United States v. Lopez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 07-35389
D.C. Nos.
v.

CV-05-00084-JLQ
GABRIELE ELIZABETH LOPEZ, aka CR-02-00127-JLQ
Gabriele Elizabeth Koenig, Nee ORDER AND
Konig, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted
April 8, 2008—Seattle, Washington
Filed August 18, 2009
Before: Raymond C. Fisher, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher
11165
11168 UNITED STATES v. LOPEZ
COUNSEL
James A. McDevitt, United States Attorney; Stephanie
Whitaker (argued), Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
Beth Mary Bollinger, Spokane, Washington, for the
defendant-appellant.
Tarik Adlai, Pasadena, California, for amici curiae National
Association of Criminal Defense Attorneys and the Federal
Public Defender for the Central District of California.
ORDER
We previously granted Defendant-Appellant Gabrielle Eliz-
abeth Lopez’s Petition for Rehearing. The opinion filed July
16, 2008 and amended July 29, 2008, see United States v.
Lopez, 534 F.3d 1027 (9th Cir. 2008), is withdrawn. A super-
seding opinion will be filed concurrently with this order. Fur-
UNITED STATES v. LOPEZ 11169
ther petitions for rehearing or petitions for rehearing en banc
may be filed. Defendant-Appellant’s petition for rehearing en
banc, filed August 13, 2008, is denied as moot.
OPINION
FISHER, Circuit Judge:
Gabriele Lopez, a.k.a. Gabriele Koenig (“Lopez”), filed a
federal habeas corpus motion in the district court seeking to
vacate her drug conviction because the government withheld
until long after her trial potentially damaging credibility infor-
mation about one of the government’s principal witnesses, in
violation of the government’s disclosure obligations under
Brady v. Maryland, 373 U.S. 83 (1963).1 The district court
rejected the government’s argument that the court lacked
jurisdiction to hear the motion because it was barred by 28
U.S.C. § 2255(h) as “second or successive” and denied the
motion on its merits.2 The appeal in this case thus presents a
1
After we published an opinion in this case, Lopez filed a petition for
rehearing and rehearing en banc, and we granted the National Association
of Criminal Defense Attorneys and the Federal Public Defender for the
Central District of California permission to file a brief as amici curiae in
support of Lopez’s petition. On October 30, 2008, we granted Lopez’s
petition for rehearing. We now withdraw our earlier opinion and replace
it with this amended opinion.
2
Section 2255(h) states:
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
contain—
(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).
11170 UNITED STATES v. LOPEZ
troublesome circumstance involving the interplay between the
government’s failure to make a timely disclosure of Brady
information and the provisions of the Antiterrorism and Effec-
tive Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2244, 2255,
which, in the interest of finality, impose significant burdens
on defendants who try to raise new claims in “second or suc-
cessive” habeas petitions.3
In Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842,
2853-54 (2007), a capital case, the Supreme Court held that
competency-to-be-executed claims based on Ford v. Wain-
wright, 477 U.S. 399 (1986), were exempt from AEDPA’s
“second or successive” requirements. Noting that “Ford-
based incompetency claims, as a general matter, are not ripe
until after the time has run to file a first federal habeas peti-
tion,” the Court concluded that “Congress did not intend the
provisions of AEDPA addressing ‘second or successive’ peti-
tions to govern a filing in the unusual posture presented” in
a case where a second-in-time habeas petition raises a “Ford-
based incompetency claim filed as soon as that claim is ripe.”
Panetti, 127 S. Ct. at 2852-53. The Court identified three con-
siderations that supported its conclusion: (1) the implications
for habeas practice of reading “second or successive” literally
for such claims, (2) whether barring such claims would
advance the policies behind AEDPA’s passage and (3) the
Court’s pre- and post-AEDPA habeas jurisprudence, includ-
ing the common law abuse-of-the-writ doctrine.
As we shall explain more fully, although the Court’s rea-
soning in Panetti is potentially applicable to other types of
habeas claims, we do not believe Panetti can be read to sup-
port a construction of AEDPA that expands federal courts’
pre-AEDPA ability to reach the merits of claims presented in
second-in-time habeas petitions. Lopez has not demonstrated
the evidence the government failed to disclose is material to
3
All statutory provisions cited in this opinion refer to Title 28 of the
United States Code, unless otherwise stated.
UNITED STATES v. LOPEZ 11171
her guilt or innocence, see United States v. Bagley, 473 U.S.
667, 674-75 (1985) (explaining petitioner must establish sup-
pressed evidence’s materiality to guilt or innocence to prevail
on Brady claim), so her second-in-time claim would have
been barred under the pre-AEDPA abuse-of-the-writ doctrine.
Accordingly, we reject Lopez’s and amici’s argument that
Panetti supports exempting her second-in-time Brady claim
from § 2255(h)’s gatekeeping provisions, which expressly
address in § 2255(h)(1) the circumstances under which courts
may entertain “second or successive” claims based on “newly
discovered evidence.” We decline to resolve the more diffi-
cult question whether federal courts have jurisdiction to con-
sider a subset of meritorious Brady claims that federal courts
would have considered on the merits under the pre-AEDPA
abuse-of-the-writ doctrine but that would be barred under a
literal reading of “second or successive” in § 2255(h)(1).
Lopez’s claim as presented was subject to § 2255(h)(1)’s
gatekeeping requirements, so she was required to obtain per-
mission from the court of appeals before filing her § 2255
motion in district court. Because she failed to obtain our per-
mission, the district court did not have jurisdiction to reach
the merits of her Brady claim. Even if we construe Lopez’s
appeal as a belated request to us for authorization to file her
motion, we would deny certification because the newly dis-
covered evidence would not be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would
have found her guilty of the offense. See § 2255(h)(1). We
also conclude the government’s conduct, albeit troublesome,
was not “so grossly shocking and so outrageous as to violate
the universal sense of justice,” United States v. Restrepo, 930
F.2d 705, 712 (9th Cir. 1991) (internal quotation marks and
citations omitted), that her conviction must be vacated and the
indictment dismissed.
I.
