1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-15-1994

Robinson v. Arvonio, et al

Precedential or Non-Precedential:

Docket 92-5667

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 92-5667 

___________ 

MAURICE ROBINSON, 

 Appellant 

v. 

PATRICK ARVONIO, Superintendent, 

East Jersey State Prison; 

ROBERT J. DEL TUFO, Attorney General 

of the State of New Jersey 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil Action No. 91-04456) 

___________________ 

Argued November 30, 1993 

Before: SCIRICA and ALITO, Circuit Judges

and POLLAK, District Judge* 

(Filed June 15, 1994 ) 

 ROBERT L. SLOAN, ESQUIRE (Argued) 

 Office of Public Defender 

 Appellate Section 

 31 Clinton Street 

 P.O. Box 46003 

 Newark, New Jersey 07101 

 Attorney for Appellant 
2 

 

*The Honorable Louis H. Pollak, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
3 

 CATHERINE A. FODDAI, ESQUIRE (Argued) 

 Office of Attorney General of New Jersey 

 Department of Law & Public Safety 

 Division of Criminal Justice 

 Richard J. Hughes Justice Complex 

 Trenton, New Jersey 08625 

 Attorney for Appellees 

__________________ 

OPINION OF THE COURT 

__________________ 

SCIRICA, Circuit Judge. 

 Petitioner Maurice J. Robinson, currently confined in a 

New Jersey state prison, appeals the district court's denial of 

his application for a writ of habeas corpus under 28 U.S.C. §2254 

(1988). Robinson asserts the writ should have been granted 

because the New Jersey prosecutor failed to correct a witness's 

perjured denial that his cooperation had been secured by the 

prosecutor's promise to tell the sentencing judge of his 

cooperation.0 The district court found the failure of the 

prosecution to correct the witness's perjured testimony was 

harmless error because there was no reasonable likelihood the 

perjured testimony had affected the judgment of the jury. This 

finding rested on the court's judgment that the jury had 

sufficient evidence before it to assess the credibility of the 

witness. For reasons that follow, we will affirm the denial of 

the writ. 

 

0Robinson contends the prosecutor's conduct deprived him of due 

process of law and a fair trial under the Fifth, Sixth and 

Fourteenth Amendments of the United States Constitution. 
4 

BACKGROUND

 A jury found Robinson guilty of: (1) murder, under N.J. 

Stat. Ann. § 2C:11-3 (West 1982 & 1993 Supp.); (2) armed robbery, 

under N.J. Stat. Ann. § 2C:15-1b (West 1982); (3) possession of a 

handgun without a permit, under N.J. Stat. Ann. § 2C:39-5b (West 

1982); and (4) possession of a handgun for unlawful purposes, 

under N.J. Stat. Ann § 2C:39-4a (West 1982). Co-defendant Melvin 

Shark was granted a severance and a jury found him guilty of the 

same charges. On February 24, 1984, Maurice J. Robinson was 

sentenced to a thirty-year term of imprisonment for murder, with 

a minimum of fifteen years without parole. He also received a 

concurrent fifteen-year term for armed robbery, with a minimum of 

seven years without parole. 

 After exhausting state remedies,0 Robinson petitioned 

for habeas corpus relief in United States District Court. The 

district court agreed the prosecutor had failed to correct the 

 

0Robinson appealed to the Superior Court of New Jersey, Appellate 

Division, which affirmed his conviction in an unreported per

curiam opinion filed on February 28, 1986. The New Jersey Supreme 

Court denied Robinson's request for certification. He then filed 

a pro se petition for post-conviction relief, which was denied 

after a hearing in his absence. He appealed, and in an 

unreported per curiam opinion, filed August 1, 1988, the 

Appellate Division found the hearing should not have been 

conducted in Robinson's absence and remanded for another hearing. 

After the second hearing, at which Robinson was present and 

represented by counsel, the trial court again denied his 

petition. Robinson appealed, and on October 1, 1990, in an 

unreported per curiam opinion, the Appellate Division affirmed 

the denial of post-conviction relief. The New Jersey Supreme 

Court denied Robinson's petition for certification on December 

24, 1990. 
5 

witness's testimony, but it found no reasonable likelihood that 

the error had affected the judgment of the jury. 

A. 

 In his opening statement at trial, the prosecutor 

informed the jury that Melvin Shark had previously been found 

guilty and that an agreement had been made with Shark in return 

for his testimony at Robinson's trial. The prosecutor stated: 

Mr. Shark is going to be a witness in this 

trial and the State is going to call him as a 

witness. I would like you to understand at 

this point that Mr. Shark has had his day in 

court and has already been adjudicated. And 

in terms of why he would be coming here at 

this time, I'd like you to know beforehand 

that Mr. Shark denied his guilt when he was 

on trial and subsequently he was found 

guilty. He has agreed to testify for the

State, and what was promised to him was 

merely he would be kept away from Mr. 

Robinson, that is it. He will -- He was 

told, and the extent of any promise made to 

him when his sentence came, his cooperation 

would be made known to the sentencing judge, 

but no deal in terms of time, years, anything 

like that.

. . . 

 I'd also like to note to you that Mr. 

Shark will be testifying under what's known 

as immunity, because he has been recently 

convicted and he has not yet been sentenced, 

as I said earlier. 

