Taibu Grant v. Melvin Lockett

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-3804
_____________

TAIBU GRANT,
Appellant

v.

MELVIN LOCKETT, Superintendent;
ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
_____________

On Appeal from the District Court
for the Western District of Pennsylvania
(No. 2:10-cv-00785)
Magistrate Judge Robert C. Mitchell
_____________

Argued on December 20, 2012

Before: McKEE, Chief Judge, and SLOVITER, VANASKIE,
Circuit Judges.

(Opinion Filed: March 7, 2013)

Roger A. Cox, Esq. (ARGUED)
Cox & Cox
350 Greater Butler Mart
Butler, PA 16001
Counsel for Appellant

Leanne K. Shipley, Esq. (ARGUED)
Allegheny County Office of District Attorney
436 Grant Street
303 Courthouse
Pittsburgh, PA 15219

1
 Counsel for Appellees

_____________

OPINION OF THE COURT
_____________

McKee, Chief Judge:

Taibu Grant appeals the District Court‟s denial of the
habeas petition he filed under 28 U.S.C. § 2254. We granted
a certificate of appealability to allow Grant to appeal the
District Court‟s rejection of his claim of prosecutorial
misconduct without holding an evidentiary hearing and his
claims of ineffective assistance of counsel. Although we
agree with the court‟s rejection of Grant‟s prosecutorial
misconduct claim, we hold that Grant was denied his Sixth
Amendment right to effective assistance of counsel. We will
therefore remand to the District Court, which is directed to
grant a conditional writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

Grant was sentenced to life imprisonment after a jury
convicted him of the first-degree murder of Keith Gilliam.
Gilliam was fatally shot outside the Where It‟s At Bar (the
“Bar”) in Pittsburgh, Pennsylvania around midnight on
January 8, 1997. That evening, Gilliam picked up his wife
from work and then went to the Bar, where they spent about
two hours before leaving to return home. As Gilliam was
walking to his car, a lone gunman approached him on foot
and opened fire just outside the Bar, killing Gilliam and
wounding another person, Leo Butler. Four or five minutes
later, more shots were fired from a maroon Buick that drove
by. Those shots wounded two others in front of the Bar.

Police subsequently gathered fifteen shell casings, four
bullets and some bullet fragments from the crime scene. All
the shell casings were found in the street, at the intersection
of Lincoln and Lemington Avenues. A forensic analysis
revealed that all fifteen shell casings had been discharged

2
from the same firearm, but police never recovered the weapon
that fired them. A maroon Buick Skylark, matching the
description of the car from which the second round of shots
was fired, was found after the shooting. Two latent
fingerprints were recovered from the car, but neither of them
matched Grant‟s prints. The car had been reported stolen and
police questioned Clarence Dumas about the car theft.
However, Dumas was not arrested or charged in connection
with the car theft or the shooting incident.

Grant was convicted of killing Gilliam based primarily
on the testimony of one Commonwealth witness, Christopher
Moore. Moore was the only witness who identified Grant as
the person who fired the fatal shots at Gilliam. Moore lived
in an apartment building about 230 feet from the Bar, on the
opposite side of Lincoln Avenue. Moore testified that he
heard shots as he was leaving his apartment building that
night. When he looked in the direction of the shots, he saw a
man in the parking lot of the Open Pantry Food Mart,
shooting towards the Bar. The Open Pantry is directly across
the street from the Bar. Moore testified that although he
could not see the shooter‟s face, he could see that the shooter
was wearing a blue, hooded coat, with what appeared to be a
four-inch wide horizontal stripe of a lighter color. Moore
testified that he lost sight of the shooter briefly but several
minutes later, after Moore walked to the corner of Manning
and Montezuma Streets, he saw Grant wearing the same
clothing Moore had seen on the shooter. Moore said he heard
Grant yell, “I had to let loose on them niggers,” to someone
standing behind him.

Another prosecution witness, Robert Gilbert, testified
that he was heading towards the Bar on the night at issue, and
was at Manning and Montezuma Streets when he saw Grant
walking towards him in a blue North Carolina jacket.
Gilbert‟s testimony, however, did not directly link Grant to
the crime.

No one else identified Grant as the shooter or placed
him at the scene of the shooting. On the contrary,
eyewitnesses who were in front of the Bar when the shooting
took place testified that Grant was not the man who shot
Gilliam. Leo Butler was wounded by the first shooter. He

3
testified that the first shooter was standing at a stoplight by
Lincoln and Lemington Streets (where the shell casings were
later found), and that the shooter was not Grant. Gerald
Bonner was in front of the Bar, speaking with Butler, when
Gilliam was shot. Bonner also testified that the shooter was
not Grant. Two other eyewitnesses — Kim Oden and Mark
Gee — were present when Gilliam was killed. Neither was
called as a witness at trial, but both later swore in affidavits
that they saw the first and second shooter, respectively, and
that the shooter was not Grant. Thus, aside from Moore, no
one implicated Grant in the shooting.

B.

Grant raised a number of issues on direct appeal to the
Pennsylvania Superior Court. The Superior Court first denied
Grant‟s petition to have the case remanded to the trial court
for an evidentiary hearing on trial counsel‟s ineffectiveness.
However, that court later remanded to the trial court to allow
Grant to file a post-sentence motion nunc pro tunc
challenging the sufficiency of the evidence. The Superior
Court otherwise affirmed the trial court and denied Grant‟s
remaining claims. The Pennsylvania Supreme Court
subsequently affirmed the Superior Court‟s decision. In
doing so, the Court held for the first time that claims of
ineffective assistance of counsel should generally be raised in
the first instance in post-conviction proceedings. See
Commonwealth v. Grant, 813 A. 2d 726 (Pa. 2002).