Lopez was indicted in May 2002 on several charges of pos-
session of cocaine base with intent to distribute. She was tried
11172 UNITED STATES v. LOPEZ
together with Elvis Singh and James Evans, with whom she
lived in a house in Spokane, Washington. Two informants,
David Palmer (“Palmer”) — who emerges as the central fig-
ure in this appeal — and Janie Arambula (“Arambula”), testi-
fied on behalf of the government.
Palmer testified about an occasion on April 9, 2002, when
he went to the defendants’ house in Spokane to buy crack
cocaine with two other participants. The jury heard Palmer’s
recorded conversations with these participants regarding their
drug purchase inside the house. Palmer testified that he did
not see Lopez on that occasion and had never met her at any
other time. Defense counsel cross-examined Palmer about a
variety of issues, such as whether he had used or presently
used drugs and the payment for his work as an informant.
During the trial, a case agent testified that he had taken
Palmer’s Drug Enforcement Administration (“DEA”) file to
the United States Attorney’s Office and that Assistant United
States Attorney Tom Rice (“Rice”) had spoken with Agent
Shelby Smith (“Agent Smith”) of the local DEA. The case
agent further testified that Rice had written a note to one of
the government’s trial attorneys that there was no Brady
material in the file. Frank Cikutovich, counsel for one of the
co-defendants, told the court he was concerned about whether
the government had disclosed all Brady material about Palmer
and requested that the court review Palmer’s file for Brady
material. The court declined, saying it was the responsibility
of the United States Attorney’s Office, not the court, to do so.
As Lopez learned several years later, on June 6, 2002 —
two months before her trial — Lieutenant Chandler Bailey
(“Lt. Bailey”) of the Spokane Police Department Drug Task
Force had called Agent Smith to tell him that the City and
County of Spokane would no longer be using Palmer as a
confidential source in controlled drug buys because he was
“unreliable.” Lt. Bailey had learned that Palmer had been sex-
ually involved with at least one woman who was the subject
UNITED STATES v. LOPEZ 11173
of a drug investigation conducted by the Spokane Police
Department, that some officers believed Palmer had used
investigative funds to buy services from prostitutes and that
Palmer usually sought out women when he chose his own tar-
gets for investigation. Although Lt. Bailey had prepared a
memorandum discussing the allegations that Palmer was “un-
reliable” (the “Bailey memorandum”), he had not sent a copy
to Agent Smith and the memorandum was not in the file at the
time Rice inspected it. There is no evidence that Agent Smith
relayed the information from the conversation he had with Lt.
Bailey to Rice or Assistant United States Attorney Earl Hicks,
who was then in charge of the prosecution of Lopez and her
co-defendants. Nor is there evidence that the government
attorneys involved in the cases asked the pertinent govern-
ment agents whether they had any personal knowledge con-
cerning the credibility of the government witnesses, or any
other Brady information, as opposed to merely looking in
Palmer’s file.
The defense completed its cross-examination of Palmer
without being informed that the City and County of Spokane
were no longer using Palmer because he was considered unre-
liable. Palmer’s testimony did not directly inculpate Lopez in
any drug transaction, and at the close of evidence the court
instructed the jury that the testimony of an informant should
be examined with greater care than the testimony of an unpaid
witness.
Another informant, Arambula, testified about a wire-
recorded controlled purchase of cocaine base she made on
April 18, 2002 from Lopez’s co-defendant Singh, in which
Lopez participated. This was not the controlled purchase
about which Palmer testified. Arambula’s testimony was that
she placed a consensually monitored and recorded telephone
call to Singh to arrange to purchase a half ounce of crack
cocaine. When she arrived at the house, Lopez answered the
door and led her to a bedroom where Singh was on the bed.
Arambula asked to buy a half ounce of crack cocaine, she and
11174 UNITED STATES v. LOPEZ
Singh discussed the price, and then Lopez retrieved and
weighed the crack cocaine for Arambula. Lopez gave her the
crack cocaine, and Arambula then laid the money on Singh’s
chest. Agent Beaumont testified about this transaction,
explaining that he was with Arambula during her telephone
call with Singh and that he conducted surveillance during the
controlled purchase. The tape of the telephone call and the
transmitter wire recording of the controlled buy were admitted
into evidence and played for the jury.
The jury found the defendants guilty of the cocaine base
charges. Specifically, the jury found Lopez guilty of two
counts of violation of 21 U.S.C. § 841(a)(1) (Count 5 —
knowingly and unlawfully distributing a mixture or substance
containing more than five grams of cocaine base; and Count
6 — knowingly and unlawfully possessing with intent to dis-
tribute a mixture or substance containing more than 50 grams
of cocaine base).
The district court set aside the jury’s verdict on Count 6,
finding insufficient evidence to support a conviction. It found,
however, there was clear and convincing evidence to support
the jury verdict on Count 5. The court sentenced Lopez to the
mandatory minimum term of five years. On Lopez’s direct
appeal, we affirmed her conviction and sentence in an unpub-
lished disposition. See United States v. Singh, 94 F. App’x
511, 514 (9th Cir. 2004).
In March 2005, Lopez filed her first motion to set aside,
vacate or correct her sentence under § 2255, claiming ineffec-
tive assistance of counsel, a violation of her Sixth Amend-
ment right to an impartial jury, a due process violation and a
sentence in violation of United States v. Booker, 543 U.S. 220(2005). The district court denied the motion. Then, in 2006,
the new Brady information regarding Palmer came to light in
a different case, United States v. Heit, E. D. Wash. No. CR-
05-6028-EFS, in which Palmer was an informant-witness for
the government. Upon learning about the Bailey memoran-
UNITED STATES v. LOPEZ 11175
dum and its negative information about Palmer, the govern-
ment’s counsel in Heit disclosed it to the defense counsel in
that case, who in turn disclosed it to Lopez’s counsel and her
co-defendants’ counsel. At some time during the prosecution
of the Heit case, the Bailey memorandum was put in Palmer’s
file.
