PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 15-3427

________________

VANCE HASKELL,

Appellant

v.

SUPERINTENDENT GREENE SCI;

ATTORNEY GENERAL PENNSYLVANIA;

DISTRICT ATTORNEY ERIE COUNTY

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 1-10-cv-00149)

District Judge: Honorable Susan Paradise Baxter

________________

Argued March 27, 2017

Before: AMBRO, VANASKIE, and 

RESTREPO, Circuit Judges

(Opinion filed August 1, 2017)
2

Lisa B. Freeland, Esquire

 Federal Public Defender

Elisa A. Long, Esquire (Argued)

 Assistant Federal Public Defender

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Mark W. Richmond, Esquire (Argued)

Erie County Office of District Attorney

140 West 6th Street

Erie, PA 16501

Counsel for Appellee

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

A gunman murdered Darrell Cooley in a bar in Erie, 

Pennsylvania, in December 1994. Nearly four years later, the 

Commonwealth of Pennsylvania indicted and tried Vance 

Haskell for Cooley’s murder. The primary issue at the trial was 

whether Haskell was the gunman. In addition to circumstantial 

evidence linking Haskell to the murder, the Commonwealth

presented four eyewitnesses. But one of these eyewitnesses

recanted his pre-trial testimony implicating Haskell and two 

had previously denied that they would be able to identify the 

shooter. The fourth eyewitness, Antoinette Blue, did provide 
3

consistent testimony claiming she could identify the shooter. 

What’s more, she claimed to expect nothing in return from the 

Commonwealth in exchange for her testimony. But this last 

claim was untrue. Both Blue and the prosecutor knew that she 

expected to receive help in her own pending criminal matters 

in exchange for her testimony. The prosecutor failed to correct 

Blue’s statement; he even went on to rely on it and vouch for 

Blue in his closing argument. 

Haskell filed a habeas petition challenging his 

conviction as tainted by perjured testimony in violation of his 

Fourteenth Amendment right to due process. We must decide 

whether Haskell is entitled to relief once he has shown a 

reasonable likelihood the false testimony could have affected 

the judgment of the jury, Giglio v. United States, 405 U.S. 150, 

154 (1972) (citing Napue v. Illinois, 360 U.S. 264, 271 (1959)), 

or whether he must also show Blue’s perjured testimony 

caused him “actual prejudice” under the standard in Brecht v. 

Abrahamson, 507 U.S. 619, 637–38 (1993). We hold that 

Brecht does not apply when the State has knowingly presented 

or failed to correct perjured testimony. In those circumstances 

a petitioner carries his burden when he makes the reasonable 

likelihood showing required by Giglio and Napue. Because 

Haskell has done so here, we grant his petition.

I. BACKGROUND

In the early hours on December 10, 1994, a man entered

a bar called Jethroe’s Steakhouse in Erie, Pennsylvania with a

semiautomatic weapon (described at trial as an “Uzi”) and 

opened fire. He shot roughly 14 times, killing Darrell Cooley

and wounding Kevin Twillie. The shooter fled the scene with 

another man, Curtis Mathis.

Mathis was convicted in November 1995 for his role in 

these crimes (two counts of hindering apprehension of the 
4

shooter). He did not identify the shooter and received three to 

seven years in prison.

A year into his sentence, Mathis, hoping that his 

cooperation would result in parole, communicated with

Detective Sergeant James Skindell to cooperate in the ongoing 

investigation to identify the shooter. He provided a videotaped 

statement in which he named Vance Haskell (whom Mathis 

also called “Hakeem”) as the shooter. Haskell was charged 

with Cooley’s murder, aggravated assault of Twillie, unlawful 

carrying of a firearm, and several related crimes in November 

1997. His trial began ten months later.

As noted, the primary issue at trial was the identity of 

the shooter. The Commonwealth’s prosecutor, Matthew R. 

Hayes, presented testimony from over 40 witnesses; only 

four—Mathis, Roseanna Wayne, Dorothea Roberts, and

Blue—ever claimed to be able to identify Haskell as the 

shooter, and all except Blue had denied—either at trial or 

before—that they could do so.

A. Trial Testimony

Haskell is from Rochester, New York, but the 

Commonwealth presented evidence that he was in Erie, 

Pennsylvania around the time of the murder. Felicia Clark 

testified that Haskell and Mathis had been staying at her Erie 

apartment in Franklin Terrace in the weeks leading up to the 

shooting. The two drove from Rochester to Erie with Clark’s 

brother, and evidence suggests that he drove Haskell away 

from Erie between December 9th and 11th: Clark’s uncle

testified at trial that he had loaned his car to her brother on 

December 9, 1994; when he got it back two days later, it had 

been driven 586 miles, and police later matched to Haskell 

fingerprints on beer bottles left in the car.
5

Nine witnesses testified that the unknown shooter was 

wearing a puffy coat; although two of them recalled the coat 

being blue or black in color, the other seven described it as 

green. Eight witnesses testified that Mathis and an unidentified 

shooter were in Jethroe’s together and fled after the shooting.

