March 27, 2017
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
B. Freeland, Esquire Federal Public Defender Elisa A. Long,
Esquire (Argued) Assistant Federal Public Defender Office of
Federal Public Defender Counsel for Appellant.
W. Richmond, Esquire (Argued) Erie County Office of District
Attorney Counsel for Appellee.
Before: AMBRO, VANASKIE, and RESTREPO, Circuit Judges
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
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.
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.
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.
was convicted in November 1995 for his role in these crimes
(two counts of hindering apprehension of the shooter). He did
not identify the shooter and received three to seven years in
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.
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
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.
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.
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.
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.
individuals presented eyewitness testimony of the shooting.
But each witness's testimony came with a few problems for
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.
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. 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.
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,
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.
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. She never spoke with the police about the incident
until three years later in February of 1998.
Blue's Communications with the Commonwealth
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.
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.
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.
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 having picked up additional
charges in Mercer County) resulted in her release from
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.
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 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.
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 ...