Breakiron v. Horn

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 08-9003
___________

MARK BREAKIRON,
Appellant

v.

Commissioner MARTIN HORN; Pennsylvania Department
of Corrections; CONNER BLAINE, Superintendent of the
State Correctional Institution at Greene; JOSEPH
MAZURKIEWICZ, Superintendent of the
State Correctional Institution at Rockview
____________________________________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 00-cv-00300)
District Judge: Honorable Nora B. Fischer
____________________________________

Argued: November 16, 2010

Before: AMBRO, FUENTES and
NYGAARD, Circuit Judges

(Opinion filed April 18, 2011)
Stuart B. Lev, Esq.
Claudia Van Wyk, Esq. (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106

Counsel for Appellant

James P. Barker, Esq. (Argued)
Office of the Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square
16th Floor
Harrisburg, PA 17120

Counsel for Appellees

_______________

OPINION OF THE COURT
_______________

NYGAARD, Circuit Judge

A Pennsylvania jury found Mark Breakiron guilty of
first-degree murder and robbery for killing a bartender and
stealing her purse and money bags from the bar. At the
penalty phase, the jury found as an aggravating factor that he
committed the murder “while in the perpetration of a
felony”—i.e., the robbery. 42 Pa. Cons. Stat. § 9711(d)(6).

2
The trial court sentenced him to death. On Breakiron’s
petition for a writ of habeas corpus, the District Court
invalidated the murder conviction (and thus the death
sentence) because it found that the prosecution withheld
material evidence regarding one of its witnesses in violation
of the rule set forth in Brady v. Maryland, 373 U.S. 83
(1963). The District Court concluded, however, that the
Brady evidence was not material to Breakiron’s robbery
conviction and did not disturb it.

The Commonwealth 1 has not appealed the District
Court’s ruling and states that it is prepared to retry Breakiron
for murder. Breakiron appeals the denial of relief from his
robbery conviction, which, if invalidated, would no longer
constitute an aggravating factor during any future penalty
phase. Breakiron argues that the Brady violations found by
the District Court require the invalidation of his robbery
conviction as well, and he raises four other claims addressed
to that conviction. We agree with Breakiron on the Brady
claim and conclude that three of his other claims also warrant
relief. Accordingly, we will reverse the District Court’s
judgment to the extent that it denied Breakiron’s habeas
petition as to his robbery conviction and remand for the
District Court to grant his petition as to that conviction. 2

I. Background

1
For ease of reference, we refer to appellees collectively as
“the Commonwealth.”
2
Nothing said herein, however, would preclude retrying him
on this charge as well.

3
 Because Breakiron’s murder conviction no longer is at
issue, we need only briefly summarize the background
relevant to the issues we address. On March 24, 1987,
Breakiron killed Saundra Marie Martin, the bartender of a bar
called “Shenanigan’s” in Uniontown, Pennsylvania, at which
he was the night’s last patron. He also stole her purse and
bags of money from the bar. The Commonwealth charged
him with murder and robbery and tried him before a Fayette
County jury in April 1988. As explained in more detail
below, that jury included a member who had been exposed to
testimony by another panel member at voir dire that
Breakiron “used to do a lot of robbing[.]” (N.T. 448;
A.717.) 3

At trial, Breakiron never denied killing Martin or
committing theft by stealing the money. Instead, he put on a
voluntary intoxication/diminished capacity defense and
argued that he was guilty of third-degree murder because he
did not have the specific intent to kill. He also argued that he
was guilty of theft, but not robbery, because he decided to
steal after his attack on Martin was complete. See 18 Pa.
Cons. Stat. § 3701(a)(1) (defining robbery as, inter alia,
infliction of injury or use of force “in the course of
committing a theft”).

The only evidence potentially relevant to that issue
was the testimony of the Commonwealth’s witness Ellis
Price, who was incarcerated with Breakiron before
Breakiron’s trial, and Breakiron’s own testimony. Price
testified that, while imprisoned with Breakiron, he and

3
Citations to the record are to the state trial court record and
the appendix on appeal, respectively.

4
Breakiron had “conversations regarding the offenses with
which [Breakiron] has been charged,” and that Breakiron
made “statements . . . regarding whether or not he participated
in these crimes.” (N.T. 1112; A.1410.) Price testified that
Breakiron “told me that when he was at the bar, that there was
another guy and girl there. So, he went into the bathroom to
hide until they left.” (N.T. 1114; A.1412.) According to
Price, Breakiron told him that he then returned to the bar area
and asked for another drink. (Id.) Martin, however, told him
that it was closing time and asked him to leave, “so he picked
up the ashtray and started hitting her.” (Id.) Price further
testified that Breakiron said “[h]e hit her a few times. She
wouldn’t go to the floor. So, he just—he pulled out the knife
and I don’t know what he did after that. Then, he drug her
out to his truck and took her to . . . his pap’s house” and
“finished her off there.” (N.T. 1114-15; A.1412-13.)

Breakiron, by contrast, testified that Martin started the
altercation by hitting him over the head with “something
heavy” after he put his arm around her. (N.T. 1253; A.1551.)
He further testified that he “blacked out,” awoke to find
Martin with a knife sticking out of her back, left the bar and
drove away. (N.T. 1254-55; A.1552-53.) He then returned to
the bar, put Martin’s body in his truck, went back into the bar,
“[a]nd then when I started to leave, I saw two money bags
laying on the floor to the entrance by the dance floor” and
“[p]ut them in the back of the truck.” (N.T. 1260-61; A.1558-
59.) At closing, Breakiron’s counsel argued that he was not
guilty of robbery because he decided to steal the money after
killing Martin. (N.T. 1260-61; A.1558-59.) Breakiron’s
counsel, however, did not request a charge on the lesser-
included offense of theft, and the trial court did not give one.

5
 The jury found Breakiron guilty of first-degree murder
and robbery. At the penalty phase, the jury recommended a
death sentence after finding as an aggravating factor that he
murdered Martin “while in the perpetration of a felony”—i.e.,
the robbery. 42 Pa. Cons. Stat. § 9711(d)(6). (It found as an
additional aggravating factor that he committed the murder
“by means of torture.”) The trial court sentenced Breakiron
to death on the murder conviction plus five to ten years of
imprisonment on the robbery conviction. The Pennsylvania
Supreme Court affirmed. See Commonwealth v. Breakiron,
571 A.2d 1035 (Pa. 1990). Breakiron filed a petition under
Pennsylvania’s Post Conviction Relief Act, 42 Pa. Cons. Stat.
§§ 9541-9546 (the “PCRA”) in 1996, and the PCRA court
denied it after holding an evidentiary hearing. The
Pennsylvania Supreme Court affirmed that ruling as well.
See Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999)
(“Breakiron-2”).

Breakiron then instituted the federal habeas proceeding
at issue here in 2000. Shortly thereafter, he filed a second
PCRA petition in state court. The PCRA court dismissed it as
untimely and the Pennsylvania Supreme Court affirmed. See
Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001)
(“Breakiron-3”). The parties then litigated the federal habeas
petition before three different District Judges for almost seven
years, during which Breakiron amended his petition several
times, took discovery, and received an evidentiary hearing.
Breakiron ultimately asserted eighteen claims, including
claims addressed to the guilt and penalty phases of his trial
and to his murder and robbery convictions. Among them
were claims that the prosecution withheld evidence in
violation of Brady that he could have used to impeach Ellis
Price.

