Breakiron v. Horn

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-9003

___________

MARK BREAKIRON,

Appellant

v.

Commissioner MARTIN HORN; Pennsylvania Department

of Corrections; CONNER BLAINE, Superintendent of the

State Correctional Institution at Greene; JOSEPH

MAZURKIEWICZ, Superintendent of the

State Correctional Institution at Rockview

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 00-cv-00300)

District Judge: Honorable Nora B. Fischer

____________________________________

Argued: November 16, 2010

Before: AMBRO, FUENTES and

NYGAARD, Circuit Judges

(Opinion filed April 18, 2011)

Stuart B. Lev, Esq.

Claudia Van Wyk, Esq. (Argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106

Counsel for Appellant

James P. Barker, Esq. (Argued)

Office of the Attorney General of Pennsylvania

Appeals & Legal Services

Strawberry Square

16th Floor

Harrisburg, PA 17120

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

NYGAARD, Circuit Judge

A Pennsylvania jury found Mark Breakiron guilty of

first-degree murder and robbery for killing a bartender and

stealing her purse and money bags from the bar. At the

penalty phase, the jury found as an aggravating factor that he

committed the murder “while in the perpetration of a

felony”—i.e., the robbery. 42 Pa. Cons. Stat. § 9711(d)(6).

2

The trial court sentenced him to death. On Breakiron’s

petition for a writ of habeas corpus, the District Court

invalidated the murder conviction (and thus the death

sentence) because it found that the prosecution withheld

material evidence regarding one of its witnesses in violation

of the rule set forth in Brady v. Maryland, 373 U.S. 83

(1963). The District Court concluded, however, that the

Brady evidence was not material to Breakiron’s robbery

conviction and did not disturb it.

The Commonwealth 1 has not appealed the District

Court’s ruling and states that it is prepared to retry Breakiron

for murder. Breakiron appeals the denial of relief from his

robbery conviction, which, if invalidated, would no longer

constitute an aggravating factor during any future penalty

phase. Breakiron argues that the Brady violations found by

the District Court require the invalidation of his robbery

conviction as well, and he raises four other claims addressed

to that conviction. We agree with Breakiron on the Brady

claim and conclude that three of his other claims also warrant

relief. Accordingly, we will reverse the District Court’s

judgment to the extent that it denied Breakiron’s habeas

petition as to his robbery conviction and remand for the

District Court to grant his petition as to that conviction. 2

I. Background

1

For ease of reference, we refer to appellees collectively as

“the Commonwealth.”

2

Nothing said herein, however, would preclude retrying him

on this charge as well.

3

Because Breakiron’s murder conviction no longer is at

issue, we need only briefly summarize the background

relevant to the issues we address. On March 24, 1987,

Breakiron killed Saundra Marie Martin, the bartender of a bar

called “Shenanigan’s” in Uniontown, Pennsylvania, at which

he was the night’s last patron. He also stole her purse and

bags of money from the bar. The Commonwealth charged

him with murder and robbery and tried him before a Fayette

County jury in April 1988. As explained in more detail

below, that jury included a member who had been exposed to

testimony by another panel member at voir dire that

Breakiron “used to do a lot of robbing[.]” (N.T. 448;

A.717.) 3

At trial, Breakiron never denied killing Martin or

committing theft by stealing the money. Instead, he put on a

voluntary intoxication/diminished capacity defense and

argued that he was guilty of third-degree murder because he

did not have the specific intent to kill. He also argued that he

was guilty of theft, but not robbery, because he decided to

steal after his attack on Martin was complete. See 18 Pa.

Cons. Stat. § 3701(a)(1) (defining robbery as, inter alia,

infliction of injury or use of force “in the course of

committing a theft”).

The only evidence potentially relevant to that issue

was the testimony of the Commonwealth’s witness Ellis

Price, who was incarcerated with Breakiron before

Breakiron’s trial, and Breakiron’s own testimony. Price

testified that, while imprisoned with Breakiron, he and

3

Citations to the record are to the state trial court record and

the appendix on appeal, respectively.

4

Breakiron had “conversations regarding the offenses with

which [Breakiron] has been charged,” and that Breakiron

made “statements . . . regarding whether or not he participated

in these crimes.” (N.T. 1112; A.1410.) Price testified that

Breakiron “told me that when he was at the bar, that there was

another guy and girl there. So, he went into the bathroom to

hide until they left.” (N.T. 1114; A.1412.) According to

Price, Breakiron told him that he then returned to the bar area

and asked for another drink. (Id.) Martin, however, told him

that it was closing time and asked him to leave, “so he picked

up the ashtray and started hitting her.” (Id.) Price further

testified that Breakiron said “[h]e hit her a few times. She

wouldn’t go to the floor. So, he just—he pulled out the knife

and I don’t know what he did after that. Then, he drug her

out to his truck and took her to . . . his pap’s house” and

“finished her off there.” (N.T. 1114-15; A.1412-13.)

Breakiron, by contrast, testified that Martin started the

altercation by hitting him over the head with “something

heavy” after he put his arm around her. (N.T. 1253; A.1551.)

He further testified that he “blacked out,” awoke to find

Martin with a knife sticking out of her back, left the bar and

drove away. (N.T. 1254-55; A.1552-53.) He then returned to

the bar, put Martin’s body in his truck, went back into the bar,

“[a]nd then when I started to leave, I saw two money bags

laying on the floor to the entrance by the dance floor” and

“[p]ut them in the back of the truck.” (N.T. 1260-61; A.1558-

59.) At closing, Breakiron’s counsel argued that he was not

guilty of robbery because he decided to steal the money after

killing Martin. (N.T. 1260-61; A.1558-59.) Breakiron’s

counsel, however, did not request a charge on the lesser-

included offense of theft, and the trial court did not give one.

5

The jury found Breakiron guilty of first-degree murder

and robbery. At the penalty phase, the jury recommended a

death sentence after finding as an aggravating factor that he

murdered Martin “while in the perpetration of a felony”—i.e.,

the robbery. 42 Pa. Cons. Stat. § 9711(d)(6). (It found as an

additional aggravating factor that he committed the murder

“by means of torture.”) The trial court sentenced Breakiron

to death on the murder conviction plus five to ten years of

imprisonment on the robbery conviction. The Pennsylvania

Supreme Court affirmed. See Commonwealth v. Breakiron,

571 A.2d 1035 (Pa. 1990). Breakiron filed a petition under

Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons. Stat.

§§ 9541-9546 (the “PCRA”) in 1996, and the PCRA court

denied it after holding an evidentiary hearing. The

Pennsylvania Supreme Court affirmed that ruling as well.

See Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999)

(“Breakiron-2”).

Breakiron then instituted the federal habeas proceeding

at issue here in 2000. Shortly thereafter, he filed a second

PCRA petition in state court. The PCRA court dismissed it as

untimely and the Pennsylvania Supreme Court affirmed. See

Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001)

(“Breakiron-3”). The parties then litigated the federal habeas

petition before three different District Judges for almost seven

years, during which Breakiron amended his petition several

times, took discovery, and received an evidentiary hearing.

Breakiron ultimately asserted eighteen claims, including

claims addressed to the guilt and penalty phases of his trial

and to his murder and robbery convictions. Among them

were claims that the prosecution withheld evidence in

violation of Brady that he could have used to impeach Ellis

Price.

6

The District Court issued findings of fact on the Brady

claims on September 19, 2007. It then issued its opinion and

order on September 24, 2008, granting relief on three of those

claims and invalidating the murder conviction. The District

Court did not find Price’s testimony relevant to the robbery

charge, however, so it did not grant relief from the robbery

conviction on that basis (or any other). The District Court

granted Breakiron a certificate of appealability on one claim,

but the parties agree that it is moot in light of the invalidation

of his murder conviction and he has not pursued the claim on

appeal. 4 The Commonwealth moved for reconsideration,

which the District Court denied. The Commonwealth has not

appealed and asserts that it is prepared to retry Breakiron for

murder. Breakiron appealed and filed a motion to expand the

certificate of appealability to raise the claims at issue here,

which we granted.