On remand, the trial court denied Grant‟s post-
sentence nunc pro tunc challenge to the sufficiency of the
evidence, and the Superior Court subsequently affirmed.
Grant then filed a pro se petition under the Pennsylvania Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et
seq., in the Court of Common Pleas of Allegheny County (the
“PCRA Court”). Counsel was subsequently appointed and
Grant‟s PCRA counsel filed an amended PCRA petition.1

1
Grant raised a number of claims in his PCRA
petition, but we discuss here only those claims that remain at
issue in this appeal.

4
 Two of Grant‟s claims before the PCRA Court relate
to Moore‟s criminal history. Moore had been convicted of a
theft and a burglary in 1983. The trial court had excluded any
mention of these convictions at trial because they were over
ten years old. However, after the trial, Grant discovered that
Moore had another burglary conviction in 1983 and two drug
convictions in 1993, including one felony drug conviction.
Grant also discovered that Moore had been on parole for the
1993 drug convictions when Gilliam was shot and when
Moore testified as a Commonwealth witness at Grant‟s trial in
1997.

Grant argued that Moore violated his parole by being
at a bar on the night of the shooting and subsequently agreed
to testify against Grant in exchange for leniency with respect
to his parole violation. In state court, Grant framed the issue
of Moore‟s undisclosed criminal history and parole status as
either prosecutorial misconduct under Brady v. Maryland,
373 U.S. 83 (1963), or ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). The Superior
Court denied Grant‟s Brady claim because Grant‟s lawyer
could have discovered Moore‟s criminal history and parole
status with due diligence. See United States v. Starusko, 729
F.2d 256, 262 (3d Cir. 1984) (“[T]he government is not
obliged under Brady to furnish a defendant with information
which he already has or, with any reasonable diligence, he
can obtain himself.”) (internal quotation marks omitted).

The PCRA Court also denied Grant‟s claim that trial
counsel was ineffective for failing to fully investigate
Moore‟s criminal history and parole status. The PCRA Court
based that holding on its belief that Grant had not presented
any evidence that Moore was actually on parole during the
relevant time periods or that Moore received any favorable
treatment by the Commonwealth in exchange for testifying
against Grant. The court reasoned that Grant had therefore
failed to establish the prejudice required to obtain relief for
ineffective assistance of counsel. See Strickland, 466 U.S. at
687 (“[T]he defendant must show that counsel‟s performance
was deficient [and] that the deficient performance prejudiced
the defense.”).

5
 Grant also argued that trial counsel was ineffective for
failing to call Kim Oden and Marc Gee as witnesses. As we
will describe in further detail, in a subsequent affidavit, Oden
affirmed that she saw the first shooter and that shooter was
not Grant. Oden‟s description of the shooter‟s clothing also
contradicted Moore‟s description of the shooter‟s clothing. In
his post-trial affidavit, Gee swore that he witnessed the shots
fired from the Buick, and that the second shooter was not
Grant either. The PCRA Court denied relief on this claim
because it concluded that Grant had not established that trial
counsel knew of the existence of these witnesses or that the
witnesses were “ready, willing, and able to testify” at the time
of Grant‟s trial. Commonwealth v. Grant, No. CC199701537,
at 3-4 (Ct. C.P. Allegheny Cnty. Oct. 2, 2007).

The Superior Court affirmed the PCRA Court‟s denial
of relief on the basis of the PCRA Court‟s reasoning.
Commonwealth v. Grant, No. 1581 WDA 2007 (Pa. Super.
Ct. Nov. 6, 2008). The Pennsylvania Supreme Court
subsequently denied leave to appeal. Commonwealth v.
Grant, No. 529 WAL 2008 (Pa. Sept. 15, 2009).

Having exhausted his state court remedies, Grant then
filed a pro se habeas petition under 28 U.S.C. § 2254 in the
District Court. As we noted at the outset, the District Court
denied Grant‟s request for an evidentiary hearing on his
prosecutorial misconduct claim and affirmed the Superior
Court‟s denial of relief on all of Grant‟s remaining claims.

The District Court adopted the reasoning of the PCRA
court in denying relief on Grant‟s prosecutorial misconduct
and ineffective assistance claims relating to Moore‟s criminal
history and parole status. The District Court rejected Grant‟s
claim that trial counsel was ineffective in not calling Oden
and Gee because, inter alia, their testimony would have been
cumulative, as other witnesses had already testified that Grant
was not the shooter. Grant v. Lockett, No. 2:10-cv-785, 2010
WL 3259852 (W.D. Pa. Aug. 18, 2010).

A panel of this court subsequently granted a certificate
of appealability as to the following three issues:

6
 (1) Whether the Magistrate Judge
abused his discretion by denying Grant
an evidentiary hearing regarding his
claim of prosecutorial misconduct for
failure to disclose Christopher Moore‟s
full criminal history;

(2) Whether trial counsel provided
ineffective assistance by failing to
investigate Moore‟s criminal history; and

(3) Whether trial counsel provided
ineffective assistance by failing to call
witnesses Kim Oden and Mark Gee.