Meanwhile, the district court in Heit held extensive pretrial
evidentiary hearings on the defendant’s motion to dismiss
based on the government’s alleged outrageous behavior in
using Palmer as a confidential informant. Although the court
recognized that “Palmer’s testimony [was] critical to the Gov-
ernment as he [was] the only ‘government agent’ to have per-
sonally talked with [the defendant],” it nevertheless denied
Heit’s motion and precluded her from introducing evidence
about uncharged allegations of Palmer’s sexual misconduct
and being “black balled” by government agencies. The court
found that any relevance the alleged sexual incidents might
have had regarding Palmer’s credibility or motives was sub-
stantially outweighed by their prejudicial value, especially in
light of other information Heit could utilize to impeach
Palmer.
In the case before us, Lopez filed her § 2255 motion in the
district court in November 2006 to vacate her conviction and
dismiss the indictment with prejudice, based on the govern-
ment’s alleged outrageous behavior in failing to furnish dam-
aging impeachment information concerning Palmer as
required under Brady. Rejecting the government’s argument
that Lopez’s motion was an impermissible second or succes-
sive motion that had not been certified by this court under
§ 2255(h), the district court denied her motion on the merits,
finding that the impeachment evidence would not have mate-
rially affected the guilty verdict on Count 5. This appeal fol-
lowed.
II.
Lopez contends the district court erred in finding the gov-
ernment’s failure to disclose the information about Palmer
11176 UNITED STATES v. LOPEZ
contained in the Bailey memorandum did not violate Brady.
In determining whether there has been a Brady violation, we
consider whether the evidence was: (1) favorable to the
accused, (2) suppressed by the government and (3) material
to the guilt or innocence of the defendant. See United States
v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc).
Evidence is favorable if it is exculpatory or impeaches a pros-
ecution witness, and suppression occurs when favorable evi-
dence known to police or the prosecution is not disclosed,
either willfully or inadvertently. See Banks v. Dretke, 540
U.S. 668, 691 (2004); Hovey v. Ayers, 458 F.3d 892, 916 (9th
Cir. 2006). Evidence is material when “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent.” Bagley, 473 U.S. at 682; see also Kyles v. Whitley, 514
U.S. 419, 434-36 (1995). “A ‘reasonable probability’ of a dif-
ferent result [exists] when the government’s evidentiary sup-
pression ‘undermines confidence in the outcome of the
trial.’ ” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at
678). If the petitioner establishes all three elements, the chal-
lenged conviction or sentence must be set aside. See generally
Brady, 373 U.S. 83.
This is Lopez’s second § 2255 motion challenging her con-
viction, however, so before we can address the merits of her
Brady claim we must first decide whether AEDPA restricts
her ability to bring this motion. AEDPA imposes significant
limitations on the power of federal courts to award relief to
prisoners who file “second or successive” habeas petitions,
see Cooper v. Calderon, 274 F.3d 1270, 1272-73 (9th Cir.
2001) (per curiam), although it nowhere defines the term
“second or successive,” see Henderson v. Lampert, 396 F.3d
1049, 1053 (9th Cir. 2005). We review de novo the district
court’s finding that Lopez’s § 2255 motion was not “second
or successive” under AEDPA. See id. at 1052.
A.
Prior to AEDPA’s enactment in 1996, “a complex and
evolving body of equitable principles informed and controlled
UNITED STATES v. LOPEZ 11177
by historical usage, statutory developments, and judicial deci-
sions” known as the abuse-of-the-writ doctrine guided federal
courts’ consideration of second-in-time habeas petitions.
McClesky v. Zant, 499 U.S. 467, 489 (1991). In McClesky, the
Supreme Court clarified its “oblique” attempts to define the
abuse-of-the-writ doctrine. Id. at 477. “[A] petitioner may
abuse the writ by failing to raise a claim [in a prior petition]
through inexcusable neglect” or by deliberately abandoning a
claim raised in an earlier petition. Id. at 489. To establish
excusable neglect, the petitioner had to make two showings:
“cause for failing to raise [the claim earlier] and prejudice
therefrom.” Id. at 494. “For cause to exist, the external imped-
iment, whether it be government interference or the reason-
able unavailability of the factual basis for the claim, must
have prevented petitioner from raising the claim.” Id. at 497;
see also id. at 498 (explaining cause inquiry turns on
“whether petitioner possessed, or by reasonable means could
have obtained, a sufficient basis to allege a claim in the first
petition”). “Once the petitioner has established cause, he must
show actual prejudice resulting from the errors of which he
complains.” Id. at 494 (internal quotation marks omitted).
Even if “petitioner cannot show cause, the failure to raise the
claim in an earlier petition may nonetheless be excused if he
or she can show that a fundamental miscarriage of justice
would result from a failure to entertain the claim.” Id. at 494-
95. If petitioner failed to establish cause and prejudice or sat-
isfy the miscarriage-of-justice exception, the court had to dis-
miss the petition as an abuse of the writ. See id. at 487.
Although the Supreme Court has not conducted an abuse-
of-the-writ analysis of a Brady claim, it did address a proce-
durally defaulted Brady claim in Strickler v. Greene, 527 U.S.
263 (1999). Its analysis is instructive, because the Court
derived the cause and prejudice components of the abuse-of-
the-writ doctrine from its procedural default jurisprudence.
See McClesky, 499 U.S. at 493-94. In Strickler, the Court held
that petitioner was unable to establish prejudice because the
suppressed evidence was not material under Brady. See id. at
11178 UNITED STATES v. LOPEZ
296 (“[P]etitioner has not shown that there is a reasonable
probability that his conviction or sentence would have been
different had these materials been disclosed. He therefore can-
not show materiality under Brady or prejudice from his failure
to raise the claim earlier.”).4 Applying Strickler’s holding
regarding prejudice to pre-AEDPA abuse-of-the-writ doctrine,
federal habeas courts could reach the merits of Brady claims
in second-in-time petitions only if the evidence was material
under Brady.5
B.