II. Analysis

We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253(a). Our review of the District Court’s legal

conclusions is plenary. See Coombs v. DiGuglielmo, 616

F.3d 255, 260 (3d Cir. 2010). Like the District Court’s, our

review of Breakiron’s claims is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). “AEDPA provides that, where a habeas

4

That claim was that counsel rendered ineffective assistance

by failing to present mental health evidence in support of

Breakiron’s diminished capacity/voluntary intoxication

defense at the guilt phase and in support of mitigation at the

penalty phase.

7

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, 590 F.3d 223, 231 (3d Cir. 2009) (quoting 28

U.S.C. § 2254(d)).

Under AEDPA, a state court decision is “contrary to”

established federal law “if the state court reaches a conclusion

opposite to the Supreme Court’s own conclusion on a

question of law or decides the case differently where the

Supreme Court was confronted by a set of materially

indistinguishable facts.” McMullen v. Tennis, 562 F.3d 231,

236 (3d Cir. 2009). A state court decision is an

“unreasonable application” of established federal law “if the

state court unreasonably applies the correct legal rule to the

particular facts, unreasonably extends a legal principle to a

new context, or unreasonably refuses to extend the principle

to a new context where it should apply.” Id. This test “‘is an

objective one—a federal court may not grant habeas relief

merely because it concludes that the state court applied

federal law erroneously or incorrectly.’” Id. (citation

omitted). Instead, “[a] state court’s determination that a claim

lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Harrington v. Richter, — U.S. —,

No. 09-587, 2011 WL 148587, at * 11 (U.S. Jan. 19, 2011)

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Where the state court has not addressed the merits of a

8

claim, and the merits of the claim are properly before us, then

this deferential standard of review does not apply and we

instead review the claim de novo. See Porter v. McCollum,

130 S. Ct. 447, 452 (2009); Wilson v. Beard, 589 F.3d 651,

658 (3d Cir. 2009). In doing so, we nevertheless must

presume that state-court factual findings are correct unless the

presumption is rebutted by clear and convincing evidence.

See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010)

(citing 28 U.S.C. § 2254(e)(1)).

In this case, Breakiron argues that: (1) the Brady

violations require relief from his robbery conviction; (2) the

state trial court improperly precluded him from testifying as

to when he formed the intent to steal; (3) trial counsel

rendered ineffective assistance by failing to request a jury

charge on the lesser-included offense of theft; (4) trial counsel

rendered ineffective assistance by failing to take corrective

action after a venire member testified at voir dire that

Breakiron “used to do a lot of robbing” and a different

member of the same panel ended up on Breakiron’s jury; and

(5) the cumulative effect of these four errors deprived him of

a fair trial. We conclude that Breakiron’s Brady claims and

his two claims of ineffective assistance of counsel, whether

considered alone or cumulatively, require relief from his

robbery conviction. 5

5

The District Court addressed Breakiron’s claim of

cumulative error, but limited its analysis to his claims of

ineffective assistance of counsel instead of considering his

alleged errors of all kinds. Cf. Albrecht v. Horn, 485 F.3d

103, 138-39 (3d Cir. 2007). Because we conclude that three

of Breakiron’s claims individually warrant relief, their

9

A. The Brady Claims

Breakiron argues that his robbery conviction must be

invalidated because the prosecution withheld evidence that he

could have used to impeach the testimony of Ellis Price. In

his second PCRA petition, Breakiron raised several

Brady claims, including a claim that the prosecution failed to

disclose that Price had been convicted of an impeachable

crimen falsi—i.e., a Michigan state conviction of assault with

the intent to rob. The Pennsylvania Supreme Court did not

address this claim on the merits because it held that

Breakiron’s second PCRA petition was untimely. See

Breakiron-3, 781 A.2d at 98, 101. Breakiron asserted the

same claim in his habeas petition, which he later amended to

argue that the prosecution also failed to disclose that Price

had sought a deal from Breakiron’s prosecutor in exchange

for his testimony and was a suspect in an investigation

pending when he testified (in which he ultimately was not

charged). The Commonwealth argued in the District Court

that Breakiron had procedurally defaulted his Brady claims

and all the other claims he raised in his second PCRA

petition. The District Court rejected that argument by order

entered October 15, 2004, and the Commonwealth has not

challenged that ruling on appeal.6

cumulative effect necessarily does as well. In light of our

disposition, we need not address Breakiron’s second claim.

6

We nevertheless may consider the issue sua sponte. See

Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997). In the

District Court, the Commonwealth argued that the claims

Breakiron raised in his second PCRA petition were

10

Thereafter, Breakiron took discovery on his Brady

claims and the District Court held an evidentiary hearing. It

ultimately granted relief from the murder conviction under

Brady because it concluded that the prosecution failed to

disclose that Price: (1) had sought a deal from prosecutors in

exchange for his testimony against Breakiron; (2) was a

suspect in another criminal investigation pending at that time;

and (3) had been convicted of a crimen falsi. The District

Court concluded that this evidence was material impeachment

evidence because Price’s testimony contradicted Breakiron’s

testimony that he had not intended to kill Martin and was the

only direct evidence that Breakiron’s attack on Martin was

intentional. (Dist. Ct. Op. at 59-61.) The District Court

found Price’s testimony irrelevant to the robbery charge,

procedurally defaulted because the Pennsylvania Supreme

Court dismissed it as untimely. The District Court properly

rejected that argument because Pennsylvania’s former

“relaxed waiver” rule in capital cases meant that the PCRA

statute of limitations did not constitute an adequate and

independent state-law ground for denying the claims at the

time of the alleged default. See Bronshtein v. Horn, 404 F.3d

700, 708-10 (3d Cir. 2005). The Commonwealth also argued

that the Brady claims Breakiron had not raised in state court

were unexhausted and now procedurally defaulted as well.

The District Court agreed, but properly concluded that

Breakiron necessarily would show “cause and prejudice” to

excuse the default if his underlying claims had merit (i.e., if

the prosecution withheld material evidence). See Banks v.

Dretke, 540 U.S. 668, 691 (2004) (“cause and prejudice”

inquiry parallels elements of substantive Brady claim).

11

however, because Price “did not reference the bar’s money

bags, Martin’s purse, or any statement Breakiron allegedly

had made to him regarding the intent to steal or the robbery.”

(Dist. Ct. Op. at 58 & n.25.) Thus, it did not grant relief from

the robbery conviction. Breakiron argues on appeal that the

prosecution’s suppression of evidence requires relief from

that conviction as well. 7

We agree. A Brady violation occurs if: (1) the

evidence at issue is favorable to the accused, because either

exculpatory or impeaching; (2) the prosecution withheld it;

and (3) the defendant was prejudiced because the evidence

was “material.” See Wilson, 589 F.3d at 659 (citing, inter

alia, Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In

7

The Commonwealth argues that Breakiron waived this issue

because he did not meaningfully raise it in the District Court,

where he focused instead on the effect of the Brady violations

on his murder conviction. Although the District Court

addressed the effect of the Brady evidence on the robbery

conviction, neither the District Court nor the parties have

cited any document filed in the District Court actually raising

that issue. We nevertheless reach it because the District

Court did so and the merits are fully briefed. See Albrecht,

485 F.3d at 120 (reaching issue that Commonwealth had not

raised in the District Court because the District Court

addressed it sua sponte and the merits were fully briefed on

appeal); see also Silva v. Brown, 416 F.3d 980, 991 (9th Cir.