II. STANDARD OF REVIEW2

We review the District Court‟s denial of an evidentiary
hearing for abuse of discretion. Morris v. Beard, 633 F.3d
185, 193 (3d Cir. 2011). Where, as here, the District Court
does not hold an evidentiary hearing and dismisses a habeas
petition based on a review of the state court record, we apply
a plenary standard of review. Duncan v. Morgan, 256 F.3d
189, 196 (3d Cir. 2001). “Accordingly, we will review the
state courts‟ determinations under the same standards that the
District Court was required to apply, which are the standard
set forth in” the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2241 et seq. Brown v.
Wenerowicz, 663 F.3d 619, 627 (3d Cir. 2011) (internal
quotation marks omitted).

AEDPA places substantial limitations on a federal
court‟s power to grant habeas relief to persons in state
custody. Federal courts may only consider petitions that
allege that the petitioner is being held in state custody “in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). AEDPA also requires that “a
determination of a factual issue made by a state court shall be

2
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 2241 and 2254(a). This Court has appellate
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

7
presumed to be correct” and “[t]he applicant has the burden
of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Finally, when
a state court has adjudicated and rejected a petitioner‟s federal
claim on the merits, the federal court may not grant the writ
unless the state court decision “(1) . . . 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) . . . was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” Id. § 2254(d).

“This is a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the doubt.
The petitioner carries the burden of proof.” Cullen v.
Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (2011)
(citations and internal quotation marks omitted). Moreover,
AEDPA‟s standard applies even where “the state court
analyzed and rejected a habeas petitioner‟s federal claims on
the merits but gave „no indication of how it reached its
decision.‟” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.
2012).
Because the relevant Pennsylvania state court
adjudicated Grant‟s prosecutorial misconduct and ineffective
assistance of counsel claims on the merits, the strictures of §
2254(d) govern our review of each of the issues raised here.

III. DISCUSSION

A.

Grant claims that he was denied a fair trial as a result
of the Commonwealth‟s failure to disclose Moore‟s criminal
background in violation of Brady v. Maryland, 373 U.S. 83
(1963). As we explained above, Moore was the prosecution‟s
key witness and the only witness who identified Grant as the
shooter. Grant argued that prosecutors failed to disclose three
convictions on Moore‟s criminal record and failed to disclose
that Moore was on parole at the time of the shooting and
when he testified against Grant at trial.

8
 The District Court agreed with the state court‟s
conclusion that Grant‟s trial counsel could have discovered
Moore‟s criminal history and parole status with reasonable
diligence. Accordingly, the District Court denied Grant‟s
request for an evidentiary hearing on the Brady claim and
rejected the claim on the merits. We agree that Grant was not
entitled to a hearing on this record, and that his Brady claim
lacked merit. See Cullen v. Pinholster, __ U.S. __, 131 S.Ct.
1388 (2011).

In Pinholster, the Supreme Court held that “review
under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.”
Pinholster, 131 S.Ct. at 1398. Thus, “[if] a claim has been
adjudicated on the merits by a state court, a federal habeas
petition[er] must overcome the limitation of § 2254(d)(1) on
the record that was before that state court.” Id. at 1400. The
petitioner may not introduce new evidence before a federal
habeas court. Id. In addition, review of a claim under §
2254(d)(2) is specifically limited to “evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). We
have recently held that, as a general rule, “district courts
cannot conduct evidentiary hearings to supplement the
existing state court record under 28 U.S.C. § 2254(d).”
Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011)
(finding Pinholster controlling and holding that the district
court erred in conducting an evidentiary hearing).

Grant‟s PCRA counsel was able to discover that
Moore was on parole at the time of the shooting and when he
testified against Grant. Grant‟s trial counsel could also have
accessed Moore‟s criminal history through the records kept
by the Clerk of Court. Indeed, it appears Grant himself
obtained such records while in state custody. It is therefore
clear that trial counsel could have discovered Moore‟s parole
status had he exercised reasonable diligence. Accordingly,
the District Court did not err in denying Grant‟s Brady claim
on the merits without an evidentiary hearing. See United
States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (“[T]he
government is not obliged under Brady to furnish a defendant
with information which he already has or, with any
reasonable diligence, he can obtain himself.”) (internal
quotation marks omitted).

9
 B.

Grant also argues that the Superior Court unreasonably
applied Strickland v. Washington, 466 U.S. 668 (1984), in
rejecting his ineffective assistance claims. Grant first argues
that his trial counsel was ineffective for failing to adequately
investigate the criminal history and parole status of the
Commonwealth‟s key witness, Christopher Moore. Grant
also argues that his trial counsel was ineffective for failing to
investigate and call Marc Gee and Kim Oden as defense
witnesses.

1. AEDPA and Strickland Standards

As we have explained, because Grant‟s ineffective
assistance claims were adjudicated on the merits in state
court, Grant may obtain federal habeas relief under AEDPA
only if the state court decision was (1) “contrary to, or
involved an unreasonable application of, clearly established
Federal law,” or (2) “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); see also
Pinholster 131 U.S. at 1398.

A state court‟s decision is “contrary to . . . clearly
established Federal law” under § 2254(d)(1) “if the state court
applies a rule that contradicts the governing law set forth in
[the Supreme Court‟s] cases,” or “if the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to
[that precedent].” Williams v. Taylor, 529 U.S. 362, 405
(2000).

