                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-1994

Robinson v. Arvonio, et al
Precedential or Non-Precedential:

Docket 92-5667




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

Recommended Citation
"Robinson v. Arvonio, et al" (1994). 1994 Decisions. Paper 48.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/48


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                    ___________

                    No. 92-5667
                    ___________


                 MAURICE ROBINSON,
                              Appellant

                           v.

       PATRICK ARVONIO, Superintendent,
           East Jersey State Prison;
     ROBERT J. DEL TUFO, Attorney General
          of the State of New Jersey

_______________________________________________

On Appeal from the United States District Court
        for the District of New Jersey
       (D.C. Civil Action No. 91-04456)
              ___________________


             Argued November 30, 1993

  Before:     SCIRICA and ALITO, Circuit Judges
            and POLLAK, District Judge*

              (Filed    June 15, 1994 )


                  ROBERT L. SLOAN, ESQUIRE (Argued)
                  Office of Public Defender
                  Appellate Section
                  31 Clinton Street
                  P.O. Box 46003
                  Newark, New Jersey 07101

                       Attorney for Appellant




                           1
*The Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.




                               2
                            CATHERINE A. FODDAI, ESQUIRE (Argued)
                            Office of Attorney General of New Jersey
                            Department of Law & Public Safety
                            Division of Criminal Justice
                            Richard J. Hughes Justice Complex
                            Trenton, New Jersey 08625

                              Attorney for Appellees

                          __________________

                         OPINION OF THE COURT
                          __________________


SCIRICA, Circuit Judge.



             Petitioner Maurice J. Robinson, currently confined in a

New Jersey state prison, appeals the district court's denial of

his application for a writ of habeas corpus under 28 U.S.C. §2254

(1988).     Robinson asserts the writ should have been granted

because the New Jersey prosecutor failed to correct a witness's

perjured denial that his cooperation had been secured by the

prosecutor's promise to tell the sentencing judge of his

cooperation.0    The district court found the failure of the

prosecution to correct the witness's perjured testimony was

harmless error because there was no reasonable likelihood the

perjured testimony had affected the judgment of the jury.      This

finding rested on the court's judgment that the jury had

sufficient evidence before it to assess the credibility of the

witness.    For reasons that follow, we will affirm the denial of

the writ.

0
 Robinson contends the prosecutor's conduct deprived him of due
process of law and a fair trial under the Fifth, Sixth and
Fourteenth Amendments of the United States Constitution.


                                  3
                              BACKGROUND

          A jury found Robinson guilty of: (1) murder, under N.J.

Stat. Ann. § 2C:11-3 (West 1982 & 1993 Supp.); (2) armed robbery,

under N.J. Stat. Ann. § 2C:15-1b (West 1982); (3) possession of a

handgun without a permit, under N.J. Stat. Ann. § 2C:39-5b (West

1982); and (4) possession of a handgun for unlawful purposes,

under N.J. Stat. Ann § 2C:39-4a (West 1982).   Co-defendant Melvin

Shark was granted a severance and a jury found him guilty of the

same charges.   On February 24, 1984, Maurice J. Robinson was

sentenced to a thirty-year term of imprisonment for murder, with

a minimum of fifteen years without parole.   He also received a

concurrent fifteen-year term for armed robbery, with a minimum of

seven years without parole.

          After exhausting state remedies,0 Robinson petitioned

for habeas corpus relief in United States District Court.   The

district court agreed the prosecutor had failed to correct the




0
 Robinson appealed to the Superior Court of New Jersey, Appellate
Division, which affirmed his conviction in an unreported per
curiam opinion filed on February 28, 1986. The New Jersey Supreme
Court denied Robinson's request for certification. He then filed
a pro se petition for post-conviction relief, which was denied
after a hearing in his absence. He appealed, and in an
unreported per curiam opinion, filed August 1, 1988, the
Appellate Division found the hearing should not have been
conducted in Robinson's absence and remanded for another hearing.
After the second hearing, at which Robinson was present and
represented by counsel, the trial court again denied his
petition. Robinson appealed, and on October 1, 1990, in an
unreported per curiam opinion, the Appellate Division affirmed
the denial of post-conviction relief. The New Jersey Supreme
Court denied Robinson's petition for certification on December
24, 1990.


                                  4
witness's testimony, but it found no reasonable likelihood that

the error had affected the judgment of the jury.

                               A.

          In his opening statement at trial, the prosecutor

informed the jury that Melvin Shark had previously been found

guilty and that an agreement had been made with Shark in return

for his testimony at Robinson's trial. The prosecutor stated:
          Mr. Shark is going to be a witness in this
          trial and the State is going to call him as a
          witness. I would like you to understand at
          this point that Mr. Shark has had his day in
          court and has already been adjudicated. And
          in terms of why he would be coming here at
          this time, I'd like you to know beforehand
          that Mr. Shark denied his guilt when he was
          on trial and subsequently he was found
          guilty. He has agreed to testify for the
          State, and what was promised to him was
          merely he would be kept away from Mr.
          Robinson, that is it. He will -- He was
          told, and the extent of any promise made to
          him when his sentence came, his cooperation
          would be made known to the sentencing judge,
          but no deal in terms of time, years, anything
          like that.
                              . . .