One man who was in the parking lot during the shooting

testified that he saw Mathis and Haskell running toward the 

alley behind Jethroe’s. He noted that Haskell was wearing a 

“big fluffy jacket.” Also, three witnesses testified that Mathis 

and someone else took a cab to Franklin Terrace. One of them 

was the cab driver, although his only recollection was of 

picking up two black men from Red’s Tavern, which is not far 

from Jethroe’s. A resident of Franklin Terrace picked Haskell 

out of a photo line-up and said he had been at her home after 

the shooting.

Two witnesses testified they previously saw Haskell 

with a gun similar to the firearm recovered in an alley near 

Jethroe’s. One said that he had seen Haskell several times at

Felicia Clark’s home with “a nine-millimeter pistol, 380 

automatic, an Uzi, like, type machine gun.” J.A. 745. He also 

identified the recovered Uzi as the gun he saw Haskell 

carrying. The other testified that she had seen Haskell with a 

black firearm “slightly bigger than your average handgun” four 

days before the shooting and that he was wearing a green down 

coat at that time. Id. at 683.

In sum, these witnesses placed Haskell in Erie near 

Jethroe’s around the time of the shooting and put two key items 

associated with the shooter in his possession: a large gun and a 

green, fluffy jacket. But none of them saw Haskell shoot the 

victims.

Four individuals presented eyewitness testimony of the 

shooting. But each witness’s testimony came with a few 

problems for the prosecution.
6

The first, Mathis, who had put the Commonwealth on 

Haskell’s trail and had already been convicted of assisting the 

shooter’s escape, recanted his previous statements on the stand. 

In Mathis’s videotaped statement, he said that he and Haskell

went to Jethroe’s together that night and, while he did not 

witness the shooting occur, he saw Haskell immediately after 

wearing a green “puffy” coat and holding a smoking gun.

Mathis also stated that he fled the bar with Haskell, that Haskell

threw the gun under a vehicle in an alley and tossed off his 

coat, and that they went to another nearby bar. From there they

got into a cab to head toward Franklin Terrace. In the video 

Mathis was shown a photo line-up and identified Haskell.

But at trial Mathis recanted his videotaped statement 

and testified instead that he was at Jethroe’s at the time of the 

shooting but was not there with Haskell. He claimed he did not 

witness anyone with a gun; he left the bar in a car he drove 

himself and went to a place known as the “Holly” rather than

the Franklin Terrace housing project.1 Mathis agreed that,

when he gave the videotaped statement, his “only concern 

[was] getting out of jail[.]” Id. at 629. He related that he 

reviewed police reports of the murder (of which he had copies 

from his own involvement in the case) in order to tell the police 

and prosecutors what they wanted to hear—that is, what would 

make their case against Haskell.

 

1 The Commonwealth presented a great deal of testimony to 

rehabilitate Mathis’s videotaped testimony. Among the more

important details of his initial story corroborated by other

witnesses were that Mathis and the shooter left the bar together, 

that a gun recovered from under an old truck left for many 

years in the alley near Jethroe’s resembled the gun used by the 

shooter, and that Mathis and another man went to the home of 

Felicia Clark’s neighbor in Franklin Terrace after the shooting.
7

Second, Roseanna Wayne only stated that Haskell’s 

appearance was not inconsistent with that of the shooter. Id. at

348 (“If the hair was down lower, the beard was off the face, 

the mustache was off the face . . . [,] [i]t look [sic] like the 

shooter.”). But earlier in her testimony she said she was not 

sure she could identify the shooter. Id. (“Q. If you saw that 

person again, the person that was doing the shooting, do you 

think you’d recognize that person? A. No. I don’t know.”). At 

other moments in her testimony, Wayne appeared to be more 

confident, id. at 357 (“Sir, he look just like the man.”), but she 

also admitted on cross-examination that she had never seen 

Haskell before the day she testified in court, id. at 357 (“Q.

Never seen Mr. Haskell before today? A. No, sir.”).

The third eyewitness, Dorothea Roberts, testified in 

court that she was at Jethroe’s on the night of the shooting and 

that she saw the shooter. She further testified that Haskell was 

the shooter and identified him in court. However, about three

months after the shooting, Roberts had told Detective Skindell 

that she did not see the shooter. On cross-examination, Roberts 

denied this and said that if Detective Skindell wrote that in his 

report, he must have lied. Roberts also testified that she was 

currently in the Erie County Jail on charges of simple assault. 

Id. at 483.

With three eyewitnesses who each made questionable 

identifications of Haskell, Prosecutor Hayes called Antoinette 

Blue to the stand. She testified that she saw Haskell shoot 

Cooley and had met Haskell before the shooting took place, 

strengthening the power of her identification. As context, Blue

stated that she had seen Haskell around town for a few weeks,

and, 20 minutes before the shooting, she smoked marijuana 

with him, Mathis, Felicia’s Clark’s brother, and a woman 

named Yolanda in Jethroe’s parking lot. That night, Blue did 

not report to the police that she was able to identify the shooter. 
8

She never spoke with the police about the incident until three 

years later in February of 1998.

