Gino Velez Scott v. United States , 890 F.3d 1239 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 15-11377; 16-11950
________________________
D.C. Docket Nos. 3:11-cv-01144-TJC-PDB; 3:06-cv-00906-TJC-PDB
GINO VELEZ SCOTT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(May 23, 2018)
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE, * District
Judge.
*
The Honorable Harvey Bartle III, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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ROSENBAUM, Circuit Judge:
Prosecutors are “servant[s] of the law” and should “prosecute with
earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But
though the prosecutor “may strike hard blows, he is not at liberty to strike foul
ones.” Id.
More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963),
established that a prosecutor’s suppression of material evidence favorable to the
accused amounts to a foul blow. An actionable Brady violation—where the
government withholds evidence that reasonably probably changes the outcome of a
defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet
because of the nature of a Brady violation, a defendant, through no fault of his
own, may not learn that such a violation even occurred until years after his
conviction has become final and he has already filed a motion for post-conviction
relief concerning other matters.
Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
imposes limitations on post-conviction relief a prisoner may obtain. This case
examines whether under those limitations, a Brady claim can ever be cognizable in
a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not
meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h).
And that presents a question of first impression in this Circuit.
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But that the case involves an issue of first impression does not necessarily
mean we are writing on a clean slate. As it turns out, our Circuit has already
written all over this slate. Indeed, we decided this issue’s fraternal twin—whether
a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254
petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in
Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir.
2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law
at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule:
a second-in-time collateral motion based on a newly revealed Brady violation is
not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for
second-or-successive motions.
Though we have great respect for our colleagues, we think Tompkins got it
wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to
obtain relief. In our view, Supreme Court precedent, the nature of the right at stake
here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S.
Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the
conclusion that a second-in-time collateral claim based on a newly revealed
actionable Brady violation is not second-or-successive for purposes of AEDPA.
Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s
second-or-successive gatekeeping criteria.
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Petitioner-Appellant Gino Scott’s Brady claim may or may not be an
actionable Brady violation. But we think that the district court in the first instance
should have the chance to address that question by determining whether Scott’s
Brady claim is, in fact, actionable—a question the district court never had reason to
reach. Tompkins’s rule precludes this from happening because it prohibits second-
in-time collateral petitions based on all types of Brady claims—actionable and
inactionable, alike—simply because they are Brady claims.
Establishing the correct rule and framework for determining whether any
particular second-in-time collateral motion based on a Brady claim is cognizable is
critically important to maintaining the integrity of our judicial system. No
conviction resulting from a fundamentally unfair trial should be permitted to
stand. 1 And when a petitioner could not have reasonably been expected to
discover an actionable Brady violation before filing his first federal collateral-
review motion, precluding the filing of a second-in-time petition addressing the
newly discovered violation is doubly wrong. It rewards the government for its
unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial
may well have acquitted him of. This not only corrodes faith in our system of
justice, but it undermines justice itself, and it cannot be allowed. So we urge the
1
See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical
Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of
Brady violations resulting in criminal convictions).
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Court to rehear this case en banc to establish the rule that our Constitution and
Supreme Court precedent require.
I.
In 2003, a grand jury indicted Scott and his codefendant Jose Tamayo for
conspiracy to possess with intent to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Tamayo pled guilty, but Scott
elected to go to trial.
At trial, the government presented evidence that Scott and Tamayo, longtime
friends who made occasional drug deals, agreed with each other to buy cocaine
from a couple of dealers in Jacksonville, Florida. Under the plan, Scott would give
Tamayo cash, and Tamayo would drive from their hometown of Valdosta,
Georgia, down to Jacksonville to make the purchase. To ensure the dealers’ bona
fides, Scott first arranged to meet one of them before any money changed hands.
But unbeknownst to Scott and Tamayo, the purported cocaine dealer he met was
actually a government informant named Freddy Pena.
Pena did his job well, and Scott was satisfied. So Scott gave Tamayo
$54,000 in cash to make the purchase. Tamayo then drove to Jacksonville and met
Pena. No sooner did they convene than law enforcement arrived on the scene and
arrested Tamayo.
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Law enforcement presented Tamayo with an offer to cooperate, and he
agreed. At their direction, Tamayo made several recorded phone calls to Scott in
which Scott incriminated himself in the deal. Law enforcement then arrested
Scott, too, charging him with conspiracy to possess cocaine for distribution.
To prove its case, among other evidence, the government called two DEA
agents who showed the jury wads of $100 bills confiscated from Scott upon his
arrest.
The government also presented Tamayo. He testified that he and Scott went
together to the pre-purchase meetings with Pena, that Scott gave him the $54,000
to purchase the cocaine, and that after getting arrested, Tamayo made a number of
recorded phone calls to Scott in which Scott made incriminating statements. The
government also played recordings of those phone calls for the jury.
Besides this evidence, the government put on Pena to testify about his pre-
purchase meeting with Scott. In its direct examination of Pena, the government
prompted him to disclose four items of information that prosecutors had previously
revealed to Scott through pretrial disclosures of evidence tending to impeach Pena,
disclosures required under Giglio v. United States, 405 U.S. 150 (1972). Those
four items included the following: (1) that Pena was convicted in 1996 for
conspiring to distribute heroin, (2) that the DEA had paid Pena more than $168,000
for cooperation on about sixteen cases since 2001, (3) that Pena had been paid
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$3,500 for Scott’s case so far, and (4) that Pena would likely receive additional
payment in the future.
To offset any negative effect of Pena’s answers to these questions, the
government also asked Pena whether he had ever given testimony or information
to the DEA that was “false or misleading,” to which Pena replied, “No, sir.” Then
the government inquired as to whether Pena had told the truth in his past testimony
as an informant. Pena answered, “Always.”
As it turns out, Pena’s answers to these questions were false. But as we
explain later, many years passed before the prosecuting U.S. Attorney’s Office
realized that the government was in possession of information demonstrating the
falsity of Pena’s answers and therefore before the prosecuting U.S. Attorney’s
Office disclosed this information to Scott.
