GINO VELEZ SCOTT v. UNITED STATES OF AMERICA
Nos. 15-11377; 16-11950
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(May 23, 2018)
D.C. Dоcket Nos. 3:11-cv-01144-TJC-PDB; 3:06-cv-00906-TJC-PDB; [PUBLISH]
GINO VELEZ SCOTT, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee.
Appeals from the United States District Court for the Middle District of Florida
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE,* District 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
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
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
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 сognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial
Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.
I.
In 2003, a grand jury indicted Scott and his codefendant Jose Tamayo for conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of
At trial, the government presented evidence that Scott and Tamayo, lоngtime 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 rеvealed 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
$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 аnd 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 wаs one of only a few career options he had as a convicted felon. The jury convicted Scott, and the district court sentenced him to life in prison.
II.
Soon after his conviction, Scott filed a direct appeal. United States v. Scott, 136 F. App‘x 273 (11th Cir. 2005). In his appeal, Scott raised a number of issues, including, as relevant here, a claim that his trial counsel had been ineffective for failing to conduct an adequate investigation of Pena‘s background. Id. at 275. We affirmed Scott‘s conviction, though we declined to address his ineffective-assistance claim because the record on that issue had not been developed at that point. Id. at 275, 279. Scott sought certiorari, and the Supreme Court denied his petition on October 17, 2005. See Scott v. United States, 546 U.S. 970 (2005).
In 2006, Scott filed his first motion to vacate under
claim. Notably, however, it concluded that even if his trial counsel did exhibit deficient performance, Scott could not show that he was prejudiced because he “fail[ed] to show what additional information could have been uncovered to further impeach the witness at trial.” Scott appealed on other grounds, and we affirmed. See Scott v. United States, 325 F. App‘x 822, 825 (11th Cir. 2009).
Roughly five years later, in the spring of 2011, Scott‘s prosecutors notified the district court of impeachment information about Pena purportedly unknown to them at the time of Scott‘s trial. Federal prosecutors in another jurisdiction had recently
Based on this information, on November 17, 2011, Scott filed another motion under
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 reрresented 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
Though the district court dismissed Scott‘s 2011 Motion, it granted Scott‘s alternative motion to reopen his original 2006 Motion pursuant to
performance in violation of Strickland by failing to conduct further investigation of Pena. The court did not address Strickland‘s prejudice prong. Scott then appealed.
III.
“In an appeal challenging a
IV.
We first address whether the district court correctly concluded that
Neither of those exceptions applies here. So we must consider whether Scott‘s 2011 Motion qualifies as “second or successive.” If so, we must dismiss it.
We do not get much help from AEDPA in discerning the meaning of the phrase “second or successive.” In fact, AEDPA does not define the phrase. Nor is the phrase itself “self-defining.” Panetti v. Quarterman, 551 U.S. 930, 943 (2007).
But the Supreme Court has explained that “second or successive” does not capture all collateral petitions “filed second or successively in time, even when the later filings address a . . . judgment already challenged in a prior . . . application.”2 Id. at 944. Instead, “second or successive” is a “term of art.” Slack v. McDaniel, 529 U.S. 473, 486 (2000). And since it limits the courts’ jurisdiction, we read it narrowly. See Castro v. United States, 540 U.S. 375, 381 (2003) (citing Utah v. Evans, 536 U.S. 452, 463 (2002)).
As the Supreme Court has construed the phrase, “second or successive” “takes its full meaning from [the Supreme Court‘s] case law, including decisions predating the enactment of [AEDPA].” Panetti, 551 U.S. at 943-44. So we must explore the relevant case law on the meaning of “second or successive.”
A. Panetti v. Quarterman set forth the factors for determining whether a second-in-time petition is “second or successive.”