B. Blue’s Communications with the

Commonwealth

Blue was in the Erie County Jail when she finally spoke

to the police about the shooting. Two warrants brought her 

there. One was issued for a parole violation following her

conviction for disorderly conduct and resisting arrest. The 

second stemmed from her failure to appear for sentencing after 

pleading guilty to a charge of attempted theft.

And Blue had other troubles in Mercer County. She was

arrested there and charged with receiving stolen property, 

criminal conspiracy, unsworn falsification, three misdemeanor 

counts of retail theft, and four summary counts of retail theft. 

It was following this arrest that police transported her to the 

Erie County Jail because of that County’s two outstanding 

warrants. Back in Erie, she reached out to Detective Skindell 

to cooperate in Haskell’s case.

Blue lied when she testified at Haskell’s preliminary 

hearing on March 18, 1998. When asked on cross-examination 

whether she had “any criminal charges pending against [her,]” 

she left out her numerous pending charges in Mercer County 

and responded that she was “just [in jail] on a probation 

violation.” Id. at 79.

Blue also testified adamantly that she never discussed 

with anyone whether cooperating with Haskell’s prosecution 

would help her get out of jail and that “it never occurred to 

[her]” that cooperation might be helpful to her. Id. at 109-10. 

But just two days after testifying at the preliminary hearing, 

Blue received sentences on her parole violations that (despite 
9

having picked up additional charges in Mercer County)

resulted in her release from custody.

Within weeks of the preliminary hearing, Detective 

Skindell informed Mercer County authorities that Blue was a 

cooperating witness in Erie County’s case against Haskell. 

Skindell also told Blue’s Mercer County defense attorney 

about her cooperation, and the attorney responded by sending 

a strongly worded letter to the Mercer County DA demanding 

a favorable outcome on Blue’s pending charges due to her 

cooperation in the Haskell case. Finally, the prosecutor in 

Haskell’s case, Hayes, reached out to the Mercer DA, who 

informed Hayes that the judge in Blue’s case would be told of 

her cooperation at sentencing.2

In September 1998, Blue testified at Haskell’s trial. On 

cross-examination, Haskell’s attorney pointed out that Blue 

was released from jail after she testified at Haskell’s 

 

2

I am aware that Ms. Blue faces a misdemeanor 

retail theft charge in Mercer County. I spoke with 

the prosecutor in that case and he explained he 

had already arrived at a Plea Agreement in her 

case. . . . I also explained that Ms. Blue was 

assisting in this prosecution. He indicated to me 

that this assistance would not alter his approach 

to his prosecution. He indicated he would make 

the assistance known at the time of her 

sentencing in Mercer County. . . . The only 

understanding I am aware of is for Ms. Blue’s 

cooperation. We would make the sentencing 

Judge aware of this cooperation.

J.A. 1720 (Letter From Hayes to Haskell’s Defense Counsel 

dated April 30, 1998).
10

preliminary hearing. But Blue denied that the Erie County 

judge was aware of her cooperation and said that the timing of 

her release was “just a coincidence.” Id. at 522. She also denied 

that she cooperated with the police in exchange for help with 

her criminal matters. When asked on what charges she was in 

jail at the time she communicated with Detective Skindell, 

Blue again mentioned only her probation violation and said 

nothing about her charges in Mercer County.

Haskell’s attorney then asked several questions aimed 

at revealing Blue’s motivation to cooperate.

Q. And did you contact the District Attorney’s 

Office because you wanted some help to get out 

of jail?

A. Get out for what? I wasn’t facing a lot of time, 

what did I need help for?

Q. So you didn’t – this never came into your 

mind that you wanted to get help to get out of 

jail?

A. No. Get out for what?

Id. at 517.

On re-direct, Prosecutor Hayes attempted to dispel the 

notion that Blue had agreed to cooperate in order to receive 

some benefit in her own criminal matters.

Q. . . . Have you been promised anything by us 

to come in here and explain what you just

explained?

A. No.
11

Q. Do you anticipate receiving any consideration 

for it?

A. Do I what?

Q. Do you expect to get something out of 

testifying?

A. No, sir.

Id. at 521.

On re-cross, Blue again insisted that she would receive 

no benefit for testifying.

Q. You didn’t ask anybody to take [your 

testimony] into consideration?

A. No, sir.

Q. You don’t think anybody was aware of that?

A. No, sir.

Id. at 522.

In his closing argument, Prosecutor Hayes ridiculed the 

idea that Blue would benefit from her testimony and vouched 

for her credibility:

Antoinette says that she sees Haskell over at the 

[sic] Felicia Clark’s place. She also sees him out 

in the parking lot, and here she is the one that is 

trying to get all this benefit from this—this 

valuable testimony. And what she says she’s 

doing out there, she’s committing a crime. She’s 
12

smoking marijuana. That should help her pretty 

well.

