
Mathis also stated that he fled the bar with Haskell, that Haskell
threw the gun under a vehicle in an alley and tossed off his
coat, and that they went to another nearby bar. From there they
got into a cab to head toward Franklin Terrace. In the video
Mathis was shown a photo line-up and identified Haskell.
But at trial Mathis recanted his videotaped statement
and testified instead that he was at Jethroe’s at the time of the
shooting but was not there with Haskell. He claimed he did not
witness anyone with a gun; he left the bar in a car he drove
himself and went to a place known as the “Holly” rather than
the Franklin Terrace housing project.1 Mathis agreed that,
when he gave the videotaped statement, his “only concern
[was] getting out of jail[.]” Id. at 629. He related that he
reviewed police reports of the murder (of which he had copies
from his own involvement in the case) in order to tell the police
and prosecutors what they wanted to hear—that is, what would
make their case against Haskell.
1
The Commonwealth presented a great deal of testimony to
rehabilitate Mathis’s videotaped testimony. Among the more
important details of his initial story corroborated by other
witnesses were that Mathis and the shooter left the bar together,
that a gun recovered from under an old truck left for many
years in the alley near Jethroe’s resembled the gun used by the
shooter, and that Mathis and another man went to the home of
Felicia Clark’s neighbor in Franklin Terrace after the shooting.
6
Second, Roseanna Wayne only stated that Haskell’s
appearance was not inconsistent with that of the shooter. Id. at
348 (“If the hair was down lower, the beard was off the face,
the mustache was off the face . . . [,] [i]t look [sic] like the
shooter.”). But earlier in her testimony she said she was not
sure she could identify the shooter. Id. (“Q. If you saw that
person again, the person that was doing the shooting, do you
think you’d recognize that person? A. No. I don’t know.”). At
other moments in her testimony, Wayne appeared to be more
confident, id. at 357 (“Sir, he look just like the man.”), but she
also admitted on cross-examination that she had never seen
Haskell before the day she testified in court, id. at 357 (“Q.
Never seen Mr. Haskell before today? A. No, sir.”).
The third eyewitness, Dorothea Roberts, testified in
court that she was at Jethroe’s on the night of the shooting and
that she saw the shooter. She further testified that Haskell was
the shooter and identified him in court. However, about three
months after the shooting, Roberts had told Detective Skindell
that she did not see the shooter. On cross-examination, Roberts
denied this and said that if Detective Skindell wrote that in his
report, he must have lied. Roberts also testified that she was
currently in the Erie County Jail on charges of simple assault.
Id. at 483.
With three eyewitnesses who each made questionable
identifications of Haskell, Prosecutor Hayes called Antoinette
Blue to the stand. She testified that she saw Haskell shoot
Cooley and had met Haskell before the shooting took place,
strengthening the power of her identification. As context, Blue
stated that she had seen Haskell around town for a few weeks,
and, 20 minutes before the shooting, she smoked marijuana
with him, Mathis, Felicia’s Clark’s brother, and a woman
named Yolanda in Jethroe’s parking lot. That night, Blue did
not report to the police that she was able to identify the shooter.
7
She never spoke with the police about the incident until three
years later in February of 1998.
B. Blue’s Communications with the
Commonwealth
Blue was in the Erie County Jail when she finally spoke
to the police about the shooting. Two warrants brought her
there. One was issued for a parole violation following her
conviction for disorderly conduct and resisting arrest. The
second stemmed from her failure to appear for sentencing after
pleading guilty to a charge of attempted theft.
And Blue had other troubles in Mercer County. She was
arrested there and charged with receiving stolen property,
criminal conspiracy, unsworn falsification, three misdemeanor
counts of retail theft, and four summary counts of retail theft.
It was following this arrest that police transported her to the
Erie County Jail because of that County’s two outstanding
warrants. Back in Erie, she reached out to Detective Skindell
to cooperate in Haskell’s case.