In the meantime, and without any knowledge of this information during the
trial, on cross-examination, Scott’s attorney reiterated the details of Pena’s heroin-
trafficking conviction and emphasized how Pena benefited from working as an
informant. Pena acknowledged that he stood to receive more than $10,000 from
the drug money seized from Scott. He also agreed that for him, the alternative to
working as an informant would be to make ends meet through strenuous manual
labor. At no point did Scott’s attorney confront Pena about his past truthfulness in
other cases.
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In its closing argument, the prosecution acknowledged Pena’s monetary
motive for testifying against Scott. But the prosecution emphasized that Pena “had
performed successfully for DEA in the past and they continued to use him.”
Scott’s attorney addressed Pena only briefly, noting that Pena needed the money he
received working as a government informant because the job was one of only a
few career options he had as a convicted felon. The jury convicted Scott, and the
district court sentenced him to life in prison.
II.
Soon after his conviction, Scott filed a direct appeal. United States v. Scott,
136 F. App’x 273 (11th Cir. 2005). In his appeal, Scott raised a number of issues,
including, as relevant here, a claim that his trial counsel had been ineffective for
failing to conduct an adequate investigation of Pena’s background. Id. at 275. We
affirmed Scott’s conviction, though we declined to address his ineffective-
assistance claim because the record on that issue had not been developed at that
point. Id. at 275, 279. Scott sought certiorari, and the Supreme Court denied his
petition on October 17, 2005. See Scott v. United States, 546 U.S. 970 (2005).
In 2006, Scott filed his first motion to vacate under 28 U.S.C. § 2255 (the
“2006 Motion”). Among other claims, Scott again argued that his trial counsel was
constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984),
for failing to properly investigate Pena ahead of trial. The district court denied the
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claim. Notably, however, it concluded that even if his trial counsel did exhibit
deficient performance, Scott could not show that he was prejudiced because he
“fail[ed] to show what additional information could have been uncovered to further
impeach the witness at trial.” Scott appealed on other grounds, and we affirmed.
See Scott v. United States, 325 F. App’x 822, 825 (11th Cir. 2009).
Roughly five years later, in the spring of 2011, Scott’s prosecutors notified
the district court of impeachment information about Pena purportedly unknown to
them at the time of Scott’s trial. Federal prosecutors in another jurisdiction had
recently advised them of the following: (1) Pena lied to law enforcement in 1996
when he was arrested for conspiracy to distribute heroin; (2) Pena admitted to
Tampa DEA agents in 2002 that he had stolen cocaine from a drug dealer the year
before; and (3) as a result of his admission in 2002, though no charges were
brought against him, a prosecutor at the time said he would be hesitant to use Pena
in future cases, and the Tampa DEA moved Pena to “restricted use.” Scott’s
prosecutors described their failure to include this among their required pre-trial
disclosures as “inadvertent,” maintaining that they were “unaware of this
information until almost 7 years after the trial.”
Based on this information, on November 17, 2011, Scott filed another
motion under § 2255 to vacate his conviction and sentence (“2011 Motion”). In
his 2011 Motion, Scott asserted for the first time that the Government had obtained
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his conviction by violating Brady, 373 U.S. 83, and Giglio, 405 U.S. at 150. Both
of these claims relied on the Government’s 2011 disclosure of evidence relating to
Pena. Scott asserted that had the government before his trial turned over the
evidence disclosed in 2011, it is reasonably probable that he would not have been
convicted.
In explaining how the government’s failure to disclose the information
affected his trial, Scott pointed to Pena’s statement that he had never given “false
or misleading” testimony during his time as an informant. He complained that in
its closing remarks at trial, the government argued “that although Pena had been
convicted of conspiracy to distribute heroin in the 1990s, he had paid his debt to
society, accepted responsibility, and then moved on into this line of work that
involved essentially working with DEA in 2001.” Indeed, Scott emphasized, the
government represented there was “no question that Pena had performed
successfully for DEA in the past and they continued to use him.” But based on the
evidence the government disclosed in 2011, Scott argued that Pena’s testimony and
the government’s statements at trial were false, and the government knew or
should have known this at the time. Finally, Scott urged that the testimony and
statements were not harmless beyond a reasonable doubt.
To explain his failure to raise these issues on direct appeal, Scott explained
that he was not aware of the information at the time. And because the information
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was “known only to the government” as of the time of trial, and the government
had assured Scott and the trial court that it had turned over all Brady material,
Scott reasoned, he could not have discovered the recently disclosed information
earlier through the exercise of due diligence.
The government moved to dismiss Scott’s 2011 Motion, asserting it was
barred as “second or successive” under 28 U.S.C. § 2255(h). The district court
agreed, concluding it was bound by our decision in Tompkins, 557 F.3d 1257. In
Tompkins, a panel of this Court held that a second-in-time habeas petition raising
claims under Brady and Giglio and brought under 28 U.S.C. § 2254 always counts
as “second or successive” and is therefore subject to AEDPA’s gatekeeping
restrictions on second or successive petitions.
Though the district court dismissed Scott’s 2011 Motion, it granted Scott’s
alternative motion to reopen his original 2006 Motion pursuant to Federal Rule of
Civil Procedure 60(b)(3), which permits a court to reopen a final judgment on
various grounds, including “fraud . . . , misrepresentation, or misconduct by an
opposing party.” The court then reevaluated Scott’s 2006 Motion in light of the
new information about Pena and once again denied it. In reconsidering Scott’s
Strickland claim in light of the newly revealed evidence, the district court
concluded that Scott’s trial counsel did not exhibit constitutionally deficient
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performance in violation of Strickland by failing to conduct further investigation of
Pena. The court did not address Strickland’s prejudice prong. Scott then appealed.
III.
“In an appeal challenging a § 2255 ruling, we review legal issues de novo
and factual findings for clear error.” Murphy v. United States, 634 F.3d 1303,
1306 (11th Cir. 2011). We review a district court’s order on a Rule 60(b)(3)
motion for abuse of discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co.,
198 F.3d 1332, 1338 (11th Cir. 1999).
IV.
We first address whether the district court correctly concluded that 28
U.S.C. § 2255(h) bars Scott’s 2011 Motion as “second or successive.” Section
2255(h) functions as a “gatekeeping provision” for “second or successive” motions
to vacate brought under AEDPA. Under section 2255(h) no “second or
successive” motions may be brought unless they identify either “(1) newly
discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense,” or “(2) a
new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
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Neither of those exceptions applies here. So we must consider whether
Scott’s 2011 Motion qualifies as “second or successive.” If so, we must dismiss
it.