A state court‟s decision “involves an unreasonable
application[] of clearly established Federal law” where “the
state court identifies the correct legal principle from [the
Supreme] Court‟s decisions but unreasonably applies that
principle to the facts of the prisoner‟s case.” Siehl v. Grace,
561 F.3d 189, 195 (3d Cir. 2009) (internal quotation marks
omitted).

10
 The Supreme Court established the legal principles
governing Sixth Amendment claims of ineffective assistance
of counsel in Strickland v. Washington, 466 U.S. 668 (1984).
Strickland sets forth a two-part test:

First, the defendant must show that
counsel‟s performance was deficient.
This requires showing that counsel made
errors so serious that counsel was not
functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment.

Second, the defendant must show that
the deficient performance prejudiced the
defense. This requires showing that
counsel‟s errors were so serious as to
deprive the defendant of a fair trial, a
trial whose result is reliable.

Id. at 687. “Since Strickland, the Supreme Court and this
Court have emphasized the necessity of assessing an
ineffectiveness claim in light of all the circumstances.” Siehl,
561 F.3d at 195 (citing cases).

When a federal habeas petition under § 2254 is based
upon an ineffective assistance of counsel claim, “[t]he pivotal
question is whether the state court‟s application of the
Strickland standard was unreasonable,” which “is different
from asking whether defense counsel‟s performance fell
below Strickland‟s standard.” Harrington v. Richter, __ U.S.
__, 131 S.Ct. 770, 785 (2011). For purposes of § 2254(d)(1),
“an unreasonable application of federal law is different from
an incorrect application of federal law.” Id. (internal
quotation marks omitted) (emphases in original). “A state
court must be granted a deference and latitude that are not in
operation when the case involves [direct] review under the
Strickland standard itself.” Id. Federal habeas review of
ineffective assistance of counsel claims is thus “doubly
deferential.” Pinholster, 131 S.Ct. at 1403. Federal habeas
courts must “take a highly deferential look at counsel‟s
performance” under Strickland, “through the deferential lens
of § 2254(d).” Id. (internal quotation marks and citations
omitted).

11
2. Moore’s Criminal History

As noted, the PCRA Court rejected Grant‟s claim that
trial counsel was ineffective for failing to discover Moore‟s
parole status because the court concluded that Grant
“provide[d] no documentation that Mr. Moore was in fact on
parole during the relevant time period [and] no
documentation . . . that would lead anyone to think Mr.
Moore was treated in a favorable fashion in return for his
cooperation with law enforcement.” Commonwealth v.
Grant, No. CC199701537, at 5 (Ct. C.P. Allegheny Cnty.
Oct. 2, 2007). On appeal, the Superior Court affirmed that
ruling without further analysis. The Superior Court
concluded “that the trial court, in its memorandum and
opinion . . . , ably and methodically reviewed the specific
instances of alleged ineffectiveness raised by Grant and
properly concluded that PCRA relief was not warranted.”
Commonwealth v. Grant, No. 1581 WDA 2007, at 5 (Pa.
Super. Ct. Nov. 6, 2008). On habeas review, the District
Court similarly quoted the PCRA Court‟s reasoning and also
denied relief without further analysis. See Grant v. Lockett,
No. 2:10-cv-785, 2010 WL 3259852, at *7 (W.D. Pa. Aug.
18, 2010).

At the outset, we can readily dismiss the PCRA
Court‟s conclusion that Grant submitted no documentation
that Moore was on parole during the relevant period.
Although this factual conclusion was adopted by the Superior
Court on PCRA appeal and the District Court on habeas
review, it is clearly an “unreasonable determination of the
facts” under 28 U.S.C § 2254(d)(2). The criminal docket
sheet and a number of other court documents associated with
Moore‟s 1993 drug convictions were incorporated into the
certified record through two PCRA court orders granting
leave to supplement the record.3 The docket sheet in the
3
On April 8, 2008, the PCRA Court granted leave to
supplement the record with documents relating to Moore‟s
1993 drug convictions. On April 25, 2008, the PCRA Court
vacated the April 8, 2008 order and issued a new order to
reference the correct case number associated with Moore‟s
convictions.

12
supplemented record before the Superior Court states that
Moore was sentenced to three to six years imprisonment for
the convictions at issue, effective August 14, 1992.

Thus, it is beyond dispute that the state record
supported Grant‟s claim that, since Moore was not still in
prison at the time of the shooting and Grant‟s trial in 1997,
Moore was on parole during that period. Indeed, to its credit,
the Commonwealth conceded this in its answer to Grant‟s
habeas petition before the District Court and its brief on
appeal. Thus, despite the Superior Court‟s proclamation that
it “thoroughly reviewed Grant‟s claims of trial counsel‟s
ineffectiveness” and conducted “a meticulous review of the
certified record and the briefs of the parties,” the Superior
Court affirmed the PCRA Court‟s denial of relief through a
wholesale adoption of that court‟s reasoning without
appreciating, or even realizing, the undisputed fact that the
record had been supplemented to include documents
establishing Moore‟s 1993 convictions and resulting parole
status. See Commonwealth v. Grant, No. 1581 WDA 2007, at
5 (Pa. Super. Ct. Nov. 6, 2008). Rather, the Superior Court‟s
factual determination simply ignored the evidence of Moore‟s
parole status in the supplemented record and the Superior
Court‟s decision, to the extent it relied upon this erroneous
determination, “was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2).