               I'd also like to note to you that Mr.
          Shark will be testifying under what's known
          as immunity, because he has been recently
          convicted and he has not yet been sentenced,
          as I said earlier.

(Emphasis added.)


          At trial, however, Shark initially denied that he had

been promised anything at all in return for his testimony.    On

direct examination, Shark testified:
          Q.   Mr. Shark, in reference to your
          testimony in this courtroom today, was there
          a deal made with you so you would testify?


                               5
          A.   No.

          Q.   What is your understanding of why you
          were -- what you expect to gain as a result
          of testifying here?

          A.   Can you repeat that one more time,
          please?

          Q.   What prompted you to testify at this
          particular trial after your own trial?

          A.   I was hoping that --

          Q.   Mr. Shark, do you know what will be done
          with you as a result of your trial and your
          conviction?

          A.   I know I'll be going for a long time.

          Q.   Did you discuss that with your lawyer?

          A.   Yes, I did.

          Q.    And were you promised anything in
          exchange for testifying here as a result of
          your trial?

          A.   No, I wasn't.

          Q.   Are you telling the truth today?

          A.   Yes, I am.


          On cross-examination, Shark acknowledged that he was

promised immunity for his testimony:
          Q.   Mr. Shark, is it not a fact that you
          have been promised immunity from Prosecution
          based on anything you said in court here
          today?

          A.   Yes, it is.


But he still denied the agreement included making his cooperation

known to the sentencing judge:



                                 6
          Q.   Is it not a fact, sir, that the
          prosecutor promised you that if you would get
          on that stand and testify today for the State
          against Mr. Robinson, they would tell the
          Judge of your cooperation?

          A.   Well, he didn't promise me he'd talk to
          the Judge about that.

          Q.   He didn't say that?

          A.   He didn't promise me he'd go back in and
          talk to the Judge and tell him I cooperated.
          Was nothing promised to me.

          Q.   And that's the truth?

          A.   Yes. Only thing was promised to me was
          I'd be taken care of.


          On redirect by the prosecutor, Shark emphasized he had

been promised protective custody in exchange for his testimony:
          Q.   Mr. Shark, earlier during your cross-
          examination, in response to one of [defense
          attorney's] questions about what you were
          promised, you said something along the line
          that you would be taken care of. What does
          that mean?

          A.   Protective custody.
                              . . .
          Q.   And what does that mean to you?

          A.   Means a lot to me.

          Q.   Why?

          A.   Behind the fact what's going on here,
          word can get back to the jail, you know, that
          I did something that, you know, is against
          rules and regulations inside the jail and I
          can be seriously hurt for doing something
          like this.


          Shark never acknowledged the prosecutor had agreed to

inform the sentencing judge of his cooperation, and the



                               7
prosecutor failed to correct his perjured testimony.   The defense

attorney revived the issue in his closing statement by referring

to the prosecutor's promise to speak to the sentencing judge.   He

stated:
                You recall [Shark] saying from this
          witness stand, "I just want to get the truth
          out"? What else did he say? Unconsciously
          he said, "I want to help myself." Then I
          asked him -- this is the man who now wants to
          tell the truth -- I said, "Did the Prosecutor
          promise you anything?" I'm sure you will
          recall, ladies and gentlemen, that when the
          Prosecutor made his opening remarks, he
          indicated, and stated truthfully to you, that
          he had made certain promises to this
          defendant. On this witness stand -- a man
          who's worried about his survival is not going
          to forget something like that, if any
          promises were made to help him, but on this
          witness stand, after taking the oath on that
          Bible, I asked him, "Were any promises made
          to you?" "No." "Did the Prosecutor promise
          that he'd talk to the Judge on your behalf?"
          "No. No promises made." That's what he
          said.

               And if you'll recall, ladies and
          gentlemen, we took a recess, and when we came
          back, I asked him, I said, "Did the
          Prosecutor promise you immunity?" What did
          he say -- "Oh, yes, he did promise me
          immunity."
                              . . .
               You heard him yesterday say in response
          to my question that, "I was mentioning 60
          years to myself," ladies and gentlemen, if
          you face that kind of time and you can buy
          your way out, do it. He did it. He got up
          on that witness stand and said to all of you,
          "I perjured myself, I'm a liar," Fine. To
          help himself. Do you think that that young
          man, streetwise, wouldn't have certain ideas
          about what it means if a Prosecutor said, "I
          will speak to the Judge for you? Ladies and
          gentlemen, he was sinking. And it was up to
          his nose and he reached out and he grabbed



                               8
          that straw of immunity to try to save
          himself. That's what he did. And I suggest
          to you that you cannot believe him. You
          can't believe anything that he said.
                              . . .
               He said on that witness stand that the
          very first day when he was arrested he was
          concerned about getting himself out of this.
          He said on the witness stand yesterday that
          he was trying to help himself, and in order
          to do his job, he even said, "Nothing was
          promised to me," and either he thought better
          of it or felt that he would be entrapped and
          then suddenly he admitted what was promised
          to him. And the Prosecutor would say to you,
          "Yes, I did promise him I'd speak to the
          Judge," but, ladies and gentlemen, the Judge
          is independent, the Judge makes up his own
          mind and, you know, that's true. Sentencing
          is for the Judge. The Prosecutor can't tell
          the Judge what to say.