We do not get much help from AEDPA in discerning the meaning of the
phrase “second or successive.” In fact, AEDPA does not define the phrase. Nor is
the phrase itself “self-defining.” Panetti v. Quarterman, 551 U.S. 930, 943 (2007).
But the Supreme Court has explained that “second or successive” does not
capture all collateral petitions “filed second or successively in time, even when the
later filings address a . . . judgment already challenged in a prior . . . application.”2
Id. at 944. Instead, “second or successive” is a “term of art.” Slack v. McDaniel,
529 U.S. 473, 486 (2000). And since it limits the courts’ jurisdiction, we read it
narrowly. See Castro v. United States, 540 U.S. 375, 381 (2003) (citing Utah v.
Evans, 536 U.S. 452, 463 (2002)).
As the Supreme Court has construed the phrase, “second or successive”
“takes its full meaning from [the Supreme Court’s] case law, including decisions
predating the enactment of [AEDPA].” Panetti, 551 U.S. at 943-44. So we must
explore the relevant case law on the meaning of “second or successive.”
2
Panetti involved a petition filed under 28 U.S.C. § 2254, whereas Scott’s motion arises
under § 2255. We have recognized that “precedent interpreting one of these parallel restrictions
is instructive for interpreting its counterpart.” Stewart v. United States, 646 F.3d 859 n.6 (11th
Cir. 2011). Indeed, Stewart applied Panetti’s discussion on the meaning of “second or
successive” in the context of evaluating a second-in-time § 2255 motion.
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A. Panetti v. Quarterman set forth the factors for determining whether a
second-in-time petition is “second or successive.”
Our starting point is the Supreme Court’s decision in Panetti. In Panetti, the
petitioner (named Panetti) was convicted of capital murder and sentenced to death.
Id. at 937. After exhausting his state-court remedies to no avail, he filed a federal
petition for habeas relief under 28 U.S.C. § 2254. It, too, was denied. Id.
The state set an execution date, and Panetti filed another state habeas claim,
this time asserting for the first time that he was not mentally competent to be
executed. Id. at 937-38. Following the state court’s denial of the petition, Panetti
filed another federal habeas petition under § 2254. Id. at 938. He argued that
executing him while he was mentally incompetent would violate the Eighth
Amendment and transgress Ford v. Wainwright, 477 U.S. 399 (1986). See id. at
938-41. The district court denied his petition, and the circuit court affirmed. Id. at
941-42.
The Supreme Court granted certiorari. Id. at 942. Before addressing the
merits, the Court considered whether it had jurisdiction over Panetti’s claim, in
light of 28 U.S.C. § 2244(b)(2), a habeas gatekeeping mechanism that is much like
§ 2255(h) but applies to federal habeas petitions seeking review of state rather than
federal cases. Similar to § 2255(h), § 2244(b)(2) precludes consideration of any
“claim presented in a second or successive habeas corpus application under section
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2254 that was not presented in a prior application” unless it satisfies one of two
exceptions—neither of which applied to Panetti’s claim. 3
The Court concluded that it enjoyed jurisdiction over Panetti’s case because
Panetti’s second-in-time § 2254 petition was not “second or successive” as that
phrase is used in § 2244(b)(2)’s gatekeeping mechanism. Id. at 947. In arriving at
this conclusion, the Court looked solely to three considerations: (1) the
implications for habeas practice if the Court found it lacked jurisdiction over
Panetti’s claim; (2) the purposes of AEDPA; and (3) the pre-AEDPA abuse-of-the-
writ doctrine. See id. at 943-47.
Beginning with the implications for habeas practice, the Court first discussed
the nature of a Ford claim. See id. at 943. Because a Ford claim asserts that a
petitioner is not competent to be executed, the Court noted that such a claim does
3
Section 2244(b)(2) provides,
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence; and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
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not ripen unless the petitioner both is incompetent to be executed and imminently
faces execution in that state. See id. And since many years can pass between the
imposition and execution of a death sentence, a petitioner may not fall into a state
of mental incompetence until after the courts have resolved his first habeas
petition. Id. So if “second or successive” encompassed Ford claims, a mentally
competent prisoner would always have to prophylactically raise a Ford claim in his
first federal habeas petition, regardless of whether he had any indication that he
might eventually become incompetent, just to preserve the possibility of raising a
Ford claim at a later time. Id. This practice, the Court observed, “would add to
the burden imposed on courts, applicants, and the States, with no clear advantage
to any.” Id. at 943.
On top of burdening federal habeas practice in this way, the Court concluded
that treating second-in-time Ford claims as “second or successive” would also
conflict with AEDPA’s purposes. AEDPA was designed to “further the principles
of comity, finality, and federalism.” Id. at 945 (citation and internal quotation
marks omitted). But “[a]n empty formality requiring prisoners to file unripe Ford
claims neither respects the limited legal resources available to the States nor
encourages the exhaustion of state remedies.” Id. at 946. And as for finality
concerns, the Court observed they are not implicated by a Ford claim: because of
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the nature of a Ford claim, federal courts are generally unable to address such
claims within the time frame for resolving first habeas petitions, anyway. Id.
Finally, the Court accounted for the abuse-of-the-writ doctrine, 4 id. at 947,
the pre-AEDPA legal doctrine “defin[ing] the circumstances in which federal
courts decline to entertain a claim presented for the first time in a second or
subsequent petition for a writ of habeas corpus,” McCleskey v. Zant, 499 U.S. 467,
470 (1991). Under the abuse-of-the-writ doctrine, “to determine whether an
application is ‘second or successive,’ a court must look to the substance of the
claim the application raises and decide whether the petitioner had a full and fair
opportunity to raise the claim in the prior application.” Magwood v. Patterson,
561 U.S. 320, 345 (2010) (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at
947). “[I]f the petitioner had no fair opportunity to raise the claim in the prior
application, a subsequent application raising that claim is not ‘second or
successive,’ and [AEDPA’s] bar does not apply.” Id. at 346 (Kennedy, J.,
dissenting) (citing Panetti, 551 U.S. at 947). Since a Ford claim considers a
petitioner’s mental state at the time of proposed execution and Panetti’s first §
2254 petition was filed well before that time, Panetti did not have a full and fair
opportunity to raise that claim—that is, the claim did not ripen—until after his first
4
Justice Kennedy has described “the design and purpose of AEDPA [as being] to avoid
abuses of the writ of habeas corpus.” Magwood v. Patterson, 561 U.S. 320, 344 (2010)
(Kennedy, J., dissenting).
