Gino Velez Scott v. United States
890 F.3d 1239
11th Cir.2018Background
- Gino Scott was convicted in 2003 of conspiracy to possess with intent to distribute cocaine; jury heard testimony from government informant Freddy Pena and recorded calls implicating Scott.
- At trial prosecutors disclosed some impeachment material about Pena (prior conviction, payments), and Pena testified untruthfully that he had never given false testimony.
- Years later (2011) the U.S. Attorney learned and disclosed additional impeachment evidence showing Pena had lied to law enforcement and had been placed on “restricted use.”
- Scott filed a second § 2255 motion asserting a Brady/Giglio violation based on the newly disclosed evidence; the government moved to dismiss as "second or successive" under AEDPA.
- The district court dismissed under Eleventh Circuit precedent Tompkins v. Secretary (holding second-in-time Brady claims are always second-or-successive), but reopened Scott’s earlier § 2255 on Rule 60(b)(3) and denied relief on ineffective-assistance grounds.
- The panel affirmed dismissal as second-or-successive (applying Tompkins) and affirmed denial of Strickland relief, but criticized Tompkins and urged en banc review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second-in-time § 2255 motion alleging a newly disclosed, actionable Brady/Giglio violation is "second or successive" under AEDPA | Scott: Brady claims that could not reasonably have been discovered earlier are not second-or-successive because petitioner had no fair opportunity to raise them earlier | Government: Such Brady claims are second-or-successive and therefore barred unless they meet § 2255(h)’s gatekeeping exceptions | Held: Binding Eleventh Circuit precedent (Tompkins) requires dismissal as second-or-successive; panel applies Tompkins but urges en banc reconsideration |
| Whether Panetti’s reasoning (on Ford incompetency claims) applies to Brady claims | Scott: Panetti factors (habeas practice, AEDPA purposes, abuse-of-the-writ) support treating undiscoverable Brady claims as not second-or-successive | Government: Panetti is limited to Ford claims and does not control Brady analysis | Held: Panel agrees Panetti supports nondispositive treatment of certain Brady claims but concludes Tompkins controls under prior-panel-precedent rule and therefore must be followed |
| Whether the district court abused its discretion in reopening the 2006 § 2255 and denying Strickland relief in light of newly disclosed impeachment evidence | Scott: Counsel was ineffective for relying on government disclosures and failing to investigate Pena further | Government: Counsel reasonably relied on the prosecution’s disclosures; no clear deficient performance | Held: No abuse of discretion; counsel’s decision to rely on government disclosures fell within objectively reasonable professional judgment |
| Whether Tompkins was correctly decided and should be revisited en banc | Scott: Tompkins misapplied Panetti and improperly treats all Brady claims as second-or-successive, effectively suspending the writ for newly revealed Brady violations | Government: Tompkins remains controlling precedent | Held: Panel follows Tompkins but explicitly criticizes it and urges the court to rehear the issue en banc |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (prosecutorial suppression of material favorable evidence violates due process)
- Panetti v. Quarterman, 551 U.S. 930 (framework for when second-in-time habeas claims are not "second or successive")
- Tompkins v. Secretary, Dep’t of Corr., 557 F.3d 1257 (11th Cir.) (panel held second-in-time Brady claims are second-or-successive)
- Strickler v. Greene, 527 U.S. 263 (Brady materiality standard: reasonable probability of a different result)
- Giglio v. United States, 405 U.S. 150 (impeachment evidence relating to witness bias must be disclosed)
- Panetti-related precedent cited: Castro v. United States, 540 U.S. 375 (courts should avoid interpretations of AEDPA that bar review of certain petitioners)
- Abuse-of-the-writ context: McCleskey v. Zant, 499 U.S. 467 (standards for cause and prejudice in successive petitions)
- Finality and AEDPA purpose referenced: Magwood v. Patterson, 561 U.S. 320 (discussion of AEDPA's design to avoid abuses of the writ)
- Separation-of-powers / federal-review context: Welch v. United States, 136 S. Ct. 1257 (contextual discussion of § 2255 review)