Opposition Brief — Brandon Bernard, Petitioner v. United States

Supreme Court briefDec 9, 2020

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Nos. 20-6570 and 20A110

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

BRANDON BERNARD, PETITIONER

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

AND TO APPLICATION FOR A STAY OF EXECUTION

_______________

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Ind.):

Bernard v. Warden, No. 20-cv-631 (Dec. 1, 2020) (granting

motion to withdraw petition)

Bernard v. Warden, No. 20-cv-616 (Dec. 8, 2020) (denying

motion to stay execution)

Bernard v. Warden, No. 20-cv-616 (Dec. 8, 2020) (denying

motion for stay pending appeal)

United States District Court (W.D. Tex.):

United States v.

(judgment)

Bernard,

No.

99-cr-70

(June

16,

2000)

United States v. Bernard, No. 99-cr-70 (Sept. 28, 2012) (order

denying first-in-time motion under 28 U.S.C. 2255)

United States v. Bernard, No. 99-cr-70 (Sept. 28, 2012) (order

denying first-in-time motion under 28 U.S.C. 2255)

United States v. Bernard, No. 99-cr-70 (Dec. 20, 2017) (order

denying second-in-time Section 2255 motion, styled as

motion under Fed. R. Civ. P. 60(b)(6))

United States v. Bernard, No. 99-cr-70 (Aug. 8, 2019) (order

dismissing third-in-time Section 2255 motion)

United States v. Bernard, No. 99-cr-70 (Sept. 10, 2019) (order

amending

August

2019,

judgment

transfer

unauthorized Section 2255 motion to court of appeals)

United States v. Bernard, No. 99-cr-70 (Dec. 3, 2020) (order

denying motion to enjoin execution)

Bernard v. United States, No. 04-cv-164 (parallel

docket for post-conviction proceedings)

civil

United States Court of Appeals (5th Cir.):

United States v. Bernard, No. 00-50523

(affirming on direct appeal)

(July

19,

2002)

United States v. Bernard, No. 13-70013 (Aug. 11, 2014)

(denying certificate of appealability with respect to

first-in-time Section 2255 motion)

(I)

United States v. Bernard, No. 18-70008 (Sept. 14, 2018)

(denying certificate of appealability with respect to

second-in-time Section 2255 motion)

United States v. Bernard, No.

(denying authorization to

Section 2255 motion)

19-50837 (Sept. 9, 2020)

file second-or-successive

United States v. Bernard, No. 19-70021 (Sept. 9, 2020)

(affirming district court’s transfer of unauthorized

second-or-successive Section 2255 motion)

United States Court of Appeals (7th Cir.):

Bernard v. Warden, No. 20-3379 (docketed Dec. 8, 2020)

Supreme Court of the United States:

Bernard v. United States, No. 02-8492 (June 16, 2003)

Bernard v. United States, No. 14-8071 (Jan. 19, 2016)

Bernard v. United States, No. 18-6992 (Jan. 13, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

______________

Nos. 20-6570 and 20A110

BRANDON BERNARD, PETITIONER

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

AND TO APPLICATION FOR A STAY OF EXECUTION

_______________

Petitioner, along with several other members of his gang,

murdered and incinerated Todd and Stacie Bagley in 1999.

After a

carjacking, the gang members locked the Bagleys in the trunk of

their own car and drove them to a remote area on a federal military

installation, where petitioner doused the car in lighter fluid.

One of petitioner’s co-defendants shot each of the Bagleys in the

head, killing Todd and rendering Stacie unconscious.

then

set

the

inhalation.

offenses,

car

fire,

causing

Stacie

Petitioner

die

smoke

In 2000, petitioner was convicted of, among other

murdering

Stacie

within

the

special

territorial

jurisdiction of the United States, for which he received a capital

sentence.

The district court and the court of appeals accorded

him extensive review on both direct appeal and collateral review

under 28 U.S.C. 2255, and this Court denied three petitions for

writs of certiorari from the resulting judgments.

The present petition for a writ of certiorari and accompanying

application for a stay arise from petitioner’s third Section 2255

motion.

In that motion, petitioner alleges that the government

withheld evidence from him concerning his own relative position in

the gang, in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and sponsored false testimony on that issue at the penalty phase

of his trial, in violation of Napue v. Illinois, 360 U.S. 264

(1959).

Petitioner has never explained “why he would not have

known what his role in his own gang was,” 826 Fed. Appx. 356, 358

n.2, and a chart of the gang’s hierarchy -- the subject of the

evidence

that

petitioner

claims

that

the

government

did

not

disclose -- was in fact made available to petitioner before trial

as part of the government’s open-file discovery policy.

The lower courts correctly rejected petitioner’s effort to

bring

such

further

collateral

exhausted his avenues for relief.

attack

years

after

fully

The district court determined

that it lacked jurisdiction because petitioner’s motion was a

second or successive Section 2255 motion for which petitioner had

not obtained the court of appeals’ prior authorization.

9a-17a; see 28 U.S.C. 2244(b)(3), 2255(h).

Pet. App.

The court of appeals

affirmed, Pet. App. 1a-4a, and separately declined to authorize

the motion, 826 Fed. Appx. 356.

The court of appeals’ decision finding petitioner’s third

Section

2255

motion

“second

2255(h),

was

plainly

correct

and

does

successive,”

not

with

conflict

decision of this Court or another court of appeals.

“unusual

posture”

the

U.S.C.

any

Unlike the

incompetency-to-be-executed

claim

Panetti v. Quarterman, 551 U.S. 930 (2007), on which petitioner

relies, his claims here did not ripen only when his execution was

imminent, compare id. at 937, 945-946.

Instead, he is seeking to

assert the kind of claims -- about pre-trial discovery and trial

testimony -- that could have been raised in his first Section 2255

motion, filed more than 15 years ago.

Indeed, Section 2255 itself

classifies motions based on “newly discovered evidence” as second

successive,

authorizing

such

setting

motions,

28 U.S.C. 2255(h)(1).

forth

which

stringent

petitioner

requirements

cannot

for

satisfy.

