NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 16-1172


                            ROBERT LIVINGSTON, JR.,
                                            Appellant

                                          v.

                      ATTORNEY GENERAL NEW JERSEY;
                 ADMINISTRATOR NEW JERSEY STATE PRISON
                   ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 1-12-cv-05450)
                     District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                on January 23, 2018

               Before: GREENAWAY, JR., KRAUSE, Circuit Judges,
                          and JONES, District Judge.*

                           (Opinion filed: January 30, 2018)




      *
          The Honorable John E. Jones, III, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
                                          OPINION


KRAUSE, Circuit Judge.

       Robert Livingston, Jr., appeals the District Court’s dismissal of his habeas petition

that claimed he was denied a fair trial because the prosecutor failed to provide

Livingston’s counsel with the victim’s criminal history in violation of Brady v. Maryland,

(1963). The District Court dismissed the petition because the victim’s

criminal history would not have been admissible at trial. Because this Court held,

subsequent to the District Court’s dismissal of the petition, that it is reversible error to

characterize admissibility as a “separate, independent prong of Brady,” Dennis v. Sec’y,

Pa., Dep’t of Corr., 

, 310 (3d Cir. 2016) (en banc), we will reverse and

remand to the District Court for reconsideration of whether Livingston’s claim satisfies

Brady.1

I.     Background




       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         The Court in this case invited the views of Livingston’s counsel and the
Government on oral argument and was informed that there was no objection to
submitting the case if the Court were persuaded on the briefs to remand. We commend J.
Nicholas Ranjan, David M. Aceto, Douglas Baker, and Ali Parker of K&L Gates for their
excellent representation of Livingston in this appeal on a pro bono basis. Lawyers who
act pro bono fulfill the highest service that members of the bar can offer to indigent
parties and to the legal profession.
                                               2
       Livingston was convicted by a jury of first-degree felony murder, second degree

passion/provocation manslaughter, and an assortment of other crimes related to the

killing of Morris Lewis—a killing that Livingston maintained was committed in self-

defense. During trial preparation, Livingston’s counsel asked the prosecution to provide

information about Lewis’s criminal or juvenile history, and was informed that Lewis had

no arrests or adjudications. This report turned out to be in error—Lewis had arrests for a

variety of crimes, had pled guilty to several offenses, and had a pre-trial status conference

for one criminal matter scheduled at the time of his death. 2

       Livingston filed a motion for judgment of acquittal in the trial court, arguing,

among other things, that the prosecution’s failure to disclose Lewis’s criminal history

violated Brady, which holds that “suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material either to

guilt or to 

. The state court rejected his claim based on its

conclusion that the criminal history would not have been admissible at trial. It explained

that although New Jersey Rule of Evidence 404(a)(2) allows defendants claiming self-

defense to offer “[e]vidence of the violent or aggressive character of the victim . . . if [the

defendant] claims that the victim was the aggressor,” App. 76 (citing N.J. R. Evid.

404(a)(2)), here, “none of the victim’s arrests or charges on the juvenile petitions were


       2
         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 or near school property, tampering with evidence, and
resisting arrest, and he had pled guilty to both possession of a controlled dangerous
substance with intent to distribute on or near school property and to joyriding. His
scheduled pre-trial status conference was for receiving stolen property.
                                               3
for crimes of violence, assaultive behavior or offenses against the person,” App. 76-77.

Because the suppressed material “would not have resulted in the discovery of any

competent, admissible evidence,” the state court determined there could be no Brady

violation. App. 77.

       Livingston’s conviction was affirmed in relevant part on appeal to the Superior

Court of New Jersey, Appellate Division; his petition for post-conviction relief was

denied (after a nine-year delay) by the trial court and affirmed at the Appellate Division;

and his certification for a discretionary appeal was denied by the New Jersey Supreme

Court, see State v. Livingston, 

(N.J. 2012) (unpublished table decision).

Livingston then filed a federal habeas petition in the District of New Jersey, which was

dismissed with prejudice by the District Court.

       After the District Court dismissed Livingston’s case, this Court, sitting en banc,

decided Dennis, which held that it is “contrary to clearly established law, as defined by

the United States Supreme Court,” to “append[] an admissibility requirement onto

.

       Livingston applied for a certificate of appealability, which a panel of this Court

granted, noting that “the District Court appears to have denied this claim on the sole

ground that the state courts deemed the evidence in question inadmissible under state

law” and instructing the parties “to address the impact on the District Court’s ruling of

our subsequent ruling in [Dennis].” App. 59.

II.    Jurisdiction and Standard of Review



                                             4
       The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254, and we

have jurisdiction under 28 U.S.C. §§ 1291 and 2253. See Branch v. Sweeney, 

, 232 (3d Cir. 2014).

       Because the District Court “based its decision on a review of the state court record

and did not conduct an evidentiary hearing,” our review of the District Court is plenary.

. But because Livingston’s claim was adjudicated in state court

“on the merits,” Livingston’s petition may only be granted if the state court’s ruling “was

contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.

§ 2254(d).

III.   Discussion

       This case is squarely controlled by Dennis, which explained that it is “‘contrary to’

clearly established federal law” to “[i]nterpret[] Supreme Court precedent in a manner

that adds an additional element to the legal standard for proving a constitutional

(quoting Williams v. Taylor, 

, 393-94

(2000)).

       The Supreme Court’s opinion in Brady announced a three-part test for when the

prosecution’s failure to disclose evidence to defense counsel violates due process: (1) the

evidence must be favorable to the accused; (2) the prosecution must have suppressed that

evidence; and (3) the evidence must have been 

; see also Lewis v.

Horn, 

, 108 (3d Cir. 2009) (citing Banks v. Dretke, 

, 691

                                             5
(2004)). Because the Brady inquiry includes only three parts, we concluded in Dennis

that the “characterization of admissibility as a separate, independent prong of Brady

effectively added admissibility as a 

. Consequently, it is

“contrary to clearly established law, as defined by the . . . Supreme Court” to “append[]

an admissibility requirement onto Brady.” 

       Here, however the trial court did exactly that. That is, it “d[id] not . . . find a

Brady violation” because the suppressed evidence “would not have resulted in the

discovery of any competent, admissible evidence on behalf of the defendant’s claim of

self-[]defense.” App. 77 (emphasis added). The trial court thus erred in denying

Livingston relief based on “an additional element to the legal standard” that it improperly

added, 

-81 (citing 

), 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.

       Although this error requires reversal, we do not reach whether Livingston’s

underlying petition is meritorious. The Government, while “not disput[ing] that Dennis

is applicable here,” Appellees’ Br. 8, argues that the petition must nevertheless fail

because Lewis’s criminal and juvenile record is “not material” under Brady, Appellees’

Br. 7. Because the District Court never assessed materiality, the Government also argues

that, “without such analysis as a part of the record, it would be improper” to grant the

petition. Appellees’ Br. 9. We agree that the District Court should address this question

in the first instance.

IV.    Conclusion
                                               6
       For the foregoing reasons, we will reverse and remand to the District Court to

assess in the first instance whether, setting aside the admissibility of the evidence,

Livingston has established a Brady violation.




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