(Emphasis added.) 

 At trial, however, Shark initially denied that he had 

been promised anything at all in return for his testimony. On 

direct examination, Shark testified: 

Q. Mr. Shark, in reference to your 

testimony in this courtroom today, was there 

a deal made with you so you would testify? 
6 

A. No. 

Q. What is your understanding of why you 

were -- what you expect to gain as a result 

of testifying here? 

A. Can you repeat that one more time, 

please? 

Q. What prompted you to testify at this 

particular trial after your own trial? 

A. I was hoping that -- 

Q. Mr. Shark, do you know what will be done 

with you as a result of your trial and your 

conviction? 

A. I know I'll be going for a long time. 

Q. Did you discuss that with your lawyer? 

A. Yes, I did. 

Q. And were you promised anything in 

exchange for testifying here as a result of 

your trial? 

 A. No, I wasn't. 

Q. Are you telling the truth today? 

A. Yes, I am. 

 On cross-examination, Shark acknowledged that he was 

promised immunity for his testimony: 

Q. Mr. Shark, is it not a fact that you 

have been promised immunity from Prosecution 

based on anything you said in court here 

today? 

A. Yes, it is. 

But he still denied the agreement included making his cooperation 

known to the sentencing judge: 
7 

Q. Is it not a fact, sir, that the 

prosecutor promised you that if you would get 

on that stand and testify today for the State 

against Mr. Robinson, they would tell the 

Judge of your cooperation? 

A. Well, he didn't promise me he'd talk to 

the Judge about that. 

Q. He didn't say that? 

A. He didn't promise me he'd go back in and 

talk to the Judge and tell him I cooperated. 

Was nothing promised to me. 

Q. And that's the truth? 

A. Yes. Only thing was promised to me was 

I'd be taken care of. 

 On redirect by the prosecutor, Shark emphasized he had 

been promised protective custody in exchange for his testimony: 

Q. Mr. Shark, earlier during your crossexamination, in response to one of [defense 

attorney's] questions about what you were 

promised, you said something along the line 

that you would be taken care of. What does 

that mean? 

A. Protective custody. 

. . . 

Q. And what does that mean to you? 

A. Means a lot to me. 

Q. Why? 

A. Behind the fact what's going on here, 

word can get back to the jail, you know, that 

I did something that, you know, is against 

rules and regulations inside the jail and I 

can be seriously hurt for doing something 

like this. 

 Shark never acknowledged the prosecutor had agreed to 

inform the sentencing judge of his cooperation, and the 
8 

prosecutor failed to correct his perjured testimony. The defense 

attorney revived the issue in his closing statement by referring 

to the prosecutor's promise to speak to the sentencing judge. He 

stated: 

 You recall [Shark] saying from this 

witness stand, "I just want to get the truth 

out"? What else did he say? Unconsciously 

he said, "I want to help myself." Then I 

asked him -- this is the man who now wants to 

tell the truth -- I said, "Did the Prosecutor 

promise you anything?" I'm sure you will 

recall, ladies and gentlemen, that when the 

Prosecutor made his opening remarks, he 

indicated, and stated truthfully to you, that 

he had made certain promises to this 

defendant. On this witness stand -- a man 

who's worried about his survival is not going 

to forget something like that, if any 

promises were made to help him, but on this 

witness stand, after taking the oath on that 

Bible, I asked him, "Were any promises made 

to you?" "No." "Did the Prosecutor promise 

that he'd talk to the Judge on your behalf?" 

"No. No promises made." That's what he 

said.

 And if you'll recall, ladies and 

gentlemen, we took a recess, and when we came 

back, I asked him, I said, "Did the 

Prosecutor promise you immunity?" What did 

he say -- "Oh, yes, he did promise me 

immunity." 

. . . 

 You heard him yesterday say in response 

to my question that, "I was mentioning 60 

years to myself," ladies and gentlemen, if 

you face that kind of time and you can buy 

your way out, do it. He did it. He got up 

on that witness stand and said to all of you, 

"I perjured myself, I'm a liar," Fine. To 

help himself. Do you think that that young 

man, streetwise, wouldn't have certain ideas 

about what it means if a Prosecutor said, "I 

will speak to the Judge for you? Ladies and 

gentlemen, he was sinking. And it was up to 

his nose and he reached out and he grabbed 
9 

that straw of immunity to try to save 

himself. That's what he did. And I suggest 

to you that you cannot believe him. You 

can't believe anything that he said.

. . . 

 He said on that witness stand that the 

very first day when he was arrested he was 

concerned about getting himself out of this.

He said on the witness stand yesterday that 

he was trying to help himself, and in order 

to do his job, he even said, "Nothing was 

promised to me," and either he thought better 

of it or felt that he would be entrapped and 

then suddenly he admitted what was promised 

to him. And the Prosecutor would say to you, 

"Yes, I did promise him I'd speak to the 

Judge," but, ladies and gentlemen, the Judge 

is independent, the Judge makes up his own 

mind and, you know, that's true. Sentencing 

is for the Judge. The Prosecutor can't tell 

the Judge what to say. 

 But, ladies and gentlemen, don't you 

think some little weasel who's trying to save 

himself will take those words and, because he 

is so desperate, make those words say things 

that they really did not say, that maybe, 

maybe, this is a chance for me to get out of 

this, . . . 