And petitioner does not dispute that the

courts of appeals have uniformly deemed comparable later-in-time

Section

2255

motions

raising

Brady

claims

second

successive.

Petitioner therefore fails to show any likelihood that this

Court would grant certiorari to review the decision below, let

alone that the Court would accept his view that Brady claims are

not successive.

stay.

That alone is enough to deny his request for a

A stay is also unwarranted for the further reason that he

waited for more than a month -- until two days before his scheduled

execution -- to file his petition for a writ of certiorari.

The

court of appeals entered judgment on September 9, 2020; petitioner

received notice of his December 10 execution date on October 16;

and the court denied rehearing on November 6.

Stay Appl. 7.

Pet. App. 1a, 5a;

Yet petitioner waited to file his petition and stay

application in this Court until December 8, and he sought relief

in this Court without even bothering to afford the court of appeals

an opportunity to consider his request.

Cf. Sup. Ct. R. 23.3.

“Last-minute stays should be the extreme exception, not the norm,

and ‘the last-minute nature of an application’ that ‘could have

been brought’ earlier

stay.’”

Bucklew

(citation omitted).

* * *

Precythe,

‘may be grounds for denial of a

139

Ct.

1112,

1134

(2019)

The balance of equities strongly favors

allowing the government to carry out petitioner’s lawful sentence,

imposed for a heinous murder he committed more than two decades

ago, without further delay.

The petition for a writ of certiorari

and the application for a stay should be denied.

STATEMENT

In June 1999, petitioner and other members of a street

gang in Killeen, Texas, carjacked and murdered Todd and Stacie

Bagley.

299 F.3d 467, 471–473.

Christopher Vialva, Tony Sparks,

and a third gang member developed a plan to abduct and rob a

motorist

gunpoint,

use

the

victim’s

bankcard

make

ATM

withdrawals, and abandon the victim in a remote area locked inside

his own car trunk.

Id. at 471.

The three gang members enlisted

help from petitioner and a fifth gang member.

Ibid.

Because the gang members had only a “tiny .22 pistol,” which

they

considered

“too

small

frighten

anyone,”

petitioner

retrieved his .40-caliber Glock pistol for use in the scheme.

F.3d at 471.

299

Petitioner then drove Vialva and the others from one

store parking lot to another searching for a victim.

Ibid.

some

temporarily

time,

petitioner

and

the

fifth

gang

member

After

departed, and the three other gang members located a couple whom

they viewed as suitable victims:

Todd and Stacie Bagley, youth

ministers

Iowa

visiting

Killeen

from

who

had

stopped

convenience store after a Sunday morning worship service.

Id. at

471-472 & n.2.

While Todd used a payphone and his wife, Stacie, waited in

their car, two of the group approached Todd and asked for a ride.

299 F.3d at 472.

Todd agreed, and all three gang members entered

the backseat of the Bagleys’ car.

Ibid.

After giving Todd

directions, Vialva pulled petitioner’s .40-caliber Glock on him,

Sparks pulled a smaller pistol on Stacie, and Vialva told them

that “the plans have changed.”

Ibid.

The trio then robbed the

Bagleys, forced them into the trunk of their car, and drove around

in the car for several hours attempting to empty the Bagleys’ bank

accounts from multiple ATMs.

Ibid.

After petitioner and the fifth gang member rejoined the group,

Vialva stated “that he had to kill the Bagleys because they had

seen his face.”

299 F.3d at 472.

Petitioner and one of the others

then set off to buy lighter fluid to burn the Bagleys' car.

Ibid.

Sparks, who had expressed his desire to discontinue the crime,

went home.

Id. at 472 n.3.

Petitioner and the three remaining gang members then drove

the

Bagleys’

car

(with

the

Bagleys

still

the

trunk)

and

petitioner’s car to a remote area on the Fort Hood military

installation. 299 F.3d at 472-473. Petitioner helped pour lighter

fluid in the Bagleys’ car, while the Bagleys sang and prayed in

the trunk.

Id. at 472.

Stacie then stated that “Jesus loves you”

and “Jesus, take care of us.”

Ibid.

Vialva cursed in reply,

ordered the trunk opened, and shot the Bagleys in the head with

petitioner’s

gun,

killing

Todd

instantly

and

knocking

unconscious with a shot to the side of her face.

Stacie

Id. at 473.

Petitioner then set fire to the car, causing Stacie to die of smoke

inhalation.

Ibid.

The gang members’ escape was foiled when petitioner’s car

slid off the road into a muddy ditch, where the gang members were

found and later arrested by law-enforcement officers responding to

the fire.

299 F.3d at 473.

A federal jury found petitioner guilty on one count of

carjacking resulting death, in violation of 18 U.S.C. 2119 and 2;

one count of conspiring to murder the Bagleys, in violation of

18 U.S.C. 1117; and two counts of first-degree murder (one for

each of the Bagleys) within the special maritime and territorial

jurisdiction of the United States, in violation of 18 U.S.C.

1111(b) and 2.

299 F.3d at 473.

Pursuant to the Federal Death

Penalty Act of 1994 (FDPA), Pub. L. No. 103-322, Tit. VI, 108 Stat.

1959, the district court held a penalty-phase trial in front of

the same jury.

Along

with

other

evidence,

the

government

presented

the

testimony of Texas Ranger John Aycock, who explained the background

and structure of the gang, known as the 212 PIRU Bloods.

Doc. 317, at 111-113 (Oct. 25, 2000). 1

D. Ct.

He described both Vialva

and Sparks as “climbers” in the 212 PIRU Bloods who attempted to

elevate their status in the gang “with their boldness and things

that they could do, their plans and their schemes.”

Id. at 114.

Ranger Aycock testified that while Vialva was described as the

“scary” one in the group, petitioner was a “person who would assist

and help” other gang members “and would not run from a fight.”

Id.

114,

petitioner

125.

was

Other

not

witnesses

full-fledged

testified

that,

although

member

the

gang,

“associated” and “hung around” with it.