Our starting point is the Supreme Court‘s decision in Panetti. In Panetti, the
The state set an execution date, and Panetti filed another state habeas claim, this time asserting for the first time that he was not mentally competent to be executed. Id. at 937-38. Following the state court‘s denial of the petition, Panetti filed another federal habeas petition under
The Supreme Court granted certiorari. Id. at 942. Before addressing the merits, the Court considered whether it had jurisdiction over Panetti‘s claim, in light of
2254 that was not presented in a prior application” unless it satisfies one of two exceptions—neither of which applied to Panetti‘s claim.3
The Court concluded that it enjoyed jurisdiction over Panetti‘s case because Panetti‘s second-in-time
Beginning with the implications for habeas practice, the Court first discussed the nature of a Ford claim. See id. at 943. Because a Ford claim asserts that a petitioner is not competent to be executed, the Court noted that such a claim does
not ripen unless the petitioner both is incompetent to be executed and imminently faces execution in that state. See id. And since many years can pass between the imposition and execution of a death sentence, a petitioner may not fall into a state of mental incompetence until after the courts have resolved his first habeas petition. Id. So if “second or successive” encompassed Ford claims, a mentally competent prisoner would always have to prophylactically raise a Ford claim in his first federal habeas petition, regardless of whether he had any indication that he might eventually become incompetent, just to preserve the possibility of raising a
On top of burdening federal habeas practice in this way, the Court concluded that treating second-in-time Ford claims as “second or successive” would also conflict with AEDPA‘s purposes. AEDPA was designed to “further the principles of comity, finality, and federalism.” Id. at 945 (citation and internal quotation marks omitted). But “[a]n empty formality requiring prisoners to file unripe Ford claims neither respects the limited legal resources available to the States nor encourages the exhaustion of state remedies.” Id. at 946. And as for finality concerns, the Court observed they are not implicated by a Ford claim: because of
the nature of a Ford claim, federal courts are generally unable to address such claims within the time frame for resolving first habeas petitions, anyway. Id.
Finally, the Court accounted for the abuse-of-the-writ doctrine, id. at 947, the pre-AEDPA legal doctrine “defin[ing] the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus,” McCleskey v. Zant, 499 U.S. 467, 470 (1991). Under the abuse-of-the-writ doctrine, “to determine whether an application is ‘second or successive,’ a court must look to the substance of the claim the application raises and decide whether the petitioner had a full and fair opportunity to raise the claim in the prior application.” Magwood v. Patterson, 561 U.S. 320, 345 (2010) (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at 947). “[I]f the petitioner had no fair opportunity to raise the claim in the prior application, a subsequent application raising that claim is not ‘second or successive,’ and [AEDPA‘s] bar does not apply.” Id. at 346 (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at 947). Since a Ford claim considers a petitioner‘s mental state at the time of proposed execution and Panetti‘s first
So ultimately, the Supreme Court held that AEDPA‘s “second or successive” bar did not preclude Panetti‘s second-in-time petition raising a Ford claim. Id. As the Court explained, “We are hesitant to construe a statute, implemented to further the principles of comity, finality, and federalism, in a manner that would require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party.” Id.
B. Applying the Panetti factors to an actionable Brady violation that the petitioner in exercising due diligence could not reasonably have been expected to discover in the absence of the government‘s disclosure yields the conclusion that such a claim is not “second or successive.”
In Panetti‘s light, we must consider whether second-in-time petitions raising newly disclosed actionable Brady5 violations—where
gatekeeping provision. We find that they are not. The Panetti factors and their sub-considerations uniformly require this conclusion.
1. Precluding claims based on Brady violations that a prisoner could not have discovered through due diligence would advеrsely affect habeas practice.
First, as the Panetti Court observed is true of Ford claims, precluding Brady claims that a prisoner could not have discovered through due diligence would adversely affect habeas practice. This is so because of the nature of a Brady claim.
Brady and its progeny stand for the proposition that the prosecution‘s suppression of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Brady, 373 U.S. at 87) (internal quotation marks omitted). Evidence is “material,” in turn, when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. (citation and internal quotation marks omitted). So no actionable Brady violation occurs “unless the nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence would have produced a different verdict.” Id. at 281 (internal quotation marks omitted).
Because of the nature of a Brady violation, the petitioner often cannot learn of such a violation at all, even when acting diligently, unless and until the government discloses it. As with second-in-time Ford claims, then, “conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) [Brady] claims in each and every [first
effects on habeas practice than concluding second-in-time Ford claims were “second or successive.”
- Precluding Brady claims that a petitioner could not have discovered through due diligence impedes finality interests.
Second, precluding Brady claims that a petitioner could not have discovered through due diligence actually impedes finality interests. We start from the proposition that at the very least, the second-in-time filing of a Brady claim that a prisoner could not have discovered earlier through the reasonable exercise of due diligence does not negatively implicate
When a Brady violation occurs, a defendant is entitled to a new trial. Brady, 373 U.S. at 87. As the Supreme Court has explained, “[a] prosecution that withholds evidence . . . which, if made available, would tend to exculpate [the defendant] or reduce the penalty[,] . . . casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though . . . his action is not ‘the result of guile.‘” Id. at 87-88. Put simply, a criminal defendant does not receive a fair trial when a Brady violation occurs.8
Yet the Constitution guarantees criminal defendants a fair trial. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). So imprisoning someone based on the results of an unfair trial and then precluding any remedy at all might well work a suspension of the writ of habeas corpus. Cf. Magwood, 561 U.S. at 350 (Kennedy, J., dissenting) (opining that refusal to consider a second-in-time habeas petition challenging an alleged violation that occurred entirely after the denial of the first petition “would be inconsistent with abuse-of-the-writ principles and might work a suspension of the writ of habeas corpus“).