Id. 1033-34.

So, yes, she gives her statement [three] years 

later; yes, it’s during the time she’s in prison. Is 

it a lie? Of course not. It’s not a lie. . . . She’s not 

a liar, at least not about what happened here. 

And, if she’s not a liar and if her information is 

good, here’s your man.

Id. 1036.

Just over a month after Haskell’s trial, Blue pled guilty 

in her Mercer County case to one count of retail theft and 

unsworn falsification. Before sentencing, Hayes sent the Court 

of Common Pleas of Mercer County a letter in which he 

explained that Blue gave “very important” testimony at 

Haskell’s trial. Id. at 19.

The Mercer County DA recommended a probationary 

sentence. Blue received a suspended sentence of one to four

years in prison with 18 months of probation for the theft charge 

and a sentence of costs only on the unsworn falsification 

charge.

C. Procedural History

At trial Haskell was convicted of first-degree murder, 

unlawful carrying of a firearm, possessing an instrument of 

crime, aggravated assault, and reckless endangerment. He was 

sentenced to life imprisonment plus a 15–30 month period of 

incarceration consecutive to his life sentence.

Haskell pursued his claim that Blue’s testimony 

violated his right to due process in Pennsylvania’s Post 
13

Conviction Relief Act (“PCRA”) Court, which held that his

perjured-testimony challenge was time barred. But once 

Haskell filed his habeas petition with the District Court under 

28 U.S.C. § 2254, the Commonwealth expressly stated in its 

Answer that this claim was not procedurally defaulted and that 

the District Court must review it on the merits. Accordingly, it

considered the merits, and because the PCRA Court had not 

reached them, it reviewed the claim de novo. On appeal, the 

Commonwealth makes no objection to the District Court’s onthe-merits review of Haskell’s perjured-testimony claim.

The District Court held that Blue’s testimony was false 

and that the prosecutor knew or should have known it was.

However, it denied Haskell’s request for relief because he 

failed to show that Blue’s perjured testimony had a substantial 

and injurious effect or influence on the jury’s verdict, which 

the Court believed he was required to demonstrate pursuant to

Brecht, 507 U.S. at 627. Haskell requested, and we granted, a 

certificate of appealability.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction to 

consider Haskell’s petition under 28 U.S.C § 2254, and we 

have jurisdiction to hear his appeal under 28 U.S.C. §§ 1291 &

2253. “Because the District Court did not hold an evidentiary 

hearing and, instead, based its decision on its review of the 

state court record, we apply a plenary standard of review of its 

decision and order.” Branch v. Sweeney, 758 F.3d 226, 232 (3d 

Cir. 2014) (citing Duncan v. Morton, 256 F.3d 189, 196 (3d 

Cir. 2001)).
14

III. ANALYSIS

A. The Reasonable Likelihood Standard

A state violates the Fourteenth Amendment’s due 

process guarantee when it knowingly presents or fails to 

correct false testimony in a criminal proceeding. See Napue, 

360 U.S. at 269; Giglio, 405 U.S. at 153; see also Lambert v. 

Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). Consequently, 

“the [Supreme] Court has consistently held that 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.” United States v. Agurs, 427 

U.S. 97, 103 (1976), holding modified by United States v. 

Bagley, 473 U.S. 667 (1985).

“[T]he same result obtains when the State, although not 

soliciting false evidence, allows it to go uncorrected when it 

appears.” Giglio, 405 U.S. at 153 (quoting Napue, 360 U.S. at 

269); see also Lambert, 387 F.3d at 242. A conviction must be 

set aside even if the false testimony goes only to a witness’s 

credibility rather than the defendant’s guilt. Napue, 360 U.S. at 

270.

The standard of review applicable to perjured testimony 

claims is “strict.” Agurs, 427 U.S. at 104. This is so “not just 

because [those claims] involve prosecutorial misconduct, but 

more importantly because they involve a corruption of the 

truth-seeking function of the trial process.” Id.

Accordingly, in order to establish his claim, Haskell 

must show that (1) Blue committed perjury, (2) the 

Commonwealth knew or should have known that the testimony 

was false, (3) the false testimony was not corrected, and (4) 

there is a reasonable likelihood that the perjured testimony 
15

could have affected the judgment of the jury. Lambert, 387 

F.3d at 242.

Uncontested facts in the record demonstrate that 

Haskell has satisfied the first three elements. Blue lied when 

she testified—both at Haskell’s preliminary hearing and at his 

trial—that she expected nothing in return for her testimony.