See, e.g., D. Ct. Doc.

312, at 239-240 (Oct. 25, 2000); D. Ct. Doc. 314, at 24, 36, 49,

135 (Oct. 25, 2000).

Following

the

penalty

phase,

the

jury

recommended

that

petitioner be sentenced to death for the killing of Stacie Bagley.

299 F.3d at 473.

In June 2000, the district court imposed that

sentence pursuant to the FDPA.

Judgment 2.

The court of appeals

All citations to the district court docket entries are

to the docket in No. 99-cr-70 (W.D. Tex.).

affirmed on direct appeal, 299 F.3d 467, and this Court denied

certiorari, 539 U.S. 928.

In 2004, petitioner filed his first motion to vacate his

sentence under Section 2255.

In the lengthy motion, petitioner

asserted claims under both Brady v. Maryland, 373 U.S. 83 (1963),

and Napue v. Illinois, 360 U.S. 264 (1959).

at 134-147 (Dec. 8, 2014).

See D. Ct. Doc. 416,

Petitioner did not, however, assert

that the government violated Brady or Napue with respect to the

disclosure or presentation of evidence about his role in the gang.

See ibid.

The district court denied petitioner’s Section 2255 motion

and

declined

grant

certificate

appealability

D. Ct. Doc. 449, at 62-63 (Sept. 28, 2012).

(COA).

With respect to

petitioner’s Brady and Napue claims, the court found that the

claims were procedurally barred because they could have been raised

on direct appeal, and were “without merit” in any event.

14–15 & n.1, 22-26.

Id. at

The court of appeals denied a COA, 762 F.3d

467, and this Court denied certiorari, 577 U.S. 1101.

2017,

petitioner

filed

his

second

Section

2255

motion, styled as a motion under Federal Rule of Civil Procedure

60(b) for relief from the judgment in his initial Section 2255

proceedings.

D. Ct. Doc. 569, at 1–63 (Nov. 30, 2017).

Petitioner

did not assert any additional Brady or Napue claims; instead, he

alleged that the district judge who had presided over his trial

and initial Section 2255 proceedings, and who had since resigned,

had been “unfit to perform judicial tasks.”

Id. at 1-2.

The district judge to whom the case had been reassigned

construed

petitioner’s

successive

Section

motion

2255

motion,

jurisdiction, and denied a COA.

2017).

unauthorized

dismissed

second-or-

for

lack

D. Ct. Doc. 571, at 5-6 (Dec. 20,

The court of appeals likewise denied a COA, 904 F.3d 356,

and this Court denied certiorari, 140 S. Ct. 859.

In 2019, petitioner filed his third Section 2255 motion,

asserting Brady and Napue claims that he had not previously sought

to assert.

D. Ct. Doc. 661, at 35-58 (Feb. 4, 2019).

The thrust of the claims is that the government allegedly

withheld evidence about petitioner’s place in the gang hierarchy;

petitioner asserts that the allegedly withheld evidence would have

led the jury not to impose the death penalty and that the evidence

came to light only at the 2018 resentencing of petitioner’s codefendant, Tony Sparks.

See D. Ct. Doc. 661, at 1-5; Pet. 4-12.

Sparks was resentenced in February 2018.

Pet. App. 10a.

At his

resentencing hearing, the government called former Killeen Police

Department Sergeant Sandra Hunt, “who had previously headed the

[Department’s] gang unit,” to testify as an expert “about her

investigation into the organizational hierarchy of the 212 PIRU

Bloods.”

Ibid.

Sergeant

Hunt

testified

that

her

unit

had

identified Sparks as a member of the gang based in part on a handdrawn diagram, obtained in 1998 from an unidentified high-school

student,

which

listed

the

gang

members’

names

pyramid.

D. Ct. Doc. 661-1, at 4-7; see D. Ct. Doc. 661-7 (diagram).

The

diagram used gang members’ first names or “street names”; Hunt’s

unit also created a copy that filled in many of the gang members’

full names.

D. Ct. Doc. 661-1, at 6-7; see D. Ct. Doc. 661-8

(diagram with full names).

Sergeant Hunt testified that Sparks’

name appeared on the diagram in the fifth row, with “the enforcers

or the recruiters” for the gang.

D. Ct. Doc. 661-1, at 8-9.

She

also testified that Vialva’s name was in the seventh row and that

petitioner’s name appeared “at the very bottom of the chart of

[the] pyramid,” in the thirteenth row, “about 30 people below Mr.

Sparks.”

Id. at 9.

The district court determined that it lacked jurisdiction

over petitioner’s third Section 2255 motion, because it was an

unauthorized successive motion.

court

characterized

Pet. App. 9a-17a.

petitioner’s

argument

Although the

that

his

latest

collateral attack should be classified as a first Section 2255

motion, due to the allegedly belated discovery of the evidence, as

“compelling,”

found

the

argument

“ultimately

unpersuasive

because it is not supported by a single relevant authority” and

“has been rejected conclusively by the Fifth Circuit.”

12a.

Id. at

The court observed that “[s]everal other circuit courts have

also ruled that second-in-time Brady claims are not exempt from”

the

statutory

attacks.

restrictions

second-or-successive

Id. at 13a (collecting cases).

collateral

The court initially

dismissed petitioner’s motion, id. at 17a, but later amended the

judgment to instead transfer the motion to the court of appeals,

id. at 18a.

On September 9, 2020, the court of appeals affirmed the

transfer in an unpublished, per curiam decision.

4a.

The

court

observed

that

petitioner’s

Pet. App. 1a-

third

motion

was

“successive” under its precedent, id. at 3a, which recognizes that

the statutory exception permitting certain successive petitions

based

“evidence

[that]

was

not

previously

discovered

discoverable” would be superfluous if all motions based on such

evidence were “non-successive,” Leal Garcia v. Quarterman, 573

F.3d 214, 221 (5th Cir. 2019).