And even if precluding a remedy for a Brady violation that a petitioner could not reasonably have been expected to discover through due diligence does not suspend the writ, it certainly clashes with finality concerns. The Supreme Court has noted that finality is important to endow criminal law with “much of its deterrent effect.” McCleskey, 499 U.S. at 491 (citation and quotation marks omitted). But an uncorrected unfair trial has the opposite effect.
But that is not thе only reason that precluding second-in-time Brady claims is at odds with finality concerns. Finality is also important because giving a habeas petitioner a new trial can prejudice the government through “erosion of memory and dispersion of witnesses that occur with the passage of time.” McCleskey, 499 U.S. at 491 (citation and internal quotation marks omitted). Yet the government alone holds the key to ensuring a Brady violation does not occur. So the government cannot be heard to complain of trial prejudice from a new trial necessitated by its own late disclosure of a Brady violation, since it is solely responsible for inflicting any such prejudice on itself in such circumstances. Whatever finality interest Congress intended for
Finality interests then are not served by saying a prisoner has not timely brought his Brady claim where the gоvernment‘s failures affirmatively and entirely prevented him from doing so. Cf. Williams v. Taylor, 529 U.S. 420, 437 (2000) (comity interests “not served by saying a prisoner ‘has failed to develop the factual basis of a claim’ [under
- Precluding Brady claims that a prisoner could not have discovered through due diligence is not consistent with the abuse-of-the-writ doctrine.
Finally, allowing a second-in-time Brady claim that a prisoner could not have discovered earlier through the reasonable exercise of due diligence does not offend the abuse-of-the-writ doctrine. As we have noted, the abuse-of-the-writ doctrine calls for courts to consider whether a habeas petitioner has previously had “a full and fair opportunity to raise the claim in the prior application.” Magwood, 561 U.S. at 345 (Kennedy, J., dissenting) (citing Panetti, 551 U.S. at 947).
To demonstrate that a petitioner has been deprived of a “full and fair opportunity,” the doctrine requires him to make two showings: (1) he has “cause,” or a “legitimate excuse,” for failing to raise the claim earlier, McCleskey, 499 U.S. at 490, and (2) he was prejudiced by the error he claims, id. at 493. See also Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
where the prosecution withheld exculpatory evidence, the petitioner reasonably relied on the prosecution‘s open-file policy, and the government asserted during state habeas proceedings “that petitioner had already received ‘everything known to the government.‘“).
As for prejudice, as we have noted, when a Brady violation is at issue, a petitioner must demonstrate a reasonable probability that had the government disclosed the evidence at issue, the outcome of the proceeding would have differed. Strickler, 527 U.S. at 280. So a petitioner cannot establish a Brady violation without also satisfying the abuse-of-the-writ doctrine‘s requirement to show prejudice.
That means a petitioner can demonstrate both cause and prejudice by establishing a Brady violation that he could not reasonably have been discovered through due diligence. And where a petitioner shows both cause and prejudice, he has enjoyed no “full and fair opportunity” to bring the claim earlier. To remedy this problem, the abuse-of-the-writ doctrine favors allowing such a second-in-time claim.
In short, all the Panetti factors—the implications for habeas practice, the purposes of
C. Tompkins nonetheless requires us to conclude that second-in-time Brady claims are always “second or successive.”
The district court, however, concluded that our decision in Tompkins v. Secretary, Department of Corrections precluded it from ruling that second-in-time Brady claims that could not have been discovered earlier through the exercise of reаsonable diligence are not “second or successive.” We now take a look at Tompkins to decide whether that is correct.
In Tompkins, this Court considered whether a second-in-time
To reach this conclusion, the panel first determined that the Supreme Court in Panetti “limit[ed] its holding to Ford claims.” Tompkins, 557 F.3d at 1259. The panel, in essence, deemed the Panetti factors irrelevant to analyzing the issue before it and further attempted to explain why Panetti was factually distinguishable from the case it was reviewing. Id. at 1260.
- Tompkins was incorrectly decided.