               But, ladies and gentlemen, don't you
          think some little weasel who's trying to save
          himself will take those words and, because he
          is so desperate, make those words say things
          that they really did not say, that maybe,
          maybe, this is a chance for me to get out of
          this, . . .

(Emphasis added.)   In his closing statement, the prosecutor

referred to Shark's sentencing and protective custody:
          Yes, the State called him as a witness but
          what did Melvin Shark expect? I opened to
          you and told you certain things were promised
          to him, yes. What [was] his deal? His big
          deal? His lawyer was present when we
          discussed it. And he explained his answers.
          . . . "I know that the Judge can sentence me
          and I know the Prosecutor doesn't have any
          power over the Judge because the jury found
          me guilty. No plea bargaining. Jury
          verdict, guilty. So the Prosecutor does not
          have the power to recommend anything to the
          Judge anymore in terms of years, months,
          days." So what did he testify for? And this
          is where it's coming out now: Well, what did
          he say was facing him over there in the code,
          a different code, not the code we live by


                                9
          here, but in the jail here: Subjected to
          some physical beatings if the word gets out.
          So what did he want from the State? "I want
          protective custody. I'm subject to being
          severely beaten if I testify against another
          defendant."

(Emphasis added.)0

          In his final instructions to the jury, the trial judge

referred only to the immunity part of the agreement and reminded

the jury the opening and closing statements were not evidence. As

we have noted, however, the prosecutor, in his opening statement,

acknowledged he had promised to speak to the sentencing judge on


0
 At Shark's sentencing hearing, the prosecutor asked for leniency
for Shark and stressed the critical importance of Shark's
testimony in obtaining Robinson's conviction:

          Mr. Shark was told by me in all candor that I
          would speak for him in this respect at his
          sentence, that your Honor would note his
          cooperation in testifying against his co-
          defendant and co-defendants.
                                . . .
          [W]ithout his testimony, proving the case
          against his codefendant [Robinson] would have
          been difficult, if not impossible . . .
           . . .      He should be punished and he will
            be punished . . . , but his cooperation in
           both the trials [of co-defendants] has to be
              noted because we would have not had the
               opportunity to convict the person who
            actually pulled the trigger . . . Maurice
           Robinson; without the help of Melvin Shark,
           albeit to help himself, but in exchange for
              nothing really concrete, Mr. Shark did
           testify, and I think that should be noted to
                             the court.

As we have noted, Robinson and Shark were found guilty of the
same offenses; however, Robinson was given a longer sentence. For
the murder, he received a 30 year term with a 15 year mandatory
minimum, whereas Shark received a 20 year term with a 10 year
mandatory minimum. Robinson's concurrent term for armed robbery
was also longer than Shark's.


                               10
Shark's behalf, and the defense attorney, in his closing

argument, built on that acknowledgement.   Therefore, the jury was

made aware of the terms of the agreement and the defense attorney

made a strong case for Shark's lack of credibility based on the

agreement and Shark's conflicting testimony.

                                 B.

          Shark's testimony was important for Robinson's

conviction because only one other witness could place Robinson

near the scene of the crime and no other witness could testify

Robinson had taken part in it.   We will recite the relevant

facts.

          On May 28, 1991, between 1:30 a.m. and 1:45 a.m., the

night manager of the New Ridgewood Bar in Newark, N.J., Robert

Conaway, unlocked the doors and admitted Melvin Shark, a customer

whom he knew by sight, and his male companion.    A third man

waited outside.   In addition to Conaway, barmaid Barbara Evans,

her friend Constance Brooks, and two others were in the bar.

Shark purchased beer from Evans and asked her for change for the

cigarette machine.   After conferring with his companion at the

machine, Shark asked her for more change, which she refused.

Conaway asked Shark and his companion to leave because it was

almost closing time.   When he opened the door, the third man

appeared, asking if they had gotten the beer.    Conaway saw the

three young men walk away.

          Approximately five minutes later, Conaway heard

Benjamin Sanders pounding on the bar door shouting to be let in.

He said that K.O. Floyd had been shot.   Sanders and Floyd, both


                                 11
elderly men, had been sitting outside a social club next door to

the bar.    Sanders noticed three young men walk past them and saw

the first one look at him as they went by.    (He later identified

Shark as that man.)    He saw no other people in the area.   The

three young men stopped a short distance past the elderly men and

had a conversation.    Sanders was frightened of the young men; he

told Floyd they should leave and started to walk toward Floyd's

car.    The young men came back and surrounded the two elderly men.

When Sanders saw the second of the three young men pull a gun out

of his pocket, he ran to the New Ridgewood Bar and pounded on the

door.    At that time, he heard Floyd call for help and heard a

shot.    Just before Conaway opened the door, Sanders turned around

and saw Floyd lying in the street and the three men running away.

Floyd died of his wounds.