6
 The District Court issued findings of fact on the Brady
claims on September 19, 2007. It then issued its opinion and
order on September 24, 2008, granting relief on three of those
claims and invalidating the murder conviction. The District
Court did not find Price’s testimony relevant to the robbery
charge, however, so it did not grant relief from the robbery
conviction on that basis (or any other). The District Court
granted Breakiron a certificate of appealability on one claim,
but the parties agree that it is moot in light of the invalidation
of his murder conviction and he has not pursued the claim on
appeal. 4 The Commonwealth moved for reconsideration,
which the District Court denied. The Commonwealth has not
appealed and asserts that it is prepared to retry Breakiron for
murder. Breakiron appealed and filed a motion to expand the
certificate of appealability to raise the claims at issue here,
which we granted.

II. Analysis

We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253(a). Our review of the District Court’s legal
conclusions is plenary. See Coombs v. DiGuglielmo, 616
F.3d 255, 260 (3d Cir. 2010). Like the District Court’s, our
review of Breakiron’s claims is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). “AEDPA provides that, where a habeas

4
That claim was that counsel rendered ineffective assistance
by failing to present mental health evidence in support of
Breakiron’s diminished capacity/voluntary intoxication
defense at the guilt phase and in support of mitigation at the
penalty phase.

7
petitioner’s claim was ‘adjudicated on the merits’ in state
court, the petition may not be granted unless the state court
decision ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,’ or ‘was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Simmons
v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (quoting 28
U.S.C. § 2254(d)).

Under AEDPA, a state court decision is “contrary to”
established federal law “if the state court reaches a conclusion
opposite to the Supreme Court’s own conclusion on a
question of law or decides the case differently where the
Supreme Court was confronted by a set of materially
indistinguishable facts.” McMullen v. Tennis, 562 F.3d 231,
236 (3d Cir. 2009). A state court decision is an
“unreasonable application” of established federal law “if the
state court unreasonably applies the correct legal rule to the
particular facts, unreasonably extends a legal principle to a
new context, or unreasonably refuses to extend the principle
to a new context where it should apply.” Id. This test “‘is an
objective one—a federal court may not grant habeas relief
merely because it concludes that the state court applied
federal law erroneously or incorrectly.’” Id. (citation
omitted). Instead, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, — U.S. —,
No. 09-587, 2011 WL 148587, at * 11 (U.S. Jan. 19, 2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Where the state court has not addressed the merits of a

8
claim, and the merits of the claim are properly before us, then
this deferential standard of review does not apply and we
instead review the claim de novo. See Porter v. McCollum,
130 S. Ct. 447, 452 (2009); Wilson v. Beard, 589 F.3d 651,
658 (3d Cir. 2009). In doing so, we nevertheless must
presume that state-court factual findings are correct unless the
presumption is rebutted by clear and convincing evidence.
See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010)
(citing 28 U.S.C. § 2254(e)(1)).

In this case, Breakiron argues that: (1) the Brady
violations require relief from his robbery conviction; (2) the
state trial court improperly precluded him from testifying as
to when he formed the intent to steal; (3) trial counsel
rendered ineffective assistance by failing to request a jury
charge on the lesser-included offense of theft; (4) trial counsel
rendered ineffective assistance by failing to take corrective
action after a venire member testified at voir dire that
Breakiron “used to do a lot of robbing” and a different
member of the same panel ended up on Breakiron’s jury; and
(5) the cumulative effect of these four errors deprived him of
a fair trial. We conclude that Breakiron’s Brady claims and
his two claims of ineffective assistance of counsel, whether
considered alone or cumulatively, require relief from his
robbery conviction. 5

5
The District Court addressed Breakiron’s claim of
cumulative error, but limited its analysis to his claims of
ineffective assistance of counsel instead of considering his
alleged errors of all kinds. Cf. Albrecht v. Horn, 485 F.3d
103, 138-39 (3d Cir. 2007). Because we conclude that three
of Breakiron’s claims individually warrant relief, their

9
 A. The Brady Claims

Breakiron argues that his robbery conviction must be
invalidated because the prosecution withheld evidence that he
could have used to impeach the testimony of Ellis Price. In
his second PCRA petition, Breakiron raised several
Brady claims, including a claim that the prosecution failed to
disclose that Price had been convicted of an impeachable
crimen falsi—i.e., a Michigan state conviction of assault with
the intent to rob. The Pennsylvania Supreme Court did not
address this claim on the merits because it held that
Breakiron’s second PCRA petition was untimely. See
Breakiron-3, 781 A.2d at 98, 101. Breakiron asserted the
same claim in his habeas petition, which he later amended to
argue that the prosecution also failed to disclose that Price
had sought a deal from Breakiron’s prosecutor in exchange
for his testimony and was a suspect in an investigation
pending when he testified (in which he ultimately was not
charged). The Commonwealth argued in the District Court
that Breakiron had procedurally defaulted his Brady claims
and all the other claims he raised in his second PCRA
petition. The District Court rejected that argument by order
entered October 15, 2004, and the Commonwealth has not
challenged that ruling on appeal.6

cumulative effect necessarily does as well. In light of our
disposition, we need not address Breakiron’s second claim.
6
We nevertheless may consider the issue sua sponte. See
Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997). In the
District Court, the Commonwealth argued that the claims
Breakiron raised in his second PCRA petition were

10
 Thereafter, Breakiron took discovery on his Brady
claims and the District Court held an evidentiary hearing. It
ultimately granted relief from the murder conviction under
Brady because it concluded that the prosecution failed to
disclose that Price: (1) had sought a deal from prosecutors in
exchange for his testimony against Breakiron; (2) was a
suspect in another criminal investigation pending at that time;
and (3) had been convicted of a crimen falsi. The District
Court concluded that this evidence was material impeachment
evidence because Price’s testimony contradicted Breakiron’s
testimony that he had not intended to kill Martin and was the
only direct evidence that Breakiron’s attack on Martin was
intentional. (Dist. Ct. Op. at 59-61.) The District Court
found Price’s testimony irrelevant to the robbery charge,

procedurally defaulted because the Pennsylvania Supreme
Court dismissed it as untimely. The District Court properly
rejected that argument because Pennsylvania’s former
“relaxed waiver” rule in capital cases meant that the PCRA
statute of limitations did not constitute an adequate and
independent state-law ground for denying the claims at the
time of the alleged default. See Bronshtein v. Horn, 404 F.3d
700, 708-10 (3d Cir. 2005). The Commonwealth also argued
that the Brady claims Breakiron had not raised in state court
were unexhausted and now procedurally defaulted as well.
The District Court agreed, but properly concluded that
Breakiron necessarily would show “cause and prejudice” to
excuse the default if his underlying claims had merit (i.e., if
the prosecution withheld material evidence). See Banks v.
Dretke, 540 U.S. 668, 691 (2004) (“cause and prejudice”
inquiry parallels elements of substantive Brady claim).

11
however, because Price “did not reference the bar’s money
bags, Martin’s purse, or any statement Breakiron allegedly
had made to him regarding the intent to steal or the robbery.”
(Dist. Ct. Op. at 58 & n.25.) Thus, it did not grant relief from
the robbery conviction. Breakiron argues on appeal that the
prosecution’s suppression of evidence requires relief from
that conviction as well. 7

We agree. A Brady violation occurs if: (1) the
evidence at issue is favorable to the accused, because either
exculpatory or impeaching; (2) the prosecution withheld it;
and (3) the defendant was prejudiced because the evidence
was “material.” See Wilson, 589 F.3d at 659 (citing, inter
alia, Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In

7
The Commonwealth argues that Breakiron waived this issue
because he did not meaningfully raise it in the District Court,
where he focused instead on the effect of the Brady violations
on his murder conviction. Although the District Court
addressed the effect of the Brady evidence on the robbery
conviction, neither the District Court nor the parties have
cited any document filed in the District Court actually raising
that issue. We nevertheless reach it because the District
Court did so and the merits are fully briefed. See Albrecht,
485 F.3d at 120 (reaching issue that Commonwealth had not
raised in the District Court because the District Court
addressed it sua sponte and the merits were fully briefed on
appeal); see also Silva v. Brown, 416 F.3d 980, 991 (9th Cir.
2005) (considering materiality of Brady evidence to robbery
charge, though noting that, “[o]n appeal, [petitioner]
understandably focuses on the effect of the undisclosed deal
on his murder conviction”).

