                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-9005
                                      ___________

                                  JAMES LAMBERT,
                                     Appellant

                                           v.

  JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; WILLIAM STRICKMAN, III, SUPERINTENDENT OF THE STATE
 CORRECTIONAL INSTITUTION AT GREENE; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE
                        OF PENNSYLVANIA
               ____________________________________

                On Remand from the Supreme Court of the United States
                         (E.D. Pa. Civil Action No. 02-09034)
                    District Judge: Honorable Michael M. Baylson
                     ____________________________________

                                 Argued April 17, 2013
                                   ______________

                  Before: HARDIMAN, STAPLETON and BARRY,
                                Circuit Judges
                               ______________

                          (Opinion filed: September 20, 2013)

Stuart B. Lev, Esq. (ARGUED)
Leigh M. Skipper, Esq.
Keisha Hudson, Esq.
Timothy Kane, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
       -AND-
Daniel A. Silverman, Esq.
Suite 1001
1429 Walnut Street
Philadelphia, PA 19102

Counsel for Appellant


Ronald Eisenberg, Esq. (ARGUED)
Thomas W. Dolgenos, Esq.
Edward F. McCann, Jr., Esq.
R. Seth Williams, Esq.
District Attorney’s Office
Three South Penn Square
Philadelphia, PA 19107-3499

Counsel for Appellees
                                     ___________

                                      OPINION
                                     ___________

BARRY, Circuit Judge

                                      Introduction

      In 1984, James Lambert was convicted in the Philadelphia Court of Common

Pleas of committing two murders in the course of a robbery, and was sentenced to death.

At trial, the Commonwealth’s case against Lambert was based almost entirely on the

testimony of Bernard Jackson, who had participated in the robbery but had agreed to

testify against Lambert and one Bruce Reese. In 2002, Lambert filed a petition under

Pennsylvania’s Post-Conviction Relief Act (PCRA) alleging that, inter alia, the

Commonwealth had failed to disclose a Police Activity Sheet (or “the report”) indicating
                                            2
that, prior to trial, Jackson had identified not Lambert, but another man, Lawrence

Woodlock, as a participant in the robbery and shooting. Lambert claimed that the

Commonwealth’s failure to disclose the report violated his due process rights under

Brady v. Maryland, 373 U.S. 83 (1963). The PCRA court disagreed, and denied relief.

On appeal, the Pennsylvania Supreme Court affirmed, holding that the report was not

material under Brady because Jackson had been so extensively impeached at trial that any

additional impeachment would have been merely “cumulative.” Lambert then filed a

petition for writ of habeas corpus in the United States District Court for the Eastern

District of Pennsylvania challenging the state court’s adjudication of this and other

claims. In 2007, the District Court denied relief on all claims.

       On February 7, 2011, we reversed and granted the writ. Lambert v. Beard, 633

F.3d 126 (3d Cir. 2011) (Lambert VI). We concluded that the Pennsylvania Supreme

Court’s determination that the Police Activity Sheet was not material under Brady

because it was merely cumulative to other impeachment evidence “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.” 28 U.S.C. §

2254(d)(1). The Commonwealth subsequently petitioned the Supreme Court for

certiorari.

       On February 21, 2012, the Supreme Court issued a per curiam decision, over a

three-justice dissent, holding that we had overlooked the state court’s alternative basis for

denying Lambert’s Brady claim—that “the reference to Woodlock [in the Police Activity

                                              3
Sheet] was ambiguous and any connection to the Prince’s Lounge robbery speculative.”

Wetzel v. Lambert, -- U.S. --, 132 S. Ct. 1195, 1199 (2012). Accordingly, the Supreme

Court vacated our judgment and remanded the matter for consideration of whether this

alternative ground supporting the state court’s decision was reasonable. The parties have

submitted supplemental briefs addressing this issue, and we have heard oral argument.

      After careful review, we again conclude that Lambert is entitled to habeas relief.

Accordingly, we will vacate the judgment of the District Court.

