                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 17-2118
                                    _______________

                                 ESHEEM T. HASKINS,
                                                Appellant

                                             v.

SUPERINTENDENT GREENE SCI; THE DISTRICT ATTORNEY OF THE COUNTY
    OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
                        PENNSYLVANIA

                                     ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. No. 2:13-cv-06901)
                           District Judge: Hon. John R. Padova
                                     ______________

                                 Argued October 2, 2018
                                    ______________

                Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.

                           (Opinion Filed: November 8, 2018)

                                     ______________

                                       OPINION
                                    _______________




       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Carole L.. McHugh [ARGUED]
410 Old York Road
Jenkintown, PA 19046-2809

       Counsel for Appellant

Catherine B. Kiefer [ARGUED]
Assistant District Attorney
Three South Penn Sq.
Philadelphia, PA 19107-3499

       Counsel for Appellee


PER CURIAM

       Esheem Haskins appeals the District Court’s order denying his petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Haskins v. Folino, Civ. No. 13-6901,

2017 WL 1397261 (E.D. Pa. Apr. 19, 2017). Because the Superior Court unreasonably

applied Brady v. Maryland, 373 U.S. 83 (1963), we will vacate the order denying him

§ 2254 relief.

                                             I

                                             A

       On the night of February 2, 2005, Nathaniel Giles was shot to death outside of a

restaurant in Philadelphia. In May 2005, police arrested Jerome King and Haskins in

connection with the shooting. Prosecutors argued that King and his fellow gang member

Haskins wanted Giles dead after they found out that Giles had told authorities that he had

purchased a gun for King that was later used in a high-profile murder.

       At trial, the prosecution relied chiefly on the testimony of two teenage eye-

witnesses, S.T. and F.J., who were present for the murder and had a clear vantage point

                                             2
from inside the restaurant. S.T. and F.J. testified that they went to the restaurant together

to pick up food. Upon entering, S.T. briefly greeted the victim, Giles, who was an

acquaintance, and then S.T. and F.J. observed a person whom they later identified as

Khalief Alston talking to Giles in front of the restaurant. While waiting for their food,

S.T. and F.J. saw a car stop for an unusually long time at the stop sign in front of the

restaurant and then pull away. A short time later, two men, coming from the direction

where the car had driven, approached Giles from behind. One pulled out a pistol. That

man, S.T. and F.J. said, raised his weapon to the back of Giles’ head and opened fire

from a distance close enough to touch Giles. Giles fell to the sidewalk. The shooter then

stood over Giles and shot him again. The shooter and his accomplice fled the scene.

       S.T. and F.J. consistently identified King as the shooter and Haskins as his

accomplice, in the photo arrays they viewed during the investigation and at trial. The

physical evidence also corroborated S.T. and F.J.’s account of the first shot, which placed

the shooter right behind Giles.1

       Before testifying at trial, F.J. made statements to police that were inconsistent with

some of her trial testimony. In her first statement to police, F.J. did not mention an

accomplice. In addition, F.J. described the shooter as being between 6’0” and 6’3”, while

King is 5’7”, and at trial she denied providing the detectives with the shooter’s height.2



       1
         The Medical Examiner testified, based on the gun powder burns around Giles’
gunshot wounds, that the initial shot was fired no more than two feet away, and probably
closer than that.
       2
         The alternate suspect that the defense put forward, Ernest Cannon, does not
match F.J.’s purported height description either.
                                              3
       S.T. also testified inconsistently on a few occasions. For example, S.T. first

testified that Haskins handed a gun to King as they approached, but later testified that she

did not see Haskins handle a firearm. In addition, she initially testified that she heard

Haskins yell “Shoot him. Shoot him” to King in the moments before King opened fire on

Giles, but later testified that she could not recall what he said and also said that she could

not hear what was being said outside the restaurant.

       The two witnesses were also inconsistent with each other. For instance, S.T.

testified that she heard four or five gun shots, whereas F.J. testified to hearing only two.

In addition, F.J. and S.T. were inconsistent in their accounts of the aftermath of the

shooting, with F.J. testifying that she saw King and Haskins flee on foot, before almost

being hit by a car, while S.T. equivocated as to whether the men fled by car or on foot.