Blue lied when she testified at Haskell’s preliminary
hearing on March 18, 1998. When asked on cross-examination
whether she had “any criminal charges pending against [her,]”
she left out her numerous pending charges in Mercer County
and responded that she was “just [in jail] on a probation
violation.” Id. at 79.
Blue also testified adamantly that she never discussed
with anyone whether cooperating with Haskell’s prosecution
would help her get out of jail and that “it never occurred to
[her]” that cooperation might be helpful to her. Id. at 109-10.
But just two days after testifying at the preliminary hearing,
Blue received sentences on her parole violations that (despite
8
having picked up additional charges in Mercer County)
resulted in her release from custody.
Within weeks of the preliminary hearing, Detective
Skindell informed Mercer County authorities that Blue was a
cooperating witness in Erie County’s case against Haskell.
Skindell also told Blue’s Mercer County defense attorney
about her cooperation, and the attorney responded by sending
a strongly worded letter to the Mercer County DA demanding
a favorable outcome on Blue’s pending charges due to her
cooperation in the Haskell case. Finally, the prosecutor in
Haskell’s case, Hayes, reached out to the Mercer DA, who
informed Hayes that the judge in Blue’s case would be told of
her cooperation at sentencing.2
In September 1998, Blue testified at Haskell’s trial. On
cross-examination, Haskell’s attorney pointed out that Blue
was released from jail after she testified at Haskell’s
2
I am aware that Ms. Blue faces a misdemeanor
retail theft charge in Mercer County. I spoke with
the prosecutor in that case and he explained he
had already arrived at a Plea Agreement in her
case. . . . I also explained that Ms. Blue was
assisting in this prosecution. He indicated to me
that this assistance would not alter his approach
to his prosecution. He indicated he would make
the assistance known at the time of her
sentencing in Mercer County. . . . The only
understanding I am aware of is for Ms. Blue’s
cooperation. We would make the sentencing
Judge aware of this cooperation.
J.A. 1720 (Letter From Hayes to Haskell’s Defense Counsel
dated April 30, 1998).
9
preliminary hearing. But Blue denied that the Erie County
judge was aware of her cooperation and said that the timing of
her release was “just a coincidence.” Id. at 522. She also denied
that she cooperated with the police in exchange for help with
her criminal matters. When asked on what charges she was in
jail at the time she communicated with Detective Skindell,
Blue again mentioned only her probation violation and said
nothing about her charges in Mercer County.
Haskell’s attorney then asked several questions aimed
at revealing Blue’s motivation to cooperate.
Q. And did you contact the District Attorney’s
Office because you wanted some help to get out
of jail?
A. Get out for what? I wasn’t facing a lot of time,
what did I need help for?
Q. So you didn’t – this never came into your
mind that you wanted to get help to get out of
jail?
A. No. Get out for what?
Id. at 517.
On re-direct, Prosecutor Hayes attempted to dispel the
notion that Blue had agreed to cooperate in order to receive
some benefit in her own criminal matters.
Q. . . . Have you been promised anything by us
to come in here and explain what you just
explained?
A. No.
10
Q. Do you anticipate receiving any consideration
for it?
A. Do I what?
Q. Do you expect to get something out of
testifying?
A. No, sir.
Id. at 521.
On re-cross, Blue again insisted that she would receive
no benefit for testifying.
Q. You didn’t ask anybody to take [your
testimony] into consideration?
A. No, sir.
Q. You don’t think anybody was aware of that?
A. No, sir.
Id. at 522.
In his closing argument, Prosecutor Hayes ridiculed the
idea that Blue would benefit from her testimony and vouched
for her credibility:
Antoinette says that she sees Haskell over at the
[sic] Felicia Clark’s place. She also sees him out
in the parking lot, and here she is the one that is
trying to get all this benefit from this—this
valuable testimony. And what she says she’s
doing out there, she’s committing a crime. She’s
11
smoking marijuana. That should help her pretty
well.
Id. 1033-34.
