Petition for Writ of Certiorari — Anthony Donato, Petitioner v. United States

Supreme Court briefFeb 1, 2019

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'779

No.

IN THE

SUPREME COURT OF

-HE UNI-ED STATES

Anthony Donato

FE o uo

JOFFICE OF

PETITIONER

(Your Name)

vs.

United States

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Second Cirbuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Anthony Donato

oS3

(Your Name)

Federal-Correctional Institution

33½ Pembroke Road

(Add ress)

Danbury, Ct 06811

(City, State, Zip Code)

(Phone Number)

QUESTIONS PRESENTED

Whether The Second Circuit's Decision That Petitioner's

Second-In Time Brady Claim Is Successive Conflicts With

Applicable Decisions Of This Court?

Whether The Second Circuit's Decision Used A Standard

Which Conflicts With That Used In Other Circuits And Is More

Restrictive Than That Permitted By The Antiterriorism and

Effective Death Penalty Act ("AEDPA")?

What Remedy Is Available For A Second-In-Time Collateral

Claim Based On A Newly Revealed Actionably Brady Violation

Which Does Not Satisfy One Of AEDPA's Gatekeeping Criteria For

Second-Or-Successive Motions, When Foreclosing Federal Review

Would Encourage Prosecutors To Continue To Withhold

Constitutionally Required Evidentiary Disclosures Long Enough

That Verdicts Obtained As A Result Of Government Misconduct

Would Be Insulated From Review, As Well As Reward Prosecutors

For Failing To Meet Their Constititional Obligations Under

Brady?

(1)

UST OF PARTIES

EX] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

(ii)

TABLE OF CONTENTS

OPINIONS BELOW .................................................1

JURISDICTION ...................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...............2

STATEMENT. OF THE CASE ..........................................3

REASONS FOR GRANTING THE WRIT .................................. 7

CONCLUSION ....................................................30

INDEX TO APPENDICES

APPENDIX A: Motion for Successive Authorization Pursuant

to 28 USC §5 2244(b), 2255(h)

APPENDIX B: Motion for a Rule That Second-In Time

§ 2255 is Not Successive Within Meaning of AEDPA

APPENDIX C: Second Circuit June 28, 2018 Order

APPENDIX D: Second Circuit September 19, 2018 Order

APPENDIX E: Petitioner's Petition for Panel and/or En Banc

Rehearing

APPENDIX F: Second Circuit November 14, 2018 Order

(iii)

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Bennett v. United States

119 F.3d 468 (7th Cir. 1997), ................................ 17

Blackledge v. Alison

431 U.S. 63 (1977) ....................................6, 20, 28

Bouie v. City of Columbia

378 U.S. 347 (1964) ..........................................22

Brady v. Maryland

373 U.S. 83 (1963) .......................................11, 12

Buck v. Davis

197 L. Ed. 2d 1 (2017) ...............................18, 19, 21

Case v. Hatch

731 F.3d 1015 (10th Cir. 2013) ...............................22

Castro v. United States

540 U.S. 375 (2003) ...........................................8

Davis v. United States

2015 US Dist Lexis 35391 (D. Conn.) ...........................26

Delaware v. Van Arsdall

475 U.S. 673 (1986) ..........................................13

District Attorney's Office v. Osborne

557 U.S. 52 (2009) ............................................24

Ford v. Wainwright

477 U.S. 399 (1986) ...........................................8

Friedman v. Rehal

618 F.3d 142 (2nd Cir. 2010)

.............................26

Gottleib v. SEC

2007 US Dist Lexis 19635 (SDNY) ......................

In re Hoffner

870 F.3d 301 (3rd Cir: 2017) ..................................18

In re Rogers

825 F.3d 1335 (11th Cir.. 2016) ............................18, 21

In re Williams

898 F.3d 1098 (11th Cir. 2018) ...............................18

Jones v. Jago

575 F.2d 1164 (6th Cir. 1978) ............................24, 26

(iv)