       The defense’s strategy rested on impeaching these witnesses with their prior

statements as well as presenting Alston’s testimony. Alston testified that, on the evening

of the shooting, he was walking down the sidewalk across the street from the restaurant

with his friend Ernest Cannon. He said that Cannon saw Giles, crossed the street, and

shot Giles because of his reputation for “snitch[ing].” App. 519-21. Alston testified that

Cannon fired a nine millimeter pistol at Giles from a distance of six to eight feet, and that

Giles dropped to the ground, Cannon advanced, fired one more round from directly above

Giles, and fled.

       On cross-examination, the prosecution established that Alston was a member of

the same gang as King and Haskins. Alston testified that he had been friends with King

and Haskins from an early age, and was loyal to them. The prosecution further

                                              4
established that Alston had a total of five pending criminal trials, and one prior

conviction for a theft-related offense. Finally, the prosecution advanced the theory, both

through questioning and in its closing, that Alston accused Cannon of Giles’s murder

only because Alston found out, just prior to his statement to police inculpating Cannon,

that Cannon had told police that Alston had committed a separate murder, thereby

suggesting that Alston’s identification of Cannon as Giles’s murderer was a recent

fabrication.

       The jury found King and Haskins guilty of first-degree murder and criminal

conspiracy. See Commonwealth v. Haskins, 60 A.3d 538, 543-44 (Pa. Super. Ct. 2012).

The Pennsylvania Superior Court affirmed, and the Pennsylvania Supreme Court denied

review as to Haskins’ petition. Id. at 544.

       Haskins later learned that the Commonwealth failed to turn over a letter from

Alston, apparently written to someone with whom Alston has a close personal

relationship, in which Alston identified Cannon as Giles’s murderer, stating that “cousin

Ezel [Cannon] rocked Nate for snitching on lem [King] too.” App. 134; Haskins, 60

A.3d at 545 n.8. Importantly, this letter predated Alston’s meeting with police, where

Alston said that Cannon killed Giles after learning that Cannon had accused Alston of an

unrelated murder. Haskins, 60 A.3d at 545. Haskins asserts that the letter would have

undermined the prosecution’s theory that Alston accused Cannon of Giles’s murder as

revenge for accusing Alston of murder, lending credibility to Alston’s identification of

Cannon as Giles’s murderer.



                                              5
                                               B

       Haskins filed a pro se petition seeking relief under the Post-Conviction Relief Act

(“PCRA”). 42 Pa. Cons. Stat. § 9541 et seq.; Haskins, 60 A.3d at 544. Haskins’s

appointed counsel filed an amended PCRA petition alleging that the Commonwealth’s

failure to disclose the letter violated Brady v. Maryland, 373 U.S. 83 (1963). Haskins, 60

A.3d at 545. During the PCRA hearing, the Commonwealth admitted that the prosecutor

had received the letter before trial but failed to turn it over to the defense. Id. at 545-46.

The PCRA court held that the letter was material and the Commonwealth therefore

violated Brady, and that Haskins was entitled to a new trial. Id. at 546. The

Pennsylvania Superior Court reversed, holding that although the prosecution withheld

evidence that would have aided Haskins, it was not material under Brady. Id. at 552.

The Pennsylvania Supreme Court denied review. Commonwealth v. Haskins, 78 A.3d

1090 (Pa. 2013) (Table).

       Haskins filed a petition in the United States District Court for the Eastern District

of Pennsylvania pursuant to 28 U.S.C. § 2254. The Magistrate Judge recommended that

Haskins’s petition be dismissed. Haskins v. Folino, Civ. No. 13-6901, 2016 WL

8740477, at *10 (E.D. Pa. July 12, 2016). The District Court adopted the Magistrate

Judge’s findings and recommendation, holding that the Pennsylvania Superior Court had

correctly articulated and applied Brady, and that Haskins was not entitled to habeas relief.

Haskins, 2017 WL 1397261, at *6, 12. Haskins appeals.




                                               6
                                              II3

                                              A

         When a district court denies a habeas petition without an evidentiary hearing, our

review of its order is plenary. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).