2005) (considering materiality of Brady evidence to robbery

charge, though noting that, “[o]n appeal, [petitioner]

understandably focuses on the effect of the undisclosed deal

on his murder conviction”).

12

this case, the Commonwealth has not appealed the District

Court’s rulings that the evidence at issue was favorable to

Breakiron or that the prosecution withheld it and does not

argue that we can or should review those issues on

Breakiron’s appeal. 8 Thus, the only issue on appeal is

whether the evidence was material to the robbery charge. See

Simmons, 590 F.3d at 233-34. We exercise plenary review

over that legal issue, see Wilson, 589 F.3d at 657 & n.1, and

no deference under AEDPA is due because the state courts

did not adjudicate this claim on the merits, see id. at 658.

8

In this regard the prosecutor has much to answer for. When

asked at oral argument why the prosecutor did not disclose

this material, the Commonwealth conceded that it “seems a

little strange.” The Commonwealth also conceded that such

material would have been disclosed “under the modern rules

of discovery.” That response is at once true and insufficient.

It was so well-established before Breakiron’s trial as to have

been axiomatic that prosecutors must disclose impeachment

evidence like that at issue here. See, e.g., United States v.

Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States,

405 U.S. 150, 154 (1972). The Commonwealth has not

otherwise attempted to explain why this material was not

disclosed or to defend the prosecutor’s failure to disclose it.

Like the District Court, we are troubled by that failure. We

are at a loss to understand why prosecutors, so long after

Brady became law, still play games with justice and commit

constitutional violations by secreting and/or withholding

exculpatory evidence from the defense. What the District

Court found, and we declare now, was known and should

have been revealed—years ago at the commencement of

Breakiron’s trial, thus obviating the need for all these

protracted years of litigation.

13

Under Brady, “[e]vidence is material if there is a

reasonable probability that, if the evidence had been

disclosed, the result of the proceeding would have been

different.” Wilson, 589 F.3d at 665 (citing Giglio, 405 U.S.

at 154). “‘[T]he question is not whether the defendant would

more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence. A reasonable probability of a different result is

shown when the government’s evidentiary suppression

undermines confidence in the outcome of the trial.’” Id.

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995))

(internal quotation marks omitted).

The District Court concluded that the prosecution’s

suppression of impeachment evidence undermines confidence

in the murder conviction because Price’s testimony supported

the prosecution’s theory that Breakiron intended to kill

Martin. Breakiron argues that Price’s testimony also

supported the prosecution’s theory that he intended to steal at

the time he attacked her. The Commonwealth, by contrast,

argues that Price’s testimony did not support the robbery

conviction because he never testified that Breakiron told him

anything about the theft.

As an initial matter, the Commonwealth’s argument is

undercut by the prosecution’s own closing argument, in

which it expressly argued that Price’s testimony supported the

robbery charge. The prosecution argued: “The second

element, in the cour[se] of committing a theft, ladies and

gentlemen. . . . Ellis Price told you that when Mr. Breakiron

came back to the bar area that the bartender was counting the

14

money.” (N.T. 1335; A.1633.) When Breakiron’s counsel

objected that Price had not so testified, the trial court

instructed: “The jury will recall the testimony. The Court

does not have any recollection of that, but the jury will recall

what was testified to by Ellis Price.” (N.T. 1335-36; A.1633-

34.) Thus, although Price in fact had offered no such

testimony, and although the trial court’s instruction suggested

as much, the Commonwealth’s position is at odds with the

prosecution’s express argument during closing.

We need not decide whether this point is dispositive,

however, because we agree with Breakiron that Price’s actual

testimony supported the robbery charge in three ways.

First, Breakiron argues that Price’s testimony

suggested that the incident as a whole was a “premeditated

and intentional plan,” which contradicted his own testimony

that he did not intend to steal the money until after he had

killed Martin, left, and then returned to the bar. This

argument is persuasive. Price opened his testimony by

testifying that Breakiron told him about his “offenses with

which he has been charged” and his “crimes,” plural, which

included the robbery charge. Price then testified that

Breakiron said he waited in the bathroom until the other

patrons left before attacking Martin. This testimony indicates

that Breakiron was “lying in wait” and raises an inference that

the incident as a whole was premeditated.

The Commonwealth nevertheless argues that Price’s

testimony was not relevant to the robbery charge because he

never mentioned Breakiron’s theft of the money. To the

contrary, it argues that all of the evidence supporting the

robbery charge came from Breakiron himself, who testified

15

that (1) Martin had possession of the money bags and her

purse when Breakiron attacked her, and (2) Breakiron later

took the money bags from the scene. It further argues that

this evidence was sufficient to convict for robbery because

the jury could have inferred the requisite intent from acts

committed shortly after the killing. See Commonwealth v.

Robertson, 463 A.2d 1133, 1136 (Pa. Super. Ct. 1983).

That much is true. As Breakiron argues, however, the

Brady materiality standard is not a “sufficiency of the

evidence” test, and instead turns on whether the withheld

evidence could reasonably “put the whole case in such a

different light as to undermine confidence in the verdict.”

Kyles, 514 U.S. at 435 & n.8. Jurors, of course, are entitled

to draw all reasonable inferences from the evidence

presented, see United States v. Vosburgh, 602 F.3d 512, 537

(3d Cir. 2010); Commonwealth v. Wright, 328 A.2d 514, 516

(Pa. 1974), and the trial court so instructed the jury in this

case (N.T. 1344; A.1642). Just as the jury could have inferred

that Breakiron intended to steal when he attacked Martin

because he later took the money, so too could it have drawn

that inference from Price’s testimony suggesting that the

incident as a whole was premeditated.

Second, Breakiron argues that Price’s testimony about

Breakiron supposedly “finishing off” Martin after he left the

bar supported the conclusion that he stole the money before

he killed Martin, and that he thus killed her “in the course of

committing a theft” and thereby committed robbery. See 18

Pa. Cons. Stat. § 3701(a)(1)(i). The Commonwealth counters

that Breakiron himself testified that he was not sure whether

Martin was dead when he returned to the bar, and that she

thus might have been alive when he took the money. (N.T.

16

1259-60; A.1557-58.) That argument is beside the point.

Although Breakiron frames his argument in terms of when he

“killed” Martin, the relevant consideration under the statute is

when he used the force that led to her death, not when she

actually died. See 18 Pa. Cons. Stat. § 3701(a)(1)(i).

Breakiron testified that the assault was over when he returned

to the bar and took Martin’s body and the money. Price

contradicted that testimony by testifying that Breakiron told

him he took Martin from the bar and later “finished her off”

at his “pap’s” house, which would have been after Breakiron

took the money and thus “in the course of committing” that

theft. See 18 Pa. Cons. Stat. § 3701(a)(2) (“An act shall be

deemed ‘in the course of committing a theft’ if it occurs in an

attempt to commit theft or in flight after the attempt or

commission.”). Price’s testimony was the only evidence that

Breakiron committed the theft during the course of an

ongoing assault.

Finally, Breakiron argues that Price’s testimony

undermined his credibility in general because Price’s account

differed from his own. The Commonwealth has not

addressed this argument, and we agree with Breakiron. Price

testified that Breakiron told him a different story than

Breakiron told the jury. The District Court held that there is a

reasonable probability that the jury would have believed

Breakiron’s account instead of Price’s if the defense had been

able to impeach Price’s credibility with the undisclosed

evidence. Even though Price did not testify directly that

Breakiron told him anything about the theft, Price’s testimony

undermined Breakiron’s credibility as a whole. With no other

direct evidence on when Breakiron formed the intent to take

the money, Breakiron’s own credibility was crucial.