CASES

PAGE NUMBER

Kyles v. Whitely

514 U.S. 419 (1995) ......................................20, 26

Magwood v. Peterson

561 U.S. 320 (2010) ......................................10, 15

McCleskey v. Zant

499 U.S. 467 (1991) ..............................10, 13, 14, 15

Miller v. Angliker

848 F.2d 1313 (2nd Cir. 1988) ................................28

Miller-El v. Cockrell

537 U.S. 322 (2003) ......................................18, 19

Moldowan v. City of Warren

570 F.2d 698 (6th Cir. 2009) .................................26

0choa v. Simmons

485 F.3d 538 (10th Cir. 2007) ................................18

Panetti v. Quarterman

551 U.S. 930 (2007) ............................7, 8 1 10, 12, 15

Rogers v. Tennessee

532 U.S. 451 (2001) ..........................................22

Slack v. McDaniel

529 U.S. 473 (2000) ...........................................7

Small v. Less

2016 US Dist Lexis 19635 (SDNY) ..............................20

Strickler v. Greene

527 U.S. 263 (1999) ..................................11, 15, 16

Tate v. Wood

963 F.3d 20 (2nd Cir. 1992) ..............................25, 28

United States v. Avellino

136 F.3d 249 (2nd Cir. 1998) .........................24, 27, 28

United States v. Hernandez

242F.3d 110 (2nd Cir. 2001) .................................21

United States v. Lopez

577 F.3d 1053 (9th Cir. 2011).............................29, 30

United States v. Rivas

377 F.3d 195 (2nd Cir. 2004) .............................20, 25

(v)

PAGE NUMBER

CASES

United States v.' Rivernider

828 F.3d 91 (2nd Cir. 2015) ...................................21

United States v. Ruiz

536 U.S. 83 (2002) ....................................6, 20, 26

United States v. Torres

2017 US Dist Lexis 2886 (SDNY) ...............................21

Velez-Scott v. United States

2018 US App Lexis 13558 (11th Cir.) ...........................29

Williams v. Taylor

529 U.S. 420 (2000) ..........................................14

(vi)

STATUTES AND RULES

28 U.S.C. § 2244 ...........................................Passirn

28 U.S.C. § 2254 ...........................................Passim

28 U.S.C. § 2255 ...........................................Passim

The Antiterrorism and Effective Death Penalty Act

of1996 (AEDPA) ..........................................Passim

Suspension Clause, US Constitution

Art. 1, § 9, ci. 2 .......................................Passim

(vii)

THE

SUPREME COURT OF THE UNITED STATES.

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays

that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[I reported at

; or,

Il I has been designated for publication but is not yet reported; or,

[Xj is unpublished.

The opinion of the United States district court

the petition and is

appears at Appendix

[ ] reportédat

[I has been designated for publication but is not yet reported; or,

is unpublished.

[ I For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

I II reported at

; or,

I I has been designated for publication but is not yet reported; or,

[I is unpublished.

The opinion of the _________________________________________ court

appears at Appendix

to the petition and is

[3 reported at

; or,.

[ 3 has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURSDICTO

[1 For cases from federal courts:

The date on which the United States Court cf Appeals decided my case

was June 28, 2018

[ ] No petition for rehearing was timely filed in my case.

[)q A timely petition for rehearing was denied by the United States Court of

date: September 28, 2018 , and a copy of the

Appeals on the following

Z75

order denying rehearing appears at Appendix F

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on ___________________ (date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S.C. § 2244

28 U.S.C. § 2254

28 U.S.C. § 2255

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

Suspension Clause, US Constitution Art. 1, § 9, ci. 2

STATEMENT OF THE CASE

Criminal Case

In 2006, Petitioner and others were indicted for the

murder of Frank Santoro based on the false testimony of

Dominick Cicale. Appendix ("Appx") A, Exhibit ("Exh") 1 (TJ 45)

During his cooperation and pre-trial incarceration, BOP

staff revealed that Cicale had solicited Carlos Medina and

other inmates to falsely claim co-defendant Vincent Basciano

asked a BOP officer to kill Cicale on Basciano's behalf. Id.