(Emphasis added.) In his closing statement, the prosecutor 

referred to Shark's sentencing and protective custody: 

Yes, the State called him as a witness but 

what did Melvin Shark expect? I opened to 

you and told you certain things were promised 

to him, yes. What [was] his deal? His big 

deal? His lawyer was present when we 

discussed it. And he explained his answers. 

. . . "I know that the Judge can sentence me 

and I know the Prosecutor doesn't have any 

power over the Judge because the jury found 

me guilty. No plea bargaining. Jury 

verdict, guilty. So the Prosecutor does not 

have the power to recommend anything to the 

Judge anymore in terms of years, months, 

days." So what did he testify for? And this 

is where it's coming out now: Well, what did 

he say was facing him over there in the code, 

a different code, not the code we live by 
10 

here, but in the jail here: Subjected to 

some physical beatings if the word gets out. 

So what did he want from the State? "I want 

protective custody. I'm subject to being 

severely beaten if I testify against another 

defendant." 

(Emphasis added.)0 

 In his final instructions to the jury, the trial judge 

referred only to the immunity part of the agreement and reminded 

the jury the opening and closing statements were not evidence. As 

we have noted, however, the prosecutor, in his opening statement, 

acknowledged he had promised to speak to the sentencing judge on 

 

0At Shark's sentencing hearing, the prosecutor asked for leniency 

for Shark and stressed the critical importance of Shark's 

testimony in obtaining Robinson's conviction: 

Mr. Shark was told by me in all candor that I 

would speak for him in this respect at his 

sentence, that your Honor would note his 

cooperation in testifying against his codefendant and co-defendants. 

. . . 

[W]ithout his testimony, proving the case 

against his codefendant [Robinson] would have 

been difficult, if not impossible . . . 

. . . He should be punished and he will 

be punished . . . , but his cooperation in 

both the trials [of co-defendants] has to be 

noted because we would have not had the 

opportunity to convict the person who 

actually pulled the trigger . . . Maurice 

Robinson; without the help of Melvin Shark, 

albeit to help himself, but in exchange for 

nothing really concrete, Mr. Shark did 

testify, and I think that should be noted to 

the court. 

As we have noted, Robinson and Shark were found guilty of the 

same offenses; however, Robinson was given a longer sentence. For 

the murder, he received a 30 year term with a 15 year mandatory 

minimum, whereas Shark received a 20 year term with a 10 year 

mandatory minimum. Robinson's concurrent term for armed robbery 

was also longer than Shark's. 
11 

Shark's behalf, and the defense attorney, in his closing 

argument, built on that acknowledgement. Therefore, the jury was 

made aware of the terms of the agreement and the defense attorney 

made a strong case for Shark's lack of credibility based on the 

agreement and Shark's conflicting testimony. 

B. 

 Shark's testimony was important for Robinson's 

conviction because only one other witness could place Robinson 

near the scene of the crime and no other witness could testify 

Robinson had taken part in it. We will recite the relevant 

facts. 

 On May 28, 1991, between 1:30 a.m. and 1:45 a.m., the 

night manager of the New Ridgewood Bar in Newark, N.J., Robert 

Conaway, unlocked the doors and admitted Melvin Shark, a customer 

whom he knew by sight, and his male companion. A third man 

waited outside. In addition to Conaway, barmaid Barbara Evans, 

her friend Constance Brooks, and two others were in the bar. 

Shark purchased beer from Evans and asked her for change for the 

cigarette machine. After conferring with his companion at the 

machine, Shark asked her for more change, which she refused. 

Conaway asked Shark and his companion to leave because it was 

almost closing time. When he opened the door, the third man 

appeared, asking if they had gotten the beer. Conaway saw the 

three young men walk away. 

 Approximately five minutes later, Conaway heard 

Benjamin Sanders pounding on the bar door shouting to be let in. 

He said that K.O. Floyd had been shot. Sanders and Floyd, both 
12 

elderly men, had been sitting outside a social club next door to 

the bar. Sanders noticed three young men walk past them and saw 

the first one look at him as they went by. (He later identified 

Shark as that man.) He saw no other people in the area. The 

three young men stopped a short distance past the elderly men and 

had a conversation. Sanders was frightened of the young men; he 

told Floyd they should leave and started to walk toward Floyd's 

car. The young men came back and surrounded the two elderly men. 

When Sanders saw the second of the three young men pull a gun out 

of his pocket, he ran to the New Ridgewood Bar and pounded on the 

door. At that time, he heard Floyd call for help and heard a 

shot. Just before Conaway opened the door, Sanders turned around 

and saw Floyd lying in the street and the three men running away. 

Floyd died of his wounds. 

 Some two years after the shooting, Sanders was talking 

to a friend in front of the same social club when he noticed 

someone staring at him. After seeing the same man on several 

other occasions, he recognized him as one of the three men 

involved in Floyd's murder. He contacted the police and Shark 

was arrested. Shark admitted being present at the murder, but 

denied firing the gun. He identified the other two men with him 

as Maurice Robinson and Robinson's brother Charles (a minor at 

the time of the murder). 