So, yes, she gives her statement [three] years
later; yes, it’s during the time she’s in prison. Is
it a lie? Of course not. It’s not a lie. . . . She’s not
a liar, at least not about what happened here.
And, if she’s not a liar and if her information is
good, here’s your man.
Id. 1036.
Just over a month after Haskell’s trial, Blue pled guilty
in her Mercer County case to one count of retail theft and
unsworn falsification. Before sentencing, Hayes sent the Court
of Common Pleas of Mercer County a letter in which he
explained that Blue gave “very important” testimony at
Haskell’s trial. Id. at 19.
The Mercer County DA recommended a probationary
sentence. Blue received a suspended sentence of one to four
years in prison with 18 months of probation for the theft charge
and a sentence of costs only on the unsworn falsification
charge.
C. Procedural History
At trial Haskell was convicted of first-degree murder,
unlawful carrying of a firearm, possessing an instrument of
crime, aggravated assault, and reckless endangerment. He was
sentenced to life imprisonment plus a 15–30 month period of
incarceration consecutive to his life sentence.
Haskell pursued his claim that Blue’s testimony
violated his right to due process in Pennsylvania’s Post
12
Conviction Relief Act (“PCRA”) Court, which held that his
perjured-testimony challenge was time barred. But once
Haskell filed his habeas petition with the District Court under
28 U.S.C. § 2254, the Commonwealth expressly stated in its
Answer that this claim was not procedurally defaulted and that
the District Court must review it on the merits. Accordingly, it
considered the merits, and because the PCRA Court had not
reached them, it reviewed the claim de novo. On appeal, the
Commonwealth makes no objection to the District Court’s on-
the-merits review of Haskell’s perjured-testimony claim.
The District Court held that Blue’s testimony was false
and that the prosecutor knew or should have known it was.
However, it denied Haskell’s request for relief because he
failed to show that Blue’s perjured testimony had a substantial
and injurious effect or influence on the jury’s verdict, which
the Court believed he was required to demonstrate pursuant to
Brecht, 507 U.S. at 627. Haskell requested, and we granted, a
certificate of appealability.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction to
consider Haskell’s petition under 28 U.S.C § 2254, and we
have jurisdiction to hear his appeal under 28 U.S.C. §§ 1291 &
2253. “Because the District Court did not hold an evidentiary
hearing and, instead, based its decision on its review of the
state court record, we apply a plenary standard of review of its
decision and order.” Branch v. Sweeney, 758 F.3d 226, 232 (3d
Cir. 2014) (citing Duncan v. Morton, 256 F.3d 189, 196 (3d
Cir. 2001)).
13
III. ANALYSIS
A. The Reasonable Likelihood Standard
A state violates the Fourteenth Amendment’s due
process guarantee when it knowingly presents or fails to
correct false testimony in a criminal proceeding. See Napue,
360 U.S. at 269; Giglio, 405 U.S. at 153; see also Lambert v.
Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). Consequently,
“the [Supreme] Court has consistently held that a conviction
obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 427
U.S. 97, 103 (1976), holding modified by United States v.
Bagley, 473 U.S. 667 (1985).
“[T]he same result obtains when the State, although not
soliciting false evidence, allows it to go uncorrected when it
appears.” Giglio, 405 U.S. at 153 (quoting Napue, 360 U.S. at
269); see also Lambert, 387 F.3d at 242. A conviction must be
set aside even if the false testimony goes only to a witness’s
credibility rather than the defendant’s guilt. Napue, 360 U.S. at
270.
The standard of review applicable to perjured testimony
claims is “strict.” Agurs, 427 U.S. at 104. This is so “not just
because [those claims] involve prosecutorial misconduct, but
more importantly because they involve a corruption of the
truth-seeking function of the trial process.” Id.
Accordingly, in order to establish his claim, Haskell
must show that (1) Blue committed perjury, (2) the
Commonwealth knew or should have known that the testimony
was false, (3) the false testimony was not corrected, and (4)
there is a reasonable likelihood that the perjured testimony
14
could have affected the judgment of the jury. Lambert, 387
F.3d at 242.