            Some two years after the shooting, Sanders was talking

to a friend in front of the same social club when he noticed

someone staring at him.    After seeing the same man on several

other occasions, he recognized him as one of the three men

involved in Floyd's murder.    He contacted the police and Shark

was arrested.    Shark admitted being present at the murder, but

denied firing the gun.    He identified the other two men with him

as Maurice Robinson and Robinson's brother Charles (a minor at

the time of the murder).

            At Maurice Robinson's trial, neither Sanders nor the

bar manager, Conaway, could identify Maurice Robinson as someone

he had seen on the night of the murder.    But Constance Brooks,




                                 12
the bar patron, testified she recognized Maurice Robinson as one

of the two men who had purchased beer before the shooting.0

          Shark testified to the following: that night, he met

the Robinson brothers near his residence and went with them to

the bar; he and Maurice Robinson went in to buy beer while

Charles Robinson waited outside; when leaving the bar, they saw

two men outside a social club; they walked past the men, with

Shark in the lead, and slowed down; Shark heard sounds behind

him, scuffling, a shout, and a gun shot; he turned and saw one of

the men fall down; Maurice Robinson was standing a few feet away

with a gun in his hand; Shark picked up some money lying next to

the fallen man and fled with his companions; he gave half the

money to Maurice Robinson and went home.
                            DISCUSSION

                                 A.

               In a habeas corpus petition, if the district court

held an evidentiary hearing, we review its findings of fact for

clear error, Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir. 1989),
cert. denied, 493 U.S. 1036 (1990), but if it relied on the state

court record, our review is plenary.   Zettlemoyer v. Fulcomer,

923 F.2d 284, 291 (3d Cir.), cert. denied, 112 S.Ct. 280 (1991);

Reese v. Fulcomer, 946 F.2d 247, 253-54 (3d cir. 1991), cert.

denied, 112 S.Ct. 1679 (1992).   In this case, the district court

0
 Conaway identified Shark whom he knew by sight as a patron of
the bar, but he could not identify Robinson. Constance Brooks
identified both Shark and Robinson, although she had not known
either of them before; her visual memory may been better than
Conaway's because she was an artist. Barbara Evans, the barmaid,
was not called to identify the men; she died at about the time
they were apprehended.


                                 13
did not hold an evidentiary hearing, so our review is plenary. We

review the trial record de novo, as did the district court.

                                B.

          A defendant's right to due process is implicated when

the state obtains a conviction based upon testimony the state

knows is perjured.   Napue v. Illinois, 360 U.S. 264, 269 (1959);

Giglio v. United States, 405 U.S. 150, 153-55 (1972).     In Napue

and Giglio, the prosecution made agreements with witnesses in

exchange for their testimony.   Both witnesses falsely denied the

existence of the agreements, and the prosecutors failed to

correct their perjured testimony.

          In Napue, the Court held a conviction is obtained

through the use of false evidence, and therefore violates the

Fourteenth Amendment, when the state, "although not soliciting

false evidence, allows it to go uncorrected when it appears." 360

U.S. at 269.  The Court elaborated:
               The principle that a State may not
          knowingly use false evidence, including false
          testimony, to obtain a tainted conviction,
          implicit in any concept of ordered liberty,
          does not cease to apply merely because the
          false testimony goes only to the credibility
          of the witness. The jury's estimate of the
          truthfulness and reliability of a given
          witness may well be determinative of guilt or
          innocence, and it is upon such subtle factors
          as the possible interest of the witness in
          testifying falsely that a defendant's life or
          liberty may depend.

Id.

          In Giglio, the government's case depended almost

entirely on the testimony of a witness whom the government

promised it would not prosecute if he testified.   The trial


                                14
prosecutor had not himself made the agreement and was unaware of

it, but the Court charged him with knowledge of the agreement

made by his predecessor.   The Court held that because the

evidence was relevant to the jury's assessment of the credibility

of the witness, a new trial would be required if "'the false

testimony could . . . in any reasonable likelihood have affected

the judgment of the jury . . . '"     Giglio, 405 U.S. at 154,

(quoting Napue, 360 U.S. at 271) (alteration in original).       Both

Giglio and Napue embody the rule that the state's knowing use of

perjured testimony to obtain a conviction is constitutional

error, but that does not automatically entitle petitioner to

relief.   The court must also decide the error is not harmless.

           The Supreme Court has distinguished two kinds of

constitutional error at trial: structural error and trial error.

A structural error compromises the entire trial; it requires

reversal because it involves a deprivation of a constitutional

protection so basic that in its absence, "'a criminal trial

cannot reliably serve its function as a vehicle for determination

of guilt or innocence, and no criminal punishment may be regarded

as fundamentally fair.'"   Arizona v. Fulminante, 499 U.S. 279,
310 (1991) (citation omitted).   Examples of structural error are

a biased judge, Tumey v. Ohio, 273 U.S. 510 (1927), or the denial

of trial counsel, Gideon v. Wainwright, 372 U.S. 335 (1963).       A

trial error is one which "occurred during the presentation of the

case to the jury, and which may therefore be quantitatively

assessed in the context of other evidence presented in order to

determine whether its admission was harmless . . . ." Fulminante,

                                 15
499 U.S. at 307-08.   Examples of constitutional trial error are

jury instructions misstating an element of the offense, Rose v.