(If 8-9)

After Basciano brought Cicale's bogus murder plot

to the district court's attention, the government filed sealed

documents related to the plot, including a 7-page letter

written by Medina and BOP staff affidavits. Id. (1JJ 10-11)

Medina's letter purportedly provides significant details of

Cicale's scheme to implicate a co-defendant in a fake murder

plot to curry favor with the prosecutor. Id. (J 12)

Through sealing and protective orders, the government

shielded much of that information. Id. (J 14)

On August 6,

2008, Petitioner pled guilty to the to the charges without

the benefit of knowing the full extent of information

contained in the Medina letter and the impact of on his

available defenses. Id. - (

15-16)

On December 16, 2008,

Petitioner was sentenced to 25 years and did not appeal. Id.

(J 17)

First § 2255 Motion (The 11 2009 Motion")

On December 18, 2009, Petitioner filed his first motion

to vacate under 28 U.S.C. § 2255. Id. (J 18)

Among other

claims, Petitioner argued that his plea was involuntary

because the government had failed to fully disclose the Cicale

bogus murder plot documents. Id. On September 20, 2012, the

district court denied the claim because it was not raised on

appeal. Id. (1 19)

Newly Discovered Evidence (The "Barone Evidence")

In June 2017, Petitioner discovered a government

suppressed FBI 302 containing exculpatory evidence gathered

from FBI informant, Joseph Barone, suggesting Cicale confessed

that he acted alone in the Santoro murder as a favor to

Basciano. Id. (J 20)

It stated "Cicale approached Santoro []

and shot and killed him", "as a favor to his friend,

Basciano", at Basciano's request "to rEuse quickly in status

and responsibilities as a member of Basciano's 'crew'". Id. (J

21 & Exh 2). No mention was made of Petitioner being

involved. Id.

In July 2017, Petitioner discovered more Barone 302's

("Barone Evidence")

consisting of 90 pages of documents,

which were suppressed from him, and from Basciano during his

first two trials, but then provided to Basciano under a

protective order once he complained. Id. (I 22-24)

The

suppressed Barone Evidence concerned the Santoro murder,

Basciano, Cicale and other Boflanno family associates,

including statements that "Cicale did the shotgun murderT1,

without mention of Petitioner. Id. (1 25 & Exh 3)

Second § 2255 Motion (the 11 2018 Motion)

On May 31, 2018, Petitioner filed a motion for successive

authorization on the basis that the newly discovered evidence

(i.e., the Barone Evidence), if proven and viewed in the light

of the evidence as a whole, would establish by clear and

convincing evidence that no reasonable fact finding would have

found Petitioner guilty. Appx A

('J 11)

The proposed § 2255

claim argued that the government violated Brady by failing to

disclose statements that contradicted its main witness

(Cicale) which could have been used to exculpate Petitioner

and impeach the credibility and account of the sole individual

who claimed Petitioner was involved in the Santoro murder.

Id.

On June 11, 2018, Petitioner filed a separate motion

which sought a ruling that the 2018 Motion is non-successive.

Appx B. Petitioner argued that although he filed a prior §

2255, he was not afforded his one full opportunity to seek

collateral review as ensured by the AEDPA and the Suspension

Clause as a consequence of the government's wrongful

concealment of the Barone Evidence which was the proximate

cause of his failure to raise his present claim in his prior §

2255 motion. Id. (p. 6-8)

He argued further that because the

2018 Motion would not be successive under the pre-AEDPA abuseof-writ doctrine, and because it raised a claim that could not

have been raised in his 2009 Motion, it is nonsuccessive in

the context of the AEDPA, and that the denial of permission to

bring the claim as a first in time § 2255 claim may implicate

the Suspension Clause. Id. (p. 9-10)

Appellate Court Decision Concerning The 2018 Motion

On June 28, 2018, the Seóond Circuit denied Petitioner's

request for successive authorization stating Petitioner "has

not shown that the 'newly discovered evidence' on which he

relies, 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 [him] guilty of the offense.- '" AppxC (p.2). It reached

that decision, however, only after essentially deciding the

proposed § 2255 motion on the merits:

"Petitioner pleaded guilty and his sworn statements in support of his guilty plea 'carry a

strong, presumption of verity,' Blackledge v Allison, 431 U.S. 63, 74 (1977), which his

present assertions do not overcome. Despite Petitioner's contrary arguments, the

proffered new evidence does not exculpate him but, at most, provides a basis for

impeaching prosecution witness Dominic Cicale, who, in a related trial, implicated

himself, Petitioner, and Vincent Basciano in the Santoro murder to which Petitioner

pleaded guilty. For much of the same reason that the Constitution does not require

'preguilty plea disclosure of impeachment information, United States v Ruiz, 536 U.S. 622,

629 (2002), the post-conviction identification of such information is hardly sufficient to

allow a defendant who pleaded guilty to satisfy § 2255(h)(1)."

Appx C (p.2).

In that same order, the Court also denied Petitioner's

motion for a ruling the the 2018 Motion was nonsuccessive,

finding the that the " proposed motion would be successive

because his § 2255 motion challenged the same criminal

judgment and was decided on the merits." Id. (p.1). It also

found that "Petitioner has not demonstrated that application

of the successive petition rules to his claims would violate

the Suspension Clause". Id. (p.,2) .

Petition For Panel And En Banc Rehearing

On September 27, 2018, Petitioner mailed a timely

petition for panel and en banc rehearing to the Second

Circuit, Appx E, after being granted an extension of time

until October 3, 2018. Appx D. The petition sought rehearing

on the basis that, inter alia, the court (1) overlooked facts

which properly considered would lead it to conclude that the

2018 Motion was non-successive within the meaning of the

AEDPA, and that subjecting the motion to the successive rules

would violate the Suspension Clause, and (2) utilized an

improper standard to deny successive authorization by

impermissibly deciding the § 2255 motion on the merits

(without jurisdiction to do so) and then utilizing that

determination to deny successive authorization. Appx E.

Appellate Court Decision On Rehearing Request

On November 14, 2018, the Second Circuit summarily denied

Petitioner's request for panel rehearing and/or rehearing en

banc, without explanation. Appx F.

REASONS FOR GRANTING THE WRIT

THE SECOND CIRCUIT'S DECISION THAT PETITIONER'S SECONDIN TIME BRADY CLAIM IS SUCCESSIVE, CONFLICTS WITH

APPLICABLE DECISIONS OF THIS COURT

The court of appeals erred in concluding that

Petitioner's 2018 Motion is a "successive" merely "because his

first § 2255 motion challenged the same criminal judgment and

was decided on the merits," Appx C (P. 1), and in doing so, it

decided the question in a way in conflict with applicable

decisions of this Court.

The Antiterrorism and Effective Death Penalty Act of 1986

(AEDPA)

does not define the phrase "second or successive",

nor is the term "self-defining." Panetti v Quarterman, 551

U.S. 930, 943 (2007)

In Panetti, the Court explained the

phrase does not capture all collateral challenges "filed

second or successfully 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),

which, since it limits the courts' jurisdiction, must be read

narrowly. Castro v United States, 540 U.S. 375, 381 (2003)

As this Court has construed the phrase. "second or

successive" "takes its full meaning from [Supreme Court] case

law, including decisions predating the enactment of [AEDPA1 . 11

Panetti, 551 U.S. at 943-44.

In Panetti, this Court set forth factors for determining

whether a second-in-time petition is "second or successive"

under the AEDPA. There, the petitioner was convicted of

capital murder and sentenced to death. Id. at 937. After his

state-court remedies were denied, he filed a federal petition

for habeas relief under 28 U.S.C. § 2254, which, too, was

denied. Id. When the state later set an execution date,

Panetti filed another state habeas claim, asserting for the

first time that he was not mentally competent to be executed,

which was denied. He then filed a second § 2254 petition

arguing that executing him while mentally incompetent would

violate the Eighth amendment pursuant to Ford v Wainwright,

477 U.S. 399 (1986), which too was denied and affirmed on

appeal. Id. at 938-42.