Accordingly, the impeachment evidence that the prosecution

17

withheld was material to the robbery charge and its Brady

violations require relief from the robbery conviction.9

B. Counsel’s Failure to Request a Theft Instruction

Breakiron argues that trial counsel rendered ineffective

assistance by failing to request a jury instruction on theft,

which is a lesser-included offense in the charge of robbery.

See 18 Pa. Cons. Stat. § 3701(a)(1); Commonwealth v.

Williams, 559 A.2d 25, 27 n.2 (Pa. 1989). We agree. At

trial, Breakiron testified that he took the money bags only

after he left the bar following the assault, returned, put

Martin’s body in his truck, went back into the bar, and then

spotted the bags as he was on his way back out. (N.T. 1260-

61; A.1558-59.) At closing, his counsel argued that, although

Breakiron stole the money bags, he was not guilty of robbery

9

The parties have not cited any cases in which a court has

addressed whether Brady evidence was material to some

charges but not others. We have located one case, which is

informative by comparison. In Silva, the Court of Appeals

for the Ninth Circuit invalidated a murder conviction because

the prosecution withheld evidence that the defense could have

used to impeach a witness whose testimony provided the only

evidence of the defendant’s role in the murder. See 416 F.3d

at 990-91. The court declined to invalidate the defendant’s

convictions of robbery and other crimes, however, because

“strong evidence in the record” corroborated that witness’s

testimony regarding the defendant’s role in those crimes. Id.

at 991. In this case, by contrast, there is no direct evidence of

record—strong or otherwise—that Breakiron intended to take

the money at the time he attacked Martin.

18

because he decided to take the money only after Martin was

dead. (N.T. 1320-21; A.1618-19.) The trial court then

instructed the jury that it could find Breakiron guilty of

robbery only if it found both that Breakiron committed a theft

and that he inflicted serious bodily injury on Martin “in the

course of” committing that theft. (N.T. 1352-53; A.1650.) 10

10

The robbery charge reads in relevant part:

In order to find the defendant guilty of robbery, you

must be satisfied that the following two elements have

been proven beyond a reasonable doubt by the

Commonwealth. First, that the defendant inflicted

serious bodily injury on Saundra Marie Martin. . . .

The second element for robbery is that the defendant

did so in the course of committing a theft. . . . As I

have already indicated, you cannot find the defendant

guilty of robbery unless you are satisfied beyond a

reasonable doubt that he committed a theft. A person

commits a theft if he unlawfully takes the movable

property of another person with intent to deprive that

person of it permanently. You would need to decide in

this case whether the defendant took money and/or a

purse which were the movable property of Saundra

Marie Martin by inflicting serious bodily injury or the

threat of serious bodily injury or the threat oto [sic]

commit the crime of murder and that the defendant did

these acts in the course of committing the theft.

Basically, members of the jury, there are therefore two

elements. First, that the theft occurred or that it

occurred by infliction of serouus [sic] bodily injury or

theft as I have explained it to you.

19

Breakiron’s counsel did not request a further instruction that

the jury could find him guilty solely of the lesser-included

offense of theft, and the trial court did not give one.

Breakiron claims that his counsel rendered ineffective

assistance in that regard. He raised this claim in his first

PCRA proceeding. The PCRA court held an evidentiary

hearing, at which counsel testified, then rejected the claim on

the merits. The Pennsylvania Supreme Court affirmed. See

Breakiron-2, 729 A.2d at 1094-95. The District Court

deferred to that ruling under AEDPA, but explained that it

would deny the claim even under de novo review.

This claim is governed by the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), which

constitutes “clearly established Federal law” for AEDPA

purposes. Williams v. Taylor, 529 U.S. 362, 391 (2000);

Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A

habeas petitioner asserting a claim under Strickland must

establish two elements. “First, the defendant must show that

counsel’s performance was deficient. This requires showing

that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Strickland, 466 U.S. at 687. In

evaluating counsel’s performance, “a court must indulge a

strong presumption that counsel’s conduct falls within the

(N.T. 1352-53; A.1650-51.) As Breakiron notes, the last

sentence of this charge reads “or” where it should read “and,”

and thus suggests that theft alone is sufficient to convict of

robbery. Breakiron has raised no independent claim for relief

in this regard on appeal but, as explained below, this

suggestion informs our assessment of prejudice.

20

wide range of reasonable professional assistance[.]” Id. at

689. Thus, counsel’s performance will be deemed deficient

only if it “fell below an objective standard of

reasonableness.” Id. at 688. The question ultimately is

“whether, in light of all the circumstances, the [challenged]

acts or omissions were outside the wide range of

professionally competent assistance.” Id. at 690.

“Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing

that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. at

687. To establish prejudice, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at

694.

1. Counsel’s Performance

The Pennsylvania Supreme Court did not address the

issue of performance and instead rejected this claim solely on

the ground that Breakiron failed to show prejudice. See

Breakiron-2, 729 A.2d at 1094-95. The District Court also

did not address counsel’s performance. Nevertheless, we

may do so in the first instance because the record is

adequately developed. See Hodge v. United States, 554 F.3d

372, 379 n.9 (3d Cir. 2009). We will review the issue de

novo because the state court did not address it. See Porter,

130 S. Ct. at 452.

We conclude that counsel’s failure to request a theft

21

instruction was objectively unreasonable. As Breakiron

argues, he would have been entitled under Pennsylvania law

to an instruction on the lesser-included crime of theft if

counsel had requested one because the charge was supported

by the evidence. See Commonwealth v. Polimeni, 378 A.2d

1189, 1192 & nn.3-4 (Pa. 1977) (citing, inter alia, Keeble v.

United States, 412 U.S. 205, 213 (1973)); see also Beck v.

Alabama, 447 U.S. 625, 635-36 & n.12 (1980) (counting

Pennsylvania among the states that have “unanimously” so

held and citing Commonwealth v. Terrell, 393 A.2d 1117 (Pa.

1978)). 11 The Commonwealth does not argue otherwise.

The Commonwealth also does not defend counsel’s

performance on this point, and it is apparent from the record

that counsel did not have a strategic reason for not requesting

a theft instruction. When asked at the PCRA hearing whether

he ever considered doing so, he answered merely “I don’t

believe so.” (N.T. PCRA 7/17/97 PM at 70; A.1892.) Thus,

the record establishes that counsel’s decision not to request a

theft instruction was not the kind of strategic choice entitled

to deference under Strickland. See Thomas v. Varner, 428

F.3d 491, 499-500 (3d Cir. 2005).

The record also establishes that it was objectively

11

Breakiron argues that instructions on lesser-included

offenses that are supported by the evidence are required by

the Due Process Clause as well. See Beck, 447 U.S. at 637,

638 n.14; Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir.

1988). Because Breakiron has not raised an independent due

process claim, and because he would have been entitled to a

theft instruction if requested under Pennsylvania law, we need

not address that issue.

22

unreasonable. Counsel’s sole theory of defense to the

robbery charge was that Breakiron had committed a theft but

not a robbery. Without a theft instruction, the jury was left

with only two choices—conviction of robbery or outright

acquittal. In such all-or-nothing situations, “‘[w]here one of

the elements of the offense charged remains in doubt, but the

defendant is plainly guilty of some offense, the jury is likely

to resolve its doubts in favor of conviction.’” Beck, 447 U.S.

at 634 (quoting Keeble, 412 U.S. at 212-13). Thus, even

though juries are obligated “‘as a theoretical matter’” to

acquit if they do not find every element of a crime, there is a

“‘substantial risk that the jury’s practice will diverge from

theory’” when it is not presented with the option of

convicting of a lesser offense instead of acquitting outright.