And the court addressed this

Court’s decision in Panetti v. Quarterman, 551 U.S. 930 (2007),

which found

motion

asserting

incompetency-to-be-executed

claim not successive only where “the factual predicate for the

prisoner’s claim (his mental state at the time of execution) could

not have existed when the prisoner filed his first petition.” Pet.

App. 3a.

the

The court of appeals reasoned that Panetti “reinforces”

unavailability

further

collateral

petitioner’s, for which “the factual predicate

attack

* * *

long before [he] filed his first” collateral attack.

4a.

existed

Id. at 3a-

The court remanded to the district court with instructions to

dismiss the motion for want of jurisdiction.

Id. at 4a.

On the same date, the court of appeals denied petitioner’s

request for authorization to file a successive Section 2255 motion.

826 Fed. Appx. 356.

successive

habeas

[petitioner]

must

The court explained that, “[t]o file a

petition

show

that

pursuant

his

Section

petition

2255(h)(1),

relies

‘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.’”

2255(h)(1).

Id. at 358; see 28 U.S.C.

The court found that petitioner could not satisfy

that standard because, by his own account, the purportedly newly

discovered evidence on which he relied -- Hunt’s testimony and the

pyramid diagrams -- did not “challenge the evidence of his guilt,”

only his sentence.

that

“[e]ven

826 Fed. Appx. at 358.

Section

2255(h)(1)

The court also found

allowed

[petitioner]

challenge his sentence, [he] cannot establish that this evidence

is ‘newly discovered.’”

Id. at 358 n.2.

The court observed that

“[t]he factual predicate” for the claims “is that the government

withheld information describing [petitioner’s] role in the gang of

which he was a member and presented false testimony as to that

information,” but petitioner “offers no explanation why he would

not have known what his role in his own gang was” and, indeed,

“all but admits he had such knowledge.”

Ibid.

On October 16, 2020, the government gave notice that

petitioner’s execution date had been set for December 10, 2020.

D. Ct. Doc. 698, at 1.

On November 6, 2020, the court of appeals

denied petitioner’s request for rehearing en banc.

Pet. App. 5a-

6a.

On November 12, 2020, petitioner filed a motion in the

district court seeking to enjoin his execution on various grounds

-- including so that he could file a petition for a writ of

certiorari, which he did not commit to filing at any particular

time before the deadline of April 5, 2021.

6 & n.8; see id. at 7-15.

D. Ct. Doc. 701-2, at

The court denied petitioner’s motion on

December 3, 2020, stating that it “lack[ed] jurisdiction” to grant

the request and that, in any event, petitioner had “failed to

demonstrate a likelihood of success on the merits” and had failed

to show that “the balance of equities weighs in his favor.”

D. Ct. Doc. 717, at 11.

Petitioner did not thereafter seek a stay

or an injunction in the court of appeals before filing the present

petition and stay application in this Court on December 8, 2020. 2

On November 24, 2020, petitioner filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. 2241 in the Southern

District of Indiana, where he is confined, with an accompanying

motion for a stay of execution.

Petitioner’s habeas petition

asserted the same Brady and Napue claims that he had previously

asserted in his successive Section 2255 motion in the Western

District of Texas. See Pet. for Writ of Habeas Corpus 1-4, Bernard

v. Warden, No. 20-cv-616 (S.D. Ind.). On December 8, 2020, the

Indiana district court denied petitioner’s motion for a stay after

determining that he was not likely to succeed in satisfying the

requirements in Section 2255’s saving clause, 28 U.S.C. 2255(e),

for filing a habeas petition.

Order 9-13, Bernard v. Warden,

supra. The court also observed that “even supposing the police

diagram and Sergeant Hunt’s conclusions are newly available

evidence, [petitioner] has not made a strong showing that this

evidence is so compelling that no reasonable juror would have

sentenced him to death in light of it.” Id. at 10. On December

8, 2020, petitioner noticed an appeal to the Seventh Circuit, which

remains pending as of the filing of this brief.

ARGUMENT

Petitioner’s application for a stay, and his petition for a

writ of certiorari, should be denied.

In order to obtain a stay

of execution pending the consideration of a petition for a writ of

certiorari, a movant must first establish a likelihood of success

on the merits -- specifically, “a reasonable probability that four

Members

the

Court

would

consider

the

underlying

issue

sufficiently meritorious for the grant of certiorari” as well as

“a

significant

possibility

reversal

the

lower

court’s

decision.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (citation

omitted).

movant

must

also

establish

“a

likelihood

that

irreparable harm will result if that decision is not stayed.”

Ibid.

(citation

omitted).

the

movant

satisfies

those

prerequisites, the Court considers whether a stay is appropriate

in light of the “harm to the opposing party” and “the public

interest.”

Nken v. Holder, 556 U.S. 418, 435 (2009).

Petitioner cannot satisfy those standards.

As a threshold

matter, petitioner’s application for a stay should be denied

because of his inexcusable delay in seeking a stay, as well as his

disregard for Rule 23.3 of the Rules of this Court.

The judgment

for which petitioner seeks this Court’s review was entered on

September 9, 2020; petitioner received notice of his December 10

execution date on October 16; and the court of appeals denied

rehearing en banc on November 6.

See pp. 12-13, supra.

Yet

petitioner waited until December 8 -- three months after the

judgment, one month after the denial of rehearing, and two days

before his scheduled execution -- to seek a stay in this Court.

And he filed his stay application without having first sought a

stay

the

court

appeals.

Rule

23.3

provides

that

application for a stay “will not be entertained unless the relief

requested was first sought in the appropriate court or courts

below,” “[e]xcept in the most extraordinary circumstances.”

Ct.

23.3.

Petitioner

identifies

such

Sup.

extraordinary

circumstances here, and his failure to do so itself furnishes a

sufficient basis to decline to entertain his stay application.

Cf. Barefoot, 463 U.S. at 896 (noting that this Court “generally

places considerable weight on the decision reached by the circuit

courts”).

Even setting aside those defects, petitioner’s request for a

stay should be denied.