In 1996, Congress enacted AEDPA, codifying the judi-
cially established principles reflected in the abuse-of-the-writ
doctrine and further restricting the availability of relief to
habeas petitioners. See Felker v. Turpin, 518 U.S. 651, 664
(1996). AEDPA’s scant legislative history, consisting of three
paragraphs in a single conference committee report, suggests
Congress was concerned primarily with federal habeas review
of capital cases. See H.R.Rep. No. 104-518, at 111 (1996),
reprinted in 1996 U.S.C.C.A.N. 944 (stating that the bill “in-
corporates reforms to curb the abuse of the statutory writ of
habeas corpus, and to address the acute problems of unneces-
sary delay and abuse in capital cases”).
4
Strickler also addressed the “cause” prong of the cause-and-prejudice
analysis, holding that the government’s suppression of the evidence con-
stituted sufficient cause. See 527 U.S. at 289. We need not address
whether or to what extent Strickler’s cause analysis would be applicable
to the pre-AEDPA abuse-of-the-writ doctrine generally, or to Brady
claims such as the one at issue in this case.
5
Although it may seem strange to determine whether a procedurally
barred Brady claim can be considered on the merits through a cause and
prejudice inquiry that necessarily involves addressing the merits of the
Brady claim itself, see Strickler, 527 U.S. at 282 (noting “cause and preju-
dice parallel two of the three components of the alleged Brady violation
itself”), the Court concluded such an approach was doctrinally sound, see
id. at 296 (holding petitioner could not establish prejudice because he
could not establish materiality under Brady).
UNITED STATES v. LOPEZ 11179
[1] Section 2244(a) governs when a court may entertain a
§ 2255 motion (challenging a federal conviction) after an ear-
lier § 2255 motion challenging the federal conviction has
already been decided:
No circuit or district judge shall be required to enter-
tain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been deter-
mined by a judge or court of the United States on a
prior application for a writ of habeas corpus, except
as provided in section 2255.
Section 2255(h) in turn provides:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropri-
ate court of appeals to contain:
(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 evi-
dence 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.
Accordingly, a petitioner must move for authorization from
this court to file a “second or successive” § 2255 motion in
the district court, and the motion will be denied unless the
petitioner makes a prima facie showing that satisfies the
§ 2255(h)(1) gatekeeping requirements.6 See Cooper, 274
6
Section 2244(b) governs habeas petitions challenging state convictions
under § 2254 and establishes virtually identical restrictions on “second or
11180 UNITED STATES v. LOPEZ
F.3d at 1273. If the petitioner does not first obtain our authori-
zation, the district court lacks jurisdiction to consider the sec-
ond or successive application. See Burton v. Stewart, 549 U.S.
147, 152-53 (2007) (per curiam).
Reading these provisions literally, every second-in-time
§ 2255 motion would be barred unless the petitioner first
obtains authorization from the court of appeals. Because the
court of appeals’ permission is contingent upon the claim’s
satisfaction of AEDPA’s gatekeeping provisions, every
second-in-time habeas claim would be barred unless it estab-
lishes by clear and convincing evidence that no reasonable
factfinder would have convicted the prisoner of the underlying
offense or that the petition is based on a “new rule of constitu-
tional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.”
§ 2255(h)(2), § 2244(b)(2)(A).
[2] The Supreme Court, however, has not always read “sec-
ond or successive” literally. In Stewart v. Martinez-Villareal,
523 U.S. 637, 644-45 (1998), the Court held a second-in-time
§ 2254 petition raising a Ford competency-to-be-executed
claim that had been raised in an earlier petition but dismissed
as unripe was not “second or successive” under AEDPA and
should instead be “treated in the same manner as the claim of
a petitioner who returns to a federal habeas court after
exhausting state remedies.” Just as a federal habeas court can-
not adjudicate unexhausted claims presented in an initial fed-
eral habeas petition, it cannot resolve a premature Ford claim,
so failing to allow petitioner to proceed with the now-ripe
Ford claim “would mean that a dismissal of a first habeas
petition for technical procedural reasons would bar the pris-
successive” petitions, see § 2244(b)(2)(B)(ii), with the added requirement
that petitioner establish that the factual predicate of newly discovered
claims could not have been discovered earlier through due diligence, see
§ 2244(b)(2)(B)(i), which parallels the “cause” requirement for procedur-
ally barred claims, see Murray v. Carrier, 477 U.S. 478, 487-88 (1986).
UNITED STATES v. LOPEZ 11181
oner from ever obtaining federal habeas review.” Id. at 645.
The Court also explained that the state’s reliance on Felker,
518 U.S. at 664 (stating that AEDPA’s “restrictions on suc-
cessive petitions constitute a modified res judicata rule, a
restraint on what used to be called in habeas corpus practice
‘abuse of the writ’ ”), was misplaced: the Ford claim “would
not be barred under any form of res judicata,” because the
petitioner “brought his claim in a timely fashion, and it has
not been ripe for resolution until now.” Martinez-Villareal,
523 U.S. at 645. The Court left open, however, whether a fil-
ing would be “second or successive” under AEDPA “where
a prisoner raises a Ford claim for the first time in a petition
filed after the federal courts have already rejected the prison-
er’s initial habeas application.” Id. at 645 n.*.
In Slack v. Daniel, 529 U.S. 473, 486 (2000), applying pre-
AEDPA law, the Court construed the meaning of the term
“second or successive” in former Rule 9(b) of the Rules Gov-
erning Habeas Corpus Proceedings, although it “[did] not sug-
gest the definition of second or successive would be different
under AEDPA.” After explaining Rule 9(b) “incorporates our
prior decisions regarding successive petitions and abuse of the
writ” and “[t]he phrase ‘second or successive petition’ is a
term of art given substance in our prior habeas corpus cases,”
id., the Court held a § 2254 petition filed after an initial peti-
tion had been dismissed for containing both exhausted and
unexhausted claims was not “second or successive,” even if
it contained claims not included in the first petition, see id. at
487. The initial petition had been dismissed “before the dis-
trict court adjudicated any claims,” so the second petition was
“treated as ‘any other first petition.’ ” Id.
[3] In Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct.