Clark, 478 U.S. 570 (1986), or improper comment on defendant's

silence at trial, U.S. v. Hasting, 461 U.S. 499 (1983).

Structural error cannot be harmless; trial error can be.

Fulminante, 499 U.S. at 310.    The error in this case was trial

error.   The testimony must therefore be assessed in the context

of the other evidence to determine whether its admission was

harmless.

            A prosecutor's agreement to speak to the sentencing

judge on a witness's behalf in return for the witness's testimony

is especially likely to create an issue of credibility.    As the

United States Court of Appeals for the Fourth Circuit noted:
          [R]ather than weakening the significance for
          credibility purposes of an agreement of
          favorable treatment, tentativeness may
          increase its relevancy. This is because a
          promise to recommend leniency (without
          assurance of it) may be interpreted by the
          promisee as contingent upon the quality of
          the evidence produced -- the more uncertain
          the agreement, the greater the incentive to
          make the testimony pleasing to the promisor.

Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976), cert.
denied, 430 U.S. 959 (1977).




                                 16
                                C.

           Until recently, the standard for assessing harmless

error on both direct and collateral review was whether it

appeared "beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained."    Chapman v.

California, 386 U.S. 18, 24 (1967).    Under Chapman, the burden of

proving an error harmless rested with the state.    Id.

           In Brecht v. Abrahamson, 113 S.Ct. 1710 (1993), the

Court announced a new standard for harmless error on collateral

review: whether, in light of the record as a whole, the error

resulted in "actual prejudice" to the defendant.    Brecht 113

S.Ct. at 1722.   Actual prejudice occurs when the constitutional

error "'had substantial and injurious effect or influence in

determining the jury's verdict.'"    113 S.Ct. at 1722 (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Kontakis

v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994).

           By introducing a more deferential standard on

collateral review, the Court emphasized that historically the

writ of habeas corpus has been regarded as an extraordinary

remedy to afford relief for grievous wrongs.    Brecht, 113 S.Ct.
at 1719.   It reasoned that "'[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.   at 1720 (quoting Engle v. Issac,

456 U.S. 107, 128 (1982)),   and stated that liberal allowance of

the writ "'degrades the prominence of the trial itself,'" id. at
1720-21 (quoting Engle, 456 U.S. at 127), and encourages habeas


                                17
petitioners to relitigate their claims on collateral review, id.

at 1721.   Thus, considerations of federalism and comity, the

state's interest in finality of convictions that have survived

direct review, and the social costs of retrying defendants years

after the original conviction outweigh any additional effect the

Chapman standard would have in deterring state courts from

failing to fully enforce constitutional rights.   Id. at 1721-22.

           The new standard, announced in Brecht and derived from

Kotteakos, does not require a showing that "but for" the error

the jury would have rendered a verdict in favor of defendant.

Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir. 1993) (citing

Kotteakos, 328 U.S. at 763).   Nor is it relevant whether the

reviewing court is persuaded the defendant is guilty.      The court

must stand in the shoes of the jury.0   Id. at 714.   The question

0
 As the Court in Kotteakos explained, the issue is not whether
the jurors were

           right in their judgment, regardless of the
           error or its effect upon the verdict. It is
           rather what effect the error had or
           reasonably may be taken to have had upon the
           jury's decision. The crucial thing is the
           impact of the thing done wrong on the minds
           of other men, not on one's own, in the total
           setting.

                This must take account of what the error
           meant to them, not singled out and standing
           alone, but in relation to all else that
           happened. And one must judge others'
           reactions not by his own, but with allowance
           for how others might react and not be
           regarded generally as acting without reason.
           This is the important difference, but one
           easy to ignore when the sense of guilt comes
           strongly from the record.



                                18
it must consider is:   Did the constitutional error "substantially

[and injuriously] influence" the verdict?   Id. at 765.    If so,

the petitioner is entitled to habeas relief.

           In addition to announcing a new standard, the Brecht

Court shifted the burden of proof to the petitioner.      The Court

noted that, under Chapman, the state bore the burden of proving

harmless error beyond a reasonable doubt.   Brecht, 113 S.Ct. at

1717.   Under the new standard for collateral review,

"[petitioners] are not entitled to habeas relief based on trial

error unless they can establish that it resulted in 'actual

prejudice.'"   Id. at 1722 (citing United States v. Lane, 474 U.S.