On certiorari, this Court first considered whether it had

jurisdiction over Panetti's claim, in light of 28 U.S.C. §

2244 (b) (2)

which similar to § 2255(h)

precludes

consideration of any "claim presented in a second or

successive habeas application under section 2254 that was not

presented in a prior application" unless it satisfies one of

two exceptions-neither of which applied to Panetti's claim.

The Court determined it had jurisdiction after concluding that

Panetti's second-in-time § 2254 petition was not "second or

successive "

that phrase is used in § 2244(b) (2) '5

gatekeeping mechanism. Id. at 947. It arrived at this

conclusion, by looking solely at three considerations: (1) the

implications for habeas practice of adopting a literal

interpretation of "second or successive" (2) the purposes of

AEDPA; and (3) the Court's prior decisions in the context of

the pre-AEDPA abuse-of-writ doctrine. Id. at 943-47.

Beginning with the implications for habeas practice, the

Court explained that Ford claims do not generally ripen unless

the petitioner is both incompetent to be executed and

imminently faces execution. Id. at 943.

And since many years

can pass between imposition and execution of a death sentence,

a petitioner may not become incompetent until after the courts

have resolved his first habeas petition. Id. So, if "second

successive" encompassed Ford claims, a mentally competent

prisoner would always have to prophylactically raise a Ford

claim in his first habeas petition, regardless of whether he

had any indication that he might eventually become

incompetent, just to preserve the possibility of raising a

Ford claim at a later time. Id. This practice, "would add to

the burden imposed on courts, applicants, and the States, with

no clear advantage to any." Id.

The Court then concluded that treating second-in-time

Ford claims as "second or successive" would also conflict with

AEDPA's purposes of "further[ing] the principles of comity,

finality, and federalism", because "[a]n empty formality of

requiring prisoners to file unripe Ford claims neither

respects the limited legal resources available to the States

9..

nor encourages the exhaustion of state remedies." Id at 945946. The Court found that finality concerns are not

implicated since (due to the nature of a Ford claim) federal

courts are generally unable to address such claims within the

time frame for resolving first habeas petitions. Id.

Lastly, the Court accounted for the abuse-of-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 Peterson, 561 U.S. 320, 345

(2010) (Kennedy, L., 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. Since a Ford claim

considers a petitioner's mental state at the time of proposed

execution and Panetti's first § 2254 petition was filed will

before that time, Panetti did not have a full and fair

opportunity to raise that claim-that is, the claim did not

ripen-until after his first § 2254 was resolved. Panetti, 551

U.S. at 947. For that reason, the Court found no abuse of the

writ. Id.

Ultimately, the Court held that AEDPA's "second or succes

10.

sive" bar did not preclude Panetti's second-in-time petition

raising a Ford claim. Id. In reading an " exceptio[n]" in the

AEDPA's gatekeeping provisions, the Court explained, "[w]e 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.

Application of the Panetti factors to a Brady violation,

which 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" within the meaning of §

2255(h) 's gatekeeping provision.

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.

Brady stands 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.

Because of the nature of a Brady violation, the

11.

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 obligated to file

unripe (and, in many cases, meritless) [Brady] claims in each

and every [first § 22551 application [(and direct appeal)] ,"

Panetti, 551 U.S. at 943, to preserve then-hypothetical claims

on the chance that the government might have committed a

material Brady violation that will eventually be disclosed.

And also like with Ford claims, the courts would be forced to

address this avalanche of substantively useless Brady claimsonly there would be even more meritless Brady claims because

Brady does not apply only in capital cases, like Ford does.

For this reason, finding second-in-time Brady claims to be

"second or successive" under § 2255 would have even more

deleterious effects on habeas practice than concluding secondin-time Ford claims were "second or successive."

Second, precluding Brady claims that a petitioner could

not have discovered through the exercise of due diligence

actually impedes finality interests. To this end, the secondin-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 AEDPA's finality

concerns any more than does the second-in-time filing of a

Ford claim, though for different reasons due to the nature of

a Brady violation.