2842, 2853 (2007), the Court resolved the question it had left
open in Martinez-Villareal and held a second-in-time § 2254
petition raising a Ford claim was not “second or successive,”
even though petitioner had not included that claim in the orig-
inal petition. The Court noted that, “Ford-based incompe-
11182 UNITED STATES v. LOPEZ
tency claims, as a general matter, are not ripe until after the
time has run to file a first federal habeas petition,” and that
applying AEDPA’s “second or successive” bar to such Ford
claims raised in a second-in-time habeas petition would
require “conscientious defense attorneys . . . to file unripe
(and, in many cases, meritless) Ford claims in each and
every” habeas application. Id. at 2852. The Court solved this
“dilemma” by looking to the pre-AEDPA abuse-of-the-writ
standard:
The phrase “second or successive” is not self-
defining. It takes its full meaning from our case law,
including decisions predating the enactment of
[AEDPA]. The Court has declined to interpret “sec-
ond or successive” as referring to all § 2254 applica-
tions filed second or successively in time, even when
the later filings address a state-court judgment
already challenged in a prior § 2254 application.
Id. The Court cited three considerations supporting its conclu-
sion that Congress did not intend to subject unripe Ford
claims to AEDPA’s gatekeeping provisions: (1) the implica-
tions for habeas practice of adopting a literal interpretation of
“second or successive,” (2) the purposes of AEDPA and (3)
the Court’s prior habeas corpus decisions, including those
applying the abuse-of-the-writ doctrine.7 See id. at 2853-54.
The Court cautioned against interpreting AEDPA’s “second
or successive” provisions in a way that would foreclose any
7
The government is therefore mistaken that Burton v. Stewart, 549 U.S.
147, limited the relevance of pre-AEDPA abuse-of-the writ decisions. In
Burton, the Supreme Court did not question our reliance on abuse-of-the-
writ considerations, see id. at 797 (“We assume for the purposes of this
case, without deciding, that the Ninth Circuit’s ‘legitimate excuse’
approach to determining whether a petition is ‘second or successive’ is
correct.”), but rather held our application of that doctrine was inconsistent
with the Court’s decisions governing the precise circumstances at issue,
see id. Panetti thus answered the question Burton left open by expressly
relying on abuse-of-the-writ considerations for unripe Ford claims.
UNITED STATES v. LOPEZ 11183
federal review of a constitutional claim, or otherwise lead to
perverse results, absent a clear indication that Congress
intended that result. See id. at 2854. Usually “a petition filed
second in time and not otherwise permitted by the terms of
§ 2244 will not survive AEDPA’s ‘second or successive’
bar,” but the Court was reluctant to construe the statute “in a
manner that would require unripe (and, often, factually unsup-
ported) claims to be raised as a mere formality [in the first
petition].” Id. at 2855.8
C.
[4] The Supreme Court has not decided whether the consid-
erations it identified in Panetti apply to other types of second-
in-time claims or whether second-in-time Brady claims are
“second or successive” under AEDPA. These are also open
questions in our circuit.9 Lopez and amici argue the consider-
ations in Panetti apply with equal force to Brady claims, so
all Brady claims should be exempt from AEDPA’s gatekeep-
ing provisions. The government, on the other hand, contends
all second-in-time Brady claims are subject to AEDPA’s
gatekeeping provisions, because they are “second or succes-
8
Panetti ratified the view of the majority of the circuit courts that the
meaning of “second or successive” is informed by the abuse-of-the-writ
doctrine. See, e.g., United States v. Barrett, 178 F.3d 34, 42-44 (1st Cir.
1999); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Benchoff v. Cal-
leran, 404 F.3d 812, 817 (3d Cir. 2005); In re Cain, 137 F.3d 234, 235-
36 (5th Cir. 1998) (per curiam); In re Bowen, 436 F.3d 699, 704 (6th Cir.
2006); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001); Allen v.
Ornoski, 435 F.3d 946, 956 (9th Cir. 2006); Reeves v. Little, 120 F.3d
1136, 1138-39 (10th Cir. 1997) (per curiam); Medberry v. Crosby, 351
F.3d 1049, 1062 (11th Cir. 2003).
9
Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004) (en banc)
(order), involved a capital petitioner’s request to file a second-in-time peti-
tion containing a Brady claim. We did not squarely address whether the
petition was “second or successive” under AEDPA; instead, we declined
to decide whether the abuse-of-the-writ standard or the “stricter” AEDPA
standard applied, holding that, “[u]nder either standard,” the defendant
was “entitled to file a second-or-successive application.” Id. at 1119-20.
11184 UNITED STATES v. LOPEZ
sive” claims that rely on “newly discovered evidence,” see
§ 2255(h)(1).
We agree with Lopez and amici that Panetti is relevant to
this inquiry. Panetti recognized that “second or successive” is
a term of art that may not always be read literally. See Panetti,
127 S. Ct. at 2853. The considerations the Court identified in
support of its holding are not specifically limited to Ford
claims, see id. at 2853-54, and therefore must be considered
in deciding whether other types of claims that do not survive
a literal reading of AEDPA’s gatekeeping requirements may
nonetheless be addressed on the merits. Accordingly, we con-
sider whether Panetti supports exempting Lopez’s second-in-
time Brady claim from § 2255(h).
Given the nature of Brady claims, petitioners often may not
be at fault for failing to raise the claim in their first habeas
petition. It is the prosecutor who violates Brady’s disclosure
obligations by not providing favorable evidence to the
defense, and that prosecutorial error may not surface until
petitioner’s first habeas petition has already been resolved.
Such prosecutorial error, however, does not rise to the level
of a constitutional violation unless petitioner demonstrates a
threshold level of prejudice: the undisclosed evidence must be
material. See Strickler, 527 U.S. at 281-82. Regardless of
whether a Brady claim is raised in a first petition or a second-
in-time petition, petitioner can prevail and obtain a new trial
only if “there is a reasonable probability that, had the evi-
dence been disclosed to the defense, the result of the proceed-
ing would have been different.” Bagley, 473 U.S. at 682; see
also Kyles, 514 U.S. at 434 (holding “a showing of materiality
does not require demonstration by [even] a preponderance
that disclosure of the suppressed evidence would have
resulted ultimately in the defendant’s acquittal”; rather, with-
held evidence is material if, in its absence, the defendant did
not receive a fair trial, “understood as a trial resulting in a ver-
dict worthy of confidence”).