The PCRA Court‟s second basis for denying relief is
no less troubling. The PCRA Court reasoned that Grant was
not entitled to relief on his ineffective assistance of counsel
claim because he presented no evidence that Moore had any
deal with the Commonwealth or was otherwise treated
favorably in exchange for his cooperation in Grant‟s trial.
Grant does not contend, and there is no indication that, this
second basis for the state court‟s decision is incorrect or was
otherwise an “unreasonable determination of the facts in light
of the evidence presented in the State court proceeding” under
4
8 U.S.C. § 2254(d)(2). However, this part of the PCRA
4
Grant filed a pro se Motion for Expansion of the
Record on May 26, 2011, seeking to present an affidavit
signed by Moore on May 16, 2011. The affidavit states that
13
Court‟s analysis is clearly an “unreasonable application of”
Strickland under 28 U.S.C. § 2254(d)(1).

a. Deficient Performance

The state court does not appear to have ruled on
whether trial counsel‟s performance was deficient. As
detailed above, the PCRA Court‟s analysis of Grant‟s
ineffective assistance claim based on counsel‟s failure to
investigate Moore‟s criminal history and parole status was
sparse. The state court‟s denial of relief on this claim
appears to rest on the court‟s conclusion that Grant failed to
show prejudice because he did not produce evidence of any
“deal” offering Moore favorable treatment for testifying
against Grant. A “court need not determine whether
counsel‟s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.” Strickland, 466 U.S. at 697.

However, on this record, it is clear that even if the state
court had determined that Grant‟s trial counsel was not
deficient in this regard, such a determination would be an
unreasonable application of Strickland.

Under Strickland‟s first prong, a court must determine
whether, in light of all the circumstances, the identified acts

Moore was on parole during Grant‟s trial. Moore further
affirms: “Upon my arrest I was told that the DA new [sic] of
my parole status, and also new [sic] that I was not suppose
[sic] to be out side [sic] at the time of the shooting, and I was
told that because of that I better co-operate [sic] fully. All of
this was discussed prior to Mr. Grant‟s trial.” App. 99.
Although this affidavit strongly suggests that Moore was
under pressure from prosecutors to testify against Grant, it is
not clear that we can now expand the state court record for
the purposes of review under §2254(d); “[a]lthough state
prisoners may sometimes submit new evidence in federal
court” under AEDPA, Pinholster, 131 S.Ct. at 1401, we need
not address whether the circumstances here warrant
admission of new evidence because, as we will explain, we
conclude that Grant is entitled to relief even without this new
affidavit.

14
or omissions of counsel were outside the range of
professionally competent assistance. Strickland, 466 U.S. at
690. Strickland also emphasizes that a court‟s evaluation of
an attorney‟s performance must be “highly deferential” so as
to diminish “the distorting effects of hindsight.” Id. at 689.
Thus, “a court must indulge a strong presumption that
counsel‟s conduct falls within the wide range of reasonable
professional assistance.” Id. The Supreme Court has
“declined to articulate specific guidelines for appropriate
attorney conduct and instead [has] emphasized that „[t]he
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.‟”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 687-88).

Nonetheless, under Strickland, “counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691. A key prosecution witness‟s
prior criminal history and resultant parole status clearly
constitute important impeachment evidence. It is beyond the
range of professionally reasonable judgment to forego
investigation of, and impeachment based upon, such evidence
absent some apparent strategic reason that might explain or
excuse counsel‟s failure. “Thus, viewed objectively,
[Grant‟s] counsel unreasonably failed to introduce such
impeachment evidence.” Ross v. Dist. Att’y of the Cnty. of
Allegheny, 672 F.3d 198, 210 (3d Cir. 2012) (holding that
trial counsel‟s failure to introduce evidence of prosecution
witness‟s crimen falsi conviction constituted deficient
performance). Counsel‟s failure to make reasonable efforts to
learn that Moore was on parole when he testified as the
Commonwealth‟s key witness easily satisfies the first prong
of Strickland. A conclusion to the contrary would be an
unreasonable application of Strickland. However, Grant must
also satisfy Strickland‟s prejudice prong.

b. Prejudice

To show prejudice, the PCRA Court appears to have
required Grant to introduce evidence that Moore had a special
deal with, or was treated favorably by, the Commonwealth in
exchange for his cooperation. Since no such evidence was

15
introduced in the PCRA proceedings, the court concluded that
the record did not support Grant‟s claim of ineffective
assistance of counsel. We are aware of no requirement that a
defendant must introduce evidence of favorable treatment in
return for testifying before the witness‟s subjective
motivation for bias becomes relevant.5 The state court‟s
imposition of such a requirement was an unreasonable
application of Strickland.

To show prejudice, Strickland requires a petitioner to
show that “there is a reasonable probability that, but for
counsel‟s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
This requires more than just a “conceivable” likelihood of a
different result. Harrington, 131 S.Ct. at 792. However, a
petitioner “need not show that counsel‟s deficient
performance „more likely than not altered the outcome of the
case‟ — rather he must show only „a probability sufficient to
undermine confidence in the outcome.‟” Jacobs v. Horn, 395
F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at
693-94). Moreover, “ [t]he effect of counsel‟s inadequate
performance must be evaluated in light of the totality of the
evidence at trial: „a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support.‟”
5
We do not suggest that the prosecutor made any
offer of favorable treatment to Moore in exchange for his
testimony. However, we do suggest that requiring evidence of
such an agreement is as unrealistic as it is unreasonable. We
doubt that any experienced prosecutor would be so naïve as to
expressly promise a witness favorable treatment as a reward
for testifying against a defendant at trial. The prosecutor
would know that any such promise could be fatal to the
witness‟s credibility upon cross examination by even a
modestly competent defense attorney. Although Moore
testified that he had such an agreement in his affidavit, we
will not attribute such tactics to a prosecutor absent more
evidence than appears here. Nevertheless, as we explain
below, that is not the point. The poison lurks in the bias that
can arise from the witness‟s subjective state of mind,
regardless of whether the witness‟s belief arose from an
actual agreement with, or representation of, the prosecutor.

