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Livingston v. Grewal

United States District Court, D. New Jersey

September 6, 2018

GURBIR S. GREWAL, [1] et al., Respondents.

          Loly G. Tor, Esq. Meghan Meade, Esq. K&L Gates LLP Attorneys for Petitioner Robert Livingston, Jr.

          Angelo J. Onofri, Mercer County Prosecutor Daniel A. Matos, Assistant Prosecutor Attorneys for Respondent Attorney General Gurbir S. Grewal




         This matter returns to the Court on mandate of the United States Court of Appeals for the Third Circuit that reverses in part this Court's denial of Robert Livingston, Jr.'s petition for a writ of habeas corpus under 28 U.S.C. § 2254. The court of appeals granted a certificate of appealability on Petitioner's claim that the State of New Jersey violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), when it failed to provide his trial counsel with the victim's criminal history. After concluding the state courts' decisions were contrary to established federal law by adding an admissibility requirement to Brady, the Third Circuit remanded to this Court for a decision on the merits of the Brady claim. See Livingston v. Attorney Gen. New Jersey, 722 Fed.Appx. 301 (3d Cir. 2018).

         The principal issue to be decided is whether the victim's criminal history would have been material to determining Petitioner's guilt at trial. After reviewing the record and supplemental submissions of the parties and hearing the arguments of the parties at oral argument on August 14, 2018, the Court finds Petitioner has not demonstrated a likelihood that the victim's criminal history would have been favorable to Petitioner nor material in that there is a reasonable probability its disclosure would have led to a different result. Therefore, Petitioner's Brady rights were not violated, and habeas relief is denied. The Court also denies a certificate of appealability.


         Petitioner is challenging a judgment of conviction filed in the Superior Court of New Jersey, Law Division, Mercer County, on February 6, 1998, and amended on February 23, 2001, after a jury found him guilty of second-degree passion/provocation manslaughter, [2] first-degree felony murder, first-degree robbery, third-degree possession of a baseball bat with a purpose to use it unlawfully, and fourth-degree unlawful possession of a baseball bat under circumstances not manifestly appropriate for its lawful use for his role in the death of Morris “Snoop” Lewis.[3]

         One of Petitioner's arguments in his § 2254 petition was that his Brady rights were violated because the prosecutor failed to disclose Lewis's juvenile record in discovery. In response to a query from Petitioner's trial counsel about Lewis's criminal or juvenile history, the prosecution erroneously stated Lewis had none. In fact Lewis, who was 19 at the time of his death, had previously been adjudicated delinquent, pleading guilty to possession of a controlled dangerous substance with intent to distribute on or near school property and to joyriding and was scheduled to have a pre-trial status conference on a receiving stolen property charge. See Livingston, 722 Fed.Appx. at 302 n.2; see also ECF No. 17-7 at 17-18. He had also faced juvenile petitions for burglary, receiving stolen property, criminal trespass, criminal mischief, theft, possession of a controlled dangerous substance with intent to distribute on or near school property, tampering with evidence, and resisting arrest, none of which were adjudicated. Id. The state disclosed Lewis's record[4] to trial counsel after the jury rendered its verdict, and trial counsel included the alleged Brady violation in his motion for a new trial:

If we had had the information that there had been a number of juvenile complaints involving drugs . . . but there was charges for aggressive behavior, resisting arrest, and some other things, the facts that some of those may have been dismissed as part of a plea bargain, at least we would have had the right to attempt to bring that information before the jury, to buttress Mr. Livingston's argument that he was merely reacting to an aggressive intruder in his own home at three o'clock in the morning.

Tr. of Feb. 6, 1998, ECF No. 17-32, 7:11-21. The trial court denied the motion, ruling:

Rule 404(a)(2) of the New Jersey Rules of Evidence section (2) allows the introduction of evidence relating to the victim of a crime where evidence of a pertinent trait of character of the victim is offered by an accused. Evidence of the violent or aggressive character of the victim of an assaultive crime may be admissible on behalf of a criminal defendant to corroborate the defendant's account of the encounter if he claims that the victim was the aggressor, regardless of whether he then knew of that trait.
. . . .
In this case, none of the victim's arrests or charges on the juvenile petitions were for crimes of violence, assaultive behavior or offenses against the person. In sum, the victim was only adjudicated guilty of two offenses: specifically, Possession of a Controlled Dangerous Substance with Intent to Distribute on or Near School Property and Unlawful Taking of Means of Conveyance (Joyriding).
The inadvertent failure of the State to provide this information would not have resulted in the discovery of any competent, admissible evidence on behalf of the defendant's claim of self-defense. This Court therefore does not find a Brady violation.

ECF No. 17-8 at 11-12. The Superior Court, Appellate Division affirmed on direct appeal.

         On appeal from this Court's denial of Petitioner's § 2254 petition, the Third Circuit concluded the state courts erred by “characterizing] admissibility as a ‘separate, independent prong of Brady[.]'” Livingston, 722 Fed.Appx. at 302 (quoting Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263, 310 (3d Cir. 2016) (en banc)).[5] It held that the trial court “erred in denying Livingston relief based on ‘an additional element to the legal standard' that it improperly added, and the District Court, in turn, erred in concluding that the state court did not violate clearly established federal law as defined by the United States Supreme Court.” Id. at 304 (quoting Dennis, 834 F.3d at 280-81). It did not address the merits of the Brady claim.

         The Court reopened the matter upon issuance of the mandate and appointed counsel[6] to represent Petitioner. The parties advised the Court they considered the Brady question to be a purely legal question that did not require further discovery. The Court ordered supplemental briefing and conducted a hearing consisting of ...

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