12
this case, the Commonwealth has not appealed the District
Court’s rulings that the evidence at issue was favorable to
Breakiron or that the prosecution withheld it and does not
argue that we can or should review those issues on
Breakiron’s appeal. 8 Thus, the only issue on appeal is
whether the evidence was material to the robbery charge. See
Simmons, 590 F.3d at 233-34. We exercise plenary review
over that legal issue, see Wilson, 589 F.3d at 657 & n.1, and
no deference under AEDPA is due because the state courts
did not adjudicate this claim on the merits, see id. at 658.

8
In this regard the prosecutor has much to answer for. When
asked at oral argument why the prosecutor did not disclose
this material, the Commonwealth conceded that it “seems a
little strange.” The Commonwealth also conceded that such
material would have been disclosed “under the modern rules
of discovery.” That response is at once true and insufficient.
It was so well-established before Breakiron’s trial as to have
been axiomatic that prosecutors must disclose impeachment
evidence like that at issue here. See, e.g., United States v.
Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States,
405 U.S. 150, 154 (1972). The Commonwealth has not
otherwise attempted to explain why this material was not
disclosed or to defend the prosecutor’s failure to disclose it.
Like the District Court, we are troubled by that failure. We
are at a loss to understand why prosecutors, so long after
Brady became law, still play games with justice and commit
constitutional violations by secreting and/or withholding
exculpatory evidence from the defense. What the District
Court found, and we declare now, was known and should
have been revealed—years ago at the commencement of
Breakiron’s trial, thus obviating the need for all these
protracted years of litigation.

13
 Under Brady, “[e]vidence is material if there is a
reasonable probability that, if the evidence had been
disclosed, the result of the proceeding would have been
different.” Wilson, 589 F.3d at 665 (citing Giglio, 405 U.S.
at 154). “‘[T]he question is not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence. A reasonable probability of a different result is
shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial.’” Id.
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995))
(internal quotation marks omitted).

The District Court concluded that the prosecution’s
suppression of impeachment evidence undermines confidence
in the murder conviction because Price’s testimony supported
the prosecution’s theory that Breakiron intended to kill
Martin. Breakiron argues that Price’s testimony also
supported the prosecution’s theory that he intended to steal at
the time he attacked her. The Commonwealth, by contrast,
argues that Price’s testimony did not support the robbery
conviction because he never testified that Breakiron told him
anything about the theft.

As an initial matter, the Commonwealth’s argument is
undercut by the prosecution’s own closing argument, in
which it expressly argued that Price’s testimony supported the
robbery charge. The prosecution argued: “The second
element, in the cour[se] of committing a theft, ladies and
gentlemen. . . . Ellis Price told you that when Mr. Breakiron
came back to the bar area that the bartender was counting the

14
money.” (N.T. 1335; A.1633.) When Breakiron’s counsel
objected that Price had not so testified, the trial court
instructed: “The jury will recall the testimony. The Court
does not have any recollection of that, but the jury will recall
what was testified to by Ellis Price.” (N.T. 1335-36; A.1633-
34.) Thus, although Price in fact had offered no such
testimony, and although the trial court’s instruction suggested
as much, the Commonwealth’s position is at odds with the
prosecution’s express argument during closing.

We need not decide whether this point is dispositive,
however, because we agree with Breakiron that Price’s actual
testimony supported the robbery charge in three ways.

First, Breakiron argues that Price’s testimony
suggested that the incident as a whole was a “premeditated
and intentional plan,” which contradicted his own testimony
that he did not intend to steal the money until after he had
killed Martin, left, and then returned to the bar. This
argument is persuasive. Price opened his testimony by
testifying that Breakiron told him about his “offenses with
which he has been charged” and his “crimes,” plural, which
included the robbery charge. Price then testified that
Breakiron said he waited in the bathroom until the other
patrons left before attacking Martin. This testimony indicates
that Breakiron was “lying in wait” and raises an inference that
the incident as a whole was premeditated.

The Commonwealth nevertheless argues that Price’s
testimony was not relevant to the robbery charge because he
never mentioned Breakiron’s theft of the money. To the
contrary, it argues that all of the evidence supporting the
robbery charge came from Breakiron himself, who testified

15
that (1) Martin had possession of the money bags and her
purse when Breakiron attacked her, and (2) Breakiron later
took the money bags from the scene. It further argues that
this evidence was sufficient to convict for robbery because
the jury could have inferred the requisite intent from acts
committed shortly after the killing. See Commonwealth v.
Robertson, 463 A.2d 1133, 1136 (Pa. Super. Ct. 1983).

That much is true. As Breakiron argues, however, the
Brady materiality standard is not a “sufficiency of the
evidence” test, and instead turns on whether the withheld
evidence could reasonably “put the whole case in such a
different light as to undermine confidence in the verdict.”
Kyles, 514 U.S. at 435 & n.8. Jurors, of course, are entitled
to draw all reasonable inferences from the evidence
presented, see United States v. Vosburgh, 602 F.3d 512, 537
(3d Cir. 2010); Commonwealth v. Wright, 328 A.2d 514, 516
(Pa. 1974), and the trial court so instructed the jury in this
case (N.T. 1344; A.1642). Just as the jury could have inferred
that Breakiron intended to steal when he attacked Martin
because he later took the money, so too could it have drawn
that inference from Price’s testimony suggesting that the
incident as a whole was premeditated.

Second, Breakiron argues that Price’s testimony about
Breakiron supposedly “finishing off” Martin after he left the
bar supported the conclusion that he stole the money before
he killed Martin, and that he thus killed her “in the course of
committing a theft” and thereby committed robbery. See 18
Pa. Cons. Stat. § 3701(a)(1)(i). The Commonwealth counters
that Breakiron himself testified that he was not sure whether
Martin was dead when he returned to the bar, and that she
thus might have been alive when he took the money. (N.T.

16
1259-60; A.1557-58.) That argument is beside the point.
Although Breakiron frames his argument in terms of when he
“killed” Martin, the relevant consideration under the statute is
when he used the force that led to her death, not when she
actually died. See 18 Pa. Cons. Stat. § 3701(a)(1)(i).
Breakiron testified that the assault was over when he returned
to the bar and took Martin’s body and the money. Price
contradicted that testimony by testifying that Breakiron told
him he took Martin from the bar and later “finished her off”
at his “pap’s” house, which would have been after Breakiron
took the money and thus “in the course of committing” that
theft. See 18 Pa. Cons. Stat. § 3701(a)(2) (“An act shall be
deemed ‘in the course of committing a theft’ if it occurs in an
attempt to commit theft or in flight after the attempt or
commission.”). Price’s testimony was the only evidence that
Breakiron committed the theft during the course of an
ongoing assault.