She expected and eventually received favorable treatment at 

sentencing for her Mercer County charges. The 

Commonwealth, of course, knew Blue’s testimony was false 

and failed to correct it. Turning to the final inquiry, we 

conclude that there is a reasonable likelihood that Blue’s false 

testimony could have affected the jury’s judgment. Blue was a 

key witness. All the other eyewitnesses had significant

problems with their testimony. Mathis recanted on the witness 

stand and claimed that Haskell was not the shooter. Wayne and 

Roberts had both previously said that they would not be able 

to identify the shooter. Thus Blue, who claimed to have met 

Haskell before the shooting, provided strong evidence that 

Haskell was the shooter. As the Commonwealth put it in its 

closing argument at Haskell’s trial, “this [is] valuable 

testimony.” J.A. 1034. And the Commonwealth’s decision to 

vouch for Blue’s credibility only emphasizes her importance.

Id. at 1036 (“It’s not a lie. . . . She’s not a liar, at least not about 

what happened here. And, if she’s not a liar and if her 

information is good, here’s your man.”).

Given her central role, knowledge of the benefit she 

received in exchange for her testimony—substantial help with 

her own pending criminal charges—poses a reasonable, and 

significant, likelihood of affecting the judgment of the jury. See

Napue, 360 U.S. at 270 (“Had the jury been apprised of the true 

facts . . . it might well have concluded that [the witness] had 

fabricated testimony in order to curry the favor of the very 

representative of the State who was prosecuting the case in 

which [he] was testifying, for [he] might have believed that 
16

such a representative was in a position to implement (as he 

ultimately attempted to do) any promise of consideration.”).

Moreover, the facts of this case are in line with those in 

Napue and Giglio, the cases in which the Supreme Court 

initially articulated when false testimony requires relief. In

Napue, as in Haskell’s trial, a key witness falsely testified “that 

he had been promised no consideration for his testimony, and 

[] the Assistant State’s Attorney handling the case had known 

this to be false.” Napue, 360 U.S. at 267. And much like our 

case, Napue concerned the identification of assailants in a barroom murder that the key witness was in a unique position to 

provide. Id. at 264 (“[The key witness’s] testimony was 

extremely important because the passage of time and the dim 

light in the cocktail lounge made eyewitness identification very 

difficult and uncertain, and because some pertinent witnesses 

had left the state.”). Finally, the benefit for which the Napue

witness had bargained was the same as Blue’s: “a 

recommendation for a reduction of his . . . sentence [in his own 

criminal matter] would be made and, if possible effectuated.”

Id. at 266.

Giglio also involved a witness’s false statement that he 

had been promised nothing in return for his testimony. 405 

U.S. at 152. The witness there was promised immunity from 

prosecution by a government attorney but denied it on the 

stand. Id. And, like our case, the prosecution returned to and 

emphasized the false testimony in its summation of the case. 

Id. The Supreme Court emphasized that “whether the 

nondisclosure was a result of negligence or design, it is the 

responsibility of the prosecutor.” Id. at 154. Recognizing the 

importance of this key witness’s testimony, the Court found 

that his “credibility . . . was therefore an important issue in the 

case, and evidence of any understanding or agreement as to a 

future prosecution would be relevant to his credibility and the 
17

jury was entitled to know of it.” Id. at 154-55. Because this fact 

was kept from the jury, due process required a new trial.

Thus there is little doubt Haskell has met the standard 

set by Napue and Giglio.

B. Brecht

Meeting this standard, however, does not end our

inquiry. Although the Supreme Court has held that the 

Giglio/Napue “materiality” standard discussed above is 

equivalent to the harmless-error standard articulated in 

Chapman v. California, 386 U.S. 18, 24 (1967) (requiring the 

beneficiary—the prosecution—of a constitutional error to 

demonstrate that it was harmless beyond a reasonable doubt),

see Bagley, 473 U.S. at 680 n.93, the Commonwealth contends 

 

3

[It is a] well-established rule that 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. Although this rule is stated 

in terms that treat the knowing use of perjured 

testimony as error subject to harmless-error 

review, it may as easily be stated as a materiality 

standard under which the fact that testimony is 

perjured is considered material unless failure to 

disclose it would be harmless beyond a 

reasonable doubt. The Court in Agurs justified 

this standard of materiality on the ground that the

knowing use of perjured testimony involves 

prosecutorial misconduct, and more importantly, 
18

that Haskell must also meet the separate actual-prejudice 

standard of Brecht, 507 U.S. at 637. It held that when 

constitutional trial errors are raised in habeas proceedings, as 

opposed to on direct review, the petitioner is generally entitled 

to relief only if he can show “actual prejudice.” Id. at 631. This 

occurs when the error had a “substantial and injurious effect or 

influence in determining the jury’s verdict.” Id. (quoting 

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “[I]f a 

judge has ‘grave doubt’ about whether an error affected a jury 

in this way, the judge must treat the error as if it did so.” O’Neal 

v. McAninch, 513 U.S. 432, 438 (1995) (internal quotation 

marks omitted).