Uncontested facts in the record demonstrate that
Haskell has satisfied the first three elements. Blue lied when
she testified—both at Haskell’s preliminary hearing and at his
trial—that she expected nothing in return for her testimony.
She expected and eventually received favorable treatment at
sentencing for her Mercer County charges. The
Commonwealth, of course, knew Blue’s testimony was false
and failed to correct it. Turning to the final inquiry, we
conclude that there is a reasonable likelihood that Blue’s false
testimony could have affected the jury’s judgment. Blue was a
key witness. All the other eyewitnesses had significant
problems with their testimony. Mathis recanted on the witness
stand and claimed that Haskell was not the shooter. Wayne and
Roberts had both previously said that they would not be able
to identify the shooter. Thus Blue, who claimed to have met
Haskell before the shooting, provided strong evidence that
Haskell was the shooter. As the Commonwealth put it in its
closing argument at Haskell’s trial, “this [is] valuable
testimony.” J.A. 1034. And the Commonwealth’s decision to
vouch for Blue’s credibility only emphasizes her importance.
Id. at 1036 (“It’s not a lie. . . . She’s not a liar, at least not about
what happened here. And, if she’s not a liar and if her
information is good, here’s your man.”).
Given her central role, knowledge of the benefit she
received in exchange for her testimony—substantial help with
her own pending criminal charges—poses a reasonable, and
significant, likelihood of affecting the judgment of the jury. See
Napue, 360 U.S. at 270 (“Had the jury been apprised of the true
facts . . . it might well have concluded that [the witness] had
fabricated testimony in order to curry the favor of the very
representative of the State who was prosecuting the case in
which [he] was testifying, for [he] might have believed that
15
such a representative was in a position to implement (as he
ultimately attempted to do) any promise of consideration.”).
Moreover, the facts of this case are in line with those in
Napue and Giglio, the cases in which the Supreme Court
initially articulated when false testimony requires relief. In
Napue, as in Haskell’s trial, a key witness falsely testified “that
he had been promised no consideration for his testimony, and
[] the Assistant State’s Attorney handling the case had known
this to be false.” Napue, 360 U.S. at 267. And much like our
case, Napue concerned the identification of assailants in a bar-
room murder that the key witness was in a unique position to
provide. Id. at 264 (“[The key witness’s] testimony was
extremely important because the passage of time and the dim
light in the cocktail lounge made eyewitness identification very
difficult and uncertain, and because some pertinent witnesses
had left the state.”). Finally, the benefit for which the Napue
witness had bargained was the same as Blue’s: “a
recommendation for a reduction of his . . . sentence [in his own
criminal matter] would be made and, if possible effectuated.”
Id. at 266.
Giglio also involved a witness’s false statement that he
had been promised nothing in return for his testimony. 405
U.S. at 152. The witness there was promised immunity from
prosecution by a government attorney but denied it on the
stand. Id. And, like our case, the prosecution returned to and
emphasized the false testimony in its summation of the case.
Id. The Supreme Court emphasized that “whether the
nondisclosure was a result of negligence or design, it is the
responsibility of the prosecutor.” Id. at 154. Recognizing the
importance of this key witness’s testimony, the Court found
that his “credibility . . . was therefore an important issue in the
case, and evidence of any understanding or agreement as to a
future prosecution would be relevant to his credibility and the
16
jury was entitled to know of it.” Id. at 154-55. Because this fact
was kept from the jury, due process required a new trial.
Thus there is little doubt Haskell has met the standard
set by Napue and Giglio.