Id. (quoting Keeble, 412 U.S. at 212). By conceding theft but

not requesting a theft instruction, Breakiron’s counsel

exposed him to that “substantial risk,” and the record reveals

that he had no strategic reason for doing so.

Nor could there have been any. Counsel did not

pursue an all-or-nothing strategy at trial by arguing that

Breakiron had not committed any crime. Instead, he

conceded that Breakiron had committed theft, but neglected

to request the theft instruction that not only would have been

consistent with that theory of defense but would have given

the jury an opportunity to effectuate it. Under the

circumstances, no reasonable counsel would have failed to

request that instruction. See Richards v. Quarterman, 566

F.3d 553, 569-70 (5th Cir. 2009) (holding that failure to

request a lesser-included-offense instruction consistent with

theory of the defense “fell below an objective standard of

reasonableness”); cf. Lopez v. Thurmer, 594 F.3d 584, 588

(7th Cir. 2010) (holding that decision not to request lesser-

23

included-offense instruction “appears to have been strategic”

where instruction would have been inconsistent with

defendant’s testimony that he “was innocent of any crime”).

2. Prejudice

To show prejudice, Breakiron must establish that there

is a reasonable probability that the jury would have convicted

him of theft only and not of robbery if counsel had requested

the theft instruction to which he was entitled. The

Pennsylvania Supreme Court held that Breakiron had not

made that showing. Thus, under AEDPA, we may not grant

relief on this claim unless that ruling either was “contrary to,

or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States[.]” 28 U.S.C. § 2254(d)(1). If we

determine that the Pennsylvania Supreme Court’s ruling was

contrary to or an unreasonable application of Strickland, then

we still must review the claim de novo to determine whether

Breakiron is entitled to relief. See Bronshtein v. Horn, 404

F.3d 700, 724 (3d Cir. 2005).

The Pennsylvania Supreme Court’s prejudice analysis

reads in relevant part:

We find that even if this argument had merit

and that trial counsel could have requested a

theft and a robbery jury charge, Breakiron

cannot establish that he was prejudiced.

The charge of the trial court instructed the jury

not to return a guilty verdict of robbery without

first finding that a theft had occurred. (N.T. at

24

1352-54) Moreover, trial counsel argued to the

jury during closing argument that there could be

no robbery, but solely a theft because Breakiron

took money only after Ms. Martin was dead.

(N.T. at 1312, 1320-21) The jury rejected this

argument and convicted Breakiron of robbery.

In Breakiron I, we held that the evidence

supported this verdict because there was no

question that Breakiron took the victim’s purse

and the bags of money from the bar. Breakiron

I, 524 Pa. at 296-97, 571 A.2d at 1042. Had a

theft instruction been given, it is not likely that

the jury would have returned a verdict only on

the theft charge.

Breakiron-2, 729 A.2d at 1095. Thus, the Pennsylvania

Supreme Court rejected this claim because (1) the trial court’s

instruction made it clear that Breakiron was not guilty of

robbery based on a theft alone, so the jury necessarily rejected

counsel’s argument that Breakiron committed theft alone, and

(2) the evidence of robbery was sufficient. 12

Breakiron challenges both rationales, arguing that the

first is an “unreasonable application” of Strickland and that

the second is “contrary to” Strickland. We agree on both

counts. First, the Pennsylvania Supreme Court reasoned that

12

The Pennsylvania Supreme Court went on to find no

prejudice at the penalty phase because the jury found another

aggravating circumstance in addition to the robbery. See id.

That issue is no longer relevant given the District Court’s

invalidation of the murder conviction and death sentence.

25

the jury would have found Breakiron guilty of robbery even if

a separate theft instruction had been given because the trial

court’s instruction made clear that theft alone was not enough

to convict of robbery, and the jury thus necessarily rejected

Breakiron’s argument that he committed theft alone. This

reasoning is a significant stretch of plausibility. The problem

with this analysis is that it rests solely on the jury’s duty “‘as

a theoretical matter’” to acquit if it does not find every

element of a crime and does not acknowledge the

“‘substantial risk that the jury’s practice will diverge from

theory’” when it is not presented with the option of

convicting of a lesser offense instead of acquitting outright.

Beck, 447 U.S. at 634 (quoting Keeble, 412 U.S. at 212). The

crux of Breakiron’s claim of prejudice is that he was exposed

to this “substantial risk,” but the Pennsylvania Supreme Court

did not acknowledge it. 13

Second, the Pennsylvania Supreme Court also noted

that the evidence of robbery was “sufficient” because

Breakiron admitted taking money from the bar. Breakiron

argues that it was contrary to Strickland to rely on the mere

sufficiency of the evidence of robbery because the only

relevant question is whether there was a “reasonable

probability” that the jury would have convicted him only of

13

Breakiron has not argued that the Pennsylvania Supreme

Court’s decision is contrary to or an unreasonable application

of Beck and Keeble themselves, but the principles set forth in

those decisions are relevant in evaluating the Pennsylvania

Supreme Court’s assessment of prejudice. Cf. Strickland, 466

U.S. at 695 (“The governing legal standard plays a crucial

role in defining the question to be asked in assessing the

prejudice from counsel’s errors.”).

26

theft instead. The District Court rejected this argument

because (1) the Pennsylvania Supreme Court did not rely

solely on the sufficiency of the evidence, and (2) it is proper

to consider the weight of the evidence in assessing prejudice

under Strickland. (Dist. Ct. Op. at 94-95.)

The District Court is right that the Pennsylvania

Supreme Court did not solely rely on the sufficiency of the

evidence, and thus did not apply a “sufficiency of the

evidence” standard that is contrary to the “reasonable

probability” standard set forth in Strickland. The

Pennsylvania Supreme Court’s partial reliance on the

sufficiency of the evidence, however, is nevertheless

problematic. It is of course true that courts must weigh the

evidence in assessing prejudice. See Buehl v. Vaughn, 166

F.3d 163, 172 (3d Cir. 1999) (citing Strickland, 466 U.S. at

695). The Pennsylvania Supreme Court, however, merely

noted the sufficiency of the evidence without examining its

weight. It did not weigh all the evidence of record (including

Breakiron’s testimony that he took the bags of money only

after spotting them after the assault was over) to determine

whether there was a reasonable probability that the jury

would have convicted him only of theft if it had been given

that option. Merely noting that the evidence was sufficient to

convict does not accomplish that task. In sum, the

Pennsylvania Supreme Court did not acknowledge the

substantial risk to which Breakiron was exposed in the

absence of a theft instruction and did not weigh the evidence

of record to determine whether it prejudiced him. Thus, its

ruling is both contrary to and an unreasonable application of

Strickland.

The question remains whether Breakiron suffered

27

prejudice when the issue is considered de novo. Breakiron

argues that the failure to request a theft instruction deprived

the jury of the only way to give effect to counsel’s theory of

defense (i.e., that Breakiron committed a theft but not a

robbery). The District Court reasoned that it would deny this

claim even considered de novo essentially for the same reason

as the Pennsylvania Supreme Court: the trial court properly

instructed the jury on the elements of robbery, so the jury

must have found those elements and not merely a theft in

finding Breakiron guilty. (Dist. Ct. Op. at 95-96.) Thus,

under the District Court’s reasoning, counsel’s failure to

obtain a theft instruction did not deprive the jury of a way of

giving effect to counsel’s argument because the jury could

have done so simply by finding Breakiron not guilty of

robbery.

Like the Pennsylvania Supreme Court, however, the

District Court did not account for the substantial risk that a

jury will convict of an unproven offense when the defendant

is guilty of some crime but the jury instructions present it

with an all-or-nothing choice. See Beck, 447 U.S. at 634.