 At Maurice Robinson's trial, neither Sanders nor the 

bar manager, Conaway, could identify Maurice Robinson as someone 

he had seen on the night of the murder. But Constance Brooks, 
13 

the bar patron, testified she recognized Maurice Robinson as one 

of the two men who had purchased beer before the shooting.0 

 Shark testified to the following: that night, he met 

the Robinson brothers near his residence and went with them to 

the bar; he and Maurice Robinson went in to buy beer while 

Charles Robinson waited outside; when leaving the bar, they saw 

two men outside a social club; they walked past the men, with 

Shark in the lead, and slowed down; Shark heard sounds behind 

him, scuffling, a shout, and a gun shot; he turned and saw one of 

the men fall down; Maurice Robinson was standing a few feet away 

with a gun in his hand; Shark picked up some money lying next to 

the fallen man and fled with his companions; he gave half the 

money to Maurice Robinson and went home. 

DISCUSSION

A. 

 In a habeas corpus petition, if the district court 

held an evidentiary hearing, we review its findings of fact for 

clear error, Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir. 1989), 

cert. denied, 493 U.S. 1036 (1990), but if it relied on the state 

court record, our review is plenary. Zettlemoyer v. Fulcomer, 

923 F.2d 284, 291 (3d Cir.), cert. denied, 112 S.Ct. 280 (1991); 

Reese v. Fulcomer, 946 F.2d 247, 253-54 (3d cir. 1991), cert.

denied, 112 S.Ct. 1679 (1992). In this case, the district court 

 

0Conaway identified Shark whom he knew by sight as a patron of 

the bar, but he could not identify Robinson. Constance Brooks 

identified both Shark and Robinson, although she had not known 

either of them before; her visual memory may been better than 

Conaway's because she was an artist. Barbara Evans, the barmaid, 

was not called to identify the men; she died at about the time 

they were apprehended. 
14 

did not hold an evidentiary hearing, so our review is plenary. We 

review the trial record de novo, as did the district court. 

B. 

 A defendant's right to due process is implicated when 

the state obtains a conviction based upon testimony the state 

knows is perjured. Napue v. Illinois, 360 U.S. 264, 269 (1959); 

Giglio v. United States, 405 U.S. 150, 153-55 (1972). In Napue

and Giglio, the prosecution made agreements with witnesses in 

exchange for their testimony. Both witnesses falsely denied the 

existence of the agreements, and the prosecutors failed to 

correct their perjured testimony. 

 In Napue, the Court held a conviction is obtained 

through the use of false evidence, and therefore violates the 

Fourteenth Amendment, when the state, "although not soliciting 

false evidence, allows it to go uncorrected when it appears." 360 

U.S. at 269. The Court elaborated: 

 The principle that a State may not 

knowingly use false evidence, including false 

testimony, to obtain a tainted conviction, 

implicit in any concept of ordered liberty, 

does not cease to apply merely because the 

false testimony goes only to the credibility 

of the witness. The jury's estimate of the 

truthfulness and reliability of a given 

witness may well be determinative of guilt or 

innocence, and it is upon such subtle factors 

as the possible interest of the witness in 

testifying falsely that a defendant's life or 

liberty may depend. 

Id. 

 In Giglio, the government's case depended almost 

entirely on the testimony of a witness whom the government 

promised it would not prosecute if he testified. The trial 
15 

prosecutor had not himself made the agreement and was unaware of 

it, but the Court charged him with knowledge of the agreement 

made by his predecessor. The Court held that because the 

evidence was relevant to the jury's assessment of the credibility 

of the witness, a new trial would be required if "'the false 

testimony could . . . in any reasonable likelihood have affected 

the judgment of the jury . . . '" Giglio, 405 U.S. at 154, 

(quoting Napue, 360 U.S. at 271) (alteration in original). Both 

Giglio and Napue embody the rule that the state's knowing use of 

perjured testimony to obtain a conviction is constitutional 

error, but that does not automatically entitle petitioner to 

relief. The court must also decide the error is not harmless. 

 The Supreme Court has distinguished two kinds of 

constitutional error at trial: structural error and trial error. 

A structural error compromises the entire trial; it requires 

reversal because it involves a deprivation of a constitutional 

protection so basic that in its absence, "'a criminal trial 

cannot reliably serve its function as a vehicle for determination 

of guilt or innocence, and no criminal punishment may be regarded 

as fundamentally fair.'" Arizona v. Fulminante, 499 U.S. 279, 

310 (1991) (citation omitted). Examples of structural error are 

a biased judge, Tumey v. Ohio, 273 U.S. 510 (1927), or the denial 

of trial counsel, Gideon v. Wainwright, 372 U.S. 335 (1963). A 

trial error is one which "occurred during the presentation of the 

case to the jury, and which may therefore be quantitatively 

assessed in the context of other evidence presented in order to 

determine whether its admission was harmless . . . ." Fulminante, 
16 

499 U.S. at 307-08. Examples of constitutional trial error are 

jury instructions misstating an element of the offense, Rose v. 

Clark, 478 U.S. 570 (1986), or improper comment on defendant's 

silence at trial, U.S. v. Hasting, 461 U.S. 499 (1983). 

Structural error cannot be harmless; trial error can be. 

Fulminante, 499 U.S. at 310. The error in this case was trial 

error. The testimony must therefore be assessed in the context 

of the other evidence to determine whether its admission was 

harmless. 

