2011 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-18-2011 

# M a r k B r e ak ir on v . M a r t in H or n

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ock e t N o . 08-9003

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. R e c omme nde d C it a t ion

" M a rk B r e ak ir on v

. M a r t in H or n " (2011). 2011 D e cisio n s

. P a pe r 1341.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2011/1341PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 08-9003

___________

MARK BREAKIRON, Appellant

v.

Commissioner MARTIN HORN; Pe nnsylvania 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 Ge neral of Pennsylvania Appeals & Legal Services Strawberry Square
16th Floor Harrisburg, PA 17120

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

NYGAARD, Circuit Judge

A Pennsylvania ju ry found Mark Breakiron guilty of first-degree murder and robber y 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).

2The trial court sentenced him to death. On Breakiron’s petition for a writ of habeas corpus, the District Court
invalidated the murder conv iction (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 fact or 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 co nviction and remand for the District Court to grant his petition as to that conviction. 2

I. Background

1 For ease of reference, we refe r to appellees collectively as
“the Commonwealth.”

2 Nothing said herein, however, would preclude retrying him on this charge as well.

3Because Breakiron’s murder co nviction no longer is at issue, we need only brie fly summarize the background
relevant to the issues we ad dress. On March 24, 1987,
Breakiron killed Saundra Marie Ma rtin, the bartender of a bar called “Shenanigan’s” in Uniont own, 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 me mber who had been exposed to testimony by another panel me mber 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 m oney. Instead, he put on a voluntary intoxication/diminished capacity defense and argued that he was guilty of th ird-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) (defin ing 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.

4Breakiron 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, testifie d 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. 1 254-55; 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 d ecided to steal the money after killing Martin. (N.T. 1260-61; A.1558-59.) Breakiron’scounsel, however, did not request a charge on the lesserincluded offense of theft, and th e trial court did not give one.

5The 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 “wh ile 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 convicti on plus five to ten years of imprisonment on the robbery co nviction. 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 affi rmed that ruling as well.
See Commonwealth v. Breakiron , 729 A.2d 1088 (Pa. 1999) (“ Breakiron-2 ”).

Breakiron then instituted th e 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 litig ated the federal habeas petition before three different Di strict Judges for almost seven years, during which Breakiron amended his petition several times, took discovery, and receive d an evidentiary hearing. Breakiron ultimately asserted eighteen claims, including claims addressed to the guilt an d penalty phases of his trial and to his murder and robbery convictions. Among them were claims that the prosec ution withheld evidence in
violation of Brady that he could have used to impeach Ellis
Price.

6The 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, gr anting relief on three of those claims and invalidating the murd er conviction. The District
Court did not find Price’s test imony relevant to the robbery charge, however, so it did not grant relief fro m the robbery conviction on that basis (or a ny other). The District Court granted Breakiron a certificate of appealability on one claim, but the parties agree that it is m oot 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 deni ed. 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 ra ise the claims at issue here, which we granted.

II. Analysis

We have jurisdiction pursu ant 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). Li ke the District Court’s, our
review of Breakiron’s cl aims is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). “AEDPA provid es that, where a habeas

4 That claim was that counsel re ndered ineffective assistance by failing to present mental h ealth evidence in support of Breakiron’s diminished capa city/voluntary intoxication defense at the guilt phase and in support of mitigation at the penalty phase.

7petitioner’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 establishe d Federal law, as determined by the Supreme Court of the Un ited 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 st ate 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 ex tends a legal principle to a new context, or unreasonably re fuses 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

8claim, and the merits of the clai m 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 doi ng so, we nevertheless must presume that state-court factua l findings are correct unless the presumption is rebutted by cl ear and convincing evidence.
See Palmer v. Hendricks , 592 F.3d 386, 39 2 (3d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)).

In this case, Breakiron argues that: (1) the Brady violations require relief from hi s robbery conviction; (2) the state trial court improperly pr ecluded 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 offe nse 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 e nded up on Breakiron’s jury; and (5) the cumulative effect of thes e four errors deprived him of
a fair trial. We conclude that Breakiron’s Brady claims and
his two claims of ineffective a ssistance of counsel, whether
considered alone or cumulativ ely, 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 couns el instead of considering his alleged errors of all kinds. Cf. Albrecht v. Horn , 485 F.3d 103, 138-39 (3d Cir. 2007). Becau se we conclude that three of Breakiron’s claims individually warrant relief, their