The question in assessing prejudice is whether there is a

reasonable probability that the jury did so here, and we

conclude that there is. Breakiron testified that he did not

decide to take the money bags until after his assault on Martin

was complete and he left and then returned to the bar. The

only evidence to the contrary was the mere fact that he took

the money and Price’s testimony suggesting that the incident

as a whole was premeditated and that Breakiron took the

money before his assault on Martin was complete. Thus,

although Price’s testimony supported the robbery charge for

Brady purposes and the evidence was sufficient to convict,

the prosecution’s evidence on that charge was not particularly

28

strong and was far from overwhelming. Moreover, the

robbery instruction actually given by the trial court, though

initially proper, compounded the error by closing with the

erroneous suggestion that the jury could convict Breakiron of

robbery on the basis of a theft alone. Under the

circumstances, there is a reasonable probability that the jury

would have convicted Breakiron only of theft if the jury

instructions had given it that option.14

C. Counsel’s Failure to Take Corrective

Action at Voir Dire

Finally, Breakiron argues that his counsel rendered

ineffective assistance in failing to take corrective action after

a venire member testified that Breakiron “used to do a lot of

robbing.” During voir dire, a venire member (Charles Gerba,

No. 67) testified under oath in front of the panel that he knew

Breakiron and that Breakiron had committed robberies: “I

know the boy. I lived in the terrace and he used to do a lot of

robbing there.” (N.T. 448; A.717.) Gerba also testified that,

based on what he knew, he had a “fixed opinion” about the

case and could not be an impartial juror, and the trial court

excused him. (Id.) Breakiron’s counsel did not object to

Gerba’s testimony or move to strike the venire panel or for a

14

Breakiron also argues that he was prejudiced by the

absence of a theft instruction because the robbery charge did

not include a so-called “afterthought” instruction—i.e., an

instruction emphasizing that he could not be guilty of robbery

if he committed theft only as an “afterthought” following the

murder. In his reply brief, Breakiron clarifies that this

argument is not an independent claim for relief, so we need

not address it. (Breakiron Reply Br. at 19-20.)

29

mistrial, and the trial court took no corrective action sua

sponte. One of the venire members on the same panel who

was in the room at the time (Paul Manges, No. 114) ended up

serving on Breakiron’s jury.

The trial court opened voir dire by questioning the

venire members regarding their general knowledge of the

parties and the case. Before reaching Gerba, the trial court

conducted its initial questioning of Manges. The trial court

asked him whether he had formed any opinion about the case

from what he had read in the newspaper. Manges testified

that he had not and agreed that he could decide the case

“solely on the basis of what transpires in this room[.]” (N.T.

444-45; A.713-714.) The trial court later questioned Gerba,

who testified that Breakiron “used to do a lot of robbing.”

After the trial court excused Gerba, counsel questioned the

venire members left on the panel, including Manges, but

neither counsel nor the trial court asked Manges about

Gerba’s statement. (N.T. 512-20; A.781-89.)

Breakiron argues that his counsel rendered ineffective

assistance by failing to move to strike the venire panel, seek a

mistrial, or take other corrective action to insure that no one

exposed to Gerba’s statement served on the jury. Breakiron

raised this claim during his first PCRA proceeding. The

PCRA court held an evidentiary hearing, at which his counsel

testified. It then denied the claim on the merits, and the

Pennsylvania Supreme Court affirmed. See Breakiron-2, 729

A.2d at 1093-94. The Pennsylvania Supreme Court based its

ruling solely on the issue of counsel’s performance. The

District Court deferred to that ruling under AEDPA, but also

explained that it would deny the claim on de novo review of

the issue of prejudice as well.

30

1. Counsel’s Performance

As the Supreme Court recently emphasized, the

standard for evaluating counsel’s performance under

Strickland “is a most deferential one” that, under AEDPA,

becomes “‘doubly’” deferential when a state court already has

found counsel’s performance constitutionally sufficient.

Harrington, 2011 WL 148587, at *13 (quoting Knowles v.

Mirzayance, 129 S. Ct. 1411, 1420 (2009)). Thus, we may

not grant relief on this claim unless we conclude, not only

that counsel’s performance was objectively unreasonable, but

that “there is no possibility fairminded jurists could

disagree[.]” Id. at *12. Even under this doubly deferential

standard, we conclude that counsel’s failure to take corrective

action was objectively unreasonable and that the

Pennsylvania Supreme Court unreasonably applied Strickland

in concluding otherwise.

The Pennsylvania Supreme Court concluded that

counsel’s decision not to move to strike the venire panel or

for a mistrial was part of a reasonable trial strategy. Its

reasoning reads in full:

Under these circumstances, a motion to

strike the jury panel may have been an

appropriate course of action. Nonetheless, trial

counsel is not ineffective for failing to do so.

At the PCRA hearing, trial counsel testified that

he did not make a motion to strike or move for a

mistrial because the seated juror had stated that

he could render an unbiased opinion, and

consequently there was no basis to strike the

31

panel or move for a mistrial. The PCRA court

found that this was a plausible trial tactic, and

therefore Breakiron failed to meet his burden

that counsel’s actions were not reasonably

based.

After reviewing the jury voir dire of the

juror in question, we agree with the PCRA

court, and find that trial counsel had a

reasonable basis for his actions. The juror

stated that he could be a fair and unbiased juror,

and that no one spoke of the case in his

presence. The PCRA court did not err in

denying Breakiron’s petition.

Breakiron-2, 729 A.2d at 1094 (citations and footnotes

omitted). Thus, the Pennsylvania Supreme Court concluded

that counsel’s belief that Manges could be fair and impartial

was a strategic reason for allowing him on the jury and that

counsel’s belief was reasonably supported by the record.

Breakiron argues that this ruling was “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(2), because the Pennsylvania Supreme Court

misread the PCRA and voir dire transcripts. He also argues

that its ruling was an unreasonable application of Strickland.

We agree that the Pennsylvania Supreme Court’s

characterization of the record is not entirely accurate. It

based its ruling on two factual determinations. First, it

concluded that counsel testified at the PCRA hearing that the

reason he did not take corrective action was that “the seated

juror had stated that he could render an unbiased opinion.”

32

Breakiron-2, 729 A.2d at 1094. Counsel did not actually

testify that he took no corrective action because Manges

“stated that he could render an unbiased opinion.” Counsel’s

actual testimony, in relevant part, was:

A. Why didn’t I ask for a mistrial at that point?

Q. Yes, sir.

A. Well, he was — that juror [apparently

Gerba] was excused and —

*****

A. I don’t know why there was no request

for a mistrial at that time, other than the

fact that this guy [apparently Gerba] was

excused, and I believe that we

questioned all of the jurors individually

after that. The court had asked several

questions based on what Mr. Manges

said, number 114, after consultation with

Mr. Breakiron, we felt that he would be a

fair and impartial juror toward Mr.

Breakiron.

(N.T. PCRA 7/17/97 P.M. at 75-76; A.1897-98.) Thus,

counsel testified merely that he “felt” Manges would be a fair

and impartial juror, not that Manges actually said he could or

that he declined to take corrective action on that basis.

Second, the Pennsylvania Supreme Court concluded

that Manges’s testimony at voir dire made counsel’s decision

33

reasonable because its own review of the voir dire transcript

confirmed that “[t]he juror stated that he could be a fair and

unbiased juror[.]” Breakiron-2, 729 A.2d at 1094. Manges

actually never testified that he could be a “fair and impartial

juror,” either in the abstract or in light of Gerba’s statement.

Under initial questioning by the trial court, Manges testified

merely that he had not formed a fixed opinion from what he

read in the newspapers and agreed that he could judge the

case “solely on the basis of what transpires in this room[.]”