When a Brady violation occurs, a defendant is entitled to

a new trial. Brady, 373 U.S. at 87. "A prosecution that

withhold evidence

...

which, if made available, would tend to

12.

exculpate [the defendant]

casts the prosecutor in the role

of an architect of a proceeding that does not comport with

standards of justice, even though

result of guile.

...

his action is not - , the

Id. at 87-88. Put simply, a defendant does

not receive a fair trial when a Brady violation occurs.

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-thewrit principles and might work a suspension of the writ of

habeas corpus")

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 Court has noted that

finality is important to endow criminal law with "much of its

deterrent effect." McCleskey, 499 U.S. at 491. But an

uncorrected unfair trial has the opposite effect.

Procedural fairness is necessary to the perceived

legitimacy of the law. Kevin Burke & Steve Leben, Procedural

Fairness: A Key Ingredient in Public Satisfaction, 44 Ct. Rev.

4, 7 (2007-2008) (citing Tom. R. Tyler, Psychological

Perspectives on Legitimacy and Legitimation, 57 Ann. Rev.

Psychol. 375 (2006)

And legitimacy affects compliance. Cf.

13.

Id. (citing studies showing reduced recidivism when defendants

perceived themselves as having received fair process)

When

the government imprisons a person after a constitutionally

unfair trial, that undermines the legitimacy of the law and

its deterrent effect. A person who perceives that the

government will cheat to convict him, regardless of his guilt

or innocence, actually has less incentive to comply with the

law because, in his view, compliance makes no difference to

conviction.

But that is not the only reason that precluding secondin-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

time. "

McCleskey, 499 U.S. at 491. 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. Whatever finality interest

Congress intended for AEDPA to promote, surely it did not aim

to encourage prosecutors to withhold constitutionally required

evidentiary disclosures-- long enough that verdicts obtained as

a result of government misconduct would be insulated from

correction.

Finality interests then are not served by-saying a

prisoner has not brought his Brady claim where the

government'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

14.

failed to develop the factual basis of a claim' [under §

2254(e) (2)] where he was unable to develop his claim in state

court despite diligent effort " )

For this reason, finality

concerns cannot justify precluding Brady claims that a

prisoner could not have discovered through due diligence.

Third, allowing a second-in-time Brady claim that a

prisoner could not have discovered earlier through the

exercise of due diligence does not offend the abuse-of-writ

doctrine. As noted above, the 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) that he has "cause," or a "legitimate

excuse," for failing to raise the claim earlier, McCleskey,

499 U.S. at 490, and (2) that he was prejudiced by the error

he claims, Id. at 493.

"Cause" explains why the petitioner could not have filed

his claim earlier "even in the exercise of reasonable care and

diligence." McCleskey, 499 U.S. at 493. The cause requirement

is satisfied when petitioners demonstrate "interference by

officials that makes compliance with the

...

procedural rule

impracticable, and a showing that the factual or legal basis

for a claim was not reasonably available to counsel." Id. at

493-94. A Brady violation that a prisoner could not

reasonably have been expected to discover through the exercise

of due diligence falls into that category. See e.g.,

15.

Strickler, 527 U.S. at 289 (finding cause for failing to raise

a Brady claim 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 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 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 AEDPA, and the abuse-of-thewrit doctrine-compel the conclusion that second-in time Brady

claims cannot be "second or successive" for purposes of §

2255, and the court of appeals decision concluding otherwise

conflicts with the above cited applicable decisions of this

Court.

II. THE SECOND CIRCUIT'S DECISION USED A STANDARD WHICH

16.

CONFLICTS WITH THAT USED IN OTHER CIRCUITS AND IS MORE

RESTRICTIVE THAN THAT PERMITTED BY THE AEDPA

The AEDPA Precludes Appellate Courts From Reaching The

Merits Of A Proposed § 2255 Claim And Then Using That

Determination To Deny Successive Authorization

The AEDPA, codified under 28 U.S.C. § 2255(h), forbids a

second or successive motion unless an appellate court

certifies "as provided in section 22441 that it contains

"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."