                      I.     Factual and Procedural Background

      We previously recounted the factual and procedural background relevant to

Lambert’s Brady claim as follows:

              At approximately 9:00 on the evening of September 23, 1982, the
      robbery of Prince’s Lounge went bad, and two patrons were shot to death.
      The Philadelphia Police Department commenced an investigation, but the
      perpetrators could not be identified, although two of the three barmaids
      working that night gave general descriptions of each of the two
      perpetrators. Not long after the murders, however, an anonymous tip was
      received by the Department identifying Bernard Jackson and “Touche”
      (later identified as Reese, Jackson’s brother-in-law) as the men in the bar
      that night. Each barmaid was subsequently presented, for the first time,
      with a photo array that included Jackson’s photo. Sarah Clark identified
      Jackson as the man who was standing at the top of the stairs in the bar and
      ordered her to place the money in a bag just before she heard two gunshots
      from the rear of the bar, the shots that killed the two patrons. Marie Green
      was 85 to 90 percent sure that the man at the top of the stairs was Jackson.
      Janet Ryan, the third barmaid, was working at the rear of the bar and
      dropped down and ran to the ladies room when the shooter pointed a gun in
      her face.

             Jackson, who by then was in custody on another charge, learned that
      he had been identified by at least one of the barmaids and told the police
      about the Prince’s Lounge robbery and that Reese and “another dude,”
      whose name he could not recall, had done it. His story, at least initially,
                                            4
      went as follows. He and Reese met the “other dude” (whom he much later
      identified as Lambert) for the first time less than an hour before the three of
      them decided to rob a bar. After casing, and rejecting, one bar, Jackson,
      who admitted to having previously committed at least thirteen armed
      robberies of bars, made the decision to rob the Prince’s Lounge after
      ascertaining that a female friend of his was not working that night. Jackson
      claimed to have waited in the getaway car while Lambert and Reese entered
      the bar and went upstairs, each armed with a handgun provided by Reese—
      Lambert was carrying the .32 and Reese the .38, which, as it turned out,
      was the murder weapon. Jackson claimed not to have known what
      happened in the bar aside from what he was told by Reese and Lambert
      when they returned to the car and fled the scene with Jackson at the wheel.

Lambert VI, 633 F.3d at 130.

      Based on Jackson’s statements to police, Lambert and Reese were arrested and

charged with murder, criminal conspiracy, and possession of an instrument of crime. At

trial, the Commonwealth’s case against Lambert rested almost entirely on Jackson’s

testimony, which he gave in exchange for an open guilty plea to third-degree murder,

robbery, conspiracy, and several other crimes unrelated to the Prince’s Lounge robbery

and shooting. Jackson was impeached at trial with multiple inconsistencies in his story.

We previously explained these inconsistencies as follows:

             Jackson’s statements of October 14, 1982, October 22, 1982,
      January 14, 1983, and February 6, 1983 were devastatingly inconsistent
      with each other and with his story at trial. He initially decided to give the
      police only “some of the truth” and told the police that Reese had admitted
      to shooting two people; then he told the police that Reese said Lambert was
      the shooter and that Reese was ordering the barmaid to give him the
      money; then he told the police that although he had previously said that
      Lambert had done it, that wasn't true—he was “feeding them a story” when
      he said that Lambert said he had shot two people and “that was a lie, too.”
      Now, at trial, he said, he was going to tell the truth. It was Reese, not
      Lambert, who said that he shot two people, but that wasn't true either
      because what Reese really said was that “I think we killed a couple of guys
      in there,” not that he did. Indeed, Jackson was finally forced to admit that
                                            5
       three months after the first of his lengthy statements to the police, he was
       still giving them different versions of what had happened. Still,
       breathtakingly, at the very end of his testimony, with his credibility
       hanging, at best, by a thread, and conceding that he was testifying to avoid
       a death sentence, Jackson somewhat proudly announced that although he
       had “switched what [Lambert and Reese] did interchangeably,” he always
       said that Lambert and Reese were the two men involved—they were “the
       only two people” he supplied to the police.

Id. at 131 (citations to record omitted).

       But, unbeknownst to either the defense or the jury at the time, Jackson had in fact

supplied police with another perpetrator. Several years after the trial, Lambert discovered

several documents that had not been disclosed, including the Police Activity Sheet at

issue here, which is dated October 25, 1982. The Police Activity Sheet notes the file

number of the investigation into the Prince’s Lounge homicide, the names of the

investigators, and the names of the murder victims. The report then sets forth the

following notations:

       A photo display was shown to the below listed person[s.] Photo display
       contained a Lawrence WOODLOCK 27 N/M res. 5333 Walnut St. PPN #
       477095. Mr. WOODLOCK is named as co-defendant by Bernard
       JACKSON. No identification was made.