First and foremost, petitioner has failed

to establish a reasonable probability that this Court will grant

certiorari,

let

alone

significant

possibility

reversal.

Petitioner contends (Pet. 16-23; Stay Appl. 5-6) that the court of

appeals erred in treating his third Section 2255 motion as an

unauthorized second-or-successive motion and that its decision is

contrary to this Court’s reasoning in Panetti v. Quarterman, 551

U.S. 930 (2007).

But the court of appeals considered petitioner’s

Panetti

and

argument

correctly

rejected

it,

and

the

court’s

decision does not conflict with the decision of any other court of

appeals -- as petitioner himself acknowledges (Pet. 15).

Further

review is also unwarranted because petitioner’s underlying claims

under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois,

360

U.S.

264

recognized.

(1959),

lack

merit,

multiple

courts

have

Finally, petitioner has failed to demonstrate that

the balance of equities favors a stay, which would undermine the

government’s and the public’s interest in the timely enforcement

of petitioner’s lawful sentence.

The

court

appeals

correctly

determined

petitioner’s third Section 2255 motion was successive.

1a-4a.

that

Pet. App.

Petitioner has not identified any court of appeals that

would have allowed a federal prisoner to bring a Section 2255

motion in the circumstances of this case.

And no substantial

likelihood exists that this Court would grant certiorari and allow

petitioner’s claim to proceed.

Indeed, this Court has repeatedly

and recently denied certiorari in cases raising the same or a

similar issue.

See Scott v. United States, 139 S. Ct. 842 (2019)

(No. 18-6783); Brown v. Hatton, 139 S. Ct. 841 (2019) (No. 186759).

The same result is warranted here.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 110 Stat. 1214, a state or federal prisoner may

not

file

“second

successive”

motion

for

federal

post-

conviction relief without first obtaining authorization from the

appropriate court of appeals.

2255(h).

28 U.S.C. 2244(b)(2) and (3),

The court of appeals may authorize such a motion only if

the court certifies that the motion contains: “(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. 2244(b)(2)(A) and (B).

28 U.S.C. 2255(h); see

When, as here, the prisoner has

not obtained the required certification, the district court lacks

jurisdiction to entertain the motion.

U.S. 147, 153 (2007) (per curiam).

See Burton v. Stewart, 549

A court of appeals’ denial of

certification is not reviewable by the en banc court or this Court.

28 U.S.C. 2244(b)(3)(E); see 28 U.S.C. 2255(h) (incorporating

Section 2244’s procedures).

The statutory phrase “second or successive” as used in AEDPA

is a “term of art.”

Magwood v. Patterson, 561 U.S. 320, 332 (2010)

(quoting Slack v. McDaniel, 529 U.S. 473, 486 (2000)).

“Congress

did not define the phrase,” id. at 331-332, and this Court “has

declined to interpret [it] as referring to all [applications for

post-conviction relief] filed second or successively in time,”

Panetti, 551 U.S. at 944.

In Panetti, this Court held that a

prisoner’s claim that his current mental illness rendered him

incompetent to be executed, see Ford v. Wainwright, 477 U.S. 399

(1986), raised for the first time in a second petition for writ of

habeas corpus, was not “second or successive” because it was not

ripe until after his first petition was filed.

Panetti, 551 U.S.

at 946-947.

The Court explained that Ford claims generally “are

not ripe until after the time has run to file a first federal

habeas petition,” and they ripen, if at all, only when execution

is imminent.

See

id. at 943, 946.

And the Court declined to

construe the provisions governing second-or-successive petitions

“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. at 947; see id. at 945 (emphasizing

“the unusual posture” of the case).

As the court of appeals recognized (Pet. App. 3a),

petitioner’s Brady and Napue claims are not comparable to the

competency claim at issue in Panetti.

alleged

withholding

exculpatory

Claims concerning the

evidence

(Brady)

the

presentation of false testimony at trial (Napue) relate to the

trial, not to the implementation of the sentence. Petitioner could

have raised such claims in his first Section 2255 motion.

Indeed,

petitioner did raise claims (different ones) under Brady and Napue

in his first Section 2255 motion, and they were denied on the

merits.

See p. 8, supra.

Petitioner’s allegation that the factual predicate for his

latest Brady and Napue claims came to light only at the Sparks

resentencing in 2018 does not make those claims newly “ripe” within

the meaning of Panetti.

The basis for the competency claim in

Panetti -- which required that the prisoner be mentally incompetent

at a time when his execution was imminent -- could not have

existed, and did not exist, at the time of the prisoner’s first

post-conviction petition.

Here, in contrast, petitioner alleges

at most that the factual basis for his claims existed but was

unlawfully withheld from him.

Although such a claim could be

deemed to be premised on newly discovered evidence, that does not

make it newly ripe, nor does it make claims alleging such evidence

non-successive.

See Brown v. Muniz, 889 F.3d 661, 671 (9th Cir.

2018) (“[W]hereas a Brady claim involves a ‘factual predicate’

that existed but could previously ‘not have been discovered,’ an

unripe claim involves no previously existing ‘factual predicate’

at all.”) (citation omitted), cert. denied, 139 S. Ct. 841 (2019);

Tompkins v. Secretary, 557 F.3d 1257, 1260 (11th Cir.) (per curiam)

(rejecting the view that “any claim based on new evidence is not

‘ripe’ for presentation until the evidence is discovered”), cert.

denied, 555 U.S. 1161 (2009).

Instead, AEDPA explicitly addresses the issue of claims based

on newly discovered evidence by allowing some -- but not all -such

claims

Specifically,

brought

Section

successive

2255(h)(1)

provides

collateral

that

the

attacks.

courts

appeals may authorize a federal prisoner to file a “second or

successive motion” that contains “newly discovered evidence,” if

certain

criteria

are

satisfied.

U.S.C.

2255(h)(1);

see

28 U.S.C. 2244(b)(2)(B)(i) (equivalent gate-keeping provision for

state prisoners, requiring that “the factual predicate for the

claim

could

not

have

been

discovered

previously

through

the

exercise

due

diligence”).