9A. The Brady Claims

Breakiron argues that his robbery conviction must be invalidated because the prosecut ion 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 Penns ylvania Supreme Court did not
address this claim on the me rits 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 petitio n, which he later amended to argue that the prosecution also failed to disclose that Price had sought a deal from Breaki ron’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 reje cted 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 addr ess 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 Commonwea lth argued that the claims Breakiron raised in his second PCRA petition were

10Thereafter, 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 s ought 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 testim ony contradicted Breakiron’s testimony that he had not intende d to kill Martin and was the only direct evidence that Brea kiron’s attack on Martin was intentional. (Dist. Ct. Op. at 59-61.) The District Court found Price’s testimony irrele vant to the robbery charge,

procedurally defaulted becau se the Pennsylvania Supreme Court dismissed it as untimely. The District Court properly rejected that argument because Pennsylvania’s former “relaxed waiver” rule in cap ital cases meant that the PCRA
statute of limitations did not constitute an adequate and independent state-law ground fo r 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 proce durally defaulted as well. The District Court agreed, but properly concluded that Breakiron necessarily would s how “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).

11however, because Price “did no t reference the bar’s money bags, Martin’s purse, or any statement Breakiron allegedly had made to him regarding the inte nt to steal or the robbery.” (Dist. Ct. Op. at 58 & n.25.) T hus, 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 prej udiced 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 meri ts 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 me rits 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 e ffect of the undisclosed deal on his murder conviction”).

12this case, the Commonwealth ha s not appealed the District Court’s rulings that the eviden ce at issue was favorable to Breakiron or that the prosecu tion 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 materi al 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 du e 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 answ er for. When asked at oral argument why th e 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 disc losed “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 prosec utor’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 ga mes with justice and commit constitutional violations by se creting 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 obvi ating the need for all these protracted years of litigation.

13Under 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 receiv ed a different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resu lting in a verdict worthy of confidence. A reasonable probability of a different result is shown when the government ’s evidentiary suppression
undermines confidence in th e outcome of the trial.’” Id. (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)) (internal quotation marks omitted).

The District Court concl uded that the prosecution’s suppression of impeachment ev idence undermines confidence
in the murder conviction beca use 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. Th e Commonwealth, by contrast, argues that Price’s testimony did not support the robbery
conviction because he never tes tified 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 Pr ice’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 to ld you that when Mr. Breakiron
came back to the bar area that the bartender was counting the

14money.” (N.T. 1335; A.1633.) When Breakiron’s counsel objected that Price had not so testified, the trial court instructed: “The jury will r ecall the testimony. The Court does not have any reco llection of that, but the jury will recall what was testified to by Ellis Price.” (N.T. 1 335-36; 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 whethe r 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 c ontradicted his own testimony
that he did not intend to stea l the money until after he had killed Martin, left, and then returned to the bar. This argument is persuasive. Pr ice 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 Ma rtin. 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 th e robbery charge because he
never mentioned Breakiron’s th eft of the money. To the contrary, it argues that all of the evidence supporting the robbery charge came from Break iron himself, who testified

15that (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 scen e. 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 tu rns 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 infe rences 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 mone y, so too could it have drawn that inference from Price’s testimony suggesting that the incident as a whole was premeditated.

Second, Breakiron argues th at Price’s testimony about Breakiron supposedly “finishing off” Martin after he left the bar supported the conc lusion that he stole the money before he killed Martin, and that he t hus 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 retu rned to the bar, and that she thus might have been alive when he took the money. (N.T.

161259-60; A.1557-58.) That ar gument is beside the point. Although Breakiron frames his ar gument in terms of when he “killed” Martin, the relevant cons ideration under the statute is
when he used the fo rce that led to her death, not when she actually died. See 18 Pa. Cons. Stat. § 3701(a)(1)(i).
Breakiron testified that the assa ult 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 ba r and later “finished her off” at his “pap’s” house, which w ould have been after Breakiron took the money and thus “in th e course of committing” that
theft. See 18 Pa. Cons. Stat. § 3701(a)(2) (“An act shall be
deemed ‘in the course of committi ng 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 ge neral 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 Dist rict Court held that there is a reasonable probability that th e jury would have believed
Breakiron’s account instead of Pr ice’s if the defense had been able to impeach Price’s cred ibility with the undisclosed
evidence. Even thou gh Price did not testify directly that Breakiron told him anything abou t the theft, Price’s testimony undermined Breakiron’s credibility as a whole. With no other
direct evidence on when Breaki ron formed the intent to take the money, Breakiron’s own credibility was crucial. Accordingly, the impeachment evidence that the prosecution

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

B. Counsel’s Failure to Re quest a Theft Instruction

Breakiron argues that trial counsel rendered ineffective assistance by failing to request a jury instruc tion on theft,
which is a lesser-included offens e 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 followi ng the assault, returned, put Martin’s body in his truck, went back into the bar, and then spotted the bags as he was on hi s 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 a ny cases in which a court has
addressed whether Brady evidence was ma terial to some charges but not others. We ha ve located one case, which is informative by co mparison. 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 ot her 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.