UNITED STATES v. LOPEZ 11185
Before AEDPA’s passage, if the prosecution failed to dis-
close the potential Brady evidence until after a first habeas
petition had been resolved, the petitioner could then raise the
Brady claim in a second-in-time petition so long as it was not
barred by the abuse-of-the-writ doctrine. Applying the preju-
dice analysis in Strickler, federal courts could reach the merits
of second-in-time Brady claims only when the suppressed evi-
dence was material, and would have had to dismiss as an
abuse of the writ meritless claims that did not establish mate-
riality. See Strickler, 527 U.S. at 296. Thus, before AEDPA,
federal courts generally would have been able to reach the
merits and remedy every meritorious Brady claim presented
in a second-in-time petition when the “cause” prong of the
abuse-of-the-writ doctrine was also satisfied.
In contrast, under a literal reading of “second or succes-
sive” in AEDPA, federal courts would lack jurisdiction to
consider any second-in-time Brady claims unless petitioner
demonstrates by clear and convincing evidence that no rea-
sonable factfinder would have found petitioner guilty of the
offense had the newly disclosed evidence been available at
trial. See § 2255(h)(1). If § 2255(h) applies literally to every
second-in-time Brady claim, federal courts would be unable
to resolve an entire subset of meritorious Brady claims: those
where petitioner can show the suppressed evidence estab-
lishes a reasonable probability of a different result and is
therefore material under Brady, but cannot, under
§ 2255(h)(1)’s more demanding prejudice standard, show that
the evidence establishes by clear and convincing evidence
that no reasonable juror would have voted to convict peti-
tioner.
Lopez and amici are therefore correct that the broad rule
the government advocates, under which all second-in-time
Brady claims would be subject to § 2255(h)(1), would com-
pletely foreclose federal review of some meritorious claims
and reward prosecutors for failing to meet their constitutional
11186 UNITED STATES v. LOPEZ
disclosure obligations under Brady.10 This would seem a per-
verse result and a departure from the Supreme Court’s abuse-
of-the-writ jurisprudence, see Strickler, 527 U.S. at 296. Bar-
ring these claims would promote finality — one of AEDPA’s
purposes — but it would do so only at the expense of fore-
closing all federal review of meritorious claims that petitioner
could not have presented to a federal court any sooner — cer-
tainly not an AEDPA goal. Cf. Panetti, 127 S. Ct. at 2854(explaining AEDPA’s concern for finality was not implicated
because federal courts are not “able to resolve a petitioner’s
Ford claim before execution is imminent”).
[5] Panetti, however, does not provide an easy answer to
how federal courts should treat meritorious second-in-time
Brady claims under AEDPA. Although the considerations in
Panetti seem relevant, the Court’s reasoning may not translate
to second-in-time Brady claims, for at least two reasons. As
the government has argued, § 2255(h)(1) contains an express
statutory standard for dealing with “second or successive”
claims based on “newly discovered evidence.” Brady claims,
by their nature, necessarily rest on newly discovered evi-
dence. Congress’ expressed intent to limit the circumstances
in which a court can entertain a petition based on newly dis-
covered evidence may therefore distinguish Brady claims
from the “unusual posture presented” by Ford claims, Panetti,
127 S. Ct. at 2853.11 Additionally, a literal application of
10
This concern is not purely hypothetical. Cf. Ciaran McEvoy, With-
holding Evidence Causes Worry, Daily Journal, July 2, 2009, at 1
(describing several federal criminal prosecutions that “crumbled after it
was revealed authorities failed to disclose key information that could have
tainted witnesses’ credibility”); Carrie Johnson, After Stevens Case, Jus-
tice Dept. Corruption Unit in Disarray, WASH. POST, June 18, 2009, at A3
(describing failures by prosecutors in Department of Justice’s Public
Integrity Section to disclose evidence favorable to defendants).
11
We note, however, that Panetti itself involved evidence that was not
available when petitioner filed his first federal habeas petition, compare
127 S. Ct. at 2849 (noting denial of petitioner’s first § 2254 petition,
which did not argue that petitioner’s mental illness rendered him incompe-
UNITED STATES v. LOPEZ 11187
§ 2255(h)(1) would not bar all second-in-time Brady claims
from proceeding to a merits determination, because some
meritorious Brady claims will establish by clear and convinc-
ing evidence that no reasonable factfinder would have found
the movant guilty of the offense, see § 2255(h)(1), thereby
satisfying one of the exceptions to the bar on “second or suc-
cessive” claims that is expressly provided by statute. Perhaps
the differing effects that § 2255(h)(1) would have on meritori-
ous Brady claims — barring some and allowing others to pro-
ceed — is a “clear indication” that Congress intended to
restrict the type of Brady violations for which courts may
grant relief in second-in-time petitions. Panetti, 127 S. Ct. at
2854 (internal quotation marks omitted).
Nonetheless, even if Panetti could be viewed as supporting
an exemption from AEDPA’s gatekeeping provisions for mer-
itorious Brady claims, such a rule would not benefit Lopez,
because we conclude (1) that Brady claims that fail to estab-
lish materiality (and therefore lack merit) are subject to
tent to be executed, became final in 2003) with id. at 2850-51 (noting evi-
dence supporting petitioner’s competency-to-be-executed claim that was
not available until 2004: namely, a letter and a declaration from a psychol-
ogist and law professor who had interviewed petitioner while he was on
death row on February 3, 2004, and whose testimony, according to peti-
tioner, demonstrated that petitioner did not understand the reasons he was
about to be executed). Thus, because it is the government’s own failure to
disclose the evidence that brings the Brady claim within the “newly dis-
covered” category, it is not clear that such previously unavailable evidence
should not come within Panetti’s rationale. On the other hand, Panetti did
not turn on whether petitioner had adduced new evidence, but rather on
the fact that petitioner’s Ford claim was not ripe until shortly before he
brought his second habeas petition. See id. at 2853. Thus, because the
Court in Panetti did not consider the significance of the new evidence sup-
porting the second-in-time claim, but rather focused on whether the Ford
claim could have been adjudicated at the time the first habeas petition was
dismissed, it is not clear that a Brady claim, which squarely relies on
“newly discovered evidence,” comes within Panetti’s rationale. We do not
need to reach this issue, however, for the reasons discussed in detail
below.
