NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-3211

ROBERT LIVINGSTON, JR.,

Appellant

v.

ATTORNEY GENERAL NEW JERSEY;

ADMINISTRATOR NEW JERSEY STATE PRISON

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 1-12-cv-05450)

District Judge: Honorable Jerome B. Simandle

______________

Argued: September 10, 2019

______________

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges.

(Opinion Filed: January 9, 2020)

______________

Meghan T. Meade

Loly G. Tor [ARGUED]

K&L Gates

One Newark Center

10th Floor

Newark, NJ 07102
2

Counsel for Appellant

Daniel A. Matos [ARGUED]

Mercer County Prosecutor’s Office

209 South Broad Street

3

rd Floor

P.O. Box 8068

Trenton, NJ 08650

Counsel for Appellees

______________

OPINION*

______________

GREENAWAY, JR., Circuit Judge.

This is the second appeal brought by Robert Livingston, Jr., challenging the 

District Court’s dismissal of his habeas petition pursuant to 28 U.S.C. § 2254. In the 

petition, Livingston claimed that he had been denied a fair trial because the prosecutor 

failed to produce the victim’s criminal history in violation of Brady v. Maryland, 373 

U.S. 83 (1963). The District Court held that the victim’s criminal history would not have 

been admissible and therefore dismissed the petition. We reversed, explaining that the 

District Court erred in “characteriz[ing] [the] admissibility [of the suppressed evidence] 

as a ‘separate, independent prong of Brady.’” Livingston v. Att’y Gen. N.J., 722 F. App’x 

301, 302 (3d Cir. 2018) (quoting Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 310 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

(3d Cir. 2016) (en banc)). We therefore remanded the case to the District Court for 

reconsideration of Livingston’s Brady claim.

On remand, the District Court again found no Brady violation because the 

suppressed criminal history was not favorable or material. See Livingston v. Grewal, No. 

12-5450 (JBS), 2018 WL 4251819, at *1 (D.N.J. 2018). Livingston timely appeals. For 

the following reasons, we will affirm.

I. Background

A jury found Livingston guilty of felony murder and various other crimes related 

to the killing of Morris Lewis. See State v. Livingston, No. 96-12-1432, 2011 WL 

5828502, at *1 (N.J. Super. Ct. App. Div. Nov. 21, 2011). At trial, Livingston admitted 

to killing Lewis by repeatedly striking him on the head with a baseball bat and to robbing 

Lewis after the fact. But Livingston argued that Lewis broke into his house and he killed 

Lewis in self-defense. During pretrial preparation, counsel for Livingston requested 

information from the prosecution regarding Lewis’s criminal history. The prosecution, 

however, incorrectly informed defense counsel that Lewis had no criminal history. In 

fact, Lewis had been arrested for and, in some cases, even pled guilty to several crimes,

including an arrest for burglary.

1

 The jury, however, reached its verdict without

considering any of this evidence.

 

1 We previously summarized these offenses as follows: “Lewis had arrests on 

juvenile petitions for burglary, receiving stolen property, criminal trespass, criminal 

mischief, theft, possession of a controlled dangerous substance with intent to distribute on 
4

Before sentencing, Livingston timely moved for a judgment of acquittal on the 

grounds that the prosecution violated his rights under Brady in failing to disclose Lewis’s 

criminal history. The trial court rejected that motion, explaining that Lewis’s criminal

record would have been inadmissible under state rules of evidence. On direct appeal, the 

Superior Court of New Jersey, Appellate Division, affirmed the conviction in relevant 

part. He then filed a state habeas petition, which the trial court denied. The Appellate 

Division affirmed that decision, and the New Jersey Supreme Court denied his 

certification for discretionary appeal.

Having been denied state post-conviction relief, Livingston filed a federal habeas 

petition in the District of New Jersey. The District Court dismissed his petition with 

prejudice. Before Livingston could appeal that decision, this Court decided Dennis, 

which held that the admissibility of the evidence suppressed is not a separate prong of the 

Brady inquiry. See 834 F.3d at 310. Livingston then appealed the dismissal of his 

habeas petition. We reversed and remanded, instructing the District Court “to assess in 

the first instance whether, setting aside the admissibility of the evidence, Livingston has 

established a Brady violation.” Livingston, 722 F. App’x at 304. 

 

or near school property, tampering with evidence, and resisting arrest, and he had pled 

guilty to [juvenile adjudications of] both possession of a controlled dangerous substance 

with intent to distribute on or near school property and to joyriding.” Livingston, 722 F. 