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§ 2254 petition was resolved. See Panetti, 551 U.S. at 947. For that reason, the
Court found no abuse of the writ. Id.
So ultimately, the Supreme Court held that AEDPA’s “second or
successive” bar did not preclude Panetti’s second-in-time petition raising a Ford
claim. Id. As the Court explained, “We are hesitant to construe a statute,
implemented to further the principles of comity, finality, and federalism, in a
manner that would require unripe (and, often, factually unsupported) claims to be
raised as a mere formality, to the benefit of no party.” Id.
B. Applying the Panetti factors to an actionable Brady violation that the
petitioner in exercising due diligence could not reasonably have been
expected to discover in the absence of the government’s disclosure yields
the conclusion that such a claim is not “second or successive.”
In Panetti’s light, we must consider whether second-in-time petitions raising
newly disclosed actionable Brady 5 violations—where the newly disclosed evidence
creates a reasonable probability that it would change the outcome of the
proceeding—are “second or successive” within the meaning of § 2255(h)’s
5
For convenience, we use the term “Brady violation” to refer to Giglio violations as well
as Brady violations, as Brady and Giglio represent manifestations of the same type of due-
process violation. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (describing the three
components of a Brady violation as follows: “The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”)
(emphasis added).
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gatekeeping provision. We find that they are not. The Panetti factors and their
sub-considerations uniformly require this conclusion.
1. Precluding claims based on Brady violations that a prisoner could not
have discovered through due diligence would adversely affect habeas
practice.
First, as the Panetti Court observed is true of Ford claims, precluding Brady
claims that a prisoner could not have discovered through due diligence would
adversely affect habeas practice. This is so because of the nature of a Brady
claim.
Brady and its progeny stand for the proposition that the prosecution’s
suppression of evidence favorable to the defendant “violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Strickler v. Greene, 527 U.S. 263, 280 (1999)
(quoting Brady, 373 U.S. at 87) (internal quotation marks omitted). Evidence is
“material,” in turn, when “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” Id. (citation and internal quotation marks omitted). So no actionable
Brady violation occurs “unless the nondisclosure was so serious that there is a
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reasonable probability that the suppressed evidence would have produced a
different verdict.”6 Id. at 281 (internal quotation marks omitted).
Because of the nature of a Brady violation, the petitioner often cannot learn
of such a violation at all, even when acting diligently, unless and until the
government discloses it. As with second-in-time Ford claims, then, “conscientious
defense attorneys would be obliged to file unripe (and, in many cases, meritless)
[Brady] claims in each and every [first § 2255] application [(and direct appeal)],”
Panetti, 551 U.S. at 943, to preserve then-hypothetical claims on the chance that
the government might have committed a material Brady violation that will
eventually be disclosed. And also like with Ford claims, the courts would be
forced to address this avalanche of substantively useless Brady claims—only there
would be even more meritless Brady claims because Brady does not apply only in
capital cases, like Ford does. For this reason, finding second-in-time Brady claims
to be “second or successive” under § 2255 would have even more deleterious
6
Prosecutors are, of course, always obligated to disclose exculpatory evidence to the
defendant. But the Supreme Court has classified as “real” (and therefore actionable) Brady
violations only one subset of cases where the prosecution fails to disclose exculpatory evidence
within its possession: those in which it is reasonably probable in hindsight that a jury privy to
the undisclosed material would have returned a different verdict. See Strickler, 527 U.S. at 281.
So an actionable Brady violation includes three elements: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Id. at 281-82. In this opinion, we analyze only whether these actionable
Brady violations, which we refer to simply as “Brady violations,” are “second or successive.”
Our analysis does not apply to cases where it is not reasonably probable that exculpatory
evidence withheld by the government would have changed the outcome of the proceeding.
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effects on habeas practice than concluding second-in-time Ford claims were
“second or successive.”
2. Precluding Brady claims that a petitioner could not have discovered
through due diligence impedes finality interests.
Second, precluding Brady claims that a petitioner could not have discovered
through due diligence actually impedes finality interests. We start from the
proposition that at the very least, the second-in-time filing of a Brady claim that a
prisoner could not have discovered earlier through the reasonable exercise of due
diligence does not negatively implicate AEDPA’s finality concerns any more than
does the second-in-time filing of a Ford claim, 7 though for different reasons. To
explain why, we return to the nature of a Brady violation.
When a Brady violation occurs, a defendant is entitled to a new trial. Brady,
373 U.S. at 87. As the Supreme Court has explained, “[a] prosecution that
withholds evidence . . . which, if made available, would tend to exculpate [the
defendant] or reduce the penalty[,] . . . casts the prosecutor in the role of an
architect of a proceeding that does not comport with standards of justice, even
7
Unlike in the § 2254 context, comity and federalism are not concerns when it comes to
§ 2255 claims since these claims involve only federal proceedings. See infra at 35.
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though . . . his action is not ‘the result of guile.’” Id. at 87-88. Put simply, a
criminal defendant does not receive a fair trial when a Brady violation occurs.8
Yet the Constitution guarantees criminal defendants a fair trial. Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986). So imprisoning someone based on the
results of an unfair trial and then precluding any remedy at all might well work a
suspension of the writ of habeas corpus. Cf. Magwood, 561 U.S. at 350 (Kennedy,
J., dissenting) (opining that refusal to consider a second-in-time habeas petition
challenging an alleged violation that occurred entirely after the denial of the first
petition “would be inconsistent with abuse-of-the-writ principles and might work a
suspension of the writ of habeas corpus”).