(N.T. 444-45; A.713-14.) That questioning referred only to

Manges’s exposure to newspaper articles, and it occurred

before Gerba made the statement at issue here (which, of

course, “transpire[d] in th[at] room”). Manges also did not

state that he could be a “fair and impartial juror” in response

to counsel’s questioning after Gerba testified. Manges did

testify that he had not formed an opinion as to Breakiron’s

guilt or innocence, but only when asked whether he had done

so on the specific bases of reading the newspaper or

discussing the case with his wife. (N.T. 512-13; A.781-82.)

And again, neither counsel nor the trial court asked him about

Gerba’s statement.

Even if we assume that the Pennsylvania Supreme

Court’s factual findings are entitled to deference under

AEDPA, however, we still conclude that its ultimate ruling is

objectively unreasonable. The Pennsylvania Supreme Court

concluded that counsel’s decision to allow Manges on the

jury was a reasonable strategic decision because counsel

believed that Manges could be fair and impartial. The

primary problem with that conclusion is that counsel could

have had no reasonable basis for that belief because neither

he nor the trial court questioned Manges about Gerba’s

statement. Counsel’s “feeling” that Manges could be fair and

34

impartial despite that statement thus was insufficiently

informed. Cf. Strickland, 466 U.S. at 691 (“[C]ounsel has a

duty to make reasonable investigations or make a reasonable

decision that makes particular investigations unnecessary.”).

In addition, counsel’s testimony does not explain why

he took no action when Gerba made the statement in the first

place. His initial testimony on that point was “I don’t know

why there was no request for a mistrial at that time[.]” (N.T.

PCRA 7/17/97 P.M. at 75; A.1897.) Manges’s answers to the

trial court’s questioning provided no basis not to do so

because the trial court questioned Manges before Gerba made

his statement.

Counsel later testified that he did not move for a

mistrial because he did not think “that anything egregious had

occurred” during jury selection. (N.T. PCRA 7/18/97 A.M. at

36; A.2021). That statement could mean that counsel did not

believe anything “egregious” had occurred in light of his and

the trial court’s questioning of Manges, in which case it

suffers from the same deficiencies just discussed. That

statement could also mean that counsel did not believe that

the panel’s exposure to Gerba’s testimony itself was

sufficiently “egregious” to warrant corrective action. Either

way, there is no reasonable basis to conclude that counsel’s

performance in this regard was constitutionally adequate.

Manges was exposed to sworn testimony that

Breakiron “used to do a lot of robbing”—i.e., that Breakiron

had a history of committing the very same crime of which he

was accused at trial. Federal courts have long recognized that

evidence suggesting a propensity to commit crimes is patently

prejudicial. See, e.g., Old Chief v. United States, 519 U.S.

35

172, 181 (1997) (explaining that propensity evidence “‘is said

to weigh too much with the jury and to so overpersuade them

as to prejudge one with a bad general record and deny him a

fair opportunity to defend against a particular charge’”)

(quoting Michelson v. United States, 335 U.S. 469, 476

(1948)); Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007)

(“Evidence that a defendant has committed prior criminal acts

is highly prejudicial.”). As we have explained, when

evidence suggesting “a propensity or disposition to commit

crime . . . reaches the attention of the jury, it is most difficult,

if not impossible, to assume continued integrity of the

presumption of innocence. A drop of ink cannot be removed

from a glass of milk.” Government of the Virgin Islands v.

Toto, 529 F.2d 278, 283 (3d Cir. 1976).

Such evidence is all the more prejudicial where, as

here, it reveals that the defendant previously committed the

very kind of crime of which he or she stands accused. See

Old Chief, 519 U.S. at 185 (“Where a prior conviction was

for a . . . crime . . . similar to the other charges in a pending

case, the risk of unfair prejudice would be especially

obvious[.]”); United States v. Bagley, 772 F.2d 482, 488 (9th

Cir. 1985) (“To allow evidence of a prior conviction of the

very crime for which a defendant is on trial may be

devastating in its potential impact on a jury. . . . [W]here, as

here, the prior conviction is sufficiently similar to the crime

charged, there is a substantial risk that all exculpatory

evidence will be overwhelmed by a jury’s fixation on the

human tendency to draw a conclusion which is impermissible

in law: because he did it before, he must have done it

again.”).

The Pennsylvania courts have long recognized the

36

prejudicial nature of propensity evidence as well. See, e.g.,

Commonwealth v. Harkins, 328 A.2d 156, 157-58 (Pa. 1974)

(“When the jury learns that the person being tried has

previously committed another crime, the prejudicial impact

cannot be considered insignificant. ‘The presumed effect of

such evidence is to predispose the minds of the jurors to

believe the accused guilty, and thus effectually to strip him of

the presumption of innocence.’”) (citation omitted). The

situation in Harkins was similar to that presented here. In

Harkins, a potential juror testified during voir dire that the

defendant had stolen his car, and the defendant’s counsel

moved to strike the venire panel. The trial court denied the

motion and, though it excused that venire member, other

members of the same panel went on to serve on the

defendant’s jury, which ultimately convicted him. The

Pennsylvania Supreme Court reversed the conviction and

remanded for a new trial, explaining that “‘[t]he fact that a

reasonable inference of a prior criminal record is present in

the minds of the jurors in and of itself mandates a new trial.’”

Id. at 158 (quoting Commonwealth v. Allen, 292 A.2d 373,

376 (Pa. 1972)). Thus, as Breakiron argues, it would have

been obvious to any reasonably competent counsel that

corrective action was both available under Pennsylvania law

and essential to preserve Breakiron’s presumption of

innocence. 15

Counsel, however, took no such action. He declined to

15

The Pennsylvania Supreme Court appears to have assumed

that counsel would have received corrective action if he had

requested it, see Breakiron-2, 729 A.2d at 1094 (citing

Harkins), and the Commonwealth has not argued otherwise.

37

do so, he testified, because he “felt” that Manges could be fair

and impartial and did not believe that anything “egregious”

had occurred. But avoidance of “egregiousness” is not the

standard for constitutionally adequate performance; the

standard is one of objectively reasonable performance under

the circumstances. No objectively reasonable counsel would

fail to recognize the patently prejudicial nature of testimony

that Breakiron “used to do a lot of robbing” (which certainly

qualifies as “egregious” in any event), and counsel provided

no legitimate explanation for failing to take corrective action

following that testimony. The Pennsylvania Supreme Court

nevertheless accepted counsel’s explanation at face-value

without recognizing that it was insufficiently informed and

without acknowledging the patently prejudicial nature of

Gerba’s testimony. For these reasons, we conclude both that

counsel’s performance was deficient under Strickland and

that the Pennsylvania Supreme Court’s conclusion to the

contrary was objectively unreasonable. 16

2. Prejudice

The Pennsylvania Supreme Court did not reach the

issue of prejudice, so the District Court reviewed it de novo

and we will do the same. See Porter, 130 S. Ct. at 452. The

District Court concluded that Breakiron had not shown

prejudice because, after Gerba made the statement at issue,

Manges testified that he had not formed any opinion

16

Although Breakiron’s claim in this regard is one of

ineffective assistance of counsel, we are surprised and

troubled that the state trial court took no steps to address this

patently prejudicial exposure sua sponte.

38

regarding Breakiron’s guilt and that he understood that

Breakiron was presumed innocent unless proven guilty

beyond a reasonable doubt. (Dist. Ct. Op. at 35.) The

District Court further reasoned that nothing in these responses

led counsel or the trial court to question Manges’s

impartiality. (Id.) Thus, the District Court concluded that

“Breakiron has failed to show that Juror 114 [Manges] was

anything but a fair and impartial juror or that his presence on

the jury prejudiced him.” (Id.)