App’x at 302 n.2. We further explained that at the time of his death, he was due to 

appear at a “pre-trial status conference . . . for receiving stolen property.” Id.
5

On remand, the District Court found the victim’s criminal record neither favorable 

nor material because (1) it could not be used to impeach Lewis, who is deceased; (2) even 

without the criminal record, Livingston’s counsel could have, of its own accord,

conducted additional factual research into Lewis’s reputation; and (3) the burglary arrest 

on Lewis’s record was too vague to provide any insight into how its disclosure would 

have helped Livingston’s defense. Accordingly, the District Court found that Livingston 

“ha[d] not demonstrated a likelihood that the victim’s criminal history would have been 

favorable to [Livingston] nor material in that there is a reasonable probability its 

disclosure would have led to a different result.” Livingston, 2018 WL 4251819, at *1. 

Livingston timely filed this appeal.

II. Jurisdiction and Standard of Review

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

have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). See Branch v. Sweeney, 758 F.3d 

226, 232 (3d Cir. 2014). Our review of the District Court is plenary and we apply the 

same standard as the District Court. Dennis, 834 F.3d at 280.

III. Discussion

In Brady, the Supreme Court held that a prosecutor must share with defense 

counsel favorable evidence that is “material either to guilt or punishment” and that the 

suppression of such evidence constitutes a due process violation. Brady, 373 U.S. at 87. 

To establish a claim under Brady, a defendant must demonstrate that (1) the evidence was 
6

favorable to the defendant; (2) the prosecution suppressed the evidence; and (3) prejudice 

ensued, i.e., the evidence was material. Lewis v. Horn, 581 F.3d 92, 108 (3d Cir. 2009) 

(citations omitted); see also United States v. Brown, 595 F.3d 498, 509 n.14 (3d Cir. 

2010). 

Livingston raises three arguments why the District Court erred in determining that 

no Brady violation occurred here. First, Livingston argues that the District Court’s 

reasoning regarding defense counsel’s ability to conduct factual research without the aid 

of Lewis’s criminal record constitutes an improper inquiry into defense counsel’s 

diligence. See Dennis, 834 F.3d at 290 (“Brady’s mandate and its progeny are entirely 

focused on prosecutorial disclosure, not defense counsel’s diligence.”). Second, 

Livingston argues that the District Court applied a standard that is overly stringent in 

light of the relevant Supreme Court and Third Circuit precedents. Compare Kyles v. 

Whitley, 514 U.S. 419, 434 (1995) (“The 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.” (emphasis added)), with Livingston, 2018 WL 4251819, at *5 (“[T]he Court 

sees no reasonable probability that further investigation by defense counsel armed with 

knowledge of Lewis’s record would have changed the jury’s verdict.” (emphasis added)). 

Third, Livingston argues that confidence in the verdict is indeed undermined by the 

suppressed record because production of the record could have led Livingston to further 
7

evidence and arguments that might have bolstered his defense. Livingston also argues 

that the District Court erred in determining that the suppressed evidence was not 

favorable. 

Because the Brady factors are conjunctive, the failure to demonstrate that any of 

the factors applies to the case at hand will result in a finding that no Brady violation 

occurred. Here, because the evidence in question was not material, we need not consider 

Livingston’s arguments as to favorability. 

None of Livingston’s anticipated uses of Lewis’s juvenile adjudications supports a 

finding that the evidence is material. Lewis’s juvenile record is not admissible as 

impeachment evidence because Lewis is deceased. Nor would it be admissible as 

propensity evidence because under New Jersey evidence law, the victim’s prior bad acts 

are not admissible if they did not lead to a conviction. See N.J. R. Evid. 404(a)(2), 

405(a). Although Lewis had a juvenile arrest (with no adjudication of guilt) for burglary,

as the District Court explained, that crime “could encompass a wide range of conduct 

irrelevant to this case.” Livingston, 2018 WL 4251819, at *6. Furthermore, Livingston 

has offered little more than speculation that disclosure of Lewis’s juvenile records would 

have led the defense to any admissible evidence that would tend to support Livingston’s 
8

claim of self-defense. Accordingly, the evidence suppressed here, therefore, vague as it 

is, is not material such that it would tend to undermine confidence in the verdict.2 

We cannot conclude that there is a “reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different.” 

United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.). We 

therefore find that no Brady violation occurred here.

IV. Conclusion

For the foregoing reasons, we will affirm the District Court’s order.

 

2 Furthermore, the overwhelming evidence, including the fact that Livingston beat 

Lewis to death by repeatedly striking him on the head with a baseball bat and that 

Livingston robbed him afterwards, tended to support his guilt.