That

provision

forecloses

any

suggestion that a “later petition is non-successive” whenever the

later petition is allegedly based on “evidence [that] was not

previously

discovered

discoverable.”

Leal

Garcia

Quarterman, 573 F.3d 214, 221 (5th Cir. 2009); see Pet. App. 3a

(citing Leal Garcia). Indeed, Section 2255(h)(1) would be entirely

superfluous if second-in-time motions based on newly discovered

evidence were deemed not to be second or successive at all. 3

Consistent with the decision below, all the courts of appeals

to have considered the question have held that a second-in-time

motion brought by a federal or state prisoner raising Brady claims

is subject to AEDPA’s gate-keeping requirements for second-orsuccessive motions.

See Brown, 889 F.3d at 668; In re Pickard,

681 F.3d 1201, 1205 (10th Cir. 2012); Tompkins, 557 F.3d at 12591260; Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000), cert.

denied, 532 U.S. 925 (2001); Pet. App. 13a (additional citations).

Petitioner acknowledges that the question presented has

not divided the courts of appeals.

See Pet. 24 (recognizing that

“technically there is not yet a circuit split on this issue”).

Nonetheless, petitioner contends (Pet. 24-28) that further review

is warranted based on judicial views expressed in dicta or in

Here, the court of appeals held that Section 2255(h)(1)

was unavailable to petitioner because he “concede[d]” that his

Brady and Napue claims did not bear on whether he was “‘guilty of

the offense.’” 826 Fed. Appx. 356, 358; see 28 U.S.C. 2255(h)(1).

The court also alternatively found that the evidence at issue was

not actually “newly discovered,” 826 Fed. Appx. at 358 n.2, for

reasons discussed below, see pp. 24-25, infra.

concurring or dissenting opinions.

Petitioner principally relies

(Pet. 25-28) on Scott v. United States, 890 F.3d 1239 (2018), cert.

denied, 139 S. Ct. 842 (2019), in which a panel of the Eleventh

Circuit recognized that its precedent required treating a secondin-time

habeas

successive,

petition

raising

id.

1243.

see

Brady

The

claim

panel

second

stated

that

“disagree[d]” with the binding circuit precedent, and criticized

it.

Id. at 1256; see id. at 1253-1256.

But the Eleventh Circuit

denied rehearing en banc after no judge in regular active service

called for a poll, see Order, Scott, supra, No. 15-11377 (Aug. 16,

2018).

The other circuit decisions cited by petitioner likewise

provide no basis for further review of the court of appeals’

decision here.

In Long v. Hooks, 972 F.3d 442, 470 (2020) (en

banc), the Fourth Circuit did even not apply Panetti, having

previously authorized the successive habeas petition under Section

2244(b)(2)(B) as a claim of “actual innocence.”

Although three

concurring judges expressed the view that Brady claims should not

“subjected

the

strictures

‘second

successive’

petitions,” id. at 485 (Wynn, J., concurring) (citation omitted),

that view was not endorsed by any of the circuit’s 12 other judges.

And in Allen v. Mitchell, 757 Fed. Appx. 482 (6th Cir. 2018), a

single dissenting judge expressed the view that a habeas petition

raising a Brady claim was not successive.

dissenting).

Id. at 487 (Moore, J.,

Those isolated and non-binding views do not indicate

any division of authority in the courts of appeals warranting

certiorari here.

Further

unjustified

review

also

unwarranted

because,

multiple

courts

-have

and

stay

recognized,

petitioner’s underlying Brady and Napue claims lack merit.

crucial predicate for any Brady claim is that material evidence in

the government’s possession was not “disclosed to the defense.”

Strickler v. Greene, 527 U.S. 263, 280 (1999) (citation omitted);

see Brady, 373 U.S. at 87.

barred

from

filing

Here, even if petitioner were not

successive

Section

2255(h)

motion,

his

constitutional claims would fail because he cannot show that the

government withheld any of the disputed evidence or that the

evidence would have been material at sentencing.

Before

trial,

the

government

made

available to petitioner’s counsel for inspection.

its

file

fully

D. Ct. Doc. 34,

at 1 (July 29, 1999) (government’s notice of policy of “open file

type discovery”); D. Ct. Doc. 36, at 1 (July 29, 1999) (similar);

D. Ct. Doc. 449, at 25 (district court’s statement that “[t]he

Government in this case, as in all cases in this Division, has an

open

file

policy”).

part

its

open-file

policy,

the

government made available to the defense the hand-drawn diagram of

the hierarchy of the 212 PIRU Bloods -- later the subject of

Sergeant Hunt’s testimony at Sparks’s 2018 resentencing -- and

even included that diagram on the government’s exhibit list.

See

D. Ct. Doc. 266, at 9 (June 8, 2000) (“Diagram depicting the

members of the 212 PIRU Bloods”).

Accordingly, neither the hand-

drawn diagram nor the information it contained was suppressed or

withheld.

Petitioner’s

government’s

opinion”

instead

alleged

that

“the

focuses

suppression

gang

had

his

Brady

claim

Sergeant

Hunt’s

“expert

pyramidal

hierarchy”

and

the

that

petitioner “was at its ‘very bottom.’” Pet. 11 (citation omitted).

But petitioner also cannot show that the government suppressed

that evidence.

Sergeant Hunt did not testify about the gang chart

until 18 years after petitioner’s trial.

The government could not

improperly

that

suppress

expert

opinion

had

not

yet

been

expressed.

Petitioner asserts (Pet. 11) that Hunt’s testimony at the

2018 resentencing indicated that the government had contacted her

before petitioner’s trial for her “analysis of the hierarchy” of

the gang.

But the portion of her testimony that he cites does not

support that assertion:

All right. Did you at my request look to see if there

were other gang individuals -- let me back up.

You’re familiar with the incident that took place on

June 21, 1999 in Killeen where Todd and Stacie Bagley were

kidnapped and murdered?

I am.