B. Brecht
Meeting this standard, however, does not end our
inquiry. Although the Supreme Court has held that the
Giglio/Napue “materiality” standard discussed above is
equivalent to the harmless-error standard articulated in
Chapman v. California, 386 U.S. 18, 24 (1967) (requiring the
beneficiary—the prosecution—of a constitutional error to
demonstrate that it was harmless beyond a reasonable doubt),
see Bagley, 473 U.S. at 680 n.93, the Commonwealth contends
3
[It is a] well-established rule that a conviction
obtained by the knowing use of perjured
testimony is fundamentally unfair, and must be
set aside if there is any reasonable likelihood that
the false testimony could have affected the
judgment of the jury. Although this rule is stated
in terms that treat the knowing use of perjured
testimony as error subject to harmless-error
review, it may as easily be stated as a materiality
standard under which the fact that testimony is
perjured is considered material unless failure to
disclose it would be harmless beyond a
reasonable doubt. The Court in Agurs justified
this standard of materiality on the ground that the
knowing use of perjured testimony involves
prosecutorial misconduct, and more importantly,
17
that Haskell must also meet the separate actual-prejudice
standard of Brecht, 507 U.S. at 637. It held that when
constitutional trial errors are raised in habeas proceedings, as
opposed to on direct review, the petitioner is generally entitled
to relief only if he can show “actual prejudice.” Id. at 631. This
occurs when the error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Id. (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “[I]f a
judge has ‘grave doubt’ about whether an error affected a jury
in this way, the judge must treat the error as if it did so.” O’Neal
v. McAninch, 513 U.S. 432, 438 (1995) (internal quotation
marks omitted).
Brecht relied on three characteristics of habeas
proceedings to ground the distinction between harmless error
under Chapman applicable on direct review (putting the
burden on the prosecution) and the heightened prejudice
requirement it was announcing for habeas (that is, collateral)
review (burdening the convicted petitioner seeking relief).
First, “the State[] [has] [an] interest in the finality of
convictions that have survived direct review within the state
court system[,]” which review under Chapman’s harmless-
beyond-a-reasonable-doubt standard would undermine.
Brecht, 507 U.S. at 635. Second, values of comity and
federalism favor the Brecht standard because “[f]ederal
intrusions into state criminal trials frustrate both the States’
sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.” Id. (citing Engle v.
Isaac, 456 U.S. 107, 128 (1982)). Third, “liberal allowance of
involves a corruption of the truth-seeking
function of the trial process.
Bagley, 473 U.S. at 678–80 (internal citations and quotation
marks omitted).
18
the writ degrades the prominence of the trial itself, and at the
same time encourages habeas petitioners to relitigate their
claims on collateral review[.]” Id. (internal citations, quotation
marks, brackets, and ellipses omitted).
But these concerns do not apply to all constitutional
errors, and thus, there are a number of exceptions to Brecht’s
actual-prejudice requirement. The Court recognized in Brecht
itself that structural constitutional errors, like denial of the right
to counsel, are not subject to harmless-error review. Id. at 630.
Moreover, it noted that, “in an unusual case, a deliberate and
especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct, might so
infect the integrity of the proceeding as to warrant the grant of
habeas relief, even if it did not substantially influence the
jury’s verdict.” Id. at 638 n.9.
The Court identified another exception in Kyles v.
Whitley, 514 U.S. 419, 435 (1995), when it held that Brecht’s
standard does not apply when the state has violated Brady v.
Maryland, 373 U.S. 83 (1963), by suppressing evidence
favorable to the defendant. The Court explained that it “had
previously rejected [substantial and injurious effect] as the
standard governing constitutional disclosure claims[.]” Kyles,
514 U.S. at 436 (citing Agurs, 427 U.S. at 112). Once a
petitioner demonstrates “‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different,’” the inquiry is over,
and a petitioner meeting Brecht’s substantial-and-injurious-
effect (or actual-prejudice) standard is unnecessary. Id. at 435
(quoting Bagley, 473 U.S. at 682).