Finally, Breakiron argues that Price’s testimony
undermined his credibility in general because Price’s account
differed from his own. The Commonwealth has not
addressed this argument, and we agree with Breakiron. Price
testified that Breakiron told him a different story than
Breakiron told the jury. The District Court held that there is a
reasonable probability that the jury would have believed
Breakiron’s account instead of Price’s if the defense had been
able to impeach Price’s credibility with the undisclosed
evidence. Even though Price did not testify directly that
Breakiron told him anything about the theft, Price’s testimony
undermined Breakiron’s credibility as a whole. With no other
direct evidence on when Breakiron formed the intent to take
the money, Breakiron’s own credibility was crucial.
Accordingly, the impeachment evidence that the prosecution

17
withheld was material to the robbery charge and its Brady
violations require relief from the robbery conviction.9

B. Counsel’s Failure to Request a Theft Instruction

Breakiron argues that trial counsel rendered ineffective
assistance by failing to request a jury instruction on theft,
which is a lesser-included offense in the charge of robbery.
See 18 Pa. Cons. Stat. § 3701(a)(1); Commonwealth v.
Williams, 559 A.2d 25, 27 n.2 (Pa. 1989). We agree. At
trial, Breakiron testified that he took the money bags only
after he left the bar following the assault, returned, put
Martin’s body in his truck, went back into the bar, and then
spotted the bags as he was on his way back out. (N.T. 1260-
61; A.1558-59.) At closing, his counsel argued that, although
Breakiron stole the money bags, he was not guilty of robbery

9
The parties have not cited any cases in which a court has
addressed whether Brady evidence was material to some
charges but not others. We have located one case, which is
informative by comparison. In Silva, the Court of Appeals
for the Ninth Circuit invalidated a murder conviction because
the prosecution withheld evidence that the defense could have
used to impeach a witness whose testimony provided the only
evidence of the defendant’s role in the murder. See 416 F.3d
at 990-91. The court declined to invalidate the defendant’s
convictions of robbery and other crimes, however, because
“strong evidence in the record” corroborated that witness’s
testimony regarding the defendant’s role in those crimes. Id.
at 991. In this case, by contrast, there is no direct evidence of
record—strong or otherwise—that Breakiron intended to take
the money at the time he attacked Martin.

18
because he decided to take the money only after Martin was
dead. (N.T. 1320-21; A.1618-19.) The trial court then
instructed the jury that it could find Breakiron guilty of
robbery only if it found both that Breakiron committed a theft
and that he inflicted serious bodily injury on Martin “in the
course of” committing that theft. (N.T. 1352-53; A.1650.) 10

10
The robbery charge reads in relevant part:

In order to find the defendant guilty of robbery, you
must be satisfied that the following two elements have
been proven beyond a reasonable doubt by the
Commonwealth. First, that the defendant inflicted
serious bodily injury on Saundra Marie Martin. . . .
The second element for robbery is that the defendant
did so in the course of committing a theft. . . . As I
have already indicated, you cannot find the defendant
guilty of robbery unless you are satisfied beyond a
reasonable doubt that he committed a theft. A person
commits a theft if he unlawfully takes the movable
property of another person with intent to deprive that
person of it permanently. You would need to decide in
this case whether the defendant took money and/or a
purse which were the movable property of Saundra
Marie Martin by inflicting serious bodily injury or the
threat of serious bodily injury or the threat oto [sic]
commit the crime of murder and that the defendant did
these acts in the course of committing the theft.
Basically, members of the jury, there are therefore two
elements. First, that the theft occurred or that it
occurred by infliction of serouus [sic] bodily injury or
theft as I have explained it to you.

19
Breakiron’s counsel did not request a further instruction that
the jury could find him guilty solely of the lesser-included
offense of theft, and the trial court did not give one.

Breakiron claims that his counsel rendered ineffective
assistance in that regard. He raised this claim in his first
PCRA proceeding. The PCRA court held an evidentiary
hearing, at which counsel testified, then rejected the claim on
the merits. The Pennsylvania Supreme Court affirmed. See
Breakiron-2, 729 A.2d at 1094-95. The District Court
deferred to that ruling under AEDPA, but explained that it
would deny the claim even under de novo review.

This claim is governed by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which
constitutes “clearly established Federal law” for AEDPA
purposes. Williams v. Taylor, 529 U.S. 362, 391 (2000);
Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A
habeas petitioner asserting a claim under Strickland must
establish two elements. “First, the defendant must show that
counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland, 466 U.S. at 687. In
evaluating counsel’s performance, “a court must indulge a
strong presumption that counsel’s conduct falls within the

(N.T. 1352-53; A.1650-51.) As Breakiron notes, the last
sentence of this charge reads “or” where it should read “and,”
and thus suggests that theft alone is sufficient to convict of
robbery. Breakiron has raised no independent claim for relief
in this regard on appeal but, as explained below, this
suggestion informs our assessment of prejudice.

20
wide range of reasonable professional assistance[.]” Id. at
689. Thus, counsel’s performance will be deemed deficient
only if it “fell below an objective standard of
reasonableness.” Id. at 688. The question ultimately is
“whether, in light of all the circumstances, the [challenged]
acts or omissions were outside the wide range of
professionally competent assistance.” Id. at 690.

“Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at
687. To establish prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694.

1. Counsel’s Performance

The Pennsylvania Supreme Court did not address the
issue of performance and instead rejected this claim solely on
the ground that Breakiron failed to show prejudice. See
Breakiron-2, 729 A.2d at 1094-95. The District Court also
did not address counsel’s performance. Nevertheless, we
may do so in the first instance because the record is
adequately developed. See Hodge v. United States, 554 F.3d
372, 379 n.9 (3d Cir. 2009). We will review the issue de
novo because the state court did not address it. See Porter,
130 S. Ct. at 452.

We conclude that counsel’s failure to request a theft

21
instruction was objectively unreasonable. As Breakiron
argues, he would have been entitled under Pennsylvania law
to an instruction on the lesser-included crime of theft if
counsel had requested one because the charge was supported
by the evidence. See Commonwealth v. Polimeni, 378 A.2d
1189, 1192 & nn.3-4 (Pa. 1977) (citing, inter alia, Keeble v.
United States, 412 U.S. 205, 213 (1973)); see also Beck v.
Alabama, 447 U.S. 625, 635-36 & n.12 (1980) (counting
Pennsylvania among the states that have “unanimously” so
held and citing Commonwealth v. Terrell, 393 A.2d 1117 (Pa.
1978)). 11 The Commonwealth does not argue otherwise.

The Commonwealth also does not defend counsel’s
performance on this point, and it is apparent from the record
that counsel did not have a strategic reason for not requesting
a theft instruction. When asked at the PCRA hearing whether
he ever considered doing so, he answered merely “I don’t
believe so.” (N.T. PCRA 7/17/97 PM at 70; A.1892.) Thus,
the record establishes that counsel’s decision not to request a
theft instruction was not the kind of strategic choice entitled
to deference under Strickland. See Thomas v. Varner, 428
F.3d 491, 499-500 (3d Cir. 2005).

The record also establishes that it was objectively

11
Breakiron argues that instructions on lesser-included
offenses that are supported by the evidence are required by
the Due Process Clause as well. See Beck, 447 U.S. at 637,
638 n.14; Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir.
1988). Because Breakiron has not raised an independent due
process claim, and because he would have been entitled to a
theft instruction if requested under Pennsylvania law, we need
not address that issue.

22
unreasonable. Counsel’s sole theory of defense to the
robbery charge was that Breakiron had committed a theft but
not a robbery. Without a theft instruction, the jury was left
with only two choices—conviction of robbery or outright
acquittal. In such all-or-nothing situations, “‘[w]here one of
the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely
to resolve its doubts in favor of conviction.’” Beck, 447 U.S.
at 634 (quoting Keeble, 412 U.S. at 212-13). Thus, even
though juries are obligated “‘as a theoretical matter’” to
acquit if they do not find every element of a crime, there is a
“‘substantial risk that the jury’s practice will diverge from
theory’” when it is not presented with the option of
convicting of a lesser offense instead of acquitting outright.
Id. (quoting Keeble, 412 U.S. at 212). By conceding theft but
not requesting a theft instruction, Breakiron’s counsel
exposed him to that “substantial risk,” and the record reveals
that he had no strategic reason for doing so.