Section 2244(b) (3) (C)

the parallel (but not identical)

provision for second or successive motions by state prisoners

seeking federal habeas corpus under § 2254, provides that the

court of appeals "may authorize the filing of a second or

successive application only if it determines that the

application makes a prima fade showing that the application

satisfies the requirements of that subsection.!!

Referring to a lack of guidance from " statutory language

or history or case law", courts of appeals have construed the

phrase "'as provided in section 2244, 111 which appears in §

2255, to mean that in considering an application under section

2255 for permission to file a second or successive motion

[they] should use the section 2244 standard, and thus insist

only on a prima facie showing on the motion's adequacy.!!

Bennett v United States, 119 F.3d 468, 469 (7th Cir 1997)

17.

While T[v]ery few opinions from [the] circuit[s]

grapple with the meaning of 'prima facie showing'

...

The few

that do agree that the statute establishes a permissive

standard that does not require any analysis of a claim's

merits." In re Williams, 898 F.3d. 1098, 1107 (11th Cir 2018).

Cf. Ochoa v Simmons, 485 F.3d 538, 541-42 (10th Cir. 2007) (per

curium) ("This statutory mandate does not direct appellate

courts to engage in a preliminary merits assessment. Rather,

it focuses our inquiry solely on the conditions specified in §

2244(b) that justify raising a new habeas claim"); In re

Hoffner, 870 F.3d 301, 308 (3rd Cir 2017) ("we do not address

the merits at all in our gatekeeping function") ; In re Rogers,

825 F.3d 1335, 1340 (11th Cir 2016) ("the statute does not

allow us to reach the decision on the merits at the

application stage but rather 'restricts us to deciding whether

a petitioner has made out a prima facie case of compliance

with the 28 U.S.C. § 2244(b) requirements."); Hertz v Liebman,

2 Federal Habeas Corpus Practice and Procedures § 28.3[d], at

1717 (7th ed. 2015) (explaining that "lack of merit" is

"irrelevant" at the § 2244(b) authorization stage).

In the somewhat analogous certificate of appealability

("COA") context, the Court has held the COAstatuteTs

"threshold inquiry" is satisfied so long as the issues

presented are adequate to deserve encouragement to proceed

further." Buck v Davis, 197 L.Ed.2d 1, 16 (2017) (citing

Miller-El v Cockrell, 537 U.S. 322, 327 (2003) )

As the Court

went on to explain 11[w]hen a court of appeals sidesteps this

process by first deciding the merits of an appeal, and then

justifying its denial of a COA based on its adjudication of

18.

the actual merits, it is in essence deciding an appeal without

jurisdiction." Id.; see e.g., Miller-El v Cockrell, 537 U.S.

at 342 (holding this is "fundamental" error because 'the Court

of Appeals had no jurisdiction to resolve the merits of

petitioner's constitutional claims" when deciding whether to

grant COA).

Given the expressed lack of guidance from "statutory

language or history or caselaw" on the "prima facie showing"

standard, and expressed confusion in the appellate courts as

to the meaning of "prima facie showing", the Court should

extend Buck v Davis in the context of §5 2244(b) and 2255(h)

to hold that the AEDPA precludes the appellate courts from

reaching the merits of a proposed second or successive habeas

petition, and then using such determinations to deny

successive authorization.

By Deciding The 2018 Motion On The Merits And Using The

Determination To Deny Successive Authorization, The

Second Circuit's Standard Conflicts With Other Circuits

Circuits And Is More Restrictive Than Permitted By AEDPA

The Second Circuit phrased its determination in proper

terms

Petitioner "has not shown that the 'newly discovered

evidence' on which he relies, 'if proven and viewed in light

of the evidence as a whole, would be sufficient to establish

by clear and convincing evidence that no fact finder would

have found [him] guilty of the offense. '" Appx C (p. 2)

However, it reached that conclusion only after determining the

proposed § 2255 claim on the merits:

19.

"Petitioner pleaded guilty and his sworn statements in support of his guilty plea 'carry a

strong presumption of verity,' Blackledge v Allison, 431 U.S. 63, 74 (1977), which his