Like the suppression of evidence, presentation of
perjured testimony also violates Brady. See Agurs, 427 U.S. at
103 (describing three situations to which Brady applies: (1) the
government’s knowing presentation of or failure to correct
19
false testimony; (2) its failure to provide requested exculpatory
evidence; and (3) its failure to volunteer exculpatory evidence
never requested). Cf. Bagley, 473 U.S. at 679 n.8 (“In fact, the
Brady rule has its roots in a series of cases dealing with
convictions based on the prosecution’s knowing use of
perjured testimony.”). However, the Court in Kyles, a habeas
case, explicitly declined to consider whether Brecht applies to
collateral review of convictions tied to knowing use of perjured
testimony. Kyles, 514 U.S. at 433 n.7 (“[W]e do not consider
the question whether Kyles’s conviction was obtained by the
knowing use of perjured testimony and our decision today does
not address [Brecht’s applicability to] any claim under the first
Agurs category.”).
Our Court also has not resolved whether Brecht applies
to cases like the one before us. In a case preceding Kyles, we
held that the Brecht standard does indeed apply to habeas
petitions alleging a prosecutor’s knowing use of perjured
testimony. Robinson v. Arvonio, 27 F.3d 877, 885 (3d Cir.
1994), cert. granted, judgment vacated, 513 U.S. 1186 (1995).
But the Supreme Court vacated our judgment in Robinson and
remanded the case for further consideration in light of O’Neal,
513 U.S. at 438, which clarified the Brecht standard as
requiring relief when “a judge has grave doubt about whether
an error” “had substantial and injurious effect or influence
upon the jury[.]” We, in turn, remanded the case back to the
District Court and did not hear a subsequent appeal. See Order,
Robinson v. Arvonio, et al., Case No. 92-5667 (Oct. 10, 1995).
Because an order of the Supreme Court “vacating the judgment
of the Court of Appeals deprives that court’s opinion of
precedential effect[,]” County of Los Angeles v. Davis, 440
U.S. 625, 634 n.6 (1979) (quoting O’Connor v. Donaldson,
422 U.S. 563, 577–78 n.12 (1975)), we have explicitly
recognized that Robinson is no longer binding precedent.
Hassine v. Zimmerman, 160 F.3d 941, 960 n.30 (3d Cir. 1998).
20
Thereafter we have discussed (without mention of
Brecht) the proper standard to apply to habeas petitions
involving perjured-testimony claims. In Lambert, 387 F.3d at
242, we noted that when “the prosecution’s case includes
perjured testimony and the prosecution knew, or should have
known, of the perjury . . . [or] when the government, although
not soliciting false evidence, allows it to go uncorrected when
it appears at trial[,] . . . the conviction must be set aside if there
is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” We went on to quote
Bagley’s statement that
although this rule is stated in terms that treat the
knowing use of perjured testimony as error
subject to harmless error review, it may as easily
be stated as a materiality standard under which
the fact that testimony is perjured is considered
material unless failure to disclose it would be
harmless beyond a reasonable doubt.
Lambert, 387 F.3d at 242 (quoting Bagley, 473 U.S. at 679).
The implication is that, for perjured-testimony claims raised in
habeas proceedings, the materiality and harmless-error
standards are one and the same. Accordingly, Brecht’s
standard would not apply. But, as noted, Lambert made no
reference to Brecht. Perhaps this was because it concluded that
the statements cited were not perjured. See id. at 243, 245, 252
& 266. In any event, Lambert does not resolve by a holding
whether habeas petitioners must meet Brecht’s actual-
prejudice hurdle.
Our sister Circuits are split on the question. Relying on
Kyles, the Ninth Circuit has rejected application of Brecht to
perjured-testimony cases. Hayes v. Brown, 399 F.3d 972, 984
(9th Cir. 2005) (“Even though this case comes to us on habeas
review, we do not conduct an additional harmless error
21
analysis under Brecht[.]’”). Analogizing to claims brought
under Strickland v. Washington, 466 U.S. 668 (1984), the
Ninth Circuit noted that “federal courts do not conduct a
separate Brecht analysis in ineffective assistance of counsel
claims.” Id. at 985. Whenever the applicable test is “derived
from the Agurs materiality standard” (e.g., claims involving
suppression of evidence, ineffective assistance of counsel, or
perjured testimony), Brecht does not apply. Id. (“When the
Supreme Court has declared a materiality standard, as it has for
this type of constitutional error, there is no need to conduct a
separate harmless error analysis.”).