Nor could there have been any. Counsel did not
pursue an all-or-nothing strategy at trial by arguing that
Breakiron had not committed any crime. Instead, he
conceded that Breakiron had committed theft, but neglected
to request the theft instruction that not only would have been
consistent with that theory of defense but would have given
the jury an opportunity to effectuate it. Under the
circumstances, no reasonable counsel would have failed to
request that instruction. See Richards v. Quarterman, 566
F.3d 553, 569-70 (5th Cir. 2009) (holding that failure to
request a lesser-included-offense instruction consistent with
theory of the defense “fell below an objective standard of
reasonableness”); cf. Lopez v. Thurmer, 594 F.3d 584, 588
(7th Cir. 2010) (holding that decision not to request lesser-

23
included-offense instruction “appears to have been strategic”
where instruction would have been inconsistent with
defendant’s testimony that he “was innocent of any crime”).

2. Prejudice

To show prejudice, Breakiron must establish that there
is a reasonable probability that the jury would have convicted
him of theft only and not of robbery if counsel had requested
the theft instruction to which he was entitled. The
Pennsylvania Supreme Court held that Breakiron had not
made that showing. Thus, under AEDPA, we may not grant
relief on this claim unless that ruling either was “contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States[.]” 28 U.S.C. § 2254(d)(1). If we
determine that the Pennsylvania Supreme Court’s ruling was
contrary to or an unreasonable application of Strickland, then
we still must review the claim de novo to determine whether
Breakiron is entitled to relief. See Bronshtein v. Horn, 404
F.3d 700, 724 (3d Cir. 2005).

The Pennsylvania Supreme Court’s prejudice analysis
reads in relevant part:

We find that even if this argument had merit
and that trial counsel could have requested a
theft and a robbery jury charge, Breakiron
cannot establish that he was prejudiced.

The charge of the trial court instructed the jury
not to return a guilty verdict of robbery without
first finding that a theft had occurred. (N.T. at

24
 1352-54) Moreover, trial counsel argued to the
jury during closing argument that there could be
no robbery, but solely a theft because Breakiron
took money only after Ms. Martin was dead.
(N.T. at 1312, 1320-21) The jury rejected this
argument and convicted Breakiron of robbery.
In Breakiron I, we held that the evidence
supported this verdict because there was no
question that Breakiron took the victim’s purse
and the bags of money from the bar. Breakiron
I, 524 Pa. at 296-97, 571 A.2d at 1042. Had a
theft instruction been given, it is not likely that
the jury would have returned a verdict only on
the theft charge.

Breakiron-2, 729 A.2d at 1095. Thus, the Pennsylvania
Supreme Court rejected this claim because (1) the trial court’s
instruction made it clear that Breakiron was not guilty of
robbery based on a theft alone, so the jury necessarily rejected
counsel’s argument that Breakiron committed theft alone, and
(2) the evidence of robbery was sufficient. 12

Breakiron challenges both rationales, arguing that the
first is an “unreasonable application” of Strickland and that
the second is “contrary to” Strickland. We agree on both
counts. First, the Pennsylvania Supreme Court reasoned that

12
The Pennsylvania Supreme Court went on to find no
prejudice at the penalty phase because the jury found another
aggravating circumstance in addition to the robbery. See id.
That issue is no longer relevant given the District Court’s
invalidation of the murder conviction and death sentence.

25
the jury would have found Breakiron guilty of robbery even if
a separate theft instruction had been given because the trial
court’s instruction made clear that theft alone was not enough
to convict of robbery, and the jury thus necessarily rejected
Breakiron’s argument that he committed theft alone. This
reasoning is a significant stretch of plausibility. The problem
with this analysis is that it rests solely on the jury’s duty “‘as
a theoretical matter’” to acquit if it does not find every
element of a crime and does not acknowledge the
“‘substantial risk that the jury’s practice will diverge from
theory’” when it is not presented with the option of
convicting of a lesser offense instead of acquitting outright.
Beck, 447 U.S. at 634 (quoting Keeble, 412 U.S. at 212). The
crux of Breakiron’s claim of prejudice is that he was exposed
to this “substantial risk,” but the Pennsylvania Supreme Court
did not acknowledge it. 13

Second, the Pennsylvania Supreme Court also noted
that the evidence of robbery was “sufficient” because
Breakiron admitted taking money from the bar. Breakiron
argues that it was contrary to Strickland to rely on the mere
sufficiency of the evidence of robbery because the only
relevant question is whether there was a “reasonable
probability” that the jury would have convicted him only of

13
Breakiron has not argued that the Pennsylvania Supreme
Court’s decision is contrary to or an unreasonable application
of Beck and Keeble themselves, but the principles set forth in
those decisions are relevant in evaluating the Pennsylvania
Supreme Court’s assessment of prejudice. Cf. Strickland, 466
U.S. at 695 (“The governing legal standard plays a crucial
role in defining the question to be asked in assessing the
prejudice from counsel’s errors.”).

26
theft instead. The District Court rejected this argument
because (1) the Pennsylvania Supreme Court did not rely
solely on the sufficiency of the evidence, and (2) it is proper
to consider the weight of the evidence in assessing prejudice
under Strickland. (Dist. Ct. Op. at 94-95.)

The District Court is right that the Pennsylvania
Supreme Court did not solely rely on the sufficiency of the
evidence, and thus did not apply a “sufficiency of the
evidence” standard that is contrary to the “reasonable
probability” standard set forth in Strickland. The
Pennsylvania Supreme Court’s partial reliance on the
sufficiency of the evidence, however, is nevertheless
problematic. It is of course true that courts must weigh the
evidence in assessing prejudice. See Buehl v. Vaughn, 166
F.3d 163, 172 (3d Cir. 1999) (citing Strickland, 466 U.S. at
695). The Pennsylvania Supreme Court, however, merely
noted the sufficiency of the evidence without examining its
weight. It did not weigh all the evidence of record (including
Breakiron’s testimony that he took the bags of money only
after spotting them after the assault was over) to determine
whether there was a reasonable probability that the jury
would have convicted him only of theft if it had been given
that option. Merely noting that the evidence was sufficient to
convict does not accomplish that task. In sum, the
Pennsylvania Supreme Court did not acknowledge the
substantial risk to which Breakiron was exposed in the
absence of a theft instruction and did not weigh the evidence
of record to determine whether it prejudiced him. Thus, its
ruling is both contrary to and an unreasonable application of
Strickland.

The question remains whether Breakiron suffered

27
prejudice when the issue is considered de novo. Breakiron
argues that the failure to request a theft instruction deprived
the jury of the only way to give effect to counsel’s theory of
defense (i.e., that Breakiron committed a theft but not a
robbery). The District Court reasoned that it would deny this
claim even considered de novo essentially for the same reason
as the Pennsylvania Supreme Court: the trial court properly
instructed the jury on the elements of robbery, so the jury
must have found those elements and not merely a theft in
finding Breakiron guilty. (Dist. Ct. Op. at 95-96.) Thus,
under the District Court’s reasoning, counsel’s failure to
obtain a theft instruction did not deprive the jury of a way of
giving effect to counsel’s argument because the jury could
have done so simply by finding Breakiron not guilty of
robbery.