When a state court adjudicates a petitioner’s claim on the merits, we apply the same

standard of review as the district court. Blystone v. Horn, 664 F.3d 397, 416-17 (3d Cir.

2011).

         Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a habeas

court may not grant relief with respect to any claim that the state court adjudicated on the

merits unless the adjudication:

         (1) resulted in a decision that was contrary to, or involved an unreasonable
         application of, clearly established Federal law, as determined by the Supreme
         Court of the United States; or

         (2) resulted in a decision that 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). Thus, § 2254(d) embodies “three distinct legal inquiries.”

Blystone, 664 F.3d at 417. “First, we must inquire whether the state court decision was

‘contrary to’ clearly established federal law, as determined by the Supreme Court of the

United States.” Id. (internal quotation marks omitted). “[S]econd, if it was not, we must

evaluate whether the state court judgment rests upon an objectively unreasonable



         3
        The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. This
Court has jurisdiction under 28 U.S.C. §§ 1291, 1331, and 2253. We issued a certificate
of appealability as to Haskins’s Brady claim, and we therefore have jurisdiction to review
only that issue. 28 U.S.C. § 2253(c)(1)(A); 3d Cir. L.A.R. 22.1(b).
                                              7
application of clearly established Supreme Court jurisprudence.” Id. (internal quotation

marks and alterations omitted). “Third, we must ask whether the state court decision was

based on an unreasonable determination of the facts in light of the evidence presented to

the state court.” Id. (internal quotation marks omitted).

                                              B

                                              1

       At oral argument, Haskins withdrew reliance on any argument that the state court

decision contradicted the law set forth in Supreme Court precedent. Thus, we consider

whether the Superior Court’s judgment rests upon an “objectively unreasonable

application” of clearly established Supreme Court jurisprudence. See Williams v. Taylor,

529 U.S. 362, 367 (2000). Because our decision can be reached on this second factor

alone, we do not provide a detailed analysis as to whether the Superior Court’s decision

rested on an unreasonable application of facts to the law.

       Under the “unreasonable application” prong of § 2254(d)(1), the reviewing court

may not grant relief unless the state court’s adjudication involved an unreasonable

application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). “A

state court decision is objectively unreasonable if the state court identifies the correct

governing principle from th[e Supreme] Court’s decision [] but unreasonably applies that

principle to the facts of the prisoner’s case.” Blystone, 664 F.3d at 417 (alterations in

original) (citing Williams, 529 U.S. at 413). Under this standard, “it is the habeas

applicant’s burden to show that the state court applied [federal case law] to the facts of

his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25

                                              8
(2002). Put differently, “[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.” Blystone, 664 F.3d at 417-18 (quoting Harrington v. Richter,

562 U.S. 86, 101 (2011)). Here, therefore, we must decide whether fairminded jurists

could disagree on the correctness of the Superior Court’s Brady ruling.

                                               2

       Brady requires the prosecution to turn over evidence favorable to the accused

where the evidence is material to either guilt or punishment, 373 U.S. at 87, including

evidence that would affect the credibility of a witness, Wilson v. Beard, 589 F.3d 651,

659, 666-67 (3d Cir. 2009). This rule requires disclosure of information actually known

to the prosecution and “all information in the possession of the prosecutor’s office, the

police, and others acting on behalf of the prosecution.” Id. at 659. “A Brady violation

occurs if: (1) the evidence at issue is favorable to the accused, because [it is] either

exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was

prejudiced because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d 126, 133

(3d Cir. 2011) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Wilson, 589 F.3d

at 659). The Commonwealth concedes that the first and second prongs of Brady are met,

admitting that the letter was favorable to Haskins and was withheld by the prosecution.

       As to the third prong, the “touchstone of materiality is [whether presentation of the

suppressed evidence at trial would have created] a ‘reasonable probability’ of a different

result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). “A ‘reasonable probability’ of a

different result is . . . shown when the government’s evidentiary suppression ‘undermines

                                               9
confidence in the outcome of the trial.’” Id. (quoting United States v. Bagley, 473 U.S.

667, 678 (1985)). In other words, “[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.” Id.

                                                 C

       Haskins’s claim that the state court’s evaluation of his Brady claim involved an

“unreasonable application” of established federal law under § 2254(d)(1) has merit.