       Sarah CLARK 5511 Saybrook Ave. Marie GREEN 5227 Pine St. 1

       A survey was made of the area 53RD. & Walnut St. to found [sic] Lawrence
       WOODLOCK Neg. results.

(App. 3334.)

       Lambert presented the Police Activity Sheet to the PCRA court and argued that


1
 As previously noted, Clark and Green were barmaids at the Prince’s Lounge who were
present during the robbery and shooting.
                                          6
the Commonwealth’s failure to disclose it violated his due process rights under Brady.

The PCRA court denied relief on the ground that the report was not material. The court

explained that “Jackson was comprehensively impeached by the defendant and co-

defendant Reese at trial[,]” and, “[d]espite being impeached on prior inconsistencies and

lies to police, the jury determined Jackson to be credible.” (A228.) Therefore, according

to the PCRA court, “[i]n light of the record as a whole, it is not reasonable to believe that

Jackson’s further inconsistency found only in a police activity sheet and not in any of his

statements to police would have caused the jury to discredit him.” (Id.)

       Upon review, the Pennsylvania Supreme Court agreed, explaining that:

               The PCRA court concluded that this document was not material as it
       did not create a reasonable probability that the result of the proceeding
       would have been different had it been disclosed. We agree. Appellant’s
       claim that Jackson’s reference to Woodlock automatically means that
       someone other than himself committed the shootings and robbery is purely
       speculative at best. The Commonwealth accurately notes that the police
       must not have had reason to consider Woodlock a potential codefendant in
       this case as his name is not mentioned anywhere else in the police
       investigation files. . . . Moreover, this document would not have materially
       furthered the impeachment of Jackson at trial as he was already extensively
       impeached by both appellant and Reese. Indeed, each codefendant cross-
       examined Jackson on the following: every inconsistency in his four police
       statements; that he was testifying on behalf of the Commonwealth pursuant
       to a plea bargain; and that he had several open robbery charges still pending
       and his testimony was motivated by a desire to receive lenient sentences for
       those crimes. Any additional impeachment of Jackson arising from a police
       notation would have been cumulative. Accordingly, the Commonwealth
       did not violate Brady by not disclosing this police activity sheet as
       appellant has failed to show its materiality.

Commonwealth v. Lambert, 884 A.2d 848, 855-56 (Pa. 2005) (Lambert III) (citation

omitted).

                                              7
       Lambert then challenged the state court’s adjudication of his Brady claim in a

federal habeas petition. When the District Court considered the claim, it did not address

the materiality of the October 25, 1982 Police Activity Sheet in particular, but instead

considered it only as part of a group of documents that the Commonwealth had not

disclosed, and determined that “[t]he various notations and statements which [Lambert]

claims the Commonwealth should have disclosed are entirely ambiguous, and would have

required the state courts to speculate to conclude they were favorable for Lambert and

material to his guilt or punishment.” Lambert v. Beard, No. 02-9034, 2007 WL 2173390,

at *10 (E.D. Pa. July 24, 2007) (Lambert IV). Accordingly, the District Court held that

the Pennsylvania Supreme Court’s disposition of Lambert’s Brady claim was reasonable

under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id.

       We disagreed and held that the state court’s adjudication of the claim resulted in a

decision that involved an unreasonable application of federal law. See 28 U.S.C.

§ 2254(d)(1). In particular, we rejected the Pennsylvania Supreme Court’s determination

that the Police Activity Sheet of October 25, 1982 was not material because it was merely

cumulative to other evidence that was used to impeach Jackson at trial; our primary

concern was that the state supreme court had concluded that Jackson “was so thoroughly

impeached that, ipso facto, additional evidence could not have made a difference.”