16
Rolan v. Vaugh, 445 F.3d 671, 682 (3d Cir. 2006) (quoting
United States v. Gray, 878 F.2d 702, 710-11 (3d Cir. 1989)
(quoting Strickland, 466 U.S. at 696)).

The Supreme Court‟s decision in Davis v. Alaska, 415
U.S. 308 (1974), is particularly instructive to our analysis of
prejudice in Grant‟s case. In Davis, the Supreme Court held
that the Confrontation Clause requires that a criminal
defendant be permitted to impeach the credibility of a
prosecution witness with that witness‟s probation status as a
juvenile delinquent, even though the state asserted a strong
and valid interest in preserving the confidentiality of juvenile
delinquency adjudications. Id. at 319.

The defense in Davis sought to cross-examine a
prosecution witness about his parole status to show that the
witness “might have been subject to undue pressure from the
police and made his identifications under fear of possible
probation revocation.” Id. at 311 (emphases added). Nothing
in the Court‟s discussion or analysis in Davis suggests that
there was any evidence that the witness actually had some
kind of “deal” or understanding with the prosecutor or that
prosecutors had actually coerced the witness to implicate the
defendant in exchange for favorable treatment regarding the
probation. There was no suggestion of any quid pro quo, and
the Court‟s analysis regarding the importance of cross-
examining the witness about his parole status did not turn on
evidence of any quid pro quo. Moreover, unlike Moore, the
witness in Davis had actually been cross-examined about
possible bias resulting from considerations other than his
parole status. Nevertheless, the Supreme Court held that it
was significant that the defense was prevented from
“expos[ing] to the jury” the witness‟s parole status, from
which the jurors “could appropriately draw inferences relating
to the reliability of the witness.” Id. at 318.

Although the Supreme Court in Davis was resolving a
claim under the Confrontation Clause, the Court‟s analysis of
the importance of impeachment based on a witness‟s parole
status is no less relevant to whether Grant established
prejudice for the purposes of his Sixth Amendment claim

17
under Strickland.6 Davis held that the inability to expose a
witness‟s parole status to the jury results in a denial of “the
right of effective cross examination, which „would be
constitutional error of the first magnitude.‟” Id. at 318.

Accordingly, the Superior Court‟s conclusion that
Grant could not establish prejudice under Strickland unless he
could show that Moore actually had some kind of deal with
the prosecution is an unreasonable application of clearly
established Supreme Court precedent. Davis makes clear
that, even if there is no evidence of any quid pro quo between
Moore and the Commonwealth, it is the fact that Moore had a
strong reason to lie, and to testify in a manner that would help
the prosecutor, in the hopes of getting favorable treatment
from the Commonwealth, that establishes the potential bias
that would have been extremely compelling impeachment
evidence. Because of trial counsel‟s unreasonably deficient
performance here, the jury was never informed of Moore‟s
parole status and thus “could [not] appropriately draw
inferences relating to the reliability of the witness[.]” Davis,
415 U.S. at 318.

As is clear from our discussion of the trial testimony,
Moore was not just any Commonwealth witness. He was the
only witness to identify Grant as the shooter or otherwise
directly implicate Grant in the incident. The prosecutor‟s
closing argument illustrates the importance of Moore‟s
testimony and also shows that the Commonwealth‟s entire
case rested squarely on the jury‟s assessment of Moore‟s
credibility and absence of bias. Thus, the prosecutor quite
correctly told the trial court that Moore was “the most
essential Commonwealth witness[,] [o]ne without [whom]
this case probably couldn‟t proceed.” Trial Tr. 394 (emphasis
added).
6
Indeed, a Confrontation Clause claim would not be
viable under the facts of Grant‟s case as there is no allegation
that the opportunity for effective cross-examination was in
any way curtailed by a specific statutory or court-imposed
restriction. See Pennsylvania v. Ritchie, 480 U.S. 39, 53-54
(1987) (explaining that the Confrontation Clause is concerned
primarily with “specific statutory or court-imposed
restriction[s] at trial on the scope of questioning”).

18
 As we explained earlier, Moore‟s testimony
contradicted at least two other eyewitnesses who said that
Grant was not the shooter. These other eyewitnesses, unlike
Moore, were actually at the Where It‟s At Bar when the
shooting took place, and were close enough to actually see the
shooter‟s face. Leo Butler testified at trial that the first
shooter was standing at the stoplight by Lincoln and
Lemington, and that the shooter was not Grant. Gerald
Bonner testified at trial that he was in front of the Bar,
speaking with Butler, when a man came around the corner
and opened fire. Bonner also testified that the shooter was
not Grant.7

No physical evidence linked Grant to the crime.
Neither of the latent prints that were recovered from the
Buick that was involved in the shooting matched Grant‟s
prints. If anything, the physical evidence in the case casts
doubt on Moore‟s testimony. Although Moore testified that
he saw the shooter firing from the parking lot of the Open
Pantry, all fifteen shell casings retrieved from the crime scene
were found in the street. No shell casings were found in the
Open Pantry parking lot. In addition, there was no evidence
that Grant had any motive to kill Gilliam. Indeed, the
victim‟s wife testified that she and her husband knew Grant,
and to the best of her knowledge, there was no “bad blood”
between them.