The First, Sixth, Eighth, and Eleventh Circuits have
disagreed, applying Brecht to habeas petitions raising perjured
testimony claims. See Gilday v. Callahan, 59 F.3d 257, 268
(1st Cir. 1995); Rosencrantz v. Lafler, 568 F.3d 577, 587-90
(6th Cir. 2009); United States v. Clay, 720 F.3d 1021, 1026-27
(8th Cir. 2013); Trepal v. Sec’y, Florida Dep’t of Corr., 684
F.3d 1088, 1111–13 (11th Cir. 2012).
The First Circuit, which issued its decision prior to the
Ninth Circuit’s ruling in Hayes, reasoned that “[a]pplying th[e]
[reasonable-likelihood] standard in most cases involving
perjury or its equivalent will likely result in a finding of
constitutional error.” Gilday, 59 F.3d at 268. “Scaling that
lower materiality hurdle, however, still will leave the petitioner
facing the Brecht harmless error inquiry into whether the
perjured testimony in fact had a substantial and injurious effect
or influence on the jury’s verdict.” Id. Brecht does not apply to
evidentiary-withholding claims, by contrast, because those
claims already require “a court to find an impact on the jury
verdict sufficiently substantial to satisfy the Brecht harmless
error test.” Id.
The Sixth Circuit agreed with the First and rejected the
Ninth Circuit’s intervening opinion, asserting that the Hayes
22
Court “erred in failing to distinguish false-testimony claims
from Brady withholding claims.” Rosencrantz, 568 F.3d at
590. The Eleventh Circuit followed suit three years later.
Trepal, 684 F.3d at 1113 (holding Brecht applied because “the
more lenient Giglio materiality standard leaves room for the
possibility that perjured testimony may be material under
Giglio but still be harmless under Brecht”).
Four years after Rosencrantz, the Eighth Circuit joined
the majority, applying Brecht because “the materiality standard
for false testimony is lower, more favorable to the defendant,
and hostile to the prosecution as compared to the standard for
a general Brady withholding violation.” Clay, 720 F.3d at 1026
(internal quotation marks and citation omitted).
We favor—and therefore adopt—the Ninth Circuit’s
approach. As that Court recognized, Kyles suggests that for the
three types of due-process violations discussed in Agurs there
is no need to perform a separate harmless-error analysis under
Brecht. Hayes, 399 F.3d at 985 (citing Kyles, 514 U.S. at 436).
This is because for these violations the materiality and
harmless-error standards merge. See Bagley, 473 U.S. at 678–
80. That is, the test for materiality supplies the test for
harmlessness and there is no need to look to Brecht to supply a
harmless-error standard. Hayes, 399 F.3d at 985.
More importantly, the concerns behind Brecht do not
reach claims of perjured testimony presented by the state. To
repeat, the Supreme Court’s imposition of Brecht’s harmless
error standard was motivated by three concerns: (1) “the State[]
[has] [an] interest in the finality of convictions that have
survived direct review within the state court system”; (2)
“[f]ederal intrusions into state criminal trials frustrate both the
States’ sovereign power to punish offenders and their good-
faith attempts to honor constitutional rights”; and (3) “liberal
allowance of the writ degrades the prominence of the trial
23
itself, and at the same time encourages habeas petitioners to
relitigate their claims on collateral review[.]” Brecht, 507 U.S.
at 635 (internal citations, quotation marks, brackets, and
ellipses omitted). These are weighty interests no doubt, but
they do not reach the facts before us.