Like the Pennsylvania Supreme Court, however, the
District Court did not account for the substantial risk that a
jury will convict of an unproven offense when the defendant
is guilty of some crime but the jury instructions present it
with an all-or-nothing choice. See Beck, 447 U.S. at 634.
The question in assessing prejudice is whether there is a
reasonable probability that the jury did so here, and we
conclude that there is. Breakiron testified that he did not
decide to take the money bags until after his assault on Martin
was complete and he left and then returned to the bar. The
only evidence to the contrary was the mere fact that he took
the money and Price’s testimony suggesting that the incident
as a whole was premeditated and that Breakiron took the
money before his assault on Martin was complete. Thus,
although Price’s testimony supported the robbery charge for
Brady purposes and the evidence was sufficient to convict,
the prosecution’s evidence on that charge was not particularly

28
strong and was far from overwhelming. Moreover, the
robbery instruction actually given by the trial court, though
initially proper, compounded the error by closing with the
erroneous suggestion that the jury could convict Breakiron of
robbery on the basis of a theft alone. Under the
circumstances, there is a reasonable probability that the jury
would have convicted Breakiron only of theft if the jury
instructions had given it that option.14

C. Counsel’s Failure to Take Corrective
Action at Voir Dire

Finally, Breakiron argues that his counsel rendered
ineffective assistance in failing to take corrective action after
a venire member testified that Breakiron “used to do a lot of
robbing.” During voir dire, a venire member (Charles Gerba,
No. 67) testified under oath in front of the panel that he knew
Breakiron and that Breakiron had committed robberies: “I
know the boy. I lived in the terrace and he used to do a lot of
robbing there.” (N.T. 448; A.717.) Gerba also testified that,
based on what he knew, he had a “fixed opinion” about the
case and could not be an impartial juror, and the trial court
excused him. (Id.) Breakiron’s counsel did not object to
Gerba’s testimony or move to strike the venire panel or for a

14
Breakiron also argues that he was prejudiced by the
absence of a theft instruction because the robbery charge did
not include a so-called “afterthought” instruction—i.e., an
instruction emphasizing that he could not be guilty of robbery
if he committed theft only as an “afterthought” following the
murder. In his reply brief, Breakiron clarifies that this
argument is not an independent claim for relief, so we need
not address it. (Breakiron Reply Br. at 19-20.)

29
mistrial, and the trial court took no corrective action sua
sponte. One of the venire members on the same panel who
was in the room at the time (Paul Manges, No. 114) ended up
serving on Breakiron’s jury.

The trial court opened voir dire by questioning the
venire members regarding their general knowledge of the
parties and the case. Before reaching Gerba, the trial court
conducted its initial questioning of Manges. The trial court
asked him whether he had formed any opinion about the case
from what he had read in the newspaper. Manges testified
that he had not and agreed that he could decide the case
“solely on the basis of what transpires in this room[.]” (N.T.
444-45; A.713-714.) The trial court later questioned Gerba,
who testified that Breakiron “used to do a lot of robbing.”
After the trial court excused Gerba, counsel questioned the
venire members left on the panel, including Manges, but
neither counsel nor the trial court asked Manges about
Gerba’s statement. (N.T. 512-20; A.781-89.)

Breakiron argues that his counsel rendered ineffective
assistance by failing to move to strike the venire panel, seek a
mistrial, or take other corrective action to insure that no one
exposed to Gerba’s statement served on the jury. Breakiron
raised this claim during his first PCRA proceeding. The
PCRA court held an evidentiary hearing, at which his counsel
testified. It then denied the claim on the merits, and the
Pennsylvania Supreme Court affirmed. See Breakiron-2, 729
A.2d at 1093-94. The Pennsylvania Supreme Court based its
ruling solely on the issue of counsel’s performance. The
District Court deferred to that ruling under AEDPA, but also
explained that it would deny the claim on de novo review of
the issue of prejudice as well.

30
 1. Counsel’s Performance

As the Supreme Court recently emphasized, the
standard for evaluating counsel’s performance under
Strickland “is a most deferential one” that, under AEDPA,
becomes “‘doubly’” deferential when a state court already has
found counsel’s performance constitutionally sufficient.
Harrington, 2011 WL 148587, at *13 (quoting Knowles v.
Mirzayance, 129 S. Ct. 1411, 1420 (2009)). Thus, we may
not grant relief on this claim unless we conclude, not only
that counsel’s performance was objectively unreasonable, but
that “there is no possibility fairminded jurists could
disagree[.]” Id. at *12. Even under this doubly deferential
standard, we conclude that counsel’s failure to take corrective
action was objectively unreasonable and that the
Pennsylvania Supreme Court unreasonably applied Strickland
in concluding otherwise.

The Pennsylvania Supreme Court concluded that
counsel’s decision not to move to strike the venire panel or
for a mistrial was part of a reasonable trial strategy. Its
reasoning reads in full:

Under these circumstances, a motion to
strike the jury panel may have been an
appropriate course of action. Nonetheless, trial
counsel is not ineffective for failing to do so.
At the PCRA hearing, trial counsel testified that
he did not make a motion to strike or move for a
mistrial because the seated juror had stated that
he could render an unbiased opinion, and
consequently there was no basis to strike the

31
 panel or move for a mistrial. The PCRA court
found that this was a plausible trial tactic, and
therefore Breakiron failed to meet his burden
that counsel’s actions were not reasonably
based.

After reviewing the jury voir dire of the
juror in question, we agree with the PCRA
court, and find that trial counsel had a
reasonable basis for his actions. The juror
stated that he could be a fair and unbiased juror,
and that no one spoke of the case in his
presence. The PCRA court did not err in
denying Breakiron’s petition.

Breakiron-2, 729 A.2d at 1094 (citations and footnotes
omitted). Thus, the Pennsylvania Supreme Court concluded
that counsel’s belief that Manges could be fair and impartial
was a strategic reason for allowing him on the jury and that
counsel’s belief was reasonably supported by the record.
Breakiron argues that this ruling was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2), because the Pennsylvania Supreme Court
misread the PCRA and voir dire transcripts. He also argues
that its ruling was an unreasonable application of Strickland.

We agree that the Pennsylvania Supreme Court’s
characterization of the record is not entirely accurate. It
based its ruling on two factual determinations. First, it
concluded that counsel testified at the PCRA hearing that the
reason he did not take corrective action was that “the seated
juror had stated that he could render an unbiased opinion.”

32
Breakiron-2, 729 A.2d at 1094. Counsel did not actually
testify that he took no corrective action because Manges
“stated that he could render an unbiased opinion.” Counsel’s
actual testimony, in relevant part, was:

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

Q. Yes, sir.

A. Well, he was — that juror [apparently
Gerba] was excused and —

*****

A. I don’t know why there was no request
for a mistrial at that time, other than the
fact that this guy [apparently Gerba] was
excused, and I believe that we
questioned all of the jurors individually
after that. The court had asked several
questions based on what Mr. Manges
said, number 114, after consultation with
Mr. Breakiron, we felt that he would be a
fair and impartial juror toward Mr.
Breakiron.

(N.T. PCRA 7/17/97 P.M. at 75-76; A.1897-98.) Thus,
counsel testified merely that he “felt” Manges would be a fair
and impartial juror, not that Manges actually said he could or
that he declined to take corrective action on that basis.

Second, the Pennsylvania Supreme Court concluded
that Manges’s testimony at voir dire made counsel’s decision

33
reasonable because its own review of the voir dire transcript
confirmed that “[t]he juror stated that he could be a fair and
unbiased juror[.]” Breakiron-2, 729 A.2d at 1094. Manges
actually never testified that he could be a “fair and impartial
juror,” either in the abstract or in light of Gerba’s statement.
Under initial questioning by the trial court, Manges testified
merely that he had not formed a fixed opinion from what he
read in the newspapers and agreed that he could judge the
case “solely on the basis of what transpires in this room[.]”
(N.T. 444-45; A.713-14.) That questioning referred only to
Manges’s exposure to newspaper articles, and it occurred
before Gerba made the statement at issue here (which, of
course, “transpire[d] in th[at] room”). Manges also did not
state that he could be a “fair and impartial juror” in response
to counsel’s questioning after Gerba testified. Manges did
testify that he had not formed an opinion as to Breakiron’s
guilt or innocence, but only when asked whether he had done
so on the specific bases of reading the newspaper or
discussing the case with his wife. (N.T. 512-13; A.781-82.)
And again, neither counsel nor the trial court asked him about
Gerba’s statement.