And even if precluding a remedy for a Brady violation that a petitioner could
not reasonably have been expected to discover through due diligence does not
suspend the writ, it certainly clashes with finality concerns. The Supreme Court
has noted that finality is important to endow criminal law with “much of its
8
The trial is not unfair in the constitutional sense if the government failed to disclose
non-material exculpatory information in its possession. Such a violation, by definition, could
not have affected the outcome of the trial. Similarly, where the government never possessed the
newly discovered evidence before or during trial, the trial is not constitutionally unfair because
of the absence of the newly discovered evidence. In that case, the government did not wittingly
or unwittingly use its advantage as the prosecuting authority to obtain a conviction it otherwise
might not have been able to secure. Because neither of these types of events renders a trial
constitutionally unfair, they do not affect AEDPA’s finality concerns the same way as does a
Brady violation, which, again, will involve only material non-disclosures.
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deterrent effect.” McCleskey, 499 U.S. at 491 (citation and quotation marks
omitted). But an uncorrected unfair trial has the opposite effect.
Procedural fairness is necessary to the perceived legitimacy of the law.
Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public
Satisfaction, 44 Ct. Rev. 4, 7 (2007-2008) (citing Tom. R. Tyler, Psychological
Perspectives on Legitimacy and Legitimation, 57 Ann. Rev. Psychol. 375 (2006)).
And legitimacy affects compliance. Cf. id. (citing studies showing reduced
recidivism when defendants perceived themselves as having received fair process).
When the government imprisons a person after a constitutionally unfair trial, that
undermines the legitimacy of the law and its deterrent effect. A person who
perceives that the government will cheat to convict him, regardless of his guilt or
innocence, actually has less incentive to comply with the law because, in his view,
compliance makes no difference to conviction.
But that is not the only reason that precluding second-in-time Brady claims
is at odds with finality concerns. Finality is also important because giving a habeas
petitioner a new trial can prejudice the government through “erosion of memory
and dispersion of witnesses that occur with the passage of time.” McCleskey, 499
U.S. at 491 (citation and internal quotation marks omitted). Yet the government
alone holds the key to ensuring a Brady violation does not occur. So the
government cannot be heard to complain of trial prejudice from a new trial
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necessitated by its own late disclosure of a Brady violation, since it is solely
responsible for inflicting any such prejudice on itself in such circumstances.
Whatever finality interest Congress intended for AEDPA to promote, surely it did
not aim to encourage prosecutors to withhold constitutionally required evidentiary
disclosures long enough that verdicts obtained as a result of government
misconduct would be insulated from correction.
Finality interests then are not served by saying a prisoner has not timely
brought his Brady claim where the government’s failures affirmatively and entirely
prevented him from doing so. Cf. Williams v. Taylor, 529 U.S. 420, 437 (2000)
(comity interests “not served by saying a prisoner ‘has failed to develop the factual
basis of a claim’ [under § 2254(e)(2)] where he was unable to develop his claim in
state court despite diligent effort”). For this reason, finality concerns cannot justify
precluding Brady claims that a prisoner could not have discovered through due
diligence.
3. Precluding Brady claims that a prisoner could not have discovered
through due diligence is not consistent with the abuse-of-the-writ
doctrine.
Finally, allowing a second-in-time Brady claim that a prisoner could not
have discovered earlier through the reasonable exercise of due diligence does not
offend the abuse-of-the-writ doctrine. As we have noted, the abuse-of-the-writ
doctrine calls for courts to consider whether a habeas petitioner has previously had
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“a full and fair opportunity to raise the claim in the prior application.” Magwood,
561 U.S. at 345 (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at 947).
To demonstrate that a petitioner has been deprived of a “full and fair
opportunity,” the doctrine requires him to make two showings: (1) he has “cause,”
or a “legitimate excuse,” for failing to raise the claim earlier, McCleskey, 499 U.S.
at 490, and (2) he was prejudiced by the error he claims, id. at 493. See also
Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
“Cause” explains why the petitioner could not have filed his claim earlier
even “in the exercise of reasonable care and diligence.” McCleskey, 499 U.S. at
493. A petitioner satisfies the cause requirement where he can demonstrate
“interference by officials that makes compliance with the . . . procedural rule
impracticable, and a showing that the factual or legal basis for a claim was not
reasonably available to counsel.” Id. at 493-94 (citation and internal quotation
marks omitted).9 A Brady violation that a prisoner could not reasonably have been
expected to discover through the exercise of due diligence falls into that category.
See, e.g., Strickler, 527 U.S. at 289 (finding cause for failing to raise a Brady claim
9
Though McCleskey spoke of the “cause” standard above in the context of the doctrine of
procedural default, the Supreme Court expressly concluded that the standard for showing
“cause” under the abuse-of-the-writ doctrine is the same as for demonstrating “cause” for a
procedural default. See McCleskey, 499 U.S. at 493; see also Schlup v. Delo, 513 U.S. 298, 318-
19 (1995) (“The application of cause and prejudice to successive and abusive claims conformed
to [the Supreme Court’s] treatment of procedurally defaulted claims.”).
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where the prosecution withheld exculpatory evidence, the petitioner reasonably
relied on the prosecution’s open-file policy, and the government asserted during
state habeas proceedings “that petitioner had already received ‘everything known
to the government.’”).
As for prejudice, as we have noted, when a Brady violation is at issue, a
petitioner must demonstrate a reasonable probability that had the government
disclosed the evidence at issue, the outcome of the proceeding would have
differed. Strickler, 527 U.S. at 280. So a petitioner cannot establish a Brady
violation without also satisfying the abuse-of-the-writ doctrine’s requirement to
show prejudice.
That means a petitioner can demonstrate both cause and prejudice by
establishing a Brady violation that he could not reasonably have discovered
through due diligence. And where a petitioner shows both cause and prejudice, he
has enjoyed no “full and fair opportunity” to bring the claim earlier. To remedy
this problem, the abuse-of-the-writ doctrine favors allowing such a second-in-time
claim.
In short, all the Panetti factors—the implications for habeas practice, the
purposes of AEDPA, and the abuse-of-the-writ doctrine—compel the conclusion
that second-in-time Brady claims cannot be “second or successive” for purposes of
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§ 2255(h). 10 And nothing Panetti teaches us to consider so much as hints
otherwise.
C. Tompkins nonetheless requires us to conclude that second-in-time Brady
claims are always “second or successive.”
The district court, however, concluded that our decision in Tompkins v.