Brecht relied on three characteristics of habeas

proceedings to ground the distinction between harmless error 

under Chapman applicable on direct review (putting the 

burden on the prosecution) and the heightened prejudice 

requirement it was announcing for habeas (that is, collateral) 

review (burdening the convicted petitioner seeking relief). 

First, “the State[] [has] [an] interest in the finality of 

convictions that have survived direct review within the state 

court system[,]” which review under Chapman’s harmlessbeyond-a-reasonable-doubt standard would undermine. 

Brecht, 507 U.S. at 635. Second, values of comity and 

federalism favor the Brecht standard because “[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. (citing Engle v. 

Isaac, 456 U.S. 107, 128 (1982)). Third, “liberal allowance of 

 

involves a corruption of the truth-seeking 

function of the trial process.

Bagley, 473 U.S. at 678–80 (internal citations and quotation 

marks omitted).
19

the writ degrades the prominence of the trial itself, and at the 

same time encourages habeas petitioners to relitigate their 

claims on collateral review[.]” Id. (internal citations, quotation 

marks, brackets, and ellipses omitted).

But these concerns do not apply to all constitutional 

errors, and thus, there are a number of exceptions to Brecht’s 

actual-prejudice requirement. The Court recognized in Brecht

itself that structural constitutional errors, like denial of the right 

to counsel, are not subject to harmless-error review. Id. at 630. 

Moreover, it noted 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.” Id. at 638 n.9.

The Court identified another exception in Kyles v. 

Whitley, 514 U.S. 419, 435 (1995), when it held that Brecht’s 

standard does not apply when the state has violated Brady v. 

Maryland, 373 U.S. 83 (1963), by suppressing evidence

favorable to the defendant. The Court explained that it “had 

previously rejected [substantial and injurious effect] as the 

standard governing constitutional disclosure claims[.]” Kyles, 

514 U.S. at 436 (citing Agurs, 427 U.S. at 112). Once a 

petitioner demonstrates “‘a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different,’” the inquiry is over, 

and a petitioner meeting Brecht’s substantial-and-injuriouseffect (or actual-prejudice) standard is unnecessary. Id. at 435 

(quoting Bagley, 473 U.S. at 682).

Like the suppression of evidence, presentation of 

perjured testimony also violates Brady. See Agurs, 427 U.S. at

103 (describing three situations to which Brady applies: (1) the 

government’s knowing presentation of or failure to correct 
20

false testimony; (2) its failure to provide requested exculpatory 

evidence; and (3) its failure to volunteer exculpatory evidence 

never requested). Cf. Bagley, 473 U.S. at 679 n.8 (“In fact, the 

Brady rule has its roots in a series of cases dealing with 

convictions based on the prosecution’s knowing use of 

perjured testimony.”). However, the Court in Kyles, a habeas

case, explicitly declined to consider whether Brecht applies to 

collateral review of convictions tied to knowing use of perjured 

testimony. Kyles, 514 U.S. at 433 n.7 (“[W]e do not consider 

the question whether Kyles’s conviction was obtained by the 

knowing use of perjured testimony and our decision today does 

not address [Brecht’s applicability to] any claim under the first 

Agurs category.”).

Our Court also has not resolved whether Brecht applies 

to cases like the one before us. In a case preceding Kyles, we 

held that the Brecht standard does indeed apply to habeas

petitions alleging a prosecutor’s knowing use of perjured 

testimony. Robinson v. Arvonio, 27 F.3d 877, 885 (3d Cir. 

1994), cert. granted, judgment vacated, 513 U.S. 1186 (1995). 

But the Supreme Court vacated our judgment in Robinson and 

remanded the case for further consideration in light of O’Neal, 

513 U.S. at 438, which clarified the Brecht standard as 

requiring relief when “a judge has grave doubt about whether 

an error” “had substantial and injurious effect or influence 

upon the jury[.]” We, in turn, remanded the case back to the 

District Court and did not hear a subsequent appeal. See Order, 

Robinson v. Arvonio, et al., Case No. 92-5667 (Oct. 10, 1995).

Because an order of the Supreme Court “vacating the judgment 

of the Court of Appeals deprives that court’s opinion of 

precedential effect[,]” County of Los Angeles v. Davis, 440 

U.S. 625, 634 n.6 (1979) (quoting O’Connor v. Donaldson, 

422 U.S. 563, 577–78 n.12 (1975)), we have explicitly 

recognized that Robinson is no longer binding precedent.

Hassine v. Zimmerman, 160 F.3d 941, 960 n.30 (3d Cir. 1998).
21

Thereafter we have discussed (without mention of 

Brecht) the proper standard to apply to habeas petitions 

involving perjured-testimony claims. In Lambert, 387 F.3d at 

242, we noted that when “the prosecution’s case includes 

perjured testimony and the prosecution knew, or should have 

known, of the perjury . . . [or] when the government, although 

not soliciting false evidence, allows it to go uncorrected when 

it appears at trial[,] . . . the conviction must be set aside if there 

is any reasonable likelihood that the false testimony could have 

affected the judgment of the jury.” We went on to quote 

Bagley’s statement that

although this rule is stated in terms that treat the 

knowing use of perjured testimony as error 

subject to harmless error review, it may as easily 

be stated as a materiality standard under which 

the fact that testimony is perjured is considered 

material unless failure to disclose it would be 

harmless beyond a reasonable doubt.