Did you, at that time, at our request, go back and see

if any of the identities of any of the other people who were

involved in that were on this chart?

Yes, I did.

D. Ct. Doc. 661-1, at 9 (cited at Pet. 11 as 19-70021 C.A. ROA

2321).

After that exchange, Sergeant Hunt proceeded to testify

that she had “locate[d]” several of the defendants on the chart,

including petitioner, Vialva, and Sparks.

Ibid.

Sergeant Hunt

did not, however, indicate that she had told the prosecution

anything about the gang’s hierarchy before petitioner’s 2000 trial

that was not disclosed to petitioner.

Her later testimony at the

resentencing

describing

consisted

primarily

the

hierarchy

reflected on the hand-written pyramid diagram itself, which was

available to petitioner.

any

event,

the

government

had

duty

disclose

information to petitioner about his own status in the gang.

See

United States v. Agurs, 427 U.S. 97, 103 (1976) (explaining that

the situations in which Brady applies all “involve[] the discovery,

after trial of information which had been known to the prosecution

but unknown to the defense”) (emphasis added); United States v.

Vasquez-Hernandez, 924 F.3d 164, 171 (5th Cir. 2019) (recognizing

that government “bears no responsibility to direct the defense

toward potentially exculpatory evidence that is either known to

the defendant or that could be discovered through the exercise of

reasonable

diligence”).

the

court

appeals

observed,

petitioner’s own knowledge of his gang status would undermine his

Brady claim even if it were not barred by Section 2255(h).

826

Fed. Appx. at 358 n.2 (“[Petitioner] offers no explanation why he

would not have known what his role in his own gang was.

* * *

Indeed, [petitioner] all but admits he had such knowledge.”).

Accordingly, even if petitioner were correct that the government

was aware of Sergeant Hunt’s opinions, he cannot show that the

government suppressed any favorable evidence that was not already

known to him.

Petitioner

suggests

(Pet.

12)

that

the

“police-prepared”

version of the diagram used at Sparks’s resentencing, which showed

the gang members’ full names, was itself Brady material.

describes

(Pet.

11)

that

document

“formal”

chart

that

“interpreted the original based on information in the gang unit’s

files.”

fact,

the

primary

difference

between

the

charts

consisted of adding the last names of members identified only by

their first names on the handwritten chart (information that

petitioner himself may well have known).

7, with D. Ct. Doc. 661-8.

Compare D. Ct. Doc. 661-

More importantly, the only asserted

value of either chart as potential mitigation evidence during the

penalty phase was to show that petitioner was at the bottom of the

pyramid, below others such as Vialva and Sparks.

And that fact

was evident from the original, handwritten chart, where petitioner

was identified in the bottom row of the pyramid by his nickname.

See D. Ct. Doc. 661-7.

The second chart, regardless of when it

was created, added nothing new in that respect.

In any event, petitioner fails to show that any of the

evidence at issue was material, as a meritorious Brady claim would

require.

See Kyles v. Whitley, 514 U.S. 419, 433-434 (1995).

“[F]avorable evidence is material * * * ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’”

(citation omitted).

Ibid.

Here, no reasonable probability exists that

either the gang diagrams or Sergeant Hunt’s 2018 testimony or both

would

have

caused

the

jury

recommend

sentence

life

imprisonment rather than death.

Petitioner contends (Pet. 6-8) that the evidence was material

because of its connection to the non-statutory aggravating factor

of “future dangerousness.”

government’s

brief

Petitioner points (Pet. 8) to the

direct

appeal,

which

petitioner

characterizes as “repeatedly assert[ing] that the trial evidence

could have persuaded a reasonable juror that Petitioner’s status

the

gang

was

dangerousness.”

powerful

predictor

his

likely

future

At trial, however, the government based its

argument regarding future dangerousness primarily on petitioner’s

past crimes, not his gang affiliation.

26-27, 78-79 (Oct. 25, 2000).

See D. Ct. Doc. 319, at

The government argued that Vialva

wanted to be the “top gangster in Killeen” and that petitioner

“assist[ed] in that.”

Id. at 73.

But the government never argued

that petitioner’s role or relative position in the gang made him

dangerous. Cf. Order at 11, Bernard v. Warden, No. 20-cv-616 (S.D.

Ind. Dec. 8, 2020) (S.D. Ind. Order) (“[E]vidence of the gang’s

hierarchy would not have significantly undermined the government’s

case for a death sentence.”).

Indeed, the evidence presented to the jury about petitioner’s

role relative to his co-defendants, particularly Vialva, already

indicated that his position among his peers was low.

See S.D.

Ind. Order 12 (explaining that “the evidence suggested that Mr.

Vialva was ambitious and looking to make a name for himself, but

there was no such evidence about [petitioner]”).

The jury heard,

for example, that Vialva -- not petitioner -- took a leadership

role during the offense, including planning the carjacking with

Sparks, D. Ct. Doc. 312, at 175-176; recruiting petitioner to

participate, D. Ct. Doc. 314, at 149, 150-151, 153; selecting the

gang member who would ask the Bagleys for a ride, D. Ct. Doc. 312,

at 175; pulling out the gun and pointing it toward Todd Bagley’s

head, D. Ct. Doc. 314, at 158; demanding Todd Bagley’s wallet, id.

at 159; threatening to kill the Bagleys if they did not provide

the correct PIN number, id. at 165-166; making the decision “to

burn the car and kill the people,” D. Ct. Doc. 312, at 193;

instructing petitioner to get the accelerant to “burn the car,”

id. at 194, 195-196, 200; directing another gang member to open

the trunk, id. at 211; and shooting Todd Bagley in the head, id.

at 213-214.

Petitioner’s counsel argued during the penalty phase

that this testimony demonstrated that petitioner was less culpable

than Vialva and Sparks, D. Ct. Doc. 319, at 61, and the jury

nonetheless recommended a death sentence.

Sergeant Hunt’s 2018 testimony that petitioner was “at the

very bottom of the chart” -- a chart that petitioner could have

introduced at trial -- would have added little to that evidence.

