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Scott v. United States

United States Court of Appeals, Eleventh Circuit

May 23, 2018

GINO VELEZ SCOTT, Petitioner-Appellant,
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeals from the United States District Court for the Middle District of Florida D.C. Docket Nos. 3:11-cv-01144-TJC-PDB; 3:06-cv-00906-TJC-PDB

          Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE, [*] District Judge.

          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.

         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.

         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 Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.


         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.

         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 $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.

         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.


         Soon 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).

         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 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).

         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 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 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 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.


         "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).


         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).

         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. ...

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