Even if we assume that the Pennsylvania Supreme
Court’s factual findings are entitled to deference under
AEDPA, however, we still conclude that its ultimate ruling is
objectively unreasonable. The Pennsylvania Supreme Court
concluded that counsel’s decision to allow Manges on the
jury was a reasonable strategic decision because counsel
believed that Manges could be fair and impartial. The
primary problem with that conclusion is that counsel could
have had no reasonable basis for that belief because neither
he nor the trial court questioned Manges about Gerba’s
statement. Counsel’s “feeling” that Manges could be fair and

34
impartial despite that statement thus was insufficiently
informed. Cf. Strickland, 466 U.S. at 691 (“[C]ounsel has a
duty to make reasonable investigations or make a reasonable
decision that makes particular investigations unnecessary.”).

In addition, counsel’s testimony does not explain why
he took no action when Gerba made the statement in the first
place. His initial testimony on that point was “I don’t know
why there was no request for a mistrial at that time[.]” (N.T.
PCRA 7/17/97 P.M. at 75; A.1897.) Manges’s answers to the
trial court’s questioning provided no basis not to do so
because the trial court questioned Manges before Gerba made
his statement.

Counsel later testified that he did not move for a
mistrial because he did not think “that anything egregious had
occurred” during jury selection. (N.T. PCRA 7/18/97 A.M. at
36; A.2021). That statement could mean that counsel did not
believe anything “egregious” had occurred in light of his and
the trial court’s questioning of Manges, in which case it
suffers from the same deficiencies just discussed. That
statement could also mean that counsel did not believe that
the panel’s exposure to Gerba’s testimony itself was
sufficiently “egregious” to warrant corrective action. Either
way, there is no reasonable basis to conclude that counsel’s
performance in this regard was constitutionally adequate.

Manges was exposed to sworn testimony that
Breakiron “used to do a lot of robbing”—i.e., that Breakiron
had a history of committing the very same crime of which he
was accused at trial. Federal courts have long recognized that
evidence suggesting a propensity to commit crimes is patently
prejudicial. See, e.g., Old Chief v. United States, 519 U.S.

35
172, 181 (1997) (explaining that propensity evidence “‘is said
to weigh too much with the jury and to so overpersuade them
as to prejudge one with a bad general record and deny him a
fair opportunity to defend against a particular charge’”)
(quoting Michelson v. United States, 335 U.S. 469, 476
(1948)); Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007)
(“Evidence that a defendant has committed prior criminal acts
is highly prejudicial.”). As we have explained, when
evidence suggesting “a propensity or disposition to commit
crime . . . reaches the attention of the jury, it is most difficult,
if not impossible, to assume continued integrity of the
presumption of innocence. A drop of ink cannot be removed
from a glass of milk.” Government of the Virgin Islands v.
Toto, 529 F.2d 278, 283 (3d Cir. 1976).

Such evidence is all the more prejudicial where, as
here, it reveals that the defendant previously committed the
very kind of crime of which he or she stands accused. See
Old Chief, 519 U.S. at 185 (“Where a prior conviction was
for a . . . crime . . . similar to the other charges in a pending
case, the risk of unfair prejudice would be especially
obvious[.]”); United States v. Bagley, 772 F.2d 482, 488 (9th
Cir. 1985) (“To allow evidence of a prior conviction of the
very crime for which a defendant is on trial may be
devastating in its potential impact on a jury. . . . [W]here, as
here, the prior conviction is sufficiently similar to the crime
charged, there is a substantial risk that all exculpatory
evidence will be overwhelmed by a jury’s fixation on the
human tendency to draw a conclusion which is impermissible
in law: because he did it before, he must have done it
again.”).

The Pennsylvania courts have long recognized the

36
prejudicial nature of propensity evidence as well. See, e.g.,
Commonwealth v. Harkins, 328 A.2d 156, 157-58 (Pa. 1974)
(“When the jury learns that the person being tried has
previously committed another crime, the prejudicial impact
cannot be considered insignificant. ‘The presumed effect of
such evidence is to predispose the minds of the jurors to
believe the accused guilty, and thus effectually to strip him of
the presumption of innocence.’”) (citation omitted). The
situation in Harkins was similar to that presented here. In
Harkins, a potential juror testified during voir dire that the
defendant had stolen his car, and the defendant’s counsel
moved to strike the venire panel. The trial court denied the
motion and, though it excused that venire member, other
members of the same panel went on to serve on the
defendant’s jury, which ultimately convicted him. The
Pennsylvania Supreme Court reversed the conviction and
remanded for a new trial, explaining that “‘[t]he fact that a
reasonable inference of a prior criminal record is present in
the minds of the jurors in and of itself mandates a new trial.’”
Id. at 158 (quoting Commonwealth v. Allen, 292 A.2d 373,
376 (Pa. 1972)). Thus, as Breakiron argues, it would have
been obvious to any reasonably competent counsel that
corrective action was both available under Pennsylvania law
and essential to preserve Breakiron’s presumption of
innocence. 15

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

15
The Pennsylvania Supreme Court appears to have assumed
that counsel would have received corrective action if he had
requested it, see Breakiron-2, 729 A.2d at 1094 (citing
Harkins), and the Commonwealth has not argued otherwise.

37
do so, he testified, because he “felt” that Manges could be fair
and impartial and did not believe that anything “egregious”
had occurred. But avoidance of “egregiousness” is not the
standard for constitutionally adequate performance; the
standard is one of objectively reasonable performance under
the circumstances. No objectively reasonable counsel would
fail to recognize the patently prejudicial nature of testimony
that Breakiron “used to do a lot of robbing” (which certainly
qualifies as “egregious” in any event), and counsel provided
no legitimate explanation for failing to take corrective action
following that testimony. The Pennsylvania Supreme Court
nevertheless accepted counsel’s explanation at face-value
without recognizing that it was insufficiently informed and
without acknowledging the patently prejudicial nature of
Gerba’s testimony. For these reasons, we conclude both that
counsel’s performance was deficient under Strickland and
that the Pennsylvania Supreme Court’s conclusion to the
contrary was objectively unreasonable. 16

2. Prejudice

The Pennsylvania Supreme Court did not reach the
issue of prejudice, so the District Court reviewed it de novo
and we will do the same. See Porter, 130 S. Ct. at 452. The
District Court concluded that Breakiron had not shown
prejudice because, after Gerba made the statement at issue,
Manges testified that he had not formed any opinion

16
Although Breakiron’s claim in this regard is one of
ineffective assistance of counsel, we are surprised and
troubled that the state trial court took no steps to address this
patently prejudicial exposure sua sponte.

38
regarding Breakiron’s guilt and that he understood that
Breakiron was presumed innocent unless proven guilty
beyond a reasonable doubt. (Dist. Ct. Op. at 35.) The
District Court further reasoned that nothing in these responses
led counsel or the trial court to question Manges’s
impartiality. (Id.) Thus, the District Court concluded that
“Breakiron has failed to show that Juror 114 [Manges] was
anything but a fair and impartial juror or that his presence on
the jury prejudiced him.” (Id.)