18because he decided to take th e 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 fo und both that Breakir on committed a theft
and that he inflicted serious bodi ly injury on Martin “in the course of” committing that thef t. (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 reas onable doubt by the Commonwealth. First, that the defendant inflicted serious bodily injury on Sa undra Marie Martin. . . .
The second element for robber y is that the defendant
did so in the course of co mmitting a theft. . . . As I have already indicated, you cannot find the defendant guilty of robbery unless yo u are satisfied beyond a
reasonable doubt that he comm itted a theft. A person
commits a theft if he unla wfully takes the movable property of another person w ith 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 se rious bodily injury or the threat of serious bodily inju ry 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 ju ry, there are therefore two elements. First, that the theft occurred or that it occurred by infliction of sero uus [sic] bodily injury or theft as I have explained it to you.

19Breakiron’s counsel did not reque st a further instruction that the jury could find him guilty solely of the lesser-included offense of theft, and the tria l 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 testifie d, then rejected the claim on
the merits. The Pe nnsylvania 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. 6 68 (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 defici ent. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ gu aranteed the de fendant by the
Sixth Amendment.” Strickland , 466 U.S. at 687. In evaluating counsel’s performan ce, “a court must indulge a strong presumption that counse l’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 al one 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.

20wide range of reasonable pr ofessional assistance[.]” Id. at 689. Thus, counsel’s performan ce will be deemed deficient only if it “fell below an objective standard of
reasonableness.” Id. at 688. The qu estion 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 defend ant must show that the deficient performance prejudiced the defe nse. 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 reasonabl e probability is a probability
sufficient to undermine conf idence in the outcome.” Id. at 694.

1. Counsel’s Performance

The Pennsylvania Supreme Court did not address the issue of performance and instead re jected 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 inst ance 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 c ourt did not address it. See Porter

, 130 S. Ct. at 452.

We conclude that counsel’s failure to request a theft

21instruction was objectively unreasonable. As Breakiron argues, he would have been en titled 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 doe s 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 aske d 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 establishe s that counsel’s deci sion not to request a
theft instruction was not the ki nd of strategic choice entitled
to deference under Strickland

. See Thomas v. Varner , 428 F.3d 491, 499-500 (3d Cir. 2005).

The record also establishe s 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 no t raised an independent due process claim, and because he would have been entitled to a theft instruction if requested u nder Pennsylvania law, we need
not address that issue.

22unreasonable. Counsel’s sole theory of de fense to the robbery charge was that Breakiron had committed a theft but not a robbery. Without a theft in struction, the jury was left with only two choices—convic tion of robbery or outright acquittal. In such all-or-nothi ng situations, “‘[w]here one of
the elements of the offense char ged 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 pr esented 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 stra tegy at trial by arguing that
Breakiron had not committed an y crime. Instead, he
conceded that Breakiron had co mmitted theft, but neglected to request the theft instruction that not only would have been consistent with that theory of defense but wo uld have given the jury an opport unity to effectuate it. Under the circumstances, no reasonable c ounsel 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 lesser23included-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 r obbery if counsel had requested
the theft instruction to wh ich 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 unreasonabl e application of, clearly established Federal law, as de termined 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 unrea sonable 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 ju ry charge, Breakiron cannot establish that he was prejudiced.

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

241352-54) Moreover, trial counsel argued to the jury during closing argume nt 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 verdic t because there was no question that Breakiron took the victim’s purse and the bags of mo ney from the bar. Breakiron
I , 524 Pa. at 296-97, 571 A.2d at 1042. Had a theft instruction been give n, 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 Breakir on committed theft alone, and (2) the evidence of robbery was sufficient. 12

Breakiron challenges both ra tionales, 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 Pennsylvan ia Supreme Court reasoned that

12 The Pennsylvania Supreme C ourt 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 releva nt given the District Court’s
invalidation of the murder conviction and death sentence.

25the jury would have found Breaki ron guilty of robbery even if a separate theft instruction ha d 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 rest s solely on the ju ry’s duty “‘as a theoretical matter’” to acqui t 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 pr esented 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 pr ejudice 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 m oney 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 le gal standard plays a crucial role in defining the question to be asked in assessing the prejudice from counsel’s errors.”).