438, 449 (1986)).0

Brecht, 113 S.Ct. at 1724 (Stevens, J., concurring) (quoting
Kotteakos, 328 U.S. at 764 (citation omitted)).
0
 Justice Stevens, concurring, wrote separately to set forth his
understanding that the Court, in adopting the Kotteakos standard,
also adopted the Kotteakos Court's placing the burden on
prosecutors to prove harmless error (113 S.Ct at 1723-24). The
language of the opinion, however, clearly puts the burden on the
habeas petitioner, not on the state. Most courts of appeals that
have applied the new Brecht standard have assumed or stated that
the burden of proof is on the petitioner. Kyles v. Whitley, 5
F.3d 806, 818 (5th Cir., 1993); O'Neal v. Morris, 3 F.3d 143, 145
(6th Cir. 1993); Tague v. Richards, 3 F.3d 1133, 1140 (7th Cir.
1993); Henry v. Estelle, 993 F.2d 1423, 1427 (9th Cir. 1993);
Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th cir. 1993); Castillo
v. Stainer, 997 F.2d 669, 669 (9th cir. 1993). Some do not
discuss who has the burden. Vanderbilt v. Collins, 994 F.2d 189
(5th cir. 1993); Duest, 997 F.2d 1336 (11th Cir. 1993). A few
quote a concurring or dissenting opinion in Brecht saying the
state bears the burden, but do not explicitly adopt that view.
Lowery v. Collins, 996 F.2d 770, 773 (5th Cir. 1993) (quoting
Stevens, J., concurring); Smith v. Dixon, 996 F.2d 667, 677 n.13
(4th Cir. 1993) (quoting White, J., dissenting). Only one
opinion states outright that the state has the burden, Stoner v.
Sowders, 997 F.2d 209, 213 (6th Cir. 1993), and a later opinion
by the same court stated that the burden is on the petitioner
without referring to the earlier opinion. O'Neal v. Morris, 3
F.3d at 145.


                                19
          Robinson notes an exception to the Brecht rule, set

forth in a footnote in that case.     Declaring that the Kotteakos

harmless-error standard applies with constitutional error "of the

trial type," the Court noted:
               Our holding does not foreclose the
          possibility 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.


Brecht, 113 S.Ct. at 1722 n.9.   Robinson contends the error in

this case is of such magnitude that it constitutes an exception

to the new rule.   He argues that in these circumstances, we

should resort to the standard of United States v. Agurs, 427 U.S.

97 (1976), where the Court stated, "[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."   Id. at 103 (footnotes omitted).

          Robinson would have us apply the "reasonable

likelihood" standard of Agurs rather than the "substantial and

injurious effect" standard of Brecht, and he cites pre-Brecht

cases evaluating "materiality" in the context of prosecutorial

misconduct and applying the pre-Brecht "reasonable likelihood"

standard of harmless error.   Landano v. Rafferty, 856 F.2d 569

(3d Cir. 1988), cert. denied, 489 U.S. 1014 (1989) (habeas

appeal); Brown v. Wainwright, 785 F.2d 1457 (11th cir. 1986)



                                 20
(habeas appeal); United States v. Wallach, 935 F.2d 445 (2d Cir.

1991) (direct appeal).    Regardless whether the Agurs standard

still retains any vitality in habeas cases after Brecht, we do

not find the error in this case warrants a departure from the

Brecht standard.

            There is little doubt the prosecutor should have

corrected the perjured testimony of his witness.     This was the

duty of the prosecutor, not the defense attorney.     Giglio, 405

U.S. at 154; United States v. Harris, 498 F.2d 1164, 1169 (3d

Cir.), cert. denied, 419 U.S. 1069 (1974).      Nonetheless, when it

became clear that the prosecutor had not corrected the perjured

testimony, the defense attorney could have alerted the judge and

sought a remedy that would have eliminated any possibility of

prejudice to his client, such as a stipulation or an instruction

on the details of the agreement.      Instead, the defense attorney

sought to counter the misleading impression through cross-

examination and closing argument.     Although we agree with

Robinson that his attorney did not waive the error by failing to

call it to the attention of the court, an error which the defense

attorney could have corrected at trial is not likely "to infect

the integrity of the proceeding . . . ."     Brecht, 113 S.Ct. at
1722 n.9.

            The prosecutor must be charged with the error because

he failed to take advantage of opportunities on direct and re-

direct examination to correct the perjured testimony.     But the

error was neither deliberate nor planned; in his opening

statement, the prosecutor referred to all aspects of the

                                 21
agreement: immunity, protective custody, and the promise to

inform the sentencing judge of Shark's cooperation.     Presumably,

neither counsel knew the perjured testimony would occur, and both

knew as soon as it did occur, as did the trial judge.0    We

conclude the error was neither a "deliberate and especially

egregious error of the trial type, [n]or one that is combined

with a pattern of prosecutorial misconduct" that "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."    Brecht, 113 S.Ct. at 1722 n.9.   Therefore, we will

apply the Brecht standard to determine whether petitioner has

shown the error "'had substantial and injurious effect or

influence in determining the jury's verdict.'"0    Id. at 1722

(quoting    Kotteakos, 328 U.S. at 776).

            The district court emphasized the jury knew Shark

testified under an agreement with the state by which he would

benefit and that there was ample evidence to assess Shark's

credibility. It cited the following evidence:
          The jury was aware that Shark was a convicted
          felon who had perjured himself at his own
          trial. Furthermore, it is apparent from the

0
  At oral argument, Robinson's counsel acknowledged that at
trial, both attorneys and the trial judge knew what was in the
agreement between Robinson and the state.
0
 The standard we apply is not the same standard the district
court used. The district court's opinion, which came out before
Brecht, presumably used the Chapman standard when it denied the
petition. If it had applied the new Brecht standard, which is
less favorable to the habeas petitioner, it certainly would have
denied the petition also. That does not matter to our review,
however, because we look at the record de novo in reviewing the
district court's denial of petitioner's habeas petition.