We respectfully disagree with the Tompkins panel‘s analysis and conclusion. As we read Panetti, the Supreme Court did not limit its analysis to petitions involving Ford claims. And when we apply the Panetti factors to Brady claims, as we must, Brady claims cannot be factually distinguished from Ford claims for purposes of determining whether they are “second or successive.”
Beginning with the breadth of Panetti‘s holding, we cannot agree that the Supreme Court restricted its analysis to second-in-time petitions involving only Ford claims. Neither Panetti‘s language nor its analysis supports such a conclusion.
First, Panetti‘s language rules out such a narrow holding. In fact, the Supreme Court summarized its own jurisdictional holding as recognizing “exceptions“—plural—to the rule that a second-in-time petition fails
Of course, that alone does not specify what exactly the Court had in mind. But the Court then immediately followed up this statement with what we understand as a partial test for determining whether a second-in-time petition that includes a particular type of claim qualifies as “second or successive“: “We are hesitant to construe [
Second, the analysis in Panetti itself demonstrates that the Supreme Court did not limit Panetti‘s holding to Ford claims. As we have noted, the Panetti Court arrived at its conclusion solely by evaluating three different generally applicable factors: the “implications for habeas practice,”
Signifiсantly, the Supreme Court also emphasized the importance of accounting for
For example, the Panetti Court pointed to Castro v. United States, 540 U.S. 375 (2003). In that case, the pro se petitioner filed a motion for new trial under
In Panetti, the Court described its holding in Castro as having “resisted an interpretation of [
These cases involve a variety of claims and portions of
- Brady claims are not factually distinguishable from Ford claims for the purposes of determining whether they are “second or successive.”
With Panetti and its factors out of the way, Tompkins then factually distinguished Brady claims from Ford claims without applying the Panetti factors, instead creating a new test not found in Panetti. Specifically, Tompkins homed in on the Panetti Court‘s pronouncement that ”Ford-based incompetency claims, as a general matter, are not ripe until after the time has run to file a first federal habeas petition.” See Tompkins, 557 F.3d at 1259-60 (quoting Panetti, 551 U.S. at 942) (internal quotation marks omitted). Then Tompkins ascribed a meaning and significance to the term “ripe” that directly conflicts with Panetti‘s analysis. In particular, Tompkins concluded that a claim‘s “ripeness” depends on when the violation supporting the claim occurred. Id. at 1260. And since a Brady violation happens during trial or sentencing, Tompkins reasoned, any claim based on a Brady violation necessarily ripens, at the latest, by the end of sentencing. See id.
We see two problems with this reasoning. First, the Supreme Court in Panetti did not purport to define the word “ripe.” Nor does Tompkins cite anything to support its definition of the term. See id. at 1259-61. In fact, Tompkins‘s definition of the word conflicts with how the term is generally understood in the law. “Ripeness” refers to “[t]he state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.” Ripeness, Black‘s Law Dictionary (10th ed. 2014). But when, through no fault of the petitioner, a Brady violation goes undiscovered through trial and sentencing, the facts concerning a claim based on that violation have not been developed sufficiently to permit an intelligent and useful decision to be made. Indeed, they have not been developed at all until such time as the Brady violation is discovered.
Second, and even more significantly, to the extent that Panetti referred to ripeness as a consideration within its framework for evaluating whether a second-in-time claim is “second or successive,” Tompkins‘s discussion of “ripeness” cannot be harmonized with Panetti‘s. Panetti accounted for what it referred to as ripeness only for the purpose of evaluating the implications on habeas practice of holding an unripe claim to be “second or successive.” Panetti, 551 U.S. at 943-45. As we have discussed, Panetti expressed concern that holding unripe claims to be “second or successive” would flood the courts with useless claims on the off chance that such claims might later ripen. See id. at 943. But, of course, that is true of Brady claims that could not have been discovered earlier through due diligence. So Panetti is not distinguishable on grounds of a difference in ripeness between Ford claims and Brady claims that could not have been discovered earlier. On the contrary, Panetti‘s use of ripeness in its analysis compels the conclusion that a second-in-time Brady claim that could not have been discovered earlier is not “second or successive.”
- The prior-panel-precedent rule requires us to apply Tompkins, though we are “convinced it is wrong.”