The Supreme Court has long counseled that “a
deliberate deception of court and jury by the presentation of
testimony known to be perjured . . . is [] inconsistent with the
rudimentary demands of justice[.]” Mooney v. Holohan, 294
U.S. 103, 112 (1935). Put differently, “[it is a] well-established
rule that a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair[.]” Bagley, 473 U.S. at 678–
79. In Brecht itself the Court recognized “the writ of habeas
corpus has historically been regarded as an extraordinary
remedy, a bulwark against convictions that violate
fundamental fairness.” 507 U.S. at 633 (internal quotation
marks omitted). Thus it is difficult to see how concerns of
finality would trump rudimentary demands of justice and
fundamental fairness when those are precisely the values the
writ of habeas corpus is intended to protect.
Second, when the state knowingly presents perjured
testimony, we are not presented with a “good-faith attempt[] to
honor constitutional rights,” Id. at 635, but instead with a bad-
faith effort to deprive the defendant of his right to due process
and obtain a conviction through deceit. After all, courts apply
Napue’s “strict standard of materiality” to perjured-testimony
cases “not just because they involve prosecutorial misconduct,
but more importantly because they involve a corruption of the
truth-seeking function of the trial process” by the state itself.
Agurs, 427 U.S. at 104.
Third, there is little chance that excluding perjured
testimony claims from Brecht analysis will “degrade[] the
prominence of the trial itself[.]” Brecht, 507 U.S. at 635.
24
A defendant will usually be unable to litigate his claims of
perjured testimony at “the trial itself” because the trial is where
the perjury occurs. And it is possible, even likely, that
petitioners will not know of the prosecution’s use of perjured
testimony until after the opportunity for direct review has
passed.
Finally, the First and Sixth Circuits note that, without
Brecht review, perjured testimony faces a lower bar than
suppression claims. Gilday, 59 F.3d at 268; Clay, 720 F.3d at
1026. But to us that seems to be a feature, not a bug. If
suppression of evidence (and thereby, the truth) is a serious
constitutional error, its fabrication is a greater error still. That
is why the Supreme Court set out differing materiality
standards for the three types of error that implicate Brady: (1)
the government’s knowing presentation of or failure to correct
false testimony, (2) its failure to provide requested exculpatory
evidence, and (3) its failure to volunteer exculpatory evidence
never requested. See Agurs, 427 U.S. at 103-06. Presenting
false testimony cuts to the core of a defendant’s right to due
process. It thus makes sense that “the materiality standard for
false testimony is lower, more favorable to the defendant, and
hostile to the prosecution as compared to the standard for a
general Brady withholding violation.” Clay, 720 F.3d at 1026.
At root is how can a defendant possibly enjoy his right
to a fair trial when the state is willing to present (or fails to
correct) lies told by its own witness and then vouches for and
relies on that witness’s supposed honesty in its closing? As the
Supreme Court recited in Napue,
[i]t is of no consequence that the falsehood bore
upon the witness’ credibility rather than directly
upon defendant’s guilt. A lie is a lie, no matter
what its subject, and, if it is in any way relevant
to the case, the district attorney has the
25
responsibility and duty to correct what he knows
to be false and elicit the truth.
360 U.S. at 269–70 (quoting People v. Savvides, 136 N.E.2d
853, 854-55 (N.Y. 1956)) (internal ellipses omitted).
For these reasons, we hold that the actual-prejudice
standard of Brecht does not apply to claims on habeas that the
state has knowingly presented or knowingly failed to correct
perjured testimony. A reasonable likelihood that the perjured
testimony affected the judgment of the jury is all that is
required.
* * * * *
Haskell has demonstrated that there is a reasonable
likelihood that Blue’s false testimony could have affected the
judgment of the jury. Hence he is entitled to relief. He need not
go on to show that this error had a substantial and injurious
effect or influence in determining the jury’s verdict because,
when the state has corrupted the truth-seeking function of the
trial by knowingly presenting or failing to correct perjured
testimony, the threat to a defendant’s right to due process is at
its apex and the state’s interests are at their nadir. Accordingly,
we grant Haskell’s habeas petition and remand for further
proceedings consistent with this opinion.
26