Lambert VI, 633 F.3d at 133. We wrote that it was “patently unreasonable” for the state

court to “presume—without explanation—that whenever a witness is impeached in one

manner, any other impeachment becomes immaterial,” id. at 134, especially given that in

                                             8
this case, the report would have opened an entirely new line of impeachment because the

Commonwealth had relied heavily on Jackson’s insistence at trial that he had

consistently named only Lambert and Reese as the perpetrators. Accordingly, we vacated

the District Court’s judgment, remanded the matter, and directed the District Court to

conditionally grant the petition for a writ of habeas corpus. We ordered the

Commonwealth to retry Lambert or release him.

       Thereafter, the Commonwealth filed a petition for writ of certiorari in the Supreme

Court of the United States. The Supreme Court granted the petition and vacated our

judgment on the ground that we had failed to properly defer to the state court’s

adjudication of the Brady claim. Specifically, and while not taking issue with the

determination we had made, the Supreme Court held that we had “overlooked the

determination of the state courts that the notations [in the Police Activity Sheet] were, as

the District Court put it, ‘not exculpatory or impeaching’ but instead ‘entirely

ambiguous.’” 2 Lambert VII, 132 S. Ct. at 1198 (citation omitted). Our review on remand

is thus limited to considering whether, when taking into account this alternative ground,

we still conclude that the Pennsylvania Supreme Court’s decision was unreasonable
under AEDPA.

                       II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 2241, and 2254. We

have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District


2
 In remanding the case to us, the Supreme Court expressly noted that it was taking no
position on the merits of this aspect of the decision of the Pennsylvania Supreme Court.
                                               9
Court did not conduct an evidentiary hearing, we exercise plenary review over its

decision. See Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).

                                     III.    Discussion

                                              A.

       AEDPA sets the parameters for our review. Under AEDPA, we may grant habeas

relief only if the adjudication of a claim in state court proceedings “(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 [s]tate court proceeding.” 28 U.S.C. § 2254(d)(1)-

(2).

       Thus, § 2254(d) requires three distinct legal inquiries. See Harrington v. Richter,

--- U.S. ----, 131 S. Ct. 770, 785 (2011). “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; second, if it was not, we must evaluate whether the state court

judgment rests upon an objectively unreasonable application of clearly established

Supreme Court jurisprudence.” Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011)

(quotation marks and citation 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. (quoting 28 U.S.C. § 2254(d)(2)).


Lambert VII, 132 S. Ct. at 1199.
                                              10
       While AEDPA imposes a highly deferential standard for evaluating state-court

rulings, “deference does not imply abandonment or abdication of judicial review.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “The standard is demanding but not

insatiable; . . . deference does not by definition preclude relief.” Miller-El v. Dretke, 545

U.S. 231, 240 (2005) (quotation and citation omitted).

                                             B.

       The Supreme Court of the United States has returned this case to us so that we

may consider the state supreme court’s alternative basis for denying Lambert’s Brady

claim—that is, its determination that the notations in the Police Activity Sheet were “not

exculpatory or impeaching” but instead “entirely ambiguous.” Lambert VII, 132 S. Ct. at

1198 (internal quotation marks and citations omitted). According to the Supreme Court,

the ambiguity at issue concerns not whether the report was prepared in connection with

the investigation into the Prince’s Lounge crime, which was not disputed, but whether

Jackson identified Woodlock in reference to that crime, or one of Jackson’s many others.

We have carefully considered this alternative basis for the state court’s decision together

with the rest of its opinion, and once again conclude that the state court’s decision to

deny Lambert’s Brady claim was unreasonable. Specifically, we now hold that, insofar

as the state court determined that the notations in the Police Activity Sheet were “not

exculpatory or impeaching,” but instead “entirely ambiguous,” it rests on both an

unreasonable application of federal law and an unreasonable determination of the facts in




                                             11
light of the evidence presented. See 28 U.S.C. § 2254(d)(1) and (2). 3

       First, we hold that, insofar as the state court’s decision rests on a finding that the

notations in the Police Activity Sheet are ambiguous because Jackson may have been

identifying Woodlock in connection with a different robbery, it was “based on an

unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2). The report is not

ambiguous. The notations clearly refer to the Prince’s Lounge robbery and shooting, not

some unrelated crime. The report sets forth the file number of this investigation, the

investigators of this crime, the victims of these murders, and the witnesses of these

events. It notes that witnesses were shown a photo display containing a photograph of

Lawrence Woodlock. In this context, the only plausible explanation for the statement

“Mr. Woodlock is named as co-defendant by Bernard Jackson” is that it too refers to this

robbery and these murders and not some other crime.