11188 UNITED STATES v. LOPEZ
AEDPA’s gatekeeping provisions and (2) that Lopez has
failed to establish materiality.12 Whatever the consequence
that a literal application of § 2255(h)(1) would have on meri-
torious Brady claims, Lopez’s and amici’s argument that
Panetti supports exempting all second-in-time Brady claims
from AEDPA’s gatekeeping provisions is untenable. Second-
in-time Brady claims that did not establish materiality would
have been barred under the abuse-of-the-writ doctrine pre-
AEDPA. See Strickler, 527 U.S. at 296. Exempting all
second-in-time Brady claims from AEDPA’s gatekeeping
provisions would therefore allow some claims to proceed to
a merits determination that would have been barred under the
abuse-of-the-writ doctrine. Contra Felker, 518 U.S. at 664(holding that AEDPA “codifies some of the pre-existing lim-
its on successive petitions, and further restricts the availability
of relief to habeas petitioners”). Although the Supreme Court
has never explained with precision which aspects of the
abuse-of-the-writ doctrine AEDPA codified without modifi-
cation and which aspects it strengthened, see id., no court has
ever held AEDPA expands the availability of habeas relief or
allows federal courts to consider claims that would have been
barred under the abuse-of-the-writ doctrine, cf. Sanders v.
United States, 373 U.S. 1, 11-12 (1963) (declining to read
congressional modification to habeas statutes as preventing
courts from dismissing claims that would have been barred as
abuse of the writ). Moreover, construing nonmaterial Brady
12
Although it would be simpler to say it is irrelevant whether Lopez’s
claim is “second or successive” under AEDPA because it will ultimately
fail on the merits, we may not do so. Section 2255(h) is a jurisdictional
bar, and we may not assume our jurisdiction, complicated though the juris-
dictional inquiry may be, in order to resolve the case on the merits,
straightforward though the merits inquiry may be. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998) (holding federal courts cannot
assume their jurisdiction in order to resolve case on the merits “because
it carries the courts beyond the bounds of authorized judicial action and
thus offends fundamental principles of separation of powers”); see also id.(“Without jurisdiction the court cannot proceed at all in any cause.” (inter-
nal quotation marks omitted)).
UNITED STATES v. LOPEZ 11189
claims as “second or successive” is consistent with Panetti’s
analytical approach: it would not be perverse to bar such
claims, given their lack of merit; precluding federal review of
such claims would conform with the Supreme Court’s pre-
AEDPA jurisprudence; and it would be fully consistent with
AEDPA’s goals of promoting finality, comity and federalism
to bar petitioners from raising such meritless claims in
second-in-time petitions. See Panetti, 127 S. Ct. at 2853-54.
[6] We therefore hold that Brady claims are not categori-
cally exempt from AEDPA’s gatekeeping provisions and that
second-in-time Brady claims that do not establish materiality
of the suppressed evidence are subject to dismissal under
§ 2255(h)(1). This conclusion is consistent with our post-
AEDPA decisions, in which we have explained that the
abuse-of-the-writ doctrine “is now codified by . . . . AEDPA,”
see Calderon v. U.S. Dist. Ct., 163 F.3d 530, 538 (9th Cir.
1998) (en banc) (citing Felker, 518 U.S. at 664), abrogated on
other grounds by Woodford v. Garceau, 538 U.S. 202 (2003),
and that “second or successive” in AEDPA is a “ ‘term of art
. . . derivative of the “abuse-of-the-writ” doctrine developed
in pre-AEDPA cases,’ ” see Allen v. Ornoski, 435 F.3d 946,
956 (9th Cir. 2006) (quoting Hill v. Alaska, 297 F.3d 895,
897-98 (9th Cir. 2002)). None of our post-AEDPA decisions
have suggested federal courts are now free to reach the merits
of claims that would have been barred as an abuse of the writ.13
13
Our post-AEDPA decisions have sometimes focused only on the
cause inquiry when summarizing the abuse-of-the-writ doctrine. See, e.g.,
Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Generally, a new
petition is ‘second or successive’ if it raises claims that were or could have
been adjudicated on their merits in an earlier petition.” (internal quotation
marks omitted)). But, as we have also recognized, establishing a legitimate
excuse for not bringing the claim sooner is necessary but not itself suffi-
cient: “If the petitioner can show cause for his failure to raise the claim,
he then must demonstrate ‘actual prejudice resulting from the errors of
which he complains.’ ” Allen, 435 F.3d at 956 (internal quotation marks
omitted) (quoting McClesky, 499 U.S. at 494).
11190 UNITED STATES v. LOPEZ
[7] Accordingly, we need not, and do not, resolve the more
difficult question whether all second-in-time Brady claims
must satisfy AEDPA’s gatekeeping requirements, because
Lopez’s second-in-time Brady claim falls into the category of
nonmaterial Brady claims that we have concluded is subject
to § 2255(h)(1). Cf. Greater New Orleans Broad. Ass’n v.
United States, 527 U.S. 173, 184 (1999) (“It is . . . an estab-
lished part of our constitutional jurisprudence that we do not
ordinarily reach out to make novel or unnecessarily broad
pronouncements on constitutional issues when a case can be
fully resolved on a narrower ground.”). First, assuming the
defense was allowed to use the information to impeach
Palmer, his testimony did not directly inculpate Lopez.14 He
did not testify about Lopez at all or about the drug transaction
at issue in Count 5, so the weight given his testimony would
not likely have affected the verdict against Lopez, regardless
of whether he was impeached as thoroughly as possible or
not. Second, the district court allowed extensive cross-
examination of Palmer that gave the jury information to
appraise his credibility and motivations. Third, even if Lopez
is correct that there may have been some kind of spillover
effect from Palmer’s testimony on the jury’s view of Aram-
bula’s testimony about the transaction in which Lopez was
involved, there was strong evidence against Lopez on Count
5 in addition to Arambula’s testimony, including the tape the
jury heard recording Lopez’s participation in the April 18,
2002 drug transaction, supported by Agent Beaumont’s testi-
mony. In the face of such strong evidence of Lopez’s guilt
independent of Palmer’s testimony, we conclude there is not
a reasonable likelihood that introduction of the Bailey memo-
randum would have altered the outcome of this case. See Bag-
ley, 473 U.S. at 682. Because Lopez’s second-in-time Brady
claim would have been barred before AEDPA’s passage, her
claim is not exempt from AEDPA’s gatekeeping provisions.