Ct.

Doc.

661-1,

Moreover,

Hunt’s

testimony

about

petitioner’s role in the gang would not have undercut the evidence

about his role in the offense -- i.e., that he willingly agreed to

participate in the carjacking, that the weapon used to carjack and

shoot the Bagleys belonged to him, that he bought lighter fluid

with the money Vialva gave him, that he helped pour lighter fluid

in the Bagley’s car while the Bagleys were held captive in the

trunk, that Stacie Bagley died from the resulting fire, and that

he provided and drove the getaway car.

Petitioner’s Napue claim also lacks merit.

Under Napue,

the government “may not knowingly use false evidence” to obtain a

conviction.

Napue, 360 U.S. at 269.

Contrary to petitioner’s

contention, however, the government did not present evidence that

conflicted

with

resentencing.

Sergeant

Hunt’s

later

testimony

Sparks’s

Rather, the evidence from the government’s witness

in petitioner’s penalty-phase proceeding indicated that while the

gang eschewed titles, it nevertheless had some form of hierarchy.

See S.D. Ind. Order 11 (explaining that “the police diagram and

Sergeant

Hunt’s

conclusions

are

easily

reconciled

with

the

government’s sentencing evidence,” and that “the lack of titles

and formal hierarchy does not mean there is no informal or loose

hierarchy within the gang”).

For

example,

Texas

Ranger

John

Aycock

testified

that

particular family was “at the top of a matrix of this group.”

Ct.

Doc.

317,

111.

further

testified

that

his

“understanding” was that the founders of the 212 PIRU Bloods in

Killeen “didn’t particularly want it to [be] where one person was

above another with some sort of title, because they didn’t want to

cause problems in a newly-formed gang.”

Id. at 113.

And he

testified that because of these problems with a “pyramid scheme,”

the

gang’s

founders

understanding.”

“chose

Ibid.

not

have

any

titles,

But Aycock also testified that Vialva and

Sparks were “climbers” who “cause[d] some problems” by trying to

make names for themselves.

The

gang

members

who

Id. at 114.

cooperated

and

testified

for

the

government painted a similarly nuanced picture of the gang’s

structure.

Terry Brown, a member of an affiliated gang who

participated in the Bagleys’ murders, testified that there were no

“leaders” in the 212 PIRU Bloods because “everyone was considered

equal.”

D. Ct. Doc. 312, at 226; see D. Ct. Doc. 317, at 95.

But

two 212 PIRU Bloods members indicated that the gang had a “leader”

or “crown holder,” though they “d[id]n’t know” who that person

was.

D. Ct. Doc. 314, at 17-18 (witness’s testimony that he did

not know who the leader was because he “wasn’t into it like that”

but also testifying that every gang has a “crown holder”); id. at

225 (“I don’t know the exact person, sir.”).

A witness who

associated with the gang testified that someone named “Fat” was

the gang’s “leader” or “crown holder.”

Id. at 64.

And a witness

testified that Vialva was “in charge” during the gang’s attempted

carjacking the night before the murders, D. Ct. Doc. 311, at 86

(Oct. 25, 2000), indicating a de facto hierarchy within the gang.

Thus, the evidence indicated at least some kind of hierarchy, and

the government did not argue otherwise to the jury.

short,

nothing

Hunt’s

testimony

Sparks’s

resentencing undermined the trial evidence or suggested that the

government introduced false evidence relating to petitioner’s role

in the gang.

And any alleged Napue error would be harmless, in

any event, in light of the ample evidence that petitioner was not

a leader in the gang but nevertheless played a substantial role in

the Bagleys’ murders.

The balance of equities weighs heavily against granting

petitioner’s request for an emergency stay.

First and foremost,

petitioner belatedly came to this Court seeking a stay only two

days before his scheduled execution.

This Court has explained

that “[a] court considering a stay must

* * *

apply ‘a strong

equitable presumption against the grant of a stay where a claim

could have been brought at such a time as to allow consideration

of the merits without requiring entry of a stay.’”

Hill v.

McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell,

541 U.S. 637, 650 (2004)); see Gomez v. United States Dist. Court,

503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the

last-minute nature of an application to stay execution in deciding

whether

grant

equitable

relief.”).

explained

above,

petitioner waited until December 8, 2020, to file the instant

petition and stay application, even though the court of appeals

had entered judgment on September 9, 2020, and had denied his

request for rehearing en banc on November 6, 2020.

5a-6a.

Pet. App. 1a,

Petitioner could have sought a stay from this Court weeks

earlier but chose not to, and that choice should foreclose the

equitable relief he now seeks.

See pp. 14-15, supra.

Granting a stay at this late date would also prejudice the

government’s and the victims’ “important interest in the timely

enforcement of a sentence.”

Bucklew v. Precythe, 139 S. Ct. 1112,

1133 (2019) (quoting McDonough, 547 U.S. at 584).

Once post-

conviction proceedings “have run their course,” “an assurance of

real finality” is necessary for the government to “execute its

moral judgment.”

Delaying

Calderon v. Thompson, 523 U.S. 538, 556 (1998).

petitioner’s

execution

thus

“would

frustrate

the

[government’s] legitimate interest in carrying out a sentence of

death in a timely manner.”

(plurality opinion).

Baze v. Rees, 553 U.S. 35, 61 (2008)

That interest is particularly strong in a

case, like this one, where the prisoner is seeking to circumvent

statutory

limitations

enacted

streamline

post-conviction

challenges and thereby prevent delays in the execution of capital

judgments.

Finally, the government’s interest is further magnified in

this case by the heinous nature of petitioner’s crime.

Petitioner

murdered Todd and Stacie Bagley more than 20 years ago, burning

Stacie alive in the trunk of her car.

Petitioner has received

extensive direct and collateral review.

He is not entitled to any

further delay of his lawful capital sentence.

CONCLUSION

The application for a stay of execution and the petition for

a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

BRIAN C. RABBITT

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

DECEMBER 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.