Although the Superior Court correctly articulated the standard for materiality, it required

Haskins to demonstrate more than the law requires. For instance, the Superior Court

correctly observed that “[e]vidence is material under Brady when there is a reasonable

probability that, had the evidence been disclosed, the result of the trial could have been

different.” Haskins, 60 A.3d at 547 (citing Kyles, 514 U.S. at 433-34); see also id. at 550

(“We still must determine . . . whether there is a reasonable probability that the verdict

would have been different had the Commonwealth properly discharged its duties.” (citing

Kyles, 514 U.S. at 434)). However, after an in-depth discussion of the evidence

presented at trial, the court held as follows:

       Reviewing the evidence in its totality, we cannot conclude that, had the
       Commonwealth turned the letter over to the defense, there is a reasonable
       probability that the jury would have acquitted King and/or Haskins.

Id. at 551. Thus, in applying the Supreme Court’s materiality standard, it required

Haskins to show the jury would have acquitted him, rather than showing there is a

reasonable probability that “the result of the proceeding would have been different.”

                                                 10
Turner v. U.S., 137 S. Ct. 1885, 1893 (2017) (quoting Cone v. Bell, 556 U.S. 449, 469-70

(2009)). A different outcome includes not only an acquittal, but also a hung jury or a

verdict on a lesser included offense. Id. at 1897 (Kagan, J, dissenting); McCray v. Capra,

No. 9:15-cv-01129, 2018 WL 3559077, at *4 (N.D.N.Y. July 24, 2018). Thus, the

application of Brady requires consideration of not just whether the letter would have

resulted in an acquittal.

       Furthermore, given that the suppressed letter contained direct evidence going to a

central issue in this case, the jury’s lack of access to it causes us to question whether the

verdict is worthy of confidence. Kyles, 514 U.S. at 434. The Commonwealth presented

two disinterested witnesses who implicated Haskins in the murder. Portions of their trial

testimony were inconsistent with their earlier statements to the police and with aspects of

either their own or each other’s testimony. Even though the two witnesses were

disinterested and, as Haskins concedes, neither had a motive to lie, a compelling alternate

version of events, presented with corroborating evidence, might have cast doubt on their

accounts. Alston’s testimony provided such an alternative. Alston testified that Cannon

shot Giles and neither Haskins nor King was present. App. 628-29.

       Alston’s credibility was vigorously attacked on multiple fronts. He was

confronted with his five pending trials, his prior juvenile adjudication for possession of

stolen property, and his admitted loyalty to and bias in favor of Haskins. Moreover, in

response to Alston’s testimony that Cannon and not King shot Giles, the prosecutor

asserted through his questioning that Alston fingered Cannon for Giles’s murder in

retaliation for Cannon having implicated Alston in a separate murder. Put plainly, the

                                              11
prosecution sought to suggest to the jury that Alston’s testimony blaming Cannon was a

recent fabrication made in retaliation for Cannon’s then recent disclosure of Alston’s role

in another murder.

          The Brady material here would have corroborated Alston’s testimony,

undercutting that challenge. The letter identifying Cannon as Giles’s killer was written

before Cannon’s statements to police implicating Alston in a murder. Thus, even before

a retaliatory motive may have existed, Alston said Cannon shot Giles. Had the letter

been disclosed, the prosecutor would have been unable to pursue the recent fabrication

challenge, and if he attempted to do so, Haskins could have easily refuted that accusation

by pointing to his letter to someone with whom he shared a close relationship, written

before the alleged motive to retaliate against Cannon arose. Given the importance of

Alston’s credibility and the inconsistencies in the testimony of the prosecution’s

witnesses, we believe that there is no room for fair-minded disagreement that the letter

calls into question whether the verdict returned is “worthy of confidence.” Kyles, 514

U.S. at 434. As a result, the Superior Court unreasonably applied Brady and its progeny

when it held that the evidence was not material. Haskins is therefore entitled to habeas

relief.

                                              III

          For the foregoing reasons, we will reverse the District Court’s order denying

Haskins’s habeas petition, and the Commonwealth is directed to retry Haskins within 120

days or release him.



                                              12