 A prosecutor's agreement to speak to the sentencing 

judge on a witness's behalf in return for the witness's testimony 

is especially likely to create an issue of credibility. As the 

United States Court of Appeals for the Fourth Circuit noted: 

[R]ather than weakening the significance for 

credibility purposes of an agreement of 

favorable treatment, tentativeness may 

increase its relevancy. This is because a 

promise to recommend leniency (without 

assurance of it) may be interpreted by the 

promisee as contingent upon the quality of 

the evidence produced -- the more uncertain 

the agreement, the greater the incentive to 

make the testimony pleasing to the promisor. 

Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976), cert.

denied, 430 U.S. 959 (1977). 
17 

C. 

 Until recently, the standard for assessing harmless 

error on both direct and collateral review was whether it 

appeared "beyond a reasonable doubt that the error complained of 

did not contribute to the verdict obtained." Chapman v. 

California, 386 U.S. 18, 24 (1967). Under Chapman, the burden of 

proving an error harmless rested with the state. Id. 

 In Brecht v. Abrahamson, 113 S.Ct. 1710 (1993), the 

Court announced a new standard for harmless error on collateral 

review: whether, in light of the record as a whole, the error 

resulted in "actual prejudice" to the defendant. Brecht 113 

S.Ct. at 1722. Actual prejudice occurs when the constitutional 

error "'had substantial and injurious effect or influence in 

determining the jury's verdict.'" 113 S.Ct. at 1722 (quoting 

Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Kontakis 

v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994). 

 By introducing a more deferential standard on 

collateral review, the Court emphasized that historically the 

writ of habeas corpus has been regarded as an extraordinary 

remedy to afford relief for grievous wrongs. Brecht, 113 S.Ct. 

at 1719. It reasoned that "'[f]ederal intrusions into state 

criminal trials frustrate both the States' sovereign power to 

punish offenders and their good-faith attempts to honor 

constitutional rights,'" id. at 1720 (quoting Engle v. Issac, 

456 U.S. 107, 128 (1982)), and stated that liberal allowance of 

the writ "'degrades the prominence of the trial itself,'" id. at 

1720-21 (quoting Engle, 456 U.S. at 127), and encourages habeas 
18 

petitioners to relitigate their claims on collateral review, id.

at 1721. Thus, considerations of federalism and comity, the 

state's interest in finality of convictions that have survived 

direct review, and the social costs of retrying defendants years 

after the original conviction outweigh any additional effect the 

Chapman standard would have in deterring state courts from 

failing to fully enforce constitutional rights. Id. at 1721-22. 

 The new standard, announced in Brecht and derived from 

Kotteakos, does not require a showing that "but for" the error 

the jury would have rendered a verdict in favor of defendant. 

Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir. 1993) (citing 

Kotteakos, 328 U.S. at 763). Nor is it relevant whether the 

reviewing court is persuaded the defendant is guilty. The court 

must stand in the shoes of the jury.0 Id. at 714. The question 

 

0As the Court in Kotteakos explained, the issue is not whether 

the jurors were 

right in their judgment, regardless of the 

error or its effect upon the verdict. It is 

rather what effect the error had or 

reasonably may be taken to have had upon the 

jury's decision. The crucial thing is the 

impact of the thing done wrong on the minds 

of other men, not on one's own, in the total 

setting. 

 This must take account of what the error 

meant to them, not singled out and standing 

alone, but in relation to all else that 

happened. And one must judge others' 

reactions not by his own, but with allowance 

for how others might react and not be 

regarded generally as acting without reason. 

This is the important difference, but one 

easy to ignore when the sense of guilt comes 

strongly from the record. 
19 

it must consider is: Did the constitutional error "substantially 

[and injuriously] influence" the verdict? Id. at 765. If so, 

the petitioner is entitled to habeas relief. 

 In addition to announcing a new standard, the Brecht

Court shifted the burden of proof to the petitioner. The Court 

noted that, under Chapman, the state bore the burden of proving 

harmless error beyond a reasonable doubt. Brecht, 113 S.Ct. at 

1717. Under the new standard for collateral review, 

"[petitioners] are not entitled to habeas relief based on trial 

error unless they can establish that it resulted in 'actual 

prejudice.'" Id. at 1722 (citing United States v. Lane, 474 U.S. 

438, 449 (1986)).0

 

Brecht, 113 S.Ct. at 1724 (Stevens, J., concurring) (quoting 

Kotteakos, 328 U.S. at 764 (citation omitted)). 

0Justice Stevens, concurring, wrote separately to set forth his 

understanding that the Court, in adopting the Kotteakos standard, 

also adopted the Kotteakos Court's placing the burden on 

prosecutors to prove harmless error (113 S.Ct at 1723-24). The 

language of the opinion, however, clearly puts the burden on the 

habeas petitioner, not on the state. Most courts of appeals that 

have applied the new Brecht standard have assumed or stated that 

the burden of proof is on the petitioner. Kyles v. Whitley, 5 

F.3d 806, 818 (5th Cir., 1993); O'Neal v. Morris, 3 F.3d 143, 145 

(6th Cir. 1993); Tague v. Richards, 3 F.3d 1133, 1140 (7th Cir. 