14
As the Heit case illustrates, the Bailey memorandum or its contents
might not have been allowed as impeachment evidence even if the govern-
ment had disclosed the Palmer information to defense counsel before trial.
UNITED STATES v. LOPEZ 11191
Regardless of whether some Brady claims are exempt from
AEDPA’s gatekeeping requirements, Lopez’s claim is not.
Consequently, the district court lacked jurisdiction to consider
her claim, because we had not authorized her to file it. See
§ 2255(h).15
To summarize, we reject Lopez’s and amici’s argument
that all second-in-time Brady claims are exempt from
§ 2255(h)(1). At a minimum, Brady claims that would have
been barred under the abuse-of-the-writ doctrine are subject
to AEDPA’s gatekeeping provisions. Under this limited hold-
ing, Lopez’s claim must satisfy § 2255(h)’s gatekeeping pro-
visions, because she has not established materiality under
Brady and her claim would therefore have been barred as an
abuse of the writ. Thus, we leave open the more difficult
question whether Panetti supports an exemption from
§ 2255(h)(1)’s gatekeeping provisions for meritorious Brady
claims that would have been reviewable under the pre-
AEDPA prejudice standard.
15
Given the narrow basis upon which we resolve this case, we express
no opinion on the Eleventh Circuit’s recent decision in Tompkins v. Sec.,
Dep’t of Corrections, 557 F.3d 1257, 1259-60 (11th Cir. 2009) (per
curiam) (holding all second-in-time Brady claims are subject to AEDPA’s
gatekeeping provisions), or the Fourth Circuit’s decision in Evans v.
Smith, 220 F.3d 306, 323 (4th Cir. 2000) (same). Additionally, because we
have concluded Lopez’s claim lacks merit, we express no opinion on
amici’s argument that construing AEDPA to foreclose any federal review
of meritorious Brady claims would raise constitutional concerns, see, e.g.,
Crater v. Galaza, 491 F.3d 1119, 1125 (9th Cir. 2007) (holding
§ 2254(d)(1)’s restriction of habeas relief to state court decisions that are
contrary to or unreasonable application of clearly established federal law
is not unconstitutional suspension of writ, because it modifies precondi-
tions for relief rather than foreclosing all jurisdiction to review claim);
Allen, 435 F.3d at 960-61 & n.11 (noting § 2254(d)(1)’s restriction
“merely limits the source of clearly established law that the Article III
court may consider” and does not impermissibly alter content of that law
in violation of Article III or separation of power principles).
11192 UNITED STATES v. LOPEZ
III.
[8] Although we construe Lopez’s appeal as a request that
we authorize her to file a second or successive § 2255 motion,
see Cooper, 274 F.3d at 1275, we must deny her request
because her claim does not satisfy the § 2255(h) gatekeeping
requirements. Lopez’s Brady claim obviously does not rely on
a new rule of constitutional law, see § 2255(h)(2), and, having
failed to carry the lesser burden of establishing materiality
under Brady, she cannot satisfy § 2255(h)(1)’s higher preju-
dice standard.
IV.
[9] Finally, Lopez argues the government’s conduct in fail-
ing to disclose the Palmer information was “so grossly shock-
ing and so outrageous as to violate the universal sense of
justice,” Restrepo, 930 F.2d at 712 (internal quotation marks
omitted), thus violating due process and warranting outright
dismissal of the indictment, see United States v. Kojayan, 8
F.3d 1315, 1324-25 (9th Cir. 1993). We are concerned about
the government’s failure to discover and disclose the informa-
tion in a timely fashion, but the circumstances do not rise to
the level of outrageousness. There is no evidence the govern-
ment wilfully withheld the Brady material, lied about such
material or was unwilling to own up to the mistake once dis-
covered. Compare United States v. Kearns, 5 F.3d 1251,
1253-54 (9th Cir. 1993) with Kojayan, 8 F.3d at 1324-25.
Moreover, Lopez ultimately was not prejudiced by the mis-
conduct. See United States v. Ross, 372 F.3d 1097, 1110 (9th
Cir. 2004) (“Because no government misconduct prejudiced
[defendant], dismissal of the indictment is not warranted.”);
United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978)
(holding defendant must demonstrate prejudice to justify dis-
missal of indictment for outrageous prosecutorial miscon-
duct). Thus, exercise of the district court’s supervisory powers
to dismiss the indictment is not warranted, even assuming the
district court could have invoked such powers in post-
UNITED STATES v. LOPEZ 11193
conviction proceedings, see Ross, 372 F.3d at 1107 (noting
court’s supervisory powers are “not typically considered to be
an independent basis for post-conviction review” (citing
McNabb v. United States, 318 U.S. 332, 340 (1943))).
[10] Although we find it troubling that the government’s
failure to disclose the Bailey memorandum to Lopez earlier
prevented her from bringing the Brady claim in her first
§ 2255 motion and thereby imposed on her the burdens of
complying with § 2255(h), there is no evidence that the prose-
cutors here were pursuing a strategy to put her in such an
unfavorable position. Were there such evidence, this would be
a different case. Cf. United States v. Stevens, No. 08-cr-231
(D.D.C. filed April 7, 2009) (order granting motion to set
aside verdict and dismiss indictment).
V.
For the reasons stated, we VACATE the district court’s
order denying Lopez’s motion and REMAND with instruc-
tions to dismiss for lack of jurisdiction. Lopez’s appeal, con-
strued as a motion for authorization to file a second or
successive application, is DENIED.