Although the parties have not squarely addressed it,

this claim raises the threshold issue of how prejudice should

be assessed in this context. The District Court appeared to

require some indication that Gerba’s statement actually

rendered Manges biased or partial as a subjective matter, and

the Commonwealth too argues that Breakiron failed to

“establish” that Manges was anything other than fair and

impartial. Thus, the District Court’s reasoning and the

Commonwealth’s argument assume that a subjective

approach to prejudice is appropriate in this case. Breakiron,

by contrast, focuses on the prejudicial nature of the statement

in question and assumes that its probable effect should be

determined objectively. See Hummel v. Rosenmeyer, 564

F.3d 290, 303 (3d Cir. 2009) (“It is not necessary that the

defendant show that the deficient conduct ‘more likely than

not altered the outcome in the case,’” but only that there is a

“‘reasonable probability’” that it did.) (quoting Strickland,

466 U.S. at 693, and adding emphasis). We agree that

Strickland requires an objective inquiry here.

The parties have not cited, and we have not located,

any authority squarely addressing the standard for prejudice

when counsel is alleged to have rendered ineffective

39

assistance in connection with statements made during voir

dire that potentially rendered one or more actual jurors biased

or partial. Claims of juror bias or partiality themselves

generally require a showing of actual or legally implied bias.

See, e.g., Smith v. Phillips, 455 U.S. 209, 215 (1982) (“This

Court has long held that the remedy for allegations of juror

partiality is a hearing in which the defendant has the

opportunity to prove actual bias.”). Some courts have

required petitioners to show actual or legally implied juror

bias in similar contexts in order to satisfy the Strickland

standard as well. See, e.g., Sanders v. Norris, 529 F.3d 787,

790-94 (8th Cir. 2008) (no prejudice from counsel’s likely

deficient voir dire questioning where no actual or legally

implied juror bias); Fields v. Brown, 503 F.3d 755, 775-76

(9th Cir. 2007) (citing Strickland standard but holding that

defendant was not prejudiced by counsel’s deficient

questioning during voir dire where habeas evidentiary hearing

revealed that juror was not actually biased). The District

Court and the Commonwealth both assume without

explanation that this subjective approach is the proper one in

this case.

Evidence of a juror’s subjective bias or lack thereof

may well be relevant in some cases involving allegations of

ineffective assistance at voir dire. The narrow question

presented here, however, is the standard for assessing

prejudice when a panel member who ultimately serves on the

jury is exposed to sworn testimony that the defendant

previously committed crimes. Applying a subjective rather

than an objective standard of prejudice in this context would

conflict with Strickland. The proper inquiry under Strickland

is not whether Gerba’s statement actually rendered Manges

biased or partial, but whether there is a reasonable probability

40

that a juror who had not been exposed to that statement would

have voted to acquit Breakiron of robbery. See Saranchak v.

Beard, 616 F.3d 292, 309 (3d Cir. 2010) (holding that state

court improperly considered likely effect of evidence on the

“particular [trial] judge . . . rather than considering, more

abstractly, the effect the same evidence would have had on an

unspecified, objective fact-finder, as required by Strickland”)

(citing Strickland, 466 U.S. at 695). Indeed, “evidence about

the actual process of decision, if not part of the record of the

proceeding under review, . . . should not be considered in the

prejudice determination.” Strickland, 466 U.S. at 695. Thus,

Breakiron was not required to show that Manges was actually

influenced by Gerba’s statement, but had only to show a

reasonable probability that any given juror would have

been. 17

Although we have not applied Strickland in this

precise context, determining the objectively probable effect of

prior-crimes evidence is hardly a novel task. We have

17

The District Court reasoned that Breakiron could not show

prejudice because Manges’s voir dire testimony suggested

that he could decide the case fairly. If counsel or the trial

court had questioned Manges about Gerba’s statement, and if

Manges had testified that he could and would disregard it,

then the District Court’s reasoning might have more force

(though we do not so hold). But neither counsel nor the trial

court questioned Manges about Gerba’s statement, so there is

no record evidence bearing on whether Manges was actually

influenced by that statement. Under the circumstances,

Strickland requires that we assess its reasonably probable

effect.

41

applied Strickland’s “reasonable probability” standard in

assessing the effect of counsel’s failure to object at trial to

testimony revealing that the defendant had a criminal record,

see Carpenter v. Vaughn, 296 F.3d 138, 150-51 (3d Cir.

2002), counsel’s failure to object to evidence concerning a

defendant’s prior crimes, see Buehl, 166 F.3d at 175-76, and

counsel’s failure to request a limiting instruction regarding

evidence of a defendant’s prior crimes, see Albrecht, 485

F.3d at 128-29. We also have applied an objective standard

in assessing the effect of references to a defendant’s prior

crimes in a variety of other contexts. See, e.g., United States

v. Morena, 547 F.3d 191, 194-97 (3d Cir. 2008) (prosecutor’s

reference to defendant’s uncharged criminal activity); Toto,

529 F.2d at 283 (evidence of prior crimes). 18 The case before

us thus calls for nothing more than a straightforward

application of Strickland’s “reasonable probability” standard.

18

In Toto, the trial court improperly admitted evidence of

prior criminal acts. In assessing whether the error was

harmful, we asked “‘whether the error itself had substantial

influence (on the minds of the jury.) If so, or if one is left in

grave doubt, the conviction cannot stand.’” Toto, 529 F.2d at

283 (quoting Kotteakos v. United States, 328 U.S. 750, 765

(1946)). We further noted that this test required us to “resort

to probabilities” and determine its probable effect in light of

the other evidence presented. Id. The Supreme Court later

adopted the Kotteakos standard we applied in this context as

the standard for determining harmless error on collateral

review, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993),

and, as we have noted, “Strickland prejudice and Brecht

harmless error are essentially the same standard[.]” Albrecht,

485 F.3d at 139 (citing Whitney v. Horn, 280 F.3d 240, 258-

59 & n.18 (3d Cir. 2002)).

42

Having clarified the proper standard, we have no

difficulty in concluding that it is satisfied in this case. As

explained above, the prosecution’s case on the robbery

charge, though sufficient, was far from overwhelming. There

was little evidence of record to rebut Breakiron’s testimony

and argument that he decided to commit theft only after the

assault was complete and thus was not guilty of robbery. One

of his jurors, however, had been exposed to sworn testimony

that Breakiron “used to do a lot of robbing.” As explained

above, such propensity evidence is patently prejudicial.

Indeed, exposure to such testimony may be so prejudicial that

it cannot be cured even by a proper limiting instruction,

which was neither requested nor given here. See Morena,

547 U.S. at 196-97; Toto, 529 F.2d at 283. Given the dearth

of evidence on the robbery charge and the patently prejudicial

nature of Gerba’s sworn testimony that Breakiron “used to do

a lot of robbing,” there is a reasonable probability that

corrective action by counsel would have produced a different

result. Cf. Albrecht, 485 F.3d at 128-29 (although issue was

“a very close one,” defendant was not prejudiced by counsel’s

failure to request a limiting instruction regarding evidence of

prior crimes because there was “ample” evidence of his guilt).

III. Conclusion

Although our review and opinion, as they must, focus

on the procedural aspects of Breakiron’s trial, three essential

factors remain central and cannot be marginalized: a woman

named Saundra Marie Martin is dead; money was stolen from

the owner of “Shenanigan’s”; and Mark Breakiron must

respond for the horrible sequence of events that occurred

there. The procedural pathway to the final disposition for

43

Breakiron, however, must follow strict guidelines.

Accordingly, we will reverse the District Court’s judgment to

the extent that it denied Breakiron’s habeas petition as to his

robbery conviction and remand with an instruction to grant

his petition as to that conviction for the reasons explained in

this opinion.

44