Appeals from the United States District Court for the Middle
District of Florida D.C. Docket Nos. 3:11-cv-01144-TJC-PDB;
ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE,
ROSENBAUM, Circuit Judge
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.
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.
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.
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
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.
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
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. 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 Court to rehear this case en banc to establish the
rule that our Constitution and Supreme Court precedent
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.
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
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
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.
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.
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.
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 $3, 500 for Scott's case so far, and (4)
that Pena would likely receive additional payment in the
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."
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.
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.
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
after his conviction, Scott filed a direct appeal. United
States v. Scott, 136 Fed.Appx. 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).
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 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 Fed.Appx. 822, 825 (11th Cir. 2009).
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."
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
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.
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.
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 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.
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.
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 performance in violation of
Strickland by failing to conduct further
investigation of Pena. The court did not address
Strickland's prejudice prong. Scott then
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).
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).
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.
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).
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."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. ...