1993); Henry v. Estelle, 993 F.2d 1423, 1427 (9th Cir. 1993); 

Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th cir. 1993); Castillo 

v. Stainer, 997 F.2d 669, 669 (9th cir. 1993). Some do not 

discuss who has the burden. Vanderbilt v. Collins, 994 F.2d 189 

(5th cir. 1993); Duest, 997 F.2d 1336 (11th Cir. 1993). A few 

quote a concurring or dissenting opinion in Brecht saying the 

state bears the burden, but do not explicitly adopt that view. 

Lowery v. Collins, 996 F.2d 770, 773 (5th Cir. 1993) (quoting 

Stevens, J., concurring); Smith v. Dixon, 996 F.2d 667, 677 n.13 

(4th Cir. 1993) (quoting White, J., dissenting). Only one 

opinion states outright that the state has the burden, Stoner v. 

Sowders, 997 F.2d 209, 213 (6th Cir. 1993), and a later opinion 

by the same court stated that the burden is on the petitioner 

without referring to the earlier opinion. O'Neal v. Morris, 3 

F.3d at 145. 
20 

 Robinson notes an exception to the Brecht rule, set 

forth in a footnote in that case. Declaring that the Kotteakos

harmless-error standard applies with constitutional error "of the 

trial type," the Court noted: 

 Our holding does not foreclose the 

possibility that in an unusual case, a 

deliberate and especially egregious error of 

the trial type, or one that is combined with 

a pattern of prosecutorial misconduct, might 

so infect the integrity of the proceeding as 

to warrant the grant of habeas relief, even 

if it did not substantially influence the 

jury's verdict. 

Brecht, 113 S.Ct. at 1722 n.9. Robinson contends the error in 

this case is of such magnitude that it constitutes an exception 

to the new rule. He argues that in these circumstances, we 

should resort to the standard of United States v. Agurs, 427 U.S. 

97 (1976), where the Court stated, "[A] conviction obtained by 

the knowing use of perjured testimony is fundamentally unfair, 

and must be set aside if there is any reasonable likelihood that 

the false testimony could have affected the judgment of the 

jury." Id. at 103 (footnotes omitted). 

 Robinson would have us apply the "reasonable 

likelihood" standard of Agurs rather than the "substantial and 

injurious effect" standard of Brecht, and he cites pre-Brecht

cases evaluating "materiality" in the context of prosecutorial 

misconduct and applying the pre-Brecht "reasonable likelihood" 

standard of harmless error. Landano v. Rafferty, 856 F.2d 569 

(3d Cir. 1988), cert. denied, 489 U.S. 1014 (1989) (habeas 

appeal); Brown v. Wainwright, 785 F.2d 1457 (11th cir. 1986) 
21 

(habeas appeal); United States v. Wallach, 935 F.2d 445 (2d Cir. 

1991) (direct appeal). Regardless whether the Agurs standard 

still retains any vitality in habeas cases after Brecht, we do 

not find the error in this case warrants a departure from the 

Brecht standard. 

 There is little doubt the prosecutor should have 

corrected the perjured testimony of his witness. This was the 

duty of the prosecutor, not the defense attorney. Giglio, 405 

U.S. at 154; United States v. Harris, 498 F.2d 1164, 1169 (3d 

Cir.), cert. denied, 419 U.S. 1069 (1974). Nonetheless, when it 

became clear that the prosecutor had not corrected the perjured 

testimony, the defense attorney could have alerted the judge and 

sought a remedy that would have eliminated any possibility of 

prejudice to his client, such as a stipulation or an instruction 

on the details of the agreement. Instead, the defense attorney 

sought to counter the misleading impression through crossexamination and closing argument. Although we agree with 

Robinson that his attorney did not waive the error by failing to 

call it to the attention of the court, an error which the defense 

attorney could have corrected at trial is not likely "to infect 

the integrity of the proceeding . . . ." Brecht, 113 S.Ct. at 

1722 n.9. 

 The prosecutor must be charged with the error because 

he failed to take advantage of opportunities on direct and redirect examination to correct the perjured testimony. But the 

error was neither deliberate nor planned; in his opening 

statement, the prosecutor referred to all aspects of the 
22 

agreement: immunity, protective custody, and the promise to 

inform the sentencing judge of Shark's cooperation. Presumably, 

neither counsel knew the perjured testimony would occur, and both 

knew as soon as it did occur, as did the trial judge.0 We 

conclude the error was neither a "deliberate and especially 

egregious error of the trial type, [n]or one that is combined 

with a pattern of prosecutorial misconduct" that "might so infect 

the integrity of the proceeding as to warrant the grant of habeas 

relief, even if it did not substantially influence the jury's 

verdict." Brecht, 113 S.Ct. at 1722 n.9. Therefore, we will 

apply the Brecht standard to determine whether petitioner has 

shown the error "'had substantial and injurious effect or 

influence in determining the jury's verdict.'"0 Id. at 1722 

(quoting Kotteakos, 328 U.S. at 776). 

 The district court emphasized the jury knew Shark 

testified under an agreement with the state by which he would 

benefit and that there was ample evidence to assess Shark's 

credibility. It cited the following evidence: 

The jury was aware that Shark was a convicted 

felon who had perjured himself at his own 

trial. Furthermore, it is apparent from the 

 

0 At oral argument, Robinson's counsel acknowledged that at 

trial, both attorneys and the trial judge knew what was in the 

agreement between Robinson and the state. 