       The Commonwealth contends that the Police Activity Sheet, although created in

connection with the Prince’s Lounge investigation, actually refers to a statement that

Jackson made to police about one of his other robberies. The most obvious flaw in so

contending is that if Jackson were naming Woodlock as an accomplice in one of his other

robberies, then why did the police show Woodlock’s photo to eyewitnesses in this case?


3
 Before we address the cited state court ruling, we pause to note that we are not
convinced that the state court made such a ruling. Like Justices Breyer, Ginsburg, and
Kagan, we read the state court’s decision differently than does the majority. See Lambert
VII, 132 S. Ct. at 1199 (BREYER, J., dissenting). This concern notwithstanding, we, of
course, accept for purposes of this remand that the Pennsylvania Supreme Court made a
determination that the notations contained in the Police Activity Sheet were not
exculpatory or impeaching under Brady because they were ambiguous.
                                            12
Although the Commonwealth speculates that the police were simply confirming that

Woodlock had nothing to do with this case, the only explanation for the police having

shown Woodlock’s photo to the barmaids at the Prince’s Lounge that does not defy

common sense, and surely, in Justice Breyer’s phrase, the “most natural” explanation, is

that Jackson told the police that Woodlock was involved in that crime. Any conclusion

to the contrary is “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).

       Our conclusion is consistent with our duty to defer to the state court’s decision.

While AEDPA emphasizes deference to the state court’s findings, it has not eliminated

federal habeas review, much less called upon us to deny relief. We have carefully

examined the state court record and have found the court’s judgment regarding the

meaning of the Police Activity Sheet to be objectively unreasonable. We have not, as our

colleague in dissent suggests, “fail[ed] to grapple with the question of whether

fairminded jurists could disagree” over the meaning of the report. Post, at 5 (opinion of

Hardiman, J.) (citing Harrington, 131 S. Ct. at 786). Rather, we have exercised our

power of review fully cognizant of the deference we owe to the state court, but, for the

reasons noted above, have concluded that fairminded jurists simply could not conclude

that the notations in the Police Activity Sheet are ambiguous. 4

       We further hold that, to the extent the state court determined that the Police

Activity Sheet was not exculpatory or impeaching under Brady because it was


4
  As the dissent correctly notes, a determination that the state court unreasonably found
the facts does not alone provide a basis for habeas relief. See Wilson v. Corcoran, 131 S.
Ct. 13, 16-17 (2010) (per curiam). Rather, a federal court must—as we proceed to do
                                             13
ambiguous, such determination was an unreasonable application of clearly established

Supreme Court precedent under 28 U.S.C. § 2254(d)(1). It is well established that the

state violates a defendant’s right to due process under Brady when it withholds evidence

that is “favorable to the defense” (and material to the defendant’s guilt or punishment).

Smith v. Cain, --- U.S. ----, 132 S. Ct. 627, 630 (2012). In describing evidence that falls

within the Brady rule, the Supreme Court has made clear that impeachment evidence is

“favorable to the defense” even if the jury might not afford it significant weight. For

example, in Kyles v. Whitley, 514 U.S. 419 (1995), the Court noted that because certain

undisclosed evidence had “some value as exculpation and impeachment,” it should be

considered in conjunction with the other undisclosed evidence in determining whether

Brady’s materiality standard is satisfied. Id. at 450 (emphasis added). The Court

specifically rejected the state’s argument that the evidence was “neither impeachment nor

exculpatory evidence” because the jury might not have substantially credited it;

according to the Court, “[s]uch argument . . . confuses the weight of the evidence with its

favorable tendency.” Id. at 451; see also United States v. Bagley, 473 U.S. 667, 676

(1985) (“[Impeachment] evidence is ‘evidence favorable to an accused,’ so that, if

disclosed and used effectively, it may make the difference between conviction and

acquittal.”) (citation omitted).