26theft instead. The District Court rejected this argument because (1) the Pennsylvania Supreme Court did not rely solely on the sufficien cy 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 ri ght that the Pennsylvania Supreme Court did not solely re ly on the suffi ciency of the evidence, and thus did not a pply 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 (3 d Cir. 1999) (citing Strickland , 466 U.S. at 695). The Pennsylvania Suprem e 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 as sault was over) to determine
whether there was a reasonabl e probability th at the jury
would have convicted him only of theft if it had been given that option. Merely noting that the evidence wa s sufficient to convict does not accomplish th at task. In sum, the Pennsylvania Supreme Cour t did not acknowledge the
substantial risk to which Br eakiron 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 wh ether Breakiron suffered

27prejudice when the issue is c onsidered 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 r easoned 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. (Dis t. Ct. Op. at 95-96.) Thus,
under the District Court’s re asoning, 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 find ing Breakiron not guilty of robbery.

Like the Pennsylvania Supreme Court, however, the
District Court did not account fo r 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 prejud ice is whether there is a reasonable probability that the jury did so here, and we
conclude that there is. Breaki ron testified that he did not decide to take the money bags until after his assault on Martin was complete and he left and th en returned to the bar. The only evidence to the c ontrary 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 suppo rted the robbery charge for Brady purposes and the evidence was sufficient to convict, the prosecution’s evidence on that charge was not particularly

28strong and was far from overw helming. Moreover, the robbery instruction actually give n by the trial court, though initially proper, compounded th e error by closing with the erroneous suggestion that the ju ry could convict Breakiron of robbery on the basis of a theft alone. Under the circumstances, there is a reasona ble 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 ve nire member (Charles Gerba, No. 67) testified under oath in fro nt of the panel that he knew
Breakiron and that Breakiron had committed robberies: “I know the boy. I lived in the te rrace and he used to do a lot of robbing there.” (N.T. 448; A.7 17.) Gerba also testified that, based on what he knew, he ha d a “fixed opinion” about the case and could not be an impar tial juror, and the trial court excused him. ( Id. ) Breakiron’s counsel did not object to Gerba’s testimony or move to st rike the venire panel or for a

14 Breakiron also argues that he was prejudiced by the
absence of a theft in struction 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.)

29mistrial, 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 (P aul Manges, No. 114) ended up serving on Breakiron’s jury.

The trial court opened voir dire by questioning the venire members regarding thei r 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 form ed any opinion about the case
from what he had read in the newspaper. Manges testified that he had not and agreed th at he could decide the case “solely on the basis of what tran spires in this room[.]” (N.T. 444-45; A.713-714.) The trial court later questioned Gerba,
who testified that Breakiron “use d 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 st rike the venire panel, seek a mistrial, or take other correctiv e action to insure that no one exposed to Gerba’s statement se rved 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 Pennsyl vania 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 th e claim on de novo review of the issue of prejudice as well.

301. Counsel’s Performance

As the Supreme Court recently emphasized, the standard for evaluating c ounsel’s performance under
Strickland “is a most deferential one” that, under AEDPA, becomes “‘doubly’” de ferential 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 wa s objectively unreasonable, but that “there is no possibility fairminded jurists could disagree[.]” Id. at *12. Even under this doubly deferential standard, we conclude that coun sel’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 acti on. 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

31panel or move for a mistrial. The PCRA court found that this was a pl ausible 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 Mange s could be fair and impartial was a strategic reason for allo wing 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 unr easonable application of Strickland

.

We agree that the Penn sylvania 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 correctiv e action was that “the seated juror had stated that he could render an unbiased opinion.”

32Breakiron-2 , 729 A.2d at 1094. Counsel did not actually testify that he took no corre ctive 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 [a pparently 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 corr ective action on that basis.

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

33reasonable 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 ag reed 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 newspa per 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 wi fe. (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 concl ude that its ultimate ruling is objectively unreasonable. Th e Pennsylvania Supreme Court
concluded that counsel’s deci sion to allow Manges on the jury was a reasonable strate gic 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

34impartial despite that statem ent thus was insufficiently
informed. Cf. Strickland , 466 U.S. at 691 (“[C]ounsel has a duty to make reasonable investig ations 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 ma de the statement in the first place. His initial testimony on th at point was “I don’t know why there was no request for a mist rial at that time[.]” (N.T. PCRA 7/17/97 P.M. at 75; A.1897.) Manges’s answers to the trial court’s questioning provid ed no basis not to do so because the trial court questioned Manges before Gerba made
his statement.

