NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 18-3211

ROBERT LIVINGSTON, JR.,

Appellant

v.

ATTORNEY GENERAL NEW JERSEY; ADMINISTRATOR NEW JERSEY STATE PRISON

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 1-12-cv-05450) District Judge: Honorable Jerome B. Simandle ______________

Argued: September 10, 2019 ______________

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

(Opinion Filed: January 9, 2020) ______________

Meghan T. Meade Loly G. Tor [ARGUED] K&L Gates One Newark Center 10th Floor Newark, NJ 07102 Counsel for Appellant

Daniel A. Matos [ARGUED] Mercer County Prosecutor’s Office 209 South Broad Street 3rd Floor P.O. Box 8068 Trenton, NJ 08650

Counsel for Appellees ______________

OPINION* ______________

GREENAWAY, JR., Circuit Judge.

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

District Court’s dismissal of his habeas petition pursuant to

. In the

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

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

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

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

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

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

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

, 310

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

2 (3d Cir. 2016) (en banc)). We therefore remanded the case to the District Court for

reconsideration of Livingston’s Brady claim.

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

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

12-5450 (JBS),

, at *1 (D.N.J. 2018). Livingston timely appeals. For

the following reasons, we will affirm.

I. Background

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

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

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

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

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

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

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

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

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

including an arrest for burglary.1 The jury, however, reached its verdict without

considering any of this evidence.

1 We previously summarized these offenses as follows: “Lewis had arrests on juvenile petitions for burglary, receiving stolen property, criminal trespass, criminal mischief, theft, possession of a controlled dangerous substance with intent to distribute on 3 Before sentencing, Livingston timely moved for a judgment of acquittal on the

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

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

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

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

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

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

certification for discretionary appeal.

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

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

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

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

Brady inquiry. See

. Livingston then appealed the dismissal of his

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

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

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

or near school property, tampering with evidence, and resisting arrest, and he had pled guilty to [juvenile adjudications of] both possession of a controlled dangerous substance with intent to distribute on or near school property and to joyriding.” Livingston, 722 F. App’x at 302 n.2. We further explained that at the time of his death, he was due to appear at a “pre-trial status conference . . . for receiving stolen property.” Id. 4 On remand, the District Court found the victim’s criminal record neither favorable

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

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

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

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

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

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

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

disclosure would have led to a different result.” Livingston,

, at *1.

Livingston timely filed this appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under

and 2254, and we

have jurisdiction under

and 2253(a). See Branch v. Sweeney,

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

same standard as the District Court. Dennis,

.

III. Discussion

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

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

suppression of such evidence constitutes a due process violation. Brady,

.

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

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

ensued, i.e., the evidence was material. Lewis v. Horn,

(3d Cir. 2009)

(citations omitted); see also United States v. Brown,

, 509 n.14 (3d Cir.

2010).

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

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

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

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

diligence. See Dennis,

(“Brady’s mandate and its progeny are entirely

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

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

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

Whitley,

(1995) (“The question is not whether the defendant would

more likely than not have received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” (emphasis added)), with Livingston,

, at *5 (“[T]he Court

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

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

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

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

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

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

favorable.

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

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

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

Livingston’s arguments as to favorability.

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

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

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

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

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

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

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

irrelevant to this case.” Livingston,

, at *6. Furthermore, Livingston

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

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

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

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

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

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

United States v. Bagley,

(1985) (opinion of Blackmun, J.). We

therefore find that no Brady violation occurred here.

IV. Conclusion

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

2 Furthermore, the overwhelming evidence, including the fact that Livingston beat Lewis to death by repeatedly striking him on the head with a baseball bat and that Livingston robbed him afterwards, tended to support his guilt. 8