Although the parties have not squarely addressed it,
this claim raises the threshold issue of how prejudice should
be assessed in this context. The District Court appeared to
require some indication that Gerba’s statement actually
rendered Manges biased or partial as a subjective matter, and
the Commonwealth too argues that Breakiron failed to
“establish” that Manges was anything other than fair and
impartial. Thus, the District Court’s reasoning and the
Commonwealth’s argument assume that a subjective
approach to prejudice is appropriate in this case. Breakiron,
by contrast, focuses on the prejudicial nature of the statement
in question and assumes that its probable effect should be
determined objectively. See Hummel v. Rosenmeyer, 564
F.3d 290, 303 (3d Cir. 2009) (“It is not necessary that the
defendant show that the deficient conduct ‘more likely than
not altered the outcome in the case,’” but only that there is a
“‘reasonable probability’” that it did.) (quoting Strickland,
466 U.S. at 693, and adding emphasis). We agree that
Strickland requires an objective inquiry here.

The parties have not cited, and we have not located,
any authority squarely addressing the standard for prejudice
when counsel is alleged to have rendered ineffective

39
assistance in connection with statements made during voir
dire that potentially rendered one or more actual jurors biased
or partial. Claims of juror bias or partiality themselves
generally require a showing of actual or legally implied bias.
See, e.g., Smith v. Phillips, 455 U.S. 209, 215 (1982) (“This
Court has long held that the remedy for allegations of juror
partiality is a hearing in which the defendant has the
opportunity to prove actual bias.”). Some courts have
required petitioners to show actual or legally implied juror
bias in similar contexts in order to satisfy the Strickland
standard as well. See, e.g., Sanders v. Norris, 529 F.3d 787,
790-94 (8th Cir. 2008) (no prejudice from counsel’s likely
deficient voir dire questioning where no actual or legally
implied juror bias); Fields v. Brown, 503 F.3d 755, 775-76
(9th Cir. 2007) (citing Strickland standard but holding that
defendant was not prejudiced by counsel’s deficient
questioning during voir dire where habeas evidentiary hearing
revealed that juror was not actually biased). The District
Court and the Commonwealth both assume without
explanation that this subjective approach is the proper one in
this case.

Evidence of a juror’s subjective bias or lack thereof
may well be relevant in some cases involving allegations of
ineffective assistance at voir dire. The narrow question
presented here, however, is the standard for assessing
prejudice when a panel member who ultimately serves on the
jury is exposed to sworn testimony that the defendant
previously committed crimes. Applying a subjective rather
than an objective standard of prejudice in this context would
conflict with Strickland. The proper inquiry under Strickland
is not whether Gerba’s statement actually rendered Manges
biased or partial, but whether there is a reasonable probability

40
that a juror who had not been exposed to that statement would
have voted to acquit Breakiron of robbery. See Saranchak v.
Beard, 616 F.3d 292, 309 (3d Cir. 2010) (holding that state
court improperly considered likely effect of evidence on the
“particular [trial] judge . . . rather than considering, more
abstractly, the effect the same evidence would have had on an
unspecified, objective fact-finder, as required by Strickland”)
(citing Strickland, 466 U.S. at 695). Indeed, “evidence about
the actual process of decision, if not part of the record of the
proceeding under review, . . . should not be considered in the
prejudice determination.” Strickland, 466 U.S. at 695. Thus,
Breakiron was not required to show that Manges was actually
influenced by Gerba’s statement, but had only to show a
reasonable probability that any given juror would have
been. 17

Although we have not applied Strickland in this
precise context, determining the objectively probable effect of
prior-crimes evidence is hardly a novel task. We have

17
The District Court reasoned that Breakiron could not show
prejudice because Manges’s voir dire testimony suggested
that he could decide the case fairly. If counsel or the trial
court had questioned Manges about Gerba’s statement, and if
Manges had testified that he could and would disregard it,
then the District Court’s reasoning might have more force
(though we do not so hold). But neither counsel nor the trial
court questioned Manges about Gerba’s statement, so there is
no record evidence bearing on whether Manges was actually
influenced by that statement. Under the circumstances,
Strickland requires that we assess its reasonably probable
effect.

41
applied Strickland’s “reasonable probability” standard in
assessing the effect of counsel’s failure to object at trial to
testimony revealing that the defendant had a criminal record,
see Carpenter v. Vaughn, 296 F.3d 138, 150-51 (3d Cir.
2002), counsel’s failure to object to evidence concerning a
defendant’s prior crimes, see Buehl, 166 F.3d at 175-76, and
counsel’s failure to request a limiting instruction regarding
evidence of a defendant’s prior crimes, see Albrecht, 485
F.3d at 128-29. We also have applied an objective standard
in assessing the effect of references to a defendant’s prior
crimes in a variety of other contexts. See, e.g., United States
v. Morena, 547 F.3d 191, 194-97 (3d Cir. 2008) (prosecutor’s
reference to defendant’s uncharged criminal activity); Toto,
529 F.2d at 283 (evidence of prior crimes). 18 The case before
us thus calls for nothing more than a straightforward
application of Strickland’s “reasonable probability” standard.

18
In Toto, the trial court improperly admitted evidence of
prior criminal acts. In assessing whether the error was
harmful, we asked “‘whether the error itself had substantial
influence (on the minds of the jury.) If so, or if one is left in
grave doubt, the conviction cannot stand.’” Toto, 529 F.2d at
283 (quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946)). We further noted that this test required us to “resort
to probabilities” and determine its probable effect in light of
the other evidence presented. Id. The Supreme Court later
adopted the Kotteakos standard we applied in this context as
the standard for determining harmless error on collateral
review, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993),
and, as we have noted, “Strickland prejudice and Brecht
harmless error are essentially the same standard[.]” Albrecht,
485 F.3d at 139 (citing Whitney v. Horn, 280 F.3d 240, 258-
59 & n.18 (3d Cir. 2002)).

42
 Having clarified the proper standard, we have no
difficulty in concluding that it is satisfied in this case. As
explained above, the prosecution’s case on the robbery
charge, though sufficient, was far from overwhelming. There
was little evidence of record to rebut Breakiron’s testimony
and argument that he decided to commit theft only after the
assault was complete and thus was not guilty of robbery. One
of his jurors, however, had been exposed to sworn testimony
that Breakiron “used to do a lot of robbing.” As explained
above, such propensity evidence is patently prejudicial.
Indeed, exposure to such testimony may be so prejudicial that
it cannot be cured even by a proper limiting instruction,
which was neither requested nor given here. See Morena,
547 U.S. at 196-97; Toto, 529 F.2d at 283. Given the dearth
of evidence on the robbery charge and the patently prejudicial
nature of Gerba’s sworn testimony that Breakiron “used to do
a lot of robbing,” there is a reasonable probability that
corrective action by counsel would have produced a different
result. Cf. Albrecht, 485 F.3d at 128-29 (although issue was
“a very close one,” defendant was not prejudiced by counsel’s
failure to request a limiting instruction regarding evidence of
prior crimes because there was “ample” evidence of his guilt).

III. Conclusion

Although our review and opinion, as they must, focus
on the procedural aspects of Breakiron’s trial, three essential
factors remain central and cannot be marginalized: a woman
named Saundra Marie Martin is dead; money was stolen from
the owner of “Shenanigan’s”; and Mark Breakiron must
respond for the horrible sequence of events that occurred
there. The procedural pathway to the final disposition for

43
Breakiron, however, must follow strict guidelines.
Accordingly, we will reverse the District Court’s judgment to
the extent that it denied Breakiron’s habeas petition as to his
robbery conviction and remand with an instruction to grant
his petition as to that conviction for the reasons explained in
this opinion.

44