Counsel later testified th at he did not move for a
mistrial because he did not th ink “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 deficienci es 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 warra nt corrective action. Either way, there is no reasonable basi s to conclude that counsel’s performance in this regard wa s 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 ve ry same crime of which he
was accused at trial. Federal c ourts 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.

35172, 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 ba d general record and deny him a fair opportunity to defend ag ainst 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 ha s 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 dr op 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 al l the more prejud icial where, as here, it reveals that the defe ndant previously committed the very kind of crime of which he or she stands accused. See
Old Chief , 519 U.S. at 185 (“Wher e a prior conviction was for a . . . crime . . . similar to the other charges in a pending case, the risk of unfair prej udice would be especially obvious[.]”); United States v. Bagley , 772 F.2d 482, 488 (9th Cir. 1985) (“To allo w evidence of a prio r 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 su fficiently simila r to the crime charged, there is a substantia l 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 be fore, he must have done it again.”).

The Pennsylvania courts ha ve long recognized the

36prejudicial nature of prope nsity 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 insignifican t. ‘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 innocenc e.’”) (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 pane l. 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 ultim ately convicted him. The Pennsylvania Supreme Court reversed the conviction and remanded for a new trial, explaini ng that “‘[t]he fact that a reasonable inference of a prior cr iminal 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 Br eakiron argues, it would have been obvious to any reasona bly competent counsel that
corrective action was both availa ble 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 receiv ed corrective action if he had requested it, see Breakiron-2 , 729 A.2d at 1094 (citing
Harkins ), and the Commonwealth has not argued otherwise.

37do 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 objectivel y 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 fa iling to take corrective action following that testimony. Th e Pennsylvania Supreme Court nevertheless accepted counsel’s explanation at face-value without recognizing that it was insufficiently informed and without acknowledgin g the patently prejudicial nature of Gerba’s testimony. For these r easons, we conclude both that counsel’s performance was deficient under Strickland and that the Pennsylvania Suprem e 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 co unsel, we are surprised and
troubled that the state trial cour t took no steps to address this patently prejudicial exposure sua sponte.

38regarding Breakiron’s guilt and that he understood that Breakiron was presumed innocent unless proven guilty beyond a reasonable doubt. (D ist. Ct. Op. at 35.) The
District Court further reasoned th at 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 impartia l 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 partia l as a subjective matter, and
the Commonwealth to o argues that Breakiron failed to “establish” that Manges was a nything other than fair and impartial. Thus, the Distri ct Court’s reasoning and the Commonwealth’s argument a ssume that a subjective approach to prejudice is approp riate in this case. Breakiron, by contrast, focuses on the prejudicial nature of the statement in question and assumes that it s 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 defici ent 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 addressi ng the standard for prejudice when counsel is alleged to have rendered ineffective

39assistance in connec tion 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 actu al 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 pr ejudice 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 ac tually 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 subj ective bias or lack thereof may well be relevant in some cases involving allegations of
ineffective assistance at voi r 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 sta ndard 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

40that 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 likel y effect of evidence on the “particular [trial] judge . . . ra ther than considering, more abstractly, the effect the same evidence would have had on an unspecified, objective f act-finder, as required by Strickland ”) (citing Strickland , 466 U.S. at 695). In deed, “eviden ce about the actual process of decision, if not part of the record of the proceeding under review, . . . s hould 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 statemen t, but had only to show a reasonable probability that a ny given juror would have
been. 17

Although we ha ve 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 th at 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 Ge rba’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.

41applied Strickland ’s “reasonable probability” standard in assessing the effect of counsel’s failure to object at trial to testimony revealing that the de fendant had a criminal record,

see Carpenter v. Vaughn , 296 F.3d 138, 150-51 (3d Cir. 2002), counsel’s failure to obj ect 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 refe rences 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 unc harged 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 a ssessing 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 convic tion cannot stand.’” Toto , 529 F.2d at 283 (quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946)). We further noted that th is 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)).

42Having 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 propensi ty evidence is pate ntly 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 wa s not prejudiced by counsel’s failure to request a limiting inst ruction regarding evidence of prior crimes because there was “ample” evidence of his guilt).

III. Conclusion

Although our review and opin ion, as they must, focus on the procedural aspects of Br eakiron’s trial, three essential
factors remain central and cann ot 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 sequen ce of events that occurred there. The procedural pathwa y to the final disposition for

4344 Breakiron, however, must follow strict guidelines. Accordingly, we will reverse the District Court’s judgment to the extent that it denied Breakiron’s habeas pe tition as to his robbery conviction and remand w ith an instruction to grant his petition as to that conviction for the reasons explained in this opinion.