       There can be no doubt that the Police Activity Sheet had value as impeachment

evidence and was favorable to Lambert. Had the report been made available to Lambert


below—also find that the prisoner’s custody violates federal law. See id. at 17.
                                          14
at trial, he could have used it to further undermine Jackson’s already shaky credibility

and bolster his argument that Jackson had invented a third perpetrator in order to

minimize his own level of involvement in the crime. Under these circumstances, the state

court’s determination that the Police Activity Sheet did not satisfy the favorability prong

of the Brady doctrine was unreasonable. See 28 U.S.C. § 2254(d)(1).

       When this matter was last before us, we held that the state court’s determination

that the undisclosed Police Activity Sheet did not satisfy Brady’s materiality standard

was unreasonable as well. We rejected the state court’s reasoning that the report was not

material because it was merely cumulative to other evidence that was used to impeach

Jackson at trial. We explained that, had the defense introduced the report at trial, it

would have opened an entirely new line of impeachment by undermining Jackson’s

consistency in naming Reese and Lambert as the perpetrators; as we stated then, “the

withheld information provided a unique basis on which to impeach—specifically, a basis

that shredded Jackson’s credibility on the one point on which the jury could have inferred

that he had any credibility.” Lambert VI, 633 F.3d at 134 n.3; accord Smith, 132 S. Ct. at

630 (holding that the undisclosed statements of an eyewitness were “plainly material”

where the eyewitness’s testimony was the only evidence linking the defendant to the

crime and his undisclosed statement directly contradicted his trial testimony); Banks v.

Dretke, 540 U.S. 668, 702 (2004) (rejecting the state’s argument that no Brady violation

had occurred because the witness was heavily impeached at trial, and thus that his status

as a paid informant would have been merely cumulative impeachment evidence); Slutzker

                                            15
v. Johnson, 393 F.3d 373, 387 (3d Cir. 2004) (holding that, although the defendant was

able to impeach the prosecution in certain respects, the suppressed information was

material under Brady because there was a significant difference between the suppressed

material and the information to which the defense had access).

      We remain convinced that there is “a reasonable probability that, had the [Police

Activity Sheet] been disclosed to the defense, the result of the proceeding would have

been different.” 5 Bagley, 473 U.S. at 682. In considering the materiality of suppressed

evidence, the Supreme Court instructs us to ask “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.” Kyles, 514 U.S. at 434. Given the weakness of the Commonwealth’s case

against Lambert, and its emphasis at trial on Jackson’s consistency in naming Lambert

and Reese as the perpetrators of the crime, we are surely not confident that, had the

Commonwealth disclosed the Police Activity Sheet, the jury’s verdict would have been

the same. The state court’s conclusion to the contrary was unreasonable.

                                    IV.    Conclusion

       The judgment of the District Court is vacated, and this matter remanded. The

District Court is directed to conditionally grant the petition for a writ of habeas corpus.

The Commonwealth shall retry Lambert within 120 days. If it fails to do so, Lambert


5
 The dissent submits that our argument as to how the state court unreasonably applied
Brady is “vitiated by the Supreme Court’s opinion . . . .” Post, at 6 (opinion of
Hardiman, J.). To the contrary, and as we previously noted, the Supreme Court took no
                                           16
shall be released.




issue with our prior opinion’s holding.
                                          17
Lambert v. Beard, et al., No. 07-9005
HARDIMAN, Circuit Judge, dissenting.

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a

federal court may not grant a writ of habeas corpus to a state prisoner unless the state

court’s adjudication of his claim “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 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)(1)-(2).      Because James Lambert cannot

surmount AEDPA’s formidable bar to habeas relief, I respectfully dissent.

                                             I

       At the core of this case is the Pennsylvania Supreme Court’s ruling that the

reference to Lawrence Woodlock in the police activity sheet was ambiguous such that it

would be speculative to connect him to the Prince’s Lounge robbery. 1 See Wetzel v.

Lambert, 132 S. Ct. 1195, 1198–99 (2012) (Lambert VII); Commonwealth v. Lambert,

884 A.2d 848, 855–56 (Pa. 2005) (Lambert III). The majority holds that the state court

ruling was both an unreasonable determination of the facts and an unreasonable

application of Brady v. Maryland, 373 U.S. 83 (1963). Although I agree with my


       1
        Although our prior opinion recognized only one ground of decision in the
Pennsylvania Supreme Court, namely, that the police activity sheet was merely
cumulative impeachment evidence and therefore not material under Brady, see Lambert
v. Beard, 633 F.3d 126, 132 (3d Cir. 2011) (Lambert VI), we are bound by the United
States Supreme Court’s interpretation of the Pennsylvania Supreme Court’s decision,
which recognized this alternative ruling.