                                 22
          record that the jury was apprised of Shark's
          conflicting testimony at Robinson's trial.
          Shark at one point denied that he had been
          promised immunity and protective custody in
          exchange for his [testimony], yet he later
          admitted to these facts.

               In bringing out this agreement under
          direct and cross-examination, both the
          prosecution and the defense conveyed to the
          jury that Shark was testifying subject to an
          agreement with the State from which he would
          benefit. The defense attorney questioned
          Shark regarding this agreement in an effort
          to impeach his credibility. With all of
          these factors relating to Shark's credibility
          before the jury, this Court finds that there
          is no reasonable likelihood that Shark's
          perjured testimony regarding the agreement
          with the State could have affected the
          judgment of the jury.


          Robinson contended at oral argument that the evidence

that Shark was a convicted felon who had perjured himself at his

own trial is qualitatively different from the evidence the

prosecutor improperly withheld.    We agree a jury's knowledge that

a witness has just lied about what he stands to gain from

testifying is generally more damaging to his credibility than the

knowledge that he has lied in the past.

          In this case, however, the jury knew Shark had lied to

it about what he stood to gain from the agreement as a whole.

First, he denied he had been promised anything at all; then, on

cross-examination, he admitted he had been promised immunity;

finally, on re-direct, he admitted he had been promised

protective custody.   Significantly, unlike the prosecutors in

Napue and Giglio, the prosecutor here, in his opening statement,

acknowledged his promise to tell the sentencing judge of Shark's


                                  23
cooperation.    The defense attorney built on that acknowledgment

in arguing Shark was not a credible witness.    We think it

unlikely that further evidence Shark was misrepresenting the

agreement would have changed the jury's evaluation of his

testimony.

             The crucial inquiry is whether, under Brecht, Robinson

has shown the error "had substantial and injurious effect or

influence in determining the jury's verdict."    As we have noted,

in determining the effect of this trial error, which "occurred

during the presentation of the case to the jury," we must assess

it "in the context of other evidence presented in order to

determine whether its admission was harmless."     Fulminante, 499

U.S. at 308.    We conclude there was sufficient evidence to

undermine Sharks' credibility.     The evidence of the prosecutor's

promise to tell the sentencing judge of Shark's cooperation would

have added only incrementally to the evidence presented on the

agreement and Shark's credibility.

             The prosecutor had a duty to correct the perjured

testimony of his witness.    In these circumstances, however, we

agree with the district court that the error was harmless.       We

conclude the absence of the evidence of the prosecutor's promise

to speak to the sentencing judge did not result in "actual

prejudice" because it did not have "substantial and injurious

effect or influence in determining the jury's verdict."
                              CONCLUSION

             For the foregoing reasons, we will affirm the district

court's denial of the writ of habeas corpus.


                                  24
25
Robinson v. Arvonio, No. 92-5667



POLLAK, District Judge (dissenting).



                                             I.

          When Melvin Shark -- the state's principal witness against Maurice Robins

was sentenced for his part in the killing of K. O. Floyd, the prosecutor told the

sentencing judge:
          That will bring us around to what, in fact, Mr. Shark was told by me
          in all candor that I would speak for him in this respect at his
          sentence, that Your Honor would note his cooperation in testifying
          against his codefendant and codefendants.

          . . . .

          . . . [Y]our Honor, it is true that without his testimony proving the
          case against his codefendant would have been difficult, if not
          impossible. . . .

          . . . [H]is cooperation in both the trials has to be noted because we
          would not have had the opportunity to convict the person who actually
          pulled the trigger on Mr. Kayo Floyd, and that was Maurice Robinson,
          without the help of Melvin Shark, albeit to help himself. . . .


          At the trial of Maurice Robinson, the prosecutor had in his opening state
informed the jury that Melvin Shark "was told, and the extent of any promise made t

when his sentence came, his cooperation would be made known to the sentencing judge

deal in terms of time, years, anything like that."   But when the prosecutor put Sha

the stand, he did not elicit from his star witness confirmation of the bargain he h

the jury about.   And when, on cross-examination, defense counsel inquired about the

bargain, Shark denied -- falsely, and under oath -- that any such bargain had been
          Q.   Is it not a fact, sir, that the prosecutor promised you that if
          you would get on that stand and testify today for the State against
          Mr. Robinson, they would tell the Judge of your cooperation?



                                             26
          A.      Well, he didn't promise me he'd talk to the Judge about that.

          Q.      He didn't say that?

          A.   He didn't promise me he'd go back in and talk to the Judge and
          tell him I cooperated. Was nothing promised to me.

          Q.      And that's the truth?

          A.      Yes.   Only thing was promised to me was I'd be taken care of.


Being "taken care of," Shark testified, meant "protective custody."     Later, Shark a

acknowledged that he was promised immunity with respect to his testimony against Ro

-- "if I say anything today in this courtroom, it wouldn't be used against me . . .