Though we disagree with Tompkins and its reasoning, we recognize that it is nonetheless our precedent. Because Tompkins addresses whether Brady claims in
The prior-panel-precedent rule requires subsequent panels of the court to follow the precedent of the first panel to address the relevant issue, “unless and until the first panel‘s holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Even when a later panel is “convinced [the earlier panel] is wrong,” the later panel must faithfully follow the first panel‘s ruling. United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc). We of course are not bound by anything that is mere dictum. See Lebron v. Sec‘y of Fla. Dep‘t of Children & Families, 772 F.3d 1352, 1360 (11th Cir. 2014) (“[D]iscussion in dicta ‘is neither the law of the case nor binding precedent.‘“) (citation omitted). But our case law reflects that under the prior-panel-precedent rule, we must follow the reasoning behind a prior holding if we cannot distinguish the facts or law of the case under consideration. See Smith, 236 F.3d at 1301-04. So we consider whether we may limit Tompkins‘s holding to only Brady claims arising under
Important differences between
Nor is the interest of finality exactly the same for
And separation-of-powers considerations drive
Plus, the federal government has a distinctive concern for ensuring that federal prosecutors have acted appropriately when it reviews
Even the language of the two statutes’ respective gatekeeping provisions differs. Compare
All of these differences provide good reason to treat
But we see no basis that allows us to distinguish between state and federal proceedings in this regard; Brady claims in state proceedings do not “ripen” any sooner than do Brady claims in federal proceedings under Tompkins‘s definition of the word. And while federal courts have a special interest in ensuring the integrity of federal proceedings, we do not think that that fact alone explains why Brady claims in state proceedings should be treated any differently than Brady claims in federal proceedings.
For these reasons, we must conclude that Tompkins‘s reasoning governs all second-in-time Brady claims, regardless of whether they are brought under
V.
Having concluded we must dismiss Scott‘s
The Sixth Amendment right to counsel “is the right to effective assistance of counsel.” Strickland, 466 U.S. at 686 (citation and internal quotation marks omitted). A claim of ineffective assistance of counsel requires a two-pronged showing: that counsel‘s performance was constitutionally deficient and that counsel‘s deficiencies prejudiced the proceeding‘s outcome. Id. at 693. The district court concluded that even in light of the new evidence about Pena, Scott‘s trial counsel did not exhibit constitutionally deficient performance.
An attorney‘s performance fails to meet the constitutional minimum when it falls “below an objective standard of reasonableness . . . , which means that it is outside the wide range of рrofessionally competent assistance.” Payne v. Allen, 539 F.3d 1297, 1315 (11th Cir. 2008) (citations and internal quotation marks omitted). We have observed that “omissions are inevitable” because “trial lawyers, in every case, could have done something more or something different.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000). We therefore “conduct a highly deferential review of counsel‘s performance and indulge the strong presumption that counsel‘s performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Payne, 539 F.3d at 1315 (alteration and internal quotation marks omitted). “[T]rial counsel has not performed deficiently when a reasonable lawyer could have decided, under the circumstances, not to investigate or present particular evidence.” Id. at 1316 (quoting Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001)).
The district court acknowledged that Scott‘s counsel took the government at its word that it had produced all Brady and Giglio material, and, as a result, that his counsel did not undertake additional steps to seek further impeachment material for Pena. But the court refused to find “that no competent lawyer would have declined to expend further time and resources” on searching for Brady and Giglio material when defense counsel is “entitled presume that the government had disclosed all such matters.” Scott argues on appeal that this is incorrect, and that under the district court‘s reasoning, “no counsel could ever be found ineffective, entitled as counsel would be to blindly rely on the presumption that the prosecution has provided the defense with all the exculpatory or impeachment material that is to be found in the case.”
We conclude the district court did not abuse its discretion in declining to find Scott‘s trial counsel ineffective. The decision to refrain from additional investigation into Pena‘s background was within the “wide range of professionally competent assistance,” given the inevitable choices defense lawyers must make about how to deploy their limited time and resources. See Strickland, 466 U.S. at 690. An attorney‘s performance is not deficient in hindsight just because he or she made one choice versus another. Cf. Willis v. Newsome, 771 F.2d 1445, 1447 (11th Cir. 1985) (“Tactical decisions do not render assistance ineffective merely because in retrospect it is apparent that counsel chose the wrong course.“).
This is not to say that no attorney could ever be found ineffective for taking the government‘s word as grounds for refraining from further investigation. In some cases obvious red flags might exist calling for further inquiry, even where the government has assured defense counsel that it has disclosed all Brady and Giglio material. An attorney who does not investigate under those circumstances might indeed be constitutionally ineffective. But on the facts of this case, no such red flags existed. We conclude that the district court did not abuse its discretion in declining to grant Scott relief on his reopened 2006 Motion.
VI.
Ultimately, Tompkins binds us to conclude that in
AFFIRMED.