                                            1
colleagues that the best reading of the activity sheet is that it is not ambiguous or

speculative, I cannot say that the state court’s ruling was unreasonable under the highly

deferential AEDPA standard.

                                            II

       Pursuant to AEDPA, before a federal court may grant habeas relief under the

unreasonableness grounds of 28 U.S.C. § 2254(d)(1)-(2), “a state prisoner must show that

the state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct.

770, 786–87 (2011). “If this standard is difficult to meet, that is because it was meant to

be. . . . Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not a substitute for ordinary error

correction through appeal.” Id. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 322

n.5 (1979) (Stevens, J., concurring in judgment)). “The reasons for this approach are

familiar. ‘Federal habeas review of state convictions frustrates both the States’ sovereign

power to punish offenders and their good-faith attempts to honor constitutional rights.’”

Id. at 787 (quoting Calderon v. Thompson, 523 U.S. 538, 555–56 (1998)). Accordingly,

§ 2254(d) “preserves authority to issue the writ in cases where there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents. It goes no farther.” Id. at 786.

       Our analysis under AEDPA follows a prescribed path. See Eley v. Erickson, 712

F.3d 837, 846–47 (3d Cir. 2013). First we “must determine what arguments or theories


                                            2
supported or . . . could have supported[] the state court’s decision.” Harrington, 131 S.

Ct. at 786. Then we “must ask whether it is possible fairminded jurists could disagree

that those arguments or theories are inconsistent with the holding in a prior decision of

[the Supreme] Court.”        Id. Only if the petitioner demonstrates that the state court

decision was error “beyond any possibility for fairminded disagreement” may we grant

habeas relief. Id. at 787.

                                             III

       As the Supreme Court observed in its opinion remanding this case, there are

several reasons why the Pennsylvania Supreme Court’s decision “may well be

reasonable”:

       (1) [T]he activity sheet did not explicitly link Woodlock to the Prince’s
       Lounge robbery, (2) Jackson had committed a dozen other such robberies,
       (3) Jackson was being held on several charges when the activity sheet was
       prepared, (4) Woodlock’s name appeared nowhere else in the Prince’s
       Lounge files, and (5) the two witnesses from the Prince’s Lounge robbery
       who were shown Woodlock’s photo did not identify him as involved in that
       crime.

Lambert VII, 132 S. Ct. at 1199. Unsurprisingly, the Commonwealth relies on these

reasons in its briefing on remand.

       Lambert cites various reasons why the Pennsylvania Supreme Court’s

interpretation of the activity sheet was unreasonable, focusing on the numerous

identifying factors on the activity sheet that tie the document to the Prince’s Lounge

robbery. He notes that the activity sheet is marked with the police case numbers for the

Prince’s Lounge robbery and that it bears the names of the murder victims, the witnesses

to the murder, and the law enforcement officers involved in the investigation. Moreover,


                                              3
there is no evidence that Woodlock was ever investigated for another robbery or that his

photo was shown to a witness to any other robbery. The majority adopts Lambert’s

interpretation of the activity sheet, citing these same factors.

       If we exercised de novo review of the state court decision, it would seem that the

best reading of the activity sheet is that it relates to the Prince’s Lounge robbery. But

under AEDPA’s highly deferential standard of review, “even a strong case for relief does

not mean the state court’s contrary conclusion was unreasonable.” Harrington, 131 S.

Ct. at 786 (citation omitted). Instead, the state court’s decision “must be objectively

unreasonable,” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and

citation omitted), such that “there is no possibility fairminded jurists could disagree that

the state court’s decision conflicts with [the Supreme] Court’s precedents,” Harrington,

131 S. Ct. at 786.

       Here, the reasons cited by the Supreme Court and repeated by the Commonwealth

on remand lead me to conclude that Lambert cannot satisfy the AEDPA standard. They

provide enough support for the proposition that the reference to Woodlock is ambiguous

and the connection between the activity sheet and the Prince’s Lounge robbery is

speculative.   Though this may not be the most natural reading of the document,

fairminded jurists could disagree. A determination of ambiguity is necessarily a general

inquiry, and factors exist on both sides of the question presented in this appeal. Where

these circumstances exist, so long as there is the possibility of fairminded disagreement

over the state court interpretation, federal habeas relief is precluded by AEDPA. Cf.