0The standard we apply is not the same standard the district 

court used. The district court's opinion, which came out before 

Brecht, presumably used the Chapman standard when it denied the 

petition. If it had applied the new Brecht standard, which is 

less favorable to the habeas petitioner, it certainly would have 

denied the petition also. That does not matter to our review, 

however, because we look at the record de novo in reviewing the 

district court's denial of petitioner's habeas petition. 
23 

record that the jury was apprised of Shark's 

conflicting testimony at Robinson's trial. 

Shark at one point denied that he had been 

promised immunity and protective custody in 

exchange for his [testimony], yet he later 

admitted to these facts. 

 In bringing out this agreement under 

direct and cross-examination, both the 

prosecution and the defense conveyed to the 

jury that Shark was testifying subject to an 

agreement with the State from which he would 

benefit. The defense attorney questioned 

Shark regarding this agreement in an effort 

to impeach his credibility. With all of 

these factors relating to Shark's credibility 

before the jury, this Court finds that there 

is no reasonable likelihood that Shark's 

perjured testimony regarding the agreement 

with the State could have affected the 

judgment of the jury. 

 Robinson contended at oral argument that the evidence 

that Shark was a convicted felon who had perjured himself at his 

own trial is qualitatively different from the evidence the 

prosecutor improperly withheld. We agree a jury's knowledge that 

a witness has just lied about what he stands to gain from 

testifying is generally more damaging to his credibility than the 

knowledge that he has lied in the past. 

 In this case, however, the jury knew Shark had lied to 

it about what he stood to gain from the agreement as a whole. 

First, he denied he had been promised anything at all; then, on 

cross-examination, he admitted he had been promised immunity; 

finally, on re-direct, he admitted he had been promised 

protective custody. Significantly, unlike the prosecutors in 

Napue and Giglio, the prosecutor here, in his opening statement, 

acknowledged his promise to tell the sentencing judge of Shark's 
24 

cooperation. The defense attorney built on that acknowledgment 

in arguing Shark was not a credible witness. We think it 

unlikely that further evidence Shark was misrepresenting the 

agreement would have changed the jury's evaluation of his 

testimony. 

 The crucial inquiry is whether, under Brecht, Robinson 

has shown the error "had substantial and injurious effect or 

influence in determining the jury's verdict." As we have noted, 

in determining the effect of this trial error, which "occurred 

during the presentation of the case to the jury," we must assess 

it "in the context of other evidence presented in order to 

determine whether its admission was harmless." Fulminante, 499 

U.S. at 308. We conclude there was sufficient evidence to 

undermine Sharks' credibility. The evidence of the prosecutor's 

promise to tell the sentencing judge of Shark's cooperation would 

have added only incrementally to the evidence presented on the 

agreement and Shark's credibility. 

 The prosecutor had a duty to correct the perjured 

testimony of his witness. In these circumstances, however, we 

agree with the district court that the error was harmless. We 

conclude the absence of the evidence of the prosecutor's promise 

to speak to the sentencing judge did not result in "actual 

prejudice" because it did not have "substantial and injurious 

effect or influence in determining the jury's verdict." 

CONCLUSION

 For the foregoing reasons, we will affirm the district 

court's denial of the writ of habeas corpus. 
25 
26 

Robinson v. Arvonio, No. 92-5667 

POLLAK, District Judge (dissenting). 

I. 

 When Melvin Shark -- the state's principal witness against Maurice Robins

was sentenced for his part in the killing of K. O. Floyd, the prosecutor told the 

sentencing judge: 

That will bring us around to what, in fact, Mr. Shark was told by me 

in all candor that I would speak for him in this respect at his 

sentence, that Your Honor would note his cooperation in testifying 

against his codefendant and codefendants. 

. . . . 

. . . [Y]our Honor, it is true that without his testimony proving the 

case against his codefendant would have been difficult, if not 

impossible. . . . 

. . . [H]is cooperation in both the trials has to be noted because we 

would not have had the opportunity to convict the person who actually 

pulled the trigger on Mr. Kayo Floyd, and that was Maurice Robinson, 

without the help of Melvin Shark, albeit to help himself. . . . 

At the trial of Maurice Robinson, the prosecutor had in his opening state

informed the jury that Melvin Shark "was told, and the extent of any promise made t

when his sentence came, his cooperation would be made known to the sentencing judge 

deal in terms of time, years, anything like that." But when the prosecutor put Sha

the stand, he did not elicit from his star witness confirmation of the bargain he h

the jury about. And when, on cross-examination, defense counsel inquired about the 

bargain, Shark denied -- falsely, and under oath -- that any such bargain had been 

Q. Is it not a fact, sir, that the prosecutor promised you that if 

you would get on that stand and testify today for the State against 

Mr. Robinson, they would tell the Judge of your cooperation? 
27 

A. Well, he didn't promise me he'd talk to the Judge about that. 

Q. He didn't say that? 

A. He didn't promise me he'd go back in and talk to the Judge and 

tell him I cooperated. Was nothing promised to me. 

Q. And that's the truth? 

A. Yes. Only thing was promised to me was I'd be taken care of. 

Being "taken care of," Shark testified, meant "protective custody." Later, Shark a

acknowledged that he was promised immunity with respect to his testimony against Ro

-- "if I say anything today in this courtroom, it wouldn't be used against me . . . 