Without Moore, it is difficult for us to discern any
basis for even charging Grant with the crime. The
Commonwealth‟s closing argument is revealing. Out of thirty
pages of transcript, the Commonwealth devoted over ten
pages to discussing Moore‟s testimony and asserted that
Moore‟s testimony alone is sufficient evidence to find Grant
guilty. Moore‟s credibility is the indispensable lynchpin of
the Commonwealth‟s case. Accordingly, in its closing
7
In addition, as we explained, two eyewitnesses, Kim
Oden and Marc Gee, were not called to testify at trial, but
later swore in affidavits that they saw the first shooter who
killed Gilliam and the second shooter who fired out of the
maroon Buick, respectively, and Grant was not the shooter in
either instance.

19
argument, the Commonwealth repeatedly argued that the jury
should find Moore credible because he had no reason to lie.
See, e.g., Trial Tr. 466 (“What reason would Mr. Moore have
for getting on the witness stand and . . . telling the fourteen of
you that that is the guy that I saw shooting on the corner[?]”);
id. at 470 (“It can only be construed in that manner . . . back
to Mr. Moore‟s motivation for getting on that witness
stand.”); id. at 474 (“What motivation does Mr. Moore have
to want to get up on that witness stand, ladies and gentlemen,
and tell you what he saw and tell you how certain he was of
what he saw?”); id. at 475 (“I submit to you there is no
motivation here for [Moore] to get up there because he
doesn‟t want to. . . . Mr. Moore did it, and he got up there
and he told you what he saw, and I submit to you that he is
completely honest.”).

The Commonwealth made these assertions despite the
fact that Moore did have a very compelling reason to lie.
However, because of defense counsel‟s deficient
representation, Moore‟s reason to lie was never revealed to
the jury. The Commonwealth argues that trial counsel did not
forego all impeachment of Moore, and we agree.8 However,
the impeachment was limited to Moore‟s ability to perceive
the events. Specifically, trial counsel impeached Moore with
the fact that the distance from Moore‟s apartment to the crime
scene was approximately 230 feet and the shooting occurred
in the wee hours of the morning, and with the fact that Moore
had consumed alcohol prior to witnessing the shooting.

However, the fact that Moore was on parole during all
relevant periods, and therefore had a motive to curry the
prosecution‟s favor, was never revealed to the jury. Moore‟s
credibility would have been significantly impugned but for
trial counsel‟s unprofessional errors. Thus, even though
defense counsel did not completely forego all attempts to
impeach the witness, here, as in Davis, the jury could not
“make an informed judgment as to the weight to place on
8
As we noted above, the defense counsel in Davis also
impeached the credibility of the prosecutor‟s witness.
Nonetheless, the Court still held that the failure to introduce
evidence of his probation status was a constitutional defect in
the proceedings.

20
[Moore‟s] testimony which provided „a critical link in the
proof . . . of petitioner‟s acts.‟” Davis, 415 U.S. at 318.

As we have explained, “in considering whether a
petitioner suffered prejudice, [t]he effect of counsel‟s
inadequate performance must be evaluated in light of the
totality of the evidence at trial: „a verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record
support.‟” Rolan, 445 F.3d at 682 (quoting Gray, 878 F.2d at
710-11 (quoting Strickland, 466 U.S. at 696)). Careful
consideration of the totality of the evidence at trial here
leaves us with no doubt that had trial counsel performed at an
objectively reasonable standard, and had the jury been
informed of Moore‟s parole status and resulting bias, it is
“reasonably probable that . . . the result of the proceeding
would have been different.” See Strickland, 466 U.S. at 694.
Given the omission of that crucial evidence of a possible bias,
the confidence in the verdict is greatly undermined.

In fact, had the jury known of Moore‟s potential for
bias, the Commonwealth‟s closing argument would have been
deprived of its force because the jury would have had a
compelling response to the Commonwealth‟s repeated
hypothetical questions about why Moore would get on the
witness stand and implicate Grant. Even through the
deferential lens of federal habeas review of an ineffective
assistance of counsel claim, it is clear that the Superior
Court‟s conclusion that Grant failed to show prejudice was an
unreasonable application of federal law.

In sum, the Superior Court‟s conclusion that Grant
presented no evidence that Moore was on parole during the
relevant time period was an “unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” See 28 U.S.C. § 2254(d)(2). Further, the
Superior Court‟s conclusion that relief was not warranted
because Grant presented no evidence that Moore received
favorable treatment by the Commonwealth in exchange for
his testimony against Grant “involved an unreasonable
application of” Strickland. See 28 U.S.C. § 2254(d)(1).
Accordingly, the District Court erred in rejecting Grant‟s
claim that trial counsel provided ineffective assistance in

21
failing to adequately investigate Moore‟s criminal history and
parole status.