Secretary, Department of Corrections precluded it from ruling that second-in-time
Brady claims that could not have been discovered earlier through the exercise of
reasonable diligence are not “second or successive.” We now take a look at
Tompkins to decide whether that is correct.
In Tompkins, this Court considered whether a second-in-time § 2254 petition
that raised Brady and Giglio claims, among others, qualified as “second or
successive” for purposes of § 2244(b)(3)(A). The Tompkins panel determined it
did. 557 F.3d at 1260.
To reach this conclusion, the panel first determined that the Supreme Court
in Panetti “limit[ed] its holding to Ford claims.” Tompkins, 557 F.3d at 1259. The
panel, in essence, deemed the Panetti factors irrelevant to analyzing the issue
10
The rule we think Panetti requires for the limited subset of second-in-time actionable
Brady claims we discuss renders the jurisdiction and merits inquiries a single question where no
issues of fact exist. But that is no different than the situation when a petitioner raises a second or
successive claim under § 2255(h)(1); there, too, the jurisdiction and merits inquiries are one and
the same when no issues of fact arise.
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before it and further attempted to explain why Panetti was factually distinguishable
from the case it was reviewing. Id. at 1260.
1. Tompkins was incorrectly decided.
We respectfully disagree with the Tompkins panel’s analysis and conclusion.
As we read Panetti, the Supreme Court did not limit its analysis to petitions
involving Ford claims. And when we apply the Panetti factors to Brady claims, as
we must, Brady claims cannot be factually distinguished from Ford claims for
purposes of determining whether they are “second or successive.”
a. Panetti did not limit its analysis to petitions involving Ford
claims.
Beginning with the breadth of Panetti’s holding, we cannot agree that the
Supreme Court restricted its analysis to second-in-time petitions involving only
Ford claims. Neither Panetti’s language nor its analysis supports such a
conclusion.
First, Panetti’s language rules out such a narrow holding. In fact, the
Supreme Court summarized its own jurisdictional holding as recognizing
“exceptions”—plural—to the rule that a second-in-time petition fails AEDPA’s
“second or successive” bar: “In the usual case, a petition filed second in time and
not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second
or successive’ bar. There are, however, exceptions.” Panetti, 551 U.S. at 947
(emphasis added).
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Of course, that alone does not specify what exactly the Court had in mind.
But the Court then immediately followed up this statement with what we
understand as a partial test for determining whether a second-in-time petition that
includes a particular type of claim qualifies as “second or successive”: “We are
hesitant to construe [AEDPA], implemented to further the principles of comity,
finality, and federalism, in a manner that would require unripe (and, often,
factually unsupported) claims to be raised as a mere formality, to the benefit of no
party.” Id. If the Court intended to limit its holding to second-in-time Ford claims
only, we think it would have employed the singular form of “exception,” rather
than the plural, and it would have referred specifically to Ford claims in that
sentence instead of stating a generally applicable rule for construing the phrase
“second or successive” in AEDPA.
Second, the analysis in Panetti itself demonstrates that the Supreme Court
did not limit Panetti’s holding to Ford claims. As we have noted, the Panetti
Court arrived at its conclusion solely by evaluating three different generally
applicable factors: the “implications for habeas practice,” AEDPA’s purposes, and
the abuse-of-the-writ doctrine. See id. at 945-47. Not one of these factors applies
uniquely to Ford claims. Nor does any factor apply in such a way as to allow only
Ford claims through.
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Significantly, the Supreme Court also emphasized the importance of
accounting for AEDPA’s purposes and the implications for habeas practice not just
when considering whether Ford claims are “second or successive” but whenever
“petitioners run the risk under the proposed interpretation [of AEDPA] of forever
losing their opportunity for any federal review of their . . . claims.” Id. at 945-46
(citation and internal quotation marks omitted). Towards that end, the Court drew
on examples where it had construed other aspects of AEDPA’s limiting language
to nonetheless allow for claims and procedures where failure to do so would
preclude any opportunity for petitioners to have potentially meritorious claims
heard.
For example, the Panetti Court pointed to Castro v. United States, 540 U.S.
375 (2003). In that case, the pro se petitioner filed a motion for new trial under
Federal Rule of Criminal Procedure 33. Castro, 540 U.S. at 378. The district
court recharacterized the filing as a § 2255 motion, without notice to the petitioner.
The district court denied the motion on the merits, and we affirmed. Id. at 378-79.
Three years later, when the petitioner sought to file a motion he called a § 2255
motion, the motion was dismissed as “second or successive.” Id. at 379. The
Supreme Court granted certiorari to consider whether a pro se petitioner’s motion
may be recharacterized as second or successive without notice to the petitioner. Id.
But before the Court could consider the answer to that question, it had to determine
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whether it could even take up the case since § 2244(b)(3)(E) requires that the
“grant or denial of an authorization by a court of appeals to file a second or
successive application . . . shall not be the subject of a [certiorari] petition.” Id. at
379 (quoting 28 U.S.C. § 2244(b)(3)(E)). The Castro Court held that it could still
review the case, despite the lower courts’ actions. Id.
In Panetti, the Court described its holding in Castro as having “resisted an
interpretation of [AEDPA] that would produce troublesome results, create
procedural anomalies, and close our doors to a class of habeas petitioners seeking
review without any clear indication that such was Congress’ intent.” Panetti, 551
U.S. at 946 (internal quotation marks omitted). And the Court cited other several
cases that demonstrate these same principles. See Williams, 529 U.S. at 437
(holding that under § 2254(e)(2), a “fail[ure] to develop” a claim’s factual basis in
state-court proceedings is not established unless the petitioner is not duly diligent);
Johnson v. United States, 544 U.S. 295, 308-09 (2005) (holding that where an
underlying state conviction used to enhance a federal sentence has since been
vacated, § 2255’s one-year limitations period does not begin to run until petitioner
receives notice of order vacating the prior conviction, as long as petitioner sought
order with due diligence); Granberry v. Greer, 481 U.S. 129, 131-34 (1987)
(holding that where the state fails to object on grounds of exhaustion and a
potentially meritorious exhaustion defense exists, a federal court should not simply
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dismiss the petition but should instead exercise discretion to determine whether the
administration of justice would be better served by insisting on exhaustion or by
instead addressing the merits of the petition); Duncan v. Walker, 533 U.S. 167, 178
(2001) (holding that federal habeas corpus review does not toll limitation period
under § 2244(d)(2) on grounds that contrary reading “would do far less to
encourage exhaustion prior to seeking federal habeas review and would hold
greater potential to hinder finality”).