But Shark never recanted his perjured denial that the prosecutor had promised that 

[Shark's] sentence came, his cooperation would be made known to the sentencing judg

 Defense counsel, in his closing, undertook to remind the jury that the 

prosecutor had, in his opening, described a promise made to Shark -- a promise that 

on the witness stand, denied the existence of, and about which there was no other 

testimony. The prosecutor, in his closing, did not tell the jury that Shark's deni

a bargain had been struck was perjury. Instead, the prosecutor, in his closing, re

the bargain: 

Yes, the State called him as a witness but what did Melvin Shark 

expect? I opened to you and told you certain things were promised to 

him, yes. What [was] his deal? His big deal? His lawyer was present 

when we discussed it. And he explained his answers. . . . "I know 

that the Judge can sentence me and I know the Prosecutor doesn't have 

any power over the Judge because the jury found me guilty. No plea 

bargaining. Jury verdict, guilty. So the Prosecutor does not have 

the power to recommend anything to the Judge anymore in terms of 

years, months, days." So what did he testify for? And this is where 

it's coming out now: Well, what did he say was facing him over there 

in the code, a different code, not the code we live by here, but in 

the jail here: Subjected to some physical beatings if the word gets 

out. So what did he want from the State? "I want protective custody. 

I'm subject to being severely beaten if I testify against another 

defendant." 

II. 
28 

The court acknowledges that "[t]he prosecutor had a duty to correct the p

testimony of his witness" -- a duty the prosecutor elected not to fulfill. The cou

concludes, nonetheless, that Maurice Robinson is not entitled to the curative writ 

habeas corpus because the prosecutor's "error was harmless." Why was the error har

Because "[t]he evidence of the prosecutor's promise to tell the sentencing judge of 

Shark's cooperation would have added only incrementally to the evidence presented o

agreement and Shark's credibility." Therefore, the court reasons, the error cannot 

to have "'had substantial and injurious effect or influence in determining the jury

verdict.'" Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v

United States, 328 U.S. 750, 776 (1946)). 

 I am unable to agree. 

As the prosecutor, in his closing, elected to reshape the bargain he had 

with Shark, the "promise made to him 

. . . [that] his cooperation would be made known to the sentencing judge" faded awa

was replaced by another promise: "So what did he want from the State? 'I want prot

custody. I'm subject to being severely beaten if I testify against another defendan

Of course Shark wanted protective custody. Protective custody was not, h

an end in itself. Shark wanted protective custody so that he could give testimony 

Robinson with little risk of reprisal from other inmates. Indeed, Shark would have 

need for protective custody -- or for immunity from adverse use of his testimony --

Shark not decided to comply with the prosecutor's proposal that he testify against 

Robinson in exchange for the prosecutor's undertaking to tell the sentencing judge 

Shark's cooperation. In short, the prosecutor's promise to speak to the sentencing 

on Shark's behalf was the real quid for the quo of Shark's testimony. And to do wh

prosecutor did -- to lead the jury to focus on the promise of protective custody as 

centerpiece of what Shark "want[ed] from the State" -- was to draw the jury away fr

Shark's paramount, and perjuriously denied, objective in testifying against Robinso
29 

applying cosmetics to Shark's perjured testimony, the prosecutor beclouded defense 

counsel's efforts to show the jury the true magnitude of Shark's incentive to give 

testimony pleasing to the prosecutor. 

 In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court review

state court murder conviction in which the trial judge refused to permit defense co

to elicit, on cross-examination of an important prosecution witness, the fact that 

criminal charge against him -- being drunk on a highway" "had been dropped in excha

his promise to speak with the prosecutor about the murder." Id. at 676. The Court

speaking through Justice Rehnquist, agreed with the Delaware Supreme Court that the 

judge's ruling contravened the accused's rights under the Confrontation Clause, sin

prevented him "from engaging in otherwise appropriate cross-examination designed to 

prototypical form of bias on the part of the witness, and thereby 'to expose to the 

the facts from which jurors . . . could appropriately draw inferences relating to t

reliability of the witness.'" Id. at 680.0

 In Delaware v. Van Arsdall the constitutional error was, of course, unint

In the case at bar, the action of the prosecutor -- compounding his chief witness' 

-- was advertent. And it was calculated to obscure from the jury's view the major 

what the jury might have deemed "a prototypical form of bias." Accordingly, I cann

agree with the court that the truth, which the prosecutor helped Shark to hide, "wo

have added only incrementally to the evidence presented on the agreement and Shark'

credibility." With matters in this posture, I do not share the court's confidence 

the prosecutor's conduct did not have "'substantial and injurious effect or influen

determining the jury's verdict.'" Brecht v. Abrahamson, 113 S. Ct. at 1722. Presu

 

0In Delaware v. Van Arsdall, the Delaware Supreme Court had concluded that the tria

court's erroneous ruling required reversal of the conviction. The Supreme Court va

the Delaware Supreme Court's judgment, remanding for a determination whether the er

ruling was harmless beyond a reasonable doubt, the pre-Brecht standard. 
30 

it was the prosecutor's intention that his conduct would have exactly such "influen

determining the jury's verdict." 

 Therefore, I dissent.