2. Witnesses Oden and Gee

Grant also argues that trial counsel was ineffective for
failing to investigate and call Mark Gee and Kim Oden as
defense witnesses. Gee and Oden worked at the Where It‟s
At Bar and were present at the Bar on the night of the
shooting. Grant included affidavits from Gee and Oden with
his PCRA petition.

Kim Oden was a bartender at the Bar. According to
her affidavit, Oden was standing in front of the Bar, talking to
Leo Butler, at approximately 11:00 p.m. on the night that
Gilliam was shot. She saw a maroon car drive past the bar
and turn the corner. Shortly thereafter, she saw a man walk
around the same corner. The man crouched down and began
shooting at Oden and Butler. Oden affirmed that the shooter
was definitely not Grant and was much taller and heavier than
Grant. Oden described the shooter as wearing a black ski
mask, a black leather jacket, black pants and black boots.
Oden was interviewed by the Pittsburgh Police and told the
officers her name and address, and that she had seen the first
shooter but did not know or recognize him. She also told the
officers that she had not seen Grant that night and did not
know where he was. Defense counsel did not interview Oden
before Grant‟s trial.

Marc Gee also worked at the Where It‟s At Bar.
According to his affidavit, Gee was inside the Bar, waiting to
begin his bartending shift around 11:00 p.m., when someone
came inside and shouted, “Keith is on the ground; there was a
maroon car.” Gee then went outside and saw a maroon car,
with several black men inside, driving down the street in front
of the bar. Gee saw a black male in the passenger seat pull
out a gun and begin shooting out of the passenger window.
Gee affirmed that he had known Grant for about ten years and
that the man shooting out of the maroon Buick was definitely
not Grant. The shooter was someone Gee had never seen
before and had much lighter skin than Grant. Gee was
interviewed by police after the shooting and told them his
name and address, and that he had seen the person shooting

22
out of the Buick but did not know or recognize him. Gee also
spoke with an attorney (presumably the prosecutor), and was
subpoenaed to appear at Grant‟s trial. However, while Gee
was waiting in the court hallway, the attorney told him he was
not needed and was dismissed.

After reviewing the affidavits from Gee and Oden, and
hearing Gee‟s testimony at an evidentiary hearing,9 the PCRA
Court concluded that Grant‟s claim with respect to counsel‟s
failure to investigate these witnesses had no merit.10

Because we conclude that Grant is entitled to federal
habeas relief based on trial counsel‟s failure to investigate
Moore‟s criminal history and parole status, we need not
address whether trial counsel‟s failure to investigate and call
Oden and Gee as defense witnesses independently warrants

9
Gee‟s testimony was taken for preservation at an
evidentiary hearing during Grant‟s PCRA proceedings. His
testimony largely echoes his affidavit.
10
The PCRA Court explained that, to establish
ineffectiveness for failure to call a witness under
Pennsylvania law, Grant must show that “(1) the witness
existed; (2) the witness was available; (3) counsel [knew] of
the [witness‟s] existence; (4) the witness was prepared to
cooperate and testify . . . ; and (5) the absence of the
testimony was prejudicial.” Commonwealth v. Khalil, 806
A.2d 415, 522 (Pa. Super. 2002) (citations omitted).
Applying this standard, the PCRA Court denied relief because
it concluded that Grant had not established that trial counsel
knew of the existence of Oden and Gee or that these
witnesses were “ready, willing, and able to testify” at the time
of Grant‟s trial. Although, as we will explain, we need not
address whether the state court unreasonably applied
Strickland in denying relief on these grounds, we are troubled
by the state court‟s requirement that Grant show that Oden
and Gee were “ready, willing, and able to testify” at the trial.
Absent extenuating circumstances, such as the existence of a
privilege or the witness‟s incapacity or death, whether a
witness is ready and willing to testify is irrelevant since
defense counsel can compel testimony through a trial
subpoena.

23
relief. Nonetheless, we do note that Oden and Gee‟s
affidavits add to the already significant evidence undermining
the verdict against Grant. They also add support to our
conclusion that counsel‟s deficient performance with respect
to Moore‟s parole status prejudiced Grant‟s defense.

We are particularly troubled by the District Court‟s
conclusion that Grant was not prejudiced by trial counsel‟s
failure to call Oden and Gee because their testimony would
have been “cumulative” since other witnesses already
testified that Grant was not the shooter. Gee and Oden‟s
affidavits do not provide cumulative testimony on a collateral
issue. Rather, the affidavits present eyewitness accounts of
the identity of the shooter. It is hard to understand how
having a third eyewitness testify that the defendant was not
the shooter would have been “cumulative” and therefore
inconsequential, as the District Court concludes.

Moreover, Oden‟s description of the shooter‟s clothing
sharply conflicts with Moore‟s description of what the
shooter was wearing. While Oden described the shooter as
wearing a black ski mask, black leather jacket, black pants,
and black boots, Moore testified that the shooter was wearing
a blue, hooded coat, with a four-inch wide horizontal stripe in
a lighter color. Moore was only able to identify Grant as the
shooter because he said he saw Grant wearing the same
clothes as the person he saw shooting. The fact that Oden,
who, unlike Moore, was actually at the scene of the shooting
and actually saw the shooter close-up, described the shooter
as wearing different clothing further undermines Moore‟s
identification of Grant and the reliability of the resulting
verdict.

IV. CONCLUSION

For the reasons explained above, we will affirm in part
and vacate in part the Judgment of the District Court. This
matter is remanded to the District Court with instructions to
conditionally grant the writ of habeas corpus.

24