But Shark never recanted his perjured denial that the prosecutor had promised that

[Shark's] sentence came, his cooperation would be made known to the sentencing judg

          Defense counsel, in his closing, undertook to remind the jury that the

prosecutor had, in his opening, described a promise made to Shark -- a promise that

on the witness stand, denied the existence of, and about which there was no other

testimony.     The prosecutor, in his closing, did not tell the jury that Shark's deni

a bargain had been struck was perjury.     Instead, the prosecutor, in his closing, re

the bargain:
          Yes, the State called him as a witness but what did Melvin Shark
          expect? I opened to you and told you certain things were promised to
          him, yes. What [was] his deal? His big deal? His lawyer was present
          when we discussed it. And he explained his answers. . . . "I know
          that the Judge can sentence me and I know the Prosecutor doesn't have
          any power over the Judge because the jury found me guilty. No plea
          bargaining. Jury verdict, guilty. So the Prosecutor does not have
          the power to recommend anything to the Judge anymore in terms of
          years, months, days." So what did he testify for? And this is where
          it's coming out now: Well, what did he say was facing him over there
          in the code, a different code, not the code we live by here, but in
          the jail here: Subjected to some physical beatings if the word gets
          out. So what did he want from the State? "I want protective custody.
          I'm subject to being severely beaten if I testify against another
          defendant."

                                               II.




                                                27
          The court acknowledges that "[t]he prosecutor had a duty to correct the p

testimony of his witness" -- a duty the prosecutor elected not to fulfill.    The cou

concludes, nonetheless, that Maurice Robinson is not entitled to the curative writ

habeas corpus because the prosecutor's "error was harmless."    Why was the error har

Because "[t]he evidence of the prosecutor's promise to tell the sentencing judge of

Shark's cooperation would have added only incrementally to the evidence presented o

agreement and Shark's credibility." Therefore, the court reasons, the error cannot

to have "'had substantial and injurious effect or influence in determining the jury

verdict.'"    Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v

United States, 328 U.S. 750, 776 (1946)).

             I am unable to agree.

          As the prosecutor, in his closing, elected to reshape the bargain he had

with Shark, the "promise made to him

. . . [that] his cooperation would be made known to the sentencing judge" faded awa

was replaced by another promise: "So what did he want from the State?    'I want prot

custody. I'm subject to being severely beaten if I testify against another defendan

          Of course Shark wanted protective custody.    Protective custody was not, h

an end in itself.    Shark wanted protective custody so that he could give testimony

Robinson with little risk of reprisal from other inmates. Indeed, Shark would have
need for protective custody -- or for immunity from adverse use of his testimony --

Shark not decided to comply with the prosecutor's proposal that he testify against

Robinson in exchange for the prosecutor's undertaking to tell the sentencing judge

Shark's cooperation.    In short, the prosecutor's promise to speak to the sentencing

on Shark's behalf was the real quid for the quo of Shark's testimony.    And to do wh

prosecutor did -- to lead the jury to focus on the promise of protective custody as
centerpiece of what Shark "want[ed] from the State" -- was to draw the jury away fr

Shark's paramount, and perjuriously denied, objective in testifying against Robinso


                                              28
applying cosmetics to Shark's perjured testimony, the prosecutor beclouded defense

counsel's efforts to show the jury the true magnitude of Shark's incentive to give

testimony pleasing to the prosecutor.

          In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court review

state court murder conviction in which the trial judge refused to permit defense co

to elicit, on cross-examination of an important prosecution witness, the fact that

criminal charge against him -- being drunk on a highway" "had been dropped in excha

his promise to speak with the prosecutor about the murder."   Id. at 676.   The Court

speaking through Justice Rehnquist, agreed with the Delaware Supreme Court that the

judge's ruling contravened the accused's rights under the Confrontation Clause, sin

prevented him "from engaging in otherwise appropriate cross-examination designed to

prototypical form of bias on the part of the witness, and thereby 'to expose to the

the facts from which jurors . . . could appropriately draw inferences relating to t

reliability of the witness.'"   Id. at 680.0

          In Delaware v. Van Arsdall the constitutional error was, of course, unint

In the case at bar, the action of the prosecutor -- compounding his chief witness'

-- was advertent.   And it was calculated to obscure from the jury's view the major

what the jury might have deemed "a prototypical form of bias."   Accordingly, I cann

agree with the court that the truth, which the prosecutor helped Shark to hide, "wo
have added only incrementally to the evidence presented on the agreement and Shark'

credibility."   With matters in this posture, I do not share the court's confidence

the prosecutor's conduct did not have "'substantial and injurious effect or influen

determining the jury's verdict.'"   Brecht v. Abrahamson, 113 S. Ct. at 1722.   Presu



0
 In Delaware v. Van Arsdall, the Delaware Supreme Court had concluded that the tria
court's erroneous ruling required reversal of the conviction. The Supreme Court va
the Delaware Supreme Court's judgment, remanding for a determination whether the er
ruling was harmless beyond a reasonable doubt, the pre-Brecht standard.


                                               29
it was the prosecutor's intention that his conduct would have exactly such "influen

determining the jury's verdict."

          Therefore, I dissent.




                                            30