Lambert, 387 F.3d at 242 (quoting Bagley, 473 U.S. at 679).

The implication is that, for perjured-testimony claims raised in 

habeas proceedings, the materiality and harmless-error 

standards are one and the same. Accordingly, Brecht’s 

standard would not apply. But, as noted, Lambert made no 

reference to Brecht. Perhaps this was because it concluded that 

the statements cited were not perjured. See id. at 243, 245, 252 

& 266. In any event, Lambert does not resolve by a holding 

whether habeas petitioners must meet Brecht’s actualprejudice hurdle.

Our sister Circuits are split on the question. Relying on 

Kyles, the Ninth Circuit has rejected application of Brecht to 

perjured-testimony cases. Hayes v. Brown, 399 F.3d 972, 984 

(9th Cir. 2005) (“Even though this case comes to us on habeas

review, we do not conduct an additional harmless error 
22

analysis under Brecht[.]’”). Analogizing to claims brought 

under Strickland v. Washington, 466 U.S. 668 (1984), the 

Ninth Circuit noted that “federal courts do not conduct a 

separate Brecht analysis in ineffective assistance of counsel 

claims.” Id. at 985. Whenever the applicable test is “derived 

from the Agurs materiality standard” (e.g., claims involving 

suppression of evidence, ineffective assistance of counsel, or 

perjured testimony), Brecht does not apply. Id. (“When the 

Supreme Court has declared a materiality standard, as it has for 

this type of constitutional error, there is no need to conduct a 

separate harmless error analysis.”).

The First, Sixth, Eighth, and Eleventh Circuits have 

disagreed, applying Brecht to habeas petitions raising perjured 

testimony claims. See Gilday v. Callahan, 59 F.3d 257, 268 

(1st Cir. 1995); Rosencrantz v. Lafler, 568 F.3d 577, 587-90

(6th Cir. 2009); United States v. Clay, 720 F.3d 1021, 1026-27 

(8th Cir. 2013); Trepal v. Sec’y, Florida Dep’t of Corr., 684 

F.3d 1088, 1111–13 (11th Cir. 2012).

The First Circuit, which issued its decision prior to the 

Ninth Circuit’s ruling in Hayes, reasoned that “[a]pplying th[e] 

[reasonable-likelihood] standard in most cases involving 

perjury or its equivalent will likely result in a finding of 

constitutional error.” Gilday, 59 F.3d at 268. “Scaling that 

lower materiality hurdle, however, still will leave the petitioner 

facing the Brecht harmless error inquiry into whether the 

perjured testimony in fact had a substantial and injurious effect 

or influence on the jury’s verdict.” Id. Brecht does not apply to 

evidentiary-withholding claims, by contrast, because those

claims already require “a court to find an impact on the jury 

verdict sufficiently substantial to satisfy the Brecht harmless 

error test.” Id.

The Sixth Circuit agreed with the First and rejected the 

Ninth Circuit’s intervening opinion, asserting that the Hayes
23

Court “erred in failing to distinguish false-testimony claims

from Brady withholding claims.” Rosencrantz, 568 F.3d at

590. The Eleventh Circuit followed suit three years later. 

Trepal, 684 F.3d at 1113 (holding Brecht applied because “the 

more lenient Giglio materiality standard leaves room for the 

possibility that perjured testimony may be material under 

Giglio but still be harmless under Brecht”).

Four years after Rosencrantz, the Eighth Circuit joined 

the majority, applying Brecht because “the materiality standard 

for false testimony is lower, more favorable to the defendant, 

and hostile to the prosecution as compared to the standard for 

a general Brady withholding violation.” Clay, 720 F.3d at 1026 

(internal quotation marks and citation omitted).

We favor—and therefore adopt—the Ninth Circuit’s 

approach. As that Court recognized, Kyles suggests that for the 

three types of due-process violations discussed in Agurs there 

is no need to perform a separate harmless-error analysis under 

Brecht. Hayes, 399 F.3d at 985 (citing Kyles, 514 U.S. at 436). 

This is because for these violations the materiality and 

harmless-error standards merge. See Bagley, 473 U.S. at 678–

80. That is, the test for materiality supplies the test for 

harmlessness and there is no need to look to Brecht to supply a 

harmless-error standard. Hayes, 399 F.3d at 985.