Yarborough v. Alvarado, 541 U.S. 652, 664–65 (2004) (factors pointing in opposite


                                               4
directions regarding whether the petitioner was in custody for Miranda purposes

precluded habeas relief so long as the state court decision was “within the matrix” of the

custody test).

       The majority fails to grapple with the question of whether fairminded jurists could

disagree over whether the notations in the activity sheet were ambiguous and the sheet’s

connection to the robbery was speculative, in contravention of the process the Supreme

Court has prescribed. See Harrington, 131 S. Ct. at 786. Although the majority asserts

that the “only plausible” interpretation of the activity sheet is that it unambiguously

relates to the Prince’s Lounge Robbery, see Maj. Typescript at 13, in fact the Supreme

Court offered five possible grounds for a finding of ambiguity, rendering the state court’s

opposite interpretation a reasonable one:

       (1) [T]he activity sheet did not explicitly link Woodlock to the Prince’s
       Lounge robbery, (2) Jackson had committed a dozen other such robberies,
       (3) Jackson was being held on several charges when the activity sheet was
       prepared, (4) Woodlock’s name appeared nowhere else in the Prince’s
       Lounge files, and (5) the two witnesses from the Prince’s Lounge robbery
       who were shown Woodlock’s photo did not identify him as involved in that
       crime.

Lambert VII, 132 S. Ct. at 1199.

       Given the reasonableness of the state court ruling that the activity sheet was

ambiguous and its connection to the Prince’s Lounge robbery was speculative, I must

also dissent from the majority’s additional holding that the state court’s application of

Brady was unreasonable. The Pennsylvania Supreme Court found that the activity sheet

did not satisfy Brady’s materiality prong because there was no reasonable probability that

the result of the proceedings would have been different had it been disclosed. Lambert


                                            5
III, 884 A.2d at 473. This conclusion is not unreasonable under AEDPA. The ambiguity

of the activity sheet combined with the multiple interpretations to which it is susceptible,

as noted by the state court, prevents us from saying that the state court’s is objectively

unreasonable such that “there is no possibility that fairminded jurists could disagree.”

Harrington, 131 S. Ct. at 786.

       The majority reaches the opposite conclusion based on its antecedent holding that

the activity sheet is unambiguous. As I have explained, however, AEDPA does not allow

us to come to that conclusion given the deference due to the state court. Arguments that

the state court unreasonably applied Brady are vitiated by the Supreme Court’s opinion,

which adverted to a completely separate basis for the state court’s decision: the

document’s ambiguity and its speculative relationship to the Prince’s Lounge robbery.

See Lambert VII, 132 S. Ct. at 1198 & n.*. It is that separate basis that we must find

objectively unreasonable under AEDPA before we may grant habeas relief. See id. at

1198 (“If the conclusion in the state courts about the content of the document was

reasonable—not necessarily correct, but reasonable—whatever those courts had to say

about cumulative impeachment evidence would be beside the point.”).

       The Supreme Court has been clear that AEDPA “‘imposes a highly deferential

standard for evaluating state-court rulings’ and ‘demands that state-court decisions be

given the benefit of the doubt.’” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011)

(quoting Renico, 130 S. Ct. at 1862)). The Court has repeatedly reminded the lower

federal courts that AEDPA precludes relief unless the state court’s ruling was error




                                             6
“beyond any possibility for fairminded disagreement.” 2 Harrington, 131 S. Ct. at 787

(emphasis added). Under the appropriate standard of review, I would hold that the state

court’s rulings both with respect to the ambiguity of the activity sheet and the application

of Brady were reasonable. Accordingly, I respectfully dissent.




       2
         The Supreme Court has frequently reversed or vacated lower court decisions for
failing to apply the correct standard. See Garrus v. Sec’y of Pa. Dep’t of Corrs., 694 F.3d
394, 412–14 & nn.1–3 (3d Cir. 2012) (Hardiman, J., dissenting) (collecting cases).


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