These cases involve a variety of claims and portions of AEDPA’s language.
But they all share one thing: to resolve each case, the Supreme Court relied on the
implications for habeas practice and the purposes of AEDPA. That the Supreme
Court found these considerations applicable in these different cases demonstrates
definitively that Ford claims are not a one-off; rather, they are but one type of
claim among several where, in construing the meaning of AEDPA’s language, we
must consult the implications for habeas practice and the purposes of AEDPA.
b. Brady claims are not factually distinguishable from Ford claims
for the purposes of determining whether they are “second or
successive.”
With Panetti and its factors out of the way, Tompkins then factually
distinguished Brady claims from Ford claims without applying the Panetti factors,
instead creating a new test not found in Panetti. Specifically, Tompkins homed in
on the Panetti Court’s pronouncement that “Ford-based incompetency claims, as a
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general matter, are not ripe until after the time has run to file a first federal habeas
petition.” See Tompkins, 557 F.3d at 1259-60 (quoting Panetti, 551 U.S. at 942)
(internal quotation marks omitted). Then Tompkins ascribed a meaning and
significance to the term “ripe” that directly conflicts with Panetti’s analysis. In
particular, Tompkins concluded that a claim’s “ripeness” depends on when the
violation supporting the claim occurred. Id. at 1260. And since a Brady violation
happens during trial or sentencing, Tompkins reasoned, any claim based on a Brady
violation necessarily ripens, at the latest, by the end of sentencing. See id.
We see two problems with this reasoning. First, the Supreme Court in
Panetti did not purport to define the word “ripe.” Nor does Tompkins cite anything
to support its definition of the term. See id. at 1259-61. In fact, Tompkins’s
definition of the word conflicts with how the term is generally understood in the
law. “Ripeness” refers to “[t]he state of a dispute that has reached, but has not
passed, the point when the facts have developed sufficiently to permit an intelligent
and useful decision to be made.” Ripeness, Black’s Law Dictionary (10th ed.
2014). But when, through no fault of the petitioner, a Brady violation goes
undiscovered through trial and sentencing, the facts concerning a claim based on
that violation have not been developed sufficiently to permit an intelligent and
useful decision to be made. Indeed, they have not been developed at all until such
time as the Brady violation is discovered.
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Second, and even more significantly, to the extent that Panetti referred to
ripeness as a consideration within its framework for evaluating whether a second-
in-time claim is “second or successive,” Tompkins’s discussion of “ripeness”
cannot be harmonized with Panetti’s. Panetti accounted for what it referred to as
ripeness only for the purpose of evaluating the implications on habeas practice of
holding an unripe claim to be “second or successive.” Panetti, 551 U.S. at 943-45.
As we have discussed, Panetti expressed concern that holding unripe claims to be
“second or successive” would flood the courts with useless claims on the off
chance that such claims might later ripen. See id. at 943. But, of course, that is
true of Brady claims that could not have been discovered earlier through due
diligence. So Panetti is not distinguishable on grounds of a difference in ripeness
between Ford claims and Brady claims that could not have been discovered earlier.
On the contrary, Panetti’s use of ripeness in its analysis compels the conclusion
that a second-in-time Brady claim that could not have been discovered earlier is
not “second or successive.”
2. The prior-panel-precedent rule requires us to apply Tompkins,
though we are “convinced it is wrong.”
Though we disagree with Tompkins and its reasoning, we recognize that it is
nonetheless our precedent. Because Tompkins addresses whether Brady claims in
§ 2254 petitions can ever avoid being “second or successive,” we must consider
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whether Tompkins controls the outcome when § 2255 petitions are involved. We
conclude that it does.
The prior-panel-precedent rule requires subsequent panels of the court to
follow the precedent of the first panel to address the relevant issue, “unless and
until the first panel’s holding is overruled by the Court sitting en banc or by the
Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
Even when a later panel is “convinced [the earlier panel] is wrong,” the later panel
must faithfully follow the first panel’s ruling. United States v. Steele, 147 F.3d
1316, 1317-18 (11th Cir. 1998) (en banc). We of course are not bound by anything
that is mere dictum. See Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772
F.3d 1352, 1360 (11th Cir. 2014) (“[D]iscussion in dicta ‘is neither the law of the
case nor binding precedent.’”) (citation omitted). But our case law reflects that
under the prior-panel-precedent rule, we must follow the reasoning behind a prior
holding if we cannot distinguish the facts or law of the case under consideration.
See Smith, 236 F.3d at 1301-04. So we consider whether we may limit Tompkins’s
holding to only Brady claims arising under § 2254.
Important differences between § 2254 and § 2255 do exist. Among others,
§ 2254 vindicates the concerns of comity and federalism by restricting when
federal courts can reopen state criminal convictions, while § 2255, which deals
with federal criminal convictions, does not.
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Nor is the interest of finality exactly the same for § 2254 and § 2255 claims.
“Finality has special importance in the context of a federal attack on a state
conviction.” McCleskey, 499 U.S. at 1469.
And separation-of-powers considerations drive § 2255 claims. See Bousley
v. United States, 523 U.S. 614, 620-21 (1998) (characterizing separation-of-powers
concerns as “the doctrinal underpinnings of habeas review” of federal convictions
and sentences); see also Welch v. United States, 136 S. Ct. 1257, 1268 (2016). But
they have no relevance to § 2254 claims.
Plus, the federal government has a distinctive concern for ensuring that
federal prosecutors have acted appropriately when it reviews § 2255 claims: “the
United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.”
Strickler, 527 U.S. at 281 (internal quotation marks omitted) (quoting Berger, 295
U.S. at 88).
Even the language of the two statutes’ respective gatekeeping provisions
differs. Compare 28 U.S.C. § 2244(b)(2)(B) (restricting habeas review of state
convictions to, among others, cases where “the factual predicate for the claim
could not have been discovered previously through the exercise of due diligence”),
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with 28 U.S.C. § 2255(h) (limiting federal habeas review to cases of “newly
discovered evidence,” among others). But see Gonzalez v. Sec., Dep’t of Corr.,
366 F.3d 1253, 1262 (11th Cir. 2004) (en banc) (recognizing “no material
difference in the relevant statutory language” between gatekeeping provisions of
sections 2244 and 2255).