More importantly, the concerns behind Brecht do not 

reach claims of perjured testimony presented by the state. To 

repeat, the Supreme Court’s imposition of Brecht’s harmless 

error standard was motivated by three concerns: (1) “the State[] 

[has] [an] interest in the finality of convictions that have 

survived direct review within the state court system”; (2) 

“[f]ederal intrusions into state criminal trials frustrate both the 

States’ sovereign power to punish offenders and their goodfaith attempts to honor constitutional rights”; and (3) “liberal 

allowance of the writ degrades the prominence of the trial 
24

itself, and at the same time encourages habeas petitioners to 

relitigate their claims on collateral review[.]” Brecht, 507 U.S. 

at 635 (internal citations, quotation marks, brackets, and 

ellipses omitted). These are weighty interests no doubt, but 

they do not reach the facts before us.

The Supreme Court has long counseled that “a 

deliberate deception of court and jury by the presentation of 

testimony known to be perjured . . . is [] inconsistent with the 

rudimentary demands of justice[.]” Mooney v. Holohan, 294 

U.S. 103, 112 (1935). Put differently, “[it is a] well-established 

rule that a conviction obtained by the knowing use of perjured 

testimony is fundamentally unfair[.]” Bagley, 473 U.S. at 678–

79. In Brecht itself the Court recognized “the writ of habeas 

corpus has historically been regarded as an extraordinary 

remedy, a bulwark against convictions that violate 

fundamental fairness.” 507 U.S. at 633 (internal quotation 

marks omitted). Thus it is difficult to see how concerns of 

finality would trump rudimentary demands of justice and 

fundamental fairness when those are precisely the values the 

writ of habeas corpus is intended to protect.

Second, when the state knowingly presents perjured 

testimony, we are not presented with a “good-faith attempt[] to 

honor constitutional rights,” Id. at 635, but instead with a badfaith effort to deprive the defendant of his right to due process

and obtain a conviction through deceit. After all, courts apply 

Napue’s “strict standard of materiality” to perjured-testimony 

cases “not just because they involve prosecutorial misconduct, 

but more importantly because they involve a corruption of the 

truth-seeking function of the trial process” by the state itself. 

Agurs, 427 U.S. at 104.

Third, there is little chance that excluding perjured 

testimony claims from Brecht analysis will “degrade[] the 

prominence of the trial itself[.]” Brecht, 507 U.S. at 635.
25

A defendant will usually be unable to litigate his claims of 

perjured testimony at “the trial itself” because the trial is where 

the perjury occurs. And it is possible, even likely, that 

petitioners will not know of the prosecution’s use of perjured 

testimony until after the opportunity for direct review has 

passed.

Finally, the First and Sixth Circuits note that, without 

Brecht review, perjured testimony faces a lower bar than 

suppression claims. Gilday, 59 F.3d at 268; Clay, 720 F.3d at 

1026. But to us that seems to be a feature, not a bug. If 

suppression of evidence (and thereby, the truth) is a serious 

constitutional error, its fabrication is a greater error still. That 

is why the Supreme Court set out differing materiality 

standards for the three types of error that implicate Brady: (1) 

the government’s knowing presentation of or failure to correct 

false testimony, (2) its failure to provide requested exculpatory 

evidence, and (3) its failure to volunteer exculpatory evidence 

never requested. See Agurs, 427 U.S. at 103-06. Presenting 

false testimony cuts to the core of a defendant’s right to due 

process. It thus makes sense that “the materiality standard for 

false testimony is lower, more favorable to the defendant, and 

hostile to the prosecution as compared to the standard for a 

general Brady withholding violation.” Clay, 720 F.3d at 1026.

At root is how can a defendant possibly enjoy his right 

to a fair trial when the state is willing to present (or fails to 

correct) lies told by its own witness and then vouches for and 

relies on that witness’s supposed honesty in its closing? As the 

Supreme Court recited in Napue,

[i]t is of no consequence that the falsehood bore 

upon the witness’ credibility rather than directly 

upon defendant’s guilt. A lie is a lie, no matter

what its subject, and, if it is in any way relevant 

to the case, the district attorney has the 
26

responsibility and duty to correct what he knows 

to be false and elicit the truth.

360 U.S. at 269–70 (quoting People v. Savvides, 136 N.E.2d 

853, 854-55 (N.Y. 1956)) (internal ellipses omitted).

For these reasons, we hold that the actual-prejudice

standard of Brecht does not apply to claims on habeas that the 

state has knowingly presented or knowingly failed to correct 

perjured testimony. A reasonable likelihood that the perjured 

testimony affected the judgment of the jury is all that is 

required.

* * * * *

Haskell has demonstrated that there is a reasonable 

likelihood that Blue’s false testimony could have affected the 

judgment of the jury. Hence he is entitled to relief. He need not

go on to show that this error had a substantial and injurious 

effect or influence in determining the jury’s verdict because, 

when the state has corrupted the truth-seeking function of the 

trial by knowingly presenting or failing to correct perjured 

testimony, the threat to a defendant’s right to due process is at 

its apex and the state’s interests are at their nadir. Accordingly, 

we grant Haskell’s habeas petition and remand for further 

proceedings consistent with this opinion.