All of these differences provide good reason to treat § 2254 and § 2255
claims differently under appropriate circumstances. But none of them allows us to
sufficiently distinguish Tompkins’s reasoning in analyzing Brady claims under
§ 2254 from how we must analyze Brady claims in this Circuit under § 2255.
As we have noted, Tompkins based its determination that all Brady claims
are necessarily “second or successive” on its conclusion that all Brady claims ripen
during trial or, at the latest, sentencing. We have already explained why, were we
starting our analysis from scratch, we would conclude that is not correct.
But we see no basis that allows us to distinguish between state and federal
proceedings in this regard; Brady claims in state proceedings do not “ripen” any
sooner than do Brady claims in federal proceedings under Tompkins’s definition of
the word. And while federal courts have a special interest in ensuring the integrity
of federal proceedings, we do not think that that fact alone explains why Brady
claims in state proceedings should be treated any differently than Brady claims in
federal proceedings.
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For these reasons, we must conclude that Tompkins’s reasoning governs all
second-in-time Brady claims, regardless of whether they are brought under § 2254
or § 2255. Despite Tompkins’s failure to adhere to—or even to attempt to apply—
the Panetti factors, we must nonetheless hew to Tompkins’s command and deem
Scott’s 2011 Motion “second or successive” under § 2255(h). Because Tompkins
is fatally flawed, however, we respectfully urge the Court to take this case en banc
so we can reconsider Tompkins’s reasoning.
V.
Having concluded we must dismiss Scott’s § 2255 motion as “second or
successive,” we now turn to Scott’s alternative motion to reopen his original 2006
Motion under Rule 60(b)(3). As we noted at the outset, the district court ultimately
granted Scott’s alternative motion to reopen but declined to grant him relief on the
merits. On appeal, neither party disputes that the district court was within its
power to reopen the 2006 Motion. Scott argues, however, that the district court
incorrectly concluded that he failed to adequately allege ineffective assistance of
his trial counsel in light of the government’s previously undisclosed evidence
about Pena.
The Sixth Amendment right to counsel “is the right to effective assistance of
counsel.” Strickland, 466 U.S. at 686 (citation and internal quotation marks
omitted). A claim of ineffective assistance of counsel requires a two-pronged
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showing: that counsel’s performance was constitutionally deficient and that
counsel’s deficiencies prejudiced the proceeding’s outcome. Id. at 693. The
district court concluded that even in light of the new evidence about Pena, Scott’s
trial counsel did not exhibit constitutionally deficient performance.
An attorney’s performance fails to meet the constitutional minimum when it
falls “below an objective standard of reasonableness . . . , which means that it is
outside the wide range of professionally competent assistance.” Payne v. Allen,
539 F.3d 1297, 1315 (11th Cir. 2008) (citations and internal quotation marks
omitted). We have observed that “omissions are inevitable” because “trial lawyers,
in every case, could have done something more or something different.” Chandler
v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000). We therefore “conduct a
highly deferential review of counsel’s performance and indulge the strong
presumption that counsel’s performance was reasonable and that counsel made all
significant decisions in the exercise of reasonable professional judgment.” Payne,
539 F.3d at 1315 (alteration and internal quotation marks omitted). “[T]rial
counsel has not performed deficiently when a reasonable lawyer could have
decided, under the circumstances, not to investigate or present particular
evidence.” Id. at 1316 (quoting Grayson v. Thompson, 257 F.3d 1194, 1225 (11th
Cir. 2001)).
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The district court acknowledged that Scott’s counsel took the government at
its word that it had produced all Brady and Giglio material, and, as a result, that his
counsel did not undertake additional steps to seek further impeachment material for
Pena. But the court refused to find “that no competent lawyer would have declined
to expend further time and resources” on searching for Brady and Giglio material
when defense counsel is “entitled presume that the government had disclosed all
such matters.” Scott argues on appeal that this is incorrect, and that under the
district court’s reasoning, “no counsel could ever be found ineffective, entitled as
counsel would be to blindly rely on the presumption that the prosecution has
provided the defense with all the exculpatory or impeachment material that is to be
found in the case.”
We conclude the district court did not abuse its discretion in declining to
find Scott’s trial counsel ineffective. The decision to refrain from additional
investigation into Pena’s background was within the “wide range of professionally
competent assistance,” given the inevitable choices defense lawyers must make
about how to deploy their limited time and resources. See Strickland, 466 U.S. at
690. An attorney’s performance is not deficient in hindsight just because he or she
made one choice versus another. Cf. Willis v. Newsome, 771 F.2d 1445, 1447
(11th Cir. 1985) (“Tactical decisions do not render assistance ineffective merely
because in retrospect it is apparent that counsel chose the wrong course.”).
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This is not to say that no attorney could ever be found ineffective for taking
the government’s word as grounds for refraining from further investigation. In
some cases obvious red flags might exist calling for further inquiry, even where the
government has assured defense counsel that it has disclosed all Brady and Giglio
material. An attorney who does not investigate under those circumstances might
indeed be constitutionally ineffective. But on the facts of this case, no such red
flags existed. We conclude that the district court did not abuse its discretion in
declining to grant Scott relief on his reopened 2006 Motion.
VI.
Ultimately, Tompkins binds us to conclude that in § 2255 cases, all second-
in-time Brady claims are “second or successive” under § 2255(h), even if the
petitioner could not reasonably have been expected to discover the Brady violation
and there is a reasonable probability that timely disclosure of the suppressed
evidence would have resulted in an acquittal. We think this conclusion conflicts
with Panetti and effects a suspension of the writ of habeas corpus as it pertains to
this narrow subset of Brady claims. Supreme Court precedent, the nature of the
right at stake here, and habeas corpus require a petitioner who has reasonably
probably been convicted because the government failed to disclose material
exculpatory evidence, to have a full and fair opportunity to obtain relief. For this
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reason, we urge our colleagues to rehear this case en banc and reevaluate the
framework we established in Tompkins.
AFFIRMED.
42